Neighbors sue over Walnut Ave. homeless project

February 4, 2011
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PARKSIDE—Eleven residents in the vicinity of 461 Walnut Ave. have filed a lawsuit against the Boston Redevelopment Authority (BRA) and the developers, Boston Healthcare for the Homeless Program (BHCHP) and Jamaica Plain Neighborhood Development Corporation (JPNDC), in hopes of halting the project.

“The only way we understand to have an influence on the project is to stop it,” Jason Heinbeck, a neighbor and plaintiff in the lawsuit, told the Gazette on Oct 3. Heinbeck did not return Gazette phone calls last week.

The lawsuit, filed just before Christmas, has the immediate effect of stalling the redevelopment for an expected six to 12 months. Along with Heinbeck, the plaintiffs are Walter Pollard, Kingsford Swan, Catherine Fitzgibbon Pollard, David Nagle, Siana LaForest, Stephanie Heinbeck, Luis Prado, Alex Rhem, Kirsten Patzer and Judy Sullivan.

“I’m sorry that it will delay the project,” Robert Taube, executive director of BHCHP, told the Gazette in a phone interview. “We’re disappointed, but expect the project to go forward as approved by the BRA board. We’re fully committed to it.”

The redevelopment of the building, approved by the BRA board in November, has been fraught with controversy, as neighbors and abutters, many of them from Montebello Road, have been vocal both in their support of and opposition to the project since it was proposed last June, when BHCHP teamed up with JPNDC and Pine Street Inn (PSI).

“People are opposed to this project, and continue to want to stop it,” Richard Thal, executive director of the JPNDC, told the Gazette in a phone interview last week. “But we’re confident that we have a strong case. This is a really good project, there’s a desperate need for this kind of medical care.”

The developers’ plan would make the former Barbara McInnis House across from White Stadium in Franklin Park into a respite care facility with 20 beds on the ground floor and 30 studio apartments for medically frail and elderly formerly homeless people on the upper two floors.

Zoning complaints
Although neighbors registered many complaints throughout the community process, the main point of contention since last November has been JPNDC’s decision to file their required zoning variances under chapter 121A, which required the BRA board to consider citywide objectives in relation to the project, grant all the variances as a group and determine taxation of the property, instead of following the more traditional path through the City’s Zoning Board of Appeal (ZBA).

The BRA board approved JPNDC’s request for zoning relief under chapter 121A with one abstention at its Nov. 16 meeting at City Hall.

The suit alleges that “the BRA grant of exemptions from applicable zoning regulations [was] in violation of the constitutional underpinnings of all zoning constructs because it purports to provide a special benefit to one land owner to the detriment of others in the same zone…[and] was an abuse of the BRA’s discretion, was without basis in substantial evidence, was arbitrary and capricious, exceeded the authority of the BRA and was an error of law.”

The building’s previous use as a respite care facility was tax-exempt, but its new use will not be because BHCHP will accept rent from its tenants, so BHCHP will resume paying property taxes. The Chapter 121A approval allows the City to work out a pre-negotiated tax rate with BHCHP, as well as provide all the necessary zoning relief.

Many neighbors have been against this use of chapter 121A because its primary use is to redevelop large areas of “blighted, decadent or decayed” property.

“I’m offended someone would consider this area as blighted,” Jason Heinbeck told the BRA board in November. He added that developers should “apply for variances like everyone else.”

“The site cannot be considered blighted, substandard or decadent,” Nagle said at the BRA hearing.

Joseph Lieber, the attorney for the developers, explained at the November hearing that chapter 121A would apply to 461 Walnut Ave. only. Lieber explained that the project should qualify for 121A due to the “detrimental, unsafe” conditions inside the building and because of the “age and obsolence” of the building.

The building has been vacant and falling into disrepair since BHCHP moved McInnis House to a larger location in the South End in 2008, developers have said. It was originally built in the 1960s as a nursing home.

According to developers, the building’s elevators are non-functional, asbestos is present, and portions of the electrical and plumbing systems are sub-standard, among other problems.

“This is a situation where the owners allowed the building to fall into disrepair in order to benefit from 121A,” Moira Meehan, a neighbor, said in November.

Christopher Supple, the abstaining vote on the BRA board, said at the hearing, “We’re required to follow the law here,” and that the property only had to be blighted or decadent or decayed, not all three at once.

The lawsuit claims that the BRA offered the developers preferential treatment by allowing them to file under 121A, overstepping the BRA’s authority.

“Zoning laws must be applied to everyone equally. It’s wrong to exempt somebody out of the zoning that everybody else has to abide by,” Daniel Wilson, the attorney for the neighbors, told the Gazette in a phone interview last week. “We believe that the BRA is not viewing this from the proper legal framework. Chapter 121A is extraordinary. This is not normal procedure.”

“I think the BRA handled this like they would any other project in the neighborhood,” Thal said.

Wilson said his clients hope the project “would go through the normal procedure for obtaining a variance”—that is, appearing before the ZBA and requesting zoning relief for each variance individually.

“A judge will determine whether or not all the laws were followed,” Wilson concluded.

Other complaints
Before November, those opposing the project vocally objected to possible traffic disturbances, the design of the parking lot, the loss of on- and off-street parking, the planned number of staff, possible density changes to the neighborhood, the possibility that home values would decrease, the possibility that patients or residents could be mentally ill or level one sex offenders and the need for variances, which they said they were not told about when the project was first proposed.

The developers did not know which variances they would need until October, but let neighbors know which variances they expected to need in early September. The parking lot design was changed to accommodate more cars, and was opened to neighborhood use during off-hours. Traffic studies were done and showed traffic impact would be minimal.

Barbara Trevisan, a representative of PSI, previously told the Gazette that PSI performs CORI and background checks on every resident, and that there are “no known sex offenders in any of our residences.”

Homes on Montebello Road have roughly tripled in value since 1993, when McInnis House first opened its doors, according to the City of Boston’s online home assessment website. This is well within the range of JP and the City as a whole, and better than neighborhoods such as Allston/Brighton, which averaged doubling in price in the same time frame.

The developers made a number of further concessions and adjustments to the project based on community input during the community process period last year. They lowered the number of units to 30 from 33, updated the design of the parking lot to better accommodate deliveries after the neighbors requested only one curb cut be used and redesigned the landscaping to better mask noise, deliveries and pick-ups.

Walter Pollard said in September that JPDNC and its partners were “trying to short-circuit the process” and “trying to go outside the law” by acquiring variances.

Thal noted that nearly all building projects in the city require variances, as so many buildings are so old, or predate current building codes. Even simple work on a three-family house would require some kind of variance, he said.

“What doesn’t require variances?” Thal asked. “It’s very typical.”

“There are a bunch of people that are unhappy with what’s going on, period, the end,” Swan said on the phone before abruptly hanging up last week.

“I’m not happy, but they have a right to sue. I think that whatever [predicted] detrimental effect [the project] would have on the neighborhood will not come to pass,” neighbor Francesca Fordiani, a vocal supporter of the project, told the Gazette. “The rehab will do nothing but improve the neighborhood.”

Developers were previously hoping to break ground in 2012, but that timeline will be delayed by at least six months to a year, Thal said.

BHCHP housed its 90-bed respite care McInnis House at the Walnut Avenue site until it moved to larger quarters in the South End in 2008.

No other organization in the state provides respite care for the homeless, so McInnis House, named after a JP nurse, regularly operates at capacity, according to materials handed out at the Sept. 1 meeting.

Medical respite care is the term used for short-term medical and recuperative services for homeless people too sick to stay in shelters but not sick enough for a hospital stay.

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