JPNC files legal appeal against 161 S. Huntington

December 21, 2012
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The Jamaica Plain Neighborhood Council today filed a legal challenge in Suffolk County Superior Court to the City’s zoning approval of a controversial luxury apartment building at 161 S. Huntington Ave.

The formal appeal says the developer, Boston Residential Group, failed to present proper evidence of its need for zoning variances, and that the City’s Zoning Board of Appeal (ZBA) acted with “gross negligence, bad faith, or malice” when it approved the variances last month.

The appeal was filed in the name of JPNC chair Benjamin Day as representing the entire council, which last night voted to “commence litigation” against the 161 project, according to JPNC member Jeffrey Wiesner. Wiesner is a JPNC member and an attorney who the council last night appointed to represent it. Wiesner provided the Gazette with a copy of the appeal.

“We have appealed the decision of the Zoning Board of Appeal,” Wiesner said.

The lawsuit requests the court to annul the zoning variances and take any other necessary actions, as well as order the defendants to pay Day’s court costs and attorney fees.

“We are confident that our zoning decision will be upheld in court,” said Boston Redevelopment Authority (BRA) spokesperson Susan Elsbree, speaking on behalf of the BRA and the Mayor’s Office. “This $75 million private investment in Jamaica Plain will add new housing opportunities for families, including 30 affordable units, and will add vitality to the area. We hope the lawsuit is expeditiously resolved.”

The BRA is not a defendant in the appeal, but made an official recommendation in favor of the project to the ZBA, and Elsbree was authorized by the Mayor’s Office to comment on the ZBA’s behalf, she said. The defendants are the developer and the ZBA.

Day was unavailable for immediate comment for personal reasons and referred questions to Wiesner. Boston Residential Group did not have immediate comment.

The developer requested and got variances for lot area, floor-to-area ratio (or density), height and development within a Greenbelt Protection Overlay District at a Nov. 13 ZBA hearing. The JPNC alleges that the developer and the ZBA both ignored the language of the Boston zoning code, which says someone seeking such variances must present evidence of a “substantial hardship” or “practical difficulty” in using the land without the variances. No such evidence was presented or considered at the hearing, the appeal says, adding that there are other ways the developer could have used the land.

As the Gazette previously reported, the ZBA hearing for 161 S. Huntington was not publicly advertised beforehand, in violation of the state Open Meeting Law. The Gazette learned about the hearing and publicized it and it was well-attended. The appeal does not mention the lack of notice.

It is unclear what the next step will be with the appeal, as it was only filed today.

The JPNC voted 8-0 among members present to approve the appeal, according to JPNC secretary Michael Reiskind. The JPNC has 20 seats and currently has some vacancies. At least two members did not attend the meeting and four others left before the vote, but Reiskind said he believes the legal appeal was circulated to all council members prior to the meeting. The eight members present were enough for a quorum to vote on the appeal, Reiskind said.

The appeal is a first for the JPNC, which was founded in the 1980s. “This is the first time we’ve entered into some legal [action],” said Reiskind, who has served on the JPNC for many years.

The purpose of the JPNC, according to its bylaws, is to “increase and improve communication” between the Jamaica Plain community and government agencies or “other parties.” Its most regular function is to advise the ZBA and the City Licensing Board about zoning and licensing requests. Reiskind, who chairs the council’s license-reviewing Public Service Committee, declined to comment on how that work might be impacted by the JPNC having a pending legal challenge with the ZBA. He confirmed that he thinks the legal appeal fits in with the JPNC’s mission of representing the neighborhood.

The 161 S. Huntington development would demolish the former Home for Little Wanderers complex and erect a 196-unit, high-end apartment building. It has been enormously controversial, with widespread opposition from community groups and an advisory group created by the Boston Redevelopment Authority. Day and other JPNC members triggered a controversy earlier this year by noting that the developer and other people involved in the project donated money to local elected officials while various City approvals were pending, which the JPNC members presented as possible corruption. In that case, Day and other members acted independently from the council, but that distinction was confusing, and another JPNC member resigned in protest.

Updated version: This version has been updated with comment from Boston Redevelopment Authority spokesperson Susan Elsbree and JPNC secretary Michael Reiskind. It also has been corrected to clarify the previous JPNC controversy over 161 S. Huntington and removes previous confusion about whether the case is officially a lawsuit.

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