Town of Wenham Files Superior Court Action to hold the Commonwealth’s Housing Agency Accountable to its Legal Obligations Under the MBTA Communities Act

The Town of Wenham has been a leader in the development of affordable housing. Its Chapter 40B inventory stands at nearly 12.5% and the Town has proactively advanced a comprehensive Master Plan aimed at creating even more diversity in its housing stock. To date, Wenham has also complied with all applicable legal requirements of the MBTA Communities Act, also known as “3A” – the overall policy goals of which the Wenham Select Board supports.

However, the Commonwealth’s housing agency, the Executive Office of Housing and Livable Communities (“EOHLC”), has regrettably shown it is not living up to its own legal obligations under 3A. Indeed, the agency is disregarding those obligations, even those directly ordered by the state’s highest court in a recent 3A case brought by another MBTA community. For Wenham, the Commonwealth’s failure and refusal to follow the law is made worse by EOHLC’s improper application of arbitrary and inequitable housing production formulas on Wenham that are inconsistent with the letter and spirit of 3A.

The Select Board and other Wenham officials and boards have repeatedly sought dialogue with EOHLC to correct its application of 3A mandates on the Town, and to work with the agency to calibrate a sensible 3A zoning plan that will actually promote more affordable housing. But EOHLC has not productively engaged with Wenham on such changes. Moreover, EOHLC has not followed the law to provide a Fiscal Impact Estimate for the agency’s proposed regulations implementing 3A – even though this was an action EOHLC was expressly ordered to take by the Supreme Judicial Court in its January 2025 Town of Milton decision concerning 3A. Issuing the Fiscal Impact Estimate is also a step Wenham’s Select Board requested of EOHLC in writing more than one month ago to aid in the Town’s own 3A fiscal impact analysis. EOHLC has not responded to that formal request by the Town and has given no cogent explanation why it is not following the Supreme Judicial Court’s order to produce a Fiscal Impact Estimate.

Accordingly, EOHLC has left the Town of Wenham with little choice but to file legal action in Superior Court seeking, among other appropriate relief: an exemption from complying with current 3A regulations; injunctive relief to prevent the unfair imposition of EOHLC’s housing production formulas on the Town; and an order compelling EOHLC to issue a bona fide Fiscal Impact Estimate.

A majority of the Select Board has voted to move forward with this legal action, which is further detailed in the comprehensive Verified Complaint enclosed herewith.