WEBVTT

1
00:00:00.537 --> 00:00:04.020
<v ->SJC-13580.</v>

2
00:00:04.020 --> 00:00:07.170
Attorney General versus Town of Milton and Joe Atchue,

3
00:00:07.170 --> 00:00:10.140
in his official capacity.
(gavel pounds)

4
00:00:10.140 --> 00:00:11.723
<v Budd>Okay, Attorney Haskell?</v>

5
00:00:15.690 --> 00:00:17.010
<v ->Good morning, Chief Justice Budd,</v>

6
00:00:17.010 --> 00:00:18.960
and may it please the court.

7
00:00:18.960 --> 00:00:20.070
I'd like to begin this morning

8
00:00:20.070 --> 00:00:22.170
by emphasizing two propositions

9
00:00:22.170 --> 00:00:24.390
that are not disputed in this case,

10
00:00:24.390 --> 00:00:26.700
but still have a big, big influence

11
00:00:26.700 --> 00:00:28.530
on our conversation today.

12
00:00:28.530 --> 00:00:30.420
One is that the legislature

13
00:00:30.420 --> 00:00:33.240
undisputedly had the constitutional authority,

14
00:00:33.240 --> 00:00:35.940
under the police power and the home rule amendment,

15
00:00:35.940 --> 00:00:39.480
to enact Section 3A to address the housing crisis.

16
00:00:39.480 --> 00:00:41.490
And the second, it's undisputed

17
00:00:41.490 --> 00:00:45.480
that section 3A requires towns to zone

18
00:00:45.480 --> 00:00:48.960
and thereby creates a legal mandate.

19
00:00:48.960 --> 00:00:51.633
The Town of Milton argues that the commonwealth,

20
00:00:51.633 --> 00:00:54.240
that that is its chief law enforcement officer

21
00:00:54.240 --> 00:00:57.360
invoking the authority of its judiciary,

22
00:00:57.360 --> 00:00:59.520
is powerless to compel Milton

23
00:00:59.520 --> 00:01:02.370
to honor that undisputed mandate.

24
00:01:02.370 --> 00:01:05.070
But there's a reason why the town can't identify

25
00:01:05.070 --> 00:01:06.360
a single situation

26
00:01:06.360 --> 00:01:08.760
in which municipality has been deemed free

27
00:01:08.760 --> 00:01:11.640
to ignore a state law mandate.

28
00:01:11.640 --> 00:01:12.780
And it's this.

29
00:01:12.780 --> 00:01:15.630
The legislature ordinarily intends its mandates

30
00:01:15.630 --> 00:01:16.830
to be obeyed.

31
00:01:16.830 --> 00:01:20.790
It is expressly assigned enforcement of mandatory state laws

32
00:01:20.790 --> 00:01:22.459
to the Attorney General

33
00:01:22.459 --> 00:01:24.450
through the enactment of Chapter 12, Section 10.

34
00:01:24.450 --> 00:01:26.790
And when the legislature

35
00:01:26.790 --> 00:01:29.040
doesn't want its mandates to be obeyed

36
00:01:29.040 --> 00:01:32.310
and wants to render a requirement advisory only,

37
00:01:32.310 --> 00:01:33.930
it needs to say so clearly

38
00:01:33.930 --> 00:01:35.929
in order for the law to recognize that.

39
00:01:35.929 --> 00:01:38.460
<v ->Well, as I understand the argument from the town,</v>

40
00:01:38.460 --> 00:01:42.720
it's not so much that they can ignore the mandate,

41
00:01:42.720 --> 00:01:46.380
but that the price for ignoring it

42
00:01:46.380 --> 00:01:51.380
is not having access to certain funding.

43
00:01:54.630 --> 00:01:56.010
<v ->That's right, Your Honor.</v>

44
00:01:56.010 --> 00:01:59.700
It goes to the effect of subsection b of Section 3A.

45
00:01:59.700 --> 00:02:00.810
<v ->Right, so their argument</v>

46
00:02:00.810 --> 00:02:03.000
is not so much that they can just ignore it,

47
00:02:03.000 --> 00:02:04.800
but that the cost of ignoring it

48
00:02:04.800 --> 00:02:06.270
is set forth in the statute

49
00:02:06.270 --> 00:02:09.360
and that's what the legislature had intended.

50
00:02:09.360 --> 00:02:10.713
What is your response?

51
00:02:11.561 --> 00:02:14.520
<v ->Our response to that is twofold, Your Honor.</v>

52
00:02:14.520 --> 00:02:19.520
First of all, that argument requires 3A sub b,

53
00:02:20.100 --> 00:02:24.210
it makes it function as a deprivation

54
00:02:24.210 --> 00:02:26.610
of the Attorney General's

55
00:02:26.610 --> 00:02:29.700
background existing authority under 1210

56
00:02:29.700 --> 00:02:34.530
and her common law authority to enforce mandatory state law

57
00:02:34.530 --> 00:02:37.860
through seeking declaratory and injunctive remedies.

58
00:02:37.860 --> 00:02:39.660
That's the kind of thing that the legislature

59
00:02:39.660 --> 00:02:41.370
can only do expressly.

60
00:02:41.370 --> 00:02:43.500
And there's no contention that the legislature

61
00:02:43.500 --> 00:02:46.918
has expressly deprived the Attorney General-

62
00:02:46.918 --> 00:02:51.857
<v ->Well, is it on the possible construction of the act</v>

63
00:02:54.060 --> 00:02:57.570
that the AG gets to enforce it

64
00:02:57.570 --> 00:03:00.120
but the remedies are limited to those set forth

65
00:03:00.120 --> 00:03:01.800
in that second section?

66
00:03:01.800 --> 00:03:03.750
<v ->I don't think so, Your Honor.</v>

67
00:03:03.750 --> 00:03:07.770
And at least one reason that I would point to

68
00:03:07.770 --> 00:03:12.030
is that last paragraph of Chapter 40A, Section 7.

69
00:03:12.030 --> 00:03:14.250
So the legislature made a considered choice here

70
00:03:14.250 --> 00:03:18.720
to situate section 3A within Chapter 40A.

71
00:03:18.720 --> 00:03:22.563
Chapter 40A, in that last paragraph of Section 7,

72
00:03:23.637 --> 00:03:26.130
already had a preexisting provision

73
00:03:26.130 --> 00:03:28.830
that grants the courts jurisdiction

74
00:03:28.830 --> 00:03:31.590
to enforce the provisions of this chapter

75
00:03:31.590 --> 00:03:35.250
and to restrain, by injunction, violations thereof.

76
00:03:35.250 --> 00:03:37.620
<v ->And where in that section</v>

77
00:03:37.620 --> 00:03:39.843
should this claim have been brought then?

78
00:03:41.040 --> 00:03:43.982
<v ->What that does-</v>
<v Wendlandt>Doesn't it say</v>

79
00:03:43.982 --> 00:03:46.673
that it's supposed to be in the superior court, not here.

80
00:03:46.673 --> 00:03:49.290
<v ->It gives the superior court and land court jurisdiction</v>

81
00:03:49.290 --> 00:03:50.730
to issue injunctions of that type.

82
00:03:50.730 --> 00:03:52.320
Of course, we're also seeking

83
00:03:52.320 --> 00:03:55.980
a declaratory judgment under 231A.

84
00:03:55.980 --> 00:03:59.490
The county court has jurisdiction

85
00:03:59.490 --> 00:04:01.410
to grant declaratory judgments.

86
00:04:01.410 --> 00:04:04.560
<v ->I thought it's not that you're also seeking a declaration.</v>

87
00:04:04.560 --> 00:04:06.840
I thought that you've, at least in the postures,

88
00:04:06.840 --> 00:04:10.020
the cases here now have abandoned your request

89
00:04:10.020 --> 00:04:11.190
for an injunction.

90
00:04:11.190 --> 00:04:12.183
Is that correct?

91
00:04:13.140 --> 00:04:14.790
<v ->Let me be clear on that, Your Honor.</v>

92
00:04:14.790 --> 00:04:17.970
We have not abandoned our request for an injunction.

93
00:04:17.970 --> 00:04:20.160
However, it's our view that,

94
00:04:20.160 --> 00:04:21.990
on the circumstances of this case,

95
00:04:21.990 --> 00:04:25.230
a declaratory judgment ought to be all it takes

96
00:04:25.230 --> 00:04:28.802
to obtain Milton's compliance with this law.

97
00:04:28.802 --> 00:04:30.452
<v ->What would the declaration say?</v>

98
00:04:31.635 --> 00:04:35.700
<v ->The declaration would say that Milton is obligated to zone</v>

99
00:04:35.700 --> 00:04:38.790
in accordance with 3A sub a,

100
00:04:38.790 --> 00:04:41.220
and that the Attorney General has the authority

101
00:04:41.220 --> 00:04:45.120
to enforce Milton's compliance with that requirement

102
00:04:45.120 --> 00:04:47.010
through declaratory and injunctive remedies.

103
00:04:47.010 --> 00:04:49.140
Now, the actual issuance of an injunction

104
00:04:49.140 --> 00:04:51.140
has many steps.
<v ->I'm a little puzzled.</v>

105
00:04:55.260 --> 00:04:59.820
Ordinarily, I think of the town as an entity

106
00:04:59.820 --> 00:05:03.900
as acting through its Board of Selectmen.

107
00:05:03.900 --> 00:05:04.953
Is that correct?

108
00:05:06.630 --> 00:05:08.700
<v ->Your Honor, I'm afraid it's a good deal</v>

109
00:05:08.700 --> 00:05:11.461
more complicated than that.
<v ->Okay.</v>

110
00:05:11.461 --> 00:05:14.460
So in this case, you're not arguing

111
00:05:14.460 --> 00:05:17.493
that the Board of Selectmen did anything wrong, are you?

112
00:05:20.196 --> 00:05:21.444
<v ->No, Your Honor. We are.</v>

113
00:05:21.444 --> 00:05:23.040
<v ->Okay, so it seems to me</v>

114
00:05:23.040 --> 00:05:27.483
that what you're actually arguing is that,

115
00:05:29.430 --> 00:05:31.770
it seems to me you're almost taking on

116
00:05:31.770 --> 00:05:34.893
the right to the franchise of the citizens of Milton.

117
00:05:36.790 --> 00:05:39.420
<v ->So let me unpack that a bit, Your Honor.</v>

118
00:05:39.420 --> 00:05:42.690
So what 3A sub a,

119
00:05:42.690 --> 00:05:45.840
the entity that it speaks to, is the town.

120
00:05:45.840 --> 00:05:47.670
The town, as you say,

121
00:05:47.670 --> 00:05:50.760
has its own executive and legislative branches,

122
00:05:50.760 --> 00:05:53.100
it has its own legislative process,

123
00:05:53.100 --> 00:05:58.100
it also has a fairly complex process under Chapter 40A

124
00:05:59.010 --> 00:06:00.900
that the planning board needs to go through

125
00:06:00.900 --> 00:06:02.850
regarding notice and public hearing

126
00:06:02.850 --> 00:06:04.800
of proposed zoning amendments,

127
00:06:04.800 --> 00:06:07.050
needs to go to the town's legislature,

128
00:06:07.050 --> 00:06:09.830
in this case, representative town meeting,

129
00:06:09.830 --> 00:06:11.542
And really one of the features,

130
00:06:11.542 --> 00:06:15.740
one of the notable things about Section 3A

131
00:06:17.062 --> 00:06:21.660
is the way that while requiring towns to do this zoning,

132
00:06:21.660 --> 00:06:24.660
it still preserves the flexibility of towns

133
00:06:24.660 --> 00:06:27.600
to choose what they want their zoning district to look like.

134
00:06:27.600 --> 00:06:31.200
That is to use all of these procedures and processes-

135
00:06:31.200 --> 00:06:32.730
<v ->Didn't they do that?</v>
<v ->to zone what it chooses.</v>

136
00:06:32.730 --> 00:06:34.740
<v Wolohojian>Didn't they do that?</v>

137
00:06:34.740 --> 00:06:36.123
<v ->They did.</v>

138
00:06:36.123 --> 00:06:37.050
And ultimately, well, we know-

139
00:06:37.050 --> 00:06:39.030
<v ->And I understand the Attorney General</v>

140
00:06:39.030 --> 00:06:40.980
is not contesting the outcome of that.

141
00:06:40.980 --> 00:06:43.080
They think that the plan,

142
00:06:43.080 --> 00:06:45.570
or she thinks that the plan that came out

143
00:06:45.570 --> 00:06:50.060
would satisfy the guidelines.

144
00:06:51.300 --> 00:06:53.190
<v ->Had it been adopted by the town,</v>

145
00:06:53.190 --> 00:06:57.934
Article One would have satisfied 3A sub a.

146
00:06:57.934 --> 00:07:00.810
<v ->Okay, so I go back to my former question.</v>

147
00:07:00.810 --> 00:07:04.860
How is it that you're not, in this case,

148
00:07:04.860 --> 00:07:07.650
actually trying to take on

149
00:07:07.650 --> 00:07:10.620
the right of the residents of Milton

150
00:07:10.620 --> 00:07:14.220
to exercise their franchise?

151
00:07:14.220 --> 00:07:15.570
<v ->You know, what I would point to</v>

152
00:07:15.570 --> 00:07:16.740
in this situation, Your Honor,

153
00:07:16.740 --> 00:07:20.730
is this court's decision in the Town of Hudson case in 1943.

154
00:07:22.500 --> 00:07:24.600
That was a situation in which the legislature

155
00:07:24.600 --> 00:07:27.390
passed a special act, it was during the war,

156
00:07:27.390 --> 00:07:28.980
passed a special act that allowed

157
00:07:28.980 --> 00:07:30.510
the State Department of Public Health

158
00:07:30.510 --> 00:07:32.130
to order municipalities

159
00:07:32.130 --> 00:07:34.980
to basically treat their drinking water in a certain way

160
00:07:34.980 --> 00:07:37.170
to protect against sabotage, right?

