ZBA: Dental building approvals were wrong

September 26, 2008
By

JOHN RUCH

FOREST HILLS—The city’s Inspectional Services Department was wrong in just about every decision it made that allowed the Bicon dental business to operate and expand at 501 Arborway, the Boston zoning Board of Appeal (ZBA) ruled this week.

The unanimous decision said ISD “erred” in issuing occupancy and signage permits to Bicon. ISD must now re-review the Bicon permits.

City Councilor John Tobin’s office is arguing that ISD should revoke all of the improperly issued permits and go through a normal community process. ZBA chair Robert Shortsleeve noted that a lack of community meetings was a significant issue.

“All that [neighbors are] requesting is that they have input on the uses,” Shortsleeve said.

It is unclear exactly what remedy ISD might suggest. One possibility is that Bicon would have to file for conditional use permits and other permits.

The Inspectional Services Department (ISD) already acknowledged making some incorrect decisions about Bicon earlier this year. But that was only after ISD officials—including Commissioner William Good—repeatedly told residents for years that Bicon’s operations were completely up to code. Meanwhile, there was no public notice or input on the massive changes at the site.

Neighbor Jerry O’Connor told the Gazette that residents hope to finally get what they wanted all along—a standard city zoning variance process, including community meetings.

“It’s very late in coming, but it’s still welcome,” he said.

The only comment from Bicon at the hearing came from Tom Peterson, who identified himself only as a Bicon employee. He complained that Bicon was not given any notice about the ZBA hearing, a claim the ZBA quickly dismissed as inaccurate.

“The same process should apply for everybody,” said City Councilor John Tobin, who held a council hearing last year about Bicon that finally pressured ISD into acknowledging its errors.

Neighbor David Vaughn told the Gazette that the city “owes us an apology, first and foremost, for the way they treated us over the past four years.” With the ZBA’s vindication, he said, the apology should come in the form of a full public process. “That means we go back to the drawing board,” he said.

The ruling was the second time this month that the ZBA blasted ISD’s decision-making on a controversial Jamaica Plain property. [See related article.]

“It almost seems to me like the agency is so big that it almost collapses under its own weight,” Tobin said of ISD, adding that it is a busy department doing a “difficult, difficult job.”

“This is a much bigger issue than Bicon,” Vaughn said.
Bicon changes

Changes at Bicon, whose official address in city records is 123 Morton St., over the past four years have been significant. So were ISD’s errors.

The Bicon building has an occupancy permit for office and day care use, according to the ZBA. But Bicon is a dental implant company that operates a clinic and runs a full slate of training courses that draws students from around the country.

ISD long insisted that the clinic was an allowed use, and denied that the training courses existed, even though they are advertised on Bicon’s web site. ISD and the ZBA now say those uses are not allowed.

Bicon made major renovations to its building, including adding a third floor atop it. Neighbors argued that work should have been reviewed by the Boston Parks Commission because the building is so close to the Arborway, which is technically state parkland. ISD long insisted that the building is not within the required 100 feet of the Arborway. ISD had since acknowledged that it was wrong on that issue.

ISD inspectors also failed to notice that a large Bicon sign erected in front of the property, apparently without a permit, was in violation of zoning code and also needed Parks Commission review.

After defending most of their decisions at the City Council hearing last December, ISD officials gradually acknowledged their errors and issued citations. The Parks Commission finally conducted its review, though it didn’t amount to much because it came after the construction was done.

But there still have been no community meetings, and Bicon appears to be operating as it did before the citations.
ZBA ruling

O’Connor and fellow neighbor David Vaughn requested that the ZBA make an official interpretation of ISD’s Bicon decisions. The idea was to get official clarity on what happens next.

The ZBA held a Bicon interpretation hearing in March, where it referred the situation to city lawyers for legal review. That took about half a year.

On Sept. 23, the ZBA announced that the basic result of the legal review was that anything the ZBA decided is fine. The actual legal review document will remain confidential, said Shortsleeve.

What the ZBA decided—unanimously—was that the neighbors were mostly right and ISD was basically wrong.

“The facility, in my view, is now conducting an illegal use,” said ZBA member Anthony Pisani, referring to the dental clinic and training courses.

He noted that one ISD inspection found 17 people attending a course in the building. But, he said, ISD attempted to argue that the course was a one-time “incidental” event, despite all of the courses that appear on the web site.

“I don’t subscribe to ISD’s commentary that it’s incidental,” Pisani said.

“If it’s incidental, it’s frequently incidental,” said Shortsleeve, likening the situation to a bar that gets a one-time permit for live music, then uses it to hold concerts every day. He called such practices a “nibbling to death” of the zoning code.

Pisani and Shortsleeve characterized the Bicon situation as an example of a lack of big-picture reviews of projects that they said plague the ZBA in recent times. “Had all this [Bicon review] been done at once,” Shortsleeve said, it would have been seen as a major project with significant code violations and received full input.

The ZBA also agreed that the Parks Commission should have reviewed the project and the sign. Shortsleeve noted that has since happened, even if it was basically in the wrong order. He also indicated surprise that there was ever debate about the issue. “It is within feet of the Arborway,” he said of the Bicon building.

On a smaller issue, the ZBA agreed Bicon needs to improve its “buffering” between a parking lot and nearby houses. The greenery there now “to me, looks like weeds,” Shortsleeve said.

In the ZBA’s only disagreement with neighbors, it said that Boston Redevelopment Authority review of the building expansion was not required under zoning code.

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