In response to a
lawsuit filed against the Zoning Board of Appeals by three abutters of
a property slated to become 14 condos on the 300 block of Summer
Street, the board voted March 18 to file an order in the Middlesex
Superior Court asking the case to be brought back within its
jurisdiction.

The property, owned by the Dakota Partners, has remained empty as a seven-year legal battle has

unfolded
among abutters, the developer and the city. With the construction
permit on the brink of lapsing, the ZBA's unanimously approved
extension at its Feb. 18 meeting.

In effect, the remand order filed in the court acknowledges that Assistant City Solicitor David Shapiro

gave
information to the board after the Feb. 18 vote granting a one year
permit extension to Dakota that could have changed the vote.

The
plaintiffs in the lawsuit against the ZBA say Shapiro made a critical
mistake when he told the board at its Feb. 4 meeting that the Dakota
Partners could apply for an extension only once – a fact which several
members cited in justifying their votes at a meeting two weeks later.

A
day after the meeting, Shapiro sent an e-mail to the ZBA explaining
that Somerville's one-year limit was susceptible to legal challenges
based on a 2002 decision by the Massachusetts Attorney General's

rejection of a similar ordinance proposed in Swansea.

The order voted on at the March 18 meeting, drafted by Shapiro, asks for the case to be remanded from

the
Middlesex Superior Court back before the ZBA "for the limited purpose
of considering whether to reopen the proceedings in light of additional
legal guidance received after the decision was rendered."

Tom Bok, an abutter to the Summer Street property, filed the request to re-open the case. He and

lawsuit
plaintiff George O'Shea waited outside a closed-door executive session
held at the March 18 meeting as Shapiro briefed the board on its
options.

While Bok sees the remand order as a positive step, he said it was unfair that a 20-day limit on

requesting a case to be re-opened forced them to pursue both a request through the ZBA and a legal appeal at the same time.

"The part of this process that frustrates me is that there are two paths, one just says 'Are you

sure?' and another that is more costly," Bok said.

If
the court decides to allow the ZBA to reconsider the permit extension,
a new pubic hearing process will be required – giving residents another
chance to protest the permit extension.

Attorney Rich
DiGirolamo, who has represented Dakota before the ZBA, said he doesn't
expect a new hearing to take place. "We don't believe the appeal is
meritorious," he said. "We think the board gave due regard to the
hardship arguments presented and I don't think (the abutters) will
prevail."