Jan 29,2025
In a written decision issued on January 8, 2024, the Massachusetts Supreme Judicial Court upheld the Massachusetts Bay Transportation Authority (MBTA) Communities Act (the “Act”). The Act was adopted by the Massachusetts legislature in January 2021, in an effort to create additional housing in the Commonwealth. The Act requires that each “MBTA community” have at least one zoning district of “reasonable size” in which multi-family housing is permitted as of right. There are specific criteria for what constitutes an “MBTA community” and how a district of “reasonable size” is defined, but in general, the Act covers all cities and towns that are serviced by the MBTA, which is approximately 200 cities and towns. A map showing the current MBTA communities is below. As you can see, it covers essentially every city and town east of Worcester, excluding most of the Cape and several smaller towns. In short, the Act impacts essentially every town and city in the Greater Boston area and beyond.
If the city or town does not enact a zoning scheme that permits that, not only will it be ineligible for certain state funding, but it will face the potential of a lawsuit by the Attorney General to enforce the Act.

The Act also directs the Executive Office of Housing and Livable Communities (“EOHLC”) to promulgate guidelines to determine whether an MBTA community has complied with the Act. Failure to comply with the Act by an MBTA community results in that city or town being ineligible for certain state funding. Enforcement of the Act was delegated to the Attorney General.
When the Town of Milton failed to adopt a zoning scheme that would have complied with the requirements of the Act, the Attorney General filed a lawsuit against the Town of Milton to enforce the Act. In response, the Town of Milton filed counterclaims asserting that the Act is unconstitutional and that the Attorney General has no power to enforce it. The Town of Milton also claimed that that the guidelines promulgated by the EOHLC were invalid for failure to comply with the applicable statutory requirements.
In Attorney General v. Town of Milton, 495 Mass. 183 (2025), the SJC determined that the Act is constitutional, in that it does not run afoul of the separation of powers doctrine. The SJC also held that the Attorney General is permitted to enforce the Act by bringing forward lawsuits in equity against MBTA communities that fail to comply with the Act, even though the Act does not specifically provide for that power. In practice, this means that, going forward, every city or town that is determined to be an MBTA community will be required to have at least one zoning district of reasonable size in which multi-family housing is permitted as of right. The result is that the Act will be mandatory for all such cities and towns, meaning that MBTA communities are required, in at least one zoning district, to allow developers to build multi-family housing without the requirement of obtaining a special permit, variance, zoning amendment, waiver, or other discretionary approval. If the city or town does not enact a zoning scheme that permits that, not only will it be ineligible for certain state funding, but it will face the potential of a lawsuit by the Attorney General to enforce the Act.
However, in its decision, the SJC also determined that the guidelines promulgated by the EOHLC are invalid because they were not adopted in compliance with statutory requirements. As such, the guidelines that were previously adopted are considered legally ineffective, and new guidelines will need to be adopted in accordance with statutory requirements. The result of that ruling is that MBTA communities that failed to comply with the Act by the 2024 deadline will now have a few extra months to comply. Different towns have different deadlines based on their classification. Information on each MBTA community’s compliance status, as well as their deadlines for compliance, can be found on Mass.gov.
Predictably, the Act has been received with mixed results among the MBTA communities, and the various interest groups living in each of those cities and towns. Some towns, like Milton, have simply refused to comply with the Act. Other towns, like Needham, have struggled to adopt a zoning scheme that would satisfy the Act while also being accepted by concerned residents, who will have to live with the impact of the inevitable increase in multi-family housing on the ground. Towns like Milton were undoubtedly hoping that the SJC would strike down the Act as unconstitutional, or at a minimum prevent the Attorney General from bringing lawsuits to enforce the Act. However, now that the SJC has upheld the Act and the Attorney General’s power to enforce it, towns such as Needham and Milton will need to enact zoning schemes that comply with the Act in the next few months, or risk having funding withheld and facing a potential lawsuit.
It remains to be seen how the Act will impact the MBTA communities. We will continue to monitor future developments regarding the Act and provide updates as necessary.