JPNC lawsuit battle begins; chair open to settlement

February 15, 2013
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The chair of the Jamaica Plain Neighborhood Council (JPNC) defended the council’s controversial lawsuit against the 161 S. Huntington Ave. development in a Gazette interview last week, while also opening the possibility of a settlement if the developer alters the project.

Chair Benjamin Day also revealed that the legal battle began last month with dueling claims about whether the JPNC is a “municipal board” with the right to sue. The City of Boston, one of the defendants in the case, says it is not.

In his first extensive public comments about the lawsuit, Day told the Gazette that it meets the JPNC’s “main mandate,” which “is to make sure the voice of the community is heard.”

“We are very open to talking with the City and the developers about coming up with compromise solutions,” Day added. He declined to go into detail about “some moderate concessions” that could do the trick, but noted that density, design and affordability were repeated community concerns about the project.

Meanwhile, JPNC member and attorney Jeffrey Wiesner is trading sharp legal words with attorneys for the City and the developer, Boston Residential Group (BRG) in a battle over “standing,” or right to sue. To have that right, the JPNC has to prove it is a “municipal board” empowered to review zoning variances. No court hearings have been scheduled yet while the memos fly.

In a Jan. 8 motion to dismiss the case “with prejudice,” the defendants claim that the independently run JPNC is “as a matter of law, not a municipal board of the City of Boston” and therefore has no right to sue.

In a Jan. 22 reply, Wiesner said that it is a “matter of fact” that the City treats the JPNC like a municipal board, so it is one. That treatment includes relying on its advice for making zoning variance decisions, and providing City support for the biannual council election.

“There can be no doubt that the City of Boston has delegated to the JPNC authority for zoning matters in Jamaica Plain,” said the reply.

A key part of the dispute, as the Gazette previously reported, is Article 55 of the Boston zoning code, which covers JP zoning. It was finalized in 1993 after intense input from the JPNC, among other groups. The defendants say nothing in Article 55 grants the JPNC special powers, while the JPNC argues it was “the prime author” of the code and has been treated specially because of it.

The JPNC lawsuit, filed in December, claims that the City’s Zoning Board of Appeal wrongly granted zoning variances to BRG for its redevelopment of the former Home for Little Wanderers complex into a 196-unit high-end apartment building. It also claims that BRG failed to present sufficient evidence that it needed the variances.

The JPNC did little to explain the lawsuit when it was filed and has discussed it at its monthly meetings mostly in private executive sessions. In today’s interview, Day explained some of the motives and strategies of the lawsuit.

BRG’s lack of changes to its proposal, aside from significantly increasing the number of affordably priced units, in the face of enormous local criticism was key to the lawsuit’s motivation, Day said.

“This was as close to unanimous opposition as I’ve ever seen to anything. It was really close to wall-to-wall opposition,” Day said. “But the developers felt they didn’t need to work with the community.”

“They’re not going to satisfy everyone in the neighborhood…Not everyone is going to be pleased, but I think they ended up not pleasing anyone at all,” he said. “I think they could have easily avoided this [lawsuit].”

Day said the JPNC is not attempting any other tactic to change the project, calling the lawsuit “the only tool we have at the moment.”The claim that the JPNC is a City board is a core controversy for the lawyers and the JP community. The JPNC was created nearly 30 years ago by Mayor Ray Flynn as an advisory group, but has operated independently for decades as a volunteer, elected community group.

In 2011, the JPNC itself denied that it is a government body subject to the state Open Meeting Law. But if it turns out to be a City board, there are concerns that the City might simply dissolve it or take control of it.

Wiesner’s response memo explains that the JPNC claims it is a “municipal board” solely in terms of having zoning review “duties” and not in any other way. The defendants claim that the JPNC has no such duties.

“We haven’t worried about that,” Day said about the possibility of City control of the JPNC if it is a municipal board. “[The lawsuit] doesn’t revolve around us being a branch of government… I don’t think that [the City allegedly granting zoning review duties] means we are somehow a branch of government.”

Exactly who is doing the suing on behalf of the JPNC has been unclear. But the legal arguments clarify the situation. Day is the only plaintiff, but he is suing on behalf of the council with its approval. Day and the council separately would have no standing to sue.

There is a legal dispute about whether that is OK. The defendants claim that the lawsuit is an improper class-action suit drummed up to invent the ability for a neighborhood association to sue. But Wiesner argues that the law gives an association member the ability to sue in this representative capacity.

In any case, it’s a complicated claim. Why not find neighbors, who usually have the strongest standing, to join in a suit?

“It’s tough in this way. It’s not really a residential area. The normal avenue might be to find an individual who might be aggrieved by [the project’s impacts],” Day said. But, he added, getting a local resident to “put their name on a lawsuit is a difficult ask for anyone.”

Wiesner told the Gazette that the defendants already have request the court’s permission to issue a response to his response. If that happens, Wiesner said, he would issue another response of his own. At some point, a judge will review all of the arguments at a hearing and make a decision on the standing issue. Only if the JPNC turns out to have standing would the case go forward on its core legal claims about the project’s zoning approval.

Wiesner and Day provided the Gazette with copies of the motion to dismiss, Wiesner’s reply and supporting documents. All of the documents can be viewed at scribd.com/JPGazette.