With affordable housing – and affordability in general – appearing in headlines more often than not, questions of what will be done to address these issues have been a leading concern for residents of Massachusetts.
According to a recent poll conducted by Abundant Housing Massachusetts, more than 80% of voters support legislation that aims to increase access to housing. In other words, the majority of Massachusetts voters are entrusting our elected state officials to address affordability.
So, what have our lawmakers been up to lately when it comes to addressing the high costs of living that are impacting residents across the state?
A potential answer is the MBTA Communities Act – a piece of legislation that was passed back in 2021 as part of an economic development bond bill – but is it enough to address an ever growing crisis?
What is the MBTA Communities Act?
Signed by Governor Charlie Baker in 2021, the MBTA Communities Act became the state’s leading response to the growing housing crisis in Massachusetts.
With new zoning guidelines, the MBTA Communities Act aims to “create new housing in walkable neighborhoods closer to transit,” tackling multiple pressing issues at once – making housing more affordable by increasing supply, promoting walkability and public transportation use, decreasing car congestion, etc.
Through this law, 177 towns and cities which are either served by the Massachusetts Bay Transportation Authority (MBTA) or adjacent to a community served by the MBTA became subject to a range of new multi-family zoning requirements in response to years of restrictive requirements in the state.
The law itself called three waves of municipality compliance:
- The compliance of “rapid transit” communities with new multi-family zoning requirements by 2023
- The compliance of “commuter rail” communities and “adjacent” communities with new multi-family zoning requirements by 2024
- The compliance of “adjacent small towns” and other communities that have not yet filed for compliance by 2025
What is important to keep in mind is that the law only mandates the adoption of new zoning requirements, not the actual building of new housing. The legislation was passed with the thought that by giving private real estate interests the opportunity to begin projects under new zoning guidelines, the amount of housing will increase, therefore increasing supply which will bring down costs by decreasing demand.
Sure, it seems like a simple lesson in economics can justify the reasoning behind this legislation. However, some housing advocates contest that the law fails to account for the immediate demand and does not directly impact rent costs.
How the MBTA Communities Act Got Passed
Controversies have continued to pile up with the MBTA Communities Act, as impacted towns take different routes to get out of the zoning requirements. Many of these challenges can be traced back to the passing of the law itself.
Usually, in a well-functioning democracy, bills are passed into law in a specific series of steps:
- A bill is filed by a Representative and/or Senator, which proposes a specific language change to the Massachusetts General Laws
- The bill is sent to a specific committee, who will then hold a hearing to hear public testimony in favor of or in opposition to the bill
- If the bill is favored by the public and the legislators who chair the committee it was addressed in, the bill is sent to the floor of the House of Representatives and Senate to be voted on by legislators
- If the same language of the bill is passed in both chambers, the bill is signed into law by the Governor
These steps, while significantly simplified for the sake of easier reading and understanding, are in place for a reason.
When the Legislature decides to pass legislation in other ways, oftentimes there is room left for error and confusion in the actual language of the bill itself.
More often than not in our General Court these days, bills are bundled with hundreds, if not thousands, of other bills addressing different issues in large, omnibus bills.
In these cases, House and Senate leadership look through large amounts of bills, often having to compile aspects of popular legislation into enormous omnibus bills. This is a reason why our legislators often have to focus on nurturing relationships with leadership rather than each other, because preference is often given to those who do not anger leadership. Through this process, important context is often left out of the final versions of the bills.
This means that without the explicit language outlining what is going to be added to or change within the law, there is room left for interpretation and, at times, explicit misinterpretation of the law to stave off the actual implementation of the law by those who don’t agree with it.
In the case of the MBTA Communities Act, the legislation was not passed as its own bill.Instead, the bill was included in the 2021 Economic Development Bond Bill.
Bond bills, or “legislation that authorizes the state (technically, the Treasurer) to issue and sell bonds to fund capital projects and programs,” focuses specifically on the funding of projects and not on the implementation of them. As the Massachusetts Budget and Policy Center highlights, “A bond bill simply authorizes spending – it does not guarantee that the capital projects identified in the legislation will come to light.”
By including the MBTA Communities Act in a bond bill, rather than taking the time to pass the law as its own specific piece of legislation, the Legislature highlighted a key area where legislators are unable to do their job effectively.
In addition to this, the passage of the legislation via bond bill leaves the public out of the democratic process.
Usually, individual bills are sent to specific legislative committees, in which they will be discussed and testified for or against by the public. By passing the MBTA Communities Act in a bond bill, there were no opportunities for public testimony to be heard by the Legislature.
Unsurprisingly, this gave more fuel to arguments made against the legislation, with many arguing that the bill is unjust since it was not passed on its own merits.
The “Unfunded Mandate” Argument
There were many complaints filed by municipalities against their new zoning requirements under the MBTA Communities Act, which the Superior Court mostly found to be unfounded. Prime among these was the idea that the MBTA Communities Act is an “unfunded mandate”
An unfunded mandate, according to Massachusetts law, can be determined "if the state does not provide local governments proper funding to meet the requirements of the new law or regulation,” and the local government requests a determination from the Office of the State Auditor (OSA).
