MIDDLEBOROUGH — The Town of Middleborough has today filed a lawsuit after being arbitrarily, and in our belief incorrectly declared “non-compliant” with the MBTA Communities Act.
Middleborough has been a leader in providing for responsible growth opportunities and access to housing, including affordable housing, for decades. Although the Town has clearly demonstrated that it is in compliance with the Act, it has been severely penalized because its choice of compliance methods is different than what a computer model says that an MBTA Community should look like.
“For generations, Middleborough’s leaders have been thoughtful, responsible stewards of its future. While many towns have fought growth, we’ve embraced it and are a stronger community because of it,” said Town Manager Jay McGrail. “The one-size-fits-all interpretation of the MBTA Communities Act is unreasonable and is not what the Legislature intended. What we've done in Middleborough should be modeled and celebrated, not punished.”
The lawsuit, filed Friday afternoon in Plymouth Superior Court, names Gov. Maura Healey, the Commonwealth of Massachusetts and the Massachusetts Executive Office of Housing and Livable Communities as defendants. The suit contends that:
- The Town is in compliance with the requirements of the MBTA Communities Act today and it does not need to alter its zoning to accommodate the needs of those who wish to call Middleborough home.
- In the Act, MBTA Communities are required to have one reasonably sized zoning district, within a half-mile of the MBTA station, that allows multi-family residential housing as of right and that has a minimum gross density of more than 15 units per acre.
- In 2021, with the praise and approval of the prior administration, Middleborough enacted a Smart Growth Zoning District that is comprised of 40.4 acres, all within a half-mile of an MBTA Commuter rail station and where multi-family housing is allowed of right at a density of 20 units per acre.
Middleborough not only created the required zoning district, but it is actively facilitating the development of affordable multi-family housing, where 26 units have already been constructed and sold and 148 more are in the development stage. These units are all within a half-mile from the MBTA station and are in addition to the existing 881 multi-family housing units within one mile of the station.
Instead of being celebrated for its innovation and achievements, Middleborough has been vilified and severely penalized because the State’s computer model says it should be doing more.
Despite meeting both the letter and the spirit of the Act, the state considers the Town in noncompliance.
The State Auditor has determined that compliance with the Act constitutes an unfunded mandate, and that communities cannot be compelled to comply.
Despite the Auditor’s determination, the state has made no effort to quantify the costs associated with complying with the Act, and the Attorney General has maligned the Auditor simply for doing her job.
Then, within days of claiming that Middleborough missed an arbitrary compliance deadline, State agencies, including the Department of Elementary and Secondary Education, informed Middleborough that it would no longer be receiving millions of dollars in state aid, which was promised to reimburse Middleborough for money it spent in reliance on those grants.
The Commonwealth has taken badly needed funding for public schools and capital projects, including projects to create greater access to persons with disabilities, and if these funds are not restored, essential public services are at risk.
The Town has been provided with no opportunity to appeal the state’s determination, leaving the courts as the only remedy.
“If Governor Healey and her team would like to learn about responsible growth, we welcome them here any time. We don't turn to the courts lightly, but we have been put in a corner and given no chance at a fair dialogue," said Middleborough Select Board Chair Mark Germain. "If the state wants to see how responsible growth and expanding housing opportunities works when municipal government acts responsibly, then we would be happy to show our leaders how what we have done should be a model for success statewide. Threatening and demanding compliance through draconian and capricious methods is not an effective way to achieve progress.”
The state’s Chapter 40B law requires communities to work toward a housing stock with 10 percent of units considered affordable. Middleborough’s rate tops 13 percent today, and will top 14 percent with another Chapter 40B project about to be completed, and this is all not counting the 1,100 manufacturing housing units in Middleborough that meet the numerical definition of affordable housing but are not counted by the state's system. Middleborough exceeds the state requirement by 40 percent and has long been a leader in ensuring access to affordable housing.
In filing suit, the Town seeks to halt what Middleborough contends is a broadsword approach to a much more delicate housing question statewide.
"One size does not fit all," Select Board Chair Germain said. "Middleborough has not only played by the rules but exceeded them and become a model for responsible growth and housing opportunities. The goalpost should not be moved arbitrarily."
