-: SJC-13580.
Attorney General versus Town of Milton and Joe Atchue,
in his official capacity. (gavel pounds)
Budd: Okay, Attorney Haskell?
-: Good morning, Chief Justice Budd,
and may it please the court.
I'd like to begin this morning
by emphasizing two propositions
that are not disputed in this case,
but still have a big, big influence
on our conversation today.
One is that the legislature
undisputedly had the constitutional authority,
under the police power and the home rule amendment,
to enact Section 3A to address the housing crisis.
And the second, it's undisputed
that section 3A requires towns to zone
and thereby creates a legal mandate.
The Town of Milton argues that the commonwealth,
that that is its chief law enforcement officer
invoking the authority of its judiciary,
is powerless to compel Milton
to honor that undisputed mandate.
But there's a reason why the town can't identify
a single situation
in which municipality has been deemed free
to ignore a state law mandate.
And it's this.
The legislature ordinarily intends its mandates
to be obeyed.
It is expressly assigned enforcement of mandatory state laws
to the Attorney General
through the enactment of Chapter 12, Section 10.
And when the legislature
doesn't want its mandates to be obeyed
and wants to render a requirement advisory only,
it needs to say so clearly
in order for the law to recognize that.
-: Well, as I understand the argument from the town,
it's not so much that they can ignore the mandate,
but that the price for ignoring it
is not having access to certain funding.
-: That's right, Your Honor.
It goes to the effect of subsection b of Section 3A.
-: Right, so their argument
is not so much that they can just ignore it,
but that the cost of ignoring it
is set forth in the statute
and that's what the legislature had intended.
What is your response?
-: Our response to that is twofold, Your Honor.
First of all, that argument requires 3A sub b,
it makes it function as a deprivation
of the Attorney General's
background existing authority under 1210
and her common law authority to enforce mandatory state law
through seeking declaratory and injunctive remedies.
That's the kind of thing that the legislature
can only do expressly.
And there's no contention that the legislature
has expressly deprived the Attorney General-
-: Well, is it on the possible construction of the act
that the AG gets to enforce it
but the remedies are limited to those set forth
in that second section?
-: I don't think so, Your Honor.
And at least one reason that I would point to
is that last paragraph of Chapter 40A, Section 7.
So the legislature made a considered choice here
to situate section 3A within Chapter 40A.
Chapter 40A, in that last paragraph of Section 7,
already had a preexisting provision
that grants the courts jurisdiction
to enforce the provisions of this chapter
and to restrain, by injunction, violations thereof.
-: And where in that section
should this claim have been brought then?
-: What that does- Wendlandt: Doesn't it say
that it's supposed to be in the superior court, not here.
-: It gives the superior court and land court jurisdiction
to issue injunctions of that type.
Of course, we're also seeking
a declaratory judgment under 231A.
The county court has jurisdiction
to grant declaratory judgments.
-: I thought it's not that you're also seeking a declaration.
I thought that you've, at least in the postures,
the cases here now have abandoned your request
for an injunction.
Is that correct?
-: Let me be clear on that, Your Honor.
We have not abandoned our request for an injunction.
However, it's our view that,
on the circumstances of this case,
a declaratory judgment ought to be all it takes
to obtain Milton's compliance with this law.
-: What would the declaration say?
-: The declaration would say that Milton is obligated to zone
in accordance with 3A sub a,
and that the Attorney General has the authority
to enforce Milton's compliance with that requirement
through declaratory and injunctive remedies.
Now, the actual issuance of an injunction
has many steps. -: I'm a little puzzled.
Ordinarily, I think of the town as an entity
as acting through its Board of Selectmen.
Is that correct?
-: Your Honor, I'm afraid it's a good deal
more complicated than that. -: Okay.
So in this case, you're not arguing
that the Board of Selectmen did anything wrong, are you?
-: No, Your Honor. We are.
-: Okay, so it seems to me
that what you're actually arguing is that,
it seems to me you're almost taking on
the right to the franchise of the citizens of Milton.
-: So let me unpack that a bit, Your Honor.
So what 3A sub a,
the entity that it speaks to, is the town.
The town, as you say,
has its own executive and legislative branches,
it has its own legislative process,
it also has a fairly complex process under Chapter 40A
that the planning board needs to go through
regarding notice and public hearing
of proposed zoning amendments,
needs to go to the town's legislature,
in this case, representative town meeting,
And really one of the features,
one of the notable things about Section 3A
is the way that while requiring towns to do this zoning,
it still preserves the flexibility of towns
to choose what they want their zoning district to look like.
That is to use all of these procedures and processes-
-: Didn't they do that? -: to zone what it chooses.
Wolohojian: Didn't they do that?
-: They did.
And ultimately, well, we know-
-: And I understand the Attorney General
is not contesting the outcome of that.
They think that the plan,
or she thinks that the plan that came out
would satisfy the guidelines.
-: Had it been adopted by the town,
Article One would have satisfied 3A sub a.
-: Okay, so I go back to my former question.
How is it that you're not, in this case,
actually trying to take on
the right of the residents of Milton
to exercise their franchise?
-: You know, what I would point to
in this situation, Your Honor,
is this court's decision in the Town of Hudson case in 1943.
That was a situation in which the legislature
passed a special act, it was during the war,
passed a special act that allowed
the State Department of Public Health
to order municipalities
to basically treat their drinking water in a certain way
to protect against sabotage, right?
