Petition for Writ of Certiorari — Brookins v. Zoning Commission Commission Commission of Boston (No. 06-1117)
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Pu aati Court, US
No.06-_ 96111 7FEB 8 - 2007
— oman camera samme
QEECE OF THE OLERK
IN THE
Supreme Court of the United States
OSCAR T. BROOKINS & KATHRYN J. BROOKINS.
Petitioner.
BOSTON ZONING COMMISSION. BOSTON REDEVELOPMENT
AUTHORITY. PRESIDENT AND FELLOWS OF HARVARD
COLLEGE. MISSION HILL NEIGHBORHOOD HOUSING
SERVICES AND ONE BRIGHAM CIRCLE, LLC.
Respondents.
On Petition for a Writ of Certiorari to the
Appeals Court of Massachusetts
PETITION FOR A WRIT OF CERTIORARI
OSCAR T. BROOKINS, Pro se
KATHRYN J. BROOKINS. Pro se
4 Hillside Street
Boston, MA 02120
(617) 427-4140
W._SON-EPES PRINTINGCO INC) - (202) 789-0096 - WaSr NGTON.D C. 20002
QUESTIONS PRESENTED
1. Is the right to a rule of law a fundamental right
guaranteed under the U.S. and Massachusetts Constitution?
Does the Boston Zoning Code, Article 80 violate the
petitioners’ right to the rule of law in zoning cases?
2. Is a “civil conspiracy” to exchange money and
property to change the zoning laws in the Mission Hill
Zoning District a violation of the petitioners’ right to a rule of
law, the equal protection of the law and the due process of
law? Does the exchange of property for zoning laws
constitute “contract zoning”?
3. Is “community process” as used by the BRA a
substitute for the rule of law?
4. Did the Mass. ‘Appeal Court err in Ruling that the
petitioners had no standing to pursue their complaint by not
acknowledging the statute that confers “rights in the nature of
mandamus” to challenge zoning decisions? Did the Massa-
chusetts Supreme Judicial Court err in denying the peti-
tioners’ further appellant review because of the errors in the
decisions below?
5. Did the rezoning of the Harvard ledge site for
institutional use constitute “spot zoning” because the long
term tenant, Partners Health Care, the parent company of the
Brigham & Women’s Hospital is a medical institution and the
subject site should be included in the Brigham & Women’s
Master Plan?
6. Did Harvard violate the trust placed in it by their
Charter of 1650 to use the assets entrusted to it over the last
356 years solely for the benefit of their students by the gift-
sale of their ledge site to a for-profit group for $2 million?
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED sescevecccccsovcercerstocsiversesstoors i
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CONSTITUTIONAL AND STATUTORY
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APPENDIX A — Extension of time to file a petition
for a writ of certiorari to February 8, 2007................ la
APPENDIX B — Judgment after rescript, October 19,
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APPENDIX C — Notice of Denial of Further Appel-
fate Review, October 11, ZOOG ..ccccscccsssciveevesenstesereces 4a
APPENDIX D— Memo & Order Pursuant to Rule
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APPENDIX E — Judgment on Findings of the Court,
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(ill)
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TABLE OF CONTENTS—Continued
APPENDIX F — Memo & order on Defendants’ Mo-
tion for summary judgment, May 5, 2003.................
APPENDIX G— Memo of Decision on Plaintiffs
Motion for preliminary injur. tion, February 12,
pS NES RIE Reo PER NO Wo heer Sea PT PO EE aD
APPENDIX H — Request for a Temporary Restrain-
Sie CONGEE, FORTUNEY 5D, DICE viicncececevsivicteqosnsenteretnsanses
APPENDIX I — Emergency Motion to Intervene of
One Brigham Circle, LLC, September 17, 2001 .......
APPENDIX J — Defendant’s Motion to Dismiss
Plaintiffs’ Complaint and memo in support Thereof:
I tt i cnet
APPENDIX K — Memo of Decision and Order on
Defendants’ Motions to dismiss. November 22,
APPENDIX L — Order on Defendant’s Motion for
Statutory Bond. January 14, 1991 oo... eee eeees
v
TABLE OF AUTHORITIES
CASES Page
Brady v. Board of Appeals of Westport, 348
PDs Sy 28 eC CN beiirinivarrcniieddeimatdbenninvinn 17
Hillary Goodridge & others v. Dept. of Public
Health & others, 44 Mass. 309, 798 N.E. 2nd
PE See ei ititisssrtiiicakecisinicRwibipednieaiianeaies 29
Laura Green v. Board of Appeals of Province-
town, 26 Mass App. Ct. 469 529 N.E. 159
NOT ia di sechnacindicinvcnienitosuabeuacrlecsisnwkchentebsaicsidecee deh dues 16, 19
Laura Green y. Board of Appeals of Province-
town, 404 Mass. 571, N.E. 536 2d. 584 (1989)... 17
Nectow v. City of Cambridge, et al, 277 US.
183, 48 S. Ct. 447, 72 L.E. 842 (1928)... 8
Anthony Palazzolo v. Rhode Island, 533 U.S. 606
Eee ccasicunaih bc bsatnscdsds apbibinisenaneinesniacdemuzeetaens 28
Vokes v. Avery W. Lovell, Inc., 18 Mass. App. Ct.
OFT Wee CED sii vitneccionrcsierigenniveia +49
OPINIONS BELOW
The Supreme Judicial Court for the Commonwealth of
Massachusetts Denied Further Appellant Review, September
11, 2005. Mass. Appeals Court Memorandum and Order
Pursuant to Rule 1:28, on July 13, 2006. Memorandum of
Decision and Order on Defendant’s Motion for Summary
Judgement, May 5, 2003. Denial of Request for Injunctive
Relief, February 12, 2002.
A Request for a Temporary Restraining Order was denied
on Feb. 5, 2002.
JURISDICTION
The judgement Petitioners seek to have the court review
was entered on September 19, 2006. The petitioners time
in which to file their petition for writ of certiorari was
extended to February 8, 2007. This Court has jurisdiction to
review this petition based on U.S.C. Title 28, Part IV, Chap.
01, Section 1250, and the U.S. Constitution Article IIf.
Petitioners have exhausted all appeals to the Courts of
Massachusetts.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Constitution of the U.S, Fourteenth Amendment.
Section | “. . . No State shall make or enforce any law which
shall abridge the privileges . . . nor shall any State deprive
any person of life, liberty, or property without due process of
the laws.”
The Constitution of Massachusetts, Part the First, A Decla-
ration of the Rights of the Inhabitants of the Commonwealth
of Massachusetts, Article XXX. “In the government of this
commonwealth, the legislative department shall never
exercise the executive and judicial powers, or either of them:
the executive shall never exercise the legislative and judicial
powers, or either of them: the judicial shall never exercise the
2
legislative -nd executive powers, or either of them; to the end
it may be «. »vernment of laws and not men.”
Massachusetts General Laws Chapter 249: Section 5.
Action in the nature of Mandamus. “A civil action to obtain
relief formerly available by writ of mandamus may be
brought in the supreme judicial or superior court or if the
matter involves any right, title or interest in land in the land
court...”
Boston Zoning Code St. 1956 Chapter 10 A (as inserted by
St. 1987, c 371, s. 2) “Any persons aggrieved by a decision of
the of the zoning commission approving a zoning map
amendment . . . may appeal such decision to the superior
court in the county of Suffolk ... Upon an appeal pursuant to
this section, the court shall hear all pertinent evidence and
determine the facts, and, upon the facts as so determined,
annul such action if found to exceed the authority of such of
such commission, or make such other decree as justice and
equity may require. The foregoing remedy shall be exclusive;
but the parties shall have all right of appeal and exception as
in other equity cases . . . costs shall not be allowed against the
party appealing from the action of the commission unless the
court finds that said party acted in bad faith or with malice in
appealing to the court.”
Boston Zoning Enabling Act. Article 80-1 Purpose of this
Article. “The Purpose of this Article is to provide clear,
predictable and unified requirements for the review of devel-
opment projects throughout the City. These review require-
ments also provide important opportunities for community
involvement in development review activities that affect the
quality of life in the City.”
Boston Zoning Code, Article 59, Mission Hill Zoning
District: Article 80 Large Project Review, and Map Amend-
ment No. 390. “The Zoning Commission of the City of
Boston, . . . amends ‘map 6d, Mission Hill Neighborhood
District,’ of the series of maps entitled “Zoning Districts City
3
of Boston,” .. . as follows: By adding the designation “D
indicated a Planned Development Area overlay district to the
existing zoning of two parcels of land, totaling approximately
9.25 acres...”
Magna Carta, [40] 1215 A.D. “To no one will we sell, to
no one will we refuse or delay right or justice.”
STATEMENT OF THE CASE
This case is about Harvard and the Boston Redevelopment
Authority exchanging real property to get zoning relief for
construction projects in the Longwood Medical Area and the
Mission Hill Zoning District of Boston. The petitioners filed
their first challenge to the resulting zoning relief in 1989. The
Appeals Court appended the decisions in these cases to their
Decision in the matter here before the Court as Appendices J,
K and L.
Massachusetts Courts have ignored the statutes governing a
citizen’s rights in the nature of mandamus to appeal the
unlawful actions of the City’s zoning administrative bodies,
the Boston Redevelopment Authority (BRA) and the Boston
Zoning Commission (BZC). In the three prior cases they
have filed, the petitioners have delineated serious violations
of their fundamental right to a rule of law, and the Boston’
zoning agencies’ disregard for their responsibilities to the
public in the subject case.
39
Courts below dismissed the subject case (and the other
three) because they ruled that the petitioners lacked standing.
The facts as presented here and in the earlier decisions from
1990, 1993 and 1999 have not received any factual scrutiny
by the courts. Judicial review was forestalled by their
imposition of “standing” conditions that radically reinterpret
the statutes. The state courts have ignored petitioners’ con-
stitutional and common law rights. The Courts did not
address the mandamus issue in their decisions. It has been the
contention of the Petitioners that when constitutional issues
4
are raised the issue of mandamus relief was appropriate since
it was the officials charged with administrating the zoning
laws who were not adhering to the statutes governing the
exercise of their duties, and depriving the petitioners of their
fundamental right to a rule of laws.
The Material Facts
The petitioners Oscar T. and Kathryn J. Brookins are
residents and property owners in the Mission Hill Zoning
District of Boston and the publishers of the Mission Hill
News. On July 27, 2001, the petitioners filed an appeal in
Suffolk Superior Court against the Boston Zoning Com-
mission [“BZC”], the Boston Redevelopment Authority
[“BRA”], the President & Fellows of Harvard College
(“Harvard”] and the Mission Hill Neighborhood Housing
Services [“MHNHS”] on the grounds that the respondents
had engaged in illegal “spot zoning” and “contract zoning.”
Petitioners alleged that the amendments themselves and the
process that led to them were a violation of the Petitioners’
constitutional right to due process of the law and the equal
protection of the laws; they also filed against Harvard for
violating the trust their Charter had placed in them by using
endowment funds to support political fronts for politicians
and to pay extortion to politicians to acquire the subject
zoning amendments. An amended complaint was filed on
Aug. 3, 2001. App. 7-38.
Harvard and the BRA have engaged in thirteen years of
community machinations to cover the exaction of property
from Harvard for zoning exceptions. In 1989 Harvard
announced their intent the transfer their 9.6 acre ledge site at
Brigham Circle for the give-away price of $2 million to a
sequence of beneficiaries; the nonprofit Mission Hill
Neighborhood Housing Services “MHNHS” from 1989 until
1996, when the Northland Development Corp. was given a
prospective 85 percent partnership, with the MHNHS retain-
ing a 15 percent interest; and finally Jerome Rappaport’s New
5
Boston Fund that joined the other two with an 85 percent
principal ownership and a $10 million investment. Northland
retained a 10 percent interest and the MHNHS was recon-
stituted as a for-profit MHNHS, LLC with a 5 percent interest
in a new entity One Brigham Circle, LLC.
The Rappaport family is infamous as the “developers” who
demolished Boston’s West End community in 1968. The $2
million sale price that was established in 1989 was the
amount Harvard received for the property in 2001. The
project has a 35-year lease with Partners Health Care for $40
million a year or $1.4 billion for the life of the lease.
Petitioners are also aggrieved in the traditional zoning
sense of the word by the traffic on Parker Street, where they
own a condo and a three-family house. The expansion in the
Medical Area has heavily burdened the small, old residential
streets in Mission Hill. In addition to their residence at 4
Hillside Street, the Petitioners’ own property at 743 Parker
Street and at 803 Parker Street. Parker Street is a narrow
street and one of the oldest in Boston. In places it is 19 feet
wide and the sidewalks only 4 to 5 feet wide. The congestion
on the major arteries has heavily impacted residential streets
because motorists see them as providing a faster alternative to
remaining on the main arteries such as Tremont Street that is
sometimes blocked, thus burdening the residents of these
streets with traffic, air pollution and unsafe conditions. In
Vokes v. Avery Lovell, Inc., 18 Mass. App. Ct. 471, 482-483
(1984) circumstances such as the petitioners’ face on Parker
Street were deemed sufficient to grant standing to the
petitioners. App. 75.
The subject zoning amendments to the Mission Hill Zoning
Code established a Planned Development Area for the
9.6-acre ledge site at Brigham Circle owned by Harvard.
These amendments allowed the construction of a 117,000
sq. ft. medical office facility with an underground parking
garage for 255 cars for Partners Health Care, Inc., an admin-
istrative umbrella for the Brigham & Women’s Hospital,
6
Mass. General Hospital and other health care facilities. The
project also includes 62,000 square feet of retail space and
surface parking for 130 cars. (App. 1387) The ownership of
the parcel transferred to One Brigham Circle, LLC. “OBC”
on December 11, 2001.
The upper part of the parcel is a 5.1-acre, passive park that
is also touted as a “community benefit.” It is owned by a
nonprofit entity, “the Friends of Puddingstone Park,” con-
trolled by the three directors of the One Brigham Circle, LLC
partnership. The BZC approved these zoning amendments on
the recommendation of the BRA without adequate infor-
mation available to the public or to them before they gave
their approval. The project itself is massive and totally out of
keeping with the surrounding commercial space and properly
belongs across the street in the Longwood Medical Area
because it is used as medical facility. Petitioners’ complaint
charged that the respondents engaged in illegal “spot zon-
ing”. The subject development is an improper intrusion of
Medical Area uses into the Mission Hill Zoning District.
App. 185-244.
In 1989 Harvard first offered their ledge site to the
MHNHS for $2 million. It took them until 2001 10 figure out
how to effectuate the sale of the property. (App. 22-25) It
turns out that exchanging Harvard property for the City’s
zoning approvals wasn’t easy, especially when the people of
Mission Hill were opposed to both Harvard and the MHNHS,
Harvard’s chosen representative in Mission Hill. App. 75-79.
On May 8, 2001, after a public hearing of the BRA Board
at which the petitioners’ and others, presented oral and
written testimony in opposition to the project, the board voted
to approve the Planned Development Area for the One
Brigham Circle at Harvard’s Ledge Site, and authorized its
Director to petition the BZC for approval of the development
plan and Map Amendment. App. 185-205.
