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City Prioritized BRAAmendment for Melville Case
April 21, 2005
By Jim O'SullivanNews Editor
As Dorchester activists remain skeptical about proposed amendments to city zoning laws, internal City Hall documents reveal that Boston Redevelopment Authority (BRA) officials negotiated the terms of the multi-neighborhood change with attorneys working for owners of a controversial Melville Avenue property.
The records also reveal that the Menino Administration considered the political dimensions of the 99 Melville Ave. case, and that BRA officials structuring the amendment took into account how an attorney for the owners of that property could "use" the change.
"There is a lawsuit pending and the Mayor has made clear his commitment to resolving that matter - which can happen only with this zoning amendment," Rebecca Lee, special counsel to the BRA director, wrote in a March 30 e-mail, responding to Rebecca Barnes, the BRA's chief planner, who had suggested delaying the amendment due to concern over "controversial issues in the next few months."
On February 28, Lee asked BRA designers to "fix" the amendment quickly, reasoning that 99 Melville attorney "Marty Healy may be able to use it in the litigation later."
Before Mayor Thomas M. Menino appointed her to the BRA last November as director Mark Maloney's legal adviser, Lee worked in the real estate department of Goodwin Procter, the law firm representing the 99 Melville Ave. owners.
The documents, obtained by the Reporter under the Freedom of the Information Act, pertain to suggested changes in the way the city permits lots for developments. Richard Shaklik, the BRA deputy director for zoning, told the Reporter in March that one amendment would define "lot frontage" and "lot width" as the same measurement, repairing an "oversight" in the code. The other, he said, would add lot frontage to a clause in the code regulating exceptions to minimum lot size. Shaklik, who proposed the amendment in a February 24 memorandum, said the changes would apply only to existing lots which meet pre-existing standards, including "at least three-fourths of the minimum lot size and lot width requirements."
Officials maintain that the alterations amount to minor clerical adjustments.
But BRA and administration officials admit they don't have an estimate of how many lots could be impacted by the amendment, which is marked for enactment in Dorchester, Roxbury, Fenway, Allston-Brighton, and East Boston.
Allston-Brighton Councillor Jerry McDermott has asked that his neighborhood be ruled exempt from the change, and said Tuesday that he has not heard back from the BRA about how many units would be affected there.
In a March 25 e-mail, Lee asked BRA officials for an answer to the same question.
The most recent document obtained by the Reporter is dated March 31.
McDermott said that Allston-Brighton residents "are concerned, and rightfully so, that what seems like a minor technical amendment could have a wide-reaching impact. You would think that before the BRA suggested a large change, that they would know the ramifications of such a change."
Dorchester City Councillor Maureen Feeney has championed the amendment, calling consternation over it "driven for the wrong reason."
Feeney has also championed the cause of the O'Flahertys, the Melville Ave. family who constructed a single-family home beside their two-family, after the city's zoning board of appeals (ZBA) approved BRA-opposed variances in the design plans in 2001. Several neighbors fiercely opposed the building, and three - Peter Ent, John Young, and Yvonne Ruggles, wife of Menino spokesman DeWayne Lehman - filed suit against the appeals board.
Years of legal and behind-the-scenes wrangling ensued, with the O'Flahertys completing construction despite court warnings that 99 Melville would have to be torn down. In January, a state appeals court sided with the plaintiffs and earlier decisions that the ZBA "acted in excess of its authority" in granting the variances and that the home should come down.
Records show that the city almost immediately began reconsidering its zoning code, collaborating with O'Flaherty attorney Martin Healy, the Goodwin Procter lawyer who has edited the "Massachusetts Zoning Manual" since 1989, and advised Big Dig permitters.
Healy repeatedly offered comments and proposed changes to the amendment, and Lee encouraged BRA officials to check their plans with Healy, on February 23 asking BRA land use counsel Donald Wiest to "connect directly with Marty."
Healy did not respond to a voicemail left at his office.