So the Town of Hudson considered an article
at their town meeting to buy the chlorination equipment
the DPH had told them they needed to, and they rejected it.
And so the Attorney General brought an enforcement action
against the Town of Hudson to say,
"You know, look, you didn't have a choice.
You have to do this."
The town's defense was town meeting does its thing,
it's a democratic process, we can't control it.
And this court's opinion was very clear and very strong
that even where a state law mandate
is subject to a political process
of adoption and implementation like that,
it's still a mandate and the town still needs to follow it,
and the court still has equitable remedies available to it
to compel the town to comply with that mandate.
Does that get at your question?
Wolohojian: I think it does.
-: So can I, just to follow up.
Are you saying that submitting the question
whether to comply or not was not within the authority,
submitting the question
of whether to comply with the law or not
was not within the authority of the town Board of Selectmen,
is that what you're saying?
-: I think that's right if the responsible bodies of the town
failed to put forward a plan.
Under the guidelines, the point at which
they would be out of compliance with the law
is when they hit that deadline.
In Milton's case, it was December 31st of last year.
Gaziano: The select people
would have to ignore their town charter?
-: I'm sorry, say again?
-: The select people would have to ignore their town charter?
Haskell: I'm sorry, the charter?
-: Well, the referendum to take it to the vote.
You're saying they would have to ignore it.
-: No. No, we aren't saying that, Your Honor.
The referendum is part of the process
by which the Town of Milton enacts bylaws, and so-
Gaziano: Would you say it was a meaningless act?
-: I'm sorry, the referendum?
Gaziano: Yeah, in this context.
-: Our contention, Your Honor,
I don't think needs to go that far.
Our contention, Your Honor-
Gaziano: Oh, as my question goes that far.
-: I'm sorry, can you-
-: Was that a meaningless act?
-: Oh, the referendum? -: Yeah.
-: I'm sorry, I'm sorry.
I didn't hear your question correctly.
No, it's not our view
that the referendum was a meaningless act.
It was part of the process-
Gaziano: Just the result was meaningless.
The result was meaningless.
-: I wouldn't say that either, Your Honor.
Again, this Section 3A, the MBTA Communities Act,
gives towns choices and flexibility
about what their district's going to look like,
where it's going to be situated,
any number of other features of it,
You know, the town can choose whatever plan it wants
to attempt to comply with this thing
within the boundaries of the statute and the guidelines.
And so our point is that the town needs to enact something.
Wolohojian: Where does the deadline come from?
-: The deadline comes from the guidelines, Your Honor.
-: Okay, so I guess that takes us
to maybe the second argument.
If we were to determine that the guidelines were not-
-: Are we done with the first argument though?
I mean, towns can't vote
not to comply with state laws, right?
So if you have the authority in the AG's office
through Chapter 12 or through 40A, Section 7,
you can compel compliance with the law.
A town can't vote not to abide by state law,
it's mandatory, right?
Haskell: That's correct, Your Honor.
-: So if that's the case,
and then the question is, are the remedies exclusive?
That's really the only issue we have to,
can I ask how much money did Milton get
from those grants in prior years?
I'm just curious how much,
is this a paper tiger without teeth or claws?
I mean, how much money went through those grants to Milton?
-: In a lot of ways, it is, Your Honor, a paper tiger.
The grant programs that are specified in 3A sub b,
there's four of them.
The Housing Choice initiative is actually something that-
-: How much money?
I'm trying to understand, I understand the different grants.
How much money are we talking about for Milton
the year before this past, or the year before that?
-: 0000.
To get to a point that Milton received money
under one of those four programs,
you'd have to go back to 2012
when they received a million dollars
from the MassWorks program.
The Housing Choice initiative,
the town of Milton isn't even eligible.
They haven't taken steps
to make themselves eligible for that funding.
The MassWorks program, as I said,
it's been many years since they received anything.
In fact, in the past three fiscal years,
only 62 of the 177 municipalities we're talking about
have received money from the MassWorks program.
The HousingWorks program
has only been in existence for one year.
Their one round of grant awards,
8 out of 15 went to MBTA communities, so 159 got nothing.
-: So your argument is this is significant legislation
addressing a societal crisis.
And without your ability as the AG to enforce this,
there's no real remedy here.
Is that- -: That's right, Your Honor.
And, you know, 3A sub b does something.
Our view is that the legislature included that in there
so that municipalities would know
there is going to be a concrete consequence
of not complying, and it's gonna be automatic
and it's going to be swift and it's going to be certain,
but it does not in any way take the place
of the power of the Attorney General
to enforce this mandatory state law.
Budd: I have a different question.
-: Yes.
-: So you acknowledged that the EOHLC
didn't put together the small business impact statement
that was required under the statute, right?
-: Well, I guess our first position on that, Your Honor,
is that it wasn't required in this situation
because these guidelines weren't subject to Chapter 30A.
If we were to assume that they were subject to 30A,
then that's correct.
The HLC didn't do the small business impact statement.
-: How do we determine whether the guidelines
are subject to 30A
given the definition of regulation in 30A?
-: Your Honor, that is an-
-: It can't be,
because the legislature called them guidelines.
So let's assume, at least this jurist,
does not agree with that argument.
What would the test be?
-: Our position, Your Honor,
is the one that you've just indicated,
that we ought to go to the language.
And there's a history of the legislature
using the term guidelines
and agencies responding to that in a certain way.
