Christensen v. Boston Redevelopment Authority

13 Mass. L. Rptr. 683
CourtMassachusetts Superior Court
DecidedFebruary 13, 2001
DocketNo. 002314F
StatusPublished

This text of 13 Mass. L. Rptr. 683 (Christensen v. Boston Redevelopment Authority) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Christensen v. Boston Redevelopment Authority, 13 Mass. L. Rptr. 683 (Mass. Ct. App. 2001).

Opinion

Fahey, J.

These consolidated cases are actions in the nature of certiorari, under St. 1960, c. 652, §13. See G.L.c. 249, §4. The plaintiffs challenge the approvals and vote of the Boston Redevelopment Authority under G.L.c. 121A with respect to a project to be located in the Leather District of Boston (the “Project”). The matter is now before the court on the defendants’ motions to dismiss for lack of subject matter jurisdiction under Mass.R.Civ.P. 12(b)(1).4 A hearing was held before the undersigned on January 8, 2001 and on the renewed motions to dismiss the amended complaints on February 9, 2001. For the reasons discussed below, the motions are DENIED.

BACKGROUND

The following facts are taken from the second amended complaints in 00-2334 and 00-2314.5

The defendants in these actions are the Boston Redevelopment Authority (the “BRA”), the urban renewal agency for Boston having authority to approve applications under G.L.c. 121A; Rose Associates, Inc. (“Rose”), a real estate developer; and Sandwell, LLC, owner of the Project area.

Rose seeks to develop property located at 201 Essex Street, which is at the corner of South and Essex Streets in Boston (the “Property”). This Property is currently used as a commercial surface parking lot for 83 vehicles. In connection with its proposal to erect a retail and office building on the Property, Rose asked the BRA to find that the Property is a “blighted open area,” a term defined in G.L.c. 121A, §1. The application also seeks an exemption from City of Boston taxes' and a request that the Project be allowed to deviate from certain zoning requirements.

On April 26, 2000, the BRA approved a structure that differed in some important respects from the structure originally proposed. The BRA found that the Property was a “blighted open area” and conducted a “Large Project Review.”

[684]*684There are 13 plaintiffs in these actions. Ten plaintiffs6 reside at 86 South St., a residential building located across South St. from the Property. One plaintiff, G. Glenn Wiebe, resides at 107 South St., approximately 100 feet from the Property and, according to the map attached as Ex. 2 to the complaint in Civil No. 00-2334, is across the street from 86 South St. One plaintiff, Thompson, resides in Cambridge and owns property at 210 Lincoln Street. Finally, one plaintiff, Peggy Davis-Mullen, is a member of the Boston City Council and a resident of Boston.

The plaintiffs allege that they will suffer harm, including the following, as a result of the Project.

The plaintiffs who reside at 86 South St. (the “South St. plaintiffs") allege that the Project would result in a building that is 91 percent larger and 66 percent taller than permitted by as-of-right zoning, which would cause additional traffic congestion from vehicles bringing goods, services and people to the building and would create an immediate and lasting adverse impact on the quality of their lives, their enjoyment of their properties, and their properties’ values. The Project would result in the construction of a five-level, 250-car parking garage which is not permitted under as-of-right zoning, which would cause increased carbon monoxide emissions, deep excavation threatening ground movements for which there is no adequate mitigation plan, additional traffic congestion, and irritant noise from the garage’s exiting siren. Additional shadows would be cast on their residences and on Gateway Park and their community and they would lose a skyplane view from their residences. The Project would result in increased noise, vibrations, pollution, and litter during its construction. The Project would also result in increased noise, pollution, and litter caused by the large amount of automobile and pedestrian traffic to the Project. The Project would detract from, and damage the coherence and historic character of, the Leather District, resulting in an immediate and lasting adverse impact on their quality of life. The tax exemption granted harms them by being an illegal use of public funds, reducing funds available for public services, and increasing their tax burden.

Plaintiffs Christensen, Powers, Langworthy, and both Winklemans allege the Project would lead directly to diminished ambient daylight in their residences. Christensen and Powers also allege that, because they participated in the development of Article 44, their right to security in their contributions as citizens in a participatory democracy has been abrogated.

Plaintiff Thompson, who resides at 107 South St., alleges many of the same harms as do the 86 South St. plaintiffs.

Plaintiff Davis-Mullen alleges she has standing because of her duties and responsibilities as a municipal officer, which relate to municipal matters directly impacted by the grant of c. 121A benefits to the Project. Davis-Mullen also alleges, in part, that she has standing to “act as a check against the powers of the executive branch; protecting her residential, commercial and institutional constituents from legally unwarranted actions by the executive branch which effect [sic] tax receipts, the provision of city services, important and unique City [sic] assets and the quality of life for city residents is in keeping with this responsibility.”

DISCUSSION

The sole issue now before the court is whether the plaintiffs have standing to challenge the BRA’s decision. The parties agree that the relevant statute is St. 1960, c. 652, §13 (“c. 652”). Chapter 652, §13 states in relevant part;

[A]ny person, whether previously a party to the proceeding or not, who is aggrieved by such vote [by the BRA], or any municipal officer or board, mayfile a petition in the supreme judicial or superior court sitting in Suffolk County for a writ of certiorari against the [BRA] to correct errors of law therein; and the provisions of [G.L.c. 249, §4] shall apply to said petition except as herein provided with respect to the time for the filing thereof. The remedy provided by this paragraph shall be exclusive.
The issue thus turns on whether the plaintiffs are “persons . ... aggrieved” or whether any of the plaintiffs is a “municipal officer” within the meaning of the statute.

Under c. 652, §13, the “words ‘persons aggrieved’ are to be given a comprehensive meaning.” Boston Edison Co. v. Boston Redev. Auth., 374 Mass. 37, 44 (1977), quoting Dodge v. Prudential Ins. Co. of America, 343 Mass. 375, 381 (1961). That statute thus “allow[s] for review by a person who alleges a substantial injury as a direct result of the BRA’s action.”7 Id. at 46.

In this case, the defendants argue that the plaintiffs sire not entitled to the presumption of standing given to abutters under G.L.c. 40A, §17. This issue need not be decided, because I conclude that the plaintiffs have demonstrated standing under other established principles.

Among the harm that the 86 South St. plaintiffs allege, they claim they will suffer from increased noise, vibrations, pollution, and litter during construction. They claim that they will suffer from increased noise, vehicular and pedestrian traffic, pollution, and litter after construction is complete. They say they will suffer from shadows being cast on their residences as well as lack of daylight, and they would lose a skyplane.

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Bluebook (online)
13 Mass. L. Rptr. 683, Counsel Stack Legal Research, https://law.counselstack.com/opinion/christensen-v-boston-redevelopment-authority-masssuperct-2001.