Judge agrees to hear Middleboro on MBTA compliance

PLYMOUTH — A Plymouth Superior Court judge agreed to hear arguments from Middleboro officials that the town already complies with the MBTA Communities Act and should not be forced to accept it.

Judge Mark Gildea made that decision at a hearing Monday, March 10 at Plymouth Superior Court. The hearing followed the Feb. 28 filing of a lawsuit by the town against the state.

“That’s what we wanted to happen,’’ Town Manager Jay McGrail said after the hearing, referring to the judge’s decision. 

The lawsuit and subsequent hearing involve the MBTA Communities Act, which requires MBTA communities, including Middleboro, to create districts to allow multi-family housing by right within a half mile of the train station. 

This is an effort to address the state’s housing shortage and to provide residents with access to mass transit. 

This act should not apply to Middleboro because the town already has a 40R district that meets the criteria, Attorney Gregg Corbo of KP Law, the town’s legal firm, argued in front of Judge Mark Gildea.

This 40R district calls for multi-family housing, with 25 percent of units to be affordable. One hundred seventy-four multi-family housing units have been developed within a half mile of the station, with more throughout town, Middleboro argued in its lawsuit. 

Corbo asked that this argument, which is unique to Middleboro, should be heard separately from a second issue that was cited in the lawsuit. 

McGrail stressed the town’s commitment to providing and continuing to approve plans for affordable housing. “We’re doing everything towns should be doing,’’ he said. “We’re the poster child.’’

The second argument in the lawsuit states that the act constitutes an “unfunded mandate’’ that does not provide financial support for the required changes.

The requirements mandated by the act would force the town to add 1,471 more housing units, which would require the town to spend more than $125 million to upgrade its public water supply system, almost $200 million to upgrade its sewer system and spend “hundred of millions of dollars to construct new school facilities to accommodate the influx of new students,’’ the lawsuit argued.

The auditor’s office ruled in a letter to Middleboro officials that the act did in fact meet the definition of an unfunded mandate. 

Attorney General Andrea Joy Campbell disagreed with that decision from her fellow state agency, stating that, should the issue go to court,  “we intend to be successful, as we have been so far.’’ 

A similar legal argument that the act is an unfunded mandate has been made by the Plymouth County towns of Hanson, Marshfield, Middleton and Wrentham. Legal representatives from all four towns appeared in court Monday alongside Corbo.

The towns had asked the court to consider each community’s argument separately. Gildea disagreed, distributing a spread sheet that displayed what he described as the commonalities among the towns’ positions. 

The towns agreed to provide a shared argument on the unfunded mandate issue. 

But McGrail said the decision to look at the 40R issue separately represents a positive step for the town. “I’m happy with the progress the judge has made,’’ he said at the Select Board meeting March 10.

The unfunded mandate discussion has been continued to 9 a.m. April 2. No date has yet been set for the compliance issue.