-: Any guidelines that deal with the public in this way,
in zoning in this way?
-: Zoning, what I would point to on zoning-
-: As the list that you have in your brief
deals with scholarship money?
Haskell: Graham's and the like.
-: Specific programs where there's a pot of money
and then the guidelines define somewhat
how that is to be monitored?
This is not the same.
-: What I would point to, Your Honor, is two things.
First of all, a piece of recently enacted legislation
that's actually not cited in the briefs,
it's the recent housing bond bill,
it's Chapter 150 of the Acts of 2024.
And what the legislature did as part of that,
it's Section Eight of that special act,
was added a provision to 40A, Section 3,
that is the Dover Amendment.
It added a provision to the Dover Amendment
saying that municipal zoning codes
cannot prohibit or unreasonably restrict
accessory dwelling units in single-family residential zones.
And then the legislature went on to say,
in Chapter 150 of the Acts of 2024,
that HLC may issue guidelines or promulgate regulations
to administer this paragraph.
And so that's just an example of the legislature
perceiving a difference between guidelines and regulations.
Because in that legislation-
Wendlandt: Well, how does 30A define regulation?
-: HLC, excuse me.
-: To say a regulation is a regulation
or is it more expansive?
-: It's defined by its effect,
general application and prospective effect.
-: And you're suggesting that these guidelines
don't have the kind of effect
that 30A uses to define the term regulation?
-: So we know that guidelines,
as kind of a general background principle,
are usually a form of subregulatory guidance, right,
and lack force of law.
But we also know, from this court's decision
in Fairhaven last year, that where the legislature says so-
-: First, in Fairhaven, though,
guidelines in that context were used, as I recall,
to define the internal workings
of the state government itself.
They were not outward-looking
to things that the public needed to do.
-: There was a footnote to that effect in Fairhaven-
Wendlandt: I recall that.
-: And it's not our contention...
I remember standing here and arguing it, Your Honor.
And it's not our contention
that these guidelines about the MBTA Communities Act
are the type that don't affect the public.
Candidly, they do.
Our argument is legislature said guidelines,
we know from other examples,
including that recent legislation that I mentioned,
that guidelines and regulations are two different things.
And when the legislature wants to invoke
the term of art regulations under 30A, Section 1 sub 5,
they know how to do it, that's not what they did here.
-: The cases where we say an agency exceeded its power
by passing something with another name
are all different, right?
I mean, the legislature can tell an agency how to do things
and not violate 30A.
The focus is when an agency
tries to get around 30A, isn't it?
I mean, if the legislature tells an agency
to pass something, they can choose.
They know the word regulation. They use it all the time.
Most statutes say the agency will pass regulations
to carry this out.
They didn't do that here. Isn't that enough for you?
I mean, you don't really need
to go much beyond that, do you?
I mean, don't all the cases where we say 30A is violated,
it's when an agency, on its own,
does something that it should pass as a regulation
to avoid the regulatory process,
it's not when it's carrying out
the intention of the legislature, is it?
-: I think that's right, Your Honor.
I do think that it's very significant
that here, the agency, HLC,
really did what the legislature told it to do
and went out and promulgated guidelines.
And as we argue in our brief, and you know from the record,
really went above and beyond what it needed to do
by way of putting out these draft guidelines,
soliciting public comment,
making sure that interested stakeholders knew about it.
Really the only thing that 30A calls for
that HLC didn't address in this case
was the small business impact statement.
And our view is that that's outside
of the Town of Milton's zone of interest-
-: Can I ask you?
What happens if we agree with you
that the statutory remedy is not exclusive
and the AG has civil enforcement authority,
the common law or by Section 10,
but we then find that the guidelines aren't guidelines
or that the agency has run amok in a way or violated 30A?
Now what?
-: So I think, as part of your question,
or assuming that you don't indulge us
on the harmless error argument that we've made,
in that situation, what we would look at, Your Honor,
is this court's decision
in Carey versus Commissioner of Correction.
What happened there was this court found
that a policy of the department
needed to have been passed down as a regulation, but wasn't.
And yet it had been out there,
people had been relying on it.
In that case, it had significance
to the institutional safety in the department.
And so what this court said was,
"We aren't gonna strike down this guideline,
this policy immediately,
we're going to give it a period of time
for the agency to do regulations."
Certainly if that is the outcome this court reaches,
that's what I would advise HLC to do.
-: What would that do,
this goes back to the question I wanted to ask you before.
Since the deadline, as I understand your argument
on the first issue, is that the town's failure here
is that it did not adopt a plan by the deadline,
but the deadline comes from the guidelines.
So if the guidelines go away,
what happens to your first argument then,
at least with respect to Milton?
-: I think if the decision from this court comes out in a way
that HLC needs to repromulgate the guidelines,
it would be HLC's choice in that situation
what to do by way of deadlines.
I think it's safe to assume
they couldn't specify a deadline in the past.
I guess...
-: So the request for injunctive relief would go away
vis-a-vis Milton?
(Haskell exhales)
-: So the hypothetical is that this court issued a decision
that says the guidelines were unenforceable,
HLC goes and repromulgates something under 30A-
-: If we were to conclude
that the guidelines were unenforceable,
is there any other issue we need to reach?
-: I think so, Your Honor.
I think the question- Wolohojian: Which one?
-: The first question of the enforceability-
Wolohojian: It wouldn't apply to Milton though,
if I understand correctly.
