3A constitutionality needs challenging

My View

Zenas Seppala

The upcoming vote on Gloucester’s compliance with the state’s MBTA Communities Act (3A) may be the most consequential decision residents will ever make regarding local governance and zoning.

At stake is not just how much housing is built, but who gets to decide what our neighborhoods look like. The 3A law mandates that 177 municipalities served by public transit — including Gloucester — must zone for multifamily housing near train stations.

But it does so with a sweeping, top-down approach that overrides more than a century of local control. What’s more, it imposes severe penalties on noncompliant communities.

The state government legislative and executive branches have chosen to push dense development into already crowded, expensive areas like Greater Boston and the North Shore, while neglecting to develop less-populated regions further west. It offers no real incentives — just threats. And it has paid no attention to constitutional protections that should have prevented such an overreach in the first place.

Let’s consider the practical limitations first. There is simply not enough capacity on the commuter rail train sets. The 3A mandate requires Gloucester to zone for a capacity of 1,135 units near the downtown train station.

Since all communities on the MBTA commuter rail line must engage, one community can’t fairly hold more train seats than its per capita populations; Salem and Lynn require many more seats than Rockport or Manchester-by-the-Sea. With current train configurations, Gloucester’s daily share on seven commuter trains per day amounts to just over 800 people.

Neither the trains themselves nor the rails they ride are flexible to absorbing increasing population. The single-track Rockport line hasn’t changed since 1861 and isn’t realistically expandable.

This isn’t a plan — it’s a bureaucratic fantasy, disconnected from physical reality. But even more troubling than its logistical flaws is the legal precedent it sets.

One city councilor advised on Good Morning Gloucester that zoning has “always come from the state,” but that’s false.

Massachusetts zoning authority emerged through a deliberate, voter-approved process. In 1918, Amendment LX to the state constitution granted the Legislature the power “to limit buildings according to their use or construction to specified districts.” The one and only purpose, then, was to protect residential neighborhoods from industrial encroachment — not to dictate housing unit counts or density requirements.

The current state law stretches that 22-word constitutional authority far beyond its original intent. The Massachusetts Supreme Judicial Court ruled in favor of the law in the Milton case, but only on narrow grounds — that the law did not violate the separation of powers by improperly delegating authority from the Legislature to the executive branch. That ruling does not validate the law in broader constitutional terms, nor does it address the deeper issue of state overreach.

According to the National Constitution Center’s educational materials, judges interpret constitutional text through a few primary lenses —most relevantly, textual meaning and historical context. Both approaches show that 3A is out of step with Amendment LX. That amendment gave the Legislature power to limit buildings by use — not to require cities to increase housing based on an arbitrary formula.

The historical record supports this. Former Gov. John L. Bates, president of the 1918 constitutional convention, described the amendment’s purpose as protecting residential areas from “invasions by manufacturing and mercantile business.” It was never intended to mandate housing production quotas or strip cities of zoning authority.

The landmark 1926 U.S. Supreme Court case Euclid v. Ambler upheld governmental zoning powers — but sought only to protect and prevent encroachment of residential property from value lowering alternative uses. In short, it aimed at preventing stinky, noisy and cluttering commercial entities from locating next to your house. Again, the idea was to prevent harm, not to force change.

I urge Mayor Greg Verga, who has stated his support for the measure, and others in local government to revisit the historical and constitutional basis for zoning in Massachusetts, with particular note to the last Constitutional Convention of 1917. The Supreme Judicial Court did not declare this law beyond challenge. Rather, it upheld a narrow provision of the state constitution — separation of powers.

If local sovereignty means anything, it must include the right to say “no” to coercive and unconstitutional mandates. If there is “little appetite” in the Legislature to repeal a law after its acceptance by the people — as state Senate Minority Leader Bruce Tarr has told “vote no” proponents, then Gloucester voters should and must make their voices heard at the ballot box. Vote “No” on 3A.

Zenas Seppala of Rockport is one of the plaintiffs in suits before the state and federal courts questioning the constitutionality of the MBTA Communities Act.