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BRA zoning move gets an airing By Patrick Gerard Healy

GLOBE CORRESPONDENT

 

      A long-simmering neighborhood dispute intensified last week, just in time for a public meeting tomorrow night that had been demanded by angry residents.

      After mounting an e-mail uprising, residents will have a chance to speak out on a controversial city proposal that would save a newly built Dorchester house from demolition -- and would affect zoning in five Boston neighborhoods.

      The city says the proposal is meant to clarify ambiguous language in its zoning code for those neighborhoods, but some Dorchester residents say sparing the house, which has been the subject of court battles over three years, would open a floodgate to dense, unwanted development.

      They have also alleged the regulation was rushed to protect the house. And last Thursday, the Dorchester Reporter cited internal city memos obtained under the Freedom of Information Act that show Mayor Thomas M. Menino's ''commitment to resolving that matter -- which can only happen with this zoning amendment." The comment was from a March 30 e-mail written by Rebecca Lee, special counsel to the director of the Boston Redevelopment Authority.

      Construction on the house in question, a single-family at 99 Melville Ave., began in late 2001 by Anthony and Jacqueline O'Flaherty next to their two-family. Neighbors concerned about density and possible code violations had sued a few months earlier, with 30 of them contributing to legal expenses for the battle. Suffolk County Superior Court Judge Jeffrey A. Locke ruled in 2002 that the house would have to be torn down, a ruling upheld in January by the Massachusetts Court of Appeals.

      The Dorchester Reporter story said BRA officials worked with the O'Flahertys' lawyer, Martin Healy, to fine-tune the terms of the proposal. The BRA's Lee, according to The Reporter, asked agency designers to ''fix" the amendment quickly, and wrote that ''Marty Healy may be able to use it in the litigation later."

      Healy told The Boston Globe Thursday he planned to use the proposed zoning amendments to prevent destruction of the house.

      ''I did get in touch with the BRA," he said. ''I did comment on this zoning article, which they had drafted, and I don't believe they adopted my comments."

      However, BRA spokeswoman Susan Elsbree said Thursday ''some, but not all" of Healy's suggestions were taken into consideration in drafting the amendments.

      The BRA had maintained its proposed changes, which would affect undersized lots, were only related to the Melville Avenue property in that the agency, according to Rick Shaklik, BRA deputy director for zoning, ''became aware of the issue as a result of the case."

The provision says that if a lot is at least three-quarters of the required minimum size and width for a house, assuming other standards are met, construction of a house can proceed ''as of right," according to Elsbree.

      ''With amendments of this nature there isn't usually a community process," said Shaklik. ''It became apparent, though, that there was a great deal of interest and quite a bit of misunderstanding of what was being proposed."

       When Dorchester, Roxbury, Allston-Brighton, the Fenway, and East Boston were rezoned in the mid-1980s, ambiguities in the language led to confusion in interpreting the dimensions of a residential lot and determining its eligibility for subdivision, according to the BRA.

      Last month, when Phillip Carver of the Pope's Hill Neighborhood Association found out the BRA was planning to hold a hearing on zoning language changes and to ask the Boston Zoning Commission to approve them -- without holding a community meeting to explain it to residents -- he took to the Web.

      Carver said he contacted about 600 residents, who flooded City Hall with e-mail protests. The BRA then scheduled tomorrow's meeting (and promises similar ones in the other four neighborhoods); the Zoning Commission will revisit the issue May 4. ''Smart growth and development isn't done in backroom deals, it's done with the community," said Carver.

BRA senior planner Hugues Monestime said when the protests reached the ears of city officials they decided to open the debate to the public. ''They think we are amending the zoning code altogether, but we're really just correcting it," he said. ''Because it brought up questions, we figured let's take it back to the community."

      Carver still questioned the process. ''They're lessening the requirement to create more density. If it was just a minor thing, as they claimed, why wouldn't they tell people about it?"

While the court battles were unfolding over the Melville Avenue house, the O'Flahertys continued to build. Attorney Barbara Gruenthal, who represents the plaintiffs, speculated the continuation of construction despite the neighbors' objections ''was their strategy all along to see if they could win a sympathy vote either from the court or elsewhere, and they just went ahead and built it, knowing that they had no legal argument." Healy, the most recent of many lawyers to represent the O'Flahertys, said they did nothing wrong. ''I do think they were following their lawyer's advice, and they thought they had the right to do it, which they did have the right to do it, but there was a risk involved," he said. ''These are not developers, these are just people, really blue-collar people."

      Helen McChesney of the Clam Point Civic Association said the city's proposed changes give property owners the ability to construct additional buildings ''as of right," without notice to abutters or neighborhood review -- and that could be to the detriment of neighborhoods.

 

A community meeting on the two proposed changes to the zoning code will be held tomorrow at 6:30 p.m. in the IBEW Hall, 256 Freeport St. 

From The Boston Globe
Sunday, April 24, 2005

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