Because if I understood what you argued before,
the point at which Milton,
in your view, violated the statute
was when it didn't enact zoning plan by a certain date.
But if the certain date only comes from the guidelines
and the guidelines need to be done over,
then what is there to enforce against Milton?
-: I don't know in that situation, Your Honor,
whether the issue of Milton's non-compliance would be moot.
I think that even if it were, it would be-
Wendlandt: It would actually be not ripe.
Wolohojian: Be premature.
-: (chuckles) I think in that situation
we would be in a issue of important public interest
capable of repetition evading review situations
such that this court ought to reach
the issue about the enforceability-
Wendlandt: I don't understand that at all.
How would it evade review?
-: You'd have to wait for someone
to actually violate a properly promulgated
guideline or regulation.
-: That's right.
You know, I think-
-: Is this one of the statutes that passed
with an emergency preamble
that says this is effective immediately or-
Haskell: Yes, Your honor, it was.
-: So the statute, put the regulations aside,
the statute immediately is in effect, right?
Haskell: In January of '21, that's right.
-: Okay, so the statute's in effect,
the guidelines maybe have some problems,
although I'm not sure the timing one may be a problem.
And does Milton get to challenge everything
'cause they never submitted anything, right?
Milton only, I understand they can challenge
whether they're an MBTA community.
I understand they can challenge whether they have to submit
a zoning plan, but do they get to challenge
all the niceties of this?
'Cause they didn't submit a plan that may have violated,
you know, one piece of those guidelines.
They just didn't comply.
-: Didn't do anything. That's right, Your Honor.
And so in that situation-
-: What did they get to challenge
in terms of detail in these guidelines?
-: I think that's right, Your Honor. I think that's right.
And in that situation, the mere face of 3A sub a,
which requires municipalities
to maintain a zoning district of this type,
there's no argument at all
that Milton has complied with that certainly on,
again, if we take away the guideline-based deadline
which really gave a lot of leeway to towns,
the statute itself-
-: But I think the problem with that argument
is that I think there's a third subsection
that requires the guidelines in order to determine
whether or not a town is in compliance.
So if the guidelines were improperly promulgated,
because in fact they are regulations,
I think the answer to Justice Wolohojian's question
is that this case must be dismissed.
-: Your Honor, I don't think that's right.
Section 3Ac does indicate that the agency
should promulgate guidelines
to determine if an MBTA community is in compliance.
But in our view, the best reading of that section
is that the agency is allowed to fill in the details
and resolve the ambiguities in the policy
that expressed in 3A sub a where the Town of Milton,
it's undisputed, it's in the stipulation of facts,
in the record, Your Honor,
where it's undisputed that the Town of Milton
does not have any zoning district
in which multifamily housing is allowed of right.
Regardless of any guidelines, they're violating 3A sub a.
-: So you think that 3A sub a
was effective immediately upon passage?
That there was no time for any community
to construct such a district?
-: The legislature did not indicate otherwise
in passing the legislation.
That's where the agency comes in.
And as you know, from the record,
very shortly after the legislation was passed,
the agency said, "We're gonna be doing the guidelines.
It's gonna take some time,
because we wanna go through a robust process.
You don't need to do anything
until we pass out the guidelines."
And then the guidelines allowed these,
frankly, generous compliance deadlines
three, four or five years later.
-: Are there cases that say guidelines
are enforced like regulations?
I mean, guidelines are normally
sort of background music, right?
They're not sort of specific requirements
like a regulation is.
I understand the legislature said guidelines,
and at least that to me allows a different process,
but it seems like we're making them
into specific requirements
and that just seems counterintuitive,
the meaning of guidelines.
Do we have other cases where we say that a guideline
produces this kind of specific compliance requirements?
-: Yeah, so that was really the principal issue.
Setting aside that one footnote,
that was really the principal issue
in Fairhaven Housing Authority.
-: Fairhaven had a separate provision in the statute
that allowed enforcement, right?
There was guidelines,
but there was also a separate statutory provision.
-: That's right.
What that statute said was that the agency,
it was actually also HLC, was to do guidelines
and had the ability to strike contracts
by the LHAs that were non-compliant with the guidelines.
Our view, and I think this
is what the court held in Fairhaven,
is that, you know, ordinarily,
guidelines, as you say, are background music,
they're subregulatory guidance,
but there's nothing to prevent the legislature
in its legislation from saying,
"Hey, these guidelines are gonna have teeth
and they're going to be specifically enforceable."
In our view, that's what the legislature has done here.
-: I'm wondering what guidelines with teeth is.
How is that different than a regulation?
If guidelines are usually background information
and this Town of Milton's lack of compliance
with the guidelines is what the AG is trying to enforce
and thereby calling them guidelines with teeth,
aren't they regulations?
-: Our argument, Your Honor, our review,
is that the difference between guidelines
and regulations in this context,
where 3A sub c has indicated
that the guidelines are going to be obligatory for towns,
the difference goes to promulgation method
and that the legislature has contemplated
and condoned non-30A promulgation methods
when it has said guidelines in the past,
and that was what it intended here.
And of course, in any event,
even if the court isn't with us on that,
our view is that what HLC did here was absolutely harmless,
especially harmless to the Town of Milton.
-: What's the metric for that?
'Cause the cases that you cite for harmless error
are slightly different than not doing
the small business impact and the other deficiencies
in the way these guidelines were promulgated.