7
At public hearing on May 30, 2001, petitioners and others
presented oral and written testimony opposing the project, to
the BZC Board. The Board did not have a quorum to vote at
the public hearing, so they voted on June 27, 2001 to approve
the development plan for Harvard’s ledge site and map
amendments. On the same day Mayor Menino signed Map
Amendment No. 390 and the PDA No 52.
For the BZC to legally exercise its legislative function both
sides must be heard, but the BRA did not include the letters
from opponents of the project in the documents they sent to
the BZC. The BRA never made available a certified site plan
so that the citizens assembled in numerous small meetings to
discuss the project had no way of assessing the size of the
project they were discussing. The size of the project simply
does not meet the requirements of the PDA guidelines that a
project must be in keeping with its surroundings. The absence
of a site plan for the project was noted by Adam Schulman of
the Boston Transportation Dept in his written comments to
the BRA. Petitioners never saw a site plan of the project.
App. 90-92.
The evidence presented at the public hearing did not
address anything other than community approval. MHNHS
Director since 1976, James Hoffman spoke on behalf of the
project. Here are excerpts from the minutes of the hearing:
“Mr. Hoffman... stated that there was enormous community
support for the proposed project and a very extensive
community review process. ”
“Commissioner Fondren asked why the need for a PDA
and was there money allocated to maintain the proposed
open space.” Mr. Dragat of the Northland Development Corp.
responded “. . . when the Mission [ill zoning was done, the
planning for the project was already underway. The PDA
regulations in Article 39 were designed with this project in
mind... The project is obligated to maintain the open space,
hut an entity of some sort may he created with the Parks
Dept. or the Boston Natural Areas Fund to maintain it in
8
perpetuity, There is an endowment already in place for
funding.”
Four Mission Hill residents spoke in favor of the project:
Patricia Flaherty, who was then the President of the MHNHS;
Maryanne O’Keefe, who is now the President of the MHNHS
and Ms. Flaherty is now a salaried employee; Richard
Giordano a member of the MHINHS and aide to Rep. Kevin
Fitzgerald; and Fred Ficken also a long time member of the
MHNHS spoke.
Three residents spoke in opposition, including petitioner
Kathryn Brookins; her complaints were the same then as now.
The vote on the project took place a month later, on June 27,
2001 at a business meeting that was “open” to the public but
the public was not given notice of the meeting. Commissioner
Fondren stated that at the public hearing there was “strong
support for the petitions as well as some opposition”. The
vote was unanimous.
A Planned Development Area does not meet the standard set
in Nectow v. City of Cambridge, et al, 277 U.S. 183, 48 S. Ct.
447, 72. L. Ed. 842, 1928 U.S. LEXIS 683 that, “Zhe gov-
ernmental power to interfere by zoning regulations with the
general rights of the landowner by restricting the character of
its use is not unlimited, . . . such restrictions cannot be imposed
if they do not bear a substantial relation to the public health
safety, morals or general welfare. ..". It certainly does not
bear a positive relationship to morals; the ability to tailor
zoning to meet the needs of individual landowners such as
Harvard as shown in the testimony of Mr. Dragat above does
not meet this standard. He said, “. . . that when the Mission Hill
zoning was done, the planning for the project was already
underway.” The new Mission Hill Zoning District was in
“community process” from 1989 until 1996 when the zoning it
recommended was approved. The “process” was conducted by
a Planning and Zoning Advisory Committee [“PZAC”] then a
Interim Planning Overlay District [“IPOD™] appointed by the
9
Mayor and selected from the membership in the MHNHS. In
the case before this Court the petitioners have shown that in the
public processes “countless meetings” there was no meaning-
ful input. Community members were talking but what they
said didn’t matter because there was not one vote in 14 years
of community meetings. The president of the MHNHS, Kelly
Farquharson, was also the Chairman of the PZAC/IPOD that
held secret meetings, kept no minutes and had no quorum
requirements.
Harvard asserted that they were not the developers of the
project although they were the owners. Harvard cannot argue
that Northland or the New Boston Fund as partners in the One
Brigham Circle development were involved in the zoning
process to assure that “the planning for the project was
already underway,” since these entities were not on the scene
when this “community planning” took place. In our request
for the production of documents to the BZC attorneys for all
information before the BZC Board when -they voted we
received a very slim packet indeed, containing nothing on
which to review the project with understanding. The infor-
mation provided was clearly not a sufficient basis to make an
informed decision on “unique” zoning amendments for a $40
million project. App. 83-87.
On July 26, 2001 Partners Health Care signed a lease for
all the proposed office space and the 255-car parking garage
at Brigham Circle. It was not known until all the zoning
permits were approved that the facility was to be used by a
medical institution. Partners is an umbrella organization for
the Brigham and Women’s Hospital (BWH), Massachusetts
General Ilospital and other medical facilities. The use of the
facility as an adjunct to the BWI] violated what had been a
long standing agreement between the medical institutions and
the Mission Ilill neighborhood that the institutions would not
site their facilities in Mission Hill which lays to the east of
Huntington Avenue. App. 93-103.
10
The medical institutions’ use of the ledge site should have
required that it be included in the Brigham and Women’s
Hospital Master Plan and subject to the limitation on parking
in that area, 0.7 parking spaces per 1,000 sq. ft. of devel-
opment. The BRA has recently included properties outside
the former boundaries of the Longwood Avenue Institutional
District and to the east of Huntington Avenue in the Master
Plan Zoning of the Medical Area. In the instance herein under
review it was in their interest not to. The BRA’s plan for the
medical area seems to be to no advanced planning.
On Sept. 12, 2001, One Brigham Circle, LLC. (OBC) filed
an Emergency Motion to Intervene. On September 20, the
Court allowed the Motion without Petitioners being given
notice and permitted ar opportunity to file an opposition to
the Motion. Petitioners complained and were given an
opportunity to object. The Court then allowed another
Motion to Intervene on Oct. 11, 2001. OBC had no docu-
mented relationship with the project at that time. [App. 39
and appended here] The OBC was not an owner of the
property until Dec. 11, 2001, nor did they offer a purchase
and sales agreement to establish their claim of interest in the
proceedings.
It is contrary to the law and practice to allow the issuance
of a building permit when a complaint is pending against the
decisions of a zoning board, Harvard’s project received a
building permit. Massachusetts’ statutes state that a person
aggrieved has 30 days to challenge a zoning amendment.
Once the complaint if filed no building permit can issue until
the legal challenge to the project is resolved. The commence-
ment of construction while the petitioners’ complaint had not
been resolved is a serious breach of the petitioners’ right to
due process.
On October 28, 2001 the designated developers made
application to the City’s Inspectional Services Department.
(ISD) for a full building permit for the project. The ISD issued
a “stop work” order on October 29, 2001 stating, “Present
11
procedure is in violation of the requirements of the Zoning
Ordinance of the City of Boston and the Massachusetts Build-
ing Code.” The remedy for this violation was to “stop all work
and furnish design review approvals as required by Article 80,
Section 5.” Article 80 Section 5 states, “Except as otherwise
specified in this Article, where conflicts exist between the
provisions of this Article and the remainder of this Code the
provisions of this Article shall govern, notwithstanding any
contrary provision of this Code.” App. 48.
ISD were looking for the “site plans” that had never
appeared in all the official filings. Asserting the supremacy of
the BRA over the ISD, BRA Director Mark Maloney wrote
Kevin Joyce, Commissioner of the ISD a letter, in regard to
the One Brigham Circle project dated October 31, 2001. This
letter states, in part, “J hereby issue this certification of
Compliance for the Proposed Project pursuant to Section
80B-6 of the Code... In Accordance with the above
findings and the May 31, 2001 BRA vote, I hereby issue this
Certification of Consistency for the Proposed Project
pursuant to Section 80C-8 of the Code.” Section 80C-8 is
the requirement for the information usually incorporated in a
site plan. “(a) size, including gross floor area, building height,
and FAR; (b) uses; and (c) location, including the location of
each proposed building and use.” Building inspector Harry
McGonagle declared the violation corrected on November 11,
2001. App. 49-50.
When the petitioner, Kathryn Brookins, learned of the
issuance of the building permit in February 2002, she went to
the building department and spoke to Gary Moccia, Deputy
Building Commissioner at the ISD. “J asked him what
usually happens when a zoning amendment or decision of
the BZC is challenged in court. He responded “The City’s
Law Dept. calls us. They didn't call.” App. 45.
Once the “Permit to Build” was issued Harvard was ready
to transferred deeds for the two parcels of land at the Ledge
Site. On December 11, 2001 a new for profit entity, Mission
12
Hill Neighborhood Housing Services, LLC. (“MHNHS,
LLC”), with its partners, took title to the to 141,125 sq. ft. of
the lower portion of the property as a for-profit corporation
called One Brigham Circle, LLC for $1 million. App. 45.
On December 13, 2001, Fleet Mortgage gave OBC, LLC a
construction mortgage for $40 million, although the estimated
cost of the construction on the building permit is for only
$22,322,000. App. 60-69 and 47.
On January 23, 2002, a private not-for-profit entity, the
Friends of Puddingstone Park, Inc., paid $1lmillion for the
remaining 5.5 acres of the property zoned open space and
touted as a passive park. The directors of the OBC part-
nership are the only members of the private nonprofit
organization. Interestingly the Articles of Organization state
that “Under no circumstances shall the corporation take any
action that would transform the character of Puddingstone
Park from a passive public park for public use to property ,
held for any other use or purpose.” Under the ownership of
these “Friends”, Puddingstone Park was used as a dumping
ground for thousands of tons of granite ledge that the OBC
blasted out of the lower site so that their bottom level of
parking garage would be at grade level with Tremont Strect.
The plans for the project that show the slope leading up to
the top of the ledge as undisturbed natural area could not be
more untrue.
The Court denied the petitioners’ request for a temporary
restraining order on February 5, 2002. At the February 12,
2002, hearing on petitioners’ motion for injunctive relief, the
Court observed,
“It seems that ultimately what you're suggesting,
although you haven't used the term, but it seems to me
you're arguing that there has been a long-standing, in
essence, civil conspiracy hetween the BRA and Harvard
to develop Mission Hill or this particular parcel, that
they had in essence co-opted the Mission Hill Neigh-
13
borhood Housing Service to become their puppet for
community input; and that they have redrafted the
zoning laws or regulations that apply to Mission Hill so
as to permit what we're now seeing by of expansion and
development”. (Emphasis added.)
Ms Brookins, “You said it very well. Thank you”.
App. 134-135.
Despite the illegal issuance of a building permit to the
developer and the commencement of construction on the
project, the Court dismissed the petitioners’ request for a
Temporary Restraining Order and their Motion for Injunctive
Relief solely on the basis of standing. The Judge signed his
Memorandum of Decision on Petitioners’ Motion for
Preliminary Injunction, on February 12, 2002, the same day
as the hearing on the motion. [App. 43 & 107-109].
All respondents filed for Summary Judgment on March 5,
2002 thereby forestalling discovery by the petitioners. A
hearing was held on September 20, 2002 and Memorandum
of Decision and Order on Defendants’ Motion for Summary
Judgment was allowed on May 3, 2003. A Judgment on
Findings by the Court was entered on June 5, 2003. The
petitioners filed an Appeal on June 20, 2003. The project was
completed by the time the Judgment on the Findings was
entered. App. 47.
The evidence before the Court shows that the sale of
Harvard’s ledge site was contingent on the issuance of the
building permit for the project that benefits both of Harvard’s
chosen developers, the New Boston Fund and Brigham &
Women’s Hospital.
The respondents have never refuted the facts of the case as
outlined in petitioners’ court filings.
ARGUMENT
Harvard and their affiliated hospitals have needed many map
amendments and variances to build approximately four million
square feet of new medical facilities and three thousand new
a
parking spaces in their 205-acre Longwood Medical Area. The
concentration of medical facilities in one area may be desirable
for the City of Boston, as they do generate jobs. However,
these institutions are all tax-exempt so they do not provided a
commiserate increase in property taxes, thus placing all the
burden for sustaining municipal services on the taxpayers of
Boston, who in some instances have seen their taxes increase
500 per cent since the medical area construction boom began.
The BRA as the City’s planning agency has erred in allowing
all this new construction without requiring that new infra-
structure is put in place to accommodate the increased devel-
opment. The City’s planning agency, the BRA, has seen fit to
promote development, not to plan or prepare for it, with
deleterious consequences for the City.
The subject zoning, a Planned Development Area, PDA, is
unconstitutional, it violates all the fundamental principles of
zoning. A PDA is a parcel of land that is given the right to be
unique through a process of review by the BRA. It does not
meet any of the articulated constitutional standards for zoning
laws and violates the petitioners’ right to the rule of law.
The Constitution of Massachusetts, Part the First, A Dec-
laration of the Rights of the Inhabitants of the Common-
wealth of Massachusetts, Article XXX. It says, “/n the gov-
ernment of this commonwealth, . . . the judicial shall never
exercise the legislative and executive powers, or either of
them; to the end it may be a government of laws and not men.”
The subject zoning amendments to the Mission Hill Zoning
District are under the Boston Zoning Code, Section 80-1. Pur-
pose of the Article. “The purpose of this Article it to provide
clear, predictable, and unified requirements for the review of
development projects throughout the city. These review re-
quirements also provide important opportunities for com-
munity involvement in development review activities that
affect the quality of life in the city.”
This article outlines requirements for review, not a plan of
development that is fixed for any site qualifying for an Article
15
80 review. Importantly this is a law that mandates the “review
of a development proposal” without imposing constraints on
what may be built. It is simply a plan for planning, which is
not the same as a plan for land. The BRA is constrained only
to “provide opportunities for community involvement” os-
tensibly to address the “quality of life in the City”.
It is a Zoning designation for a site that gives the BRA the
right to decide what is to be built on the site. Instead of the
rule of law, there is a rule of men. In the decision taken by
the ZBA Board the only rationalization for their approval was
simply that there had been “community involvement.” The
“flexibility” leaves the approval of a zoning amendment
entirely up to the discretion of the BRA to promote whatever
plan they like and call it economic development, thus
providing the BRA with the opportunity to negotiate the sale
of zoning approvals. This is zoning sleight of hand that
invited the quid pro quo that petitioners document in the
exchange of zoning approvals to political fronts for Boston’s
politicians. App. 208-219.
The petitioners participated in years of meetings addressing
Harvard’s ledge site development. Citizens were concerned
with quality of life issues but the facilitators hired to conduct
these “community meetings’” were expert in ignoring their
concerns. The “community involvement” turned out to be an
enormous waste of time for the citizen participants. In 1994-
1996 Harvard provided $180,000 to fund all-day workshops
to determine the community’s “vision” for the ledge site in
which the participants had no rights to reject what was
proposed and ultimately what was recommended by the
“community” was not what was built. The distinction be-
tween “involvement” and “control” is critical in zoning deci-
sions. Unfortunately specious “community process” has been
substituted for the fixity of law.
