In the latest defeat for anti-3A forces in Winthrop, a Massachusetts Superior Court judge has dismissed the lawsuit brought by a group of private citizens challenging the state’s enforcement of the housing expansion law.

The judge, Mark Gildea, cited a series of reasons for rejecting the lawsuit, centering on his understanding that the private group bringing the case has no legal standing to do so.

Judge Gildea also noted that the private group, calling itself the Winthrop Says No to 3A Committee, has shown no harm to Winthrop from complying with the 3A law or any evidence that its position represents that of the town overall.

Further hearing

“Thus the committee should not be permitted to act on behalf of the entire town concerning enforcement of the act,” Judge Gildea said in his ruling last Thursday.

At the same time, however, Judge Gildea scheduled a hearing for August 25 at which the court would consider an effort by the town of Winthrop to get officially involved in the case.

That’s a reference to the fact that the Winthrop Town Council, in one of the most controversial moments of its year-plus effort to fight the 3A law, voted in April to join the private lawsuit.

The 3A law, also known as the MBTA Communities Act, was passed overwhelmingly by the state legislature in January 2021 and signed into law by Governor Charlie Baker. It requires nearly all communities in eastern Massachusetts to add zones that permit multifamily housing.

Town split

Nearly all of the affected communities have complied with 3A rather than face legal action and associated cuts in state aid. Winthrop is among the few that have not complied, despite the fact it could do so without adding housing by rezoning parts of town that already have multifamily housing complexes.

The Town Council’s action in April to join the private lawsuit reflected the fact that voters in November overwhelmingly elected Town Council members opposed to 3A law. Yet the 5-3 vote to join the case demonstrated growing concern on the council that Winthrop’s fight against 3A had become an increasingly futile effort that was dividing residents and costing the town millions of dollars in state aid tied to 3A compliance.

The pursuit of the case also raised ethical issues, including the decision by some serving Town Council members to participate in the private case and then advocate for the town joining it. The private group also has been led by Diana Viens, a daughter of Town Council member Suzanne Swope, and Michael Walsh, a Lynnfield lawyer who is running for state attorney general despite a judge finding fraud in his collection of signatures to get on the ballot.

The town still has its own lawsuit against the state arguing that Winthrop should be entitled to an outright exemption from the law, while the state has included Winthrop among the towns it is suing to force compliance.

Unsubstantiated claims

Judge Gildea previously refused to halt 3A enforcement. In his latest ruling, he affirmed an earlier court ruling in the case that questioned a series of key assertions by the group of private anti-3A citizens. In particular, Judge Gildea said, the damage alleged in such a lawsuit must affect the defendants themselves, and it “must be more than speculative.”

Judge Gildea described the private citizens as making unsubstantiated claims about matters such as increased traffic and the destruction of buildings. “The plaintiffs have failed to claim, much less show, that the action they sought to have reviewed resulted in ‘substantial injury’ or ‘manifest injustice’ to them, rather than the public in general,” he said.

Parties in the case did not respond to requests for comment.

Judge Gildea did not explain the purpose of the August 25 hearing beyond describing his intent to keep it on the schedule as a moment to consider the question of the Town Council’s bid for involvement in the case.