-: At the outset, Your Honor,
the only deficiency that we see,
and deficiency probably isn't the right word,
the only way in which this method
did not meet the requirements of Chapter 30A
was the small business impact statement.
Beyond that, HLC went candidly far above and beyond
what it would've needed to do under 30A.
The cases that we cite for that proposition are,
particularly the federal cases, are really on all fours.
-: But just to clarify.
You say in your opening brief
that the guidelines were not filed
with the Secretary of State for a notice of public hearing,
notice of proposed adoption and amendment of the regulation,
or the small business impact.
So those three things is what I was referring to.
-: I understand. I understand.
And on the requirement of filing with the secretary
and getting it published in the mass register,
what HLC did instead,
as we indicate in the stipulated facts,
was affirmatively sent a copy of the draft guidelines,
not just a summary or a thumbnail,
but the draft guidelines
to every affected MBTA community, including Milton.
And that gave all of the affected municipalities
the opportunity to participate via notice, comment,
these public hearing type meetings that HLC did.
And of course we also see, from the stipulated facts,
that Milton took advantage of that.
They participated, they attended these meetings,
they asked questions, they submitted a comment letter.
In fact, HLC picked up on the comment
in their comment letter and changed the draft guidelines
to reflect the Town of Milton's concerns.
The theme you see in the federal cases
that we cite about harmless error
is did the procedures that the agency actually used
give an opportunity for participation that was equal to
or greater than what would've happened otherwise?
That's the situation with the fishery framework
in Conservation Law Foundation.
It's the situation with the orange growing quotas
in the Ninth Circuit case that we cite.
And that set of facts is on all fours with what we see here.
Milton and other MBTA communities
had every opportunity to participate.
And the proof is kind of in the pudding
that they weren't prejudiced by this.
And this is actually a theme
that the Ninth Circuit case, that we cite, discusses.
Neither Milton nor any other town
has challenged the promulgation method
until they failed to comply
with the mandate. Budd: Attorney Haskell,
can I ask you a question
separate from that, just about the-
-: Please.
-: additional funding sources
that the agency sort of added on
that they would take into consideration.
Is that something that they can do?
Can the agency do that? (Haskell laughs)
-: So, Your Honor, as we mentioned in our apply brief,
we're concerned with the adequacy of the briefing on this.
Each of those 13 programs
is subject to its own enabling legislation or policy,
which we haven't seen the town unpack.
And there's also no allegation
that the town was actually affected by any of those.
I've looked into them myself.
What I can tell you about those programs
is that they're discretionary.
Many, or most of them, have language
in their enabling authority
that allows the program's administrator
to impose other conditions
in that person or that agency's discretion.
In addition, a number of those programs
actually have as a condition of eligibility,
and it's not uncommon for the state
to impose this condition as a matter of discretion either,
they have as a condition of eligibility
that the applicant needs to certify
that they comply with state law.
And so that kind of bakes in this idea that,
hey, you aren't complying with 3A sub a,
you can't certify that you're eligible
for these other opportunities.
But the bottom line is that they're discretionary.
Budd: Okay. -: I have one last question.
Legislative history, neither,
I mean you both have briefed this intensely,
but the only discussion of legislative history
is in another amicus brief
'cause the legislative history is not informative here?
I mean, given how significant this legislation was,
I assume there was debates and other.
Do we have any legislative history here-
-: We do have a little bit
of legislative history, Your Honor,
and we cited in our blue brief.
What we have in particular
is a statement made by Senator Crighton
when he was introducing the amendment
that ultimately became Section 3A.
We also have a press release
that Senate President Spilker issued
immediately after the legislation was passed.
And the significance of both of those
is that they confirm that this is a requirement,
this is mandatory, this is something that towns must do.
Both of those legislators spoke
about requiring towns to zone under this legislation.
Kafker: But they don't address
the remedy issue beyond that.
-: I haven't seen anything
to address the remedy issue, Your Honor.
Budd: Okay, thank you very much.
-: Thank you.
-: Attorney Martin.
-: (clears throat) Oh, good morning, Your Honors,
and may it please the court.
Your Honors, I'd like to start with the question
of the Attorney General's authority
even to bring this action to compel compliance
with Section 3A.
Under this court's precedence,
the Attorney General lacks the ability to do so
because the statute specifies
a different consequence for non-compliance.
The AG seems to be arguing
that she can always seek injunctive relief
in addition to statutory remedies
unless a particular statute foreclosures her from doing so.
But that decision
ignores the relevant precedence from this court,
such as Attorney General versus Williams,
Attorney General versus Everett,
and the relevant language
in Attorney General versus Pitcher-
-: What about 40A, Section 7?
40A, Section 7,
I mean this statute is jammed right into 40A.
40A, Section 7 has empowering language.
Why can't the AG enforce that?
-: 'Cause that language does not refer to an action
by the Attorney General to challenge zoning bylaws.
There used to be language in Section 40A,
which expressly provided for the Attorney General
to bring an action challenging a town zoning bylaw,
and that language was removed by the legislature.
The current language in Section Seven-
-: So the AG, in your view, has no power whatsoever
to enforce 40A, Section 7 language.
They're out of the zoning business.
-: I mean, in our brief, Your Honor,
quote the Attorney General in a letter
dealing with this issue, saying,
"We do not enforce Chapter 40A."
-: In individual fights.
