Biele v. City of Boston Zoning Bd. of Appeals
| Decision Date | 25 March 2010 |
| Docket Number | 200803127H |
| Parties | Joyce Biele et al [1] v. City of Boston Zoning Board of Appeals et al [2] No. 112191 |
| Court | Massachusetts Superior Court |
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh)
The plaintiffs, Joyce Biele ("Biele") and Marion Lipini Gustowski ("Gustowski") (collectively, "the plaintiffs"), brought suit seeking to annul the decision of the City of Boston, acting through its Zoning Board of Appeals ("ZBA"), granting Peter Zagorianakos ("Zagorianakos"), N&P Associates, and the 902 East Second Street, LLC, a variance to develop the property located at 902 East Second Street, South Boston, Massachusetts. The matter was tried jury-waived before this Court on October 23, 2009. For reasons that will be explained, judgment will enter for the plaintiffs.
The parcel at issue, 902 East Second Street (the "Property"), consists of approximately 26, 400 square feet of vacant land. It is abutted by East Second Street on the south side and by P Street on the west side. The project site has three hundred (300) feet of frontage on East Second Street and eighty-eight (88) feet of frontage on P Street. Adjacent to the project site north on P Street and east on East Second Street is a former oil transfer facility/distribution depot owned by Coastal Oil Company and Elpaso Oil, which is currently not in use. The Property is in a dense urban neighborhood with mostly residential buildings of two and three stories interspersed with a rare one- or two-story industrial building on East First and East Second Streets. Most of these structures have wood clapboard exteriors and several have brick exteriors.
The Property is located in the South Boston Neighborhood District of the City of Boston. According to the Boston Zoning Map 4–South Boston District–the Property is located within an Industrial (M-2) Sub-district. In accordance with Boston Zoning Code, Article 13.4, "any dwelling in an L B, M, I, MER or W district shall conform to the lot area width, usable open space and yard requirements for the nearest S, R or H district." The nearest residential sub-district is an H-1-50. The Property is also located within the Enhancement Zone Sub-district of the South Boston Waterfront Interim Planning Overlay District ("IPOD"). Boston Zoning Code, Article 27P.
The plaintiffs claim that this project will be a detriment to the public good due to overpopulation, decreased parking, increased traffic and especially serious environmental contamination concerns. The plaintiffs also claim that defendants' project will cause a strain on the sewage system which is ancient in that area of South Boston.
Gustowski, currently retired, has lived at 24 P Street in South Boston since 1995. She lives in the basement of a three-decker home. Most of the buildings in her immediate neighborhood are two- or three-family homes. There is an apartment building on Broadway, some distance away; the other tallest building in the area is at 925 East Second Street which has approximately twenty (20) units. She was initially concerned because the size of this development was originally going to be a forty-five (45) unit building. Later, she became concerned about parking and traffic, and especially about serious environmental issues. Her unit, being in the basement, is mostly below grade and she is concerned about light, as there are only small windows in her unit.
Biele has lived in a two-family home at 913-15 East Second Street for approximately 15-16 years; her father lives in the second unit. The defendants' project will be directly in front of and across the street from her home. The lot at issue has been empty since she has lived at that address. It is not disputed that the defendants' lot was previously used as an oil storage facility and then as an MBTA lot for idling buses and as MBTA vehicle storage, all heavy industrial uses. She is especially concerned about the environmental impact of this development, as she knows that the owner of a nearby building, at 9 P Street and the corner of First Street, let the bank foreclose and take back the building because of what environmental testing revealed to be contamination. The lot next to that property was paved to cover up the grounds after tests indicated a lot of contamination. The Property at issue is approximately half a block away diagonally from Biele's house. Biele's concerns are that the project is very big, very tall, very long and does not fit into the neighborhood. She is especially concerned about the potential for environmental contamination.
The concerns voiced by Biele and Gustowski echo those concerns of neighbors who attended the five to six community meetings about the defendants' proposed development at 902 East Second Street. They have concerns about the size of the building, the number of units, the exacerbation of already insufficient parking in the area, and especially over environmental issues. According to a May 6, 2008 letter from Senator Jack Hart to the ZBA, "[t]here is still much concern among community residents and the Massachusetts Department of Environmental Protection (DEP) concerning the [P]roperty... relative to contamination." Ex. 8E. Moreover, Senator Hart stated Id.
During the final ZBA hearing on May 6, 2008, either Zagorianakos or his lawyer on his behalf, who also attended the hearing, agreed to complete an "environmental proviso"[3] within sixty (60) days, prior to any construction or evacuation at the site. Ex. 9, Mem. from Senator Jack Hart to South Boston Constituents.[4] While Zagorianakos claims that some soil samples were later taken and analyzed, no information was offered that the analysis was done by "a Massachusetts certified laboratory" independent of Zagorianakos' company, Wadleigh Environmental ("Wadleigh"). While the proviso required that Zagorianakos provide the soil testing results to the South Boston Community Health Center and the South Boston Public Library, and it is disputed factually whether it was ever provided to the library, there is no dispute that he never had a ZBA meeting with the community to reveal what the soil test results showed. There was no evidence that a public meeting was held by Zagorianakos to discuss and present the data. Accordingly, at least that section of the proviso, which he voluntarily agreed to do, was never completed.
The defendants' development project ("Proposed Project") at the Property is a three-story building of thirty-one (31)[5] units with fifty-two (52) parking spaces, [6] fifty (50) of which are on a single level of underground parking. The footprint of the building will be 264 feet by 68 feet, on a 300 foot by 88 foot parcel. There will be an elevator, addressable fire alarm systems and full sprinkler systems, limited green space, private balconies or decks out back, private roof decks, bike racks and inside trash collection space. Seven entrances will be created along East Second Street to accommodate the residential units. When the number of units was decreased from forty-five (45) to thirty-one (31), the building's square footage was only reduced from 50, 000 to 46, 000 square feet. Each of the thirty-one (31) units was designed to be larger and more luxurious. The defendants' architect, Michael Oratovsky ("Oratovsky") has a twenty-five percent (25%) financial interest in the Proposed Project. He designed the building with less than 50, 000 square feet so that only "small project review" will be done by the Boston Redevelopment Authority ("BRA").
The rear yard set-back requirement is twenty (20) feet; the Proposed Project has only a fourteen (14) feet rear yard setback. Imposing the twenty (20) feet rear setback would reduce the number of parking spaces by half; taking 6 feet from the building (to satisfy the rear yard set-back) would make the building narrower and, so long as the underground garage is only one level, will eliminate half of the parking spaces in the basement garage.
Oratovsky testified that the open space required is 14, 800 square feet and that the open space provided is 15, 516 square feet, including all of the private balconies, decks and roof decks.[7] He claimed that the roof decks, balconies and decks total approximately 5, 000 square feet. Given these numbers and his claim that more open space is being provided than is required, he was unable to explain why a variance as to open space was necessary. As far as the roof decks go, deck railings will be ten (10) feet in from the P Street side, as there are residents there, and only six (6) feet in from the E side which face garages.
According to Oratovsky, the Proposed Project meets the conditions required for conditional use approval. See Boston Zoning Code, Article 6 at §6.3.[8] In his opinion, the Proposed Project, as he designed it, does not have any hazards. He does not believe that, if people behave appropriately, any roof deck would be a nuisance. The capacity of the roof deck is one person per forty (40) square feet, and one hundred (100) pounds per square foot for persons, grills, furniture. Oratovsky did not determine if Boston Zoning Code, Article 6 at §6.3A, which governs additional conditions required by the ZBA for approval of parking facilities in a restricted parking district,...
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