“Just say no!” has become the rallying cry of speakers at Town Meeting and letter writers to The Cricket as they voice opposition to the proposed changes to the Town’s Zoning Bylaws required in order to comply with General Law Chapter 40A, the MBTA Communities Act.
A recent writer asks: “Where are all those MBTS folks who put up pink ‘Stop SLV!’ signs?” I’ll tell you where we have been, where we are, and where we will be. We have been, are, and will continue to be working very hard to win the ongoing legal battle against Strategic Land Ventures (“SLV”), rather than trying to fight a legally unwinnable battle against the State of Massachusetts.
The case involves a somewhat arcane issue: whether the “loss of grant eligibility” penalty included in the MBTA Communities Act is the only remedy the State may impose on non-compliant towns, or whether the State, acting through the Attorney General (“AG”), may sue non-compliant towns to obtain judicial enforcement of the town’s obligation to comply. The Town of Milton argues that “loss of grant eligibility” is the only penalty the State can impose and that the AG lacks authority to sue Milton for enforcement. The State disagrees.
During oral argument, Justice Scott Kafker asked the lawyers: “Towns can’t vote not to comply with state laws, right? So, if you have the authority in the AG’s office ... then the question is, are the remedies exclusive? That’s really the only issue we have.”
The SJC might not uphold the AG’s authority to sue for compliance, but it seems highly unlikely the SCJ would rule that the AG lacks the authority to take other enforcement actions against non-compliant towns. Either way, there is no doubt that the MBTA Communities Act is valid and that, “Towns can’t vote not to comply with state laws.”
This means there is no “upside” in delaying the vote on the Town’s plan for complying with the MBTA Communities Act. There are only downsides, like lost grant money, higher property taxes, and expensive attorney’s fees to fight an unwinnable battle. But the biggest downside is that a failure to comply with the MBTA Communities Act would provide further aid and support to SLV. It would allow SLV to argue, as it has already, that Manchester is a town full of NIMBYs who are opposed to any new construction of multi-family dwellings. Such an argument has found a receptive audience at the Housing Appeals Committee (“HAC”). The appellate process will go forward as Manchester seeks to reverse the HAC’s adverse ruling in favor of SLV. It would help immensely if the opponents to the Town’s proposed zoning amendments would stop providing unwitting aid and support to SLV.
Nothing could be further from the truth. There is no such thing as “municipal sovereignty.” Under the Massachusetts Constitution and General Laws, each Massachusetts town is a creation of and, therefore, is subject to the Massachusetts General Court. The Commonwealth is the source of the rights and powers a local government may exercise. Therefore, the State cannot “usurp” town powers. The State giveth; the State taketh away.
This is no recent “power grab.” In 1868, state supreme courts began adopting the “Dillon Rule” to describe and govern the relationship between a state and its various towns. That rule states that a town “possesses and can exercise the following powers and no others: First, those granted in the express words [by the state]; second, those necessarily implied or necessarily incident to the powers expressly granted; third, those absolutely essential to the declared objects and purposes of the corporation – not simply convenient, but indispensable; and fourth, any fair doubt, as to the existence of a power, resolved by the courts against the corporation.”
In 1907, the United States Supreme Court adopted the Dillon Rule stating that “Municipal corporations are political subdivisions of the state, created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them. … The state, therefore, at its pleasure, may modify or withdraw all such powers, may take without compensation such [public] property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation. … In all these respects the state is supreme.” This is sometimes called a “preemption doctrine.”
Finally, the Massachusetts legislature has the exclusive constitutional right and authority to legislate for towns on specific matters, including zoning. Thus, the preemption doctrine restricts local self-rule and perpetuates the involvement of the state in municipal affairs.
So those who think that trying to fight the State over the MBTA Communities Act is a winnable proposition (when it isn’t), please consider the message that your years of strident opposition sent to the HAC.
Manchester will appeal the HAC’s decision to the Superior Court, where Manchester will have a real opportunity to defeat SLV’s 40B proposal at Shingle Hill. Think carefully. Choose your battles strategically. Act wisely. Don’t try to win the unwinnable battle with the State and thereby jeopardize Manchester’s chances of defeating SLV in court.
Rob Beatty is a retired attorney and resident of Manchester. He has written several OpEd pieces for The Cricket in the areas of municipal finance.
