On Friday, September 18, 2026, the Massachusetts Supreme Judicial Court (the “SJC”) affirmed the dismissal of the Town of Marshfield’s challenge to the MBTA Communities Act (the “Act” or “Section 3A”).[1] The decision confirms that covered municipalities must adopt and maintain zoning that permits multifamily housing as of right in at least one district. It also rejects Marshfield’s four principal theories for avoiding that obligation, which are explored in more detail below. Notably, the SJC rejected Marshfield’s claim that the Act improperly imposes an unlawful mandatory direct service or cost obligation on cities and towns. For multifamily developers and lenders, the immediate takeaway is that there is now increased legal certainty around the need for all municipalities subject to the MBTA Communities Act to adopt and maintain zoning that permits multifamily development as of right. Those communities that have continued to hold out from compliance and that have challenged the state’s role in zoning have lost another challenge to the MBTA Communities Act. The SJC made it clear that municipalities must comply with the requirements of the Act and that the Act is a valid law addressing the statewide housing shortage. The MBTA Communities Act: What it Does Enacted in 2021, the MBTA Communities Act requires each “MBTA community”[2] to have at least one zoning district of reasonable size in which multifamily housing is permitted without age restrictions and suitable for families with children,[3] without a special permit or other discretionary zoning approval.[4] The statute generally requires the district to have a minimum gross density of 15 units per acre and, where applicable, location within one-half mile of a commuter rail station, subway station, ferry terminal, or bus station. Importantly, the statute is only a zoning mandate and does not compel landowners to construct multifamily housing or any specified number of units. The implementing regulations promulgated by the Executive Office of Housing and Livable Communities (“EOHLC”)[5] use community categories, minimum land area, unit-capacity calculations, density, location, and other criteria to determine compliance. Non-compliant communities are ineligible for certain state funding programs, including the Housing Choice Initiative, Local Capital Projects Fund, MassWorks infrastructure program, and HousingWorks infrastructure program.[6] The SJC previously confirmed in Attorney General v. Milton[7] that the Act imposes an enforceable, mandatory duty upon affected communities to comply. How the Marshfield Dispute Arose Marshfield, an MBTA community, held special town meetings on April 22 and December 16, 2024 to consider zoning amendments intended to bring the town into compliance with the Act, and both proposals failed. On February 10, 2025, the Select Board unanimously voted not to approve an interim action plan to help bring Marshfield into compliance with the Act. EOHLC then notified Marshfield that it was non-compliant and risked losing state grant funding. Marshfield and its Select Board sued the Commonwealth and EOHLC in Superior Court arguing that the Act and its regulations: (1) constituted an unfunded local mandate; (2) infringed upon the voting rights of town meeting voters; (3) violated the Home Rule Amendment to the Massachusetts Constitution; and (4) conflicted with other zoning laws that govern local adoption of zoning ordinances. The Superior Court dismissed Marshfield’s suit, and the SJC accepted direct appellate review. The SJC’s Decision  Marshfield’s Local Mandate Argument. Under Massachusetts’ Local Mandate Law, state laws and regulations adopted after 1980 (with some exceptions) that impose a mandatory direct service or cost obligation upon municipalities can only be binding in a municipality if the law or regulation has been accepted by that municipality (either expressly or implicitly).[8] However, costs attributable to incidental administrative expenses or the municipality’s voluntary choices about how to comply with a law do not fall within the definition of “direct service[s] or cost obligation[s]” prohibited by the Local Mandate Law. Marshfield argued that the costs of evaluating and drafting proposed zoning bylaws, presenting them at town meetings, and anticipated future expenses required by the MBTA Communities Act violates the Local Mandate Law. The SJC rejected Marshfield’s local mandate argument, holding that the only costs of compliance with the Act alleged by Marshfield (i) constituted incidental administrative expenses, (ii) were voluntary choices of the municipality, or (iii) were too speculative. Importantly, the SJC did not hold that every possible cost associated with Section 3A compliance is categorically outside § 27C.  Marshfield’s argument regarding violation of voters’ constitutional rights. As noted above, the second argument made by Marshfield was that the Act violates the voting rights of its citizens. However, the SJC held that Marshfield, as a political subdivision of the Commonwealth, generally may not challenge a state law by asserting state constitutional protections belonging to persons independent of the Commonwealth. Since the case was brought by the town and the members of its Select Board in their official capacities and alleged no personal injury, the SJC determined that they lacked standing to assert the claimed voting rights violations on behalf of the town’s voters.  