"It's consistent with BRA practices that we provide draft memos," and consult outside parties, said BRA spokeswoman Susan Elsbree, "so that they know what we're contemplating."
Barbara Gruenthal, attorney for the plaintiffs and thus Healy's opponent, said Wednesday she was not consulted, and didn't learn that an amendment was in the works until March 3, a week after Shaklik's memo outlined the plan.
Elsbree said she didn't know how Healy learned of the amendment.
'Mired in other issues'
On March 30, Shaklik sent an e-mail to Maloney and several other BRA officials, including Lee, summarizing a meeting with two other BRA officials and Menino's neighborhood services director Jay Walsh, and expressing skepticism about the amendments' chances of winning popular support. Shaklik acknowledged residents' "feeling that these neighborhoods are being 'over developed' and that the ZBA has been too generous in granting zoning relief," and said amendment opponents "feel that the only reason the amendment is being proposed is to benefit the homeowner in the 99 Melville Avenue case."
Shaklik wrote, "The proposed amendment is defensible from a technical zoning perspective but has obviously become mired in other issues … Consequently, the proposed amendment is likely to become more controversial and receive more press attention as we move forward."
In a reply the next day, Maloney wrote, "I am disappointed that the meeting mentioned below did not include Rebecca Lee. She has been working on this with [city policy and planning chief] Michael Kineavy and the Mayor. I believe the best strategy is to accomplish the technical correction for Dorchester right away and then strategize about doing the rest of the communities that could become involved. Please connect with Rebecca right away so that we can proceed on that basis."
'You don't need this'
On March 22, a hearing before the zoning commission - which establishes code policy, whereas the zoning board interprets it - drew 50 people, many of whom, including city councillors, said they learned of it at the last minute. At Menino's behest, according to the documents, the commission delayed a vote on the amendment until a series of public meetings could be held in the affected neighborhoods.
After councillors and activists ripped the vetting process as too secretive, city officials scheduled a Dorchester meeting on the amendment for 6:30 p.m., Monday, April 25, at the IBEW Hall on Freeport St., and are planning separate discussions for the other neighborhoods.
Since the 99 Melville Ave. case first put neighbors at odds in 2001, it's been politically-laden, with Feeney vocally supportive of the O'Flahertys, and City Councillor Charles Yancey - who lives around the corner and in whose district the property actually sits - staying largely clear of the battle. Susan Tracy, the politically-wired former state representative and Jacqueline O'Flaherty's aunt, has advocated for the O'Flahertys' cause.
Yancey did not respond to messages left at his office.
As recently as last month, the lingering, election year political implications, popped up on the administration's radar screen, when Patrick Lee, a partner in the Dorchester development firm Trinity Financial and the husband of former Menino chief-of-staff Alyce Lee, who left that post in 1995, contacted Kineavy.
On March 8, Patrick Lee e-mailed Kineavy that local opponents of 99 Melville Ave. visited him and his wife the day before. The opponents, Lee warned, "are girding for battle." Lee said they were not seeking the house's demolition, but rather an apology and the reimbursement of $70,000 in legal bills.
Lee continued, "You all don't need this fight, not now and probably, not ever … Michael, seems like there is a solution to this problem that has the Mayor being a savior, rather than pitted against some of the neighbors on Melville Avenue."
Later the same day, Lee wrote to Maloney that he thought "an avoidable political fight is looming" and offered to help broker a compromise.
In a March 11 e-mail to Lee, Kineavy wrote, "[I]t would be great to find some way to bridge the gap here. The e-mail was the first time that I heard that the opposition's ultimate goal wasn't to have the house torn down. That's our starting point too. So maybe there is some room for compromise. Alyce suggested that Mark may have some ideas around the money side of the issue."
But less than two weeks later Lee had grown less sanguine about reaching a solution. In a March 22 e-mail, the day of the zoning commission hearing, he told Kineavy and Maloney, "The conversations I have had with people on both sides of the case don't leave me with the hope that the parties can work this out together. There has been too much personal animosity over the many years. Mark, the conversations didn't even progress to the point where it made sense to put the idea you and I discussed on the table."
