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COMMONWEALTH OF MASSACHUSETTS SUFFOLK, SS SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CIVIL ACTION NO.

12-4544B
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BENJAMIN DAY, IN HIS REPRESENTATIVE CAPA CITY, AS CHAIRPERSON OF THE JAMAICA PLAIN NEIGHBORHOOD COUNCIL, Plaintiff,

v.
BRG 161 SOUTH HUNTINGTON, LLC AND THE CITY OF BOSTON BOARD OF APPEAL Defendants.

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______________________________)
AFFIDAVIT OF MICHAEL REISKIND
I, Michael Reiskind, state under the penalty of perjury that the following facts, which are within my personal knowledge, are true: 1. I am a resident of the Jamaica Plain District ofthe city of Boston and an elected member of the Jamaica Plain Neighborhood Council (the "JPNC"). I currently serve as a member of the JPNC Zoning Committee ("Zoning Committee") and as Chairperson of the JPNC Public Service Committee. 2. I submit this affidavit because I am one of the original members of the JPNC, appointed by then Mayor of Boston, Mayor Flynn, in 1985, when he established the JPNC. Except for brief periods since that time, in the aggregate approximately a year-and-a-half when my candidacies for election to the JPNC were unsuccessful, I have served continuously as an elected member of the JPNC since it was established.

3.

When the JPNC was created, its members were appointed by the mayor. Soon after its creation, the members of the JPNC, without objection from the city or the mayor, voted to approve by-laws, which changed the Mayoral appointment process for membership to a neighborhood election to be conducted every two years. In effect, the mayor delegated the manner of selecting members of the JPNC to the JPNC itself.

4.

Pursuant to the by-laws of the JPNC, Jamaica Plain is divided into three geographic areas, "Area A," "Area B" and "Area C," which are shown on the map annexed hereto as Exhibit "A."

5.

Each Area has five representatives on the JPNC, voted into office by the residents of that Area. There are also five "at-large" members on the JPNC who are elected to office by residents of the entire Jamaica Plain.

6.

Over the years, the City of Boston Election Department has assisted in the conduct of JPNC elections. The Election Department has verified the nominating papers ofthose seeking election to the JPNC by comparing the signatures to the City of Boston resident list. The Election Department also has provided tables and chairs and wooden ballot boxes for use on JPNC election days.

7.

The JPNC has four standing committees, Public Service, Parks and Open Spaces, Housing and Development, and Zoning. Each committee is chaired by a member of the JPNC, who is elected to the position by the other members of that committee. The officers of the full JPNC are a Chair, Vice-Chair, and Secretary/Treasurer, each elected by the JPNC members.

8.

From the time the JPNC was created (1985), the JPNC Zoning Committee's role has been, and, is to hold public hearings in Jamaica Plain and to vote whether appeals for

variances from the Zoning Code to the city's Board of Appeal, changes in the Zoning Code by the city's Zoning Commission, permitting for activities in Greenbelt Protection Overlay Districts should be approved, and to conduct design reviews for the design review process of the Boston Redevelopment Authority ("BRA"). These hearings take place prior to the review process of the BRA, the hearings by the Board of Appeal and hearings by the Zoning Commission. 9. Between 1987 and 1993 the City of Boston underwent a lengthy and involved public community process to update the zoning code in Jamaica Plain. The role of the JPNC in reviewing and approving or denying zoning appeals, as described above, had been well established by the city, the BRA and the Board of Appeal at that time. 10. The city and the BRA delegated to the JPNC the task of conducting a public community process to review the then existing Code and to draft a new zoning code for Jamaica Plain. 11. I was intimately involved in the drafting of the new zoning code for Jamaica Pain, which, upon enactment, became Article 55 of the Code. 12. The JPNC made revisions, alterations, additions and edits of and to the then existing zoning code, a process which involved numerous public hearings and meetings and took more than two years to complete. The city and the BRA provided staff members for administrative and technical assistance and senior BRA personnel on key issues. 13. New Article 55, after approval by the BRA board of directors, vote of the Zoning Commission, and written approval by the mayor, became effective in September 1993. 14. As shown by the express language of Article 55, it was the clear intent of the city, the BRA, the JPNC (as prime author of Article 55), the Zoning Commission and the mayor

