Introduction

Town officials are considering the most significant changes to our zoning bylaw in nearly 100 years.

Neighborhoods throughout the town are being considered for the implementation of a zoning bylaw change that will require multi-family zoning in neighborhoods that have been zoned as single family since 1938. This major zoning change will significantly increase our housing stock, add to the number of residents, put more demand on Milton’s infrastructure, including first responders, schools, and roads. Milton has a choice to make.

These extensive zoning changes will substantially impact the composition and terrain of neighborhoods all throughout Milton and are anticipated to be finalized at a town meeting on December 4, 2023.

Section 3A of MGL c. 40A (MBTA Communities Act), adopted by the General Court in Section 18 of Chapter 358 of the Acts of 2020, requires Milton to adopt multi-family zoning as of right. In total, 177 communities serviced by the MBTA are subject to the new requirements of Section 3A of the Zoning Act. Subsection C of Section 3A gives the Commonwealth of Massachusetts Executive Office of Housing and Livable Communities (EOHLC formerly known as DHCD) the authority to issue guidelines to “determine if an MBTA community is in compliance with Section 3A.” EOHLC’s guidelines, issued on August 10 2022, revised on October 21. 2022 and revised AGAIN on August 17 2023, classify MBTA communities into four distinct categories: Rapid Transit Communities, Commuter Rail Communities, Adjacent Communities, and Adjacent Small Towns.

According to the guidelines, Milton is classified as a Rapid Transit Community. According to EOHLC, each Rapid Transit Community must have a multi-family zoning district with a multi-family unit capacity equal to or greater than 25% of the total number of housing units within the community to be deemed in compliance with Section 3A.

This means, according to EOHLC guidelines, that Milton is expected to create zoning for 2,461 multi-family housing units before December 31, 2023.

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Milton Has A Choice

Language amending Milton’s zoning bylaws to bring the town into compliance with EOHLC’s guidelines is expected to be voted on at a town meeting on December 4, 2023. Once as of right multi-family districts are in place, neighbors have little recourse to mitigate or challenge the negative effects of development near their homes.

Reclassification

Milton’s transit categorization by EOHLC and the MBTA should be based on an analysis of the existing physical characteristics and operational ability of the Mattapan Line as well as a detailed comparison of the Mattapan Line to other transit systems within the MBTA network. It is abundantly clear that Milton’s classification as a “Rapid Transit Community”. The EOHLC’s MBTA Community Act Guidelines fail to account for the unique qualities of the Mattapan Line that distinguish it from the rest of the MBTA and rapid transit systems and should therefore be classified as an "Adjacent Community".

Reclassification as an "Adjacent Community" would result in a 60% reduction in the number of units from 2,461 to 984

Noncompliance

It is important that town meeting members and the general public understand the ramifications of complying with the current guidelines and the effect implementation will have on our neighborhoods. The penalty for noncompliance is a potential loss of grant funding, which has been approximately $100,000 per year over the past 10 years.

The 2024 budgeted expenditures for Milton are $147,052,857. The average annual income from grant money over the past 10 years is $100,000. The loss of annual grant money would represent a 0.07% budget impact.


Law vs. Guidelines [1]

Are the guidelines issued by the EOHLC enforceable? The law specifically limited EOHLC’s "power to the issuance of guidelines which have no independent legal effect". Should Milton and other affected communities implement these unenforceable guidelines they could form the basis for court challenges.

The Law

The law is broken into three subsections;

(a) (1) An MBTA community shall have a zoning ordinance or by-law that provides for at least 1 district of reasonable size in which multi-family housing is permitted as of right; provided, however, that such multi-family housing shall be without age restrictions and shall be suitable for families with children. For the purposes of this section, a district of reasonable size shall: (i) have a minimum gross density of 15 units per acre, subject to any further limitations imposed by section 40 of chapter 131 and title 5 of the state environmental code established pursuant to section 13 of chapter 21A; and (ii) be located not more than 0.5 miles from a commuter rail station, subway station, ferry terminal or bus station, if applicable.

(b) An MBTA community that fails to comply with this section shall not be eligible for funds from: (i) the Housing Choice Initiative as described by the governor in a message to the general court dated December 11, 2017; (ii) the Local Capital Projects Fund established in section 2EEEE of chapter 29; (iii) the MassWorks infrastructure program established in section 63 of chapter 23A, or (iv) the HousingWorks infrastructure program established in section 27 of chapter 23B.

(c) The executive office of housing and livable communities, in consultation with the executive office of economic development, the Massachusetts Bay Transportation Authority and the Massachusetts Department of Transportation, shall promulgate guidelines to determine if an MBTA community is in compliance with this section."


The Guidelines

"Although the Legislature has given DHCD regulatory power in a number of areas of law, the power is specific to those areas. DHCD has not been given regulatory power to impose the directives and requirements which it seeks to impose upon MBTA Communities by the Guideliines". Furthermore "guidelines are not regulations and do not carry the force of law and cannot be the basis for directives and requirements not contained in the underlying law. Guidelines are meant to explain the provisions of a statute or regulation and they cannot be used to impose substantive new legal requirements".