“Community process” is the sole rational required by the
statute for the issuance of the subject zoning amendments.
Harvard's moncy maintained the MIINII as their represen-
16
tatives in the Mission Hill community, when a “community”
needed to show up the officers and members turned out to
represent the Misston Hill community. Instead of representing
the interests of the residents of Mission Hill the MHNHS
spearheaded Harvard’s push into the community as they were
paid to do. App. 77-81
“In the decision on Summary Judgement the Court has
ruled that, The Brookinses allege a procedural due process
argument. However, the BRA and BZC have acted within
the procedures laid out in the Code, Section 80C-1, PDA
Review/The Brookinses have had opportunity to participate
in the review process, attend meetings, and review docu-
ments. After comment periods, in open meetings, the BRA
voted to Recommend the map amendments to BZC . . . the
BRA and BZC have not violated the Brookinses due
process rights where they afforded them opportunity to
participate.”
As written this statute is a revolution in zoning law.
Nothing is fixed and all you have to do to get community
approval for your project is find a community group and start
subsidizing them. This might be contrary to the interest in
furthering economic development, however, since none of
them will ever have to work again. It is the rule of men
not laws.
Standing
The Supreme Judicial Curt ended “rights in the nature of
mandamus’ in zoning cases in their decision in Laura Green
v. Board of Appeals of Provincetown, 404 Mass. 571, (1989)
when they overturned an Appeal Court decision on the same
case, 26 Mass. App. Ct. 469, (1988). The SJC ruled that,
“The Appeals Court has in effect preserved the right to
seek enforcement of the zoning law by an action in the
nature of mandamus but has recognized that following
the adoption of the Zoning Act in 1975 (St. 1975, ¢ 808,
para 3) that right must he exercised within the admin-
istrative structure and right of subsequent judicial re-
17
view prescribed by G. L. 40A. See Brady v. Board of
Appeals of Westport, 348 Mass. 515,519 (1965), as to
the common law to seek enforcement, and Vokes vy.
Avery W. Lovell, Inc., 18 Mass. App. Ct 471, 482-483
(1984), as to the use of an initial administrative
proceeding rather than a solely judicial route to seek
enforcement of zoning regulation. If the Legislature had
intended that a nonaggrieved person could compel
zoning enforcement by an appeal to the board of
appeals and then to the court, it could easily have said
so. Id. Italic added.
The law did not have to incorporate “mandamus” into
G.L. 40A, it had a separate and well-recognized
existence.
“We reject the view that word “aggrieved” as
applied to a person means different things in different
parts of G. L. ¢ 40A. If a nonaggrievel person could
compel zoning enforcement by an appeal to a board of
appeals and then to court, it could easily have said so. Id
The Appeals Court recognized but elected not to
follow statements in its own opinions which. tend to
support the view that, in the circumstances of a case like
this, a person must be aggrieved in order to obtain relief
through the administrative and judicial appellant
processes.”
It is of note that the “new” zoning law referred to in the
SJC’s Green decision had been in existence since 1975 and
prior to 1989 the courts had not seen fit to eliminate man-
damus. Without the rights to mandamus in zoning cases there
is simply no remedy at law left to challenge unlawful actions
of the City’s administrative officials charged with admin-
istering zoning laws. Mandamus provided access to citizens
complaining to the courts about the actions of administrative
officials. Absent the citizens’ rights of mandamus the courts
are deprived of the information of administrative wrongdoing
that only citizens can provide. This information of admin-
istrative wrongdoing is critical to a just society. The peti-
18
tioners’ argue that if there was a statute that said that the
“right in the nature of mandamus” still exists, they do.
Massachusetts General Laws Chapter 249: Section 5.
Action in the nature of Mandamus. “A civil action to obtain
relief formerly available by writ of mandamus may be
brought in the supreme judicial or superior court or if the
matter involves any right, title or interest in land in the land
court...”
The Appeals Court in their decision of the case here before
this Court suggests in a footnote that,
“We have been informed that this is the fourth time that
the plaintiffs have brought an action challenging a
development in the Mission Hill Area, and that, in each
case, they were found not to have standing to bring their
claims. The plaintiffs are to be reminded of the potential
for sanctions to be imposed upon those who file vexa-
tious lawsuits and appeals . . .”
It is in the public interest for the Courts to assure that when
the Legislature sets a policy, the Legislature’s policy prevails,
not a different policy set by the courts. This statute is no
' The Court appended the decisions from earlier cases to its decision on
the case petitioners seek to have reviewed by this Court. All the cases had
unusual legal fates: In the first case the Court ordered the petitioners to
post a bond to indemnify the respondents for the time they lost waiting the
outcome of the case. But in that construction project, like the one here
before the Court, the respondent Harvard had completed construction of
its underground parking garage for 525 cars, when the bond was ordered
and the building and garage were completed. The case itself was “lost” in
the Suffolk Superior Court and despite the petitioners having filed many
motions to restore the record none of the motions was ever heard and the
record was never assembled for an appeal. In the second case the appeal
brief was rejected by the Appeals Court for not conforming to proper ferin
but the petitioners were not told how it failed to conform. In the third case
the petitioners’ property was on the same 19° wide street about 120 foot
distance from the property getting the variances that they were challeng-
ing; they were deemed not to be aggrieved and therefore not to have
standing. Their appeal was denied. This is the fourth case.
19
longer honored in zoning cases. Despite the fundamental rule
of statutory construction that all other rules are subordinate to
the intent of the legislature, if that intent can be ascertained.
The governing statute is perfectly clear however the con-
sequence of the Laura Green, supra, decision has been
absolute and has in effect eliminate the statute.
Petitioners have met the stricter standard set in Vokes v.
Avery W. Lovell, supra. And have argued that they have
exhausted all opportunities to complain to the respondents
that the planning process and the project as planned violated
basic principals of planning and governance.
The petitioners who complain that their streets are grid-
locked, their air polluted and their green space lost is at the
mercy of courts that rule that because these public goods are
public there is no individual alone has the private right to
them and hence no right to attempt to protect them in court
from unlawful development. Increasingly the courts have
ruled that there is no one who has legal standing to demand
that they have a private right to access their property or the air
they breath. The concept of “economic development” rules
the courts, an economic understanding of what constitutes
economic development is unfortunately missing.
The respondents have devoted a great deal of time and
energy to perpetrating the masquerade of their private
advantage being a benefit to the public. The courts by their
taking into account private benefits to individual developers
as if they are public goods invites the charge of unequal
treatment of individuals who suffer public harm but are
denied the right to contest these harms, because the public
sphere is public. The courts have allowed the presumption
that it is possible for harm to the public in terms of traffic, air
pollution and congestion be offset by “community benefits”
that do not meet tne standards of public goods. They are
merely resources extorted by public officials from the devel-
opers in order get their zoning approvals. The allocation of
“community benefits” is politically controlled. These re-
20
sources are at the disposal of politicians to reward their
friends. Who gets an “affordable” house? A private person
and the public have no right to know to whom it is given.
There was no discernable advantage to the public from the
sale of Harvard’s ledge site to OBC or the construction of the
development at One Brigham Circle. The public benefits
alleged were in fact private benefits. Individuals got jobs, not
the public. The community did not buy the development at $1
million with a guaranteed lease for $40 million a year. Jerome
Rappaport did.
Planned Development Area challenged here violates the
petitioners’ right to the due process of the law, the equal
protection of the law; and constitutes of “spot zoning” and
“contract zoning”.
Contract Zoning
Interestingly Harvard has argued vociferously that they are
not the developers of the Ledge Site at Brigham Circle
although the testimony that John Dragat gave at the BZC
hearing on May 30, 2001 was that the planning for the subject
development began when the PZAC/IPOD was “planning”
new zoning for Mission Hill. This refutes Harvard’s claim
because at the time that the rezoning was taking place Har-
vard was paying the MHNHS $180,000 to conduct for ““com-
munity process” to decide what the community “wanted” on
the ledge site. Their claim of noninvolvement in their ledge
site property was swallow whole by the Courts. Although
they have never denied that they had an agreement with the
BRA to sell their ledge site to the MHNHS in exchange for
“zoning considerations” in the medical area. Harvard argued
over the years that the “gift/sale” its ledge site at a below
market price was a “community benefit” being conferred on
the community. They are not talking about selling it to a “for-
profit” developer in 2002 at the same price $2 million they
were charging the community in 1989. The zoning changes in
the Medical Area have been predicated on the transfer of
21
institutional properties to private entities such as the MHNHS
and the Roxbury Tenants of Harvard.
The first such transfer took place in 1986 when the
Brigham & Women’s Hospital “gave/sold” its nursing home
to the MHNHS. These zoning changes have been “necessary”
for the massive expansion that has taken place in the 205-acre
Longwood Medical Area since the respondent BRA an-
nounced their strategy in the Boston Globe newspaper article
on June 5, 1986. The headline reads “Hospital sells $800,000
building to a community group for $20.” The article lauds the
hospital for its gift to the “community.” BRA spokesman
Larry Koff is quoted as saying “it was apparenily the first
such gift of real estate in the city.’ And further Koff said,
“the city used its approvals of the hospital's new parking
garage and research center as leverage for the donation of its
former nurses dormitory . . .”" Quoting Koff, the Globe said
“potential candidates for similar deals included the so-called
quarry site, six acres of Harvard owned vacant land in
Brigham Circle.” This article says in the clearest terms that if
the medical institutions want to build in the Longwood
Medical Area they must pay political fronts such as the
MHNHS by “donating” property to them and that the BRA
has “/everaged” such donations. App. 22.
The MHNHS is a political organization that masquerades
as a community based nonprofit. The MHNHS has been the
designated beneficiary of medical institution largess and
governmental grants since the inception of the “gift/sale”
process for getting “communitv support by giving to this
“community organization” was touted in the Boston Globe
article. The hospital’s gift of their nurses home has provided
the organization with a steady income flow but has been of no
benefit to the “community”. The income from this property is
siphoned off via high management and maintenance fees paid
to their management company.
22
Surely soliciting “donations” is a deviation from the
_“procedural and substantive” obligations of the BRA as the
City’s planning agency.
There is no reason to suppose that Harvard did not do what
they said they were going to do, “exchange the Ledge Site for
zoning considerations in the medical area.” Harvard’s Asso-
ciate Dean for Planning and Facilities, Eric Buehrens’ in his
Affidavit testifies that, “Harvard was not an applicant or
petitioner and not participate in the processes that ultimately
culminated in the Zoning Decision.” [App. 1297] He had
apparently forgotten Harvard’s funding of the MHNHS for the
community process in 1994-1996 that is part of the basis on
which these subject amendments are legitimated in the BRA &
ZBA filings decisions and that their agreement to sell their
ledge site to the MHNHS kept the organization in business.
It is necessarily the case that Harvard, as owner, was a
participant in the request for zoning changes and building
permits. It is significant that Mr. Buehrens would bother to
argue that Harvard was not the owner of the ledge site when
the approvals were granted, but that is the sham that the Court
used in dismissing the petitioners charge of “contract zon-
ing”. Ownership is an either or proposition, like pregnancy.
Harvard did not transfer title to the properties until after the
permits to build were issued. This is eloquent testimony to
Harvard’s involvement in the entire process.
The Trial Court in its May 5, 2003 memorandum granting
the respondents’ motion for summary judgment does not
touch the matter of ownership implying control. The Court
says in its decision,
“Contract zoning only occurs between the developer
and the municipality here OBC and BZC. Harvard
was not the developer, but the owner of the property
and therefore not a valid party to a claim of contract
zoning. OBC, as developer and party to the purchase
and sale agreement with Harvard is the valid party
... Brookinses have provided no evidence that OBC
23
was involved in an exchange of development rights
with the BZC ... For the foregoing reasons, the
defendants’ motion for summary judgement on Count
lis ALLOWED.” Decision appended
The Court sets up a straw to knock down. The actors in this
drama were the BRA and Harvard. Petitioners not only
presented no evidence that the BZC or OBC exchanged
anything, they never presented any such argument. There is
plenty of evidence that Harvard and the BRA were exchanging
zoning for property. It is contrary to law to issue zoning
changes solely for the economic benefit the owner of property.
Both Harvard and OBC clearly expected that their eco-
nomic advantage would be contingent on the granting of the
amendments. The purchase and sales agreement between
Harvard and OBC has not been available to the petitioners,
nor they aware of its presence in Court. The Court’s decision
rests on a conceit that things are not what they seem and
Harvard did not do what was proposed in the Koff article.
The facts presented by the petitioners to the trial court for
review here are different in kind from cases that are the
established case law in Massachusetts. Petitioners have a
unique case. All prior cases involved the developer of a
project making a contribution to the subject municipality to
“mitigate” the impact of the proposed development for which
they were seeking approvals from the municipality. In the
matter before this Court the process has been long and
complicated, but completely focused on the goals that the
BRA outlined in 1986 and with which Harvard concurred in
1989. App. 22-25.
Unlike the instances of contract zoning that have been
found legal in Massachusetts case law, the facts here do not
involved the transfer of property to a municipality, where its
allocation might theoretically be under some sort of public
surveillance and public benefit insured. The BRA has an
extraction policy for developers and in this instance the
developers paid $465,356 in Housing Linkage and $91.996 in
24
jobs linkage. In the case presented here the property was
designated for a “community group” that had ceased to
function in that capacity. Its sole reason to exist is its special
relationship with Harvard which has caused considerable
public outrage and concern but has also provided immeasur-
able benefits to the small cadre of its members who are given
many advantages as a result of their participation in the
Fitzgerald organization.
The Koff proposal was accepted in a letter dated March 6,
1989 to the then Dean of the Medical School, David Bray
from Harvard’s Director of Planning, Kathy Spiegelman. It
acknowledged a “strategy” for the sale of the 9.6-acre ledge
site at Brigham Circle to the MHNHS for $2 million. To
quote, “{State{ Representative Kevin Fitzgerald, [City]
Councilor David Scondras and Don Gillis from the Mayor’s
Office of Neighborhood Services have all acknowledged
that the MHNHS is the appropriate organization to work
with us on the disposition of the property.” App. 23-25.
In 1989 petitioner Oscar Brookins was a member of the
board of the MHNHS but was unaware of the private
meetings between other board members and Harvard’s Kathy
Spiegleman. The concerns that the petitioners shared with
many other residents of Mission Hill were outlined in two
letters to the then President of Harvard Derek Bok, dated
April 7, 1989 and April 3, 1990 signed by June Howe,
President of the Mission Hill Neighborhood Association, and
drafted with the Brookins’ help. The same issues were
expressed by a large contingent of Mission Hill residents later
that year in a public meeting held by Ms. Spiegleman.
[App.77-81 J.
Spot Zoning
The 1976 Federal Clean Air Act designated a parking
restriction zone, that limited parking tor residential use only,
to be included in the underlying zoning for the area of Boston
that includes the Longwood Medical Area. The underground
25
parking garages built in the medical area are all in violation
of the 1976 Federal Clean Air Act and the parking restricted
district that is mandated by it.
