BHCA Prepares Response on Sidewalk Litigation

By Dan Murphy

After consulting with attorneys, the Beacon Hill Civic Association (BHCA) is now preparing a response to the city, which has challenged a court order mandating that it file an Environmental Notification Form (ENF) with the state to continue the installation of sidewalk ramps in the neighborhood.

“The ENF requires a public process, so the only conclusion you can draw is that city doesn’t want that,” said Colin Zick, a Civic Association board member and chair of its Parks and Public Spaces Committee.

In a Sept. 17 letter to Deidre Buckley, director of the Massachusetts Environmental Policy Act (MEPA), Patrick Cento, the city’s assistant corporation counsel, sought an advisory opinion on whether the city needed to complete the form to continue bringing Beacon Hill sidewalks into compliance with the federal Americans with Disabilities Act (ADA). According to the letter, the city is requesting guidance on several issues, including if the sidewalk modifications qualify as a “replacement project” under MEPA guidelines; if MEPA requires a permit for the project; if the project requires financial assistance per MEPA regulations; and ultimately, if the city needs to file an ENF for the project altogether.

Cento’s letter comes in response to a preliminary injunction issued on June 10 by Justice Bonnie MacLeod in Suffolk Superior Court mandating that the city file an ENF to continue with the project because both city and state funds were being used to underwrite it. The court found “that the contract, which includes the sidewalk and ramp renovations on Beacon Hill, is being paid for with both Commonwealth and city capital funds.”

In his letter, however, Cento challenges this claim.

“This project is completely funded by the City of Boston through its capital funds,” he wrote. “No Chapter 90 money or other state funds are being used to pay for this program.”

Meanwhile, Zick points out that Cento opted not to include MacLeod’s injunction order, even though he provided other supporting documentation with his letter.

“Why are they hiding this decision,” Zick said. “Why are they misrepresenting the decision? Once a judges decides something, it’s decided.”

Zick also questions why the city is presumably holding up a project, which it maintains is to rectify a “dangerous and unsafe” condition.

“What is quite remarkable is that despite clear direction from the court in June, the city hasn’t taken action on something it presented as an emergency,” Zick said. “It could have simply submitted the ENF, but decided not to do that.”

Keeta Gilmore, chair of the Civic Association, said while the organization wholly supports making the neighborhood’s sidewalks wheelchair accessible, it objects to the city’s use of concrete ramps with plastic tactile-strips to achieve this goal.

“We support instituting these improvements in a manner that fully satisfies the accessibility standards while also being consistent with the historic character of the neighborhood,” Gilmore wrote. “There are many examples of accessibility ramps in the Boston area that would clearly meet both goals, and we remain ready and willing to discuss these options.”

State Rep. Jay Livingstone also hopes the Civic Association and the city can reach an agreement on the materials for the project.

“It’s disappointing that city tries to continue to litigate, instead of working out the issue with the neighborhood, especially since residents have offered to pay the price increase for using better quality, more historically appropriate materials,” Livingstone said.

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