Developer says he paid $20,000 to settle lawsuit

May 4, 2018
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During a Boston Planning and Development Authority (BPDA) meeting to review the notice of project change (NPC) for the Art Park development, the developer revealed he paid $20,000 to settle a lawsuit over project so that proposal could move forward.

A version of project was already approved by the then Boston Redevelopment Authority and the City’s Zoning Board of Appeals (ZBA) in 2014, but was held up by the lawsuit. That has led to the NPC because the project needs to be denser to pay for the litigation and other unexpected issues, according to the developer. The project had significant community support in 2014, and still does today.

The City first began exploring redeveloping the Art Park site in 2012. The site is City-owned land between Parker and Terrace streets that formerly contained murals, mosaic footpath tiles and colorful furniture, and community gardens that were operated by local residents. The City released a request for proposals (RFP) to determine which developer would be able to buy and develop the land, and Sebastian Mariscal Studios (SMS) was chosen. Locals were initially against the City’s plan, but many were eventually won over during a two-year process with the community benefits the project would provide, including a community garden.

Prior to the project approval in 2014, the developer had done five months of community outreach including 20 meetings, and ended up with 35 letters of support and the signed support of 115 community members at the end of that process. However, the project was held up as Mission Hill residents Kathryn Brookins and her husband Oscar filed a lawsuit against SMS and the ZBA over the variances for the proposal. A judge dismissed that lawsuit in 2016, a decision the Brookinses appealed. The litigation ended in a settlement that SMS paid to the Brookinses of $20,000, information publicly shared for the first time at the BPDA meeting on April 23.

“I have never been through something like this, it was hell,” Sebastian Mariscal said. “I was very naïve thinking that [the Brookinses] were going to make up their mind. I proposed to them at least five different iterations of the building on Parker [Street].”

Mariscal said that after every time he met with the couple, the end of the meeting was positive, and after that they would still have a problem with something else.

“For me it was painful, and maybe it was more painful for you all because it’s your community,” Mariscal said.

Mariscal said that in the three year litigation process, he didn’t settle earlier because he wanted to wait for the decision “fairly and cleanly.” At the end, he felt he had no choice.

“If I didn’t do it, the project and I would have been completely out of the picture,” Mariscal said.

Community members at the meeting seemed to understand Mariscal’s perspective on the situation, but did still comment that the settlement is disconcerting because it could open the flood gates for other projects to continue to settle with people who disagree with them, in addition to the concern that developers may be taken advantage of to a point bordering on extortion.

The meeting drew just seven residents, compared to the crowd of 50 that was at a previous meeting in April that was not organized by BPDA.

SMS submitted their Notice of Project Change on April 6. The project has not changed much from the original review process to now. It was then, and still is: LEED Platinum, around 50,000 square feet of green space, no massing on Parker Street, does not have parking or a curb cut on Parker Street, contains a Parker to Terrace pedestrian way, and will include art and gardening programming. The major difference is in number of units: the project went from 44 units to 60 units. The units have become slightly smaller, since according to Mariscal they were slightly oversized before, and will be mostly one-bedrooms. More units overall means that there will also be two more affordable units, bringing the total of affordable units up to 12. Three parking spaces were also added since the most recent public meeting, bringing the total up to 33. There will still be parking for 82 bikes.

Some residents felt that Terrace Street is “a mess” now because it has a lot of traffic and is narrow, and thought it would be best if the street was made a one-way. The traffic planning itself is not within the project’s scope, but developers said they understood the frustration. Gary Webster of the BPDA said that he has heard about informal talks about that with the City’s Department of Transportation, and would follow up.

The building will contain one-bedrooms at 600 to 700 square feet, two-bedrooms at 800 to 900 square feet, and three-bedrooms at 1,250 square feet. Each unit will include a private 100-square-foot outdoor patio as well.

The existing site has a 35-foot change in grade, so the bottom of the site on Terrace Street will have commercial space and the entrance for parking, and the roof on Parker Street will be about the same height as the street, so it will be experienced as a park, and not a building from that side. Cars will be hidden from view as they will be between a retaining wall and behind the building on Terrace. The developers also have committed to not renting any units to undergraduate students, to the satisfaction of many community members.

In Spring 2014, SMS hired an environmental engineer, who found that the site is highly contaminated with lead. As such, the area has been fenced off and is not for use for the public, and it will significantly increase costs for developing on the land. The contaminated fill material will have to be taken away and treated. The cost of this treatment, as well as the costs of litigation and the delays in the project, have led to the increased density of the project.

The City still has ownership of the land, and will until the financing and design have been solidified. SMS will be the owner of the development, and would maintain the property in terms of snow removal and other things.

The team still needs to go through a public hearing with ZBA. The developers are hoping to wrap up by summer and break ground by fall 2020. At the end of the meeting, Gary Webster of BPDA said that he felt confident that the project would go to the BPDA board of directors to be voted on in the May monthly meeting.