161
00:07:37.170 --> 00:07:41.070
So the Town of Hudson considered an article

162
00:07:41.070 --> 00:07:44.610
at their town meeting to buy the chlorination equipment

163
00:07:44.610 --> 00:07:47.760
the DPH had told them they needed to, and they rejected it.

164
00:07:47.760 --> 00:07:51.120
And so the Attorney General brought an enforcement action

165
00:07:51.120 --> 00:07:52.837
against the Town of Hudson to say,

166
00:07:52.837 --> 00:07:54.540
"You know, look, you didn't have a choice.

167
00:07:54.540 --> 00:07:55.650
You have to do this."

168
00:07:55.650 --> 00:07:59.250
The town's defense was town meeting does its thing,

169
00:07:59.250 --> 00:08:02.250
it's a democratic process, we can't control it.

170
00:08:02.250 --> 00:08:05.220
And this court's opinion was very clear and very strong

171
00:08:05.220 --> 00:08:08.040
that even where a state law mandate

172
00:08:08.040 --> 00:08:10.830
is subject to a political process

173
00:08:10.830 --> 00:08:13.410
of adoption and implementation like that,

174
00:08:13.410 --> 00:08:16.500
it's still a mandate and the town still needs to follow it,

175
00:08:16.500 --> 00:08:19.650
and the court still has equitable remedies available to it

176
00:08:19.650 --> 00:08:23.640
to compel the town to comply with that mandate.

177
00:08:23.640 --> 00:08:25.770
Does that get at your question?

178
00:08:25.770 --> 00:08:27.320
<v Wolohojian>I think it does.</v>

179
00:08:28.802 --> 00:08:29.635
<v ->So can I, just to follow up.</v>

180
00:08:29.635 --> 00:08:32.850
Are you saying that submitting the question

181
00:08:32.850 --> 00:08:37.850
whether to comply or not was not within the authority,

182
00:08:38.070 --> 00:08:39.090
submitting the question

183
00:08:39.090 --> 00:08:40.890
of whether to comply with the law or not

184
00:08:40.890 --> 00:08:44.586
was not within the authority of the town Board of Selectmen,

185
00:08:44.586 --> 00:08:45.450
is that what you're saying?

186
00:08:45.450 --> 00:08:48.540
<v ->I think that's right if the responsible bodies of the town</v>

187
00:08:48.540 --> 00:08:50.973
failed to put forward a plan.

188
00:08:52.320 --> 00:08:54.420
Under the guidelines, the point at which

189
00:08:54.420 --> 00:08:56.550
they would be out of compliance with the law

190
00:08:56.550 --> 00:08:57.870
is when they hit that deadline.

191
00:08:57.870 --> 00:09:00.660
In Milton's case, it was December 31st of last year.

192
00:09:00.660 --> 00:09:02.290
<v Gaziano>The select people</v>

193
00:09:02.290 --> 00:09:04.050
would have to ignore their town charter?

194
00:09:04.050 --> 00:09:05.662
<v ->I'm sorry, say again?</v>

195
00:09:05.662 --> 00:09:07.500
<v ->The select people would have to ignore their town charter?</v>

196
00:09:07.500 --> 00:09:08.550
<v Haskell>I'm sorry, the charter?</v>

197
00:09:08.550 --> 00:09:13.200
<v ->Well, the referendum to take it to the vote.</v>

198
00:09:13.200 --> 00:09:15.263
You're saying they would have to ignore it.

199
00:09:16.497 --> 00:09:17.880
<v ->No. No, we aren't saying that, Your Honor.</v>

200
00:09:17.880 --> 00:09:21.060
The referendum is part of the process

201
00:09:21.060 --> 00:09:25.173
by which the Town of Milton enacts bylaws, and so-

202
00:09:26.047 --> 00:09:27.593
<v Gaziano>Would you say it was a meaningless act?</v>

203
00:09:28.830 --> 00:09:30.060
<v ->I'm sorry, the referendum?</v>

204
00:09:30.060 --> 00:09:32.490
<v Gaziano>Yeah, in this context.</v>

205
00:09:32.490 --> 00:09:34.386
<v ->Our contention, Your Honor,</v>

206
00:09:34.386 --> 00:09:35.220
I don't think needs to go that far.

207
00:09:35.220 --> 00:09:37.016
Our contention, Your Honor-

208
00:09:37.016 --> 00:09:39.120
<v Gaziano>Oh, as my question goes that far.</v>

209
00:09:39.120 --> 00:09:40.380
<v ->I'm sorry, can you-</v>

210
00:09:40.380 --> 00:09:41.970
<v ->Was that a meaningless act?</v>

211
00:09:41.970 --> 00:09:43.290
<v ->Oh, the referendum?</v>
<v ->Yeah.</v>

212
00:09:43.290 --> 00:09:45.060
<v ->I'm sorry, I'm sorry.</v>

213
00:09:45.060 --> 00:09:47.490
I didn't hear your question correctly.

214
00:09:47.490 --> 00:09:48.960
No, it's not our view

215
00:09:48.960 --> 00:09:50.730
that the referendum was a meaningless act.

216
00:09:50.730 --> 00:09:52.260
It was part of the process-

217
00:09:52.260 --> 00:09:54.450
<v Gaziano>Just the result was meaningless.</v>

218
00:09:54.450 --> 00:09:55.863
The result was meaningless.

219
00:09:57.982 --> 00:10:00.374
<v ->I wouldn't say that either, Your Honor.</v>

220
00:10:00.374 --> 00:10:03.210
Again, this Section 3A, the MBTA Communities Act,

221
00:10:03.210 --> 00:10:07.050
gives towns choices and flexibility

222
00:10:07.050 --> 00:10:08.880
about what their district's going to look like,

223
00:10:08.880 --> 00:10:10.350
where it's going to be situated,

224
00:10:10.350 --> 00:10:12.750
any number of other features of it,

225
00:10:12.750 --> 00:10:15.870
You know, the town can choose whatever plan it wants

226
00:10:15.870 --> 00:10:18.090
to attempt to comply with this thing

227
00:10:18.090 --> 00:10:21.003
within the boundaries of the statute and the guidelines.

228
00:10:22.251 --> 00:10:26.610
And so our point is that the town needs to enact something.

229
00:10:26.610 --> 00:10:29.370
<v Wolohojian>Where does the deadline come from?</v>

230
00:10:29.370 --> 00:10:31.943
<v ->The deadline comes from the guidelines, Your Honor.</v>

231
00:10:31.943 --> 00:10:33.060
<v ->Okay, so I guess that takes us</v>

232
00:10:33.060 --> 00:10:35.580
to maybe the second argument.

233
00:10:35.580 --> 00:10:39.450
If we were to determine that the guidelines were not-

234
00:10:39.450 --> 00:10:41.633
<v ->Are we done with the first argument though?</v>

235
00:10:44.070 --> 00:10:45.540
I mean, towns can't vote

236
00:10:45.540 --> 00:10:48.210
not to comply with state laws, right?

237
00:10:48.210 --> 00:10:53.160
So if you have the authority in the AG's office

238
00:10:53.160 --> 00:10:57.870
through Chapter 12 or through 40A, Section 7,

239
00:10:57.870 --> 00:10:59.940
you can compel compliance with the law.

240
00:10:59.940 --> 00:11:03.540
A town can't vote not to abide by state law,

241
00:11:03.540 --> 00:11:05.100
it's mandatory, right?

242
00:11:05.100 --> 00:11:06.623
<v Haskell>That's correct, Your Honor.</v>

243
00:11:08.160 --> 00:11:10.680
<v ->So if that's the case,</v>

244
00:11:10.680 --> 00:11:14.910
and then the question is, are the remedies exclusive?

245
00:11:14.910 --> 00:11:17.010
That's really the only issue we have to,

246
00:11:17.010 --> 00:11:19.980
can I ask how much money did Milton get

247
00:11:19.980 --> 00:11:21.780
from those grants in prior years?

248
00:11:21.780 --> 00:11:23.080
I'm just curious how much,

249
00:11:25.676 --> 00:11:30.210
is this a paper tiger without teeth or claws?

250
00:11:30.210 --> 00:11:34.140
I mean, how much money went through those grants to Milton?

251
00:11:34.140 --> 00:11:37.290
<v ->In a lot of ways, it is, Your Honor, a paper tiger.</v>

252
00:11:37.290 --> 00:11:40.860
The grant programs that are specified in 3A sub b,

253
00:11:40.860 --> 00:11:42.390
there's four of them.

254
00:11:42.390 --> 00:11:46.111
The Housing Choice initiative is actually something that-

255
00:11:46.111 --> 00:11:46.944
<v ->How much money?</v>

256
00:11:46.944 --> 00:11:49.290
I'm trying to understand, I understand the different grants.

257
00:11:49.290 --> 00:11:51.780
How much money are we talking about for Milton

258
00:11:51.780 --> 00:11:55.110
the year before this past, or the year before that?

259
00:11:55.110 --> 00:11:57.846
<v ->0000.</v>

260
00:11:57.846 --> 00:11:59.340
To get to a point that Milton received money

261
00:11:59.340 --> 00:12:00.690
under one of those four programs,

262
00:12:00.690 --> 00:12:02.190
you'd have to go back to 2012

263
00:12:02.190 --> 00:12:03.810
when they received a million dollars

264
00:12:03.810 --> 00:12:05.643
from the MassWorks program.

265
00:12:06.915 --> 00:12:08.601
The Housing Choice initiative,

266
00:12:08.601 --> 00:12:09.780
the town of Milton isn't even eligible.

267
00:12:09.780 --> 00:12:11.100
They haven't taken steps

268
00:12:11.100 --> 00:12:14.100
to make themselves eligible for that funding.

269
00:12:14.100 --> 00:12:15.780
The MassWorks program, as I said,

270
00:12:15.780 --> 00:12:18.000
it's been many years since they received anything.

271
00:12:18.000 --> 00:12:21.000
In fact, in the past three fiscal years,

272
00:12:21.000 --> 00:12:25.170
only 62 of the 177 municipalities we're talking about

273
00:12:25.170 --> 00:12:27.750
have received money from the MassWorks program.

274
00:12:27.750 --> 00:12:29.040
The HousingWorks program

275
00:12:29.040 --> 00:12:31.140
has only been in existence for one year.

276
00:12:31.140 --> 00:12:33.630
Their one round of grant awards,

277
00:12:33.630 --> 00:12:38.630
8 out of 15 went to MBTA communities, so 159 got nothing.

278
00:12:39.341 --> 00:12:41.670
<v ->So your argument is this is significant legislation</v>

279
00:12:41.670 --> 00:12:44.070
addressing a societal crisis.

280
00:12:44.070 --> 00:12:49.070
And without your ability as the AG to enforce this,

281
00:12:49.860 --> 00:12:52.140
there's no real remedy here.

282
00:12:52.140 --> 00:12:53.880
Is that-
<v ->That's right, Your Honor.</v>

283
00:12:53.880 --> 00:12:57.555
And, you know, 3A sub b does something.

284
00:12:57.555 --> 00:12:59.370
Our view is that the legislature included that in there

285
00:12:59.370 --> 00:13:01.260
so that municipalities would know

286
00:13:01.260 --> 00:13:03.690
there is going to be a concrete consequence

287
00:13:03.690 --> 00:13:05.730
of not complying, and it's gonna be automatic

288
00:13:05.730 --> 00:13:08.340
and it's going to be swift and it's going to be certain,

289
00:13:08.340 --> 00:13:11.280
but it does not in any way take the place

290
00:13:11.280 --> 00:13:12.990
of the power of the Attorney General

291
00:13:12.990 --> 00:13:15.296
to enforce this mandatory state law.

292
00:13:15.296 --> 00:13:16.129
<v Budd>I have a different question.</v>

293
00:13:16.129 --> 00:13:17.160
<v ->Yes.</v>

294
00:13:17.160 --> 00:13:19.890
<v ->So you acknowledged that the EOHLC</v>

295
00:13:19.890 --> 00:13:23.340
didn't put together the small business impact statement

296
00:13:23.340 --> 00:13:26.763
that was required under the statute, right?

297
00:13:27.900 --> 00:13:30.870
<v ->Well, I guess our first position on that, Your Honor,</v>

298
00:13:30.870 --> 00:13:33.930
is that it wasn't required in this situation

299
00:13:33.930 --> 00:13:37.380
because these guidelines weren't subject to Chapter 30A.

300
00:13:37.380 --> 00:13:42.150
If we were to assume that they were subject to 30A,

301
00:13:42.150 --> 00:13:43.470
then that's correct.

302
00:13:43.470 --> 00:13:46.852
The HLC didn't do the small business impact statement.

303
00:13:46.852 --> 00:13:49.830
<v ->How do we determine whether the guidelines</v>

304
00:13:49.830 --> 00:13:51.360
are subject to 30A

305
00:13:51.360 --> 00:13:55.860
given the definition of regulation in 30A?

306
00:13:55.860 --> 00:13:57.270
<v ->Your Honor, that is an-</v>

307
00:13:57.270 --> 00:13:58.500
<v ->It can't be,</v>

308
00:13:58.500 --> 00:14:02.040
because the legislature called them guidelines.

309
00:14:02.040 --> 00:14:04.620
So let's assume, at least this jurist,

310
00:14:04.620 --> 00:14:06.690
does not agree with that argument.

311
00:14:06.690 --> 00:14:09.483
What would the test be?

312
00:14:12.370 --> 00:14:13.530
<v ->Our position, Your Honor,</v>

313
00:14:13.530 --> 00:14:15.600
is the one that you've just indicated,

314
00:14:15.600 --> 00:14:18.630
that we ought to go to the language.

315
00:14:18.630 --> 00:14:20.490
And there's a history of the legislature

316
00:14:20.490 --> 00:14:22.380
using the term guidelines

317
00:14:22.380 --> 00:14:26.040
and agencies responding to that in a certain way.

318
00:14:26.040 --> 00:14:31.040
<v ->Any guidelines that deal with the public in this way,</v>

319
00:14:32.220 --> 00:14:34.323
in zoning in this way?

