On its third try, the Winthrop Town Council voted to join a lawsuit against the state brought by private citizens opposing the state’s 3A housing expansion law, defying the town legal counsel’s recommendation against escalating the divisive year-long battle.

Winthrop already is rare as one of the few communities in eastern Massachusetts still fighting 3A and facing promised cuts in state aid and a lawsuit from the state attorney general demanding compliance with it. The town is especially rare among the holdout communities in taking that position while not facing any new housing requirement from 3A.

The new action, approved Tuesday by the Town Council on a 5-3 vote, would have the town join a separate lawsuit against the state brought by private citizens from Winthrop and beyond that contends – even though Winthrop could comply by rezoning existing multifamily neighborhoods – that 3A would unfairly harm the town because of its small size.

The Town Council was blocked at two previous meetings this month from voting on the matter by the council’s president, Jim Letterie, who is among three council members describing themselves as staunchly opposing 3A but regarding the private lawsuit as an unnecessary and costly complication for the town.

Council authority

At Tuesday’s council session, Mr Letterie was joined by the town manager, Tony Marino, and the town’s legal counsel, James Cipoletta, in arguing that the language proposed by some council members to join the lawsuit violated the town’s governing charter because the Town Council does not have the legal authority to order Mr Marino or any of his subordinates in the town government, including Mr Cipoletta, to take any particular action.

In response, the sponsor of the proposal, council member Joseph Romano, agreed to reword its language so that the resolution requests that Mr Marino instruct Mr Cipoletta to join the private lawsuit, rather than orders Mr Marino to do so.

That version collected the necessary five votes, of Mr Romano along with council members Patrick Costigan, Suzanne Swope, Paul Reardon and Martin Finn.

Immediately before the vote, Mr Romano directly asked Mr Marino if he would act in accordance with the request, even though the amended language didn’t directly require him to do so. Mr Marino responded briefly, saying: “I’m not picking a fight with the council, I just want to be sure it’s legal and done properly.” He did not elaborate.

Legal concerns

Mr Cipoletta, in an extended address to the Town Council just beforehand, promised that he would do as instructed, but does not believe it would be wise for the town to join the case. “That’s a real tough thing to do, to spread your assets so thin,” he said.

The town counsel did speak caustically of the 3A law and described mounting an aggressive fight for the town against the attorney general’s lawsuit. But with respect to the private case, Mr Cipoletta listed a series of concerns, including the time and cost of joining it.

Among the possible specific challenges of working with the citizen group bringing the private lawsuit, Mr Cipoletta said that he has seen it take credit for obtaining a halt in the attorney general’s case against the town, when it has not done that.

The Town Council’s consideration of the situation included an impassioned plea from Terence Delehanty, a former Winthrop police chief and two-time interim town manager. Mr Delehanty warned the council against believing it had the legal right to order any action by Mr Marino.

Big disappointment

And Mr Delehanty expressed his concern over the council’s entire handling of the situation, dating back to the April 7 council meeting at which Mr Letterie and Mr Romano led an extended argument over whether the council could vote on the question, saying he felt a “big disappointment in the entire process.”

Before the vote, several members of the Town Council described themselves as bringing no personal conflict of interest to their decision on the question of joining the private lawsuit. Mr Letterie, however, suggested that all property owners in town have a financial interest in the lawsuit, and he made particular note of a “perception of impropriety” in the situation. He did not elaborate, though some council members have been questioned by residents over their position as participants in the private lawsuit.

Signs of the tone included council member Kim Dimes, an opponent of the town joining the private lawsuit, complaining that a written notice of Tuesday’s meeting was placed in her personal mailbox, calling it a violation of federal law. And Mr Reardon, a proponent, said that nobody on the body was going to be swayed in their vote by the council’s debate of the matter.

Advocates of joining the public lawsuit offered no estimate of the legal action’s cost to the town. Yet Mr Cipoletta said he anticipated many months before courts take up the private lawsuit, Mr Letterie predicted the process would generate revenue for lawyers, and Mr Romano acknowledged ongoing costs to the town. “These grants are starting to add up,” Mr Romano said of the state aid lost by the town.