JPNC to appeal lawsuit dismissal

June 21, 2013
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Jamaica Plain Neighborhood Council (JPNC) chair Benjamin Day will appeal a court’s recent dismissal of his JPNC-backed lawsuit against the 161 S. Huntington Ave. redevelopment project.

Day filed a notice of intent to appeal on June 17, according to the Suffolk County Superior Clerk’s Office. Jeffrey Wiesner, an attorney and JPNC member representing Day in the case, confirmed that filing and added that “we intend to move forward” with the appeal.

“We believe that the judge’s decision included both substantive and procedural errors,” Wiesner told the Gazette, saying a full explanation will be in a forthcoming brief to the appeals court.

The redevelopment at the Home for Little Wanderers site likely will remain on hold pending the outcome of any appeal. A successful appeal potentially could lead to the end of the project.

Boston Residential Group President Curtis Kemeny said in a written statement to the Gazette that the appeal will fail, and said the legal delay is financially impacting the nonprofit Home for Little Wanderers, with the property closing on hold unless and until the project moves forward.

“We are confident that the court’s clear and decisive ruling will be upheld, and remain committed to providing much needed affordable and market-rate housing for the Jamaica Plain community,” wrote Kemeny. “Most importantly, we hope that the few individuals trying to stop this approved development realize that their actions severely impact the vital services that the Home for Little Wanderers delivers to Boston’s most vulnerable children in our poorest neighborhoods and that the Home is relying upon millions of dollars in proceeds from the sale of this property to support its mission.”

In response, Wiesner noted that the JPNC is not the project’s only critic.

“The JPNC took the unusual step in challenging the decision of the Board of Appeal because every community institution responsible for reviewing the project—the JPNC Zoning Committee, the JPNC, the Jamaica Pond Association and all the members of the [Boston Redevelopment Authority’s] Impact Advisory Group—unanimously opposed it,” he said.

Day, on behalf of the JPNC, last year sued the City’s Zoning Board of Appeals and Boston Residential Group alleging that zoning approvals for the controversial apartment project were improperly granted. A judge last month threw out the case, ruling that neither Day nor the JPNC had “standing,” or legal grounds, to sue.

The JPNC had argued that it is a “municipal board” with the ability to sue over zoning decisions, and that Day is eligible to represent the entire JPNC as a plaintiff. The judge shot down both claims in a detailed opinion, as the Gazette previously reported. The full opinion can be viewed at scribd.com/jpgazette.

The JPNC voted last year to approve Day suing on its behalf. It did not make a separate vote to approve the appeal, according to Wiesner.

“The JPNC voted to commence litigation to appeal the decision of the Board of Appeal to grant variances to BRG 161 South Huntington, which the council believed were in violation of the zoning code, and opposed by multiple neighborhood groups in addition to the JPNC,” Wiesner said in an email to the Gazette. “Our appeal of the Superior Court judge’s decision is a continuation of that effort.”

The JPNC is an elected body and is slated to have an election in September, and the appeal may still be unresolved at that point. It is unclear how the appeal would be affected if Day is no longer the chair or a member of the JPNC, or if the JPNC’s overall membership changes.

“Any need for a change in representation will be dealt with as it arises,” said Wiesner, who did not immediately respond to a request for more details.

Updated version: This story has been updated with further information from JPNC attorney Jeffrey Wiesner and Boston Residential Group President Curtis Kemeny.