MA: Court upholds dismissal of challenges to Rockport MBTA zoning

The U.S. Court of Appeals has upheld a U.S. District Court’s decision to dismiss a number of state statutory and federal constitutional challenges to the creation of a new zoning district in Rockport’s downtown made by 11 Rockport residents.

The new zoning district, called the Massachusetts Bay Transportation Communities Multi-Family Overlay District (MCMOD), was created to bring Rockport into compliance with the state’s MBTA Communities Act, also known as Section 3A. The new district encompasses a previous district, also created to meet the MBTA Communities Act and approved by Town Meeting in 2022.

The Multi-Family Overlay District was approved by a simple majority at Town Meeting on April 29, 2024, but the day before the vote, on April 28, 2024, the plaintiffs filed their complaint in federal District Court against the town.

The plaintiffs argued creation of the districts required a two-thirds vote by Town Meeting. They also argued the zoning district “affected sharply” the property values of those who live within it by loosening zoning restrictions that required single-family housing and more greenspace.

Plaintiffs in the case were John Kolackovsky, Zenas Seppala, Ann Hyde, Robert Sonia, Jonathan Ring, Tim Rose, Ray Thursby, Dee Oliberio, Calandra Salo, Lary Salo and Cassi Hohenwarter. According to original complaint, they are registered Rockport voters and taxpayers, with some living on property abutting the Rockport commuter rail station or residing on property within the overlay district that was the subject of the dispute.

The federal district court had dismissed the residents’ claims for “lack of subject-matter jurisdiction — specifically, lack of standing.” The district court ruled the 11 residents failed to provide specific information as to the harm that has befallen each because of the zoning, and could not claim legislative standing because they had not been singled out for specially unfavorable treatment and because their votes had not been completely nullified.

The 11 appealed, and the First Circuit U. S Court of Appeals upheld the lower court’s decision.

“Because we agree that the residents have not alleged the necessary prerequisites to establish standing, we affirm the District Court’s order,” Judge Joshua Dunlap wrote.

“I guess this means our case was lost,” said Lary Salo, a longtime Rockport postal worker who now lives in North Carolina. “It doesn’t surprise me.”

Planning Board Chair Jason Shaw had two reactions to the decision.

“I’m surprised an appeal was taken,” he said. “But I’m not surprised at the result.”

Select Board member Ross Brackett also said he was not surprised at the decision.

“I always expected it to be upheld,” he said. “It was voted on by the people at Town Meeting.”

Efforts to reach Town Administrator Mitch Vieira and the town’s attorney, Amy Kwesell, a principal with KP Law, P.C., were unsuccessful before publication.

The MBTA Communities Act requires some communities to have a zoning ordinance or by-law that provides for an “of-right, high-density multi-family housing district” located within a half-mile of a mass transit station, in Rockport’s case, the MBTA commuter rail station at 17 Railroad Ave. Passed in 2021, the law aims to boost housing production near transit — requiring a minimum gross density of 15 units per acre.

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