Kineavy, through eastern Dorchester liaison Molly Dunford, deferred all questions to the BRA.
Patrick Lee did not immediately respond to a voicemail left at his office.
Scope tough to judge
While the BRA insists that the changes would amount to a correction of an ambiguity in the code, no figures have been offered which estimate how many units meet its terms, leaving questions for McDermott and others.
"To be honest, I really don't understand what the full impact of this is going to be on Dorchester and the other neighborhoods," said Rosanne Foley, an Ashmont Hill activist.
In a February 23 e-mail, Wiest wrote, "Once enacted, our text amendments will have the effect of immediately legalizing any proposed or current project that complies with a minimum lot size exemption provision in every way other than lot frontage," but did not speculate about how many projects would be ruled legal.
Since sending an e-mail to approximately 50 community leaders in southeastern Dorchester soliciting properties that might qualify, Pope's Hill Neighborhood Association Philip J. Carver, a frequent zoning policy critic, said he has received 120 responses, but hasn't confirmed they meet the standards.
Michael Cote, a Fields Corner activist who has studied the zoning code for nearly a decade, said the city's online property records don't allow for easy figuring of which lots would qualify.
"It's extremely complicated to even figure out whether an individual lot meets the requirement, let alone across the entire city," Cote said.
While officials have publicly insisted they conceived the amendment because of issues the Melville Ave. case brought to light, instead of as a means of legalizing the property, Shaklik's March 30 e-mail acknowledged the widespread sentiment to the contrary, one that Cote echoed.
"Everything about this looks to me like the city is going out of its way to change the rules so they can say that they were right all along, and that the people who challenged them [over 99 Melville] were wrong," Cote said.
"It's not because of the case, but because of the case we've seen deficiencies in the code," Elsbree said.
"Not everything is a conspiracy," said Feeney. "Sometimes it's about good government and doing the right thing and making sure that our laws and the language in the laws are appropriate."
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BOSTON GLOBE ARTICLE
By Andrea Estes, Globe Staff April 28, 2005
A politically connected Dorchester family is getting help from the highest levels of City Hall to save a newly constructed house that two courts have ordered destroyed because it violates Boston's zoning code.
Though Suffolk Superior Court and the Massachusetts Appeals Court have sided with angry neighbors and ordered removal of the house built by Jackie and Anthony O'Flaherty, officials including Boston Redevelopment Authority director Mark Maloney and Mayor Thomas M. Menino have intervened on the family's behalf.
The BRA asked a high-powered Boston zoning lawyer to represent the family. The lawyer, Martin R. Healy of Goodwin Procter, is chairman of the firm's real estate development and permitting practice and is listed in The Best Lawyers in America 2005-2006, according to his resume. He is working for the family for free.
Menino recently ''made clear his commitment to resolving" the matter, according to a March 30 e-mail by a BRA lawyer, and the BRA is now trying to amend the zoning code so that the house would no longer violate the rules. This week Maloney contacted a lawyer representing the neighbors in an effort to broker a compromise with neighbors.
The O'Flahertys are a longtime Boston family, with several generations living in Dorchester since the 1920s. Jackie O'Flaherty's aunt is Susan Tracy, a popular former state representative who worked for the administration of former mayor Raymond L. Flynn and currently sits on a committee of women supporting Menino's reelection bid. Tracy is friendly with several of Menino's top aides and has been active in the family's efforts to save the house.
Menino and other city officials said they are trying to correct an injustice and not doing anything for the O'Flahertys that they wouldn't do for others.
''This is a working family that made a mistake, and if someone wants them to tear down the house, it's totally wrong," said Menino, adding that he hadn't met the O'Flahertys until recently. ''These are hard-working people who thought they were doing the right thing. They got bad advice, so they turned to government. We're trying to be helpful."
