A controversial Davis Square condominium proposal is facing more scrutiny after city officials nearly let the developer avoid submitting reports that detail possible environmental contamination on the development site.
The project would create a 31-unit condominium building and new facility for the George Dilboy VFW Post on about an acre of land between 343 and 351 Summer St.
Opponents have longstanding concerns about the project’s size, and doubts about the developer’s track record in Somerville. In addition, they say the city is making excuses for a developer who has intentionally hidden reports about the site’s environmental conditions.
Changes to the City’s zoning application made last year require developers to attach any environmental reports completed for a site and that they be publicly available. In this case, reports prepared during an eight-year period that raised questions about risks from the site’s former use as a gas station remained out of the hands of the public.
“If [the developer] followed procedures and did everything they were supposed to, one wouldn’t question them,” said neighbor Nancy Iappini, who has been fighting the project since it first was proposed in 2002. “That’s not what we experienced with this project, and for whatever reason the City won’t enforce its own rules. We’re sitting around constantly wondering if we’re being lied to.”
Even after the reports were finally delivered to the City, months after the application was initially filed, residents remain concerned about what they contain. The Licensed Site Professional who prepared them was suspended by the state earlier this year for conduct violations such as preparing reports without sufficient data.
Following months of pressure from neighbors, city officials have backtracked and required the developer to begin the zoning process again. Since that point, residents have been barred from participating so far.
‘There’s no other way around it’
Iappini, who sued the city when an earlier permit was extended in 2009, said the missing reports are just the most recent example of the city siding with the developer, the name of which has shifted three times during the past nine years but remained within control of the same people. Roberto Arista is the head of the current company listed on the application, Strategic Capital Group.
The issue of the missing reports stems from requirements the city put into effect last year, after possible contamination became a concern at another development. The Planning Department now requires that any environmental reports prepared for a site be included as a part of the zoning application.
Confronted with questions from both residents and aldermen at a June ZBA hearing, George Proakis, City of Somerville planning director, explained that city officials view such applications as “living documents” that could be added to over time.
As an example, Proakis cited a cover letter to a 2009 report that said there was a “moderate to high” risk of contamination based on the land’s previous use as a gas station. The developer added it to the application the day before the hearing — a move Alderman-at-Large Bill White called “unacceptable.”
At that meeting, Arista said the failure to submit the report earlier was an oversight, and future reports would be included.
“If there is [environmental] contamination that’s found that’s reportable, it will be cleaned up,” said Arista, who has not responded for comment about the issue. “There’s no other way around it.”
A real estate agreement between Arista’s other company, Dakota Partners, and the Dilboy indicates otherwise. Submitted along with a request for a liquor license transfer last year, the agreement states that any environmental reports would not be released to any third party, including city officials, without permission of the Post.
Dilboy Post Commander Bob Hardy, who signed the agreement, said he was unaware of any specific order to keep the reports out of public view.
“I don’t believe there’s anything being hidden,” Hardy said, adding the details of the agreement, since expired, are “between us and the developer.”
“If people think there’s hanky-panky there, there’s nothing I can do about that,” he added.
Before a second ZBA hearing, Proakis asked for a completely new application, meaning the final approval process needed for the development to go forward would start again.
The decision may have in part been because of what Summer Street neighbor Tom Bok found before a meeting at the VFW. When he walked in, he saw an environmental report from 2010 lying on a table.
“Where it crossed the line is when I found out there was another report,” Proakis said of the request for a new application. “I said, ‘I can’t deal with you guys doing this anymore.’”
A bigger issue than ‘oops’
The residents opposed to the project, however, question why the earlier application wasn’t denied altogether, or allowed to be withdrawn with prejudice. Allowing the developer to withdraw with prejudice would keep the project out of the ZBA for one year, while a denial would block it for two years.
“Given the history of uses at this site … the excavation and construction required pursuant to this proposal represents a serious threat to the safety of our families,” Bok said in an email to the ZBA before the second hearing. “The idea that the developer would intentionally withhold these reports long after the appropriate time to disclose them is extremely troubling.”
Bok and other neighbors were barred by board Chairman Herbert Foster from speaking on the withdrawal at the hearing. Ward 6 Alderman Rebekah Gewirtz, however, was allowed to speak.
