Why 5 Mass. communities are waging a new legal fight against the MBTA Communities Act

A fifth Massachusetts town is taking legal action over the MBTA Communities Act, saying the state's requirement to zone for multifamily housing near public transportation stops amounts to an unfunded mandate.

Hanson announced it would sue on Monday. The Plymouth County town joins Marshfield, Middleborough, Middleton and Wrentham in filing similar suits seeking an exemption from the pro-housing law.

"Hanson voters overwhelmingly defeated an article concerning an MBTA zoning bylaw amendment, in large part due to a concern over unfunded obligations," the Hanson Select Board said in a statement Monday. "Under the Act, the Town would be required to zone for a minimum of 750 multi-family units at a gross density of 15 units per acre across a minimum of 50 acres. This increase in density would require substantial investment in municipal infrastructure, including educational services."

The flurry of lawsuits comes after Massachusetts Auditor Diana DiZoglio's office released an opinion last month that the MBTA Communities Act amounts to an unfunded mandate. Any new laws passed by the state that create an obligation for a city or town must provide funding to help those municipalities put the law into effect. However, the Division of Local Mandates, a department in DiZoglio's office, issued an advisory in February that the MBTA Communities Act violates that rule because funding was not supplied when the law was passed.

Gov. Maura Healey and Attorney General Andrea Campbell pushed back hard against that finding, saying it has no legal weight. Healey's office said the state has provided close to $8 million in funding to help communities rewrite their zoning. Her office also created a fund to help compliant communities support new construction, offering money to help pay for things like infrastructure improvements and land acquisition. DiZoglio's office questions if those grant programs satisfy the local mandate law, saying the funding is "not intended to assume all costs imposed."

"The law is not an unfunded mandate, and it is unfortunate that some communities are choosing to use the Division of Local Mandates’ advisory opinion to try to stall its implementation," a Healey spokeswoman said following the the auditor's advisory.

In January, the state won a partial victory in a previous legal fight over the law. Campbell had sued the town of Milton over its refusal to comply with the law. The court said the state has the right to enforce the law, but not until the state addresses some missed procedural steps in its implementation. Healey's office subsequently released revised emergency regulations, giving communities that had not rewritten their zoning laws until July 14 to comply with the law.

In all, 177 communities are affected by the law and 119 have already complied.