City takes over some Charlestown council duties

April 9, 2013
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The City of Boston has quietly taken over some Charlestown Neighborhood Council (CNC) zoning review duties after a private City Hall meeting with its leaders, the Gazette has learned. The move apparently was triggered by recent lawsuits filed against the council, and the plaintiffs say it bolsters their argument that the CNC—and other neighborhood councils, including JP’s—are government bodies. The City says neighborhood councils are non-governmental.

The City’s CNC move might also affect the Jamaica Plain Neighborhood Council’s (JPNC) argument in its own controversial lawsuit that it, too, is a government body. The first court hearing on that suit is slated for tomorrow and may or may not involve the government body dispute.

A judge recently denied a request to merge the CNC and JPNC lawsuits, but they may still affect each other due to the common question of their governmental status. Various neighborhood councils were created by then Mayor Raymond Flynn in the 1980s to advise the City.

Meanwhile, the Gazette has discovered JPNC documents from the 1980s that also may bolster its claim to be a government body. They include discussion of a contract between the JPNC and the Mayor’s Office of Neighborhood Services (ONS) that had at least one JPNC member questioning “the implications of its members being municipal employees” and the Open Meeting Law.

The documents also include evidence that the public property sale process now used by the City’s Department of Neighborhood Development (DND) was created in direct collaboration with, and tailored to include review by, the JPNC.

Current JPNC chair Benjamin Day, the lead plaintiff in the JPNC lawsuit, declined to comment on those documents. But he did say, “We’re doing a lot of research regarding the origins, role and status of the neighborhood councils” in preparation for the court hearing and will make them public afterward.

In the two Charlestown lawsuits, groups of residents allege that the CNC and its Real Estate Project and Development Committee are government bodies that recently violated the state Open Meeting Law. The defendants deny the council has any government status.

The complaints are partly based on allegations that CNC meetings to review zoning variance request for smaller projects were held without notice or at improper locations. ONS is now taking over those smaller meetings for a trial period through September.

The new system was explained in a March 21 email, obtained by the Gazette, from Real Estate Project and Development Committee chair Mark Rosenshein to CNC members. Rosenshein, CNC attorney John Tobin and the City’s press office did not respond to Gazette questions. But an ONS meeting notice last month in the Charlestown Patriot-Bridge confirmed that ONS is now running those small-project meetings.

“It supports our position” that the CNC is a creature of City government and should be policed by it, said Kevin Joyce, the attorney for the Charlestown plaintiffs. “I believe the action the Mayor’s Office took was definitely in response to the suits being filed.”

In the email, Rosenshein wrote that ONS Director Jay Walsh recently called CNC leaders to City Hall to discuss “inconsistencies” in the CNC’s zoning review meetings and “confusion” about meeting dates and times. The City Hall meeting included Walsh, Charlestown ONS coordinator Danielle Valle Fitzgerald, Rosenshein and the CNC’s chair and 1st vice-chair.

After some negotiation, Rosenshein wrote, it was agreed that CNC will continue reviewing zoning variances for projects with four or more units, while ONS will take over meetings for smaller projects.

Rosenshein wrote that the CNC agreed because it means concerns about meeting notices and times are “no longer our problem.” In addition, he wrote, the CNC at some previous time already operated this way, “so it gets us back to where we were before everyone in town lawyered up and elevated the tension related to zoning and real estate matters.”

At the same, he added, the CNC leaders “have strong doubts that this will actually work” because the effort and grief it will require of ONS. If the City gives up the meetings after the trial period, he said, he hopes it will appreciate the CNC more and “give us a bit more support.”

The next court hearing on the CNC lawsuit is Sept. 26, according to Joyce.

In the JP case, JPNC chair Day, on behalf of the council, is suing developer Boston Residential Group and the City’s Zoning Board of Appeals (ZBA). The JPNC alleges that necessary zoning approvals for a controversial apartment building planned at the former Home for Little Wanderers complex at 161 S. Huntington Ave. were improperly granted. The JPNC claims it can sue because it is a government body, which the defendants deny.

The JPNC’s government-body claim is based on the ZBA’s long reliance on its advice as well as the JPNC being cited in the local zoning code. The Gazette archives include various JPNC documents dating back to its founding in 1985, some of which suggest connections between the council and City government.

Minutes from the JPNC’s Aug. 26, 1986 meeting show it discussing in detail a planned “contract” between ONS and the JPNC. The minutes do not include the full contract, but discussion of sections indicate it discussed the City providing “technical assistance” and office space to the council—which the City does not do today—and clarifying its role in reviewing developments.

“Has the Council considered the issue of their potential liability, the implications of its members being municipal employees and the potential conflict of interest problems?” the minutes record JPNC member James Greene as asking. “The Council needs to also know more about the open meeting law. The Council is waiting for an opinion on the question of liability from Corporation Counsel [City attorneys].”

Then JPNC chair Sandra Storey, who also founded the Gazette and now writes a column for it, recalled last week that the contract had to do with “trying to agree on what the JPNC’s role is and how it would work with the City.” She said ONS and the JPNC met about it for months, but she could not recall whether it was ever signed.

Around the same time, the JPNC worked closely with the City to develop a step-by-step review process for the disposition of public property. Minutes, letters and other documents from 1985 and 1986 indicate that the review policy was largely written by the JPNC, and that after it was adopted by what was then the Public Facilities Department—now the DND—it was largely used to create the agency’s citywide land sale process. The original JPNC policy makes it clear that both “the community and the Council” must receive notice of land sales and the right to review development proposals.