Marshfield’s argument that the Act violates the Home Rule Amendment. In its decision, the SJC explained that the Home Rule Amendment[9] preserves municipal authority over local matters, but does not prevent the Legislature from imposing substantive requirements through a valid general law addressing a statewide concern. Since housing supply is not confined to any one municipality, the SJC concluded that the Act falls within the Legislature’s retained authority and does not violate the Home Rule Amendment.  Marshfield’s argument that the Act conflicts with ordinary zoning-adoption procedures. Marshfield also argued that the Act conflicts with M.G.L. c. 40A, § 5 which governs the adoption of zoning ordinances by municipalities. However, the SJC determined that Section 5 continues to govern the local procedure for adopting and amending zoning, whereas the Act imposes a substantive state-law requirement on the zoning that results. City councils and town meeting voters remain free to debate, amend, approve, or reject a proposal, but their authority does not include exempting the municipality from valid state law. A vote rejecting compliant zoning, therefore, results in municipal non-compliance; it does not invalidate Section 3A or create a statutory conflict. Practical Implications Greater durability of the statewide zoning framework. The decision removes the specific legal theories Marshfield advanced as a basis for opting out and reinforces prior authority that Section 3A is mandatory. Cities and towns, therefore, must adopt zoning and seek EOHLC approval to avoid non-compliance. Zoning capacity is not project entitlement. A compliant district must allow multifamily housing as of right, but site-plan review may still regulate layout, access, design, and screening so long as it does not operate as a disguised discretionary denial or make a compliant project impractical. Other generally applicable permitting regimes remain relevant. Municipal implementation still matters. The value of Section 3A zoning to a development project will vary by location, dimensional standards, parking requirements, parcel configuration, infrastructure, wetlands, Title 5 constraints, and market conditions. Developers should analyze the adopted bylaw or ordinance, zoning map, and any later municipal amendments or practices rather than relying solely on a community’s published compliance status. Compliance is ongoing. Under 760 CMR 72.10, EOHLC may rescind a compliance determination or require changes if a municipality materially alters the district or fails to issue permits for qualifying as-of-right development. Project teams should monitor post-compliance zoning amendments, local rules, and permitting conduct that could affect the district. Financing diligence should remain site-specific. Lenders may take additional comfort from the SJC’s validation of the statutory framework. However, as always, in making lending decisions and considering construction draw requests for any particular project, lenders should continue to be mindful of current zoning, building and other entitlement compliance, the status of non-zoning permits, etc. Non-compliant municipalities remain a live enforcement and timing risk. The case confirms that a failed local vote does not excuse non-compliance but does not directly address the remedy for continued refusal of a municipality to comply. Developers pursuing sites in a non-compliant community should account for continued uncertainty until compliant zoning is adopted, approved, and applied in practice.  The unfunded-mandate issue is narrowed, not erased. Because the SJC expressly declined to rule categorically on all compliance costs, other municipalities may try to make future arguments that specific costs associated with the Act constitute an unlawful unfunded mandate. This case nevertheless sets a demanding standard and makes clear that generalized costs of the type described by Marshfield do not fall within the unfunded mandate prohibition. Conclusion Marshfield is a significant affirmation of the Commonwealth’s authority to require qualifying multifamily zoning in MBTA communities. For developers and lenders, it strengthens confidence that Section 3A districts rest on a valid statewide mandate and that municipalities cannot rely on ordinary local voting procedures, home rule, generalized cost allegations, or third-party constitutional claims to opt out. Municipalities must continue to take steps to ensure compliance with the Act. Sullivan’s Real Estate, Permitting & Land Use, and Real Estate Finance teams are monitoring implementation of the MBTA Communities Act and related enforcement and are available to assist with zoning, permitting, development, and financing questions. [1] Town of Marshfield v. Commonwealth, SJC-13840, slip op. (Sept. 18, 2026). [2] MBTA communities are defined as municipalities that host MBTA service, “served communities” that abut a host municipality, and certain other municipalities that have become subject to the Act through M.G.L. c. 161A, § 6. [3] M.G.L. c. 40A, § 3A(a)(1). [4] M.G.L. c. 40A, § 1A. The EOHLC regulations, however, permit site-plan review and certain other constraints. [5] 760 CMR 72.00. [6] M.G.L. c. 40A, § 3A(a)(2). [7] Attorney General v. Milton, 495 Mass. 183 (2025). [8] M.G.L. c. 29, § 27(c). [9] Article LXXXIX of the Amendments to the Massachusetts Constitution.

