Last week’s groundbreaking at St. James Place, three blocks from the MBTA’s Porter subway and commuter rail station in Cambridge, is a “feel good” real estate story: a car wash and parking lot replaced by an attractive mixed-use development that relates well to the beautiful and historic St. James Episcopal Church.  

Add the fact that the project will allow the church to replace its decaying parish hall and provide needed funds to help preserve and upgrade the church itself and it becomes a “feel great” story.  

But it took 10 years to get there. Not so great. 

Oaktree’s plan in 2008 – with the enthusiastic support of the church and many in the neighborhood – was to replace the old structures with 46 homes, retail space, an underground garage and a garden (facing Massachusetts Ave. and open to the public). Based on other Oaktree developments, 20 to 30 of the units would have been occupied by young workers in Boston and Cambridge. Five of those would have been low-income individuals or families under Cambridge’s inclusionary zoning ordinance. The remaining occupants would probably have been downsizing seniors. 

The city issued a special permit in 2011. But instead of Oaktree’s plan coming to fruition a couple of years later, the project has been delayed by a steady stream of lawsuits. For many years, the neighborhood (the author lives nearby) has tolerated closed and blighted buildings (the car wash and the parish house) while the five lawsuits, one after the other, have been resolved in Oaktree’s favor. And when the smoke cleared in the last year, some opponents said the special permit should be revisited because the neighborhood has changed since the project was approved in 2011.  

Reforms Would Discourage Frivolous Appeals 

The St. James Place story is not an isolated, nightmare scenario. There are projects scattered around Greater Boston that have been affected by appeals, or the threat of appeals. Unfortunately, some of these are in affluent communities where NIMBY opposition can morph into legal battles. Many developers will settle, reducing the number of units or otherwise changing the project, just to get it built. Such settlements, even when they make financial sense to the developer, only encourage future appeals. 

Of course, there are project approvals that should be appealed. Yet surely we can enact reforms that preserve the right to appeal while cutting down on frivolous appeals and expediting the process. Two modest reforms included in the “Great Neighborhoods” legislation filed this term are allowing a judge to require a bond and allowing for certain types of appeals to be reviewed solely on the evidence presented on the local level.   

Allowing a judge to require the appealing party to post a bond of up to $50,000 to secure statutory costs would provide a reality check when there is a frivolous appeal. The judge would need to find that the harm to the developer or to the public interest from the delay outweighs the burden of the bond on the appellant. When making this decision, the judge would consider the merits of the appeal and the relative financial means of the parties. 

Some appeals can be decided more quickly by not allowing appellants to bring new evidence to court. Subdivisions and site plan approvals are usually about technical details that are thoroughly dissected by the local board. Why make each of these appeals into a “de novo trial” (starting from the beginning) with new witnesses and arguments? Why can’t a judge look at the record before the local board that made the decision under attack? 

Time is money. Maybe the money comes out of a developer’s profit. Or maybe it contributes to higher home prices and rents, and homes that don’t get built.

Larry Field is deputy director of the Massachusetts Smart Growth Alliance.