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The Boston Globe

Opinion

PAUL MCMORROW

A Byzantine, only-in-Boston, battle

NO ONE should be sweating out the fate of Olmsted Place. Not in a sensible world, anyway.

The 196-unit apartment development proposed for 161 South Huntington Ave. in Jamaica Plain won its city development approvals and zoning variances last fall. If the process were more rational, the project’s developer would now have a building permit in hand. The Boston Residential Group would be done with site demolition on South Huntington, finishing up on foundation work, and looking forward to getting a building in the air.

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Instead, the firm is fighting an interminable legal battle against a small but determined group of Jamaica Plain residents.

In most cities, developers get the approvals they need to construct new buildings and then go build something. Boston is not most cities. Here, courts grant wide latitude to disgruntled residents and process even the most frivolous lawsuits at a glacial pace.

The opponents of Olmsted Place have no shot of actually stopping the development on the legal merits, but that’s not the point of their exercise. They are simply trying to keep the project tied up in court. They were routed in Suffolk Superior Court earlier this spring, but face no risk and no repercussions for pushing a loser of a lawsuit as far as the court system will let them. They’re engaged in asymmetrical combat.

There’s nothing unique about the Olmsted Place development. Boston desperately needs more housing, and South Huntington can easily accommodate new construction. The block down the street is set to become a 195-unit apartment tower; just up the street, a shuttered nursing home will likely become another new residential development. It just happened that Olmsted Place was the first major new neighborhood development to come out of the chute, so it’s bearing the brunt of a nasty form of neighborhood identity politics — one that demands rote opposition to all development driven by market forces rather than public subsidies.

City officials ignored that sharp anti-development neighborhood sentiment when it handed permits to the Olmsted Place project last fall. And that’s when the lawsuits started. Ever since then, the Jamaica Plain Neighborhood Council, a neighborhood civic group, has been tying the project up in court, preventing any construction from going forward.

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By doing so, the neighborhood council’s lawsuit has put on ice a $75 million development that would include twice the number of legally required affordable units. The group has been in court for nine months. So far, the legal battle is only about whether they even have legal standing to fight the project.

In theory, state law limits both who can challenge zoning decisions in court and what grounds they can sue on. It’s not enough that neighbors disagree with a zoning decision; they have to show that zoning decisions have harmed their individual property rights. That’s because the courts are not supposed to be a second planning board or a venue for re-airing complaints that got dismissed at the local level.

Development opponents routinely ignore this distinction, however. For them, the courts are a means to an end, a way of saddling hated developments with expensive delays. The longer a development opponent presses a flurry of meaningless legal challenges, the greater the chance a project collapses under its own weight.

The redevelopment of Boston’s Lovejoy Wharf floundered for years because a handful of determined neighbors managed to tie it up in court. And even when they’re unsuccessful, these types of legal challenges have a way of extracting pounds of flesh from their targets, by grossly inflating developers’ costs.

The Jamaica Plain Neighborhood Council is playing that same basic game with Olmsted Place. The group is trying to do an end-run around the laws limiting zoning cases to harmed neighbors by claiming to be a municipal board with the automatic right to challenge city zoning variances in court. A Suffolk County judge roundly rejected that argument in May, but the neighborhood council is appealing. The group’s lawsuit simply argues that Boston’s zoning board overstepped its authority. It doesn’t claim any harm stemming from the zoning board decision. Nor does it articulate an alternative vision for the site. The final goal is nothing at all.

They shouldn’t actually get a say on that — but that detail doesn’t seem to matter anymore.

Paul McMorrow is an associate editor at Commonwealth Magazine. His column appears regularly in the Globe.

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