On April 16, 2025, the Massachusetts Supreme Judicial Court (the “SJC”) issued a decision concluding that a claim based on a negotiated contract providing for indemnification of damages caused by an architect’s negligence cannot be time barred under the statute of repose. The decision may noticeably impact negotiation and litigation of construction agreements going forward; parties in the construction industry need to pay careful attention to such provisions in their contracts. In the case, Trustees of Boston University v. Clough, Harbour & Associates LLP[1], the defendant architect agreed to design a new athletic field for Boston University. As part of the agreement, the sophisticated parties negotiated an express indemnification provision pursuant to which the architect promised to indemnify the university for “any and all” expenses incurred by the university as a result of the architect’s “negligen[t]” design. The SJC noted that this provision is not part of the American Institute of Architects (AIA) Standard Form of Agreement Between Owner and Architect, AIA Document B101-2007 used by the parties. When the university began to experience problems with the field after it first opened in 2013, it demanded, pursuant to the indemnification provision, that the architect indemnify it for the expenses. More than six years after the field opened, the university sued. The architect moved for summary judgment, relying on the statute of repose, and the Superior Court allowed the motion. Boston University appealed, and the SJC, recognizing the importance of the issue, took the case on direct appellate review, bypassing the Appeals Court. The SJC noted that the statute of repose[2] provides an automatic, nearly inviolable bar to actions of tort for damages arising out of “any deficiency or neglect in the design, planning, construction or general administration of an improvement to real property” if brought more than six (6) years after the earlier of (1) the opening of the improvement to use; or (2) substantial completion of the improvement and the taking of the possession for occupancy by the owner. The statute of repose does not, however, apply to contract actions; it is a limitation expressly applicable to actions of tort. The SJC therefore analyzed whether the action, although styled a contract claim, was really one of tort. In its analysis, the court noted that it would look beyond labels to examine the “gist of the action” to determine whether the tort statute of repose bars the claim.  The court wrote that determining where the gist of a claim falls depends largely on where the standard of performance is derived from. In contracts, the standard of performance is set by the defendant’s promises, whereas in tort, it is set by law. For example, the court observed that it has previously determined that the tort statute of repose applies to a claim for breach of an implied warranty, since the duty is imposed by law, and that the elements for breach of implied warranty and for negligence claims are the same. In contrast, it cited Gomes v. Pan Am. Associates[3] as an example of a contractual indemnification clause upheld in spite of a negligence claim brought more than six years after the property opened for use, where the parties freely and intelligently entered into a comprehensive contract of indemnification. Because in the Boston University case, the architect’s duty to indemnify the university was not one imposed by law, but rather, a promise to which the architect freely and intelligently chose to be bound, the SJC held that the gist of the action sounded in contract.[4] As a contract claim, the statute of repose could not apply, and the prior grant of summary judgment was reversed and remanded for further proceedings. Importance of the Decision As specifically noted in the SJC’s decision, the type of indemnification provision at issue, which included an indemnity for negligence, is not found in the standard AIA form most often used in construction contracting. That may change moving forward, but unless and until it does, the weight of negotiating such a clause into that type of contract has taken on additional importance. The statute of repose has long been a powerful shield for those in the construction industry to fend off lawsuits arising many years after completion of a project. There are very few ways to sue around a construction claim that arises more than six years after the project is complete. This decision now adds a meaningful sword to the arsenal of property owners for use in combating those protections. Relevant here, while the statute of repose is a strict six year limitation from completion of the project, the six year breach of contract limitation period only begins to run from the time of breach; in this case, that occurred when the architect refused to indemnify the university. Having that statute of limitations tolled pending a breach gives significant life to contract claims arising long after the project is completed. Parties on both sides of such construction contracts will need to consider how to approach negotiating indemnification provision moving forward. If they are not careful, construction professionals could find themselves liable for damages occurring decades after a construction project is completed. The Legislature’s response to the decision will be another intriguing area to watch. Caselaw is full of decisions noting the legislative intent in providing certainty and ironclad protections for construction professionals after six years, when they might otherwise forever be on the hook for latent defects in their work. Whether the Legislature takes action in response to this ruling remains to be seen; it may find that the SJC continued to honor its intent by only providing a carve out for those sophisticated parties willing to enter into a heavily negotiated indemnification provision, or it may feel that the loophole goes too far in adding pressure on construction professionals who may be forced to agree to provisions they would otherwise choose to reject. The Legislature’s response will be closely watched by the field. *** Sullivan’s Real Estate and Litigation teams are paying careful attention to these developments and stand ready to assist with the negotiation and litigation of such contracts and disputes. Please feel free to contact our attorneys with any questions on this significant development in construction law.    [1] 495 Mass. 682 (2025). [2] G.L. c. 260, § 2B, first par. [3] 406 Mass. 647, 648 (1990). [4] It further noted that, while not dispositive, because the complaint alleged breach of contract, the elements that the university would have to prove at trial differed from those in negligence, and supported the reading that the claim truly did sound in contract.