Planning Board Rubber Stamps MBTA Community Rezoning Bylaw

Selectboard chairs says Duxbury should not have to comply with the MBTA Communities law at all.

Proposed MBTA Communities Overlay Districts

May 12, 2025 — After public hearings attended in person by approximately four people, the Planning Board approved the accessory dwelling unit zoning bylaw and the MBTA Communities zoning bylaw.

Special Town Meeting will now consider the two zoning bylaws on June 16.

MBTA Communities Working Group Chair Steven Gandt led off with a presentation that recited many of the same talking points that Megan Driscoll discussed in a similar presentation to the School Committee on May 7.

For an analysis of the core of Gandt’s presentation, please see the two previous stories Nobody Put These Words Into Our Mouth and Megan Driscoll and a Developer-Friendly NGO Scripting Words for the Selectboard Chair to Recite at MBTA Zoning Forum.

Selectboard Chair Brian Glennon II did not present. Neither did Megan Driscoll.

Vice Chair Tag Carpenter discussed the technical aspects of the proposal for a 29.47 acre zoning overlay district around Island Creek Village called MCOD-Tremont and a 20.65 acre overlay district at The Village at Duxbury called MCOD-Kingstown.

The plan would allow for the construction of approximately 240 new housing units at the Island Creek and surrounding properties, but both Gandt and Carpenter downplayed the possibility that any new building would occur. The presentation was hard to hear, but the transcript of the meeting does not include any reference to the exact number of housing units that could be built.

Since February, the MBTA Communities Working Group has been developing a zoning bylaw to fulfill requirements mandated by recently-issued MBTA Communities regulations that require the town to zone for 750 units of multi-family housing on at least 50 acres.

A judge is now considering the town’s request for a preliminary injunction to prevent the state from enforcing the MBTA Communities zoning law while litigation proceeds over whether the town should be granted an exemption from the law because it is an unfunded mandate and from the regulations because they go beyond the scope of the law.

If the court has not ruled on whether to grant the town a preliminary injunction by June 16, in order to avoid losing access to grants for a few weeks, Planning Board Chair Kristin Rappe wants the Special Town Meeting to approve the zoning changes. Doing so requires a majority vote.

Then, if the town gets the preliminary injunction, she wants to repeal the bylaw, which would take a two-thirds vote at Town Meeting and require another public hearing before the Planning Board.

Rappe did not say whether she wanted to hold another Special Town Meeting to repeal the bylaw this summer or wait until Annual Town Meeting next March. She also did not clarify how the town would deal with any building permits that might be issued in the meantime.

What if a company purchases one of the pieces of land at overlay district around Island Creek Villages at a premium due to the new zoning? Who could compensate the owners for the sudden change in the value of their property should the zoning bylaw creating the overlay district is suddenly repealed?

Rappe did not provide any information on how her plan would deal with such circumstances.

The only hint of dissension came from MBTA Communities Working Group member Alicia Babcock who expressed concern about the Massachusetts Statewide Housing Plan and the condition of the commuter rail station in Kingston.

On the Statewide Housing Plan, which Governor Maura Healey rolled out in February, Babcock’s main concern appeared to be that the incentives for redeveloping areas like those in the Tremont overlay district may be more generous than residents realize.

It pretty much maps out the whole plan and how they intend to roll out incentives and things to support infrastructure and all of that. So, I just wanted to make everybody aware that there are incentives for building beyond what we're saying. There are, you know, great tax incentives for big developers to create large affordable housing developments to offset their portfolios. So, you know, I think between that and the fact that there are some infrastructure incentives as well coming in from the state, it's not just fully landing on the developer, I think, for them to upgrade a lot of the things that we're kind of relying on.

We need guardrails for Duxbury, and I just want to make sure that we're paying attention to those things. We don't want to get caught up in a kind of wishful thinking. It's hard to purchase them, a mindset of a developer, but they think very differently. They're much more aggressive, and, they've got different goals on how they go about doing things.

Babcock also had some doubts about whether the commuter rail station in Kingston could support large numbers of riders the state envisions.

The other thing I came across was a concern about the train station in Kingston, a spur line. I don't know if anybody's been to Kingston train station lately, but it's really off the beaten path. There's one road in and out to the parking lot, up behind the mall. It has only about 1,030 parking spaces, and it is pretty desolate. The state is focusing on that as the MBTA location for all the surrounding towns, which is something to think about. I don't know how you would accommodate all the cars and traffic on that one road.

There's also a train station in North Plymouth, where there's a housing development. In case they bypass the Kingston station, I want to ensure Duxbury doesn't get stuck with all the housing we could be generating.

The members of Planning Board stared stone-faced at Babcock as she spoke and did not acknowledge her comments.

Clarification on the MBTA Lawsuit

Selectboard Chair Brian Glennon II said that Duxbury’s position is that the town should not have to comply with the MBTA Communities law at all.

That's what we're asking for the injunction for. All this work that the working group has been doing is in the event we don't get the injunction and we do have to proceed so we're not in non-compliance, to your point, that we have something ready to go, and that's the paper compliance model.

He then asked Gregg Corbo, from KP Law, to clarify Duxbury’s position as well. Corbo said the town was currently seeking a preliminary injunction that would keep the state from penalizing Duxbury while the town litigates its case against the MBTA Communities law. That case has two parts. The first is that the law is an unfunded mandate; the second is that the associated regulations go beyond what the law allows.