“That these [environmental reports] weren’t included doesn’t feel to me, and doesn’t seem from the evidence or the facts as just a simple oversight,” Gewirtz said, adding, “I think that this is a bigger issue than ‘Oops, they forgot to include the reports.’”
With the insistence of the developer’s attorney, Richard Di Girolamo, that they did not intentionally neglect to submit the 2010 report that Bok found, and a staff report recommending the move because the disclosure policy remains a work in progress, the ZBA approved the withdrawal.
In a new application filed a week after the second ZBA hearing, the city suddenly gained hundreds of pages of previously undisclosed reports and documentation, completed between 2002 and July 2010. No explanation has been given so far as to why four additional reports hadn’t been submitted earlier.
The nearly six inches of paperwork contained in the seven reports filed leave most of the questions about the conditions of the site unanswered. While the reports note the site acquired gasoline storage tanks in 1931, it is unclear whether their location was taken into account during environmental testing, and testing to explore possible contamination further never took place.
A suspended license
Residents also remain skeptical of what’s in the reports themselves.
The testing was conducted under the supervision of Daniel Jaffe, president of Somerville-based IES Inc. He held a license from the state to perform environmental testing and plan clean-up efforts until it was suspended for 15 months in February.
“In light of the nature of this suspension and the questions it raises about his past conduct, it would be naïve to accept any of his past work at face value,” Bok said.
A statement from the Board of Registration of Hazardous Waste Site Cleanup Professionals said he violated the board’s rules from 2001 through 2006 at sites in Acton, Newton, Lawrence and Watertown.
According to the press release, the board found that Jaffe “failed to collect sufficient data and information from the site to adequately demonstrate the lack of risk” at one site where fuel oil release was a possible issue.
In an email, Jaffe said that rather than fight the suspension, he agreed to waive his right to appeal in exchange for not admitting any wrongdoing.
Jaffe said he plans to resume Licensed Site Professional work when the suspension is over and none of the work he oversaw for the Summer Street site required LSP status to be performed. After neighbors raised the suspension with the Planning Department, it recommended Jaffe’s Summer Street reports be reviewed by an independent consultant, selected by the city and paid for by Arista.
“I am seeking to get to a point where we can review this case based upon the facts and the merits of the project,” Proakis said in an email. “This cannot be done until there is a common understanding of the facts as it relates to the environmental testing done to date and the appropriate strategy going forward to address environmental impacts of the project.”
The consultant, however, would not conduct new testing, and recommendations would be left to Arista to implement. Bok said those limitations do more to raise suspicions than assuage neighbors.
“The community just doesn’t trust this developer to do the right thing on environmental issues,” he said. “There are just too many red flags.”
George O’Shea, Iappini’s husband, said because the state Department of Environmental Protection is the only agency that can act on contamination issues, the city shouldn’t be focusing on vetting the IES reports.
“What seems crazy is reviewing documents from a guy whose license got suspended,” O’Shea said. “What [the city] needs is all new digging and all new research. Proakis is only prolonging our ignorance of what really could be there. I wouldn’t trust anything that [Arista] submitted.”
Ultimately, Iappini said, the residents’ faith in the city to act in their interests instead of the developer’s is gone.
“We’re on our eleventh city planner [for this development],” Iappini said. “They know nothing about this project, and they’re not interested. This should be a healthy, collaborative effort, but that’s not what’s happening.”
That dynamic was on display at the August 4 ZBA hearing, where the city’s decision to hire a consultant to review the environmental reports was not up for discussion.
The hearing — initially advertised in a mailing to abutters as a chance for people to weigh in on the new application — was essentially shut down despite the ZBA’s vote to approve fronting $4,000 for the consultant.
Bok and about a dozen others neighbors attended the hearing hoping to have a chance to speak on the issue. Proakis demurred, saying, “It’s important to me that we select the consultant without interference from either side.”
“I don’t understand why they’re not letting the public have their say,” Gewirtz said after the meeting.
For his part, Bok said the neighbors are only looking to have a voice in the decisions the city makes about the project, and that Proakis’s assertion that the city is a neutral party is “laughable” considering how it’s handled the proposed project so far.
“The only people acting independently right now are the neighbors,” Bok said. “The city is doing whatever it can to push this project forward. They’ve been participating in the sales pitch from Day One.”
While the next hearing on the project was scheduled for tonight at City Hall, it is expected to be delayed until August 24.