320
00:14:36.330 --> 00:14:39.072
<v ->Zoning, what I would point to on zoning-</v>

321
00:14:39.072 --> 00:14:40.770
<v ->As the list that you have in your brief</v>

322
00:14:40.770 --> 00:14:43.320
deals with scholarship money?

323
00:14:43.320 --> 00:14:45.144
<v Haskell>Graham's and the like.</v>

324
00:14:45.144 --> 00:14:47.490
<v ->Specific programs where there's a pot of money</v>

325
00:14:47.490 --> 00:14:51.510
and then the guidelines define somewhat

326
00:14:51.510 --> 00:14:53.460
how that is to be monitored?

327
00:14:53.460 --> 00:14:55.740
This is not the same.

328
00:14:55.740 --> 00:14:59.610
<v ->What I would point to, Your Honor, is two things.</v>

329
00:14:59.610 --> 00:15:03.030
First of all, a piece of recently enacted legislation

330
00:15:03.030 --> 00:15:05.010
that's actually not cited in the briefs,

331
00:15:05.010 --> 00:15:08.340
it's the recent housing bond bill,

332
00:15:08.340 --> 00:15:12.390
it's Chapter 150 of the Acts of 2024.

333
00:15:12.390 --> 00:15:17.010
And what the legislature did as part of that,

334
00:15:17.010 --> 00:15:19.920
it's Section Eight of that special act,

335
00:15:19.920 --> 00:15:22.860
was added a provision to 40A, Section 3,

336
00:15:22.860 --> 00:15:24.931
that is the Dover Amendment.

337
00:15:24.931 --> 00:15:26.130
It added a provision to the Dover Amendment

338
00:15:26.130 --> 00:15:28.230
saying that municipal zoning codes

339
00:15:28.230 --> 00:15:30.900
cannot prohibit or unreasonably restrict

340
00:15:30.900 --> 00:15:34.440
accessory dwelling units in single-family residential zones.

341
00:15:34.440 --> 00:15:37.320
And then the legislature went on to say,

342
00:15:37.320 --> 00:15:40.560
in Chapter 150 of the Acts of 2024,

343
00:15:40.560 --> 00:15:45.420
that HLC may issue guidelines or promulgate regulations

344
00:15:45.420 --> 00:15:47.190
to administer this paragraph.

345
00:15:47.190 --> 00:15:49.710
And so that's just an example of the legislature

346
00:15:49.710 --> 00:15:53.640
perceiving a difference between guidelines and regulations.

347
00:15:53.640 --> 00:15:56.027
Because in that legislation-

348
00:15:56.027 --> 00:15:58.440
<v Wendlandt>Well, how does 30A define regulation?</v>

349
00:15:58.440 --> 00:16:00.252
<v ->HLC, excuse me.</v>

350
00:16:00.252 --> 00:16:01.085
<v ->To say a regulation is a regulation</v>

351
00:16:01.085 --> 00:16:02.790
or is it more expansive?

352
00:16:02.790 --> 00:16:06.990
<v ->It's defined by its effect,</v>

353
00:16:06.990 --> 00:16:10.470
general application and prospective effect.

354
00:16:10.470 --> 00:16:12.990
<v ->And you're suggesting that these guidelines</v>

355
00:16:12.990 --> 00:16:15.600
don't have the kind of effect

356
00:16:15.600 --> 00:16:19.440
that 30A uses to define the term regulation?

357
00:16:19.440 --> 00:16:22.200
<v ->So we know that guidelines,</v>

358
00:16:22.200 --> 00:16:25.260
as kind of a general background principle,

359
00:16:25.260 --> 00:16:28.230
are usually a form of subregulatory guidance, right,

360
00:16:28.230 --> 00:16:29.730
and lack force of law.

361
00:16:29.730 --> 00:16:31.560
But we also know, from this court's decision

362
00:16:31.560 --> 00:16:36.560
in Fairhaven last year, that where the legislature says so-

363
00:16:36.627 --> 00:16:37.620
<v ->First, in Fairhaven, though,</v>

364
00:16:37.620 --> 00:16:42.240
guidelines in that context were used, as I recall,

365
00:16:42.240 --> 00:16:45.930
to define the internal workings

366
00:16:45.930 --> 00:16:47.820
of the state government itself.

367
00:16:47.820 --> 00:16:49.530
They were not outward-looking

368
00:16:49.530 --> 00:16:51.903
to things that the public needed to do.

369
00:16:52.920 --> 00:16:56.640
<v ->There was a footnote to that effect in Fairhaven-</v>

370
00:16:56.640 --> 00:16:58.391
<v Wendlandt>I recall that.</v>

371
00:16:58.391 --> 00:16:59.925
<v ->And it's not our contention...</v>

372
00:16:59.925 --> 00:17:02.406
I remember standing here and arguing it, Your Honor.

373
00:17:02.406 --> 00:17:03.240
And it's not our contention

374
00:17:03.240 --> 00:17:07.230
that these guidelines about the MBTA Communities Act

375
00:17:07.230 --> 00:17:11.286
are the type that don't affect the public.

376
00:17:11.286 --> 00:17:12.355
Candidly, they do.

377
00:17:12.355 --> 00:17:15.300
Our argument is legislature said guidelines,

378
00:17:15.300 --> 00:17:16.830
we know from other examples,

379
00:17:16.830 --> 00:17:19.140
including that recent legislation that I mentioned,

380
00:17:19.140 --> 00:17:21.960
that guidelines and regulations are two different things.

381
00:17:21.960 --> 00:17:25.950
And when the legislature wants to invoke

382
00:17:25.950 --> 00:17:29.940
the term of art regulations under 30A, Section 1 sub 5,

383
00:17:29.940 --> 00:17:32.640
they know how to do it, that's not what they did here.

384
00:17:33.720 --> 00:17:37.860
<v ->The cases where we say an agency exceeded its power</v>

385
00:17:37.860 --> 00:17:40.770
by passing something with another name

386
00:17:40.770 --> 00:17:42.540
are all different, right?

387
00:17:42.540 --> 00:17:47.220
I mean, the legislature can tell an agency how to do things

388
00:17:47.220 --> 00:17:48.963
and not violate 30A.

389
00:17:50.267 --> 00:17:52.140
The focus is when an agency

390
00:17:52.140 --> 00:17:55.226
tries to get around 30A, isn't it?

391
00:17:55.226 --> 00:17:57.300
I mean, if the legislature tells an agency

392
00:17:57.300 --> 00:18:00.810
to pass something, they can choose.

393
00:18:00.810 --> 00:18:03.930
They know the word regulation. They use it all the time.

394
00:18:03.930 --> 00:18:06.900
Most statutes say the agency will pass regulations

395
00:18:06.900 --> 00:18:07.890
to carry this out.

396
00:18:07.890 --> 00:18:12.225
They didn't do that here. Isn't that enough for you?

397
00:18:12.225 --> 00:18:13.058
I mean, you don't really need

398
00:18:13.058 --> 00:18:15.690
to go much beyond that, do you?

399
00:18:15.690 --> 00:18:20.370
I mean, don't all the cases where we say 30A is violated,

400
00:18:20.370 --> 00:18:22.980
it's when an agency, on its own,

401
00:18:22.980 --> 00:18:26.010
does something that it should pass as a regulation

402
00:18:26.010 --> 00:18:28.200
to avoid the regulatory process,

403
00:18:28.200 --> 00:18:29.730
it's not when it's carrying out

404
00:18:29.730 --> 00:18:31.873
the intention of the legislature, is it?

405
00:18:32.843 --> 00:18:34.260
<v ->I think that's right, Your Honor.</v>

406
00:18:34.260 --> 00:18:35.093
I do think that it's very significant

407
00:18:35.093 --> 00:18:37.503
that here, the agency, HLC,

408
00:18:38.725 --> 00:18:40.440
really did what the legislature told it to do

409
00:18:40.440 --> 00:18:42.570
and went out and promulgated guidelines.

410
00:18:42.570 --> 00:18:45.450
And as we argue in our brief, and you know from the record,

411
00:18:45.450 --> 00:18:49.340
really went above and beyond what it needed to do

412
00:18:49.340 --> 00:18:51.390
by way of putting out these draft guidelines,

413
00:18:51.390 --> 00:18:52.650
soliciting public comment,

414
00:18:52.650 --> 00:18:56.100
making sure that interested stakeholders knew about it.

415
00:18:56.100 --> 00:18:59.280
Really the only thing that 30A calls for

416
00:18:59.280 --> 00:19:02.070
that HLC didn't address in this case

417
00:19:02.070 --> 00:19:03.780
was the small business impact statement.

418
00:19:03.780 --> 00:19:05.640
And our view is that that's outside

419
00:19:05.640 --> 00:19:07.380
of the Town of Milton's zone of interest-

420
00:19:07.380 --> 00:19:08.213
<v ->Can I ask you?</v>

421
00:19:09.109 --> 00:19:10.530
What happens if we agree with you

422
00:19:10.530 --> 00:19:14.730
that the statutory remedy is not exclusive

423
00:19:14.730 --> 00:19:17.790
and the AG has civil enforcement authority,

424
00:19:17.790 --> 00:19:21.150
the common law or by Section 10,

425
00:19:21.150 --> 00:19:26.150
but we then find that the guidelines aren't guidelines

426
00:19:26.832 --> 00:19:30.607
or that the agency has run amok in a way or violated 30A?

427
00:19:32.220 --> 00:19:33.093
Now what?

428
00:19:35.280 --> 00:19:39.840
<v ->So I think, as part of your question,</v>

429
00:19:39.840 --> 00:19:42.060
or assuming that you don't indulge us

430
00:19:42.060 --> 00:19:45.390
on the harmless error argument that we've made,

431
00:19:45.390 --> 00:19:48.450
in that situation, what we would look at, Your Honor,

432
00:19:48.450 --> 00:19:50.790
is this court's decision

433
00:19:50.790 --> 00:19:53.400
in Carey versus Commissioner of Correction.

434
00:19:53.400 --> 00:19:55.560
What happened there was this court found

435
00:19:55.560 --> 00:19:57.450
that a policy of the department

436
00:19:57.450 --> 00:20:01.200
needed to have been passed down as a regulation, but wasn't.

437
00:20:01.200 --> 00:20:02.970
And yet it had been out there,

438
00:20:02.970 --> 00:20:04.370
people had been relying on it.

439
00:20:04.370 --> 00:20:06.660
In that case, it had significance

440
00:20:06.660 --> 00:20:09.270
to the institutional safety in the department.

441
00:20:09.270 --> 00:20:11.287
And so what this court said was,

442
00:20:11.287 --> 00:20:14.190
"We aren't gonna strike down this guideline,

443
00:20:14.190 --> 00:20:15.330
this policy immediately,

444
00:20:15.330 --> 00:20:17.190
we're going to give it a period of time

445
00:20:17.190 --> 00:20:19.890
for the agency to do regulations."

446
00:20:19.890 --> 00:20:23.730
Certainly if that is the outcome this court reaches,

447
00:20:23.730 --> 00:20:25.890
that's what I would advise HLC to do.

448
00:20:25.890 --> 00:20:27.180
<v ->What would that do,</v>

449
00:20:27.180 --> 00:20:30.153
this goes back to the question I wanted to ask you before.

450
00:20:31.051 --> 00:20:33.690
Since the deadline, as I understand your argument

451
00:20:33.690 --> 00:20:38.250
on the first issue, is that the town's failure here

452
00:20:38.250 --> 00:20:43.250
is that it did not adopt a plan by the deadline,

453
00:20:48.870 --> 00:20:51.810
but the deadline comes from the guidelines.

454
00:20:51.810 --> 00:20:54.690
So if the guidelines go away,

455
00:20:54.690 --> 00:20:57.540
what happens to your first argument then,

456
00:20:57.540 --> 00:20:59.313
at least with respect to Milton?

457
00:21:01.140 --> 00:21:05.520
<v ->I think if the decision from this court comes out in a way</v>

458
00:21:05.520 --> 00:21:09.750
that HLC needs to repromulgate the guidelines,

459
00:21:09.750 --> 00:21:13.200
it would be HLC's choice in that situation

460
00:21:13.200 --> 00:21:15.420
what to do by way of deadlines.

461
00:21:15.420 --> 00:21:17.220
I think it's safe to assume

462
00:21:17.220 --> 00:21:19.893
they couldn't specify a deadline in the past.

463
00:21:21.750 --> 00:21:22.800
I guess...

464
00:21:22.800 --> 00:21:27.220
<v ->So the request for injunctive relief would go away</v>

465
00:21:28.174 --> 00:21:29.024
vis-a-vis Milton?

466
00:21:31.005 --> 00:21:33.720
(Haskell exhales)

467
00:21:33.720 --> 00:21:37.530
<v ->So the hypothetical is that this court issued a decision</v>

468
00:21:37.530 --> 00:21:40.170
that says the guidelines were unenforceable,

469
00:21:40.170 --> 00:21:45.170
HLC goes and repromulgates something under 30A-

470
00:21:45.630 --> 00:21:47.010
<v ->If we were to conclude</v>

471
00:21:47.010 --> 00:21:48.840
that the guidelines were unenforceable,

472
00:21:48.840 --> 00:21:51.153
is there any other issue we need to reach?

473
00:21:59.160 --> 00:22:01.483
<v ->I think so, Your Honor.</v>

474
00:22:01.483 --> 00:22:03.930
I think the question-
<v Wolohojian>Which one?</v>

475
00:22:03.930 --> 00:22:05.113
<v ->The first question of the enforceability-</v>

476
00:22:05.971 --> 00:22:07.180
<v Wolohojian>It wouldn't apply to Milton though,</v>

477
00:22:07.180 --> 00:22:08.013
if I understand correctly.

478
00:22:08.013 --> 00:22:11.700
Because if I understood what you argued before,

479
00:22:11.700 --> 00:22:13.800
the point at which Milton,

480
00:22:13.800 --> 00:22:18.390
in your view, violated the statute

481
00:22:18.390 --> 00:22:23.250
was when it didn't enact zoning plan by a certain date.

