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SJC-13840
TOWN OF MARSHFIELD & another1 vs. COMMONWEALTH & another.2
Plymouth. March 4, 2026. – September 18, 2026.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges,
Dewar, & Wolohojian, JJ.
Housing and Livable Communities. Housing. Massachusetts Bay
Transportation Authority. Municipal Corporations,
Expenditure of money, Standing to assert constitutional
right, Home rule, By-laws and ordinances, Town meeting.
Regulation. Zoning, By-law. Constitutional Law, Standing.
Practice, Civil, Standing, Declaratory proceeding,
Injunctive relief, Waiver, Motion to dismiss. Waiver.
Civil action commenced in the Superior Court Department on February 27, 2025.
A motion to dismiss was heard by Mark C. Gildea, J.
The Supreme Judicial Court granted an application for direct appellate review.
Robert W. Galvin (David A. Henig also present) for the plaintiffs.
1 Select board of Marshfield.
2 Executive Office of Housing and Livable Communities.
2
H. Esme Caramello, Assistant Attorney General (Jamie D. Hoag, Assistant Attorney General, also present) for the defendants.
The following submitted briefs for amici curiae:
Thomas R. Kiley & Carl Valvo for One Commonwealth, Inc.
Sammy S. Nabulsi & Sarajane Levien for Abundant Housing MA, Inc., & others.
Jacob M. Love, Karla L. Chaffee, & Jillian Lenson for Citizens' Housing and Planning Association & others.
Anne Brensley, of the District of Columbia, & Michael Walsh for Anne Brensley.
Michael Walsh for Diana Viens.
GEORGES, J. The town of Marshfield (town or Marshfield)
and its select board (board) sought declaratory and injunctive
relief against the Commonwealth and the Executive Office of
Housing and Livable Communities (HLC), claiming that Marshfield
is exempt from the Massachusetts Bay Transportation Authority
Communities Act, G. L. c. 40A, § 3A (MBTA Act or act). The MBTA
Act was enacted in 2021 to address the Commonwealth's housing
crisis. It requires municipalities served by the Massachusetts
Bay Transportation Authority (MBTA) to have a zoning bylaw or
ordinance that permits multifamily housing as of right in at
least one reasonably sized district. Marshfield tried twice to
adopt zoning amendments that would comply with the act. Each
time, town meeting voters rejected the proposal. The board then
voted not to submit an interim action plan or take further steps
towards compliance.
Marshfield and the board commenced an action in the
Superior Court, challenging the MBTA Act and its regulations on
3
several grounds. A Superior Court judge (motion judge) allowed
the defendants' motion to dismiss the complaint, and the
plaintiffs appealed. The plaintiffs argue that the MBTA Act is
an unfunded local mandate, in violation of G. L. c. 29, § 27C
(§ 27C); that it violates the voting rights of Marshfield's town
meeting voters under the Massachusetts Declaration of Rights;
that it violates the Home Rule Amendment; and that it conflicts
with the Zoning Act, G. L. c. 40A, § 5.
We affirm the judgment dismissing the plaintiffs'
complaint. The complaint does not plausibly allege that the
MBTA Act or its regulations imposed on Marshfield an unfunded
local mandate within the meaning of § 27C. The complaint
alleges Marshfield incurred costs from evaluating and preparing
proposed zoning amendments, and presenting those proposals at
town meetings, but it does not allege facts that suggest those
costs were involuntarily incurred and exceeded incidental local
administration expenses. Its allegation of future direct costs
is likewise too conclusory and speculative to state a claim. We
further conclude that Marshfield and the board lack standing to
assert a constitutional voting rights claim on behalf of
Marshfield's town meeting voters. We reach the plaintiffs'
waived Home Rule Amendment claim because of its public
importance and conclude that the MBTA Act is a valid general
4
law. Finally, the MBTA Act does not conflict with the Zoning
Act, G. L. c. 40A, § 5.3
Background. 1. Statutory and regulatory framework. We
first summarize the relevant provisions of the MBTA Act and
HLC's regulations to frame the issues on appeal.
In 2021, the Legislature enacted the MBTA Act. See G. L.
c. 40A, § 3A, inserted by St. 2020, c. 358, § 18 (effective Jan.
