Waltham High School Project Lawsuit Halts MSBA Funding

WALTHAM, MA — A group of abutters to the new high school project under construction filed a lawsuit in the Middlesex Superior Court in December accusing the Waltham Zoning Board of Appeals of improperly approving zoning variances and the city of violating private property rights.

The lawsuit has prompted the Massachusetts School Building Authority, which was paying some $118 million of the $375 million project, to pause payments.

"In accordance with MSBA policy, and pursuant to section 4.13 of the Project Funding Agreement for the Project... the MSBA is placing reimbursements for the Waltham High School project on hold at this time because of the Pending Litigation," MSBA Executive Director John McCarthy told Mayor Jeannette McCarthy in a letter dated Jan. 14, obtained by Patch.

Maria Puopolo of the MSBA said it's rare that the state has frozen funds until litigation ends, but it has happened from time to time.

Waltham residents Philip Chorman, Lorraine Reilly, Shawn Tully and Amy Nelson, said in the lawsuit that the Zoning Board of Appeals were wrong when they approved six zoning variances in 2020.

"The City's determination to push forward with an ill-conceived site design despite the availability of viable alternatives that would not have compromised the City's educational plan demonstrates that the alleged 'hardships' were not 'owing to circumstances relating to soils, topography,' but were rather self-imposed," reads the lawsuit.

Still, the project is on schedule, according to Waltham Superintendent Brian Regan. Contractors are blasting on site and this stage of the project will continue through at least the end of August, he said.

Mayor Jeannette McCarthy said in an email that the city has no comment on pending litigation. Patch also reached out to the city solicitor and the chair of the ZBA.

Dan Hill, the attorney for the Waltham neighbors bringing the case said the board and city overstepped.

"What’s unique about it is there really hasn’t been a case like this in Massachusetts," Hill said in a phone interview. "This is probably the most expensive high school in state history. The size and scale of these buildings is unprecedented, and the city’s desire to place everything so close to these residential abutters is the reason we’re fighting this."

Hill said there were feasible alternatives to the building plan, including a different placement of structures on this site.

"There was definitely a site design that would have been a lot more fair to the neighbors and that’s why our neighbors are fighting," Hill said.

Hill said in particular the location of the buildings and the parking lot and the athletic field were not carefully thought through and posed a "significant and undue burden" for the neighbors on the southern portion of the property.

The zoning bylaw says that recreational structures should be set back 350 feet from residential properties, but also newly created backstops by the state say structures should be 500 feet from residential properties.

The sports field planned for the high school is set back 62 feet from the closest residential property.

When the board made its decision to grant a variance to allow that, it was looking at it from the point of view that it was creating a variance for the 350 feet rule, when it should have been looking at it from a 500-foot rule, Hill said.

"The board was not using the correct assumptions as to what the requirement was," he said.

The other issue is the use by the city of a private road, according to the lawsuit.

The neighbors own the Lincoln Street extension road. In 1984, the city got easement permission to use the road to install water and sewer for the houses on that road. But, according to the complaint the city did not have permission to use that road to install services to the school property or to use it as a roadway or even emergency access to the school.

"Nothing in the 1984 easement that says it will provide to the land at the end of the road, nothing says it’s there to serve that property. And it’s very clear that the easement is not for road use," Hill said.

Hill said the case is headed for trial in June 2021.

For years, the superintendent's office has been beating the drum about a need for an upgrade to the high school in order to accommodate increased enrollment and fix deteriorating building conditions. After contentious back and forth about the ideal location, which included conversation about just renovating on the current high school land, the city eventually agreed to the controversial decision to acquire the property of the Stigmatines, a religious order close to the current high school.

In order to take the property by eminent domain the city had to prove to the state there were no other viable options in the city to build the school.

Crews broke ground on the site in September 2020. Since January crews have been blasting away rock to make way for the school, prompting concern from neighbors that the explosions may damage their homes.

Jenna Fisher is a news reporter for Patch. Got a tip? She can be reached at Jenna.Fisher@patch.com or by calling 617-942-0474. Follow her on Twitter and Instagram (@ReporterJenna). Have a something you'd like posted on the Patch? Here's how.