482
00:22:23.250 --> 00:22:26.875
But if the certain date only comes from the guidelines

483
00:22:26.875 --> 00:22:31.473
and the guidelines need to be done over,

484
00:22:33.510 --> 00:22:36.453
then what is there to enforce against Milton?

485
00:22:38.940 --> 00:22:40.920
<v ->I don't know in that situation, Your Honor,</v>

486
00:22:40.920 --> 00:22:45.600
whether the issue of Milton's non-compliance would be moot.

487
00:22:45.600 --> 00:22:48.715
I think that even if it were, it would be-

488
00:22:48.715 --> 00:22:49.680
<v Wendlandt>It would actually be not ripe.</v>

489
00:22:49.680 --> 00:22:51.471
<v Wolohojian>Be premature.</v>

490
00:22:51.471 --> 00:22:53.040
<v ->(chuckles) I think in that situation</v>

491
00:22:53.040 --> 00:22:57.060
we would be in a issue of important public interest

492
00:22:57.060 --> 00:22:59.610
capable of repetition evading review situations

493
00:22:59.610 --> 00:23:02.190
such that this court ought to reach

494
00:23:02.190 --> 00:23:03.750
the issue about the enforceability-

495
00:23:03.750 --> 00:23:05.546
<v Wendlandt>I don't understand that at all.</v>

496
00:23:05.546 --> 00:23:06.846
How would it evade review?

497
00:23:10.230 --> 00:23:11.550
<v ->You'd have to wait for someone</v>

498
00:23:11.550 --> 00:23:14.830
to actually violate a properly promulgated

499
00:23:15.690 --> 00:23:17.403
guideline or regulation.

500
00:23:19.830 --> 00:23:21.333
<v ->That's right.</v>

501
00:23:22.475 --> 00:23:23.583
You know, I think-

502
00:23:25.620 --> 00:23:28.140
<v ->Is this one of the statutes that passed</v>

503
00:23:28.140 --> 00:23:29.460
with an emergency preamble

504
00:23:29.460 --> 00:23:32.190
that says this is effective immediately or-

505
00:23:32.190 --> 00:23:33.887
<v Haskell>Yes, Your honor, it was.</v>

506
00:23:33.887 --> 00:23:36.723
<v ->So the statute, put the regulations aside,</v>

507
00:23:37.657 --> 00:23:40.311
the statute immediately is in effect, right?

508
00:23:40.311 --> 00:23:42.029
<v Haskell>In January of '21, that's right.</v>

509
00:23:42.029 --> 00:23:43.140
<v ->Okay, so the statute's in effect,</v>

510
00:23:43.140 --> 00:23:47.340
the guidelines maybe have some problems,

511
00:23:47.340 --> 00:23:50.730
although I'm not sure the timing one may be a problem.

512
00:23:50.730 --> 00:23:52.650
And does Milton get to challenge everything

513
00:23:52.650 --> 00:23:55.560
'cause they never submitted anything, right?

514
00:23:55.560 --> 00:23:59.430
Milton only, I understand they can challenge

515
00:23:59.430 --> 00:24:01.920
whether they're an MBTA community.

516
00:24:01.920 --> 00:24:05.170
I understand they can challenge whether they have to submit

517
00:24:07.686 --> 00:24:09.780
a zoning plan, but do they get to challenge

518
00:24:09.780 --> 00:24:11.160
all the niceties of this?

519
00:24:11.160 --> 00:24:15.483
'Cause they didn't submit a plan that may have violated,

520
00:24:16.369 --> 00:24:17.670
you know, one piece of those guidelines.

521
00:24:17.670 --> 00:24:19.443
They just didn't comply.

522
00:24:20.678 --> 00:24:22.680
<v ->Didn't do anything. That's right, Your Honor.</v>

523
00:24:22.680 --> 00:24:24.390
And so in that situation-

524
00:24:24.390 --> 00:24:25.590
<v ->What did they get to challenge</v>

525
00:24:25.590 --> 00:24:29.040
in terms of detail in these guidelines?

526
00:24:29.040 --> 00:24:31.320
<v ->I think that's right, Your Honor. I think that's right.</v>

527
00:24:31.320 --> 00:24:35.340
And in that situation, the mere face of 3A sub a,

528
00:24:35.340 --> 00:24:37.590
which requires municipalities

529
00:24:37.590 --> 00:24:40.830
to maintain a zoning district of this type,

530
00:24:40.830 --> 00:24:42.060
there's no argument at all

531
00:24:42.060 --> 00:24:45.060
that Milton has complied with that certainly on,

532
00:24:45.060 --> 00:24:48.210
again, if we take away the guideline-based deadline

533
00:24:48.210 --> 00:24:51.210
which really gave a lot of leeway to towns,

534
00:24:51.210 --> 00:24:52.290
the statute itself-

535
00:24:52.290 --> 00:24:54.630
<v ->But I think the problem with that argument</v>

536
00:24:54.630 --> 00:24:58.260
is that I think there's a third subsection

537
00:24:58.260 --> 00:25:01.920
that requires the guidelines in order to determine

538
00:25:01.920 --> 00:25:04.980
whether or not a town is in compliance.

539
00:25:04.980 --> 00:25:09.630
So if the guidelines were improperly promulgated,

540
00:25:09.630 --> 00:25:12.153
because in fact they are regulations,

541
00:25:15.122 --> 00:25:17.280
I think the answer to Justice Wolohojian's question

542
00:25:17.280 --> 00:25:20.883
is that this case must be dismissed.

543
00:25:22.168 --> 00:25:25.320
<v ->Your Honor, I don't think that's right.</v>

544
00:25:25.320 --> 00:25:29.250
Section 3Ac does indicate that the agency

545
00:25:29.250 --> 00:25:30.960
should promulgate guidelines

546
00:25:30.960 --> 00:25:34.590
to determine if an MBTA community is in compliance.

547
00:25:34.590 --> 00:25:39.210
But in our view, the best reading of that section

548
00:25:39.210 --> 00:25:42.660
is that the agency is allowed to fill in the details

549
00:25:42.660 --> 00:25:44.970
and resolve the ambiguities in the policy

550
00:25:44.970 --> 00:25:49.970
that expressed in 3A sub a where the Town of Milton,

551
00:25:51.180 --> 00:25:54.000
it's undisputed, it's in the stipulation of facts,

552
00:25:54.000 --> 00:25:55.080
in the record, Your Honor,

553
00:25:55.080 --> 00:25:57.000
where it's undisputed that the Town of Milton

554
00:25:57.000 --> 00:25:59.160
does not have any zoning district

555
00:25:59.160 --> 00:26:01.590
in which multifamily housing is allowed of right.

556
00:26:01.590 --> 00:26:05.643
Regardless of any guidelines, they're violating 3A sub a.

557
00:26:07.593 --> 00:26:09.646
<v ->So you think that 3A sub a</v>

558
00:26:09.646 --> 00:26:13.350
was effective immediately upon passage?

559
00:26:13.350 --> 00:26:16.500
That there was no time for any community

560
00:26:16.500 --> 00:26:20.190
to construct such a district?

561
00:26:20.190 --> 00:26:22.770
<v ->The legislature did not indicate otherwise</v>

562
00:26:22.770 --> 00:26:24.360
in passing the legislation.

563
00:26:24.360 --> 00:26:26.430
That's where the agency comes in.

564
00:26:26.430 --> 00:26:27.750
And as you know, from the record,

565
00:26:27.750 --> 00:26:29.880
very shortly after the legislation was passed,

566
00:26:29.880 --> 00:26:32.520
the agency said, "We're gonna be doing the guidelines.

567
00:26:32.520 --> 00:26:33.810
It's gonna take some time,

568
00:26:33.810 --> 00:26:36.660
because we wanna go through a robust process.

569
00:26:36.660 --> 00:26:37.740
You don't need to do anything

570
00:26:37.740 --> 00:26:39.840
until we pass out the guidelines."

571
00:26:39.840 --> 00:26:42.720
And then the guidelines allowed these,

572
00:26:42.720 --> 00:26:45.000
frankly, generous compliance deadlines

573
00:26:45.000 --> 00:26:46.620
three, four or five years later.

574
00:26:46.620 --> 00:26:48.630
<v ->Are there cases that say guidelines</v>

575
00:26:48.630 --> 00:26:50.190
are enforced like regulations?

576
00:26:50.190 --> 00:26:51.450
I mean, guidelines are normally

577
00:26:51.450 --> 00:26:53.640
sort of background music, right?

578
00:26:53.640 --> 00:26:58.640
They're not sort of specific requirements

579
00:26:58.800 --> 00:27:00.243
like a regulation is.

580
00:27:02.730 --> 00:27:05.730
I understand the legislature said guidelines,

581
00:27:05.730 --> 00:27:08.520
and at least that to me allows a different process,

582
00:27:08.520 --> 00:27:11.760
but it seems like we're making them

583
00:27:11.760 --> 00:27:14.700
into specific requirements

584
00:27:14.700 --> 00:27:16.200
and that just seems counterintuitive,

585
00:27:16.200 --> 00:27:17.370
the meaning of guidelines.

586
00:27:17.370 --> 00:27:21.280
Do we have other cases where we say that a guideline

587
00:27:22.518 --> 00:27:26.070
produces this kind of specific compliance requirements?

588
00:27:26.070 --> 00:27:29.730
<v ->Yeah, so that was really the principal issue.</v>

589
00:27:29.730 --> 00:27:31.503
Setting aside that one footnote,

590
00:27:32.411 --> 00:27:33.244
that was really the principal issue

591
00:27:33.244 --> 00:27:35.141
in Fairhaven Housing Authority.

592
00:27:35.141 --> 00:27:38.222
<v ->Fairhaven had a separate provision in the statute</v>

593
00:27:38.222 --> 00:27:39.420
that allowed enforcement, right?

594
00:27:39.420 --> 00:27:40.290
There was guidelines,

595
00:27:40.290 --> 00:27:43.410
but there was also a separate statutory provision.

596
00:27:43.410 --> 00:27:44.853
<v ->That's right.</v>

597
00:27:44.853 --> 00:27:46.110
What that statute said was that the agency,

598
00:27:46.110 --> 00:27:49.050
it was actually also HLC, was to do guidelines

599
00:27:49.050 --> 00:27:52.050
and had the ability to strike contracts

600
00:27:52.050 --> 00:27:55.053
by the LHAs that were non-compliant with the guidelines.

601
00:27:56.070 --> 00:27:57.570
Our view, and I think this

602
00:27:57.570 --> 00:27:59.250
is what the court held in Fairhaven,

603
00:27:59.250 --> 00:28:00.750
is that, you know, ordinarily,

604
00:28:00.750 --> 00:28:03.240
guidelines, as you say, are background music,

605
00:28:03.240 --> 00:28:05.460
they're subregulatory guidance,

606
00:28:05.460 --> 00:28:08.130
but there's nothing to prevent the legislature

607
00:28:08.130 --> 00:28:10.117
in its legislation from saying,

608
00:28:10.117 --> 00:28:11.790
"Hey, these guidelines are gonna have teeth

609
00:28:11.790 --> 00:28:14.490
and they're going to be specifically enforceable."

610
00:28:14.490 --> 00:28:17.340
In our view, that's what the legislature has done here.

611
00:28:17.340 --> 00:28:22.340
<v ->I'm wondering what guidelines with teeth is.</v>

612
00:28:22.432 --> 00:28:26.490
How is that different than a regulation?

613
00:28:26.490 --> 00:28:30.840
If guidelines are usually background information

614
00:28:30.840 --> 00:28:34.980
and this Town of Milton's lack of compliance

615
00:28:34.980 --> 00:28:38.730
with the guidelines is what the AG is trying to enforce

616
00:28:38.730 --> 00:28:42.390
and thereby calling them guidelines with teeth,

617
00:28:42.390 --> 00:28:43.983
aren't they regulations?

618
00:28:45.570 --> 00:28:47.670
<v ->Our argument, Your Honor, our review,</v>

619
00:28:47.670 --> 00:28:50.520
is that the difference between guidelines

620
00:28:50.520 --> 00:28:52.800
and regulations in this context,

621
00:28:52.800 --> 00:28:55.110
where 3A sub c has indicated

622
00:28:55.110 --> 00:28:59.910
that the guidelines are going to be obligatory for towns,

623
00:28:59.910 --> 00:29:02.490
the difference goes to promulgation method

624
00:29:02.490 --> 00:29:05.970
and that the legislature has contemplated

625
00:29:05.970 --> 00:29:09.540
and condoned non-30A promulgation methods

626
00:29:09.540 --> 00:29:11.730
when it has said guidelines in the past,

627
00:29:11.730 --> 00:29:14.340
and that was what it intended here.

628
00:29:14.340 --> 00:29:15.600
And of course, in any event,

629
00:29:15.600 --> 00:29:18.930
even if the court isn't with us on that,

630
00:29:18.930 --> 00:29:23.930
our view is that what HLC did here was absolutely harmless,

631
00:29:24.660 --> 00:29:27.630
especially harmless to the Town of Milton.

632
00:29:27.630 --> 00:29:29.250
<v ->What's the metric for that?</v>

633
00:29:29.250 --> 00:29:31.830
'Cause the cases that you cite for harmless error

634
00:29:31.830 --> 00:29:35.130
are slightly different than not doing

635
00:29:35.130 --> 00:29:39.810
the small business impact and the other deficiencies

636
00:29:39.810 --> 00:29:42.543
in the way these guidelines were promulgated.

637
00:29:44.040 --> 00:29:45.720
<v ->At the outset, Your Honor,</v>

638
00:29:45.720 --> 00:29:49.110
the only deficiency that we see,

639
00:29:49.110 --> 00:29:50.910
and deficiency probably isn't the right word,

640
00:29:50.910 --> 00:29:52.650
the only way in which this method

641
00:29:52.650 --> 00:29:57.300
did not meet the requirements of Chapter 30A

642
00:29:57.300 --> 00:29:59.220
was the small business impact statement.

643
00:29:59.220 --> 00:30:03.300
Beyond that, HLC went candidly far above and beyond

644
00:30:03.300 --> 00:30:07.020
what it would've needed to do under 30A.