The problems of traffic and air pollution has been one
focus of concern in three of the four suits that the Petitioners
have brought against Harvard, the BRA and both the Zoning
Commission and the Zoning Board of Appeals.
In the trial Court’s Memorandum and Order on respondents
motion for summary relies on misapplication facts to reach
the conclusion that, “. . . to succeed with a challenge based
upon spot zoning, the plaintiffs must demonstrate that the
BZC adopted the Map Amendment without a well considered
plan for public welfare and solely for the economic benefit of
the owner of the land affected by the Amendment.” The
Brigham & Women’s Hospital “BWH” had an Institutional
Master Plan but their facility in the Mission Hill Zoning
District isn’t in it and clearly their economic advantage was in
not being in it.
In a “BWH” publication touting the hospital’s move into
OBC, BWH Pres. Gary Gottlieb touts the hospitals planned
institutional use of the OBC development, “‘With our move
across Huntington Avenue comes the opportunity for BWH to
allow our facilities on Francis Street to more comfortably
provide spectacular clinical care and support. . .’” [App.
P. 1345}.
Planning for institutional use was to be done through the
Institutional Master Plan process and limited to the Long-
wood Avenue Medical Area Zoning District on the western
side of Huntington Avenue. But the subject site is its own
PDA on the eastern side of Huntington Ave. The purpose of
Master Planning was to give coherence to the expansion in
the medical area. The BWH Master Plan clearly shows [App.
Pg. 1349] that the area labeled “Ledge Building One Brigham
Circle” is included in their institutional use planning.
26
Clearly the ledge site development has greater economic
value to the hospital out of their Master Plan District than in
it. Because if it were in the Longwood Area Master Plan
District they would have to have limited their parking to 0.7
spaces per 1000 sq. ft. of office space whereas in the OBC
PDA they were allowed more than 2 parking spaces per 1000
sq. ft. of the project.
Breach of Trust
Harvard has excelled itself in sophistic arguments to refute
the petitioners’ charge that they breached their trust in using
endowment assets to pay bribes to politicians. Petitioners
simply say that Harvard has violated the trust placed in them
by their Charter and the Constitution of Massachusetts.
Harvard’s endowment should not be given to Partners Health
Care, the Brigham & Women’s Hospital or the MHNHS. Such
actions are not in the educational interest of their students.
Petitioners’ asked the trial court to enter judgement that
Harvard has abused its endowment by engaging in activities
that are contrary to their educational trust and award the
Petitioners’ their coerced contributions to Harvard College, a
sum of $86,000. App. 14
Harvard’s Charter dates from 1650 and does not fit into the
silly arguments they put forward to ward off the scrutiny of
the Courts. The Courts accept Harvard’s straw that they are
neither a public trust where the Attorney General is the only
person with jurisdiction, nor a private trust and the petitioners
do not have standing there either.
In 1994 Harvard agreed to provide the MHNHS with
$180.000 to conduct “community processes” to chose a
developer and determine what the “community wanted built”
on the ledge site. Harvard’s money maintained the MHNHS
in existence when their stated reason for existing in their
nonprofit filings had long since disappeared. The MHNHS
was organized in 1978 to provide home improvement loans to
27
homeowners who could not get such loans from banks. It
made one loan from 1986 until 2003.
The Petitioners have two daughters, Mary Laura Brookins,
(Harvard class of ‘96) and Julia A. Brookins (Harvard class
of ‘98) who were undergraduate students at Harvard from
1992 through 1998 and denied necessary and appropriate
financial aid at the same time that Harvard was funding the
MHNHS. App.26-28.
When parents send their children to Harvard it is an act of
trust and when donors give money to Harvard it is an act of
trust. Harvard has violated this trust. Harvard says it basis
the amount of financial aid that it gives students on their
“need”. Throughout petitioners’ daughters’ years at Harvard
they questioned how this need was determined. While their
daughters’ were there, Harvard took 60% of the girls’ outside
scholarships that they had been awarded from the Boston
Latin School where one of the girls graduated valedictorian
and the other nearly so. The donor expected that he was
giving the valedictorian a full scholarship to Harvard.
The price at which the MHNHS was to purchase the Ledge
Site from Harvard was fixed at $2 million in 1989. The
transfer of Harvard’s property to One Brigham Circle, LLC
for that prospective sales price was an insult to the students of
Harvard paying high tuition fees in 1989, it was an even
greater insult in 2001 when the same price was paid in two
separate $1 million transfers.
Due Process
The Boston Zoning Code is ignored in the regulation of
large developments to which no fixed laws apply. The
restrictions the court place on a petitioner’s rights to
challenge a zoning decision of the administrative bodies has
become insurmountable. Respondents such as Harvard are
free to give/sell their property to community groups that act
as fronts for politicians in exchange for zoning relief.
28
The foundation of “Due Process” is the rule of law and
absence due process there is no equal protection of the law.
The evidence before the Court detailed many critical vio-
lations of the laws of zoning and in the payment of funds to
affect the decisions of governmental entities. The petitioners
are entitled to the rule of law being respected in the Courts.
The petitioners asked the Court to consider the issue of
traffic congestion in the Longwood Medical Area that pre-
vents the petitioners from using their car for the ordinary
daily activities that are taken for granted in most residential
neighborhoods and the air pollution that lowers the life
expectancy of inner city residents. This traffic congestion is
the consequence of the proliferation of parking garages over
the past 18 years in the medical area, all of which have
required special zoning amendments or zoning variances
form the City of Boston’s planning and zoning boards.
Petitioners have attempted to challenge some of these
instances of lawlessness and carelessness in the issuance of
zoning variances in two previous court cases, they were ruled
to have no standing.
In Anthony Palazzolo v. Rhode Island, et al. Justice Stevens
has argued in dissenting from the judgement that,
“Though States and local governments have broad
power to adopt regulations limiting land usage, those
powers are constrained by the Constitution and other
provisions of state law. If a regulating body fails to
adhere to its procedural or substantive obligations in
developing land use restrictions, anyone adversely
impacted by the restrictions may challenge their validity
in an injunctive action...” 533 U.S. 606 (2001)
Planned Development Area review is a process that gives
the BRA absolutely discretion. The issuance of permits for
large developments such as the subject here is at the dis-
cretion of the BRA and the BZC that relies exclusively on the
BRA recommendations. This has put the BRA in the position
to negotiate sales prices for zoning variances, conditional
29
uses or zoning amendments. The BRA has never lost a case in
the Massachusetts courts. Citizen’s objections at the “com-
munity processes” are simply listened to but never acted on.
Despite extensive public opposition the BRA is free to use
these meetings to legitimate their “decisions” to allow pro-
jects under Article 80 of the Boston Zoning Code. Absent
fixed laws the petitioners are denied their due process rights
to the equal protection of the laws.
The Massachusetts Supreme Judicial Court in a self-con-
gratulatory mood said in its landmark decision, Hillary Good-
ridge & others v. Dept. of Public Health & others that,
The Massachusetts Constitution protects matters of per-
sonal liberty against governmental incursion as zeal-
ously, and often more so, than does the Federal Consti-
tution, even where both Constitutions employ essentially
the same language . . . That the Massachusetts Constitu-
tion is in some instances more protective of individual
liberty interests than is the Federal constitution is not
surprising ... Fundamental to the vigor of our Federal
system of government is that ‘state courts are absolutely
free to interpret state constitutional provisions to accord
greater protection to individual rights than do sim-
ilar provisions of the United States Constitution.”” 440
Mass. 309, 798 NE.2d 941 (Nov. 2003).
The petitioners fail to see how a court can “protect” individ-
ual liberty and not recognize the petitioners’ fundamental right
to the rule of law, and its applicability to zoning cases.
CONCLUSION
Petitioners have a fundamental right to the rule of law.
They have been denied their constitutional rights to “equal
protection of the laws” and due process of the laws because
institutions such as Harvard. with enough money and political
connections, are able to exempt themselves from the laws to
which the Petitioners are subject. Thus subverting the rule of
30
law on which all just societies depend. A thirteen year long
“community process” to determine what was to be built on
the site was substituted for the rule of law and the petitioners
were part of that process and community. In the subject case
the only “community” members that mattered were the mem-
bers of the MHNHS.
The Court below has so far departed from the accepted and
usual course of judicial proceedings and sanctioned such a
departure by the lower courts as to call for an exercise of this
Court’s supervisory power.
The evidence before the Court shows that consideration
was extracted by the zoning bodies, the respondents BRA and
BZC, from Harvard, the owner of the subject site to grant the
necessary zoning amendments for this project and other proj-
ects in the Medical Area. This constitutes a violation of every
principle fundamental to the rule of law going back to the
Magna Carta. Zoning law in Boston has become a private
good, something to be bought and sold not a public good
available to all. Certainly if laws are being bought and sold
not all citizens have equal access to them.
The petitioners have been denied the equal protection of
the law. The Courts have ignored the illegal process by which
the subject zoning was acquired and the petitioners’ thirteen-
year efforts to stop Harvard’s “gift/sale” of their ledge site to
the MHNHS and the resulting payoff to politicians through
this development. The ability to sell the law simply makes
rulers too powerful. The loss of the rule of law renders
citizens powerless.
Respectfully submitted,
OSCAR T. BROOKINS, Pro se
KATHRYN J. BROOKINS, Pro se
4 Hillside Street
Boston, MA 02120
(617) 427-4140
APPENDIX
la
APPENDIX A
Supreme Court of the United States
Office of the Clerk
Washington, DC 20543-0001
William K. Suter
Clerk of the Court
(202) 479-3011
December 4, 2006
Mr. Oscar T. Brookins
4 Hillside Street
Boston, MA 02120
Re: Katheryn Brookins, et vir
v. Zoning Commission of Boston, et al.
Application No. 06A547
Dear Mr. Brookins:
The application for an extension of time within which to
file a petition for a writ of certiorari in the above-entitled case
has been presented to Justice Souter, who on December 4,
2006 extended the time to and including February 8, 2007.
This letter has been sent to those designated on the attached
notification list.
Sincerely,
William K. Suter, Clerk
by /s/ Heather Trant
Heather Trant
Case Analyst
2a
APPENDIX B
COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
CIVIL ACTION
SUFFOLK, ss. [Filed September 20, 2006]
No. 2001-3447
KATHRYN J. BROOKINS, ef ai.,
Plaintiff(s),
V.
THE BOSTON ZONING COMMISSION, ef a/.,
Defendant(s).
JUDGMENT FOR PLAINTIFFS AFTER RESCRIPT
(PURSUANT TO MASS.R.A.P.28)
This action was appealed to the-*Appeals Court -
Supreme—udicial-Court - the issues having been duly heard
and the APPEALS Court having duly issued a rescript, it is
ordered and adjudged:
JUDGMENT FOR THE DEFENDANTS ON COUNTS
1, 1, Wf AND 1V. THE COMPLAINT OF THE PLAIN-
TIFF IS DISMISSED
Dated at Boston, Massachusetts, this 19th day of SEPTEM-
BER, 2006.
MICHAEL JOSEPH DONOVAN, Clerk/Magistrate
By: /s/ [Illegible], Asst. Clerk
* Strike inapplicable words.
3a
*_ *£ * *
NOTICE TO PARTIES: PURSUANT TO MASS. R.A.P.26(c)
A PARTY DESIRING COSTS SHALL STATE THEM IN
AN ITEMIZED AND VERIFIED BILL OF COSTS, WHICH
SHALL BE FILED WITH THE CLERK OF THIS COURT,
WITH PROOF OF SERVICE, WITHIN FOURTEEN (14)
DAYS AFTER ENTRY OF THIS JUDGMENT.
4a
APPENDIX C
SUPREME JUDICIAL COURT FOR THE
COMMONWEALTH OF MASSACHUSETTS
John Adams Courthouse
One Pemberton Square, Suite 1400,
‘Boston, Massachusetts 02108-1724
Telephone 617-557-1020, Fax 617-557-1145
Kathryn J. Brookins
4 Hillside Street
Boston, MA 02120
RE: Docket No. FAR-15646
OSCAR T. BROOKINS & another
VS.
BOSTON BOARD OF ZONING APPEALS & others
Suffolk Superior Court No. SUCV2001-03447
A.C. No. 2004-P-1228
NOTICE OF DENIAL OF F.A.R. APPLICATION
Please take note that on 09/11/06, the above captioned
Application for Further Appellate Review was denied.
(Marshall, C.J., recused)
Susan Mellen, Clerk
Dated: September 11, 2006
To: Oscar T. Brookins
Kathryn J. Brookins
Elizabeth IL. Bostwick, Esquire
Saul A. Schapiro, Esquire
John Kenneth Felter, Esquire
Martin M. Fantozzi, Esquire
Sa
APPENDIX D
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
04-P-1228
KATHRYN J. BROOKINS & another!
VS.
ZONING COMMISSION OF BOSTON & others”
MEMORANDUM AND ORDER
PURSUANT TO RULE 1:28
In the spring of 2001, the Boston Redevelopment Authority
(BRA) recommended. and the Zoning Commission of Boston
(B2C) approved, a map amendment and a plan for mixed-use
redevelopment of a 9.25 acre parcel of land at Brigham Circle
in the Mission Hill neighborhood of Boston. This develop-
ment included retail space. office space. parking, a pedestrian
plaza, and a 5.5 acre open park space. At the time, most of
the site was owned by the President and Fellows of Harvard
College ([larvard). which thereafter sold the property to the
developer, One Brigham Circle. LLC (OBC). OBC was
formed as an entity by Mission Hill Neighborhood Housing
Services (MHNHS) and its chosen development partner.
NDC Development Associates. Inc.. after a multi-year com-
munity planning process.
' Oscar T. Brookins
* Boston Redevelopment Authority; President and Fellows of Harvard
College; Mission Hill Neighborhood Housing Services; and One Brigham
Circle, LLC, intervener.
6a
In July, 2001. the plaintiffs commenced this civil action
against the BZC, the BRA, Harvard, and MHNHIS, seeking to
invalidate the approval of the map amendment and the
development plan on the grounds that these defendants had
engaged in impermissible “contract zoning” and “spot zon-
ing,” that the passage of the map amendment was accom-
plished in violation of the plaintiffs’ due process rights, and
that Harvard had committed a breach of trust. OBC was per-
mitted to intervene as a party defendant.
A judge of the Superior Court denied the plaintiffs’ request
for a preliminary injunction, concluding that the plaintiffs had
no reasonable likelihood of demonstrating that they had
standing to pursue their claims.’ Later, another judge granted
the defendants’ motions for summary judgment, ruling that
there were no genuine issues of material fact, and that the
plaintiffs had failed to establish their standing as matter of
law. The motion judge also ruled that. even if the plaintiffs
could be said to have standing, their claims were legally
unsustainable on the summary judgment record.