EOHLC Authority and Regulatory Power

"The Legislature could have given DHCD regulatory authority (i.e., the power to issue legally binding regulations) but it did not do so. Instead it limited DHCD’s power to the issuance of guidelines which have no independent legal effect".

"An agency which seeks to make new substantive provisions going beyond what a statute specifically provides needs to be given regulatory power to do so" and "DHCD has not been given regulatory power to impose the directives and requirements which it seeks to impose upon MBTA Communities by the Guideliines".


Conclusion

"An agency must use regulations in making rules" and "There are numerous court cases in which agencies seek to justify a failure to use regulations in their rule making". The court cases and the separation between guidelines vs. regulations "support a conclusion that DHCD’s “Compliance Guidelines for Multi-family Zoning Districts Under Section 3A of the Zoning Act” cannot be legally enforced".

"The conclusion is inescapable that the Guidelines are legally ineffective and unenforceable."


[1] "Law vs. Guideliines" excerpts from of former DHCD chief council and former Milton Planning Board Chair, Alex Whiteside.

History

Should Milton be considered a Rapid Transit community? Had the MBTA’s 1967-1969 plan to convert the Mattapan Trolley into rapid transit been realized, Milton would look very different than it does today.

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In the fall of 1967, the MBTA proposed the construction of a train yard and 144 car storage facility at Butler Street in the Neponset Marshes to replace the Eliot-Bennett yard at the Red Line’s northern terminus at Harvard, the future site of the Harvard Kennedy School of Government. This initial plan necessitated the extension of the Red Line to Butler. Soon thereafter, however, the MBTA revised its plan to include the extension of the Red Line all the way to Mattapan. A new train yard was to be constructed in the large swath of land off the Neponset in Milton near where the Harvest River Bridge now spans the river. Much of the Capen Street neighborhood would likely have been acquired by means of eminent domain, with all the parklands abutting the river razed for the construction of a heavy rail train yard. With more than a dozen bridges, underpasses, street crossings, and two viaducts, the conversion of the Mattapan Line to rapid transit would not only be difficult to accomplish and expensive, but would have drastically altered service delivery in Milton.

Under the proposal, the MBTA would remove five out of the six intermediary stops between Ashmont and Mattapan to account for lengthier acceleration and deceleration process of longer red line heavy rail trains. (On the Mattapan Line today, all of Milton’s four stops are within a one mile stretch of track). Only the trolley stop at Milton would be spared from removal. This meant that the town would lose its Capen Street, Valley Road, and Central Avenue stops.

At Central Avenue, it was proposed to raise the tracks over the grade crossing in an elevated viaduct to segregate the Red Line’s third rails. In 1967, the Town of Milton’s Executive Secretary, James Sullivan, summarized the town’s position on the proposal. From the onset of the fight to stop the Red Line extension, “The Board of Selectmen,” wrote Sullivan, “has taken a firm position in opposition to this proposal, which is definitely not in the best interest of Milton or Boston… The proposal would increase the cost of this service annually from $506,150 to $1,293,825 and this to serve only 3,000 riders. Many Milton citizens have also registered their objection to the plan which would eliminate three out of the four stops Milton currently has on the MBTA.” (Report of the Executive Secretary” in “Annual Town Report” (Town of Milton, 1967), p .167).

By 1968, town leaders and concerned citizens organized around the Board of Selectmen’s coordinated campaign to stop the proposal. By the end of the year, wrote Milton’s new Executive Secretary, John Cronin, in his 1968 report to the town, “The Mattapan to Ashmont rapid transit extension and car barn proposal is currently the subject of intensive restudy by the MBTA as a result of the Milton Board of Selectmen’s opposition which consisted of litigation, news releases, legislative pressure, protest meetings, and the issuance of more than 500 Position Papers to transit and government leaders.” (“Report of the Executive Secretary” in “Annual Town Report” (Town of Milton, 1968), p .225.).

On December 19, 1969, the MBTA, facing pressure from Milton, approved a new site at Dover Street/Cabot Yard in South Boston for the new train yard, thus ending the threatened extension of rapid transit to Mattapan. The town’s small land parcel adjacent to Central Ave., recently acquired by the developer of the Hendries condo development, had subsequently been sold to the town by the MBTA when it was no longer needed for a viaduct.

To this day, the Mattapan line remains a detached suburban trolley system essentially untouched from when it opened in the 1920s. It is truly a heritage railway and a vestige of the gentle suburban trolley network that connected communities across suburban Boston in centuries past—a far cry from the speedy modern rapid transit networks operating in the state today. Unlike the Green Line, the Mattapan High Speed Line was never integrated into the rapid transit red line branch. As of the most recent MBTA Mattapan Line Transformation meeting in June 2023, there are still no plans to integrate the Mattapan High Speed line into rapid transit.