Milton presents interesting arguments on the MBTA Communities Act

MILTON IS NOT is putting all its eggs in one basket and trying to convince the Supreme Court that the city does not have to comply with the MBTA Communities Act, but it comes pretty close to doing so.

The town continues to argue that the rezoning regulations were not properly enacted and that the dilapidated Mattapan Streetcar line, which runs above ground through part of Milton, does not qualify as underground rapid transit, subjecting Milton to more stringent rezoning requirements than most other municipalities in eastern Massachusetts.

Those arguments still appear in Milton's legal opinion filed Monday, but they take a back seat to the idea that the only penalty available under the MBTA Communities Act for municipalities that don't comply with the law is the withholding of certain state grants. In short, Milton argues that the legislature set financial penalties for noncompliance and didn't give Attorney General Andrea Campbell the power to enforce compliance through the courts.

“This is a case about separation of powers and the rule of law – about who sets the rules that govern the Commonwealth and how they do it,” the Milton brief says. “In passing a new law, the legislature is entitled to decide that the statutory objective is best achieved by monetary penalties rather than injunctions. Allowing the Attorney General to always seek injunctions, even when the legislature has specified only a lesser remedy, makes it impossible for the legislature to balance competing policies and interests in creating new statutory regimes.”

It's a simple argument that offers hope to communities like Milton, which appear willing to forgo state grants if it means they can avoid compliance with the rezoning law. If Milton wins before the Supreme Judicial Council in October, expect other communities that are angry about the rezoning law's requirements to take the same position. Officials in Winthrop, which has a year-end deadline to comply, are angry about the new law and are threatening to follow Milton's example.

Campbell argues in her court filings that the MBTA Communities Act requires communities to “rezone” to create more housing. While she acknowledges that the law provides for fines for noncompliance, she claims that the law's use of the word “shall” gives her the right to enforce compliance, either through the city or a court-appointed agent.

“It is 'axiomatic' that the use of the word 'shall' in a law indicates an obligation,” argues Campbell.

That's not the case, says Milton. The city points out in its legal opinion that the law and regulations issued by the Executive Office of Housing and Livable Communities repeatedly mention the loss of grants as a penalty for noncompliance. “When a law creates a duty and provides no remedy, the Attorney General may seek equitable relief at common law. But when, as in this case, the legislature has established a remedy, that remedy is exclusive,” the city argues.

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