Judge doesn't think much of lawsuit by Roslindale residents against a proposed apartment building, but says they can continue if they put up a $200,000 bond

A Land Court judge has given some neighbors of a proposed apartment building on Belgrade Avenue at West Roxbury Parkway a deadline of March 5 to decide whether their lawsuit is worth posting a $200,000 bond to continue - money they would forfeit to the developer should they lose.

Smith said that developer Jake Upton of Dedham, who has proposed a five-story, 124-unit apartment building on the old Clay Chevrolet site, had made a convincing argument that the neighbors lacked "standing," or legal grounds to contest zoning variances granted the project, because they have failed to prove their concerns over such things as traffic and shadows involve direct potential harm to their properties rather than being neighborhood-wide issues that are not valid legal reasons to bring a lawsuit over variances for one specific project.

Smith cited a Supreme Judicial Court ruling in a case that otherwise, such cases would "choke the courts with litigation over myriad zoning board decisions where individual plaintiffs have not been, objectively speaking, truly and measurably harmed."

Smith continued:

Although density concerns are squarely within the scope of the Boston zoning code, the Plaintiffs may not merely allege harm caused by "increased density" to establish standing. See Sheppard v. Zoning Bd. of Appeal of Boston. Rather, they must identify the manner in which the density of the permitted development would negatively affect their property directly and with specificity. Dwyer v. Gallo. They have failed to identify such harms that are particular to them, as opposed to harms to the neighborhood at large.

The residents sued after the Zoning Board of Appeal approved variances for the proposal last July.

Smith noted the residents said the building would increase traffic in the neighborhood, but failed to even give the more traditional car-related reason to oppose a new building, that it would deprive them of street parking or make it harder for them to get out of their driveways in the morning.

Similarly, Smith rejected the contention by the residents - most of whom live in a condo building separated from the site by what is basically a driveway leading to the Bellevue commuter-rail stop - said the new building would specifically harm them by casting shadows on their units. Smith said Upton's shadow consultant had provided evidence this was not so.

In response, the Plaintiffs have not offered their own shadow study or any expert testimony that would call into question the results of the [consultant] shadow study. Instead, they simply reject the conclusions of the [consultant's study] as inaccurate based on their "familiarity with the location and the sun patterns" in the area. This assertion of harm caused by shadows is not supported by credible evidence and, thus, does not support their standing to maintain this appeal.

And so, Smith ruled, the residents' suit is not "highly meritorious," which means that he had to decide how to balance their right to continue their suit against the potential harm caused to Upton by that suit delaying the project.

Smith rejected Upton's contention that the estimated 18 months it would take to resolve the case in court would cost him more than $15 million in increased labor and construction, interest payments and lost income from not having any apartments to rent. But he said he did agree that the case could take 18 months to resolve and that Upton might face upwards of $650,000 in legal expenses and the cost of making payments on the 99-year lease he has on the property with nothing to show for it.

Should the resident post the bond and then lose the case, the money would go to Upton to help defray his costs.