14, 2021). The act was designed to address the Commonwealth's
housing crisis. It requires certain communities served by the
MBTA (MBTA communities) to have "a zoning ordinance or by-law
that provides for at least [one] district of reasonable size in
which multi-family housing is permitted as of right." G. L.
c. 40A, § 3A (a). A noncompliant MBTA community is ineligible
for certain grant funding from programs such as the Housing
We acknowledge the amicus briefs submitted in support of
3
the defendants by One Commonwealth, Inc.; Abundant Housing MA, Inc., Dr. Chris Herbert, and Professor John Infranca; Citizens' Housing and Planning Association, the Metropolitan Area Planning Council, Central Massachusetts Housing Alliance, Massachusetts Association of Community Development Corporations, the Massachusetts Housing Finance Agency, Community Economic Development Assistance Corporation, Massachusetts Housing Partnership Fund Board, the Black Economic Council of Massachusetts, the Home Builders and Remodelers Association of Massachusetts, Inc., the Boston Foundation, NAIOP Massachusetts, Jewish Alliance for Law and Social Action, Harbor Light Homes, the Greater Boston Real Estate Board, the Massachusetts Association of Realtors, the Planning Office for Urban Affairs, Capstone Communities LLC, and Building a Better Wellesley; Anne Brensley; and Diana Viens.
5
Choice Initiative, the Local Capital Projects Fund, the
MassWorks infrastructure program, and the HousingWorks
infrastructure program. G. L. c. 40A, § 3A (b).4
HLC is responsible for issuing standards to determine
compliance with the MBTA Act.5 G. L. c. 40A, § 3A (c). HLC
issued compliance guidelines on August 17, 2023. As relevant
here, those guidelines set December 31, 2024, as the deadline
for certain MBTA communities, such as Marshfield, to request a
determination from HLC that its zoning complied with the act.
On January 8, 2025, we determined that the guidelines were
invalid because HLC had not complied with the Administrative
Procedure Act. See Attorney Gen. v. Milton, 495 Mass. 183, 196
& n.22 (2025) (Milton). See also G. L. c. 30A, §§ 3, 5.
4 "MBTA community" is defined to include Marshfield. See G. L. c. 40A, § 1A (including "other served communities as defined in [G. L. c. 161A, § 1,]" within definition of "MBTA community"); G. L. c. 161A, § 1 (listing Marshfield among "[o]ther served communities"). "Multi-family housing" is defined as "a building with [three] or more residential dwelling units or [two] or more buildings on the same lot with more than [one] residential dwelling unit in each building." G. L. c. 40A, § 1A. Lastly, "[a]s of right" is defined as "development that may proceed under a zoning ordinance or by-law without the need for a special permit, variance, zoning amendment, waiver or other discretionary zoning approval." Id.
5 HLC's predecessor, the Department of Housing and Community Development, was initially charged with promulgating guidelines. See St. 2021, c. 29, § 10. As of May 2023, HLC took charge of implementing the MBTA Act. See St. 2023, c. 7, § 153.
6
After Milton, HLC promulgated emergency guidelines setting
forth revised procedures.6 See 760 Code Mass. Regs. §§ 72.00
(Jan. 31, 2025) (effective Jan. 14, 2025). These revised
guidelines gave noncompliant MBTA communities until July 14,
2025, to request HLC's written determination of compliance. See
760 Code Mass. Regs. § 72.09 (Jan. 31, 2025). Additionally, to
achieve interim compliance, each noncompliant municipality was
required to submit an interim action plan by February 13, 2025,
explaining how it intended to achieve compliance by the July
2025 deadline. See id. (interim action plan must provide
information about, among other things, municipality's timeline
to create compliant zoning district).
2. Facts. We recite the facts asserted in the complaint,
accepting them as true for purposes of reviewing the dismissal.
See Edwards v. Commonwealth, 477 Mass. 254, 255 (2017), S.C.,
488 Mass. 555 (2021).7
6 On April 11, 2025, after Marshfield filed suit, HLC promulgated its final guidelines. See 760 Code Mass. Regs. §§ 72.00 (Apr. 11, 2025). The provisions of the emergency guidelines that we cite are, in relevant part, not different from the finalized guidelines.
7 Because the judge declined to convert the motion to dismiss into a motion for summary judgement, we do not consider the affidavits submitted by the plaintiffs with their briefing as part of the record. See Coghlin Elec. Contrs., Inc. v. Gilbane Bldg. Co., 472 Mass. 549, 552 n.5 (2015).
