Judge hears arguments on motion to dismiss, to rule in coming weeks

October 13, 2017
By

Judge Mark Hallal heard arguments on Oct. 4 from both sides on a motion to dismiss a lawsuit over Mordechai Levin’s proposed 3353 Washington St. development and will make a decision within two to three weeks, according to Jonah Rapino, a plaintiff in the case.

Lawyers for developer Mordechai Levin and his limited liability company (3353 Washington LLC) filed a motion to dismiss the lawsuit over the summer. A group of Green Street residents— Rapino, Jessica Ricker, Benjamin Mauer, and Helen Matthews—filed the lawsuit earlier this year against the City’s Zoning Board of Appeals (ZBA) and the Levin’s limited liability company. The ZBA granted several variances for the project, including for exceeding height limit and for not meeting the minimum parking requirement, for the Green Street portion of the site.

Asked for comment on the Oct. 4 hearing, developer spokesperson Terry Bruce said that the judge heard the arguments of both sides and that “it is now in the hands of the courts.”

Lisa Timberlake, a spokesperson for the Inspectional Services Department, which oversees the ZBA, said the department has “no comment.”

The Green Street residents’ lawsuit alleges that the ZBA’s decision to approve variances was “unlawful” and that they would be adversely impacted by the project, including from increased traffic and noise, affordability, and lack of open space, as well as other reasons. The lawsuit also alleges that spot zoning was used in granting the variances. The lawsuit seeks to annul the decision to grant the variances.

A memorandum in support of the motion to dismiss says that the group lacks standing to challenge the zoning decision because they aren’t abutters or abutters to abutters of the property. Because of that, the memo says, the group needs to show that the variance decision will cause them “substantial injuries that are separate from the community as a whole.”

“But this they have not done and cannot do. Rather, they are neighborhood residents who seek to rehash generalized concerns that were raised by certain member of the community at large at the administrative stages, but rejected. They do not raise a plausible claim of a definitive violation of a private, legal right,” the memo says.

The memo also says that the challenge to allege spot zoning is flawed as it is “well settled that the issuance of variances does not implicate spot zoning.”

An attorney for the Green Street group has filed a memorandum in opposition to the motion to dismiss citing reasons why they have a right to complain about spot zoning and why they have standing, including that they would be impacted by rising rents.

Levin has plans for an $18 million mixed-use development at the intersection of Washington and Green streets. The proposal calls for a 45,737-square-foot building at 3353 Washington St. that would have six stories and include 45 residential units with about 2,000 square feet of ground-floor retail space. It would also have 24 parking spaces at the rear of the building.

The new building would consist of several residential floors over a ground-floor level, and would contain a mix of studios, one- and two-bedroom rental units, some with private outdoor terraces. The plans also call for interior storage for around 20 bicycles. The proposed building would contain eight affordable-housing units on-site.

The Boston Planning and Development Agency board approved the project late last year.

Two neighborhood groups, the Jamaica Plain Neighborhood Council (JPNC) and the Green Street Renters Association (which consists of members now involved with the lawsuit), opposed the project before the ZBA hearing, saying that the developer was taking advantage of increased height guidelines in the Plan: JP/Rox, while not living up to its affordability standard.

The Plan: JP/ROX is a planning and development review of the Washington Street Corridor between the Forest Hills T Station and the Jackson Square T Station. The plan was approved by the Boston Planning and Development (BPDA) board earlier this year, but still needs to complete the zoning stage of the process before being implemented.

Archives