So far, the municipalities that have requested this determination have been unsuccessful in their arguments against the MBTA Communities Act.
Remember how the law does not require new housing to actually be built? This helps to explain why the law evaded the “unfunded mandate” distinction, given that the law also failed to provide immediate funding for new housing projects.
Superior Court Judge Mark Gildea, who heard the case of Milton taxpayers against the MBTA Communities Act, had decided that “the MBTA Communities law lays the groundwork for but does not require new construction, and Milton always has the option of pursuing state grants that already exist to fund infrastructure associated with new housing…” in the Attorney General’s case against the town of Milton for non-compliance.
Although the “unfunded mandate" argument was refuted by the Superior Court, there were other arguments about the language of the law itself that Judge Gildea did find to be true.
Remember how the MBTA Communities Act was passed through an economic development bond bill and not as its own piece of legislation?
This gave the opportunity for complaints against the law by municipalities. For example, the categorizations of communities as anything other than communities served by the MBTA (e.g. “rapidly expanding communities” and “adjacent community”) is not actually included in the language of the law. However, these distinctions were ultimately determined to be neither "capricious" nor “arbitrary” according to Judge Gildea.
Act on Mass’ Analysis
There are more layers to the issues that have hindered the MBTA Community Act’s implementation as we see it here at Act on Mass.
The Legislature – i.e. the branch of government that drafts laws – is meant to do just that. The actual interpretation, regulation, and implementation of the laws created and passed by the Legislature and the Governor is left to the other branches of government – the judicial and executive branches.
To combat more pushback from other municipalities against the law due to the language of the statute not being as clear as it could have been, it became the job of the executive branch in the state to implement emergency regulations.
The finalized regulations only came about this past spring – years after the law was actually passed.
If more time were put into drafting and passing the law as its own stand-alone bill, it is plausible that the Massachusetts Executive Office of Housing and Livable Communities (EOHLC) – executive agency responsible for deciding what constitutes MBTA Communities Act compliance for each municipality – would have had more time to better implement concrete regulations. This could have sped up the process of housing construction under the terms of the act for those in need.
Further, when it comes to addressing the housing crisis in Massachusetts, the MBTA Communities Act is not what many housing advocates would call a sufficient solution to the issue. Relying on the private sector to boost housing supply over the long run makes for a longer timeline for the building of housing that is desperately needed.
More immediate solutions, like rent control, are often passed over for legislation that prioritizes the interests of the real estate sector rather than of constituents seeking better access to housing.
But how do we know this to be true?
This situation, though different in the issue it concerns, is similar to the plight of climate legislation in the Massachusetts State House.
Take this study conducted by Brown University for example. While thousands of climate bills are introduced session after session with overwhelming public support, the bills that actually get passed by the Legislature are ones that are favored by and lobbied for by utility interests.
The issue of housing can be looked at in a similar way.
Rather than passing legislation that is championed by housing advocates and residents of Massachusetts, the Legislature has decided to prioritize real estate interests who have the resources to repay our top legislators for their loyalty.
Remember how real estate interests were the top contributors to campaigns on Beacon Hill last year?
Sure, the MBTA Communities Act was before this formal legislative session began, but the campaign contributions may help to explain why there has been a lack of legislation to address the housing crisis in our current session.
Along with the real estate interests’ influence over the legislative campaigns of top lawmakers in the state, Beacon Hill also tends to stifle the local power of municipalities to cater to their constituents immediate needs by often failing to address “home rule” petitions in a timely manner.
Ben Ewen-Campen, Somerville City Councillor, was quoted on the issue of affordable housing, saying, “It’s just infuriating to have to tell people who live in Somerville that our powers are really limited at the local level… The real estate industry has a much easier time getting their way politically on Beacon Hill than they would in a city hall of a city where our constituents are facing this hellish housing crisis.
Overall, there is not a lot actively happening on Beacon Hill to address a crisis that remains a leading issue in the minds of constituents.
The MBTA Communities Act Today
As of this past spring, the MBTA Communities Act has seen a 75% compliance rate among the 177 communities subject to its finalized regulations.
With the decision made by the Superior Court, communities do not have many avenues to either delay or neglect compliance with zoning requirements if private interests are looking to begin more building projects.
It will still take time for affordable housing in walkable areas to actually be made available to those who need it, given that the MBTA Communities Act operates on a longer term of solving high costs of living.
The MBTA Communities Act has been able to increase competition in real estate development so far, but the legislation itself still represents a situation where the Legislature put the interests of the private real estate sector over the interests of the public, which requires more immediate changes than they are willing to undertake.
For now, advocacy groups and activists are left fighting to garner the support of our legislators for bills that could create more impactful change in the short-term.
Blog post by Sydney Mascoll, Act on Mass Policy Fellow, Fall 2025