645
00:30:07.020 --> 00:30:10.890
The cases that we cite for that proposition are,

646
00:30:10.890 --> 00:30:14.625
particularly the federal cases, are really on all fours.

647
00:30:14.625 --> 00:30:15.756
<v ->But just to clarify.</v>

648
00:30:15.756 --> 00:30:17.010
You say in your opening brief

649
00:30:17.010 --> 00:30:21.543
that the guidelines were not filed

650
00:30:22.920 --> 00:30:27.183
with the Secretary of State for a notice of public hearing,

651
00:30:28.626 --> 00:30:31.260
notice of proposed adoption and amendment of the regulation,

652
00:30:31.260 --> 00:30:32.910
or the small business impact.

653
00:30:32.910 --> 00:30:35.940
So those three things is what I was referring to.

654
00:30:35.940 --> 00:30:37.847
<v ->I understand. I understand.</v>

655
00:30:37.847 --> 00:30:40.740
And on the requirement of filing with the secretary

656
00:30:40.740 --> 00:30:43.834
and getting it published in the mass register,

657
00:30:43.834 --> 00:30:45.150
what HLC did instead,

658
00:30:45.150 --> 00:30:48.180
as we indicate in the stipulated facts,

659
00:30:48.180 --> 00:30:52.800
was affirmatively sent a copy of the draft guidelines,

660
00:30:52.800 --> 00:30:55.290
not just a summary or a thumbnail,

661
00:30:55.290 --> 00:30:58.170
but the draft guidelines

662
00:30:58.170 --> 00:31:02.193
to every affected MBTA community, including Milton.

663
00:31:03.309 --> 00:31:05.700
And that gave all of the affected municipalities

664
00:31:05.700 --> 00:31:09.000
the opportunity to participate via notice, comment,

665
00:31:09.000 --> 00:31:12.570
these public hearing type meetings that HLC did.

666
00:31:12.570 --> 00:31:15.480
And of course we also see, from the stipulated facts,

667
00:31:15.480 --> 00:31:16.830
that Milton took advantage of that.

668
00:31:16.830 --> 00:31:18.690
They participated, they attended these meetings,

669
00:31:18.690 --> 00:31:20.700
they asked questions, they submitted a comment letter.

670
00:31:20.700 --> 00:31:24.000
In fact, HLC picked up on the comment

671
00:31:24.000 --> 00:31:27.030
in their comment letter and changed the draft guidelines

672
00:31:27.030 --> 00:31:29.343
to reflect the Town of Milton's concerns.

673
00:31:31.770 --> 00:31:34.830
The theme you see in the federal cases

674
00:31:34.830 --> 00:31:37.800
that we cite about harmless error

675
00:31:37.800 --> 00:31:42.660
is did the procedures that the agency actually used

676
00:31:42.660 --> 00:31:45.930
give an opportunity for participation that was equal to

677
00:31:45.930 --> 00:31:49.260
or greater than what would've happened otherwise?

678
00:31:49.260 --> 00:31:53.730
That's the situation with the fishery framework

679
00:31:53.730 --> 00:31:55.680
in Conservation Law Foundation.

680
00:31:55.680 --> 00:31:58.620
It's the situation with the orange growing quotas

681
00:31:58.620 --> 00:32:00.783
in the Ninth Circuit case that we cite.

682
00:32:01.901 --> 00:32:06.210
And that set of facts is on all fours with what we see here.

683
00:32:06.210 --> 00:32:08.790
Milton and other MBTA communities

684
00:32:08.790 --> 00:32:11.921
had every opportunity to participate.

685
00:32:11.921 --> 00:32:12.810
And the proof is kind of in the pudding

686
00:32:12.810 --> 00:32:14.520
that they weren't prejudiced by this.

687
00:32:14.520 --> 00:32:15.630
And this is actually a theme

688
00:32:15.630 --> 00:32:18.843
that the Ninth Circuit case, that we cite, discusses.

689
00:32:20.520 --> 00:32:22.980
Neither Milton nor any other town

690
00:32:22.980 --> 00:32:25.290
has challenged the promulgation method

691
00:32:25.290 --> 00:32:26.550
until they failed to comply

692
00:32:26.550 --> 00:32:28.413
with the mandate.
<v Budd>Attorney Haskell,</v>

693
00:32:28.413 --> 00:32:29.246
can I ask you a question

694
00:32:29.246 --> 00:32:30.960
separate from that, just about the-

695
00:32:30.960 --> 00:32:32.280
<v ->Please.</v>

696
00:32:32.280 --> 00:32:34.470
<v ->additional funding sources</v>

697
00:32:34.470 --> 00:32:38.250
that the agency sort of added on

698
00:32:38.250 --> 00:32:40.200
that they would take into consideration.

699
00:32:40.200 --> 00:32:42.639
Is that something that they can do?

700
00:32:42.639 --> 00:32:43.950
Can the agency do that?
(Haskell laughs)

701
00:32:43.950 --> 00:32:47.250
<v ->So, Your Honor, as we mentioned in our apply brief,</v>

702
00:32:47.250 --> 00:32:52.020
we're concerned with the adequacy of the briefing on this.

703
00:32:52.020 --> 00:32:53.820
Each of those 13 programs

704
00:32:53.820 --> 00:32:57.660
is subject to its own enabling legislation or policy,

705
00:32:57.660 --> 00:33:00.420
which we haven't seen the town unpack.

706
00:33:00.420 --> 00:33:01.680
And there's also no allegation

707
00:33:01.680 --> 00:33:05.370
that the town was actually affected by any of those.

708
00:33:05.370 --> 00:33:06.810
I've looked into them myself.

709
00:33:06.810 --> 00:33:08.880
What I can tell you about those programs

710
00:33:08.880 --> 00:33:11.640
is that they're discretionary.

711
00:33:11.640 --> 00:33:14.790
Many, or most of them, have language

712
00:33:14.790 --> 00:33:16.230
in their enabling authority

713
00:33:16.230 --> 00:33:18.600
that allows the program's administrator

714
00:33:18.600 --> 00:33:21.060
to impose other conditions

715
00:33:21.060 --> 00:33:24.390
in that person or that agency's discretion.

716
00:33:24.390 --> 00:33:26.970
In addition, a number of those programs

717
00:33:26.970 --> 00:33:29.550
actually have as a condition of eligibility,

718
00:33:29.550 --> 00:33:30.990
and it's not uncommon for the state

719
00:33:30.990 --> 00:33:33.990
to impose this condition as a matter of discretion either,

720
00:33:33.990 --> 00:33:36.120
they have as a condition of eligibility

721
00:33:36.120 --> 00:33:38.130
that the applicant needs to certify

722
00:33:38.130 --> 00:33:39.840
that they comply with state law.

723
00:33:39.840 --> 00:33:43.680
And so that kind of bakes in this idea that,

724
00:33:43.680 --> 00:33:45.480
hey, you aren't complying with 3A sub a,

725
00:33:45.480 --> 00:33:47.220
you can't certify that you're eligible

726
00:33:47.220 --> 00:33:48.900
for these other opportunities.

727
00:33:48.900 --> 00:33:51.210
But the bottom line is that they're discretionary.

728
00:33:51.210 --> 00:33:53.190
<v Budd>Okay.</v>
<v ->I have one last question.</v>

729
00:33:53.190 --> 00:33:56.113
Legislative history, neither,

730
00:33:56.113 --> 00:33:57.570
I mean you both have briefed this intensely,

731
00:33:57.570 --> 00:33:59.850
but the only discussion of legislative history

732
00:33:59.850 --> 00:34:02.280
is in another amicus brief

733
00:34:02.280 --> 00:34:05.030
'cause the legislative history is not informative here?

734
00:34:07.050 --> 00:34:09.570
I mean, given how significant this legislation was,

735
00:34:09.570 --> 00:34:12.319
I assume there was debates and other.

736
00:34:12.319 --> 00:34:13.440
Do we have any legislative history here-

737
00:34:13.440 --> 00:34:14.580
<v ->We do have a little bit</v>

738
00:34:14.580 --> 00:34:16.800
of legislative history, Your Honor,

739
00:34:16.800 --> 00:34:21.060
and we cited in our blue brief.

740
00:34:21.060 --> 00:34:22.350
What we have in particular

741
00:34:22.350 --> 00:34:24.360
is a statement made by Senator Crighton

742
00:34:24.360 --> 00:34:26.190
when he was introducing the amendment

743
00:34:26.190 --> 00:34:29.220
that ultimately became Section 3A.

744
00:34:29.220 --> 00:34:30.600
We also have a press release

745
00:34:30.600 --> 00:34:32.550
that Senate President Spilker issued

746
00:34:32.550 --> 00:34:36.030
immediately after the legislation was passed.

747
00:34:36.030 --> 00:34:37.830
And the significance of both of those

748
00:34:37.830 --> 00:34:41.040
is that they confirm that this is a requirement,

749
00:34:41.040 --> 00:34:44.550
this is mandatory, this is something that towns must do.

750
00:34:44.550 --> 00:34:47.327
Both of those legislators spoke

751
00:34:47.327 --> 00:34:51.750
about requiring towns to zone under this legislation.

752
00:34:51.750 --> 00:34:53.503
<v Kafker>But they don't address</v>

753
00:34:53.503 --> 00:34:54.900
the remedy issue beyond that.

754
00:34:54.900 --> 00:34:55.740
<v ->I haven't seen anything</v>

755
00:34:55.740 --> 00:34:58.350
to address the remedy issue, Your Honor.

756
00:34:58.350 --> 00:34:59.850
<v Budd>Okay, thank you very much.</v>

757
00:34:59.850 --> 00:35:00.683
<v ->Thank you.</v>

758
00:35:03.425 --> 00:35:04.761
<v ->Attorney Martin.</v>

759
00:35:04.761 --> 00:35:06.060
<v ->(clears throat) Oh, good morning, Your Honors,</v>

760
00:35:06.060 --> 00:35:07.830
and may it please the court.

761
00:35:07.830 --> 00:35:09.540
Your Honors, I'd like to start with the question

762
00:35:09.540 --> 00:35:11.100
of the Attorney General's authority

763
00:35:11.100 --> 00:35:13.650
even to bring this action to compel compliance

764
00:35:13.650 --> 00:35:15.660
with Section 3A.

765
00:35:15.660 --> 00:35:17.370
Under this court's precedence,

766
00:35:17.370 --> 00:35:19.620
the Attorney General lacks the ability to do so

767
00:35:19.620 --> 00:35:21.120
because the statute specifies

768
00:35:21.120 --> 00:35:23.940
a different consequence for non-compliance.

769
00:35:23.940 --> 00:35:25.350
The AG seems to be arguing

770
00:35:25.350 --> 00:35:27.030
that she can always seek injunctive relief

771
00:35:27.030 --> 00:35:28.860
in addition to statutory remedies

772
00:35:28.860 --> 00:35:32.160
unless a particular statute foreclosures her from doing so.

773
00:35:32.160 --> 00:35:33.000
But that decision

774
00:35:33.000 --> 00:35:35.790
ignores the relevant precedence from this court,

775
00:35:35.790 --> 00:35:37.560
such as Attorney General versus Williams,

776
00:35:37.560 --> 00:35:39.480
Attorney General versus Everett,

777
00:35:39.480 --> 00:35:40.710
and the relevant language

778
00:35:40.710 --> 00:35:42.630
in Attorney General versus Pitcher-

779
00:35:42.630 --> 00:35:45.210
<v ->What about 40A, Section 7?</v>

780
00:35:45.210 --> 00:35:47.520
40A, Section 7,

781
00:35:47.520 --> 00:35:51.540
I mean this statute is jammed right into 40A.

782
00:35:51.540 --> 00:35:56.490
40A, Section 7 has empowering language.

783
00:35:56.490 --> 00:35:58.500
Why can't the AG enforce that?

784
00:35:58.500 --> 00:36:00.720
<v ->'Cause that language does not refer to an action</v>

785
00:36:00.720 --> 00:36:03.090
by the Attorney General to challenge zoning bylaws.

786
00:36:03.090 --> 00:36:05.400
There used to be language in Section 40A,

787
00:36:05.400 --> 00:36:07.930
which expressly provided for the Attorney General

788
00:36:09.001 --> 00:36:11.610
to bring an action challenging a town zoning bylaw,

789
00:36:11.610 --> 00:36:14.730
and that language was removed by the legislature.

790
00:36:14.730 --> 00:36:17.100
The current language in Section Seven-

791
00:36:17.100 --> 00:36:20.070
<v ->So the AG, in your view, has no power whatsoever</v>

792
00:36:20.070 --> 00:36:25.070
to enforce 40A, Section 7 language.

793
00:36:25.260 --> 00:36:27.270
They're out of the zoning business.

794
00:36:27.270 --> 00:36:29.100
<v ->I mean, in our brief, Your Honor,</v>

795
00:36:29.100 --> 00:36:31.710
quote the Attorney General in a letter

796
00:36:31.710 --> 00:36:32.767
dealing with this issue, saying,

797
00:36:32.767 --> 00:36:34.770
"We do not enforce Chapter 40A."

798
00:36:34.770 --> 00:36:36.300
<v ->In individual fights.</v>

799
00:36:36.300 --> 00:36:37.980
But this isn't an individual fight,

800
00:36:37.980 --> 00:36:40.080
this is a societal issue.

801
00:36:40.080 --> 00:36:43.590
<v ->So, Your Honor, Section 40A, Section 22</v>

802
00:36:43.590 --> 00:36:45.457
used to specifically say,

803
00:36:45.457 --> 00:36:47.190
"If the Attorney General questions

804
00:36:47.190 --> 00:36:49.200
the validity of any ordinance or bylaw,

805
00:36:49.200 --> 00:36:50.070
then the Attorney General

806
00:36:50.070 --> 00:36:52.530
can bring an action challenging it,

807
00:36:52.530 --> 00:36:54.570
challenging it for declaratory relief

808
00:36:54.570 --> 00:36:56.190
to determine the validity of it."

