Lengthy public processes, numerous hearings and municipal boards are all part of how we build most housing in Massachusetts. It's an uncertain path to produce the housing we need made even more fraught with danger by the possibility that, at some point after going through a lengthy community review process, a single nearby resident may file suit to overturn years of hard work, preventing a development from every getting a shovel in the ground. An individual who, after watching a robust public process play out, decides that they alone have the right and ability to play judge, jury and executioner on needed new housing in a community. The complete impact of 'abutter' lawsuits is unknown, with numerous recent developments delayed, some languishing after being pushed into less favorite financial markets and others never proposed for fear of an overly zealous, litigious community.
3368 Washington St., Jamaica Plain- 142 Homes
142 units of housing for formerly homeless individuals by Pine Street Inn finally got underway in 2022 in Boston's Jamaica Plain neighborhood after 3-years of a lengthy community process and an abutter lawsuit by Montgomery Gold was settled. The delay pushed the project into rising construction costs during pandemic related supply chain issues, bloating the budget by nearly $10 million.
3371 Washington Street, Jamaica Plain, Boston- 39 Homes
Just days after settling the lawsuit against Pine Street Inn, Montgomery Gold again filed suit against an affordable housing development in the neighborhood where he owns a commercial building. This time, 39-units of senior housing were put at risk by his suit. Work finally got underway recently after nearly 4-years of delays.
38 Norman Street, Salem - 20 Homes
After approval by numerous public boards in 2022, a resident filed a lawsuit to try to prevent 20 homes over retail replacing a vacant parking lot and single story auto repair shop just steps from Downtown Salem. The lawsuit was eventually settled but the delay pushed the project into a world of rising interest rates and construction costs, putting the entire project at risk and a blighted vacant lot to remain in place of what should be homes for 20 individuals and families.
73 Lafayette Street, Salem - 50 Homes & Community Health Center
Montgomery Gold again, this time in Salem, sued to delay senior housing and community health center after years of community process. The suit settled and construction is slated to break ground later this year.
164 Savin Hill Ave., Boston- 3 Homes
Owners of this single family in Savin Hill received permission to convert their single family home just steps to the MBTA Red Line station into a 3-family (zoning in the neighborhood allowed a 2-family by right). Three abutters filing suit claim that while 2-family is allowed, converting to a 3-family will "have a direct negative impact" on their properties by "decreasing the available parking, increasing traffic and congestion, decreasing pedestrian safety, and increasing density beyond what the neighborhood is zoned for."
The Mariner Senior Living Facility, Marblehead- 87 rooms & 109 beds
As Marblehead's population of households led by a senior citizen increased by 21% over the last 10 years, residents fought, picketed and sued to stop a proposed 87-room senior living facility, the first in the rapidly aging community. There was even an attempted arson. In March of 2016, after a nearly 9-month long community process, the Marblehead Planning Board votes unanimously to approve the project. In May of 2016, the Marblehead ZBA denies the variances necessary to build the project. Over a year later... in October of 2017, land court remands back to the ZBA to rehear the requests. In December of 2017, the ZBA grants the requested variances.
In January of 2018... 3 separate lawsuits are filed appealing. Some neighbors claim publicly in their opposition to senior housing; "They’ll likely be “infirm,” so “it’s not going to matter that much whether they’re in Swampscott, Marblehead or Peabody.” In November of 2019, nearly 2-years after the appeals are first filed, a Superior Court Judge upholds the variances requested for the project. In December of 2019... two parties, Lisa & Phillip Mancuso file a Notice of Appeal, once again halting the project. In January of 2021, the Appeals Court upholds the special permit issued by the ZBA, 5-years after the ZBA first heard the appeal. The facility finally opened to it's first residents in 2023.
361 Belgrade Ave, West Roxbury- 124 homes
Two groups of abutters sued to prevent the construction of 124-homes on a former car dealership in the West Roxbury neighborhood of Boston. One judge, less than impressed with the merits of the case, ordered the appellants to post a $200,000 bond before their case could proceed, funds that would be forfeited to the developer if they lost. The judge found that; "This assertion of harm caused by shadows is not supported by credible evidence and, thus, does not support their standing to maintain this appeal." A second lawsuit brought against this same development was also dismissed with prejudice. (A special thanks to Universal Hub for his in depth work covering of many of these Boston suits.)
This is only a very small sampling of the at least dozens of appeals brought in an effort to stop or delay new housing production in Massachusetts. All of these projects went through lengthy community process in each instance, but one individual, or a small group of individuals, decided they had the right to play the role of judge, jury and executioner of new housing in their communities. While 2020's Housing Choice Legislation allows judges to require an appellant to post a $50,000 bond when appealing these decisions, it's up to a judges discretion whether or not to require it and, to date, it's only been used in a handful of these cases. Our own Supreme Judicial Court has even recognized the concerns about frivolous abutter appeals stating these cases could "choke the courts with litigation over myriad zoning board decisions where individual plaintiffs have not been, objectively speaking, truly and measurably harmed."
While the delays and costs associated with them in the above scenarios are egregious enough, the chilling effect that the possibility of an abutter lawsuit has when it comes to new housing development, particularly small, local, infill developers, is very very real. It prevents developers from even considering anything but completely by-right developments in communities where they've witnessed other developers face costly delays and legal fees to defend permits. If we hope to solve our housing crisis, we have to crack down on frivolous abutter appeals and the chilling effects these cases have on future housing production.
Jonathan Berk is a placemaker, urbanist and advocate who’s focused his career on building and advocating for walkable communities with vibrant public spaces, abundant housing choices and robust local small business communities. As the Founder of Re:Main, he's working to support the growth, enhancement and expansion of walkable neighborhoods through innovative, action oriented programs. Jonathan@remainplaces.com
Comentários