7
On April 22 and December 16, 2024, Marshfield held special
town meetings to consider zoning amendments intended to bring
the town into compliance with the MBTA Act.8 Both proposals
failed. On February 10, 2025, the board unanimously voted not
to approve an interim action plan. On February 19, 2025, HLC
notified Marshfield that the town was not in compliance and
therefore risked losing State grant funding.
Before the board met to discuss HLC's February 19 letter,
the division of local mandates (DLM), a division of the State
Auditor's office, see G. L. c. 11, § 6, issued on February 21,
2025, letters to the city of Methuen and towns of Middleborough
and Wrentham.9 DLM concluded that the MBTA Act constituted an
unfunded local mandate under § 27C because it imposed more than
incidental local administration expenses on municipalities. In
part, DLM relied on the fact that the Commonwealth had awarded
some MBTA communities "technical assistance" grant funding for
the "very purpose of developing zoning compliant with the [MBTA]
8 To amend its zoning bylaws, and thereby comply with the MBTA Act, Marshfield was procedurally required to, among other things, hold a public hearing on the proposed revision. See G. L. c. 40A, § 5, second par. At this public hearing, a majority vote of Marshfield voters would be needed to adopt the bylaw. See G. L. c. 40A, § 5, fifth par.
9 Because the plaintiffs incorporated the DLM letters by reference in their complaint, we may consider them in reviewing the motion to dismiss. See Edwards, 477 Mass. at 257 n.5.
8
Act." See Executive Office of Housing and Livable Communities,
3A Technical Assistance Awards & Resources, https://www.mass.gov
/info-details/3a-technical-assistance-awards-resources [https:
//perma.cc/Q2EZ-NZTL] (listing applicants receiving grants for
"planning and zoning projects related to compliance with [G. L.
c. 40A, § 3A]").
After receiving the HLC letter and considering DLM's
determination, the board voted to seek judicial relief from the
MBTA Act's zoning requirement.
3. Procedural history. Marshfield and the board filed
their complaint against the Commonwealth and HLC on February 27,
2025. They asserted that the MBTA Act and HLC's regulations
violated § 27C and G. L. c. 40A, § 5, and sought declaratory and
injunctive relief. The Commonwealth and HLC moved to dismiss
all counts for lack of subject matter jurisdiction and failure
to state a claim. See Mass. R. Civ. P. 12 (b) (1) and
12 (b) (6), 365 Mass. 754 (1974). After a hearing, the motion
judge allowed the motion to dismiss. As relevant here, the
motion judge concluded that Marshfield had failed to plead facts
plausibly showing that the MBTA Act imposed an unfunded local
mandate. Additionally, the motion judge ruled that the act did
not unlawfully interfere with the town's authority to develop
and enforce zoning bylaws.
9
The plaintiffs appealed, and we allowed their application
for direct appellate review.
Discussion. 1. Standard of review. We review the
allowance of a motion to dismiss de novo, accepting the wellpleaded factual allegations in the complaint as true and drawing
all reasonable inferences in the plaintiff's favor. Cannata v.
Mashpee, 496 Mass. 188, 191 (2025). We do not, however, accept
legal conclusions, even if framed as factual allegations. See
Cubberley v. Commerce Ins. Co., 495 Mass. 289, 292-293 (2025).
To survive a motion to dismiss, the claimant must allege facts
that plausibly suggest "an entitlement to relief above the
speculative level." Hornibrook v. Richard, 488 Mass. 74, 78
(2021), citing Iannacchino v. Ford Motor Co., 451 Mass. 623, 636
(2008).
The plaintiffs challenge the validity of the MBTA Act on
several grounds. First, they argue that the MBTA Act is an
unfunded local mandate under § 27C and that Marshfield is exempt
from compliance until the Commonwealth supplies the funding
necessary to comply. Second, they argue that the MBTA Act's
zoning requirement infringes on the constitutional voting rights
of town meeting voters. Finally, they argue that the zoning
requirement also violates the town's zoning authority under the
Home Rule Amendment and G. L. c. 40A, § 5. We address the
unfunded mandate claim first.
