Hello Wilmington,
Well, as predicted, our government has taken a fourth bite of the MBTA apple and is once again bringing this unfunded mandate up for a vote.
Before we go into the weeds, let’s get one thing straight: The MBTA Communities Act, commonly known as 3A, is NOT an affordable housing law. There is absolutely no requirement under 3A that any of the housing units created through this zoning be designated as affordable. The law requires zoning for multifamily housing, not affordable housing. Those are two very different things.
Now, some will undoubtedly read this letter and get upset, perhaps even angry, at my telling of the actual truth. But before we sell the soul of Wilmington to the Attorney General, the Legislature, and the developers who stand to benefit from its acceptance, I believe it’s important to get the truth out there.
As was demonstrated at the Select Board meeting where the fourth bite was announced, we heard quite a few scare tactics. We heard about a “special master.” We heard about lawsuits. We heard about things that could happen and things that may never happen.
Well, please allow me to provide a bit of insight into this matter. As I always do, I invite you to research this entire editorial and form your own opinion about what the outcome ultimately looks like.
The first thing I want to address is this “lawsuit,” which brings me to my first controversial claim.
Here is the uncomfortable reality of this lawsuit as it stands today. In the end, the worst that can happen is that the state is allowed to withhold funding from the grants listed in the law and declare that “Wilmington is out of compliance.” The voters in town cannot be held in contempt, they cannot be charged with a crime, nor can any elected official or appointed employee be charged with a crime simply because Town Meeting rejects a zoning proposal.
Now, let me provide some additional facts.
First, zoning is governed by M.G.L. Chapter 40A, Section 5. In Wilmington, a Town Meeting vote is required to adopt zoning amendments. The law does not say, “A special master may order a zoning change.” Nor does it say that a judge may adopt a zoning change. The statute is specific about who has the authority to adopt zoning amendments.
Here is the pertinent language:
“After such notice, hearing and report, or after twenty-one days shall have elapsed after such hearing without submission of such report, a city council or town meeting may adopt”
As many of you may know, the constitutionality of this law was challenged before the Massachusetts Supreme Judicial Court. I’m going to cite portions of Justice Serge Georges Jr.’s September 18 decision, in which the judge affirms that Town Meeting, in Wilmington’s case, is the body authorized to adopt zoning changes.
Here is his direct quote:
“Town meeting voters retain the authority to debate, amend, approve, or reject any proposal placed before them under § 5.”
The court then qualifies that authority:
“But that authority does not include the power to exempt the town from an obligation imposed by a valid State law.”
The court then concludes:
“The consequence of rejecting a compliant proposal is noncompliance with the MBTA Act, not a conflict between that act and § 5.”
So, the court recognizes that Town Meeting may exercise its authority to vote no as the legislative body of the town. However, there currently is no mechanism that allows a judge or special master to adopt a zoning amendment in place of Town Meeting.
There is NO case law establishing precedent for a judge to override a Town Meeting zoning vote in this manner. There is no authority allowing a special master to supersede M.G.L. Chapter 40A, Section 5, and the Attorney General herself has no authority to enact local zoning amendments without a Town Meeting vote.
A special master could propose turning Wilmington into a fifth gate at Disney World, but Town Meeting would still have to accept it.
In essence, we’re living in a real-life episode of The Godfather, where an empty gun is being held to our heads while we’re being told to sign the contract.
Had the Legislature wanted to, it could have expressly overridden Section 5 through a provision in the MBTA Communities Act. But it did not do so when passing the law, nor has it done so since, despite the difficulties the state has encountered getting communities to approve these zoning changes.
In fact, to stack the deck against opposition, the Legislature was “courageous” enough to authorize approval of this particular zoning requirement by a simple majority rather than the traditional two-thirds vote. So, clearly, the Legislature knew how to change the rules when it wanted to.
So, this brings us full circle.
Outside of the threats that have been, and will continue to be, made, the MBTA Communities Act IS, and will continue to be, an unfunded mandate on cities and towns.
Why should Wilmington vote against it?
Here are a few reasons to keep in mind.
Wilmington has serious water problems. Contamination has shut down many of the wells that once supplied Wilmington residents. We now rely on much more expensive MWRA water to make up the difference. Imagine the potential impact of another 1,248 housing units being constructed in our town. What do you think that would do to our water rates?
Next, we have Route 38. The proposed zoning places a little more than half of the required housing capacity along this corridor.
Those of us who know a bit about the history of our town know that Route 38 was developed along what was essentially a carriage path following the railroad tracks. No matter how much we wish otherwise, Main Street cannot be widened without massive takings of private property.
It already takes half an hour to travel from the Tewksbury side of Wilmington to the Woburn side during the busiest parts of the day. Route 38 simply cannot handle the potential addition of that many residences without serious consequences for traffic.
We also have the usual concerns about town infrastructure and the burdens placed on town departments, public safety, and schools. In fact, a lion’s share of Wilmington doesn’t even have sewer service available to its residents.
A reasonable person can look at this situation and conclude that accepting a zoning change just so we can say “we are compliant with 3A,” or rejecting it outright, presents a no-win situation. The silver lining of rejecting it is that we maintain what little suburban feel we have left.
Wilmington currently has a little over $40 million in free cash. By remaining out of compliance with this act, Wilmington risks losing eligibility for certain state grants, representing approximately one-half of one percent of our annual budget, based on the funding figures I’ve reviewed.
As some have pointed out, grants are not guaranteed in the first place, so even that figure can be challenged. The grants that really matter will continue regardless of whether Wilmington decides to retain its suburban feel. We’ll simply be called names for doing so.
For those who say they have concerns about the “housing crisis,” Wilmington has already done its fair share to help address it.
We currently have two massive Avalon properties, one on Ballardvale Street and another on Salem Street. We have Whispering Pines on Salem Street. We also have apartment complexes on West Street, Cross Street, Lowell Street (two), and Main Street.
Furthermore, we have a second complex on West Street being constructed, along with the Princeton complex under construction on Middlesex Avenue. And this isn’t even an exhaustive list of the multifamily housing developments Wilmington has allowed.
Yet none of this seems to matter, when it absolutely should.
Wilmington has something that communities that immediately accepted this law did not have: time. This law has been in place for approximately five years, and thousands of housing units have been proposed, approved, or permitted across communities subject to its requirements. Yet housing prices continue to rise.
As those threats come our way, you can be sure that those advocating for compliance will not be emphasizing that reality.
A vote to accept this zoning change is, in my opinion, nothing more than a gift to developers. Five years into this law, where is the evidence that it has made housing more affordable for Massachusetts families?
Rejecting this proposal again sends a message to Attorney General Andrea Campbell that we, the people of Wilmington, will decide the future of Wilmington.
If Beacon Hill wants to steer the ship into an iceberg, it has the authority to do so. Just don’t ask us, the people, to take the wheel.
On November 21, it’s imperative that you show up and vote NO again.
Sincerely,
Rob Fasulo
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