B.C.'s Lawyers Prepare For Middle Campus Trial

Appeal of Newton aldermen's permit denial

By Michael Seele
Chronicle Editor

Lawyers representing Boston College are expected to be in Massachusetts Land Court in the coming weeks to begin a trial appealing the Newton Board of Aldermen's denial of a special permit for the Middle Campus Project.

The proposed project - which includes the construction of three buildings and the demolition of McElroy Commons - would provide the University with a new student center and an academic building. In October of last year, the Newton aldermen voted to deny a permit that would have allowed construction to proceed, despite a favorable recommendation on the project from the city's Planning Department and the board's Land Use Committee.

According to Associate General Counsel Joseph Herlihy, Boston College is challenging the denial on two grounds: that the project is, in fact, worthy of a special permit based on its merits - the denial, therefore, being arbitrary and capricious; and that the city's current zoning restrictions applying to Middle Campus are unlawful.

Herlihy explained that since the zoning ordinance was instituted in 1987, Boston College cannot build anything on its Middle Campus without a special permit from the aldermen, which is issued solely at the board's discretion.

"The current zoning ordinance does not let us provide adequate facilities for our campus," said Herlihy. "In addition, we believe the ordinance is not rationally and reasonably related to its stated goal of protecting the neighborhood."

Proponents of Newton's case argue that the University should return to an earlier proposal to build a student center in Boston, behind O'Neill Library. That idea was abandoned by BC as being inadequate to serve student needs in the long term and because it did not provide much-needed academic space.

"The nature of the buildings' use has not been properly represented to the aldermen by our opponents," Herlihy said. "Although we did everything we could to communicate to the board and to the general public what a student center is, that seems to have fallen mostly on deaf ears. Our task now is to educate the judge about what a student center is and its importance in the overall education of our students."

The University has retained the Boston law firm of Goodwin, Procter & Hoar to present its case in a non-jury trial before Land Court Justice Caryn F. Scheier. The lead trial attorney is J. Kenneth Felter '72. The trial is tentatively set to begin on Nov. 10, subject to last-minute motions concerning the schedule.

Herlihy said the University's expert witnesses are expected to include the project's architect, a traffic engineer, a planning and zoning expert, and an educator involved in the design and operation of student centers nationwide. In addition, University Chancellor J. Donald Monan, SJ, and Academic Vice President and Dean of Faculties William B. Neenan, SJ, "may be called to testify on the educational traditions and philosophy of Boston College, and how the Middle Campus Project is more in keeping with our educational goals than other possible student center projects on campus," Herlihy said.

Executive Vice President Frank B. Campanella and former Vice President for Administration John T. Driscoll also may be called to testify, Herlihy said.

Boston College expects to take about three days to present its case, Herlihy added, and the entire trial could last as long as five days. A decision, however, may not be rendered for perhaps a few months after the trail's conclusion, he said.

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