Judge explains why JPNC is not a gov’t body

June 7, 2013
By

The written opinion tossing out the Jamaica Plain Neighborhood Council’s (JPNC) lawsuit includes a point-by-point demolition of its claim to be a government body. The ruling appears to clarify the status of other neighborhood councils around the city as well.

While destroying the JPNC’s argument, Justice Linda Giles’s May 16 opinion also praises the JPNC and other councils as institutions.

“In determining that the JPNC is not a municipal board, the court does not intend to derogate the significance of the JPNC’s role in the community and recognizes the value of Neighborhood Councils in serving as the voice of the community and bridging the gap between residents and the Board [of Appeal],” she wrote in a footnote.

The JPNC is considering whether to appeal her decision and has until June 16 to do so, according to JPNC attorney Jeffrey Wiesner.

The JPNC last year sued the City’s Zoning Board of Appeal (ZBA) and the developer of the apartment project planned for 161 S. Huntington Ave., alleging that the project’s zoning variances were improperly granted. For the suit to go ahead, the JPNC and chair Benjamin Day had to prove they had “standing,” or a legal cause to sue. Giles methodically smacked down their claims on every count.

Because the case was dismissed on standing, the judge did not rule on the actual question of whether the zoning variances were improperly granted.

The JPNC’s main claim about standing was that it can sue under law because it is a “municipal board” with the power to review zoning decisions. Even though the JPNC is independent and elected today, it was originally created in the 1980s by former Mayor Raymond Flynn and had a role in crafting Jamaica Plain’s zoning code.

Giles noted that the term “municipal board” must be narrowly defined to apply only to boards that have a direct duty to review government decisions. She found that the JPNC does not have that duty.

Citing a 1985 City document about the founding of the neighborhood councils, Giles noted it says the councils can review zoning decisions “[i]f the Council desires,” not that they have to.

The JPNC argued that it does have review duties in practice, because the ZBA regularly requires variance-seekers to appear before it. But the ZBA’s deference to the JPNC “does not convert the JPNC’s right to review into a duty to review,” Giles ruled, noting that the JPNC is free to decline review and the ZBA is free to ignore JPNC decisions.

Giles also cited as further evidence a recent Gazette interview with Flynn. While Flynn supported the JPNC’s lawsuit, he also told the Gazette that he did not view neighborhood councils as a branch of government or “another government board of bureaucrats.”

Another JPNC argument was that the council is named in JP’s zoning code as an organization that will continue to advise the City on zoning matters.

Giles ruled that the plain language of the zoning code does not give JPNC any special rights or government status and is only a “general statement concerning the JPNC’s ongoing role as advisor.” To find otherwise would cause “absurd results,” she ruled, because the zoning code also cites virtually everyone in JP, including “residents,” as also having ongoing review rights. That would mean that the entire neighborhood is a municipal board.

The JPNC’s role in helping to craft the JP zoning code also does not confer a government status or duty, Giles ruled, noting that many other people and groups also participated.

Giles largely accepted arguments from defense attorneys that the lack of official City recognition of the JPNC in various ways is “further proof” that it is not a municipal board.

“In sum, the JPNC does not possess duties related to zoning, merely discretionary rights to review and advise…,” she wrote.

The JPNC had one other claim to standing. The actual plaintiff in the case was Day, but he was acting as the JPNC’s representative with its approval via a member vote. The JPNC argued that Day could sue on behalf of the council even though he would not be directly impacted in any way by the 161 S. Huntington project. Giles ruled that is not true under the law and that Day had to prove some personal injury or loss, not just “general, speculative concerns of the community.” Because he failed to do that, he cannot represent the JPNC in the matter, she ruled.

For the full text of the judge’s opinion, see scribd.com/jpgazette.

Best of JP 2014