Group files lawsuit attempting to save Prouty Garden

May 6, 2016
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Members of the Friends of the Prouty Garden have filed a lawsuit attempting to stop Boston Children’s Hospital (BCH) construction plans for a new facility that will lead to the demolition of the Prouty Garden.

BCH and the state Department of Public Health (DPH), which must review and approve the construction plans, are named in the lawsuit. Both declined to directly comment on the lawsuit.

DPH is currently reviewing BCH’s Determination of Need (DoN) for the construction project. The DoN program, established by the legislature in 1971, promotes the availability and accessibility of cost effective and high quality health care services to Massachusetts citizens, according to DPH. It also assists in controlling health care costs by eliminating duplication of expensive technologies, facilities, and services, according to DPH.

The DoN program evaluates proposals and makes recommendations to the Public Health Council for approval or denial of the expenditures or new services, and the Public Health Council makes the final decision.

The lawsuit alleges that BCH began construction without obtaining the DoN from DPH in violation of state law. The lawsuit also alleges that BCH has raised money for the project without notifying DPH, violating state law.

“BCH’s commencement of construction and soliciting funds from the public without issuance of DoN violate the public interest and cause irreparable harm. They deprive DPH of its right to preconstruction review. They deprive the plaintiffs of their right to comment and participate in preconstruction review and present DPH with a fait accompli,” the lawsuit states

The lawsuit seeks an injunction to stop construction and fundraising for the project and the issuance of daily penalties as provided by law against BCH for its violations. A hearing was held May 3 with the judge not issuing a ruling, according to news reports.

When asked for a comment on the lawsuit, BCH spokesperson Rob Graham replied, “As a policy Boston Children’s Hospital does not comment on the specifics of ongoing litigation. Boston Children’s welcomes the opportunity to address the claims outlined in the lawsuit. For more than three years, Boston Children’s has pursued our project to build a clinical building on our Longwood campus to meet the needs of our patients and staff and the growing demand for our care. Throughout the public process we’ve earned approval at every step of the way.”

Graham did attach an April 8 letter from a law firm representing BCH to DPH disputing the Friends of the Prouty Garden’s allegations. The letter states that BCH has not started construction on the new facility, but began renovation projects that were going to happen regardless of the DoN process. The letter also states BCH is not raising money for the construction project, but had a general fundraiser for the hospital.

DPH spokesperson Scott Zoback said that the department doesn’t comment on active litigation, but did release the following statement on the DoN:

“DPH is currently reviewing Boston Children’s Hospital Determination of Need (DoN) application. Additionally, DPH’s review will include an Independent Cost Analysis, which will be submitted by an independent firm.  Under statute and regulation, DPH’s DoN review is limited to explicit factors, including the need for the construction of the health care facility, quality, access, and financial feasibility issues.”

BCH plans to replace the Prouty Garden and the 55 Shattuck St. building with a new clinical building at the corner of Shattuck Street and Meadow Lane on its main campus.

The new space would include the creation of the Bader Garden, which would be an indoor/outdoor space next to the clinical building.

A three-level, year-round garden would also be built as part of the project, along with a spiritual and meditation space on the top floor of the clinical building. A rooftop terrace for patients would be included with the project.

According to the Massachusetts Horticultural Society website, the garden was a gift from Olive Higgins Prouty, a local author, and opened in 1956. It is described as a “small pocket garden” and as a “quiet oasis” located behind BCH’s main building. The garden, designed by the Olmsted Brothers landscape firm, is modeled after the terrace and garden at the Museum of Modern Art in New York City.

The Friends of the Prouty Garden had petitioned the Boston Landmarks Commission to landmark the garden. That petition was rejected by a 7-1 vote. The group hired a law firm and asked the AGO to stop the demolition, saying it goes against the terms of Prouty’s gift and her will. AGO has the authority to make sure funds to a charity are properly used. AGO declined to intervene.

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