10
2. Unfunded local mandate claims. A State law constitutes
a local mandate, subject to the funding requirements of G. L.
c. 29, § 27C (a), if it (1) takes effect after 1980, (2) changes
existing law, and (3) imposes "any direct service or cost
obligation" on the municipality above "incidental local
administration expenses" (emphasis added). G. L. c. 29,
§ 27C (a).10 See Lexington v. Commissioner of Educ., 393 Mass.
693, 697 (1985) (challenged law must change existing law to
constitute local mandate). This same analysis applies to State
regulations. See Norfolk v. Department of Envtl. Quality Eng'g,
407 Mass. 233, 239-240 (1990) (despite difference in statutory
language, construing § 27C [c] to have same scope as § 27C [a]).
Although § 27C does not define "direct service or cost
obligation" or "incidental local administration expenses," G. L.
c. 29, § 27C (a), our cases clarify that the obligation must be
10As relevant here, where a law or regulation imposes a direct service or cost obligation on a municipality, and the Commonwealth has not appropriated the necessary funds to reimburse such municipality, the municipality may be exempted from that law or regulation by a Superior Court order, until the Commonwealth reimburses it the amount of the deficiency. See G. L. c. 29, § 27C (e). We briefly note that a State law also falls outside the ambit of § 27C if the municipality accepts the law either "by vote or by the appropriation of money" for purposes of that law. G. L. c. 29, § 27C (a). Here, although the complaint is silent on whether Marshfield has accepted the MBTA Act, we assume it has not. Cf. Lexington v. Commissioner of Educ., 393 Mass. 693, 698 n.7 (1985) (parties stipulated to this fact).
11
"mandatory," meaning that "the municipality has no choice but to
comply and to pay the costs," Norfolk, 407 Mass. at 239. Costs
that result from a municipality's voluntary choices about how to
comply are not "direct service or cost obligation[s]" within the
meaning of the statute. Id. at 240, quoting G. L. c. 29,
§ 27C (a). Additionally, we have described "incidental local
administration expenses" as "relatively minor expenses related
to the management of municipal services" that are "subordinate
consequences of a municipality's fulfilment of primary
obligations." Worcester v. Governor, 416 Mass. 751, 758 (1994).
Marshfield's § 27C claim rested on two categories of
municipal expense. The first consisted of costs incurred in
evaluating and preparing proposed zoning amendments, and
presenting those amendments at a town meeting. The second
consisted of anticipated future costs that Marshfield attributed
to the act and HLC's emergency regulations. The complaint also
incorporated DLM's February 21, 2025, determination letters, in
which DLM concluded that the MBTA Act is an unfunded local
mandate.
The defendants argue that Marshfield's incurred costs are
incidental local administration expenses and that, to the extent
Marshfield incurred additional expense by pursuing a more
tailored or complicated path to compliance, those costs were
voluntarily assumed rather than imposed by the act. The
12
defendants also argue that Marshfield's allegations of future
costs are too indirect and speculative to state a claim under
§ 27C.
The plaintiffs first specify their allegedly incurred costs
in paragraph fifty-one of the complaint. There, Marshfield
alleged that it incurred "costs and expenses in evaluating and
drafting proposed zoning bylaws and presenting them to [t]own
[m]eetings that have not been paid by the Commonwealth and/or
HLC." We accept those allegations as true. The plaintiffs
concede that the costs of presenting a proposal through the
local legislative process, including, for example, the costs of
conducting the town meeting itself, are incidental local
administration costs under § 27C. See G. L. c. 40A, § 5 (zoning
bylaws must be adopted or changed "only in the manner
hereinafter provided"). As to the remaining activities, the
complaint alleges only that Marshfield incurred costs to
evaluate and draft compliant zoning bylaws. It does not
describe the nature, amount, or necessity of those costs in a
way that plausibly suggests they were unavoidable expenditures
required by the MBTA Act, rather than incidental local
administration expenses or costs Marshfield chose to incur in
pursuing its preferred path to compliance. See Worcester, 416
Mass. at 758 ("relatively minor expenses related to the
management of municipal services" excluded from § 27C); Norfolk,
13
407 Mass. at 239 (cost must be mandatory to fall within scope of
§ 27C). Marshfield did not need to plead every invoice or line
item, but it did need to allege enough factual content to
distinguish its costs from those § 27C excludes, i.e.,
voluntarily assumed expenses and incidental local administration
costs. Cf. Spokane v. Monsanto Co., 237 F. Supp. 3d 1086, 1094–
1095 (E.D. Wash. 2017) (dismissing counterclaims where party
merely alleged incurring response costs and failed to plead
sufficient facts to suggest that such costs were "necessary,"
which was element of claim). Paragraph fifty-one does not do
so.
