JPNC claims to be government body in lawsuit

December 21, 2012
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The Jamaica Plain Neighborhood Council’s lawsuit against the City and a developer is based on a claim that the council is a government body. That claim appears to be unprecedented, and two former JPNC chairs told the Gazette that the council was always understood to be an independent resident group.

Just last year, the JPNC itself denied in a council report that it is a government body subject to the state Open Meeting Law. At least two legal opinions from state officials over the years reportedly concluded that the Open Meeting Law does not apply to the JPNC.

The issue is crucial because it may determine whether the JPNC has “standing,” or legal cause, to sue over the 161 S. Huntington Ave. project. The JPNC’s claim for standing in this case is that it is a “municipal board” empowered by the Boston Zoning Code to review Jamaica Plain zoning matters, according to Jeffrey Wiesner, the JPNC member and attorney representing the group in the lawsuit.

If a court affirms that the JPNC is a government body, that also could have a range of impacts on how the council operates in the future, including raising the question of whether the City of Boston can dissolve it or appoint its members. City of Boston officials did not immediately respond to questions about what the City believes the JPNC to be.

The nearly 30-year-old JPNC advises the City on zoning matters, and City officials direct developers to appear before it, often refusing to rule on variance requests that lack JPNC input. But the council members are all volunteers elected by JP residents in elections run by the council itself. The JPNC has no staffing, offices or financial support from the government.

When the Gazette noted that the JPNC “obviously” is not appointed or run by the government, Wiesner said, “I’m not sure there’s anything obvious about it. It’s a municipal board. That’s our allegation.”

But former JPNC chairs Henry Allen and Sandra Storey told the Gazette that the JPNC was always understood to be independent, even when it had much more direct connection with the Mayor’s Office.

“If it were a government agency, every neighborhood would have one,” said Storey, who also founded the Gazette and currently writes its “JP Observer” column.

Storey said that in the late 1980s, someone attempted to the sue the JPNC for violating the state Open Meeting Law, but that the Suffolk County District Attorney’s Office ruled that the JPNC is not a government body, so the law does not apply to it.

The Open Meeting Law issue was raised again last year by resident Rick Stockwood during the JPNC’s controversial debate about Whole Foods Market. The JPNC responded in June 2011 by issuing a report concluding that the JPNC is an unofficial neighborhood association that is not subject to the Open Meeting Law. The report was written by three JPNC members, including an attorney and longtime secretary Michael Reiskind, who is still on the council and voted in favor of the current lawsuit. Stockwood recently told the Gazette that both the state Attorney General’s Office and Jay Walsh, director of the Mayor’s Office of Neighborhood Services, later confirmed to him that the JPNC is not a government body.

If it turns out that the JPNC is indeed a municipal board subject to the Open Meeting Law, that could open another can of worms for its lawsuit, because the JPNC vote to approve it may not meet the law’s requirements. The Open Meeting Law requires that the time, location and agenda of a government body’s meetings have to be publicly advertised at least 48 hours in advance. The JPNC distributed a full agenda for its Dec. 18 meeting where it voted on the lawsuit only eight-and-a-half hours before the meeting. That notice was the JPNC’s first announcement of the possible lawsuit. Decisions made in a meeting that violates the Open Meeting Law can be challenged in court and vacated by a judge.

Stockwood, who formerly led the pro-Whole Foods community group JP for All, told the Gazette that if the JPNC turns out to be a government body, he will file complaints with the Attorney General’s Office alleging that it regularly commits Open Meeting Law violations.

“If they are going to make a jump to the conclusion they are a government body, then they better be getting meeting minutes and meeting notices up pretty fast,” Stockwood said. “I think that they should be careful of what they wished for.”

The JPNC was among various citywide councils created by Mayor Raymond Flynn’s administration in the 1980s as advisory groups. The original members were appointed by the Mayor’s Office and the local Mayor’s Office of Neighborhood Services coordinator acted as the council’s secretary. Despite such close connections to City government, Allen and Storey said, the council was considered non-governmental.

“I do not think any of us who served on the original council for the first few years ever thought of it as a ‘municipal board,’ although we were definitely an advisory board to Mayor Flynn and the Office of Neighborhood Services,” said Allen in an email to the Gazette.

Among Flynn’s collection of neighborhood councils, the JPNC was especially independent, deciding early on to elect its own members by popular vote and to review other matters beyond the City’s interest. The Mayor’s Office stopped staffing the council when Mayor Thomas Menino took office around 1993.

The JPNC bylaws, published online at jpnc.org, do not describe the council as a government body. They outline the council’s purpose and powers as serving as a medium between the community and virtually any government agency, organization or other “parties.”

In various articles over the years, the Gazette has repeatedly described the JPNC as an independent neighborhood association without drawing any challenge or correction from the council.

The lawsuit cites Article 55 of the Boston Zoning Code as legally empowering the council as a government body to review JP zoning matters. A Gazette review of Article 55 found that the JPNC is the only local organization mentioned by name, but it is not explicitly given special powers or roles.

Article 55 is the section of the zoning code that describes and defines JP’s zoning. It was created in 1993, several years after the JPNC was formed. Article 55 mentions the JPNC twice. One mention is that JP’s new zoning would become active following approval by the JPNC. The second mention notes that JPNC and its Zoning Committee were among various other groups and residents who helped create the new zoning code and who would continue to advise the City on land use.

“The role of community participation in determining appropriate land use regulations and zoning is critical to the success of any zoning article or development plan,” reads Article 55 in part. “To continue that role, the Jamaica Plain Neighborhood Council and its Zoning Committee, and the Jamaica Plain civic and neighborhood associations, business and trade groups, and residents, shall continue to play an ongoing role in advising the City on land use planning for Jamaica Plain.”

David Baron, a real estate attorney and current chair of the JPNC’s Zoning Committee, did not attend the recent meeting where the council decide to file the lawsuit, and he did not respond to Gazette questions about his opinion of the move. But Baron did say that in an earlier discussion with JPNC chair Benjamin Day about the possible lawsuit, he told Day that “I very much doubted that the JPNC had standing to bring such a lawsuit.” Baron said that Day explained that Wiesner’s research had found that the JPNC has standing.

The JPNC lawsuit is appealing a Nov. 13 City Zoning Board of Appeal approval of a high-end apartment project planned for 161 S. Huntington Ave., the current site of the Home for Little Wanderers complex. The suit claims that the ZBA wrongly approved the project despite the developer, Boston Residential Group, failing to provide legally required evidence that it would suffer serious “hardship” or “difficulty” without the variances. The suit asks a judge to throw out the approval and to pay Day’s court costs.

Updated version: This version includes details about the JPNC’s 2011 Open Meeting Law report and other ways the law might affect it.

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