Pollard v. Bos. Redevelopment Auth.
| Decision Date | 12 October 2012 |
| Docket Number | No. 12–P–488.,12–P–488. |
| Citation | 975 N.E.2d 906,82 Mass.App.Ct. 1116 |
| Court | Appeals Court of Massachusetts |
| Parties | Walter S. POLLARD, Jr., & others v. BOSTON REDEVELOPMENT AUTHORITY & others. |
OPINION TEXT STARTS HEREBy the Court (MEADE, SIKORA & WOLOHOJIAN, JJ.).
The plaintiffs appeal from the grant of summary judgment in this certiorari action in which they challenge the Boston Redevelopment Authority's (BRA) approval of a combination respite care and low-income housing facility at 461 Walnut Avenue in the Jamaica Plain neighborhood of the city of Boston, pursuant to G.L. c. 121A. The proposed project would renovate a former ninety-bed medical respite facility for the homeless and often disabled individuals into a similar twenty-bed facility together with approximately thirty studio rental units intended for medically vulnerable and often disabled formerly homeless individuals. We affirm. Before reaching the merits, we pause to address the issue of standing, which ordinarily would be a threshold issue. Although the Superior Court judge ruled that the plaintiffs are not “persons aggrieved,” St.1965, c. 859, § 2, and therefore lack standing, the parties agree 3 that we need not reach the issue of standing if we conclude that the plaintiffs' arguments on the merits otherwise fail. As set out more fully below, we conclude that the decision of the BRA was supported by substantial evidence and we, accordingly, do not reach the issue of standing. 4 See Boston Edison Co. v. Boston Redev. Authy., 374 Mass. 37, 63 n. 17 (1977).
Turning to the merits, the plaintiffs contend that three 5 determinations by the BRA were not supported by substantial evidence: (1) that the project area is “decadent,” “substandard,” or a “blighted open area”; (2) that requested zoning deviations do not substantially derogate from the intent and purpose of the zoning code; and (3) that the project does not conflict with the master plan for the city of Boston. See G.L. c. 121A, §§ 1 & 2; St.1965, c. 859, § 2. Our task is to review the action of the BRA under the substantial evidence test, which is “commonly understood to require that agency findings must rest upon ‘such evidence as a reasonable mind might accept as adequate to support a conclusion.’ “ Boston Edison Co., supra at 54, quoting from Bunte v. Mayor of Boston, 361 Mass. 71, 74 (1972). Although we review the entire record for substantial evidence, we do not substitute our own judgment for that of the BRA. Christensen v. Boston Redev. Authy., 60 Mass.App.Ct. 615, 620 (2004). After a review of the entire record, we conclude that that substantial evidence supported each of the BRA's challenged determinations.
Substantial evidence exists for the BRA's finding that the area is “decadent” within the meaning of G.L. c. 121A, § 1.6 A decadent area is defined in relevant part as:
“an area which is detrimental to safety, health, morals, welfare or sound growth of a community because of the existence of buildings which are out of repair, physically deteriorated, unfit for human habitation, or obsolete, or in need of major maintenance or repair, ... [which] make[s] it improbable that the area will be redeveloped by the ordinary operations of private enterprise, or by reason of any combination of the foregoing conditions.”
G.L. c. 121A, § 1. The BRA may find a project area decadent even when the surrounding community is thriving; it is the project area itself—and not the neighborhood—that is to be assessed. Christensen, supra at 622.
Here, architects stated that the building, constructed in 1966, is “physically deteriorated, in disrepair and is essentially uninhabitable.” They also reported that the building contains asbestos, has a leaking envelope, lacks appropriate insulation, requires replacement plumbing, lacks adequate ventilation systems, has an unsafe electrical system, and has inadequate fire detection systems, among other problems. The parcel had been vacant for approximately two years at the time of the BRA decision. Such evidence is sufficient to support the BRA's finding that the building is “decadent” under G.L. c. 121A, § 1. Compare, e.g., Boston Edison Co., supra at 60 (); Shriner's Hosp. for Crippled Children v. Boston Redev. Authy., 4 Mass.App.Ct. 551, 558–559 (1976) (). We are furthermore not persuaded by the plaintiffs' argument that the BRA decision was merely a “bare repetition of the statutory language.” Shriner's Hosp. for Crippled Children, supra at 558. The BRA's report and decision clearly identified its reasons and also explicitly incorporated documents that further identified reasons for its finding that the project area is “decadent.”
Similarly, the record contains substantial evidence to support the BRA's finding that requested zoning variances do not substantially derogate from the intent and purposes of the zoning code. Although the “standard for granting a zoning variance under [St.1960] c. 652, § 13 [predecessor to St.1965, c. 859, § 2], that the deviation will not substantially derogate from the intent and purposes of the zoning code, is very similar to one of the standards for the grant of a variance from the zoning code under G.L. c. 40A, § 10 [,] ... the power of the BRA to grant variances is less circumscribed than that of the permit granting authority under G.L. c. 40A, § 10.” Boston Edison Co., supra at 64. The inquiry is “whether the introduction of the nonconforming use ‘would unquestionably alter the essential character of an otherwise residential neighborhood.’ “ Id. at 66, quoting from Atherton v. Board of Appeals of Bourne, 334 Mass. 451, 455 (1956). “[T]he proper approach for determining whether a variance should be granted involves consideration of the property uses existing in the area in relation to the specific new use proposed.” Id. at 66. The project requires variances for multi-family and medical care uses, as well as variances for insufficient floor area ratio, insufficient rear yard size, and for the number of parking spaces.
The purposes of the zoning code for the Jamaica Plain Neighborhood District include:
“provid[ing] adequate density controls that protect established residential areas ... promot[ing] mixed-income residential development; provid [ing] for affordable and market rate housing for individuals and...
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