The primary issue on appeal is whether the plaintiffs, who
are neither abutters to the project nor abutters to abutters, may
be said to be persons aggrieved within the meaning of § 10A
of the Boston zoning enabling act (enabling act), which
prescribes the means by which an appeal may be taken from
a decision by the BZC to approve a map amendment. See
St. 1956, c. 665, as amended through St. 1987. c. 371, § 2.4
Although we have held that the term “persons aggrieved,” as
used in § 11 of the enabling act, is to be given the same
* Because the plaintiffs were denied injunctive relief the project went
forward while this action was pending. It has been represented in OBC’s
brief that the project is now completed.
* Under § 10A, “[aJny persons aggrieved by a decision of the zoning
commission approving a Zoning map amendment or a zoning regulation or
amendment thereof... may appeal such decision to the superior court in
the county of Suffolk ....~
7a
meaning given to that term in the context of appeals from
administrative zoning decisions pursuant to G. L. c. 40A,
§ 17, see Sherrill House, Inc. v. Board of Appeal of Boston,
19 Mass. App. Ct. 274, 275 (1985). its meaning in the context
of § 10A has yet to be decided.”
The plaintiffs correctly point out that. in cases arising
under G. L. c. 40A. as opposed to the enabling act, the criteria
for standing to challenge a zoning amendment are less
stringent than those applicable to challenges of administrative
decisions granting or denying zoning relief. In Fan Rense-
laur v. Springfield, 58 Mass. App. Ct. 104, 107-108 (2003),
we held that for purposes of standing to challenge local
legislation adopting or amending a zoning ordinance or by-
law, it is sufficient for the plaintiffs to establish that they will
suffer an “adverse impact” from the legislative zoning action,
without establishing, in addition, that their injury is special
and different from the concerns of the rest of the community,
as 1s required in appeals pursuant to G. L. c. 40A, § 17.
We need not decide whether the same distinction should be
made between appeals under § 10A of the enabling act and
appeals from the granting or denial of zoning relief pursuant
to § 11 of the enabling act, because, even under the less
exacting standard described in Van Renselaar, the plaintiffs
lack standing to challenge the map amendment. On the sum-
mary judgment record, the motion judge correctly determined
not only that the plaintiffs lacked particularized injury but
also that the concerns they alleged—increased traffic, air
pollution/ and decreased property values—were entirely
unsubstantiated and speculative. Thus, because the plaintiffs
failed to show that they suffered any adverse impact from the
* The fact that the same term is used in both sections is not necessarily
dispositive. See Standerwick v. Zoning Bd. of Appeals of Andover, 447
Mass. 20, 26 (2006) (allegations of injury that may establish a claim of
aggrievement under G. L. c. 40A do not automatically establish ag-
grievement under G. L. c. 4.0 B).
8a
map amendment, they lack standing under any potentially
applicable formulation.
The plaintiffs’ failure to establish any legal harm also is
fatal to their due process claims. See Doe v. Governor, 381
Mass. 702, 704-705 (1980). Likewise, the plaintiffs’ claim
for breach of trust against Harvard, also fails for lack of
standing, albeit for somewhat different reasons. If one as-
sumes that the alleged trust is a public trust, only the Attorney
General has standing to allege misuse of charitable assets.
See G. L. c. 12, § 8; Dillaway v. Burton, 256 Mass. 568, 573
(1926); Weaver v. Wood, 425 Mass. 270, 275 (1997). If one
assumes that the trust is a private trust, the plaintiffs do not
have standing because they are not named beneficiaries or
suing on behalf of a person who is a named beneficiary. See
ibid. citing Collector of Taxes of Lowell v. Slafsky, 332 Mass.
700 (1955).
To the extent that we have not specifically addressed other
points made by the plaintiffs in their brief, they “have not
been overlooked. We find nothing in them that requires dis-
cussion.” Department of Rev. v. Ryan R., 62 Mass. App. Ct.
380, 389 (2004), quoting from Commonwealth v. Demanski,
332 Mass. 66, 78 (1954).°
Judgment affirmed.
° We have been informed that this is the fourth time that the plaintiffs
have brought an action challenging a development in the Mission Hill
area, and that, in each case, they were found not to have standing to bring
their claims. The plaintiffs are reminded of the potential for sanctions to
be imposed upon those who file vexatious lawsuits and appeals. Though
we may, in the exercise of our discretion, elect to award fees even where
they are not requested in the appellees’ brief, see, e.g, Rubenstein v.
Royal Ins. Co. of America, 429 Mass. 355, 361 (1999), Love v. Pratt, 64
Mass. App. Ct. 454, 458-459 (2005). we decline to do so here.
9a
By the Court (Grasso, Smith & Cohen, JJ.),
/s/ [Iltegible]
Clerk
Entered: July13, 2006.
10a
APPENDIX E
COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
SUFFOLK, ss. [Filed June 9, 2003]
CIVIL ACTION 01-3447
KATHRYN J. BROOKINS and OSCAR BROOKINS,
Plaintiff(s),
V.
THE BOSTON ZONING COMMISSION, ef ai.,
Defendant(s).
JUDGMENT ON FINDINGS BY THE COURT
THIS ACTION CAME ON FOR HEARING BEFORE
THE COURT, HAGGERTY J., PRESIDING, AND THE
ISSUES HAVING BEEN DULY HEARD AND FINDINGS
HAVING BEEN DULY RENDERED, IT [IS ORDERED
AND ADJUDGED AS FOLLOWS:
Summary Judgment shall enter for the Defendants on
Counts, I, I], I], and IV,
(Refer to memorandum of decision and order for
Defendants’ Motion for Summary Judgment.)
Dated At Boston, Massachusetts, This 5th Day of June, 2003.
MICHAEL JOSEPH DONOVAN
CLERK/MAGISTRATE
By: /s/ [Illegible]
ASSISTANT CLERK
lla
APPENDIX F
COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT
SUFFOLK, ss
Civil Action No. 01-3447-B
KATHRYN J. BROOKINS AND OSCAR T. BROOKINS,
Plaintiffs,
VS.
THE BOSTON ZONING COMMISSION, ef ai..'
Defendants.
MEMORANDUM OF DECISION AND ORDER ON
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiffs Kathryn J. Brookins and Oscar T. Brookins (“the
Brookinses”) brought this action against The Boston Zoning
Commission (“BZC”), The Boston Redevelopment Authority
(“BRA”), President and Fellows of Harvard College
(“Harvard”), and the Mission Hill Neighborhood Housing
Services (“MIINHS”) seeking to appeal the BZC’s approval
of map amendment No. 390, a development plan for planned
development area No. 52, and map amendment 6d, Mission
Hill Neighborhood District (“Map Amendment”). The
Brookinses allege that BZC, BRA, Harvard, and MHNHS
engaged in illegal contract zoning (Count I). In addition, the
Brookinses allege that the BZC and Harvard participated in
illegal spot zoning (Count I]), that Harvard violated the trust
placed in them by their Charter and the Constitution of
' Boston Zoning Commission, Boston Redevelopment Authority, Pres-
ident & Fellows Harvard College, Mission Hill Neighborhood Housing
Services, and, defendant/intervenor, One Brigham Circle LLC.
12a
Massachusetts (Count III), and that the BRA, BZC, and
Harvard violated the Brookinses’ right to meaningful due
process guaranteed under the 14th Amendment to the U.S.
Constitution (Count [V).? One Brigham Circle LLC (“OBC”)
intervened as a party defendant in the action. All defendants
now move for summary judgment arguing that the Brookinses
do not have standing to bring the stated claims. For the
reasons stated below, | ALLOW the defendants’ motions for
summary judgement on Count I, II, Hf, and IV.
BACKGROUND
This action arises out of the sale and proposed devel-
opment of a parcel of land containing 9.25 acres and situated
at Brigham Circle in the Mission Hill Neighborhood of
Boston, the “Ledge Site”. The Property contains two distinct
areas: the 3.75 acre Community Commercial Subdistrict
(“CCS”) portion including two buildings; and a 5.5 acre
Conservation Protection Subdistrict (“CPS”). The developer,
OBC, proposes to demolish the existing buildings on the
Ledge Site and then develop a four-story, mixed-use devel-
opment consisting of retail space, office space, parking, a
pedestrian plaza, and a 5.5 acre protected open park space.
The Boston Zoning Enabling Act (“Enabling Act’), St.
1956, c. 665, § 1, established the BZC. The Enabling Act,
authorizes the BZC to adopt zoning regulations to promote
the “health, safety, convenience, morals or welfare” of the
inhabitants of the City of Boston. St. 1956, c. 665, § 2. Like-
wise, it outlines the procedure the BZC must follow in adopt-
ing an amendment or change to the City of Boston Zoning
* In their amended complaint, the Brookinses do not explicitly bring
Count II and Count IV against Harvard. However, in their response to
Harvard’s motion for summary judgement, the Brookinses state that they
brought all Counts against Harvard. Harvard has joined in summary
judgement on all Counts. Therefore, | include Harvard as a party to all
Counts and apply their motion for summary judgement as to all Counts.
13a
Code (the “Code”). St. 1956, c. 665, § 3. Before making any
such alteration, the BZC must provide the BRA an oppor-
tunity to make a recommendation of the proposed action and
provide notice to the public and a hearing. Id. In addition,
the Mayor of the City of Boston must approve all zoning
changes. /d.
On February 23, 2001, OBC submitted a development plan
for the Ledge Site to the BRA. On May 8, 2001, after a public
hearing, the BRA voted to approve OBC’s development plan
for the Ledge Site, and authorized its Director to petition the
BZC for approval of the Map Amendment.
On June 27, 2001, after a public hearing, the BZC voted to
approve the development plan for the Ledge Site, and ap-
proved the Map Amendment. On the same day, the Mayor of
the City of Boston, Thomas M. Menino, approved the Map
Amendment.
When the Brookinses commenced this action in July 2001,
Harvard owned the Ledge Site and had executed a Purchase
and Sale Agreement, dated April 12, 2000, to sell the prop-
erty to OBC for a purchase price of $2 million. On or about
December 11, 2001, Harvard conveyed a portion of the Ledge
Site, totaling approximately 141,125 square feet, to OBC.
Thereafter, on or about January 7, 2002, Harvard conveyed
the remaining portion of the Ledge Site to Friends of Pud-
dingstone Park, Inc., a Massachusetts charitable corporation
whose sole member is OBC.
The Brookinses reside at 4 Hillside Street in Mission Hill.
Their property lies at least 1000 feet from the open park space
located in the CPS, and further from the CCS. The Brook-
‘inses have not alleged any ownership of property which abuts
the property subject to the Map Amendment. Nor have the
Brookinses alleged ownership of any property that abuts other
property which itself abuts the Ledge Site.
14a
SUMMARY JUDGEMENT
The Court grants summary judgment where no genuine
issues of material fact exist and the moving party is entitled to
judgment as a matter of law. Mass. R. Civ. P. 56(c); McNeil
v. Metropolitan Prop. & Liab. Ins. Co., 420 Mass. 587, 589
(1995). The burden of proof that rests on the plaintiffs,
entitles the defendant to summary judgement if the defendant
“demonstrates, by reference to material described in Mass. R.
Civ. P. 56 (c), unmet by countervailing materials, that the
[plaintiff] has no reasonable expectation of proving an essen-
tial element” of their case. Kourouvacilis v. General Motors
Corp., 410 Mass. 706, 716 (1991). The court resolves any
conflicts in the affidavits, documents, or facts the parties
present, and makes all logically permissible inferences in the
nonmoving party’s favor. Coveney v. College of the Holy
Cross, 388 Mass. 16, 17 (1983). If a genuine issue of mate-
rial fact may exist, the court should deny a summary
judgement motion. Correllas v. Viveiros, 410 Mass. 314,
316-317 (1991).
DISCUSSION
I. The Brookinses Lack Standing Under Applicable State
Law to Bring a Claim of Spot Zoning and Contract
Zoning
A. The Brookinses Lack Standing Under Applicable
State Law to Appeal the Action of BZC
Defendants have moved to dismiss the Brookinses’ appeal
of the Map Amendment on the ground that plaintiffs lack
standing. The Enabling Act provides the procedure for ap-
peals from decisions of the BZC. St. 1956, c. 665 § I10A.
Section 10 allows anyone aggrieved by the BZC’s approval
of a Map Amendment to appeal the decision to the Suffolk
Superior Court. Although unique in procedural and substan-
tive detail, Section 10 parallels Section |! of the Enabling
Act and the State Enabling Act, G.L. c. 40A. “[I]n consid-
15a
ering the validity of zoning amendmenis . . . the courts have
looked to principles established in cases deciced under G.L.
c. 40A. National Amusements, Inc. v. Boston, 29 Mass. App.
Ct. 305, 308-309 (1990). Circle Lounge & Grille, Inc. v.
Board of Appeals of Boston, 324 Mass. 427, 432-433 (1949).
Sherill House, Inc. v. Board of Appeals of Boston & Other,
19 Mass. App. Ct. 274, 275 (1985). When determining
whether the Brookinses situation entitles them to aggrieved
person status, | look at the definition of aggrieved person as
explained in cases brought under all three provisions.
Aggrieved person status is a jurisdictional requirement.
Tsogronis v. Board of Appeals of Wareham, 415 Mass. 329,
334 (1993). Abutters and abutters to abutters enjoy a re-
buttable presumption of aggrieved person status. Valcourt v.
Zoning Bd. of Appeals of Swansea, 48 Mass. App. Ct. 124,
127 (1999), cert. denied, 430 Mass. 1114 (2000). Without this
presumption, the plaintiff has the burden to prove standing.
Id. To qualify as an aggrieved party, “a plaintiff must
establish——by direct facts and not by speculative personal
opinion—that his injury is special and different from the
concerns of the community.” Barvenik v. Board of Aldermen
of Newton, 33 Mass. App. Ct. 129, 132 (1992). A plaintiff
must show that the government’s actions have injured or will
likely injure his legal rights or adversely affect his property
interest. /d. Therefore, an aggrieved party includes 1) an
abutter or 2) a person injured in a way different from the
community at large who can demonstrate the injury through
direct facts, not speculation.
1) The Brookinses are not persons aggrieved as they
are not abutters or abutters to abutters of the
Ledge Site
The Brookinses reside at 4 Hillside Street in Mission Hill.
In this case, the Brookinses property does not abut the Ledge
Site and does not abut any abutter to the Ledge Site. The
Brookinses residence lies 1/4 mile from the Ledge Site. As
16a
owners of non-abutting property, the Brookinses do not qual-
ify for the presumptive status of aggrieved party. Therefore,
the Brookinses must show that government action is likely to
infringe on their legal rights or property interest.
2) The Brookinses are not persons aggrieved as they
allege only a general civic concern, unsupported
by direct facts
In the present matter, the Brookinses, although undoubt-
edly sincere in their concerns, have demonstrated no more
than a general civic interest in their appeal of the Map
Amendment. The Brookinses fall far short of demonstrating
that level of infringement of their rights that would bestow
upon them aggrieved person status.