Paragraph fifty-two adds that Marshfield "expect[s] to
incur additional costs as the direct result" of the MBTA Act and
HLC's regulations. That allegation is also deficient.
Describing future costs as "direct" states a legal conclusion,
not a well-pleaded fact. See Curtis v. Herb Chambers I-95,
Inc., 458 Mass. 674, 676 (2011) ("we look beyond the conclusory
allegations in the complaint"). The complaint does not identify
the future costs or include facts showing how the act itself
will impose them rather than the town voluntarily assuming them
because of local policy choices or other reasons. If the
alleged future costs concern another effort to amend the zoning
bylaw, the complaint does not allege facts suggesting that those
costs would differ in character from the alleged costs already
14
incurred. If instead the costs concern future municipal
services associated with later housing development, the alleged
costs are indirect and speculative. See Kennedy v.
Commonwealth, 92 Mass. App. Ct. 644, 651 (2018) (alleged future
costs to support school were indirect and speculative).
The DLM letters do not supply the facts missing from the
complaint. The letters were issued in response to requests from
Methuen, Middleborough, and Wrentham, not Marshfield. DLM did
not identify any municipality-specific mandatory costs, much
less any costs imposed on Marshfield. The letters may support
the general proposition that some municipalities incurred
expenses in connection with MBTA Act compliance, but they do not
show that Marshfield incurred costs outside § 27C's exclusion
for incidental local administration expenses and voluntarily
incurred expenses.
Nor would DLM's conclusion that the MBTA Act constitutes an
unfunded local mandate bind this court. See Norfolk, 407 Mass.
at 237-241 (ruling that challenged regulation was not unfunded
local mandate despite contrary DLM determination). DLM itself
acknowledged that its interpretation was "subject to . . .
judicial determination." The ultimate legal question whether
factual allegations establish an unfunded mandate under § 27C is
one for the court. See Worcester, 416 Mass. at 754, 762
(whether challenged law or regulation constitutes unfunded local
15
mandate is "question[] of law for this court to resolve").
Accordingly, DLM's determination cannot remediate the inadequacy
of the plaintiffs' factual pleadings. See Leavitt v. Brockton
Hosp., Inc., 454 Mass. 37, 39 n.6 (2009) (courts disregard
"legal conclusions cast in the form of factual allegations").
Lastly, the grant-related facts referenced in DLM's letters
do not alter the analysis. The "[t]echnical [a]ssistance"
grants provided funding for "planning and zoning projects
related to compliance with [G. L. c. 40A, § 3A]." Executive
Office of Housing and Livable Communities, 3A Technical
Assistance Awards & Resources, https://www.mass.gov/infodetails/3a-technical-assistance-awards-resources [https:
//perma.cc/7RXT-ET5V]. One listed award, for example, provided
more than $30,000 to help a municipality "implement zoning
changes as a result of the new [MBTA Act]." Id. The project
descriptions for those grants show that some municipalities
received assistance for work connected to MBTA Act compliance.
They do not show whether those costs were mandatory expenditures
imposed by the act rather than costs attributable to local
choices about how to pursue compliance. See Norfolk, 407 Mass.
at 238-239 (costs that are voluntarily incurred are outside
scope of § 27C). Nor do they show what costs Marshfield itself
incurred or whether Marshfield's costs were comparable to those
incurred by municipalities awarded grants. The grant-related
16
facts therefore do not supply the missing factual allegations
needed to adequately allege a § 27C claim.
On this complaint, the plaintiffs fail to state an unfunded
local mandate claim under § 27C. They do not adequately allege
costs outside the statute's exclusion for incidental local
administration expenses, or facts showing that the alleged costs
were mandatory expenditures imposed by the MBTA Act. We
therefore need not decide whether costs associated with MBTA Act
compliance are categorically excluded from § 27C. See Bonan v.
Boston, 398 Mass. 315, 323 (1986) (declining to address
lawfulness of challenged provision in zoning code where
insufficient facts were alleged, because "there may be material
facts not before us that bear on the [issue]").
