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Neighbors file lawsuit against ZBA, Mugar developer

Mugar: Most of it is the triangular tract west of Thorndike Field. / Google Earth
Mugar: Most of it is the triangular tract west of Thorndike Field. / Google Earth

UPDATED Dec. 27: Three residents who are neighbors of the Mugar site near Rt. 2 in East Arlington have filed a lawsuit in Middlesex Superior Court naming as defendants the town Zoning Board of Appeals and the Boston corporation seeking to build housing on the site since 2015.

The plaintiffs are Anna O’Driscoll, 23 Littlejohn St.; Julie DiBiase, 29 Littlejohn; and Anita Gryan, 47 Burch St.

Named defendants in the suit filed Dec. 21 is Arlington Land Realty, at 222 Berkeley St., Boston. The corporation is owned by the Mugar family and applied in 2016 for the comprehensive permit, which was issued after the ZBA approved it last month. Also named are all members of the ZBA who voted to approve the permit after holding hearings since April 2020 -- Roger Dupont, Patrick Hanlon, Christian Klein, Kevin Mills and Shawn O’Rourke.

The lawsuit asks the court to annul the ZBA's decision; award the plaintiffs their costs, including fees of expert witnesses, and attorneys’ fees; and grant the plaintiffs other relief as it deems just.

Read the full complaint here >> 

The Nov. 22 ZBA decision concerns a 17.7-acre tract abutting Route 2, whose access is restricted by wetlands.

The proposal by Oaktree Development of North Cambridge, called Thorndike Place, was revised last May and updated in June to reintroduce six two-family townhouses along the frontage of Dorothy Road, as was presented in the original comprehensive permit application. A four-story senior independent living facility is proposed for the parcel to the rear of the town homes.

The total number of rental units is reduced to 124 units, 25 percent (31 units) of which would be permanently affordable to low- and-moderate income families. The proposal includes 43 studio units, 58 one-bedroom units and 23 two-bedroom units.

The suit says the site is in the “Planning Unit Development” zoning district under the town's zoning bylaw. The site abuts land in the two-family zoning district, and the single-family zoning district. About 13.7 acres of the site are within the regulatory floodplain under the Federal Emergency Management Agency’s regulations.

The site is in a neighborhood that has been historically subject to “severe and repeated flooding,” the suit says. The site contains abundant vegetated wetland areas and a significant part is within the 100-year floodplain. Flooding regularly occurs beyond the boundaries of the 100-year floodplain there and in the immediately neighborhood, it says.

Since at least 1992, the site, known locally as the “Mugar parcel,” has been identified as a priority for open-space protection, and in 2000, the Metropolitan District
Commission stated that the “Mugar parcel is amongst the most significant, privately owned open space parcels remaining in the metropolitan region,” the suit says.

The lawsuits raises other issues, which residents and town officials have cited for years -- including expected increased traffic on Lake Street.

One comments; others wait

ZBA Chair Christian Klein declined to comment, except to not, "We will be discussing the appeal with town counsel to determine who should represent the board in any proceedings."

Town Counsel Doug Heim says he will be conferring to deternine who will represent the ZBA.

Representing the plaintiffs is attorney Daniel C. Hill of Boston. He told YourArlington on Dec. 23, "It is too early to say when the case would be heard. If resolution of the issues are susceptible to summary judgment -- meaning that the facts are undisputed leaving only questions of law -- then we could potentially have briefing and a hearing mid-2022. Otherwise, the case would require a trial, which most likely wouldn't happen until the end of 2022 or later."

A Superior Court tracking order shows the deadlines for litigants' responses to the complaint is April 22, 2022, with other deadlines after that. But this schedule is likely to be updated in view of the developer's appeal.

Gwen Noyes, respresenting Oaktree, has been asked to comment.

Nov. 24, 2021: Long-opposed Mugar project OK'd -- with many conditions

This news summary was published Wednesday, Dec. 22, 2021, and updated Dec. 24, to add comment from Hill, and Dec. 27, to note developer's appeal.

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