in the enactment of Article 55, to codify in Section 55-6 their long-standing practice of having the JPNC conduct on their behalf local public hearings to review all zoning appeals in Jamaica Plain prior to consideration of them by the Board of Appeal. 15. The workings of the Zoning Committee have remained fundamentally unchanged since the city established the JPNC in 1985. A property owner in Jamaica Plain who seeks a building permit must apply to the City of Boston Inspectional Services Department ("ISD"). ISD determines whether construction ofthe project would violate the Zoning Code. If, in the determination of ISD, the project would violate the Zoning Code, ISD denies the permit and issues a letter of denial to the applicant. 16. If, despite the denial, the applicant desires to seek relief from the Zoning Code by way of a variance from the Code provisions, the applicant is required to appeal the denial to the Board of Appeal. 17. If an appeal is made by the applicant, the Chair of the JPNC Zoning Committee receives notice of the filing of the appeal either from the BRA, the Mayor's Office of Neighborhood Services, or, at infrequent times, directly from the applicant. 18. The Chair of the Zoning Committee provides the appellant with a list of requirements he or she must meet to obtain a hearing before the Zoning Committee and the documents and other materials explaining the proposed project that he or she must bring to the regularly scheduled meeting of the Zoning Committee. 19. The Zoning Committee conducts public hearings throughout the year, typically every two weeks. Among the requirements for a presentation to the Zoning Committee at such a hearing is that the appellant provide, on behalf of the Zoning Committee, leaflets giving notice of the date, time, place and subject matter of the Zoning Committee hearing, to

residents and any businesses within an approximate two-block perimeter of the project site. The applicant must submit to the Zoning Committee an affidavit attesting that he or she distributed the required leaflets. 20. At the hearing before the Zoning Committee, there is opportunity for any persons who oppose, and any who support, the appeal for a variance at issue to be heard. The Zoning Committee has several options at the close of the hearing, among which are an up or down vote to recommend to approve or deny the appeal, or a deferral of a vote with direction to the applicant regarding alterations it must make to its project to gain the support of the Zoning Committee. The Zoning Committee may also require the applicant to return to the neighborhood of the project site and, ifthere is opposition to the applicant's request, to negotiate with neighbors to gain their support. 21. In those situations in which the Zoning Committee votes on the request to approve or to deny, the decision of the Zoning Committee is reported to the full JPNC, and the full JPNC votes either to approve or disapprove the Zoning Committee's recommendation. 22. In the case of a zoning appeal, the Chair of the Zoning Committee, upon a vote of approval by the JPNC, sends a letter summarizing the Committee's decision to the Chairperson of the Board of Appeal and the BRA. The letter is also sent to the district city councilor, the at-large city councilor and to the applicable state representative. 23. The experience of defendant BRG South Huntington, LLC ("BRG") is a case in point. BRG proposes to raze the three existing buildings at 161 South Huntington Avenue, Jamaica Plain, owned and used for many years by the New England Home for Little Wanderers, one ofwhich since 1914, and to erect in their stead, a four and five story 196

mostly high-end rental unit building stretching from the property line of the site to the south to the one at northern end of the site, along South Huntington Avenue. 24. Because, in the determination ofiSD, the project proposed by BRG would violate the existing zoning regulations for, among other things, allowed height and floor area ratio, BRG was required by the BRA and the city to present its project to the JPNC Zoning Committee at a public hearing held Thursday, October 11, 2012, prior to its hearing before the Board of Appeal. 25. After BRG made its presentation at the October 11 hearing, the persons in attendance who supported the project and those present who opposed it, were allowed to express their views to the Zoning Committee. 26. After discussion of the project by the members, the Zoning Committee voted 13-0-0 to recommend denial ofthe BRG appeal and the JPNC, on October 30, 2012, affirmed the decision of the Zoning Committee. 27. Although under the Code, the Board of Appeal is not required to adopt the recommendations of the BRA or those of the JPNC, it is, and has been, the practice ofthe Board of Appeal not to consider the merits of any appeal for zoning relief for a Jamaica Plain project without the appellant and the JPNC first having participated in the above JPNC public hearing process. 28. In the many years since the addition of Article 55 to the Zoning Code in September 1993, the city, the BRA, the Board of Appeal, the JPNC Zoning Committee and the JPNC have followed the practices and procedures outlined above.

Signed under the penalty of perjury this 22nd day of January 2013

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Michael Reis ind

EXHIBIT A

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