3. Constitutional voting rights claim. The plaintiffs
also argue that the MBTA Act's zoning requirement infringes on
the constitutional voting rights of the town meeting voters.
The complaint did not include a free-standing constitutional
voting rights claim. The parties dispute whether the plaintiffs
preserved the argument by raising it at the motion hearing and
in a later Superior Court filing. We need not decide whether
these efforts preserved the argument, or whether Marshfield
should have sought leave to amend the complaint, because neither
Marshfield nor the board has standing to assert a claim based on
17
the purported constitutional voting rights of Marshfield's town
meeting voters.
Marshfield is a political subdivision of the Commonwealth
and therefore may not challenge the constitutionality of State
laws, aside from exceptions not applicable to this voting rights
claim. See Dartmouth v. Greater New Bedford Regional Vocational
Tech. High Sch. Dist., 461 Mass. 366, 379-381 (2012) (general
prohibition against political subdivision raising constitutional
claims challenging State statue or act); Spence v. Boston Edison
Co., 390 Mass. 604, 610 (1983) (State agency's constitutional
claims were "barred by the long-standing and far-reaching
prohibition on constitutional challenges by governmental
entities to acts of their creator State"). "The decisional law
rests on the proposition that constitutional protections belong
to 'persons' . . . who are generally considered independent of
the Commonwealth" (citation omitted). Dartmouth, supra at 380.
Cf. Slama v. Attorney Gen., 384 Mass. 620, 623 (1981) (city
lacked standing where it had "no right to vote" [citation
omitted]). The board members fare no better. Because they sue
only in their official capacities and allege no injury personal
to themselves, the board members likewise lack standing. See
Assessors of Haverhill v. New England Tel. & Tel. Co., 332 Mass.
357, 362 (1955) (public officers generally cannot challenge
constitutionality of statute). See also Gardner v.
18
Massachusetts Turnpike Auth., 347 Mass. 552, 559 (1964)
(declining to determine whether private rights of public
officers were "so involved as to permit them to raise
constitutional issues").
4. Zoning authority claims. The plaintiffs argue that the
MBTA Act unlawfully intrudes on Marshfield's municipal authority
granted by the Home Rule Amendment11 and the Zoning Act, G. L.
c. 40A, § 5. Put differently, they contend both that the act
violates the Home Rule Amendment and that it conflicts with the
Zoning Act. We address each argument in turn.
a. Home Rule Amendment claim. The plaintiffs contend that
the MBTA Act violates the Home Rule Amendment by depriving
11Article 89 of the Amendments to the Massachusetts Constitution, known as the Home Rule Amendment, expanded local municipalities' power to self-govern. See West St. Assocs. LLC v. Planning Bd. of Mansfield, 488 Mass. 319, 321-322 (2021). The purpose of the Home Rule Amendment is to "grant and confirm to the people of every city and town the right of selfgovernment in local matters, subject to the provisions of this article and to such standards and requirements as the general court may establish by law in accordance with the provisions of this article." Art. 89, § 1, of the Amendments to the Massachusetts Constitution. To that end, the Home Rule Amendment empowered municipalities to "exercise any power or function which the general court has power to confer upon it, which is not inconsistent with the constitution or laws enacted by the general court . . . in conformity with powers reserved to the general court by [§ 8]." Art. 89, § 6, of the Amendments to the Massachusetts Constitution. Section 8 states, in pertinent part: "The general court shall have the power to act in relation to cities and towns, but only by general laws which apply alike to all cities or to all towns, or to all cities and towns, or to a class of not fewer than two . . . ." Art. 89, § 8, of the Amendments to the Massachusetts Constitution.
19
municipalities of meaningful authority to adopt or amend zoning
bylaws, except by approving an MBTA Act compliant bylaw. Based
on the record before us, this claim is waived.12 Nevertheless,
because the issue is of public importance and the result is
unchanged, we exercise our discretion to reach the merits. See
Mullins v. Pine Manor College, 389 Mass. 47, 63 (1983).
Before turning to the merits, we note that a municipality
may challenge a statute for purportedly violating the Home Rule
Amendment. See Clean Harbors of Braintree, Inc. v. Board of
Health of Braintree, 415 Mass. 876, 880-881 (1993) (municipality
has standing to assert claim that statute violates Home Rule
Amendment). We assume, without deciding, that the board may
also do so here. See id. (same); Kennedy, 92 Mass. App. Ct. at
649-650 (same for school district).