The Brookinses allege a general civic concern that traffic
generated from the project and the corresponding air pollution
will adversely affect the Mission Hill Community. The
Brookinses do not support this claim with anything but
speculation. The Brookinses have neither communicated with
a traffic engineer nor commissioned any traffic studies to
determine how or whether the increase traffic created by the
project will adversely effect them or the Mission Hill Com-
munity. The Brookinses state general concerns about the
impact of the additional vehicles on the Mission Hill neigh-
borhood, but not themselves specifically, and not in a way
contrary to the rest of the community. Therefore, the Brook-
inses’ general civic concern regarding traffic and air pollution
does qualify them for aggrieved person status.
The plaintiffs further claim that the project will reduce
their property values. Again, the Brookinses do not support
this argument with anything but speculation. The Brookinses’
reside at least 1/4 mile from the proposed open park space
and further form the CCS. An intensely developed urban area
lies between the Brookinses’ land and the Project Site.
Accordingly, they cannot see or hear the project from their
17a
property, nor will the project cast any shadow on their
property. The Brookinses did not consult with a real estate
appraiser and do not provide any direct facts that would lead
the court to the conclusion that the project will specifically
reduce their property value. Such blind accusation does not
confer aggrieved person status on the Brookinses.
The Brookinses have not established standing to challenge
the decision of the BZC. They have not proven that they are
an abutter. They have not demonstrated an infringement on a
personal right or interest. Furthermore, the Brookinses cannot
show that the Ledge Site will adversely affect their legal
rights or property interests, as they have provided only
speculation in support of claims of general civic concern.
Accordingly, the Brookinses are not a party aggrieved and do
not have standing to appeal the Map Amendment of the BZC.
B. The Brookinses Lack Stand Under Applicable State
Law to Seek Judicial Review of the BRA’s Activities
The Brookinses lack standing to maintain a claim against
the BRA’s decision to recommend the Map Amendment to
the BZC. Neither the Code nor the Enabling Act provide for
judicial review of either the BRA’s approval of the PDA
made pursuant to Section 3-1A.a of the Code, or author-
ization for its Secretary to petition the BZC for approval of
the Map Amendment and PDA. See, St. Botolph Citizens
Community. Inc., v. Boston Redevelopment Authority, 429
Mass. | (1999).
Under the Code, the BRA makes recommendations to the
Zoning Commission on zoning amendments, and is re-
sponsible for reviewing and making recommendations to the
Board of Appeal on petitions for conditional use permits,
exceptions, variances, and other zoning relief. The Enabling
Act does not provide for an appeal process from the
recommendation given by the BRA and used by the BZC in
rendering its decision whether to adopt the Map Amendment.
18a
Thus, while the ultimate decision reached by the BZC may be
reviewable by the court pursuant to section I0A of the
Enabling Act, the BRA approval of the PDA Development
Plan and recommendation provided to the BZC by the BRA is
not. The plaintiffs have not provided any alternative common
law or statutory basis to challenge the decision.
Assuming arguendo that the plaintiffs have a right to seek
judicial review of the BRA’s actions under Article 3-1A.a,°
for the reasons set forth above, the Brookinses lack standing.
C. Even if the Brookinses Had Standing, Their Claim of
Contract Zoning Fails
Even if the Brookinses had standing, their claim of contract
zoning fails. Contract zoning involves a process by which “a
local government enters into an agreement with a developer
whereby the government extracts a performance or promise
from the developer in exchange for its agreement to rezone
the property.” Rando v. Town of North Attleborough, 44
Mass. App. Ct. 603, 607 (1998) (citations omitted). The case
of Sylvania Electric Products. Inc. v. Newton, implicitly
permits contract zoning so long as the action does not con-
tradict the best interests of the city or town or offend to
general public policy and so long as the restrictions or con-
ditions relate to the rezoned land, the locus. Sy/vania Electric
Products, Inc. v. Newton, 344 Mass. 428, 434 (1962). Current
views of contract zoning would result in an invalid rezoning
only where there is an express bilateral agreement that
bargains away the municipality’s future use of the police
power. Rando v. Town of North Attleborough, 44 Mass. App.
Ct. at 607 (citations omitted).
* The plaintiffs could also ask for certiorari “to correct substantial
errors (but not administrative, political, political, or legislative deci-
sions). St. Botolph v. Citizens Committee, Inc. v. Boston Redevelopment
Authority, 429 Mass. at 7. However, this is not applicable here.
19a
Contract zoning only occurs between the developer and the
municipality, here OBC and BZC. Harvard, was not the
developer, but owner of the property and therefore not a valid
party to a claim of contract zoning. OBC, as developer and
party to the purchase and sale agreement with Harvard is the
valid party. However, the Brookinses have provided no
evidence that OBC was involved in an exchange of devel-
opment rights with BZC. OBC is the proper petitioner with
respect to the Ledge Site. Even if the purchase and sale
agreement was conditioned upon approval of the Map
Amendment, OBC was still the correct party petitioner.
Carson v. Board of Appeals of Lexington, 321 Mass. 649, 651
(1947).
For the foregoing reasons, the defendants’ motion for sum-
mary judgement on Count I is ALLOWED.
D. Even if the Brookinses Had Standing, Their Claims of
Spot Zoning Fail
Courts have defined spot zoning as the “singling out of one
lot for different treatment from that accorded to similar
surrounding land indistinguishable from it in character, all for
the economic benefit of the owner of that lot.” Lamarre v.
Commissioner of Pub. Works of Fall River, 324 Mass. 542,
545 (1949). In order to succeed with a challenge based upon
spot zoning, the plaintiffs must demonstrate that the BZC
adopted the Map Amendment without a well-considered plan
for public welfare and solely for the economic benefit of the
owner of the land affected by the Amendment. Sullivan v.
Acton, 38 Mass. App. Ct. 113, 115 (1995). The challenger
bears the burden of overcoming the presumption of validity
that the amendment enjoys by showing beyond a reasonable
doubt that the amendment conflicts with the enabling legisla-
tion. Beal v. Building ~-~-m'r of Springfield, 353 Mass.
640, 642-643 (1968) (ci: omitted); Caires v. Building
Comm 'r. of Hingham, 32. Mass. 589, 594-595 (1949).
20a
The project will provide the Mission Hill Community with
numerous and substantial benefits. In addition to the benefits
of the project itself, the partnership has committed to provide
a series of improvements to the Mission Hill Neighborhood,
including 5.5 acre’s of public open space, a pedestrian plaza,
night and weekend parking, and a pedestrian connection
between Brigham Circle and the Mission Hill Neighborhood.
The Brookinses offered no reasoned or particularized
argument to the contrary. Kimberk v. Boston Zoning Commis-
sion & Another, 53 Mass. App. Ct. 1109 (2001). The char-
acteristics of the project, and its public benefits, are not in
dispute. The Brookinses have not demonstrated that the
approval of Map Amendment was arbitrary and unreasonable,
or substantially unrelated to the public health, safety, morals,
or general welfare, and has shown no reasonable likelihood
that it would be able so to demonstrate at trial. The Map
Amendment was within the BZC’s authority under PDA.
The Brookinses have made no showing that they will be
able to sustain its claim of illegal spot zoning at trial. The
partnership, on the other hand, supported by the BRA report,
made a substantial showing that the project, including the
map amendment, is substantially related to, and promotes, the
public welfare. Therefore, the defendants’ motion for sum-
mary judgement on Count II is ALLOWED.
II]. The Brookinses Lack Standing to Bring a Breach of Trust
Claim
Assuming arguendo that Harvard is a public trust, the
Brookinses do not have standing to bring a breach of trust
claim. When a trust is charitable, and devoted to purposes that
are beneficial to a broader community, “[t]he attorney general
shall enforce the due: application of funds given or ap-
propriated to public charities within the commonwealth and
prevent breaches of trust in the administration thereof.” G.L.
c. 12, § 8. In Dillaway v. Burton the court held that it 1s “the
2la
exclusive function of the Attorney General to correct abuses
in the administration of a public charity by the institution of
proper proceedings.” Dillaway v. Burton, 256 Mass. 568,
573, (1926). It is his duty to protect the public interests and to
proceed in the prosecution as those interests may require. /d.
The Court has, on occasion, recognized a private plaintiffs
standing to make claims against a public charity, but only
where the plaintiff asserts “interests in such organizations
which are distinct from those of the general public.” Lopez v.
Medford Community Ctr., Inc., 384 Mass. 163, 167 (1981). In
each such case the claim has arisen from a personal right that
directly affects the individual member, such as where the
member has a right to exercise a vote in connection with
some aspect of the charity’s affairs (a right not present here)
and the charity prohibits the member from doing so. See /d.
Since the Brookinses are not and do not claim to he the
Attorney General, they do not have standing to bring a claim
against Harvard for breach of public trust. Furthermore, they
have not asserted an interest distinct from the general pubic.
Therefore, the Brookinses have no standing as a private
plaintiff to bring a claim against Harvard for breach of
public trust.
In the case of a private trust, only a named beneficiary, or
one suing on his or her behalf, can maintain an action to
enforce a trust. Collector of Taxes of Lowell v. Slafsky, 332
Mass. 700 (1955). The Brookinses admit that they are not
named beneficiaries of the “trust” they allege Harvard
breached, and concede that they do not claim on behalf of a
named beneficiary. These facts compel the conclusion that, if
Harvard were considered a private trust, the Brookinses lack
standing to prosecute breach of private trust.
For the foregoing reasons, the Brookinses claim for breach
of trust against Harvard fails. Summary judgment for Harvard
on Count III is ALLOWED.
22a
III. The Brookinses Lack Standing to Bring Constitutional
Claims
In Count IV of the amended complaint, the Brookinses
allege that the public agencies violated their mght to
meaningful due process guaranteed by the 14th Amendment
to the United States. According to the plaintiffs, the public
agencies violated their 14th Amendment rights when the
BRA voted to approve the PDA with only insufficient
information before it, and when the BRA and the BZC
approved the PDA without first providing the plaintiffs with
complete information about the zoning amendments.
* * * *
and the BZC approved the PDA without first providing the
plaintiffs with complete information about the zoning
amendments.
“From an early day it has been an established principle in
this Commonwealth that only persons who have themselves
suffered, or who are in danger of suffering, legal harm can
compel the courts to assume the difficult and delicate duty of
passing upon the validity of the acts of a coordinate branch of
the government.” Kaplan v. Bowker, 333 Mass. 455, 459
(1956); Doe v. The Governor, 381 Mass. 702 (1980).
The Brookinses allege a procedural due process argument.
However, the BRA and BZC have acted within the
procedures laid out in the Code, Section 80C-1, PDA Review.
The Brookinses have had opportunity to participate in the
review process, attend meetings, and review documents. After
public comment periods, at an open meeting, the BRA voted
to recommend the Map Amendment to BZC which sub-
sequently approved the Map Amendment.
The BRA and BZC have not violated the Brookinses due
process rights where they afforded them opportunity for
participation, but chose not to vote according to the Brook-
23a
inses’ views. They have failed to show that they were denied
due process or that they have suffered from a legal harm.
Accordingly the defendants’ motion for summary judge-
ment on Count IV is ALLOWED.
ORDER
For the foregoing reasons, it is hereby ORDERED that the
defendants are entitled to summary judgement on Counts I, II,
Ill and IV.
/s/ S. Jane Haggerty
S. JANE HAGGERTY
Justice of the Superior Court
Dated: May 5, 2003
24a
APPENDIX G
COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT
SUFFOLK, ss. [Filed Feb. 28, 2002]
Civil Action No. 01-3447-B
KATHRYN J. BROOKINS and OSCAR T. BROOKINS,
VS.
THE BOSTON ZONING COMMISSION, ef ai.,'
MEMORANDUM OF DECISION ON PLAINTIFFS’
MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs Kathryn and Oscar Brookins, pro se, challenge a
decision of the Boston Zoning Commission (“BZC”) author-
izing a large-scale redevelopment project known as One
Brigham Circle in the Mission Hill area of Boston. Other
defendants named in the suit include the Boston Redevelop-
ment Authority (“BRA”) which oversaw the planning and
design of the project, the Mission Hill Neighborhood Housing
Services, a community-based association that provided input
into the project, One Brigham Circle, LLC, the developer,
and Harvard University which sold or donated parcels of land
upon which the project is to be located. Brought in four
counts, the Brookins charge that the defendants engaged
in contract zoning (Count One), spot zoning (Count Two),
and violated due process (Count Four). In Count Three the
' The Boston Redevelopment Authority, President and Fellows of
Harvard College, Mission Hill Neighborhood Housing Service, and One
Brigham Circle, LLC.
25a
Brookins allege that Harvard violated their charter in convey-
ing land for a non-educational purpose.
The Brookins filed their complaint in July, 2001, within
thirty days of the BZC’s decision. On February 5, 2002, they
learned that the developers were scheduled to begin blasting
activities at the site, which consists of approximately six acres
of land (some level and some sloped under rock ledge). The
Brookins, ex parte, sought a restraining order to halt site
work. After a hearing, the Court denied the request for a
temporary restraining order and scheduled a hearing on a
motion for preliminary injunction for February 12, 2002.
DISCUSSION
The standards for a preliminary injunction are well known
and established. See Tri-Nel Management, Inc. v. Board of
Health of Barnstable, 433 Mass. 217, 219 (2001)(“To suc-
ceed in an action for preliminary injunction the plaintiff must
show: 1) a likelihood of success on the merits; 2) that irrepa-
rable harm will result from denial of the injunction; and
3) that, . . . the risk of irreparable harm to the plaintiff out-
weighs the potential harm to the defendant . . .”); see also
Packaging Industry Group, Inc. v. Cheney, 380 Mass. 609,
617 (1980). Additionally, a request to enjoin a government
action requires that the court consider whether the relief
sought will adversely affect the public interest. Tri-Ne/
Management, supra, at 219.
To establish they have a reasonable likelihood of success
on the merits of their action, the Brookins must demonstrate
some right or interest, recognized in the law, to bring suit. In
tie context of zoning cases, a plaintiff must prove that he or
she is ati “aggrieved person” in order to gain standing to
challenge the governmental decision. Watros v. Greater Lynn
Mental Health and Retardation Association, Inc., 421 Mass.
106, 107 (1995); Cohen v. Zoning Board of Appeals of
Plymouth, 35 Mass.App.Ct. 619, 620 (1993), rev. den. 417
26a
Mass. 1102 (1994); Boston Zoning Enabling Act, St. 1956,
§ 10A. Proof of aggrieved status requires more than a gen-
eralized concern about the impact of a decision on the com-
munity at large, and cannot be based on speculation or con-
clusory allegations. Rather, the party secking standing must
demonstrate an adverse impact on a personal legal right or
property interest that is different in degree from the public-at-
large. See Bell v. Board of Appeals of Gloucester, 429 Mass.
551, 554 (1999); Bevarnik v. Bd. of Alderman of Newton, 33
Mass. App. Ct. 129, 132 (1992).
In the instant case, the Brookins fail entirely to assert
any personal or property interest that confers standing to
bring this action. Although they reside in the Mission Hill
neighborhood, their residence is located some distance from
the project site and separated by other streets and many
structures (both homes and storefronts). The Brookins’ inter-
est in this litigation seems related to their status as longstand-
ing community activists more than it does to a personal claim
of adverse impact. Oscar was a member of the Mission Hill
Neighborhood Housing Service in the 1980s and both plain-
tiffs have been involved in publishing a community news-
paper for many years.
