In a picturesque suburb in eastern New England, the challenges of housing in America are coming to the forefront.

Two years prior, the wealthy, predominantly white town of Milton was directed by the Massachusetts state legislature to implement measures for more and denser housing. However, by February 2024, despite investing significant time and resources into a housing plan, around 5,000 voters rejected it.

In response, Massachusetts Attorney General Andrea Campbell initiated legal action requiring Milton to comply with housing regulations. A panel of judges is set to hear arguments on October 7. While the situation concerns Milton specifically, it raises broader questions relevant to communities nationwide.

When housing shortages make affordable living unattainable for most, what obligations does a community have to provide support? Should state intervention occur, and to what extent?

For many advocates seeking progressive housing policies, the stalemate in Milton represents another chapter in a long-standing struggle.

“This is the civil rights issue of our generation,” stated David Dworkin, president of the National Housing Conference. He draws parallels between Milton’s situation and the civil rights protests in the Deep South during the 1950s, as well as the activism of Martin Luther King, Jr. in 1960s Chicago. “Zoning laws in America were formulated to enforce racial segregation. This is not a subtle mechanism.”

Thomas Silverstein, who oversees fair housing and community development at the Lawyers’ Committee for Civil Rights Under Law, shares this perspective. “Challenging affluent, often predominantly white suburbs that use their zoning authority to avoid fulfilling their share of affordable housing needs has long been a focus for civil rights and fair housing advocates,” Silverstein explained in an interview.

In contrast, some residents in Milton who oppose the zoning amendments state that they support affordable housing, but are concerned about the size of the proposed developments in their small town.

“I fully support enhancing diversity in housing,” remarked Denny Swenson, a long-time resident of Milton who has served on the town’s planning committee. “I welcome it, and I cherish it. This litigation is merely a tactic by developers to stifle our town and others from advocating for more considered zoning practices.”

Build, baby, build

The 2021 legislation central to this disagreement mandated that communities linked to the regional public transit authority implement zoning laws that would permit multi-family residences in specified areas. Known as the MBTA Communities Act, this law indicated that towns failing to comply would forfeit access to various state funding sources.

Milton’s planning department dedicated much of 2023 working with consultants to draft new “zoning language” for their elected representatives to review, according to the attorney general’s documentation. In December, the elected officials ratified a bylaw that sanctioned the zoning. However, in February 2024, when put to a vote, the bylaw was rejected with a 54%-46% margin.

Those opposing the bylaw largely disagreed with the level of proposed development. Swenson noted the MBTA Communities Act stipulated that the new zoning needed to accommodate over 2,400 new housing units—a significant challenge for a town of 24,000 residents, which has limited space for expansion.

A representative from the state attorney general’s office informed YSL News via email that the law allowed considerable flexibility and local discretion for communities. While it mandates a certain density in the area, it does not set a definitive minimum number of units to be constructed.

Initially, residents engaged in dialogue with state officials, but once they opted for a referendum, “communication ceased,” Swenson remarked. “They were threatening punitive measures but I expected we could pause and collaborate. It’s astonishing that citizens could be sued for opposing the state’s decisions.”

Many in Milton who are against the law feel caught off guard by the lawsuit, Swenson added. The legislation indicated that failure to comply would lead to funding loss—a trade many residents were prepared to accept. “The Executives shouldn’t just be able to impose legislation,” she stated.

In a reminder issued in February 2023 about the law’s requirements, the state cautioned not just about potential funding loss for non-compliant communities, but also the possibility of these towns being in breach of state or federal fair housing regulations.

Commenting on the situation, Massachusetts Attorney General Andrea Joy Campbell stated, “This mandatory law is a crucial tool in tackling our housing affordability crisis by establishing more zoning districts where additional housing can be created. The process is collaborative, granting municipalities significant leeway regarding the placement and scale of the new zoning district.”

The statement further explained, “The Town of Milton submitted a bylaw to align with the MBTA Communities

The state had supported the law completely until a private group successfully called for a referendum to repeal that ordinance. My office is responsible for enforcing our laws, including this mandatory one, and we are always ready to assist any community striving to comply with it.

Joe Atchue, the building commissioner of Milton, who is mentioned in the attorney general’s legal documents, along with Nicholas Connors, Milton’s assistant town administrator, did not reply to several emailed requests for a comment regarding this story.

What Actions Can the State Take?

According to public documents, a significant part of the town’s legal argument hinges on the thought that the attorney general can only withhold funds as outlined in the MBTA Communities Act, and that any actions beyond that would be an overreach.

However, legal experts consulted for this article disagreed with that viewpoint.

While there are specifics within different state legal systems, local communities generally operate with the understanding that states can mandate certain actions or prevent local governments from performing particular activities, said Silverstein. “It’s presumed that states hold that authority.”

In September, the Real Estate Bar Association (REBA) of Massachusetts, the main professional organization for real estate lawyers in the state, submitted a brief supporting the attorney general’s position.

One of the authors of the REBA brief, Kathleen Heyer, stated in an interview with YSL News, “The attorney general doesn’t just have the option to withhold funds; they possess broad authority to enforce laws for the public interest of the Commonwealth.”

Heyer emphasized that the statute did not mandate the construction or approval of anything; it was merely aimed at altering the town’s zoning bylaw. “It was about changing permitted uses, but people came forward in large numbers to say, ‘We’d rather pass on these optional funds than abide by state law.’”

A Housing Crisis in the Region

Observers of the situation argue that towns like Milton not only have a legal duty to follow the law, but also a moral responsibility to help address a growing regional social crisis.

A brief submitted in support of the attorney general by over a dozen housing nonprofits highlights concerning statistics: The median sale price of a single-family home in Greater Boston is projected to reach $950,000 in 2024, with the average monthly rent hitting $3,940. A majority of renters in this area are considered “rent-burdened,” as they spend more than 30% of their income on rent.

The term “exclusionary zoning” is frequently used by scholars, activists, and officials to describe communities that make it challenging for specific groups to reside there. In cases where zoning practices prioritize single-family homes with yards at an average cost of over $1 million, it effectively excludes lower-income individuals. This unfortunate reality makes it nearly impossible for many workers who serve the town to also afford to live there.

Dworkin stated, “The residents of these exclusionary communities are taking advantage of the situation. They benefit from all the work done by others but refuse to allow those workers to live nearby.”

Swenson mentions that Milton’s “NO Campaign” could agree to a reduced target of around 500-900 units and notes that most residents support making at least some of those units affordable.

What Lies Ahead?

Apart from the legal questions, advocates also ponder the next steps. What occurs if Massachusetts wins the case but no new housing is developed in Milton?

The attorney general’s initial brief emphasizes a long history of state efforts to encourage increased housing construction, often with lackluster outcomes. For instance, a 2004 state law offered financial incentives to towns for establishing zoning districts near public transit or in higher density locations.

As of May 2024, only 49 municipalities had established such districts, resulting in just about 5,903 new housing units being built or permitted within the Massachusetts Bay Transportation Authority’s service area, as the brief highlights.

The existing housing crisis in Massachusetts is estimated to require at least 200,000 additional units, according to advocates for affordable housing.

For Dworkin and those viewing the situation through a lens of social justice, every little progress counts. “There’s no quick fix,” he noted. “We’re going to address this crisis gradually, one project at a time.”

“It’s disheartening but not unexpected that they would resist change,” said Silverstein. “That pushback actually reinforces the need for strong legal requirements rather than just incentives if we want real progress. Communities that have not been contributing fairly will continue to do so unless they are confronted with significant pressure.”