12The plaintiffs allege that they raised this argument below in their reply to an amicus curiae brief and at the motion to dismiss hearing. The Home Rule Amendment is not mentioned in that reply. The plaintiffs have failed to provide a sufficient record to establish that they raised the Home Rule Amendment argument at the motion hearing. See Mass. R. A. P. 18 (b) (4), as appearing in 481 Mass. 1637 (2019) ("Depending on the issues raised on appeal . . . [f]ailure to reproduce the entire transcript may result in waiver of the issue"). Thus, it would appear on this record that the plaintiffs have raised this argument for the first time on appeal. But even if they did raise it at the hearing, the motion judge was well within his discretion not to address it. Cf. Business Interiors Floor Covering Business Trust v. Graycor Constr. Co., 494 Mass. 216, 222-223 (2024) (argument raised for first time at hearing on summary judgment motion "was not properly raised" and motion judge did not abuse discretion disregarding it).
20
The Home Rule Amendment preserves municipal authority over
local matters, see Clean Harbors of Braintree, Inc., 415 Mass.
at 881, but it does not prevent the Legislature, through a valid
general law addressing a matter of Statewide concern, from
imposing substantive requirements that municipalities must
implement through existing local procedures, see Board of
Appeals of Hanover v. Housing Appeals Comm. in the Dep't of
Community Affairs, 363 Mass. 339, 360 (1973) (municipal
lawmaking powers may not be used to "frustrate[] the purpose or
implementation" of State laws that comply with Home Rule
Amendment). See also art. 89, §§ 1, 6, 8, of the Amendments to
the Massachusetts Constitution; Dartmouth, 461 Mass. at 382
("Home Rule Amendment is to be construed narrowly").
The MBTA Act addresses the Commonwealth's housing crisis, a
subject not confined to any one municipality. That subject
falls squarely within the Legislature's retained authority under
the Home Rule Amendment. See, e.g., Dartmouth, 461 Mass. at 382
(comprehensive overhaul of public school education is matter of
general concern); Clean Harbors of Braintree, Inc., 415 Mass. at
882 (waste treatment facility was "certainly" matter of general
concern, even though amended law only applied to facility in one
municipality); Board of Appeals of Hanover, 363 Mass. at 359-360
("the Home Rule Amendment has not altered the Legislature's
supreme power in zoning matters"). Cf. Grace v. Brookline, 379
21
Mass. 43, 55-56 (1979), citing cases (our case law demonstrates
that "a shortage of housing threatens the public interest").
The MBTA Act therefore does not violate the Home Rule Amendment.
b. Zoning Act claim. The plaintiffs also contend that the
MBTA Act conflicts with G. L. c. 40A, § 5 (§ 5). They reason
that § 5 permits Marshfield to amend its zoning bylaws only
through town meetings, while the MBTA Act requires the town to
have compliant zoning. In substance, the plaintiffs argue that
the act "compel[s]" Marshfield's town meeting voters to "vote
yes and approve the [a]ct."
There is no conflict. The MBTA Act does not displace the
procedures set out in § 5 for adopting or amending local zoning
bylaws. It leaves those procedures in place and imposes a
substantive State law requirement that the resulting zoning must
satisfy. See Milton, 495 Mass. at 189 n.15 ("it is clear that
the Legislature intended to require MBTA communities to comply
with the act").
Town meeting voters retain the authority to debate, amend,
approve, or reject any proposal placed before them under § 5.
But that authority does not include the power to exempt the town
from an obligation imposed by a valid State law. Cf. Boss v.
Leverett, 484 Mass. 553, 559 n.14 (2020) ("This court, on
multiple occasions, has reiterated that a municipality may not
enact a policy that is inconsistent with State law"). The
22
consequence of rejecting a compliant proposal is noncompliance
with the MBTA Act, not a conflict between that act and § 5. See
Peters v. Michienzi, 385 Mass. 533, 537 (1982) ("allegedly
conflicting provisions of a statute should, if possible, be
construed in a way that is harmonious and consistent with the
legislative design").
Conclusion. For the reasons stated above, we affirm the
judgment dismissing the plaintiffs' complaint.
So ordered.