Developers Take Battle to State’s Top Court

January 27, 2017
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By Seth Daniel

In essence, it’s simply a small seam that joins two brick walls on Harrison Avenue that, for some five years, has come between two major South End developers, John Holland and Arthur Leon, and cost them both bundles of money.

One side of the wall is red brick; the other side is a cream-colored brick.

The two join seamlessly to a person, but their owners couldn’t be further apart – and their battle is now in the hands of the state Supreme Judicial Court (SJC) in what could be a precedent-setting case on the rights of abutters and developers who clash over building projects.

In a years-long battle over penthouses and zoning variances that could become a precedent-setting battle over the rights of abutters versus developers, two major South End developers gave oral arguments before the SJC in Boston’s John Adams Courthouse on Thursday, Jan. 5.

The case is currently under consideration at the high court.

The case has its genesis in the Jordan Lofts development by Holland Construction at 477 Harrison Ave., and the Leon building next door – a large, one-story building that stretches all the way across to Washington Street and shares an abutting wall with Jordan Lofts.

Holland’s case contends that Leon turned against him almost immediately in 2012 upon hearing Holland bought the building and intended to develop it. Leon, according to Holland’s attorneys, allegedly told his cousin, Rick Leon, that he planned to string out the process and litigate it until Holland went broke and had to sell the property to him.

Holland also contends that in early meetings, Leon told him he would fight him because he didn’t want rich people living next door who would try to fight and prevent him from developing his own building one day. The case, according to Holland, included zoning appeals, a criminal complaint to the police and several legal actions in court – including the SJC appeal – that forced him to abandon his variances to build penthouses and redesign the project to be built by right, without the need for zoning relief.

The Jordan Lofts building has been complete for a few years now and is occupied.

“To further their plan to redevelop their property and to bankrupt 477 Harrison and purchase the Property for their own commercial use, the Defendants have waged a multi-year campaign against 477 Harrison’s lawful redevelopment of the Property,” read a filing from Holland’s attorney, Andrew Goloboy. “The Defendants’ activities consist of both non-petitioning and petitioning activities, including the filing of three Superior Court lawsuits each with an ulterior motive and illegitimate purpose that were designed to coerce concessions from 477 Harrison, delay its project and bankrupt it.”

For Holland, the case boils down to a very wealthy abutting developer holding him hostage by using litigation and process to try to ruin his development.

For Leon (JACE Boston LLC), who has held on to his now-prime property for many years and has expressed some interest in developing it from time to time, the case is about his rights as an abutter, in particular the protection of his wall and his property. Though their case is a very technical legal argument, the premise boils down to their claim that they were sued in order to prevent them from appealing to protect their property rights.

“This action arises out of Defendants’ exercise of their petitioning rights in an effort to protect their easement and property from 477 Harrison Ave.’s pursuit of zoning relief to which 477 Harrison Ave. is not entitled and the related construction activities on 477 Harrison Ave.’s property,” wrote Leon’s attorney, Mark Furman, in a brief. “In an effort to chill further challenges by JACE and Mr. Leon to the variances 477 Harrison Ave. sought to maximize its profits, 477 Harrison Ave. filed the current action against JACE and Mr. Leon personally, asserting claims for abuse of process.”

After several years of feuding, Holland filed a two-count suit against Leon for abuse of process in March 2015.

Leon followed that by filing a second Zoning Appeal in May 2015.

In June 2015, Holland’s team filed an amended legal complaint for abuse of process. Leon’s team followed that up by filing an anti-SLAPP suit in August 2015, claiming their rights were being infringed upon and Holland’s suit should be dismissed.

A Superior Court judge disagreed with that summation in a March 2016 decision, a decision that Holland’s team considered a win as there were some statements by the judge alluding to abuse of the process and the intent of such appeals that had been filed.

Last summer, Leon’s team filed for direct review by the SJC, which was accepted in July.

Arguments on that long-awaited review came just this month, on Jan. 5.

Both Furman and Goloboy declined to comment to the Sun, but made public arguments in court.

At the outset, some justices on the panel seemed to agree that there had been extreme measures taken by Leon, especially with the criminal complaint against Holland.

“I share Justice (Geraldine) Hines’s concern and I ask you why you would be taking a criminal complaint against Mr. Holland,” said Justice David Lowy. “That’s a pretty draconian thing in a petitioning action.”

Meanwhile, Chief Justice Ralph Gants wondered about what the decision would mean, and if it would set precedent for future abutter cases – making regular residents and abutters discouraged to fight a development they consider negative due to the fact that they might get sued.

“Going forward, is this going to stop people from opposing a development?” he asked. “Are they going to say I want to fight it, but I have to worry that they’ll sue me for abuse of process and I’ll have to worry about paying for…attorney fees. Therefore, I decide I can’t afford to fight the development.”

That seemed to be the crux of the argument for Gants, whether or not the case would decide precedent for abutters who are standing up to a development to protect their property. Was Leon protecting his property rights as an abutter, or was he simply pulling a fast one?

The arguments lasted about 30 minutes and there was no indication of when a decision might be rendered, but certainly the case raised questions in the minds of the justices and many South End neighbors.

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