Additionally, the Brookins’ underlying assertions of ad-
verse impact do not appear any different from concerns
shared by the community at large. As set forth tn the plain-
tiffs’ deposition testimony (submitted as exhibits to the De-
fendant BZC’s Opposition to Motion for Preliminary Injunc-
tion), the Brookins contend that the already congested traffic
patterns on Huntington Avenue and Tremont Street will be
worsened by the project. Also, as a consequence of more
vehicles, there will be greater air pollution. The Brookins fail
to show that these conditions, even if proven, would impact
them more substantially than other residents of Mission Hill.
Consequently, in the absence of a showing of particularized
impact that is adverse to their legal or property interests, this
27a
Court cannot conclude that the Brookins have a likelihood
of success on the merits of their motion for preliminary
injunction, that there is a genuine public interest in continuing
development at this time. The City of Boston, through the
BRA, has worked extensively with community and business
interests to craft a multi-use plan for the parcel in question,
and further delay will not benefit the neighborhood or the
community as a whole. On balance, therefore, the Brookins’
request for injunctive relief must be, and is hereby DENIED.
/s/ Jeffrey A. Locke
Jeffrey A. Locke
Justice of the Superior Court
Dated: February 12, 2002
28a
APPENDIX H
COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
SUFFOLK SS
CIVIL ACTION NO. 01-3447-B
KATHRYN J. BROOKINS AND OSCAR T. BROOKINS,
Plaintiffs,
Vv.
THE BOSTON ZONING COMMISSION, THE BOSTON REDEVELOP-
MENT AUTHORITY PRESIDENT AND FELLOWS OF HARVARD
COLLEGE, THE MISSION HILL NEIGHBORHOOD HOUSING
SERVICES AND ONE BRIGHAM CIRCLE, LLC
Defendants.
REQUEST FOR A TEMPORARY RESTRAINING ORDER
Plaintiffs request this Court issue a Temporary Restraining
Order [Mass. Rules of Court 65 (a)] to the Defendant, One
Brigham Circle, LLC and its contractors to suspend all their
construction, demolition and all other site preparation activi-
ties on the subject site at 1620 Tremont (One Brigham Circle)
until such time as the Court reviews the Plaintiffs’ request for
a permanent injunction pending a resolution of the matters
before the Court. We pray that the Court will issue this TRO
so that the matters we have brought before the Court in
our Complaint may be resolved by the Court and not by
dynamite.
We filed our Complaint challenging a decision of the Zon-
ing Commission granting zoning changes for the site at One
Brigham Circle. Under Chapter 665 of the Acts of 1956, the
29a
Boston Zoning Code we are entitled to such relief in Article
10 A.
Without a TRO being issued the Defendant One Brigham
Circle will begin blasting at the 3 subject site this week which
will render the site irreparably changed. The contractors,
Dimeo Construction Co., have announced their intentions to
remove 13,000 cubic yards of ledge rock, a form, of granite
from the lower portion of the site and relocate it on what is to
be a park on the upper portion of the site.
Plaintiffs pray that the Court will honor this request.
Respectfully submitted,
/s/ Kathryn J. Brookins
Kathryn J. Brookins, pro se
/s/ Oscar T. Brookins
Oscar T. Brookins, pro se
4 Hillside Street, Roxbury, MA 02120
(617) 427-4140
Dated February 6, 2002
Judge’s comments:
After hearing an ex parte request for TRP. And review of
Affidavits and exhibits, request is denied as TRO but short
order of notice to issue for hearing as injunctive relief.
30a
APPENDIX I
COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT
CIVIL ACTION NO. 01-3447-B
—-———_—-
KATHRYN J. BROOKINS AND OSCAR T. BROOKINS,
Plaintiffs,
Vv.
THE BOSTON ZONING COMMISSION, THE BOSTON REDEVEL-
OPMENT AUTHORITY, PRESIDENT AND FELLOWS OF HAR-
VARD COLLEGE, AND THE MISSION HILL NEIGHBORHOOD
HOUSING SERVICES,
Defendants.
EMERGENCY MOTION TO INTERVENE OF ONE
BRIGHAM CIRCLE, LLC
Pursuant to Superior Court Rule 9A(e) and Mass. R. Civ.
P. 24, One Brigham Circle, LLC (“OBC”) hereby requests
that the Court allow it to intervene as a party deiendant in this
action.
As grounds for this motion, OBC states as follows:
1. In this action, plaintiffs seck , among other things,
a declaration from this Court that would annul an action
of the Zoning Commission of the City of Boston (the
“BZC”) which approved the development plan for
Planned Development Area No. 52 (the “PD “") and
which amended map “6d, Mission Hill Ne _.sdorhood
District” (the “Amendment”) of the series of maps
entitled Zoning Districts City of Boston.” dated August
15, 1962.
3la
Judges Comments:
Emergency Motion to Intervene of One Brigham Circle,
LLB;. September 17, 2001
“10/09/01, [After hearing, I reconsidered the mater and
affirmed my earlier decision (10/17/01) Allowing the
Motion to Intervene.]
/s/ [Illegible]
32a
APPENDIX J
COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT DEPARTMENT
SUFFOLK, ss
CIVIL ACTION NUMBER: 99-0249G
OSCAR T. BROOKINS AND KATHRYN BROOKINS
Plaintiffs,
V.
BOARD OF APPEAL,
Defendants.
DEFENDANT’S MOTION TO DISMISS PLAINTIFFS’
COMPLAINT AND MEMORANDUM IN
SUPPORT THEREOF
Now comes the defendant in the above-entitled matter and
respectfully requests that this Honorable Court dismiss the
plaintiffs’ complaint. As reasons therefore, defendant states
that the plaintiffs are not “person aggricved” and therefore
lack standing to file this complaint.
A. Statement of the case.
The plaintiffs have appealed, pursuant to the City of Bos-
ton Zoning Enabling Act, St. 1956, c. 665, § 11, the decision
of the City of Boston Board of Appeal granting variances and
conditional use permits for the use of property at 714-716
Parker Street” (Complaint, Par 6).
According to § 11, however, only a “person aggrieved by a
decision” may challenge a decision of the Board of Appeals.
The plaintiffs have presented no creditable: evidence that they
33a
are “person(s) aggrieved” and therefore lack standing to bring
this challenge. Because the plaintiffs have presented no cred-
ible evidence to support his contention that he is “person(s)
aggrieved” and consequently lacks standing to challenge the
decision of the Board of Appeal and the defendant is entitled
to have this action dismissed. .
B. The plaintiffs are not persons aggrieved.
1. Only “person(s) aggrieved” have standing to challenge
a decision of the Board of Appeal.
Only a “person aggrieved” has standing to challenge a
decision of the City of Boston Board of Appeal. St. 1956, c.
665, § 11, as amended. See also Marashlian v. Zoning Board
of Appeals of Newburyport, 421 Mass. 719, 721 (1996);
Watros v. Greater Lynn Mental Health & Retardation Asso-
ciation, Inc., 421 Mass. 106, 107 (1995); Barvenik v. Board
of Aldermen of Newton, 33 Mass. App. Ct. 129, 130-133
(1992). A plaintiff is a “person aggrieved if he suffers some
infringement of his legal rights.” Marashlian, 421 Mass. at
721; Circle Lounge & Grille, Inc. v. Board of Appeal of
Boston, 324 Mass. 427, 430 (1949). See also, Cohen v. Zon-
ing Board of Appeals of Plymouth, 35 Mass. App. Ct. 619,
624 (1993) (an interest in “preserving the integrity of [their]
zoning district” is insufficient to grant plaintiffs’ standing.),
Harvard Square Defense Fund, Inc. v. Planning Board of
Cambridge, 27 Mass. App. Ct. 491, 493 (1989) (Plaintiffs
must show a “plausible claim of a definite violation of a
private right, property interests, or legal interest”); The injury
to the plaintiff's legal rights must be more than speculative.
Tsagronis v. Board of Appeals of Wareham, 415 Mass. 329,
335 (1993) (Abrams, J. dissenting); Boston Edison Co. v.
Boston Redevelopment Authority, 374 Mass. 37, 46 (“(1)n
many, if not most, circumstances, the injury complained of
may be too remote to make the party seeking review [of a
zoning board of appeal decision] a “person aggrieved.’’).
34a
Abutters generally enjoy a presumption of standing as
“persons aggrieved”. See Watros, 421 Mass. at 111; Bedford
v. Trustees of Boston University, 25 Mass. App. Ct. 372, 376
(1988); Marotta v. Board of Appeals of Revere, 336 Mass.
199, 204 (1957). However, the presumption is rebuttable.
Watros, 421 Mass. at 111; Barvenik, 33 Mass. App.. Ct. at
131. The presumption of standing for an abutter recedes when
a defendant challenges the plaintiff's status as an aggrieved
person. Watros, 421 Mass. at 111; Barvenik, 33 Mass. App.
Ct. at 131 and n. 7. If standing is challenged, the jurisdic-
tional question is decided on “all the evidence with no benefit
to the plaintiffs from the presumption.” Barvenik, 33 Mass.
App. Ct. at 131. A review of standing based on all the evi-
dence does not require that the fact finder ultimately find the
plaintiffs allegations meritorious, but rather, “the plaintiff
must put forth credible evidence to substantiate his allega-
tions.”” Marashlian, 421 Mass. at 721.
Plaintiffs must establish “by direct fact and not by spec-
ulative personal opinion that [his] injury is special and dif-
ferent from the concerns of the rest of the community.”
Barvenik, 33 Mass. App. Ct. at 132. The plaintiffs must put
forth creditable evidence to substantiate claims of injury to
their legal rights which is neither speculative nor too remote
to make the plaintiffs persons aggrieved. Marashlian, 421
Mass. at 723. See also Barvenik, 33 Mass. App. Ct. at 132.
(“Subjective and unspecific fears about the possible impair-
ment of aesthetics or neighborhood appearance, incompatible
architectural styles, the diminishment of close neighborhood
insufficient bases for aggrievement under Massachusetts
law.”); fecling, or the loss of open or natural space are all
considered Boston Edison Company v. Boston Redevelopment
Company, 374 Mass. 37, 46 (1977). One factor to be consid-
ered is the “magnitude of the threat of harm from a use per-
missible as of right.” Marashlian, 421 Mass. at 724.
35a
2. The Plaintiffs Lack Standing.
The plaintiffs in this action have not met the standards
necessary to be considered a “person aggrieved” and there-
fore lack the standing to challenge the decision of the Board
of Appeal. The plaintiffs, in their complaint, simply state that
they own property within 120 feet of the properties at 714-
716 Parker Street.” (Par 5). The plaintiffs have not put forth
“creditable evidence to substantiate [his] allegations,” as re-
quired by Marashlian, 421 Mass at 721, nor have they estab-
lished “by direct fact and not by speculative personal opinion
that [his] injury is special and different from the concerns
of the rest of the community.” Barvenik, 33 Mass. App. Ct.
at 132.
CONCLUSION
Because the plaintiffs have presented no creditable evi-
dence to support their contention that they are “person(s)
aggrieved” and consequently lack standing to challenge the
decision of the Board of Appeal, the matter must be dis-
missed.
Wherefore, the defendant respectfully requests that this
Court grant its Motion to Dismiss and enter judgment in its
favor.
RESPECTFULLY SUBMITTED,
Defendant Board of Appeal
‘s/ Karen M. Coppa
KAREN M. Coppa BBO 544880
Assistant Corporation Counsel
City of Boston Law Department
City Hall, Room 615
Boston, MA 02210
(617) 635-4046
36a
Judges Comments:
Defendant’s Motion to Dismiss Plaintiffs’ Complaint and
Memorandum in Support Thereof. Allowed October 14,
1999. ALLOWED:
10/44/99 “The defendant and the intervenor have
demonstrated without doubt that the plaintiffs’ have no
standing. The plaintiffs’ property is many yards from the
locus, down the street and a considerable distance, and
their across the street at a large Y intersection. Plaintiffs
are not abutters or abutters of abutter. The plaintiffs
have failed to allege any facts that demonstrate any facts
that will directly affect them, or that it exceeds any kind
of general and unspecified injury to any other property
owners in the area. Accordingly the within motion is
Allowed” signed.
/s/ [Illegible] Voltera, Justice
37a
APPENDIX K
COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT CIVIL ACTION
Suffolk, ss.
NO. 93-3632
KATHRYN J. BROOKINS AND OSCAR T. BROOKINS,
VS.
CITY OF BOSTON ZONING COMMISION, BOSTON
REDEVELOPMENT AUTHORITY, COMMONWEALTH QF
MASSACHUSETTS, BETH ISREAL HOSPITAL, AND PRESIDENT
AND FELLOWS OF HARVARD COLLEGE.
MEMORANDUM OF DECISION AND ORDER ON
DEFENDANTS’ MOTIONS TO DISMISS
Plaintiffs Kathryn and Oscar Brookins (“Brookins”) have
brought the present action pro se, challenging the rezoning of
the Mission Hill and Fenway area in Boston, the creation of
the Beth Israel Hospital Institutional District (“BIHID”), and
the Commonwealth’s transfer of property to Beth Isracl
Hospital. Named as defendants in the suit are the City of
Boston Zoning Commission (“BZC”) and the BZC’s indi-
vidual members, the Boston Redevelopment Authority
(“BRA”) and the BRA’s individual members, the Common-
wealth of Massachusetts Division of Capital Planning
(“DCP”), Bath Israel Hospital (“Beth Israel”), and the
President and Fellows of Harvard College (“Harvard”).
The various defendants have moved to dismiss all claims
on the grounds that plaintiffs have no standing to challenge
the actions complained of, that certain of plaintiffs’ zoning
challenges are untimely, and that plaintiffs have failed to state
38a
a claim.’ For the reasons set forth below, defendants’ motions
to dismiss are allowed and the action is hereby dismissed.
Facts
Plaintiffs reside in and own property located at 4 Hillside
Street, Boston. Their home is located in the Mission Hill
Zoning District.
On November 2, 1992, the BZC created the BIHID by way
of various text and map amendments. These zoning amend-
ments creating the BIHID became effective on November 11,
1992 upon the Mayor’s signature.
On December 18, 1992, the DCP transferred to Beth Israel
a parcel of property located at 364 Brookline Avenue, a
site previously used by the Massachusetts College of Art.
Pursuant to the legislature’s directive, the proceeds from the
sale of the property were placed in the Mission Hill/Fenway
Neighborhood Trust. St. 1988, c. 208, § 34.
On April 27, 1993, the BZC created the Mission Hill
Interim Planning Overlay District (Mission Hill IPOD). The
designation as an “IPOD” is a precursor to rezoning of the
area, with the purpose of preventing developers from rushing
projects through the permit process just prior to some-change
in the zoning law. As an IPOD, proposed development in the
area must obtain approval from the Board of Appeal. The
creation of the Mission Hill IPOD also referenced the
Mission Kill Planning and Zoning Advisory Committee
(“PZAC), a citizen advisory group that advises city agencies
on land use and development issues. The BRA nominates
residents to serve on the PZAC, and the Mayor appoints the
actual members of the PZAC.