The act and regulations … impose costs, not only monetary costs, but a service loss from the town in terms of these bylaws then as indicated, what the future is going to be what's going to happen and at some point if this housing is built buy additional equipment, make infrastructure upgrades. These are all things that are directly related to the passage of this act.

The second argument is that the regulations go far beyond what the act provided, and to the point where it's arbitrary and capricious in that it utterly fails to take into account just for its unique circumstances in its ability to accommodate housing at the density that is being required. And again, our position is that in Duxbury, this is the size of the district you need, and this is the number of units that you need to allow, that they fail to take into account the unique environmental characteristics of Duxbury, where it is, what type of water supply it has, what the vulnerabilities of that water supply are, the threats posed by on-site septic systems, just the fact that it is entirely remote from any MBTA facility whatsoever, and the fact that it doesn't have the road infrastructure, the number of employees. So for all of these reasons,

Not only is it an unfunded mandate, which is true, it could be funded at some point, but it's unreasonable to suggest that Duxbury could accommodate the type of housing that is anticipated by the Act and that the regulations are invalid and should be declared invalid. And it should be up to Duxbury to decide how it wants to satisfy its requirements for providing multifamily housing in a way that is, you know, responsible for this community, not in the same exact way that is responsible for essentially every other MBTA community. We argued in our papers that Duxbury has the same exact acreage and unit requirements as 35 other MBTA communities, including communities that have are next to the city of Worcester.

Driscoll v. KP Law

Corbo said that the efforts of the MBTA Communities Working Group do not interfere with the lawsuit.

It’s not clear, however, if he heard the legal analysis offered by Driscoll in her May 7 presentation to the School Committee.

Driscoll claimed that the town’s chance of success in the unfunded mandate claim is very slight due to legal precedents.

Legal precedent would say that it actually won't be deemed an unfunded mandate.

It’s unclear upon which rock Driscoll rests such a conclusion, but the blog Rice
Pond Village offers a clear and simple explanation of the precedent upon which Duxbury’s case is based.

The AG's statement overstates the legal standing of the MBTA Communities Law. In City of Worcester v. Governor, 416 Mass. 751 (1994), the Supreme Judicial Court (SJC) ruled that when an unfunded local mandate exists, the only remedy under G.L. c. 29, § 27C is a court order exempting the municipality from compliance. This decision, though rarely cited, remains the controlling precedent.

The ruling means that the Auditor’s determination is not self-executing but instead serves as evidence in court. If Ipswich (or any other municipality) wants to challenge this mandate, they can petition the Superior Court for exemption. The legal burden would shift to the AG’s office to counter the Auditor’s findings, an uphill battle given the deference courts typically afford to administrative determinations.

Driscoll also believes that if the town prevails, then the state will simply fund the law.

[I]f the lawsuit succeeds, the state will likely just fund it… If you think about 120 towns that have already passed this legislation, they're not going to sacrifice not making it funded for all the housing that's actually going to be built underneath this law in Massachusetts, which they desperately need. So, it's in the state's best interest to, if they're found to be an unfunded mandate, just fund it. What that will mean for Duxbury is we will probably receive the monies that we've spent already to try and get it past the finish line.

As Corbo explains above, Duxbury is actually arguing for an expansive view of the costs. Such costs consists not simply of the funds expended to implement the law but also the ongoing costs associated with the new housing.

In the complaint itself, Corbo and his associates explain the situation succinctly.

[T]he Town will see significant increases across all operating budgets due to the need for additional services resulting from new development authorized as a matter of right under MBTA compliant zoning, particularly with respect to public safety, public schools, transportation, and health and human services. These increases will be ongoing and escalating from year-to-year.

Funding all of these costs for towns all across the state would be very expensive, so there’s a strong likelihood that if Duxbury prevails, the state may not be able to “just fund” the law as Driscoll suggested.

Driscoll also did not appear to understand the difference between the law itself ad the regulations that now accompany it.

Corbo and his associates contend in Duxbury’s complaint that the regulations are ultra vires, meaning they go beyond the law.

The Regulations are also unenforceable because they are ultra vires and arbitrary and capricious, on their face and as applied to Duxbury, insofar as they require a minimum number of units and unit density in excess of the numbers required by the Act, they fail to provide a reasonable opportunity for municipalities to create zoning based on their individual characteristics, and they fail to provide notice and an opportunity to be heard prior to receiving an adverse decision nor any meaningful opportunity to appeal such a decision.

As such, in the complaint Duxbury is asking that the law and its accompanying regulation not be enforced in Duxbury.

[T]he Town of Duxbury seeks a Declaratory Judgment declaring that the Act and the Regulations are void and unenforceable and preliminary and permanent injunctions enjoining enforcement of the Act and the Regulations as to the Town of Duxbury, including enjoining the Defendants from rescinding or withholding grant funds based on any alleged failure to comply with the Act and/or the Regulations.

In her presentation on May 7, Driscoll, however, was unable to make a distinction between the law and the regulations accompanying it, referring to “compliance with the law” without reference to the regulation and once even comparing the law to a seatbelt law.

In January, the SJC ruled in the Milton versus Attorney General case that the MBTA Communities Act is constitutional, and the Attorney General has the authority to enforce it. So, there has been a significant change in the law from that perspective from November till now. Now it is the law, like a seatbelt law. Duxbury can't just say we don't want to do seatbelt wearing anymore. It is a little bit different, and they do have the ability to enforce it.

Gandt, for the most part, avoided making such statements in his presentation to the Planning Board, although he also failed to make a distinction between the law and its accompanying regulations.