809
00:36:56.190 --> 00:36:58.320
That language appeared right next to the language

810
00:36:58.320 --> 00:37:00.090
that's currently in Section Seven.

811
00:37:00.090 --> 00:37:02.580
It would've been surplusage if the language in Section Seven

812
00:37:02.580 --> 00:37:04.860
already provided for that kind of action.

813
00:37:04.860 --> 00:37:06.750
The language was removed by the legislature.

814
00:37:06.750 --> 00:37:08.850
And this court has said numerous times,

815
00:37:08.850 --> 00:37:12.150
and just to pick one case, Commonwealth versus Benefield,

816
00:37:12.150 --> 00:37:16.180
it would violate basic principles of statutory construction

817
00:37:17.160 --> 00:37:19.500
to keep reading into a statute

818
00:37:19.500 --> 00:37:22.470
language that was expressly removed by the legislature.

819
00:37:22.470 --> 00:37:26.070
<v ->Can you respond then to the AG's response</v>

820
00:37:26.070 --> 00:37:28.080
to your argument to that effect?

821
00:37:28.080 --> 00:37:30.240
Namely that what happened

822
00:37:30.240 --> 00:37:34.440
when that particular provision was taken out,

823
00:37:34.440 --> 00:37:39.330
was the replacement of an ex post challenge to a zoning law

824
00:37:39.330 --> 00:37:43.140
with the ex-ante provision?

825
00:37:43.140 --> 00:37:44.310
<v ->I believe the ex-ante language</v>

826
00:37:44.310 --> 00:37:45.930
was already there, Your Honor.

827
00:37:45.930 --> 00:37:48.450
But another point I wanna make about Section Seven

828
00:37:48.450 --> 00:37:51.360
is that Section Seven has numerous requirements

829
00:37:51.360 --> 00:37:52.460
for the action, right?

830
00:37:53.437 --> 00:37:55.530
It has the jurisdictional requirement

831
00:37:55.530 --> 00:37:57.120
that Your Honor already mentioned.

832
00:37:57.120 --> 00:37:59.040
In addition, Section Seven talks about

833
00:37:59.040 --> 00:38:01.530
providing notice of any action

834
00:38:01.530 --> 00:38:04.830
to at least one of the owners of the parcel in question.

835
00:38:04.830 --> 00:38:08.700
Section Seven is all about violations of zoning bylaws,

836
00:38:08.700 --> 00:38:11.640
or Chapter 40A, by the owner of a parcel.

837
00:38:11.640 --> 00:38:13.020
It's not about the Attorney General

838
00:38:13.020 --> 00:38:14.070
bringing the kind of action

839
00:38:14.070 --> 00:38:16.500
that the Attorney General used to be able to bring

840
00:38:16.500 --> 00:38:19.470
under the language that was removed from the statute.

841
00:38:19.470 --> 00:38:21.840
In addition, we have a specific statute here,

842
00:38:21.840 --> 00:38:25.235
and usually specific statutes govern over general statutes.

843
00:38:25.235 --> 00:38:26.457
<v ->We have a specific statute</v>

844
00:38:26.457 --> 00:38:29.163
that provides basically no remedy, right?

845
00:38:30.462 --> 00:38:31.710
It's a zeroed...

846
00:38:31.710 --> 00:38:33.180
I mean, what's your reaction to that?

847
00:38:33.180 --> 00:38:34.923
You've got this massive,

848
00:38:35.890 --> 00:38:38.040
this is a significant piece of legislation, right?

849
00:38:38.040 --> 00:38:39.550
We're dealing

850
00:38:39.550 --> 00:38:41.130
with one of the biggest problems in Massachusetts.

851
00:38:41.130 --> 00:38:43.200
And the legislature's only remedy

852
00:38:43.200 --> 00:38:45.990
if you don't comply with their shall language

853
00:38:45.990 --> 00:38:48.630
is three minor grant programs

854
00:38:48.630 --> 00:38:50.910
that most towns haven't gotten money on.

855
00:38:50.910 --> 00:38:52.380
That just seems odd.
<v ->So, Your Honor,</v>

856
00:38:52.380 --> 00:38:53.370
a few points here.

857
00:38:53.370 --> 00:38:55.890
The first is that this court has said many times,

858
00:38:55.890 --> 00:38:58.470
including in cases involving the Attorney General,

859
00:38:58.470 --> 00:39:00.600
like Williams and Pitcher,

860
00:39:00.600 --> 00:39:02.250
as well as the Everett case, which I'd like to get to

861
00:39:02.250 --> 00:39:05.100
'cause I think it's the case which is closest to this one,

862
00:39:05.100 --> 00:39:09.300
that when the legislature creates a statutory duty or right,

863
00:39:09.300 --> 00:39:10.770
then the legislature gets to decide

864
00:39:10.770 --> 00:39:13.653
what the consequence will be for non-compliance.

865
00:39:14.820 --> 00:39:18.120
Here the legislature, having created this zoning obligation

866
00:39:18.120 --> 00:39:21.509
in the MBTA Communities Act, could put a value on it.

867
00:39:21.509 --> 00:39:22.342
In putting a value on it,

868
00:39:22.342 --> 00:39:24.270
the legislature could take into account

869
00:39:24.270 --> 00:39:26.850
the benefits of increased multifamily housing

870
00:39:26.850 --> 00:39:29.160
near certain MBTA stations.

871
00:39:29.160 --> 00:39:30.180
It could also take into account

872
00:39:30.180 --> 00:39:33.630
the fact that increased density is not always a good thing.

873
00:39:33.630 --> 00:39:35.370
It could take into account the value judgment

874
00:39:35.370 --> 00:39:37.230
that's in our state constitution

875
00:39:37.230 --> 00:39:38.827
under the Home Rule amendment.

876
00:39:38.827 --> 00:39:40.712
<v ->So they only cared...</v>

877
00:39:40.712 --> 00:39:41.640
I mean, I'm trying to understand

878
00:39:41.640 --> 00:39:42.660
where you're going with this.

879
00:39:42.660 --> 00:39:46.080
So they created instead of a stick a twig to hit at it.

880
00:39:46.080 --> 00:39:47.700
<v ->Well, Your Honor, it's not a twig.</v>

881
00:39:47.700 --> 00:39:49.770
I mean, dozens of communities

882
00:39:49.770 --> 00:39:51.660
have already brought themselves into compliance.

883
00:39:51.660 --> 00:39:54.427
Other communities have not yet hit the deadline,

884
00:39:54.427 --> 00:39:55.260
and very well may.

885
00:39:55.260 --> 00:39:56.850
They've already withheld a grant

886
00:39:56.850 --> 00:39:59.340
of over $100,000 from the Town of Milton

887
00:39:59.340 --> 00:40:01.350
based upon failure to comply.

888
00:40:01.350 --> 00:40:03.843
This is in record appendix 2, page 412.

889
00:40:04.920 --> 00:40:06.400
And at the end of the day,

890
00:40:06.400 --> 00:40:07.920
again, the legislature gets to decide the value here,

891
00:40:07.920 --> 00:40:10.110
and we know that they're laser-focused

892
00:40:10.110 --> 00:40:12.150
on what the remedy should be.

893
00:40:12.150 --> 00:40:13.740
Because, originally, the statute

894
00:40:13.740 --> 00:40:17.730
provided for three sources of grant funding to be withheld

895
00:40:17.730 --> 00:40:18.900
if you weren't in compliance.

896
00:40:18.900 --> 00:40:21.150
The legislature went back a couple of years later

897
00:40:21.150 --> 00:40:22.830
and increased that to four, right?

898
00:40:22.830 --> 00:40:24.720
They're focused on this issue.

899
00:40:24.720 --> 00:40:26.190
And they've decided that weighing

900
00:40:26.190 --> 00:40:29.460
all of the different values that are at stake here,

901
00:40:29.460 --> 00:40:31.110
that's the appropriate remedy.

902
00:40:31.110 --> 00:40:34.193
If they wanted to provide for something more, they could've.

903
00:40:34.193 --> 00:40:36.251
They could've provided for more financial penalties.

904
00:40:36.251 --> 00:40:37.560
They could've provided for injunctive relief,

905
00:40:37.560 --> 00:40:40.230
as they have done, for example, in Chapter 40B,

906
00:40:40.230 --> 00:40:41.910
the Fair housing statute,

907
00:40:41.910 --> 00:40:43.770
which allows the Executive Office of Housing

908
00:40:43.770 --> 00:40:47.250
and Livable Communities to issue orders

909
00:40:47.250 --> 00:40:49.140
that are enforced in equity, it didn't do that.

910
00:40:49.140 --> 00:40:53.040
<v ->That's assuming they didn't think that 40A, Section 7</v>

911
00:40:53.040 --> 00:40:56.231
or Chapter 12, Section 10

912
00:40:56.231 --> 00:40:58.403
provided the ability to do that, right?

913
00:40:58.403 --> 00:41:02.430
We have to conclude that, right?

914
00:41:02.430 --> 00:41:07.430
'Cause taking care of their own money directly

915
00:41:07.650 --> 00:41:09.390
makes some sense, right?

916
00:41:09.390 --> 00:41:11.640
They're saying, "Okay, money that we're providing

917
00:41:11.640 --> 00:41:14.220
to these agencies should not go to this,"

918
00:41:14.220 --> 00:41:17.130
but they may think there are other existing ways

919
00:41:17.130 --> 00:41:18.480
of correcting the problem, right?

920
00:41:18.480 --> 00:41:19.500
<v ->If they thought, Your Honor,</v>

921
00:41:19.500 --> 00:41:21.210
that by passing this statute

922
00:41:21.210 --> 00:41:24.990
with a specific statutory consequence for non-compliance,

923
00:41:24.990 --> 00:41:26.430
they were allowing the Attorney General

924
00:41:26.430 --> 00:41:28.380
to bring injunctive relief, then they would be ignoring

925
00:41:28.380 --> 00:41:30.360
all of this court's precedence to the contrary.

926
00:41:30.360 --> 00:41:31.760
<v ->Let me ask you about that.</v>

927
00:41:33.142 --> 00:41:35.853
Justice Kafker mentioned Chapter 12, Section 10.

928
00:41:37.231 --> 00:41:39.330
Can you address the Attorney General's office's

929
00:41:39.330 --> 00:41:42.330
civil enforcement authority pursuant to that statute?

930
00:41:42.330 --> 00:41:44.190
I'm looking at the language,

931
00:41:44.190 --> 00:41:47.400
including on the intake competition,

932
00:41:47.400 --> 00:41:51.000
which, to me, denotes that there are other things

933
00:41:51.000 --> 00:41:52.567
other than that.

934
00:41:52.567 --> 00:41:53.487
So could you address that, please?

935
00:41:53.487 --> 00:41:54.407
<v ->Yeah, I mean, the major problem</v>

936
00:41:54.407 --> 00:41:55.693
with the Attorney General's argument

937
00:41:55.693 --> 00:41:57.393
under Chapter 12, Section 10

938
00:41:57.393 --> 00:41:59.233
is that this court has never held

939
00:41:59.233 --> 00:42:01.937
that that section overrides the general rule

940
00:42:01.937 --> 00:42:04.440
that when a statute provides for a specific remedy,

941
00:42:04.440 --> 00:42:06.300
then that remedy is ordinarily exclusive,

942
00:42:06.300 --> 00:42:08.190
which, again, this court has said in cases

943
00:42:08.190 --> 00:42:09.870
involving the Attorney General,

944
00:42:09.870 --> 00:42:11.700
like Williams and Everett and Pitcher.

945
00:42:11.700 --> 00:42:13.080
And I wanna focus on the Everett case

946
00:42:13.080 --> 00:42:14.520
because we talked about the Everett case

947
00:42:14.520 --> 00:42:15.580
in our response brief

948
00:42:16.624 --> 00:42:18.270
and the Attorney General did not talk about it in her reply.

949
00:42:18.270 --> 00:42:20.310
She didn't mention any of the cases

950
00:42:20.310 --> 00:42:21.480
that this court has issued

951
00:42:21.480 --> 00:42:23.400
dealing with the Attorney General's authority

952
00:42:23.400 --> 00:42:26.220
when a statute provides a specific remedy.

953
00:42:26.220 --> 00:42:29.070
In Everett, the Attorney General brought a suit in equity

954
00:42:29.070 --> 00:42:31.143
challenging the local election result.

955
00:42:31.980 --> 00:42:34.170
You know, saying that they were balloting irregularities.

956
00:42:34.170 --> 00:42:35.809
That's an important issue.

957
00:42:35.809 --> 00:42:38.253
We want elections that are not tainted by fraud.

958
00:42:39.360 --> 00:42:42.510
The Attorney General wanted to have the election voided.

959
00:42:42.510 --> 00:42:44.790
But by statute, in the election laws,

960
00:42:44.790 --> 00:42:45.930
the legislature had provided

961
00:42:45.930 --> 00:42:50.640
a different administrative process for ballot fights.

962
00:42:50.640 --> 00:42:52.980
The Attorney General, in briefing in that case,

963
00:42:52.980 --> 00:42:55.890
made all the same arguments about Chapter 12

964
00:42:55.890 --> 00:42:57.785
and common law authority

965
00:42:57.785 --> 00:42:59.340
that the Attorney General is making in this case.

966
00:42:59.340 --> 00:43:01.080
And this is what the court said in response,

967
00:43:01.080 --> 00:43:02.940
in rejecting that argument:

968
00:43:02.940 --> 00:43:05.250
The conduct of elections and election contests

969
00:43:05.250 --> 00:43:07.710
is controlled entirely by statute.

970
00:43:07.710 --> 00:43:10.770
Unless the legislature has granted to the Attorney General,

971
00:43:10.770 --> 00:43:13.680
the right to the relief sought, he is not entitled to it

972
00:43:13.680 --> 00:43:15.780
and the court may not grant it.

973
00:43:15.780 --> 00:43:17.340
Now, state control over zoning,

974
00:43:17.340 --> 00:43:19.020
just like state control over elections,

975
00:43:19.020 --> 00:43:21.390
is entirely the creature of statute.

