MBTA Community Act, Section 3A: What’s at Stake for Our Town's Future?

Weston will vote on the MBTA Community Act, Section 3A of the Zoning Act at the December 3rd Town Meeting. It is essential to understand how this Act, in conjunction with other related housing initiatives, could affect Weston in many significant, potentially transformative ways.  

The State’s 3A Guidelines, created by Executive Office of Housing and Livable Communities (EOHLC), requires Weston enable the addition of 750 units to Weston’s current housing stock of about 4,000 units on 50 acres of rezoned land. This is in addition to 40B and other multi-unit projects permitted or under consideration. Combined, these recent zoning requirements have the potential to increase housing units in Weston by over 30% in a very short time.  

Voting "NO" on Section 3A at the December 3 Special Town Meeting is the most responsible choice to protect Weston’s future. Waiting for the outcome of the Town of Milton lawsuit against the State, as discussed below, will clarify the State’s authority over local zoning and prevent any premature Weston rezoning that would later be irreversible even if later proven to be unnecessary. Let’s ensure Weston retains control over its growth, making thoughtful decisions that preserve our town’s exceptional character and sustainability.

A “NO” vote on Section 3A is necessary to defer consideration of any Weston 3A rezoning until the Milton litigation is concluded.

What is the MBTA Community Act, Section 3A?

This Act, which became Massachusetts law in 2021, requires 177 towns and cities, designated as “MBTA communities”, to create at least one high-density, multi-family housing zoning overlay district near public transportation and have a minimum gross density of 15 units per acre. The housing units would be constructed without age restrictions and “if applicable,” this district must be within a half mile from public transportation.

Read the Act as written

How many additional housing units will be added to Weston?

The Guidelines created by EOHLC require Weston to enable the addition of 750 units to Weston’s current housing stock of just over 4000 units. This increase is in addition to other Weston multi-unit projects permitted or under consideration, such as the roughly 500 40B units now in process in Weston. Together, these could result in a potential increase in Weston’s existing housing stock of over 30% in just the next few years. Further, the impact from the also new Massachusetts law requiring towns to permit unlimited Auxiliary Dwelling Units (ADUs), while currently unknown, will undoubtably further increase our housing stock and exacerbate the pressure on our Town infrastructure, schools, services, and character.

Where would the 750 3A units be constructed?

The current Planning Board proposal would create five new 3A Multifamily overlay zones, which could together add more than 750 new high-rise apartment units in Weston.

View the Zoning Districts map for the specific geography

Does the MBTA Community Act require a town or city to comply?

It remains unclear whether the MBTA Community Act legally requires a town or city to comply, until the outcome of the Milton litigation is decided. This case could establish important legal precedent, determining whether towns do indeed need to comply, as the State Attorney General insists, or can opt out without facing significant negative consequences. Waiting for this decision is essential to avoid potentially irreversible rezoning mistakes and/or financial penalties, not to mention undesirable State mandates. Nevertheless, the Select Board and Planning Board have decided to proceed to ask Weston residents to go ahead and vote on the plan they have been developing with the help of the State’s paid consultants, regardless of the still unresolved Milton litigation. That is why a "No" vote by Weston voters now is the most prudent course of action at the December 3 Special Town Meeting.

What are the financial penalties for non-compliance with the Act and Guidelines? How would this affect Weston?

The penalty to a town for non-compliance was specified in the Act as simply the loss of some modest state housing funds, essentially none of which Weston receives or would ever be likely to receive. While the Attorney General has threatened towns with broader consequences for non-compliance, Milton has argued in its litigation that those threats far exceed her authority.

Are there communities that have voted not to enact the MBTA Community Act?

Yes, the most notable example is Milton, which voted in a townwide referendum against compliance and is currently being sued by the Massachusetts Attorney General. Milton countersued and the outcome still pending. The Massachusetts Supreme Judicial Court heard arguments a few weeks ago from both sides and is expected to render an opinion in 2025.

Following Milton's decision to maintain its local governance, thirteen additional communities have also voted against compliance, while many others, including Weston, have not yet held a Town Meeting vote.

What is the litigation between Milton and Massachusetts Attorney General pertaining to the Act?

Milton argued that (1) the Guidelines were improperly promulgated and deviate so significantly from the MBTA Community Act that the Guidelines would be unenforceable, and therefore not require compliance, and (2) the Attorney General lacks the authority to enforce the law beyond the penalties specified in the Act — in other words, the very modest financial penalties (that would not pertain to Weston in any case). Several amicus briefs were filed, including a number from other communities and community groups in support of Milton in the litigation.

How have the compliance requirements of the MBTA Community Act been significantly expanded and altered by the guidelines issued by the EOHLC?

These are some examples of how the Guidelines went well beyondthe Act:

• EOHLC has directed Weston to create new overlay zones that could provide 750 units total, only 300 of which must be within a half mile of a transit station, unlike the Act requiring units “….be located not more than 0.5 miles from a commuter rail station….”

• EOHLC has claimed the right to over-rule any provision of a community’s proposed zoning By-Law amendment and/or Compliance Model, thereby removing zoning control from Weston’s own planning and zoning authorities.  

• The Attorney General has threatened to impose penalties on non-compliant communities that greatly exceed those modest financial penalties explicitly enumerated in Act.  This significantly expands the authority of Attorney General beyond the scope of the Act, and as a legal principal, is much more generally concerning

• Zoning changes in Massachusetts have always required a 2/3 vote for passage, but the Guidelines mandate only a simple majority, for which there is otherwise no legal basis. 

Read the Guidelines as written

Under the Guidelines, will Weston have a right to enforce its zoning and building codes or determine the composition of the dwelling units?  

No. EOHLC has sole authority to approve Weston's 3A compliance plan. Weston is specifically precluded from imposing any zoning code restrictions on the composition, unit sizes, or occupancy of the dwelling units, undermining our local governance and stripping away our ability to manage our Town’s growth and character.

Under the Guidelines, may Weston determine the number of dwelling units set aside for seniors, families or affordable housing?  

No. There is no By-Right requirement or authorization for including affordable units, although EOHLC in its sole discretion has allowed towns to designate up to 10% of the units for affordable housing. Age restrictions are also not allowed, and dedicated senior housing is explicitly excluded. There are no requirements concerning the number of units set aside for families with children. The composition of the dwelling units is solely left to the discretion of a developer, as a profit-driven enterprise, as approved by the EOHLC. Generally, constructing expensive housing units is much more profitable for a property developer than, for instance, affordable housing.  

What will the Planning Board and Select Board present to the voters at the Town Meeting on December 3rd?

The Planning Board’s proposed compliance plan for MBTA Section 3A is contained in a Zoning By-Law draft, published on the Town’s website, subject to further revision.

In Conclusion

Voting NO on Section 3A is the wisest choice right now, so that we do not jump the gun and make significant rezoning decisions we could soon regret, but not be able to reverse. Waiting for the Milton case to conclude is essential, as it is likely to clarify the State’s authority to enforce the new EOHLC zoning mandates. Allowing the State and developers to dictate Weston’s growth and character could lead to unchecked impacts on our infrastructure, traffic, schools, and services—burdens we, the residents, would be left to shoulder.

By voting NO, we can better preserve control over Weston’s future, ensuring that decisions about growth are made carefully and with more complete insight. Let’s protect Weston's character and sustainability by taking the time to make an informed choice.