Former JPNC chair backs lawsuit

January 18, 2013
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Kevin Moloney, a former chair of the Jamaica Plain Neighborhood Council (JPNC), has been “consulting” with the JPNC in support of its controversial lawsuit against the 161 S. Huntington Ave. housing development, he told the Gazette.

He defended the JPNC’s claim in the lawsuit that it is a government body, explaining that it arguably is one because the City of Boston treats it like one.

Moloney is an attorney who also was a member of the City-appointed advisory group that last year reviewed and strongly criticized the 161 S. Huntington plan. He was involved in a controversial report issued last year independently by current JPNC chair Benjamin Day and others that questioned campaign contributions made by two S. Huntington developers to local elected officials.

The JPNC lawsuit claims that the City’s Zoning Board of Appeal wrongly granted zoning variances to 161 S. Huntington developer Boston Residential Group, and that the developer failed to present sufficient evidence that it needed the variances.

The JPNC claims to have “standing,” or legal grounds to sue, because it is a “municipal board” of the City of Boston empowered to review zoning matters. The City has denied that the JPNC, which operates independently, has that status. Three other former JPNC chairs previously told the Gazette they either do not believe or doubt strongly that the JPNC is a government body. Last year, the JPNC issued a report saying it is not a government body, so the state Open Meeting Law does not apply to it.

Moloney argued that, by law, the JPNC could be a “municipal board” in the sense of reviewing zoning matters without being a government body in any other way.

“You could be a municipal board within the meaning of the zoning code, but not in terms of the Open Meeting Law, the Public Records Act and so forth,” Moloney said.

The main evidence for the JPNC’s status, he said, is that the ZBA relies on the JPNC for advice on Jamaica Plain variance requests and typically declines to review appeals that lack JPNC input.

“In a factual matter, you don’t get to the Board of Appeal before you get to the Neighborhood Council,” he said.

Despite the lawsuit, the JPNC Zoning Committee, which is the first step in the JPNC’s zoning variance review, was operating as usual at its Jan. 10 meeting. Jullianne Doherty, the local representative from the Mayor’s Office of Neighborhood Services, was in attendance as usual to hear the discussion.

JPNC member Jeffrey Wiesner, who is the JPNC’s attorney in the lawsuit, confirmed in an email to the Gazette that Moloney has consulted with him about the lawsuit. Wiesner previously declined to explain specifically why the JPNC believes itself to be a “municipal board,” only citing Article 55 of the City zoning code, which outlines JP’s zoning. Asked about Moloney’s comments this week, Wiesner only referred to the lawsuit’s citation of the state law that enables Boston’s zoning code, which says that “any municipal board,” among other parties, can file a lawsuit to appeal a zoning decision.

JP’s zoning code, Article 55, is important in the lawsuit because it names the JPNC and its Zoning Committee as among the organizations that will review zoning variances in the future. They are the only organizations mentioned by name, though they are not explicitly described as government bodies.

Finalized in 1993, Article 55 was developed in close consultation with the JPNC and its Zoning Committee. Moloney chaired the Zoning Committee at that time and said the Boston Redevelopment Authority had a staff member attending all of its meetings to work on the rezoning plan.

Article 55 “was basically written by the Neighborhood Council,” he said, adding that it is cited as an “author” in the code. A Gazette review of Article 55 found its language is not so strong, instead referring to the JPNC as among organizations that collaborated on the plan.

Moloney noted that the JPNC is the only organization mentioned by name for its zoning review authority and that the “intent was for the JPNC to retain that role” in the future.

Rebeca Oliveira contributed to this article.

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