Controversy over the 2,000-square-foot house on Melville Avenue began even before it was built in 2001 because some neighbors didn't want another house built on the lot. The lot didn't meet the zoning code's requirement for 50 feet of frontage on a public street. The O'Flahertys went to the city's Zoning Board of Appeal for permission to build. At the time, the O'Flaherty's were living in a two-family house on the property.
Several neighbors turned out to object, but, they said, weren't allowed to speak. Construction of a new house would result in three structures on the lot, including the two-family house and a barn at the rear. But the total number of buildings was not an issue before the Zoning Board.
Page 2 of 2 -- The Zoning Board issued the variance, and two weeks later the neighbors sued, arguing that squeezing the house onto a lot with such small frontage meant that the new building would block their view and access to light and air. They also argued that the house would increase traffic and congestion in the neighborhood.
A Suffolk Superior Court judge refused to issue an injunction to stop construction, but warned the family that they ''proceeded with the construction at their own peril." The family's lawyer assured the judge that if the family lost the case they would tear down the house.
They built the house, now valued by city assessors at $407,400, and moved in 2002. The following year, Superior Court Judge Janet Sanders ruled against them, ordering the Zoning Board to deny the variance and take ''all action necessary against the O'Flahertys to enforce the provisions of the code, including an order that they remove" the house.
In January, the state Appeals Court upheld Sanders's decision.
''This happened because of the process," said Yvonne Ruggles, one of the neighbors who sued. ''It was our understanding that as abutters we had the right to question the development. But when we went to the Zoning Board they didn't ask for the abutters. The lot was too small."
The battle over the house has galvanized the community, and hundreds of people turned out Monday night to speak for or against the city's proposed solution to the problem: changing the zoning code to circumvent the court decisions by ensuring that the lot complies with zoning rules.
Some residents worried that the amendment, which will make it easier for property owners to build without first going to the Zoning Board of Appeal for special approvals on lots that have smaller frontage, would have broad implications for neighborhoods across the city. They said it could make it easier for builders to squeeze projects onto tiny lots.
Under the proposed change, a property owner could be issued a building permit for a lot without having to go before the Zoning Board of Appeal as long as the frontage on a lot is at least 75 percent of the frontage specified in the zoning code.
Some Boston neighborhoods already have exceptions that allow building on properties that are 75 percent of the square footage spelled out in the zoning code and 75 percent of the width. But lots must still meet frontage requirements. The O'Flahertys' lot is just over 45 feet at the street, less than 5 feet shorter than currently required.
City officials said that they are not looking to change the zoning code simply to benefit the O'Flahertys, but that the family's ordeal has brought to light a problem in the code that needs ''clarifying." The city plans meetings in the affected neighborhoods before moving forward with passage of the zoning change.
Councilor at Large Maura Hennigan, who is running for mayor, said she has never seen the city bureaucracy organize so publicly on behalf of a single family.
''I've never seen such a blatant example of putting a personal relationship ahead of what should be an objective process," said Hennigan, who opposes the zoning code change. ''We can't have a city that sets its laws based on personal interests and friends."
Some Dorchester residents also said there is another dimension to the battle, reflecting tensions between lifelong working-class residents like the O'Flahertys and newcomers trying to curb development in a modest city block. Some testified on behalf of the O'Flahertys, saying that residents need to bridge that divide.
''Neighbors help each other and care about each other," Carolyn Kain, a neighborhood resident, said at Monday night's meeting.
The O'Flahertys say their lives have been made miserable by the controversy and fear a wrecking ball will demolish their home.
''We just wanted to have enough room for our family," said Jackie O'Flaherty. ''Our kids were sharing a bedroom, and we needed more space. It was always our dream to build on the lot.
''This has destroyed my family," she said. ''My 10-year-old daughter is crying over this all the time. It started off they wanted the power in the neighborhoods and it turned into an angry mob that would do anything and everything to hurt us. I can't fathom why they've taken it to the extremes they've taken it."
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