NEU suits dismissed, but questions linger

The two lawsuits filed against Northeastern University’s (NEU) Huntington Avenue dormitory project have been dismissed due to lack of standing.

But Judge Carol Ball, who heard both suits, noted in one of the rulings that “the plaintiff raises a number of troubling questions in her opposition” about the role the City of Boston Zoning Commission may have played in the project.

Meanwhile, the Massachusetts Historical Commission (MHC) has approved the project’s choice of site. The MHC and NEU must now agree on the design of the building. Construction cannot begin until the MHC approves the project and is already delayed by several months.

Plaintiffs Oscar and Kathryn Brookins, Mission Hill residents, and Richard Orareo, a Fenway resident, sued the Boston Zoning Commission and the Boston Redevelopment Authority (BRA) along with NEU. Plaintiff Irene Smalls, a Fenway resident, sued the Zoning Commission, NEU and dorm co-developer PPC Land Ventures, Inc. The plaintiffs claimed that the development team planned to circumvent zoning restrictions by having an institutional cover for a private development.

Plaintiffs from both suits have told the Gazette they plan to appeal. Standing refers to the right to sue, not the merits of the arguments.

“Our whole team working together sought to prove to the court that the suits were without merit. They prevailed,” said John Tobin, NEU’s vice president of city and community affairs.

The City did not have an immediate comment on the Zoning Commission’s role in the lawsuits.

The GrandMarc at Northeastern project, located at 316 Huntington Ave., would allow NEU to keep its promise to Mission Hill residents of 600 more on-campus beds.

Under the proposed plan, PPC would purchase and demolish the YMCA’s gym, then build a 17-story dorm tower in its place. PPC would then lease the dorm to NEU long-term.

The plan was approved as an amendment to NEU’s Institutional Master Plan (IMP) late last year. An IMP is a comprehensive development plan that describes an institution’s existing facilities, long-range planning goals and proposed projects. The IMP serves as zoning approval for all its projects. Only colleges and hospitals can have IMPs.

“The crux of the complaint [against the developers] is that the Boston Zoning Commission exceeded its authority” in approving that amendment, said Andre Jones, Smalls’s attorney.

The amendment “grants a private developer the right to construct a building substantially in violation of the Zoning Commission’s rules and regulations,” Ball wrote in her ruling for one of the cases. “[It] permits Northeastern to include within its IMP land which it does not own; and…land which it may never own.”

NEU has stated it intends to sign a 15-year lease with PPC. After that lease expires, NEU would have the option of renewing it or buying the building, but no obligation to do either.

Under regular zoning regulations, any building taller than 90 feet would require a variance.  The proposed tower would be just under 200 feet tall.

“[The plan] is a cute way of circumventing zoning,” Jones said. “This is precedent-setting. This is going to affect the whole city.”

“Northeastern is really using this to expand their footprint,” Jones added.

“Just a year ago, [Mayor Thomas] Menino presented this as a done deal and a win-win-win. A win for Northeastern, a win for the city and a win for the Y,” Orareo said. “For every winner, there’s a loser. The neighborhoods are the losers here.”

“We look at this as a win for Northeastern. The Y looks at it as a win for its membership. I think the neighbors will see it as a win, too, eventually,” Tobin said. “Since the project has been announced, we’ve gone through every single proper channel in a public and transparent way.”

The developers continue to check other necessary items off the pre-construction list, Tobin said.

The MHC has finally agreed to the site of the proposed dorm, a point of contention since the project was first filed with the MHC in May.

In a letter dated Sept. 13, the MHC agrees that “the consulting parties have explored alternatives to the current proposal” and that the next step would be to seek “alternatives that would minimize the adverse visual effects” or the proposed project.

In a June 3 letter, the MHC states that the developers’ submission “did not include a good faith study of alternatives” for the project.

“They have a process that’s a bit different from the city process…We look forward to a final resolution,” Tobin said.

Gazette calls to the MHC were not returned by press time.

The start of demolition for the project was originally scheduled to begin in late June.

The dorm was planned to open by August 2013 to accommodate that fall’s incoming class. Starting that year, all NEU freshmen and sophomores will be required to live in university housing.

“We’re still generally on track. We’re still hoping for an August 2013 opening, but that could be delayed by a few months because of the MHC and the lawsuits,” Tobin said.

Of allegations that NEU is “land-banking,” as Orareo called it, or hoarding other on-campus locations, like the Gainsborough Street garage or Cullinane Hall at 288 Huntington Ave., for future development, Tobin said “conversations about future dorms or future buildings will be part of the discussion [for the next IMP].”

The next IMP will include the appointment of a new BRA-selected Task Force of neighbors and elected officials. Task Force members hold an advisory position.

“None of the Task Force members have a voice. There’s no power there,” Orareo said.

NEU’s current IMP expires at the end of 2012.

The Y was first suggested to a previous Task Force as a possible site for more housing five years ago, though it was eventually abandoned in favor of more suitable sites. After the economic downturn in 2008, however, NEU said it could not afford to build a new dorm without help. The deal NEU forged with PPC is the first of its kind in the nation.

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