The 343 Summer Street property where the Dakota
Partners plan to build a 14-unit condominium development has remained
empty as a series of litigation has stalled the project. A suit by
abutter Dr. Mohamed Hanif Butt wound its way to the Massachusetts
Supreme Court, with Butt eventually losing. With the construction
permit on the brink of lapsing, the ZBA unanimously approved an
extension at the Feb. 18th meeting.

While Dakota now has until
March 2010 to begin work, their ongoing lawsuit against the city over a
proposed fire lane that would take down a public shade tree continues
to block progress.

In addition to Dakota's litigation against
the city, which the group used as the justification for hardship to
gain the permit extension, a lawsuit filed March 9th by residents Carol
Dempkowski, Nancy Iappini and George O'Shea alleges the ZBA overstepped
the boundaries of the city ordinance by giving the extension.

The
same group of neighbors has also called the proceedings leading up to
the decision into question. At two hearings on the project, they say
Assistant City Solicitor David Shapiro gave misleading information that
heavily influenced the board's decision in favor of Dakota.

After asking for a recording of the meeting, they found it cuts off immediately before the hearing on the project began.

"Quite
simply, the tape failed," said Tom Champion, executive director of
Somerville's communications department. "It was frustrating for us,
too."

Champion said that such a malfunction had never occurred in the year since officials started recording meetings.

"People
who feel passionately one way of the other will feel skeptical about an
error of this kind," he added. "All you can do is tell them it was an
accidental problem. No discussions happened that weren't in public
view. All the points were on public record."

The purported
malfunction has added fuel to criticism of the way the city has handled
the extension request. The plaintiffs in the lawsuit against the ZBA
say Shapiro made a critical mistake when he told the board at its Feb.
4 meeting that the Dakota Partners could apply for an extension only
once – a fact which several members cited in justifying their votes at
a meeting two weeks later.

"I'm not going to lie, I won't be
heartbroken if this thing doesn't get settled in court and expires in a
year," board member Richard Rossetti said. "Unfortunately, I have to go
with what the law says. For that reason, I'm going to lean toward
giving them the extra year."

A day after the meeting, Shapiro
sent an e-mail to the ZBA explaining that Somerville's one-year limit
was susceptible to legal challenges based on a 2002 decision by the
Massachusetts Attorney General's rejection of a similar ordinance
proposed in Swansea.

"While the Attorney General opinion does
not constitute case law," Shapiro's e-mail stated, "I do agree with the
rationale that an ordinance may not limit the number of extensions
where there is good cause to extend the permit."

The discussion
of the limit on the number of extensions, including the subsequent
e-mail clarifying Shapiro's position, are not included in a draft of
the meeting minutes provided to Nancy Iappini. Neither the Feb. 4 nor
Feb. 18 minutes have been posted on the city's Web site.

Iappini
said the botched meeting tape, combined with meeting minutes that omit
a majority of the points made by both sides, shows the city's lack of
oversight of the proceedings.

"We don't feel we had the
appropriate process met," Iappini said. "When meetings like that go
down, it's hard to be confident in the public process."

Just
after the lawsuit appealing the ZBA ruling was filed, the issue was put
on the March 18 meeting agenda as an "abutters' request to reopen
proceedings." The board will vote on whether to bring the matter up
again – which plaintiff George O'Shea, Iappini's husband, said could
lead to them dropping their suit.

"You have only twenty days to
make an appeal, and you had to hedge your bets," O'Shea said of the
decision to sue before seeing if the ZBA would consider a new hearing.
"Obviously it would be dropped if they opened it and changed their
mind, but we had to act."