On June 10, 1393, the BZC granted a “U*” designation for
property abutting the Master Plan Zoning District for Beth
' Defendant Harvard did not file its own motion, but joined in the other
defendants’ motions at the time of hearing.
39a
Israel. Plaintiffs allege that this redesignation will vastly
increase tie value of a parcel of land (the site of the former
Boston English High School) that the BRA intends to sell to
Harvard. Plaintiffs’ complaint also references the BRA’s
taking of the Boston English High site, but the complaint
does not specify when the BRA taking took place.
Plaintiffs filed the present action on June 16, 1993.
Discussion
I. BIHID
Defendants Seth Israel and the BZC have moved to dismiss
plaintiffs’ complaint as to the establishment of the BIHID on
the ground that the complaint is untimely.
Section 10A of .the Boston Enabling Act (St. 1956, c. 665;
St. 1987, c. 371) requires that a plaintiff challenging a zoning
map amendment or a zoning, regulation amendment must file
an appea! within thirty days at the effective date of the zoning
decision.” The amendments creating the BIHID became
effective on November 11, 1992. The present suit was not
filed until June 16, 1993, a date far beyond the expiration of
the thirty day statute of limitation.
Massachusetts courts have strictly construed zoning stat-
utes of limitations. “Timely commencement of the appeal in
the Superior Court is a condition of maintaining it, ‘a
condition sine qua non,’ and is a requirement this court has
‘policed in the strongest way.’” Cappuccio v. Zoning Board
> Section 10A reads in pertinent part: “Any persons aggrieved by a
decision of the zoning mission approving a zonii map amendment or a
zoning regulation or amendment thereof, or by any procedural defect
therein, or any municipal board or officer, may appeal such decision to the
superior court in the county of Suffolk or the land court; provided,
however, that such appeal is filed in said court within thirty days after
such decision became affective in accordance with the provisions of
section three.”
40a
of Appeals of Spencer, 398 Mass. 304, 312 (1986) quoiing
Pierce v. Board of Appeals of Carver, 359 Mass. 804, 808,
811 (1976).
Plaintiffs contend that the zoning changes complained of
comprise a continuing series of actions which continued
through (and beyond) the June 1993 “U*” designation for the
Boston English High property. Because the numerous actions
are allegedly linked, the plaintiffs argue that the statute of
limitations does not start to run until the effective date of the
last action challenged. Under plaintiffs’ reasoning, the statute
of limitations to challenge a November 1992 zoning amend-
ment would not expire until thirty days after the effective data
of whatever subsequent allegedly related zoning action the
BZC may take. Such an approach would amount to the
permanent suspension of the statute of limitations in matters
affecting zoning. Under plaintiffs’ argument, the statute of
limitations could never act as an effective bar to the filing of
an action as long as the work of a zoning commission were
ongoing. The court declines to interpret a strict and very
short zoning statute of limitations in the manner suggested
by plaintiffs.
Accordingly, the statute of limitations bars plaintiffs’ com-
plaint with respect to the creation of the BIHID.
II. Mission Hill IPOD and “U*” Designation for Boston
English Site
Defendants have moved to dismiss the remainder of plain-
tiffs’ zoning challenges on the ground that plaintiffs lack
standing. In order to challenge any zoning amendment in
Boston, plaintiff must be a “person aggrieved” by that
decision. Enabling Act, § 10A. Standing may not be based on
a “general civic interest in the enforcement of the zoning
ordinance.” Waltham Motor Inn, Inc. v. LaCava, 3 Mass.
App. Ct. 210, 218 (1975). For purposes of standing in zoning
challenges, “a person must establish— by direct facts and not
by speculative personal opinion—that his injury 1s special and
4la
different from the concerns of the rest of the community.”
Barvenik v. Board of Alderman of Newton, 33 Mass. App. Ct.
129, 132 (1992). “Subjective and unspecific fears about the
possible impairment of aesthetics or neighborhood appear-
ance, incompatible architectural styles, the diminishment of
close neighborhood feeling, or the loss of open or natural
space are all considered insufficient bases for aggrievement
under Massachusetts law.” /d., at 132-133. See also Harvard
Square Defense Fund. Inc. v. Planning Board of Cambridge,
27 Mass. App. Ct. 491, 493 (1989) (plaintiff must demon-
strate “‘a plausible claim of a definite violation of a private
right, property interest, or legal interest”).
Plaintiffs have not articulated how the interim zoning of
the Mission Hill IPOD has caused them to suffer any concrete
harm whatsoever. Their complaint objects to interim zoning,
with its input from the PZAC, on principle. While plaintiffs’
philosophic objection to interim zoning and the use of the
PZAC is deeply felt, it amounts solely to an abstract
disagreement in principle, not to the kind of direct harm to a
legal right that is necessary to confer standing. In an attempt
to assert something resembling a direct harm flowing from
the adoption of interim zoning, plaintiffs contend that they
had architectural plans drawn up to renovate two barns on
their property, renovations which would convert the barns to
housing units. These plans were allegedly drawn up back in
1990, several years before the zoning amendments now
complained of. To date, plaintiffs have still not sought any
form of building permit for those allegedly planned reno-
vations, no application having been filed under either the
prior zoning ordinances or under the amended zoning laws.”
There is simply no showing that plaintiffs have any present
plan to undertake the barn renovations in the near future.
* At oral argument, plaintiffs asserted that their failure to follow
through with any permit application stemmed from the emotional distress
following the disappearance and/or theft of their family dog.
42a
Even if plaintiffs had such a plan, or were to resurrect such
a plan, there is nothing in the establishment of the Mission
Hill IPOD that prevents them from obtaining a permit. All
that the interim zoning does is to require approval for all
development projects while the area is being rezoned. It is not
a freeze or a moratorium. Since the principal concern in the
period prior to rezoning is that major developers will attempt
to rush projects through the permit process before the zoning
change is implemented, the interim planning overlay is de-
signed as a temporary suspension of any pre-existing auto-
matic right to a permit.* The establishment of the Mission
Hill IPOD doss not mean, and does not even make it the least
bit likely, that an application to renovate two barns into
residential housing will be turned down. '
Obviously, if plaintiffs do seek such approval and are
turned down, they will have their usual rights to have such a
permit denial reviewed for error.’ At present, however, they
have no actual application or other concrete plan, let alone
one that has been adversely affected by the adoption of a plan
of interim zoning. As such, the plaintiffs claims with respect
* The use of interim zoning pending rezoning of an area is permissible.
“Interim zoning can be considered a salutary device in the process of
plotting a comprehensive zoning plan to be employed to prevent disrup-
tion of the ultimate plan itself. . . . The orderly process of interim zoning
allows the issues to have the benefit of full public debate, at the same time
protecting the affected area from unwise exploitation prior to agreement
and formulation of new zoning restrictions which may be more restric-
tive.” Collura v. Town of Arlington, 357 Mass. 381, 883-87 (1975) (up-
holding town’s interim zoning that placed a two-year moratorium on the
construction of apartment buildings).
* Plaintiffs voice a fear that, in retaliation for their activism in various
community matters, the PZAC will refuse to recommend approval for any
permit they seek and that, absent PZAC approval, they will not be granted
the necessary permit. If an when plaintiffs seek a permit, and if and when
the permit is denied, plaintiffs’ claims that the permit has been refused for
some improper, retaliatory reason can then be examined.
43a
to their potential future plans for their barns do not suffice to
establish standing to challenge the establishment of the Mis-
sion Hill IPOD.
Plaintiffs’ also lack standing to complain of the change in
the zoning designation for the former Boston English High
site. The complaint does not even attempt to identify how that
change in designation (or the BRA’s taking of the site) has
had any affect on their legal rights. Plaintiffs allege (as they
do with respect to the BIHID) general concerns about in-
creased traffic, air pollution, etc. from the development of
these sites by medical institutions. These sites and arcas are
far removed from the plaintiffs’ residence. Furthermore, these
sorts of concerns, typical of the general concerns of all city
dwellers, do not suffice to confer standing in zoning cases.
See Waltham Motor Inn, supra; Barvenik, supra.°
Ill. Sale of Massachusetts College of Art Site .
Plaintiffs’ final complaint pertains to the transfer of the
Massachusetts College of Art site to Beth Israel. Plaintiffs
contend that the disposition of this piece of public property
was not made for any valid public purpose and that placing
the sale proceeds in a trust fund is unconstitutional.
In order to challenge the DCP’s conveyance of the prop-
erty, plaintiffs must establish their standing:
From an early day it has bean an established principle in
this Commonwealth that only persons who have them-
selves suffered or who are in danger of suffering, legal
° Had plaintiffs’ complaint been timely filed with respect to the estab-
lishment of the BIHID, plaintiffs would also lack standing to challenge
that zoning amendment. Inasmuch as plaintiffs do not live in or even abut
the BIHID, they would lack standing to challenge the establishment of the
BIHID. Plaintiffs’ residence is not at only at a considerable distance from
the BIHID, but several medical institutions, numerous commercial estab-
lishments, and the META Green Line are all situated in between plain-
tiffs’ residence and the BIND.
44a
harm can compel the courts to assume the difficult and
delicate duty of passing upon the validity of the acts of
[another] branch of the government.
Pratt v. Boston, 396 Mass. 37, 42 (1985). Plaintiffs have not
set forth any legal harm they have suffered as a result of the
conveyance of the site. They admit they were not bidders for
the real estate. They do mot live anywhere near the parcel in
question.
Rather, as amplified at oral argument, plaintiffs simply do
not approve of the way the Mission Hill/Fenway Neighbor-
hood Trust will spend the sale proceeds in their neighbor-
hood.’ Such a concern, however keenly felt, is not the sort of
harm to a legal right or legal interest of the plaintiffs that is
necessary for purposes of standing.*
’ The legislature has designated that the proceeds of the sale are to go
to the Mission Hill/Fenway Neighborhood Trust. The Trust is to “give
grants or loans to community based Mission Hill and Fenway nonprofit
organization [sic], community development corporation [sic] and groups
which enhance the quality of life through affordable housing, youth
program [sic], elderly programs, social services and whatever the Mis-
sion Hill/Fenway Neighborhood Trust deems appropriate.” St. 1988, c.
208, § 34.
* Inasmuch as plaintiffs lack standing, there is no need to reach defen-
dants’ alternative grounds for dismissal of plaintiffs’ challenge to the sale
of the site. The court notes, however, that the transfer of the property for
purposes of economic development (as set forth in the legislation author-
izin, the disposition of the property (see St. 1988, c. 208, § 34)) appears
to constitute a valid public purpose. Opinion of the Justices, 363 Mass.
880, 885 (1975). Plaintiffs’ contention that the transfer will not, in their
opinion, ultimately generate sufficient economic development to make the
transfer worthwhile does not change the fact that economic development
is a valid public purpose. Nor does there appear to be any merit to plain-
tiffs’ contention that the sale proceeds must be deposited into the treasury.
Where, as here, the legislature has prescribed that the funds are to go into
a designated trust for designated purposes, there is no constitutional infir-
mity in not depositing the funds into the treasury. See Opinion of the Jus-
tivws, 375 Mass. 851, 854 (1973); /lorton v. Attorney General, 269 Mass.
$F, 34.2 (1929).
4Sa
ORDER
For the foregoing reasons, the defendants’ motions to
dismiss are GRANTED and it is hereby ORDERED that the
above action be dismissed in its entirety.
/s/ Matha B. Sosman
MARTHA B. SOSMAN
Justice of the Superior Court
Dated: November 22, 1993
46a
APPENDIX L
COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT
SUFFOLK, ss.
CIVIL ACTION NO. 90-4779D
KATHRYN J. BROOKINS,
Plaintiff,
VS.
CITY OF BOSTON, BOARD OF APPEAL, ef al.,
Defendants.
ORDER ON DEFENDANT’S MOTION
FOR STATUTORY BOND
This action is a challenge to the granting of conditional use
permits by the Board of Appeal of the City of Boston
(“Board”) to the defendant President and Fellows of
Harvard College. (“Harvard”) for the construction of the East
Quadrangle Research Facility (“EQRF”). The EQRF will be a
six-story research laboratory with an accessory animal facility
and underground parking on the campus of the Harvard
Medical School. Now before the Court is Harvard’s motion
for a statutory bond in the amount of $1,188,000.00. After a
hearing in which the plaintiff appeared, pro se, and after
consideration of the arguments and submissions of the
parties, the court finds and rules as follows:
1. The plaintiff, Kathryn J. Brookins (“Brookins”), has
no likelihood of success on the merits. First, it is unlikely that
Brookins will be able to establish that she is a “person
47a
aggrieved” Within the meaning of the Boston Zoning
Enabling Act, St. 1956, c. 665 §11. The evidence indicates
that she resides in a different Zoning district several city
blocks from the EQRF. Moreover, Brookins has not alleged
any private right, property interest or legal interest that the
EQRF will violate. Her complaint sets forth a litany of
grievances concerning parking, air pollution and traffic
congestion. Should Brookins proceed to trial she will be
required to show that the decision of the Board is “based on
a legally untenable ground, or is unreasonable, whimsical,
capricious or arbitrary.” MacGibbon v. Board of Appeals of
Duxbury, 356 Mass. 635, 639 (1970). A review of her
pleadings indicates that Brookins has not even attacked the
decision on these bases. In any event, the Board’s decision on
its face is legally supported by its detailed findings of fact.
2. Harvard has demonstrated that any substantial delay
in the EQRF project would cost millions of dollars and would
jeopardize its ability to obtain research grants and to recruit
faculty and scientists to work there. The cost of a six-month
delay or suspension of construction alone would total
$1,188,000.00.
3. While Brookins argued at the hearing that she had no
resources to post a bond in any amount, her affidavit and
financial statement show that she owns several parcels of
improved real estate with equity of at least $180,000.00.
Although the plaintiff may not be a wealthy person, she is not
exempt from the bond requirement.
4. Having considered the parties’ relative likelihood of
success on the merits, the potential harm to the recipient of
the zoning relief as well as the plaintiff's financial ability to
post a bond; and further, bearing in mind that the bond
requirement is designed “to discourage frivolous and vexa-
48a
tious appeals”, the court rules that Brookins shall post a
bond in the amount of $250,000.00.
ORDER
It is hereby ORDERED that plaintiff Kathryn J. Brookins
shall post a bond, with sureties, in the amount of $250,000.00
with the clerk of this court within fifteen days of the date of
this Order.
vl
/s/ Barbara A. Dortch
Barbara A. Dortch
Justice of the Superior Court
DATED: January 14, 1991
1 Jack vy. Board of Appeal of Boston, 1S Mass. App. Ct. 311, 313
(1983), quoting McNeely v. Board of Appeal of Boston, 358 Mass. 95, 110
(1970).
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.