976
00:43:21.390 --> 00:43:23.580
Under the Home Rule amendment, unless by statute

977
00:43:23.580 --> 00:43:25.890
the legislature has provided something differently,

978
00:43:25.890 --> 00:43:28.650
cities and towns get to control their own zoning.

979
00:43:28.650 --> 00:43:31.380
Having created the MBTA Community Act's

980
00:43:31.380 --> 00:43:33.540
zoning requirement by statute,

981
00:43:33.540 --> 00:43:35.670
the legislature had the ability to decide

982
00:43:35.670 --> 00:43:37.380
how that would be enforced.

983
00:43:37.380 --> 00:43:39.360
And it chose an administrative process.

984
00:43:39.360 --> 00:43:41.100
It chose having the relevant state agencies

985
00:43:41.100 --> 00:43:43.980
withhold certain grant funding from cities and towns

986
00:43:43.980 --> 00:43:46.110
until they brought themselves into compliance.

987
00:43:46.110 --> 00:43:47.220
The Attorney General's argument

988
00:43:47.220 --> 00:43:49.470
that she can ignore that legislative remedy,

989
00:43:49.470 --> 00:43:50.700
that legislative choice of remedy

990
00:43:50.700 --> 00:43:52.920
and go directly to equitable relief

991
00:43:52.920 --> 00:43:56.430
just violates Williams, Everett,

992
00:43:56.430 --> 00:43:58.170
the relevant language in-

993
00:43:58.170 --> 00:43:59.820
<v Justice 1>What about the Krinke case</v>

994
00:43:59.820 --> 00:44:01.590
<v Justice 2>Or the City of Boston case?</v>

995
00:44:01.590 --> 00:44:04.860
<v ->So in those cases, there's usually a statute</v>

996
00:44:04.860 --> 00:44:07.590
which provides specifically for injunctive relief.

997
00:44:07.590 --> 00:44:10.620
So Krinke involved Chapter 93 and Chapter 93A,

998
00:44:10.620 --> 00:44:13.440
both of which anticipate injunctive relief.

999
00:44:13.440 --> 00:44:17.040
The City of Boston case provided for the Board of Education

1000
00:44:17.040 --> 00:44:19.320
to send the matter to the Attorney General

1001
00:44:19.320 --> 00:44:21.780
for action to obtain compliance.

1002
00:44:21.780 --> 00:44:24.930
The Hudson case was mentioned by my friend.

1003
00:44:24.930 --> 00:44:26.635
The statute in the Hudson case

1004
00:44:26.635 --> 00:44:29.130
said that the SJC or the superior court

1005
00:44:29.130 --> 00:44:30.810
shall have jurisdiction and equity

1006
00:44:30.810 --> 00:44:32.640
to enforce any such order.

1007
00:44:32.640 --> 00:44:34.620
There's always an underlying statute

1008
00:44:34.620 --> 00:44:38.400
which anticipates suit being brought to obtain compliance.

1009
00:44:38.400 --> 00:44:40.860
None of those cases involved what we have here,

1010
00:44:40.860 --> 00:44:42.270
which is a statute which provides

1011
00:44:42.270 --> 00:44:44.310
for a financial consequence,

1012
00:44:44.310 --> 00:44:46.140
but not any kind of equitable relief

1013
00:44:46.140 --> 00:44:48.510
or order to obtain compliance.

1014
00:44:48.510 --> 00:44:50.640
<v ->But in the Everett case, didn't the AG</v>

1015
00:44:50.640 --> 00:44:53.997
still have the ability to bring injunctive relief

1016
00:44:53.997 --> 00:44:57.000
and just use the wrong process?

1017
00:44:57.000 --> 00:44:57.870
<v ->Well, no, Your Honor,</v>

1018
00:44:57.870 --> 00:45:02.070
there'd be a fight before the Board of Registrars.

1019
00:45:02.070 --> 00:45:03.360
The Board of Registrars would sort out

1020
00:45:03.360 --> 00:45:06.120
what the election result should've been.

1021
00:45:06.120 --> 00:45:07.230
And then someone could challenge

1022
00:45:07.230 --> 00:45:09.210
the Board of Registrar's determination,

1023
00:45:09.210 --> 00:45:10.680
but that would not be the Attorney General

1024
00:45:10.680 --> 00:45:13.620
bringing an action against town officials

1025
00:45:13.620 --> 00:45:15.600
to have the election results changed

1026
00:45:15.600 --> 00:45:19.290
or a new election conducted.

1027
00:45:19.290 --> 00:45:20.490
That's certainly not what the court said

1028
00:45:20.490 --> 00:45:21.603
in the Everett case.

1029
00:45:22.650 --> 00:45:24.030
The court has reached the same result

1030
00:45:24.030 --> 00:45:26.610
in cases not involving the Attorney General as well,

1031
00:45:26.610 --> 00:45:28.680
but other government enforcement officials.

1032
00:45:28.680 --> 00:45:31.233
And if you look at cases we cite in our brief,

1033
00:45:32.164 --> 00:45:34.048
like the Cosmopolitan Trust case,

1034
00:45:34.048 --> 00:45:35.550
Lexington versus Suburban Land Company,

1035
00:45:35.550 --> 00:45:37.140
this court has consistently said

1036
00:45:37.140 --> 00:45:40.890
that when the legislature creates a new statutory regime

1037
00:45:40.890 --> 00:45:43.500
and provides specifically what the consequences will be

1038
00:45:43.500 --> 00:45:46.320
for someone who's not in compliance with the statute,

1039
00:45:46.320 --> 00:45:48.240
then those are exclusive remedies

1040
00:45:48.240 --> 00:45:50.823
and they displace common law remedies.

1041
00:45:53.048 --> 00:45:54.990
I do wanna go back again to the paper tiger point,

1042
00:45:54.990 --> 00:45:56.673
'cause it's an important point.

1043
00:45:57.840 --> 00:45:59.400
You know, we already mentioned that the legislature

1044
00:45:59.400 --> 00:46:02.490
gets to decide the value here.

1045
00:46:02.490 --> 00:46:04.560
If the legislature thought that harm,

1046
00:46:04.560 --> 00:46:07.020
the harm from not complying with the statute,

1047
00:46:07.020 --> 00:46:09.060
were effectively irreparable,

1048
00:46:09.060 --> 00:46:12.900
then the legislature could have specifically provided

1049
00:46:12.900 --> 00:46:14.400
for injunctive relief as it has done

1050
00:46:14.400 --> 00:46:15.630
in so many other statutes,

1051
00:46:15.630 --> 00:46:17.970
such as the statutes we cite in our brief.

1052
00:46:17.970 --> 00:46:19.050
They could always go back.

1053
00:46:19.050 --> 00:46:21.827
This case has been pending for almost a year-

1054
00:46:21.827 --> 00:46:22.950
<v ->'Cause 40B is the closest analogy,</v>

1055
00:46:22.950 --> 00:46:26.430
how is the AG empowered under 40B

1056
00:46:26.430 --> 00:46:28.470
and how to contrast with here?

1057
00:46:28.470 --> 00:46:31.050
<v ->So under 40B, if an applicant</v>

1058
00:46:31.050 --> 00:46:35.013
challenges a permitting decision by a local government,

1059
00:46:36.240 --> 00:46:38.730
they can bring a complaint to the Executive Office

1060
00:46:38.730 --> 00:46:40.470
of Housing and Livable Communities.

1061
00:46:40.470 --> 00:46:42.690
A committee in the executive office

1062
00:46:42.690 --> 00:46:46.380
will review the decision made by the local government,

1063
00:46:46.380 --> 00:46:48.330
they can then decide to overturn it.

1064
00:46:48.330 --> 00:46:50.670
<v ->But is there any expressed reference,</v>

1065
00:46:50.670 --> 00:46:53.100
'cause the AG, for years and years and years,

1066
00:46:53.100 --> 00:46:54.510
is enforcing 40B.

1067
00:46:54.510 --> 00:46:57.120
We see them all the time up here,

1068
00:46:57.120 --> 00:46:59.373
'cause towns are not complying with 40B.

1069
00:47:01.050 --> 00:47:03.180
Is the AG specifically referenced in 40B

1070
00:47:03.180 --> 00:47:06.120
or is it the same idea that you have an agency

1071
00:47:06.120 --> 00:47:08.100
that has some responsibility

1072
00:47:08.100 --> 00:47:10.980
and then the AG comes in and enforces those rights?

1073
00:47:10.980 --> 00:47:11.910
<v ->It's the latter, Your Honor.</v>

1074
00:47:11.910 --> 00:47:14.640
Under Section 23 in 40B,

1075
00:47:14.640 --> 00:47:16.350
the executive office shall have the power

1076
00:47:16.350 --> 00:47:19.620
to enforce orders of the committee at law or in equity.

1077
00:47:19.620 --> 00:47:21.300
And then presumably the Attorney General

1078
00:47:21.300 --> 00:47:23.225
represents the executive office.

1079
00:47:23.225 --> 00:47:24.690
<v ->So the AG is expressively referenced there,</v>

1080
00:47:24.690 --> 00:47:26.340
but we derive their power

1081
00:47:26.340 --> 00:47:29.085
from the power of another agency, right?

1082
00:47:29.085 --> 00:47:31.324
<v ->To obtain equitable relief, right.</v>

1083
00:47:31.324 --> 00:47:32.640
And they're effectively the lawyer

1084
00:47:32.640 --> 00:47:34.500
for the executive office in court

1085
00:47:34.500 --> 00:47:36.750
the way they ordinarily are for agencies.

1086
00:47:36.750 --> 00:47:41.040
<v ->So let's assume that the AG has the power</v>

1087
00:47:41.040 --> 00:47:44.040
to bring this action for injunctive relief,

1088
00:47:44.040 --> 00:47:48.870
can you address the harmless error question

1089
00:47:48.870 --> 00:47:51.120
on the promulgation of the guidelines?

1090
00:47:51.120 --> 00:47:53.820
<v ->Right, well, there are some big problems</v>

1091
00:47:53.820 --> 00:47:55.320
with the harmless error argument.

1092
00:47:55.320 --> 00:47:57.330
They've referenced federal case law.

1093
00:47:57.330 --> 00:48:00.000
The state APA and the federal APA

1094
00:48:00.000 --> 00:48:02.040
differ in some important ways.

1095
00:48:02.040 --> 00:48:04.860
And one way is that, under state law, there's a requirement

1096
00:48:04.860 --> 00:48:06.990
to have a small business impact statement

1097
00:48:06.990 --> 00:48:10.320
as well as a public and private fiscal impact analysis.

1098
00:48:10.320 --> 00:48:12.420
Those are two separate requirements.

1099
00:48:12.420 --> 00:48:14.193
Under Section Five of our APA,

1100
00:48:15.090 --> 00:48:16.710
the legislature was quite clear

1101
00:48:16.710 --> 00:48:18.783
that a law cannot be effective.

1102
00:48:19.680 --> 00:48:24.680
No law, sorry, no rule or regulation shall be effective

1103
00:48:25.800 --> 00:48:28.350
until the small business impact statement has been filed,

1104
00:48:28.350 --> 00:48:31.020
and until the public and private fiscal analysis

1105
00:48:31.020 --> 00:48:31.853
have been filed.

1106
00:48:33.070 --> 00:48:34.350
The Section Five also says

1107
00:48:34.350 --> 00:48:37.020
that compliance with rules and regulations

1108
00:48:37.020 --> 00:48:38.940
promulgated by the Secretary of State

1109
00:48:38.940 --> 00:48:41.580
to govern the rulemaking process is a condition

1110
00:48:41.580 --> 00:48:44.460
precedent to the effectiveness of any regulations.

1111
00:48:44.460 --> 00:48:46.560
So where they've admitted that they have not filed

1112
00:48:46.560 --> 00:48:48.360
the small business impact statement,

1113
00:48:48.360 --> 00:48:50.520
then, by the plain language of Section Five,

1114
00:48:50.520 --> 00:48:52.230
it's not effective.
<v ->Are there any cases,</v>

1115
00:48:52.230 --> 00:48:53.250
I mean, I get it.

1116
00:48:53.250 --> 00:48:58.020
We don't want agencies going outside of 30A

1117
00:48:58.020 --> 00:49:00.870
and passing things that are the equivalent of regulations.

1118
00:49:00.870 --> 00:49:05.370
But when the legislature tells them to pass guidelines,

1119
00:49:05.370 --> 00:49:07.890
I mean, isn't that different?

1120
00:49:07.890 --> 00:49:09.630
Are there any cases like that

1121
00:49:09.630 --> 00:49:13.170
where they're doing exactly what the legislature says

1122
00:49:13.170 --> 00:49:15.483
and we're finding a 30A violation?

1123
00:49:17.074 --> 00:49:17.907
<v ->There are two cases.</v>

1124
00:49:17.907 --> 00:49:20.430
They say that when the legislature says guidelines,

1125
00:49:20.430 --> 00:49:22.440
they mean something less than regulations.

1126
00:49:22.440 --> 00:49:23.910
That's just not correct.

1127
00:49:23.910 --> 00:49:25.470
So first-
<v ->I mean,</v>

1128
00:49:25.470 --> 00:49:27.150
I've read thousands of statutes.

1129
00:49:27.150 --> 00:49:31.170
They know how to say the agency shall pass regulations.

1130
00:49:31.170 --> 00:49:34.500
They use this language much less frequently,

1131
00:49:34.500 --> 00:49:36.570
this idea of past guidelines.

1132
00:49:36.570 --> 00:49:38.190
I mean, it may not be that they're supposed to have

1133
00:49:38.190 --> 00:49:41.700
the same kinda teeth as we're talking about, but-

1134
00:49:41.700 --> 00:49:43.350
<v ->Yeah, I mean, two examples here, Your Honor.</v>

1135
00:49:43.350 --> 00:49:45.210
One is the sex offender guidelines, right?

1136
00:49:45.210 --> 00:49:47.970
They're called guidelines. They're clearly regulations.

