In a first for the Newton Zoning Board of Appeals, the City Council filed an appeal to an Inspectional Services Department (ISD) ruling – in this case, a ruling stating that the current developer of the four-unit project at 16-22 Clinton Street was not in violation of the approved Council special permit project plan. In his August 14 letter rejecting the Council’s request for Zoning Enforcement, ISD Commissioner Anthony Ciccariello acknowledged that the height of the retaining walls was higher than stipulated in the plans. He assured the Council that the retaining walls would “be brought into compliance within the next 2-3 weeks.” Moreover, his letter stated that the site grading and building height were all within the approved range and that the developer was in compliance with the site plan.
At the ZBA’s October 22 hearing, the three City Councilors who represent Ward 1 (the site of the Clinton Street project) were joined by City Council President Marc Laredo and the Chair and Vice Chair of the Council’s Land Use Committee, which approved the project’s original special permit request. Jason Gee, an abutter to the project, also filed an appeal of Commissioner Ciccariello’s ruling and appeared at the hearing with a number of abutters and area residents.
The Special Permit request was necessary because the project is in a business zone and includes residential units on the ground floor as well as the second and third floors. Councilor Maria Greenberg, who was on the Land Use Committee at the time the Special Permit was approved, testified before the ZBA that drawings included in the Planning Department packet showed the two proposed buildings at the same height as the two abutting residential buildings. The attorney representing the developer met with the community on two occasions, and no residents raised objections. However, what appeared in the architectural renderings was not what neighbors saw during construction. The presentation to Land Use included architectural renderings but not the detailed site plan.
The current Ward 1 Land Use member, Councilor Alison Leary, told the ZBA that the architectural renderings are “erroneous and misleading …that lead the Land Use Committee to believe the height and massing of the building would be significantly less than what is currently being built.” She said “the average grade of the property has increased by almost 2 feet and it could be more.” Abutters have complained about the height of the building and retaining walls and the water pooling on their property when it rains.
Councilor John Oliver joined his two Ward 1 colleagues in challenging the ISD judgment, emphasizing that, in fact, what was before ZBA was a “tale of two projects.” The architectural renderings, which are required for the Land Use Special Permit, do not reflect what now exists on Clinton Street. On the other hand, the site plans, which were not presented to the Land Use Committee, show a very different project — one in line with what the abutters have been reporting. Among the issues noted by the Councilors is that the architectural drawings received by the City Clerk were not stamped and not signed by the architect, and the detailed site plan was not included in the information packet provided to Land Use. He therefore concluded that ISD “got it wrong.” Mr. Gee, who lives behind and abuts the Clinton Street project, underscored the differences in the architectural and site plans and said they should have been reconciled.
During the ZBA hearing, Jennifer Caira, Deputy Director of Planning & Development, said that architectural renderings are a tool, but grading and measurement details are contained in the site and engineering plans, which were not submitted to Land Use. In addition, she said that generating highly specific architectural renderings is expensive.
Joining his colleagues in testifying before the ZBA, City Council President Marc Laredo echoed Councilor Oliver’s view of the tale of two projects. He asked, “What was the developer’s intent?” ZBA chair Michael Rossi asked Attorney Jonah Temple, representing the Newton Law Department, what the ZBA’s authority is in such matters. Mr. Temple said that the ZBA’s “review is limited to whether or not [the ISD’s] interpretation was reasonable” and that the ZBA needs “to stick to what’s in the special permit conditions and determine whether or not they are being followed.” He added, “As to statements made in community meetings, that really is irrelevant to the City’s process. Whether or not there’s a right of relief or a private action to be had there, I can’t really say, but that would be something that those residents would need to pursue on their own.”
President Laredo underscored the fact that both the City Council and the ZBA are “quasi-judicial” bodies with enforcement powers. Stuart Snyder, a ZBA member and real estate attorney, wondered if the case was a matter of “bait and switch” and asked what could be done to remedy the problems.
Councilors Laredo and Leary requested time to work with the developer, the abutters, and the Councilors to arrive at some mitigation. For Mr. Laredo, there needed to be some consequences for what he deemed “recklessness,” in order to maintain credibility of the Land Use, City Council, and ZBA rulings. He emphasized that the City Council is standing up for the process. Mr. Gee suggested that if there is no response to the problems now confronting the abutters, there is no point to having requirements such as the special permit process.
The ZBA agreed with Mr. Laredo’s suggestion that there should be a significant effort to bring the parties together to look for some remediation. While Councilors Laredo and Leary suggested 60 days, Mr. Temple countered with the suggestion that they might consider returning for the November 20 meeting but could extend the time to the December meeting if necessary. All agreed that the developer would not be issued a Certificate of Occupancy until there has been some meaningful remediation of the project’s problems and inconsistencies.
In responding to Fig City News following the meeting, current Land Use Chair Andrea Kelley said that going forward, architectural renderings submitted to Land Use will include detailed measurements. “We’ve learned some lessons,’ she said, promising to change the ordinances to provide access to site plans in considering permits. In addition, she said she believes that the Land Use Committee should have access to its own legal counsel, noting that the City Council benefitted from having Mr. Laredo, who is a lawyer, on hand to assist in making their case.
Ed. Note: We revised this article to correct an incorrectly quoted statement by Attorney Jonah Temple.