But this isn't an individual fight,
this is a societal issue.
-: So, Your Honor, Section 40A, Section 22
used to specifically say,
"If the Attorney General questions
the validity of any ordinance or bylaw,
then the Attorney General
can bring an action challenging it,
challenging it for declaratory relief
to determine the validity of it."
That language appeared right next to the language
that's currently in Section Seven.
It would've been surplusage if the language in Section Seven
already provided for that kind of action.
The language was removed by the legislature.
And this court has said numerous times,
and just to pick one case, Commonwealth versus Benefield,
it would violate basic principles of statutory construction
to keep reading into a statute
language that was expressly removed by the legislature.
-: Can you respond then to the AG's response
to your argument to that effect?
Namely that what happened
when that particular provision was taken out,
was the replacement of an ex post challenge to a zoning law
with the ex-ante provision?
-: I believe the ex-ante language
was already there, Your Honor.
But another point I wanna make about Section Seven
is that Section Seven has numerous requirements
for the action, right?
It has the jurisdictional requirement
that Your Honor already mentioned.
In addition, Section Seven talks about
providing notice of any action
to at least one of the owners of the parcel in question.
Section Seven is all about violations of zoning bylaws,
or Chapter 40A, by the owner of a parcel.
It's not about the Attorney General
bringing the kind of action
that the Attorney General used to be able to bring
under the language that was removed from the statute.
In addition, we have a specific statute here,
and usually specific statutes govern over general statutes.
-: We have a specific statute
that provides basically no remedy, right?
It's a zeroed...
I mean, what's your reaction to that?
You've got this massive,
this is a significant piece of legislation, right?
We're dealing
with one of the biggest problems in Massachusetts.
And the legislature's only remedy
if you don't comply with their shall language
is three minor grant programs
that most towns haven't gotten money on.
That just seems odd. -: So, Your Honor,
a few points here.
The first is that this court has said many times,
including in cases involving the Attorney General,
like Williams and Pitcher,
as well as the Everett case, which I'd like to get to
'cause I think it's the case which is closest to this one,
that when the legislature creates a statutory duty or right,
then the legislature gets to decide
what the consequence will be for non-compliance.
Here the legislature, having created this zoning obligation
in the MBTA Communities Act, could put a value on it.
In putting a value on it,
the legislature could take into account
the benefits of increased multifamily housing
near certain MBTA stations.
It could also take into account
the fact that increased density is not always a good thing.
It could take into account the value judgment
that's in our state constitution
under the Home Rule amendment.
-: So they only cared...
I mean, I'm trying to understand
where you're going with this.
So they created instead of a stick a twig to hit at it.
-: Well, Your Honor, it's not a twig.
I mean, dozens of communities
have already brought themselves into compliance.
Other communities have not yet hit the deadline,
and very well may.
They've already withheld a grant
of over $100,000 from the Town of Milton
based upon failure to comply.
This is in record appendix 2, page 412.
And at the end of the day,
again, the legislature gets to decide the value here,
and we know that they're laser-focused
on what the remedy should be.
Because, originally, the statute
provided for three sources of grant funding to be withheld
if you weren't in compliance.
The legislature went back a couple of years later
and increased that to four, right?
They're focused on this issue.
And they've decided that weighing
all of the different values that are at stake here,
that's the appropriate remedy.
If they wanted to provide for something more, they could've.
They could've provided for more financial penalties.
They could've provided for injunctive relief,
as they have done, for example, in Chapter 40B,
the Fair housing statute,
which allows the Executive Office of Housing
and Livable Communities to issue orders
that are enforced in equity, it didn't do that.
-: That's assuming they didn't think that 40A, Section 7
or Chapter 12, Section 10
provided the ability to do that, right?
We have to conclude that, right?
'Cause taking care of their own money directly
makes some sense, right?
They're saying, "Okay, money that we're providing
to these agencies should not go to this,"
but they may think there are other existing ways
of correcting the problem, right?
-: If they thought, Your Honor,
that by passing this statute
with a specific statutory consequence for non-compliance,
they were allowing the Attorney General
to bring injunctive relief, then they would be ignoring
all of this court's precedence to the contrary.
-: Let me ask you about that.
Justice Kafker mentioned Chapter 12, Section 10.
Can you address the Attorney General's office's
civil enforcement authority pursuant to that statute?
I'm looking at the language,
including on the intake competition,
which, to me, denotes that there are other things
other than that.
So could you address that, please?
-: Yeah, I mean, the major problem
with the Attorney General's argument
under Chapter 12, Section 10
is that this court has never held
that that section overrides the general rule
that when a statute provides for a specific remedy,
then that remedy is ordinarily exclusive,
which, again, this court has said in cases
involving the Attorney General,
like Williams and Everett and Pitcher.
And I wanna focus on the Everett case
because we talked about the Everett case
in our response brief
and the Attorney General did not talk about it in her reply.
She didn't mention any of the cases
that this court has issued
dealing with the Attorney General's authority
when a statute provides a specific remedy.
In Everett, the Attorney General brought a suit in equity
challenging the local election result.
You know, saying that they were balloting irregularities.
That's an important issue.
We want elections that are not tainted by fraud.
The Attorney General wanted to have the election voided.
But by statute, in the election laws,
the legislature had provided
a different administrative process for ballot fights.
The Attorney General, in briefing in that case,
made all the same arguments about Chapter 12
and common law authority
that the Attorney General is making in this case.