1137
00:49:47.970 --> 00:49:49.980
They're in the Code of Mass Regulations.

1138
00:49:49.980 --> 00:49:52.800
When this court upheld the constitutionality

1139
00:49:52.800 --> 00:49:55.620
of the statutory process back in 1999,

1140
00:49:55.620 --> 00:49:57.720
it was clear that they had to be promulgated

1141
00:49:57.720 --> 00:49:59.520
as regulations to be constitutional.

1142
00:50:00.510 --> 00:50:02.250
In other examples, the Fairhaven case,

1143
00:50:02.250 --> 00:50:03.540
those were mandatory, right?

1144
00:50:03.540 --> 00:50:04.920
They were effectively regulations,

1145
00:50:04.920 --> 00:50:07.350
but they fell within an exception

1146
00:50:07.350 --> 00:50:11.100
for internal administration.

1147
00:50:11.100 --> 00:50:12.180
But, otherwise, they would've met

1148
00:50:12.180 --> 00:50:14.970
the definition of regulation.

1149
00:50:14.970 --> 00:50:17.490
You wouldn't have to find, they've come with an exception.

1150
00:50:17.490 --> 00:50:19.800
And here the language is not just guidelines, right?

1151
00:50:19.800 --> 00:50:22.740
It's guidelines to determine compliance with the law.

1152
00:50:22.740 --> 00:50:25.020
And under the APA's functional definition

1153
00:50:25.020 --> 00:50:26.580
of what a regulation is,

1154
00:50:26.580 --> 00:50:28.200
if the agency is promulgating something

1155
00:50:28.200 --> 00:50:30.414
to determine if you're in compliance-

1156
00:50:30.414 --> 00:50:33.090
<v ->I get that they may be too detailed, but okay,</v>

1157
00:50:34.380 --> 00:50:37.350
I mean, they're fleshing out the meaning

1158
00:50:37.350 --> 00:50:39.840
of a very short statute, right?

1159
00:50:39.840 --> 00:50:42.573
That seems appropriate to do.

1160
00:50:44.100 --> 00:50:47.400
Do you get to challenge all the details of that

1161
00:50:47.400 --> 00:50:50.760
when you don't, I mean, I understood if you submitted

1162
00:50:50.760 --> 00:50:52.750
a zoning regulation that was different

1163
00:50:54.120 --> 00:50:57.450
that didn't comply with two provisions in those guidelines,

1164
00:50:57.450 --> 00:50:58.590
that's a different question.

1165
00:50:58.590 --> 00:51:02.360
But you just don't submit a zoning regulation.

1166
00:51:02.360 --> 00:51:05.070
Or you just say, "We don't have to do it."

1167
00:51:05.070 --> 00:51:07.200
Do we have to get into the niceties

1168
00:51:07.200 --> 00:51:09.153
of all of those guidelines?

1169
00:51:11.657 --> 00:51:14.460
Again, you're presenting a facial challenge.

1170
00:51:14.460 --> 00:51:17.910
The question is, would there be a reasonable way

1171
00:51:17.910 --> 00:51:20.910
of reading those guidelines to make it legal?

1172
00:51:20.910 --> 00:51:23.820
I don't know if you get to challenge everything in them.

1173
00:51:23.820 --> 00:51:25.342
<v ->So there are a couple</v>

1174
00:51:25.342 --> 00:51:26.175
of different issues here, Your Honor.

1175
00:51:26.175 --> 00:51:27.870
There's the harmless error argument that they make

1176
00:51:27.870 --> 00:51:29.763
for compliance with Chapter 30A.

1177
00:51:31.434 --> 00:51:32.730
And I think our position

1178
00:51:32.730 --> 00:51:35.730
is that there is no harmless error exception there.

1179
00:51:35.730 --> 00:51:38.340
And before we move on to the next point,

1180
00:51:38.340 --> 00:51:39.540
when it comes to harmless error,

1181
00:51:39.540 --> 00:51:41.640
they point to the process that took place

1182
00:51:41.640 --> 00:51:45.540
before the adoption of the first set of final guidelines.

1183
00:51:45.540 --> 00:51:48.120
We're now in the third iteration of final guidelines

1184
00:51:48.120 --> 00:51:51.840
and they don't point to anything in the record appendix

1185
00:51:51.840 --> 00:51:53.040
suggesting that there was nearly

1186
00:51:53.040 --> 00:51:54.960
the same level of public outreach

1187
00:51:54.960 --> 00:51:56.250
with respect to either the second

1188
00:51:56.250 --> 00:51:59.220
or third promulgations of final guidelines.

1189
00:51:59.220 --> 00:52:02.160
And under the APA, they need to have notice and comment

1190
00:52:02.160 --> 00:52:04.680
with respect to amendments of regulations as well.

1191
00:52:04.680 --> 00:52:06.300
So there's really no harmless error argument

1192
00:52:06.300 --> 00:52:08.790
with respect to the current operative set of guidelines,

1193
00:52:08.790 --> 00:52:10.170
which are the guidelines, for example,

1194
00:52:10.170 --> 00:52:12.723
that added the additional 13 grant programs.

1195
00:52:14.220 --> 00:52:15.270
We also have the argument

1196
00:52:15.270 --> 00:52:17.670
that the guidelines are ultra vires,

1197
00:52:17.670 --> 00:52:22.670
that they go beyond what was authorized by the legislature.

1198
00:52:22.710 --> 00:52:24.633
And I think there we are making a,

1199
00:52:25.710 --> 00:52:28.740
well, both a constitutional and a facial argument,

1200
00:52:28.740 --> 00:52:32.250
facial statutory argument to the validity of the guidelines.

1201
00:52:32.250 --> 00:52:33.630
I think we are entitled to make that.

1202
00:52:33.630 --> 00:52:36.430
They were trying to enforce these guidelines against us-

1203
00:52:39.344 --> 00:52:41.306
<v ->I get that you're entitled to,</v>

1204
00:52:41.306 --> 00:52:42.810
they pass guidelines and they should've done it

1205
00:52:42.810 --> 00:52:44.100
as a 30A regulation.

1206
00:52:44.100 --> 00:52:46.440
I get you can do that, that makes sense,

1207
00:52:46.440 --> 00:52:48.870
'cause that's an all or nothing argument.

1208
00:52:48.870 --> 00:52:52.530
But bits and pieces of these things,

1209
00:52:52.530 --> 00:52:53.880
well, I don't see why.

1210
00:52:53.880 --> 00:52:55.687
And also, can't the legislature say,

1211
00:52:55.687 --> 00:52:57.330
"This is such a big crisis.

1212
00:52:57.330 --> 00:53:00.240
We want you to act immediately."

1213
00:53:00.240 --> 00:53:02.430
Get the guidelines out, issue them.

1214
00:53:02.430 --> 00:53:04.240
They may already have been drafted

1215
00:53:05.850 --> 00:53:07.560
and not go through a 30A process.

1216
00:53:07.560 --> 00:53:10.350
Isn't that within the legislature's authority?

1217
00:53:10.350 --> 00:53:11.700
<v ->There is provision in the APA</v>

1218
00:53:11.700 --> 00:53:13.894
for emergency regulations, but that's-

1219
00:53:13.894 --> 00:53:15.060
<v ->They don't have to.</v>

1220
00:53:15.060 --> 00:53:18.030
More specific laws can override general laws, right?

1221
00:53:18.030 --> 00:53:20.250
They can override 30A.

1222
00:53:20.250 --> 00:53:22.020
<v Martin>They can, but they did not here, right?</v>

1223
00:53:22.020 --> 00:53:23.270
<v ->Or they went around it.</v>

1224
00:53:24.667 --> 00:53:26.490
<v ->But they said promulgate regulations to determine-</v>

1225
00:53:26.490 --> 00:53:27.870
<v Kafker>They said promulgate guidelines.</v>

1226
00:53:27.870 --> 00:53:30.540
<v ->Sorry, promulgate guidelines to determine compliance.</v>

1227
00:53:30.540 --> 00:53:32.340
And usually if you're promulgating some,

1228
00:53:32.340 --> 00:53:35.130
if the agency's promulgating a body of law

1229
00:53:35.130 --> 00:53:37.350
to determine compliance with a statute,

1230
00:53:37.350 --> 00:53:40.860
then that has to follow Chapter 30A.

1231
00:53:40.860 --> 00:53:42.790
<v ->Let's say we agree with you on that,</v>

1232
00:53:44.370 --> 00:53:46.090
does your counterclaim go away

1233
00:53:47.465 --> 00:53:50.640
or is that the end of the case?

1234
00:53:50.640 --> 00:53:52.140
<v ->So if you were to decide</v>

1235
00:53:52.140 --> 00:53:55.380
that the current version of the guidelines is unlawful,

1236
00:53:55.380 --> 00:53:57.600
whether for 30A violations or something else,

1237
00:53:57.600 --> 00:53:59.220
and we have a few different arguments,

1238
00:53:59.220 --> 00:54:02.970
then that would address our counterclaim.

1239
00:54:02.970 --> 00:54:05.190
You know, they have already withheld grant money from us.

1240
00:54:05.190 --> 00:54:07.290
I think we'd hope to get that

1241
00:54:07.290 --> 00:54:08.990
awarded to us again in the future.

1242
00:54:10.260 --> 00:54:13.260
I will say, I'm not sure

1243
00:54:13.260 --> 00:54:14.610
if I'm speaking for both parties here,

1244
00:54:14.610 --> 00:54:16.410
and we've spent an awful lot of time briefing the case,

1245
00:54:16.410 --> 00:54:19.558
it has relevance to a lot of communities.

1246
00:54:19.558 --> 00:54:20.760
And so certainly the court could decide the case

1247
00:54:20.760 --> 00:54:22.860
on a narrow ground and dismiss it,

1248
00:54:22.860 --> 00:54:24.622
but it could be useful for Milton

1249
00:54:24.622 --> 00:54:26.122
to know what the landscape is.

1250
00:54:26.985 --> 00:54:28.620
<v ->They're just gonna go past it.</v>

1251
00:54:28.620 --> 00:54:29.640
I don't know how long it takes

1252
00:54:29.640 --> 00:54:31.230
to go through the 30A process,

1253
00:54:31.230 --> 00:54:33.723
but we're gonna be right back here.

1254
00:54:34.650 --> 00:54:36.540
How quickly can you go through a 30A process?

1255
00:54:36.540 --> 00:54:38.090
You know this better than I do.

1256
00:54:38.991 --> 00:54:39.824
<v ->I'm not sure I do, Your Honor,</v>

1257
00:54:39.824 --> 00:54:41.700
but it would probably take a while.

1258
00:54:41.700 --> 00:54:43.380
It's also not clear that they would adopt

1259
00:54:43.380 --> 00:54:45.540
exactly the same regulations, right?

1260
00:54:45.540 --> 00:54:49.590
The statute was passed in the middle of the COVID epidemic,

1261
00:54:49.590 --> 00:54:52.410
pandemic, and things have moved forward.

1262
00:54:52.410 --> 00:54:54.840
As we've seen, as this litigation has progressed,

1263
00:54:54.840 --> 00:54:57.330
there's actually a lot of resistance to this law

1264
00:54:57.330 --> 00:54:58.560
in many communities.

1265
00:54:58.560 --> 00:55:00.600
And it may be, based upon some of the feedback

1266
00:55:00.600 --> 00:55:01.680
that's coming out of this case

1267
00:55:01.680 --> 00:55:03.810
and other public comment over the last year,

1268
00:55:03.810 --> 00:55:05.400
that they would in fact do something different.

1269
00:55:05.400 --> 00:55:06.797
<v Justice 3>Or maybe even</v>

1270
00:55:06.797 --> 00:55:07.680
the small business impact statement.

1271
00:55:07.680 --> 00:55:09.270
<v ->They could look at the small business impact statement.</v>

1272
00:55:09.270 --> 00:55:10.920
I mean, the Town of Milton has an interest

1273
00:55:10.920 --> 00:55:11.970
in its own finances.

1274
00:55:11.970 --> 00:55:13.890
There was no public fiscal analysis

1275
00:55:13.890 --> 00:55:15.660
that's required under Section Five.

1276
00:55:15.660 --> 00:55:17.460
So it's entirely unclear what would come out

1277
00:55:17.460 --> 00:55:18.750
if they were to do the process.

1278
00:55:18.750 --> 00:55:20.970
And that's why the APA is so important,

1279
00:55:20.970 --> 00:55:23.250
because it ensures that agencies do the hard work

1280
00:55:23.250 --> 00:55:24.540
of thinking about all these things

1281
00:55:24.540 --> 00:55:26.520
before they promulgate regulations

1282
00:55:26.520 --> 00:55:28.870
and not afterwards in the middle of litigation.

1283
00:55:31.635 --> 00:55:34.110
If the court has no further questions on Chapter 30A,

1284
00:55:34.110 --> 00:55:35.790
if I might address very briefly, Your Honor,

1285
00:55:35.790 --> 00:55:37.053
just the subway issue.

1286
00:55:38.262 --> 00:55:39.518
There was some suggestion-

1287
00:55:39.518 --> 00:55:41.437
<v Budd>Is it in the brief?</v>

1288
00:55:41.437 --> 00:55:42.270
<v ->It's in the brief, Your Honor.</v>

1289
00:55:42.270 --> 00:55:45.540
<v ->Okay, because I think this is the main thing.</v>

1290
00:55:45.540 --> 00:55:47.273
<v Martin>Yes.</v>
<v ->Do we agree? Okay.</v>

1291
00:55:48.210 --> 00:55:50.220
I wanna make sure that you get equal time,

1292
00:55:50.220 --> 00:55:52.590
but I'm just not sure we wanna spend time

1293
00:55:52.590 --> 00:55:53.913
on something that's-

1294
00:55:54.753 --> 00:55:55.586
<v Martin>That's fine, Your Honor.</v>

1295
00:55:55.586 --> 00:55:56.490
<v ->Unless people have questions about that particular-</v>

1296
00:55:56.490 --> 00:55:58.553
<v Martin>If there are no further questions, then.</v>