34 groups work to join Rockport 3A suit

The suit argues that the MBTA Community Act requiring 177 MBTA communities to allow multi-family housing as of right in at least one zoning district is unconstitutional, and would place an undue strain on the services and infrastructure of their respective jurisdictions.

By Stephen Hagan

» Staff Writer

ROCKPORT — The number of citizen groups attempting to join forces in a lawsuit to fight the state’s MBTA Community Act, also known as the Section 3A housing law, is growing.

A lawsuit, first filed by litigants in Rockport on Oct. 5, 2022, has seen 34 citizen groups attempt to join the legal action, according to Michael C. Walsh, an attorney with Lynnfield-based law firm Walsh & Walsh LLP who represents a number of plaintiffs in the legal actions.

The suit argues that the MBTA Community Act requiring 177 MBTA communit ies to allow multi-family housing as of right in at least one zoning district is unconstitutional, and would place an undue strain on the services and infrastructure of their respective jurisdictions. Gloucester, Rockport, Manchester-by-the-Sea and Essex are all considered MBTA communities by the state.

Rockport resident John Kolackovsky, a plaintiff, said the 34 groups hope to make the suit a class action. But motions made by four groups to join were “held in abeyance” until the judge decided whether the main case could move forward.

The judge dismissed the main case, and with it, the four groups’ motions. Then Aug. 2, the plaintiffs filed an appeal “in relation to the decision on the motion to dismiss” and the “failure to grant their motion to certify a class.”

There are actually two cases pending — one in Massachusetts Superior Court and another one in U.S. District Court.

Although state Attorney General Andrea Campbell has ruled the 3A zoning law is constitutional, state Auditor Diana DiZoglio has said it is an “unfunded mandate.”

“That’s a game changer,” Walsh said of DiZoglio’s ruling.

He said a “motion for extension” of the appeal in state court should be filed April 1. A “motion for extension” is a formal request made to a court asking for more time to complete a specific action or meet a deadline, such as filing a brief or responding to a motion.

Walsh said after April 1, the attorney general’s office is expected to submit its briefs on the case.

“We probably won’t have an oral argument until July or August,” he said.

On Monday, Kolackovsky said he did not know when a final decision would be rendered on the case.

The 34 citizen groups’ motions took plac e independently, starting with the first wave who attempted to join the Rockport action.

“Without soliciting support from others, citizen groups from other towns eventually heard about the lawsuit and concurred with the objections in the Rockport lawsuit,” he said. “As a result, nine separate citizen groups from nine different towns joined the Rockport suit with their individual motions to intervene on (March 24, 2024).”

The original group of

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litigants attempting to join the Rockport lawsuit were groups from Rowley, Malden, Wayland, Marblehead, Danvers, Gloucester, Millbury, Wakefield and Winthrop.

Since then, others have attempted join the lawsuit – including ones from Manchester-by-the-Sea, Chelmsford, Belmont, Reading, North Reading, Lexington, Carlisle, Wilmington and Franklin, Kolackovsky said.

He contends the state’s MBTA 3A directive is a poor initiative.

“Serious economic studies should be considered before any municipality votes on the state mandate,” he said.

Kolackovsky is optimistic the legal actions that oppose the state’s MBTA 3A law will be successful.

“I believe the likelihood is good,” he said. “I hope the law becomes nullified.”

In the meantime, a February letter was sent by the Massachusetts Executive Office of Housing & Livable Communities to Rockport Town Administrator Mitchell Vieira, Planning Board Chair Jason Shaw and other town officials formally acknowledging the state agency determined Rockport’s Multifamily Overlay District plan to be “conditionally complaint” with the state’s MBTA Communities Act.

Stephen Hagan may be contacted at 978-675-2708, or shagan@gloucestertimes. com.