And this is what the court said in response,
in rejecting that argument:
The conduct of elections and election contests
is controlled entirely by statute.
Unless the legislature has granted to the Attorney General,
the right to the relief sought, he is not entitled to it
and the court may not grant it.
Now, state control over zoning,
just like state control over elections,
is entirely the creature of statute.
Under the Home Rule amendment, unless by statute
the legislature has provided something differently,
cities and towns get to control their own zoning.
Having created the MBTA Community Act's
zoning requirement by statute,
the legislature had the ability to decide
how that would be enforced.
And it chose an administrative process.
It chose having the relevant state agencies
withhold certain grant funding from cities and towns
until they brought themselves into compliance.
The Attorney General's argument
that she can ignore that legislative remedy,
that legislative choice of remedy
and go directly to equitable relief
just violates Williams, Everett,
the relevant language in-
Justice 1: What about the Krinke case
Justice 2: Or the City of Boston case?
-: So in those cases, there's usually a statute
which provides specifically for injunctive relief.
So Krinke involved Chapter 93 and Chapter 93A,
both of which anticipate injunctive relief.
The City of Boston case provided for the Board of Education
to send the matter to the Attorney General
for action to obtain compliance.
The Hudson case was mentioned by my friend.
The statute in the Hudson case
said that the SJC or the superior court
shall have jurisdiction and equity
to enforce any such order.
There's always an underlying statute
which anticipates suit being brought to obtain compliance.
None of those cases involved what we have here,
which is a statute which provides
for a financial consequence,
but not any kind of equitable relief
or order to obtain compliance.
-: But in the Everett case, didn't the AG
still have the ability to bring injunctive relief
and just use the wrong process?
-: Well, no, Your Honor,
there'd be a fight before the Board of Registrars.
The Board of Registrars would sort out
what the election result should've been.
And then someone could challenge
the Board of Registrar's determination,
but that would not be the Attorney General
bringing an action against town officials
to have the election results changed
or a new election conducted.
That's certainly not what the court said
in the Everett case.
The court has reached the same result
in cases not involving the Attorney General as well,
but other government enforcement officials.
And if you look at cases we cite in our brief,
like the Cosmopolitan Trust case,
Lexington versus Suburban Land Company,
this court has consistently said
that when the legislature creates a new statutory regime
and provides specifically what the consequences will be
for someone who's not in compliance with the statute,
then those are exclusive remedies
and they displace common law remedies.
I do wanna go back again to the paper tiger point,
'cause it's an important point.
You know, we already mentioned that the legislature
gets to decide the value here.
If the legislature thought that harm,
the harm from not complying with the statute,
were effectively irreparable,
then the legislature could have specifically provided
for injunctive relief as it has done
in so many other statutes,
such as the statutes we cite in our brief.
They could always go back.
This case has been pending for almost a year-
-: 'Cause 40B is the closest analogy,
how is the AG empowered under 40B
and how to contrast with here?
-: So under 40B, if an applicant
challenges a permitting decision by a local government,
they can bring a complaint to the Executive Office
of Housing and Livable Communities.
A committee in the executive office
will review the decision made by the local government,
they can then decide to overturn it.
-: But is there any expressed reference,
'cause the AG, for years and years and years,
is enforcing 40B.
We see them all the time up here,
'cause towns are not complying with 40B.
Is the AG specifically referenced in 40B
or is it the same idea that you have an agency
that has some responsibility
and then the AG comes in and enforces those rights?
-: It's the latter, Your Honor.
Under Section 23 in 40B,
the executive office shall have the power
to enforce orders of the committee at law or in equity.
And then presumably the Attorney General
represents the executive office.
-: So the AG is expressively referenced there,
but we derive their power
from the power of another agency, right?
-: To obtain equitable relief, right.
And they're effectively the lawyer
for the executive office in court
the way they ordinarily are for agencies.
-: So let's assume that the AG has the power
to bring this action for injunctive relief,
can you address the harmless error question
on the promulgation of the guidelines?
-: Right, well, there are some big problems
with the harmless error argument.
They've referenced federal case law.
The state APA and the federal APA
differ in some important ways.
And one way is that, under state law, there's a requirement
to have a small business impact statement
as well as a public and private fiscal impact analysis.
Those are two separate requirements.
Under Section Five of our APA,
the legislature was quite clear
that a law cannot be effective.
No law, sorry, no rule or regulation shall be effective
until the small business impact statement has been filed,
and until the public and private fiscal analysis
have been filed.
The Section Five also says
that compliance with rules and regulations
promulgated by the Secretary of State
to govern the rulemaking process is a condition
precedent to the effectiveness of any regulations.
So where they've admitted that they have not filed
the small business impact statement,
then, by the plain language of Section Five,
it's not effective. -: Are there any cases,
I mean, I get it.
We don't want agencies going outside of 30A
and passing things that are the equivalent of regulations.
But when the legislature tells them to pass guidelines,
I mean, isn't that different?
Are there any cases like that
where they're doing exactly what the legislature says
and we're finding a 30A violation?
-: There are two cases.
They say that when the legislature says guidelines,
they mean something less than regulations.
That's just not correct.
So first- -: I mean,
I've read thousands of statutes.
They know how to say the agency shall pass regulations.
They use this language much less frequently,
this idea of past guidelines.
