City departments that have twice given a developer the OK to tear down two old buildings behind Mission Church since 2005 are having third thoughts

A Land Court judge yesterday rejected a developer's request to order the city let it immediately tear down two long vacant and increasingly decrepit buildings at 80 and 100 Smith St. that it claims are in danger of imminent "catastrophic" collapse - but which the city says could be repaired.

Weston Associates, based in the Back Bay, sued the Boston Landmarks Commission and ISD earlier this month after they said the company would have to shore up the buildings as the commission reconsiders whether they are worthy of historic preservation rather than allowing them to be torn down as part of the company's long stalled plans to put up new residential buildings.

Weston Associates bought the two buildings - and a third, in between them - from the Redemptorist Fathers in 2003.

Although the company converted the middle building into an office building, now rented to Harvard's public-health school, it planned to tear down St. Alphonsus Hall and the former home of the Mission Grammar School to put up two apartment buildings. In 2004, the Boston Landmarks Commission declared the three 19th-century buildings historic, but the following year, it gave Weston Associates permission to tear down 80 and 100 Smith St. because of the poor shape they were in - permission then also granted by the Massachusetts Historical Commission in 2006.

According to the company's filings, it could not proceed with the project at first because a nearby landowner sued. That case was dismissed in 2007, but by the time the company says it got ready to start work, the 2008 recession hit and the company says it had to put off its plans, including the demolition.

In 2009, the landmarks commission extended its approval for demolition for another two years, but the company still did nothing to take the buildings down, according to the city's filings in the case.

Last September, Weston Associates filed new development plans with the BPDA to replace the two structures with a total of 218 residential units. in a 13-story building and an 8-story building. The proposal remains under review by the agency.

In its lawsuit, the developer says that after it notified City Hall about its reincarnated plans, it got initial approval from a Landmarks Commission administrator to finally tear the buildings down, after it filed a letter from an engineer stating that the buildings were in such bad shape - in particular, 80 Smith St. - that they were in danger of collapse, in particular under snow loads and heavy winds in the upcoming winter. But then, Weston Associates says, ISD issued a "violation notice" last October that, instead of allowing for demolition, ordered the company to make repairs to shore up the buildings.

The buildings did not collapse this past winter, but Weston says the buildings have only further deteriorated and need to go and that a judge should order ISD to approve demolition before they come down on somebody's head.

The company does not say why it didn't tear down the building between 2005 and 2011, when it had city approval to do so.

In its answer, the city argues that the fact that the two buildings are in such bad shape is because Weston, which has owned them for two decades now, let them fall apart - and that the commission wants to reconsider whether the buildings could be restored and then reused.

The city says ISD rejected a June demolition request because Weston failed to submit required contractor information. The city acknowledges that the Zoning Board of Appeal then rejected Weston's appeal of the rejection earlier this month, but says that was in error, but that rather than wait for the board to correct the mistake and schedule a hearing at which it could make its case for a demolition permit, Weston Associates immediately filed suit.

Among other reasons to reject the request for immediate demolition, the city argues:

[I]t is not in the public interest to allow Plaintiff to circumvent the historic preservation and development process by means of an injunction where its own neglect has resulted in the existing conditions of the buildings at 80 and 100 Smith Street.

Yesterday, Land Court Judge Michael Vhay denied Weston Associates' request for an immediate order. He set an Aug. 11 hearing to continue the case.

Weston Associates complaint (15M PDF).
City's answer (4.9M PDF).