One group of residents drops suit against Roslindale apartment building, but another group continues legal battle

A group of Roslindale residents who sued to block a proposed apartment building on Belgrade Avenue at West Roxbury Parkway - several of whom lived in a condo building next door - dropped their suit after a judge said they didn't have much of a case, but could continue if they posted a $200,000 bond to compensate the developer for delay-related costs should they lose.

The group of residents agreed to dismiss their case "with prejudice," meaning they can't bring it again, according to a joint filing with developer Jake Upton's attorneys in state Land Court.

But a neighborhood association representing parts of West Roxbury on the other side of the parkway continues to press its case, which it filed after the Roslindale residents - and is trying to expand it into a "ten taxpayer" lawsuit to overcome the possible legal limitation that none of the group's officers are legally abutters of the proposed five-story, 124-unit apartment building on the old Clay Chevrolet site. The matter now sits before Land Court Judge Kevin Smith - who also oversaw the Roslindale case.

Ten-taxpayer suits let residents file complaints about municipal actions even if they don't live right next to an affected property; for example, ten North End residents fought for years in an ultimately successful battle to keep a restaurant off the end of Long Wharf.

Like the failed Roslindale suit, the Bellevue Hill Improvement Association's original complaint, also filed in Land Court, alleges that Upton's project would bring ruinous amounts of pollution and traffic and cause public-health and public-safety issues - which are similar to the complaints raised when Roxbury Prep proposed turning the site into a high school and many residents loudly said they would rather see housing there.

The requested variances, if granted, would also create a regrettable precedent that would encourage other prospective developers and property owners to seek and obtain variances that would effectively gut the existing zoning regulations to the detriment of the West Roxbury and Roslindale neighborhoods and undermine the specific purposes of Boston's zoning by-laws.

But the Bellevue Hill complaint goes further that the Roslindale one, alleging that the Zoning Board of Appeal violated its members' due process and equal protection rights under the state constitution by rejecting its demand for an "adjudicatory" hearing, run more like a trial, including the swearing in of witnesses, rather than its more customary, less formal, but still quasi-adjudicatory hearing.

The zoning board held its hearing and approved the project on last July.

The group says part of the site nearest the parkway was obtained by Clay Chevrolet in some sort of shady deal with the state decades ago and that as a successor landowner, Upton is obligated to give it back because it will no longer be used as a parking lot - he has proposed turning it into a mini-park extending the current parkway green space - and that using it as part of his project violates a section of the state constitution ensuring the preservation of natural land.

Upton's attorneys responded by calling for dismissal of the lawsuit, which they called frivolous and "the worst example of civic activism run amok," written by a lawyer - and association board member - who really should know better. The zoning board, through the city's corporation counsel, filed that it agrees with Upton's motion.

Upton's lawyers argued that to start, an association representing a neighborhood not within a stone's throw of the proposed project, and whose officers can show no direct, immediate harm or "actual aggrievement" from the decision, have no "standing" or legal right to object to the zoning board's decision in court.

And with no right to be in court in the first place, the group has no valid constitutional claims, because to claim violations of "procedural due process," you have to show you have a "protected interest" in the process, they continued.

The Plaintiff's Complaint fails in the most basic way: it fails to identify any protected interest it has in the Board's decision pertaining to Upton's property.

Even the claim that part of the land has to be returned to what is now DCR is simply wrong, because DCR told Upton, in a letter in January, 2023, it had no problems with his proposal.

Last month, after Upton's attorneys moved for dismissal, the association sought permission from the court to file an amended complaint, to add as plaintiffs enough residents to become a "ten taxpayer" lawsuit, which allows for suits by people who are not necessarily direct abutters of a project but who live in the same city as it.

The group said it wanted to do this in part to overcome what it said was a longstanding bias of courts in favor of developers and against ordinary citizens trying to fight zoning variances, which, especially in Boston, are readily granted even though they should be hard to get (they pointed to a 2023 study to that effect). They argued state law allows property owners to raise questions in court about particular zoning decisions in their city or town without making any mention of being an abutter.

And they claimed that the zoning board "cavalierly" ignored the state land transfer to the old car dealership even though that violated the constitutional prohibition against selling off state open land and that that alone is reason enough to allow the conversion of the suit into a "ten taxpayer" one.

In a rebuttal filed this week, Upton's attorneys reiterated their earlier charges and said if the neighborhood group is so upset with an MDC decision in the 1970s to sell a piece of land, it should sue the state, not the Boston zoning board, which, they note, is not a state agency.

The Boston Board of Appeals is not a state agency, and no argument is going to change that.

Also, the state law in question requires such a suit to be filed in superior court, not land court, so that should be a good reason for a Land Court judge to toss the case, they wrote, arguing that the amended complaint contains all the problems of the initial one and so the group should not be allowed to file it.

The judge has yet to rule on any of the motions in the Bellevue Hill case. He has scheduled a hearing on them for March 28, according to the case docket.

Original Bellevue complaint (2.4M PDF).
Original Upton motion to dismiss (1.1M PDF).
Proposed amended Bellevue complaint (4M PDF).
Bellevue memorandum in support of amended complaint (9.9M PDF)
Upton motion to reject amended complaint (3.4M PDF).
Motion to dismiss Roslindale lawsuit with prejudice (123k PDF).