I mean, it may not be that they're supposed to have
the same kinda teeth as we're talking about, but-
-: Yeah, I mean, two examples here, Your Honor.
One is the sex offender guidelines, right?
They're called guidelines. They're clearly regulations.
They're in the Code of Mass Regulations.
When this court upheld the constitutionality
of the statutory process back in 1999,
it was clear that they had to be promulgated
as regulations to be constitutional.
In other examples, the Fairhaven case,
those were mandatory, right?
They were effectively regulations,
but they fell within an exception
for internal administration.
But, otherwise, they would've met
the definition of regulation.
You wouldn't have to find, they've come with an exception.
And here the language is not just guidelines, right?
It's guidelines to determine compliance with the law.
And under the APA's functional definition
of what a regulation is,
if the agency is promulgating something
to determine if you're in compliance-
-: I get that they may be too detailed, but okay,
I mean, they're fleshing out the meaning
of a very short statute, right?
That seems appropriate to do.
Do you get to challenge all the details of that
when you don't, I mean, I understood if you submitted
a zoning regulation that was different
that didn't comply with two provisions in those guidelines,
that's a different question.
But you just don't submit a zoning regulation.
Or you just say, "We don't have to do it."
Do we have to get into the niceties
of all of those guidelines?
Again, you're presenting a facial challenge.
The question is, would there be a reasonable way
of reading those guidelines to make it legal?
I don't know if you get to challenge everything in them.
-: So there are a couple
of different issues here, Your Honor.
There's the harmless error argument that they make
for compliance with Chapter 30A.
And I think our position
is that there is no harmless error exception there.
And before we move on to the next point,
when it comes to harmless error,
they point to the process that took place
before the adoption of the first set of final guidelines.
We're now in the third iteration of final guidelines
and they don't point to anything in the record appendix
suggesting that there was nearly
the same level of public outreach
with respect to either the second
or third promulgations of final guidelines.
And under the APA, they need to have notice and comment
with respect to amendments of regulations as well.
So there's really no harmless error argument
with respect to the current operative set of guidelines,
which are the guidelines, for example,
that added the additional 13 grant programs.
We also have the argument
that the guidelines are ultra vires,
that they go beyond what was authorized by the legislature.
And I think there we are making a,
well, both a constitutional and a facial argument,
facial statutory argument to the validity of the guidelines.
I think we are entitled to make that.
They were trying to enforce these guidelines against us-
-: I get that you're entitled to,
they pass guidelines and they should've done it
as a 30A regulation.
I get you can do that, that makes sense,
'cause that's an all or nothing argument.
But bits and pieces of these things,
well, I don't see why.
And also, can't the legislature say,
"This is such a big crisis.
We want you to act immediately."
Get the guidelines out, issue them.
They may already have been drafted
and not go through a 30A process.
Isn't that within the legislature's authority?
-: There is provision in the APA
for emergency regulations, but that's-
-: They don't have to.
More specific laws can override general laws, right?
They can override 30A.
Martin: They can, but they did not here, right?
-: Or they went around it.
-: But they said promulgate regulations to determine-
Kafker: They said promulgate guidelines.
-: Sorry, promulgate guidelines to determine compliance.
And usually if you're promulgating some,
if the agency's promulgating a body of law
to determine compliance with a statute,
then that has to follow Chapter 30A.
-: Let's say we agree with you on that,
does your counterclaim go away
or is that the end of the case?
-: So if you were to decide
that the current version of the guidelines is unlawful,
whether for 30A violations or something else,
and we have a few different arguments,
then that would address our counterclaim.
You know, they have already withheld grant money from us.
I think we'd hope to get that
awarded to us again in the future.
I will say, I'm not sure
if I'm speaking for both parties here,
and we've spent an awful lot of time briefing the case,
it has relevance to a lot of communities.
And so certainly the court could decide the case
on a narrow ground and dismiss it,
but it could be useful for Milton
to know what the landscape is.
-: They're just gonna go past it.
I don't know how long it takes
to go through the 30A process,
but we're gonna be right back here.
How quickly can you go through a 30A process?
You know this better than I do.
-: I'm not sure I do, Your Honor,
but it would probably take a while.
It's also not clear that they would adopt
exactly the same regulations, right?
The statute was passed in the middle of the COVID epidemic,
pandemic, and things have moved forward.
As we've seen, as this litigation has progressed,
there's actually a lot of resistance to this law
in many communities.
And it may be, based upon some of the feedback
that's coming out of this case
and other public comment over the last year,
that they would in fact do something different.
Justice 3: Or maybe even
the small business impact statement.
-: They could look at the small business impact statement.
I mean, the Town of Milton has an interest
in its own finances.
There was no public fiscal analysis
that's required under Section Five.
So it's entirely unclear what would come out
if they were to do the process.
And that's why the APA is so important,
because it ensures that agencies do the hard work
of thinking about all these things
before they promulgate regulations
and not afterwards in the middle of litigation.
If the court has no further questions on Chapter 30A,
if I might address very briefly, Your Honor,
just the subway issue.
There was some suggestion-
Budd: Is it in the brief?
-: It's in the brief, Your Honor.
-: Okay, because I think this is the main thing.
Martin: Yes. -: Do we agree? Okay.
I wanna make sure that you get equal time,
but I'm just not sure we wanna spend time
on something that's-
Martin: That's fine, Your Honor.
-: Unless people have questions about that particular-
Martin: If there are no further questions, then.