Fight on 40 Warren Goes to Legal Dept., Tatte CEO Resigns

The Zoning Board of Appeals (ZBA) has sent an appeal of the restaurant permit for recently-opened Tatte Bakery + Café in the Warren Street office building to the Law Department for further review.

Abutter Ken Flynn appealed the decision of the Inspectional Services Department (ISD) for issuing a building permit for Tatte to build out its restaurant – an appeal that was delayed by COVID-19 shutdowns while the construction of Tatte motored on towards its July opening.

On July 21, the ZBA took up the appeal by Flynn, who was represented by Attorney Nina Pickering-Cook. The gist of his appeal is that Urban Renewal is butting up against zoning. Typically, the Urban Renewal Plan (URP) supersedes any zoning laws, and Flynn argues that a restaurant is not defined as a retail use in Urban Renewal. A few years ago, after a long fight over the property, Flynn agreed to a retail use as defined by Urban Renewal, but never envisioned that meant a restaurant – which he opposes.

“ISD says a restaurant use there is by right and we believe that is wrong,” said Cook. “First the Urban Renewal Plan that governs this property wasn’t property amended to include retail. In 2017, it was amended to include retail and listed as a minor change when it should have been a major modification. The second issue is that retail use of 40 Warren Street did not allow restaurant use. Retail is different from restaurant use in Urban Renewal.”

Cook said they were waiting for the building permit to be granted, which triggered their ability to appeal the decision by the ZBA that approved Tatte’s operations. However, due to COVID-19, the hearing on their appeal was delayed until July, which allowed Tatte to proceed with construction and to open on July 1.

She said they are asking that Tatte cease operations and have a community conversation about the use before moving forward any further. A contentious community meeting last fall on Tatte opening saw about a 50-50 split of neighbors for and against the proposal.

Joanna Schneider, representing Tatte, said the matter didn’t even belong before the ZBA. She said it belonged before the Boston Planning and Development Agency (BPDA), and appeals of Urban Renewal decisions are not allowed. Therefore, she said, it was a moot point.

“The BPDA spoke about defining retail to encompass restaurant uses,” she said. “This is important because the URP gives the BPDA the allowance to interpret the uses of that plan. It’s up to the BPDA and that’s what they did hear. There’s no question it was a minor modification and the BPDA did follow that process.”

ZBA Chair Christine Araujo did not reject Flynn’s appeal, but did agree to send it to the Law Department for a deep dive into the merits of the appeal. She asked that the Law Department look into whether the process was followed for the URP in this case. Second, she asked that they determine whether retail encompasses a restaurant and a take-out restaurant in this URP.

The Tatte enterprise took another hit late last week when charismatic founder and CEO Tzurit Or announced she would step down as CEO amidst calls from employees and former employees of discriminatory practices within the business. Or, in an interview with the Boston Globe, denied many of the claims put forth in a letter by employees and former employees, but said the company had some work to do on equity and it needed someone to handle day-to-day operations as it grows.

One of the major investors in the Tatte local chain is the founder of Panera Bread, who has been a mentor and helper to Or as the company has grown from her kitchen to 17 stores in Boston.

It was uncertain how her departure would affect the appeal of Flynn to the City, but it certainly brings a new wrinkle into the case.

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