ZBA approves Stonebrook 55+ development, deferring most detail to Planning Board

by beth on August 30, 2013

The Zoning Board of Appeals, lawyers, and residents argued on Wednesday about ZBA’s authority to make a decision over permitting a private company to build a 55+ development. Zoning bylaws were alternately described as “clear” and “clear as mud”.

The development in the midst of the dispute was Capital Group Properties’ Stonebrook property.

In the end, ZBA members approved the Stonebrook development plans with caveats.

Behind the scenes, residents alleged that the developer sought ZBA approval because it is easier to obtain than a major residential development permit.

However, Capital Group Properties originally tried to bypass the ZBA. It was the Planning Board and town counsel that directed them to the ZBA for a decision.

At their June 3rd meeting, the Planning Board asked Catanzaro if the development would be seeking ZBA approval. He responded that he wasn’t sure a special permit was required. Catanzaro cited zoning language that seemed to indicate only non-profit or public housing groups were required permitting by the ZBA.

The Planning Board interpreted the language differently, citing past senior developments’ ZBA permits. Catanzaro referred to the language as “clear as mud” (a sentiment he repeated this Wednesday night).

Both Planning Board members and Catanzarno resolved to investigate the issue further. The Planning Board’s main concern was that the ZBA address any concerns at the beginning of the process, to avoid a disconnect between the boards.

In the interim, town counsel Aldo Cipriano weighed in with written advice that the ZBA was the right committee to decide on the permit. He argued that the context of the bylaw adoption, its past use, and the expert knowledge of committee members about the intent of the bylaws are important factors in interpreting the language.

On Wednesday night, Leo Bartolini, ZBA Chair, shared his knowledge (from personal involvement) that the intent of the bylaw was to bring all senior developments to the ZBA. This was to allow a smoother development process for senior housing. The desire was based on the need for alternative housing options for aging Southborough residents.

Attorney Barry A. Bachrach argued on behalf of abutters that the language clearly states otherwise.  He stated that intent doesn’t matter, the exact wording does.

In a reversed position from the June meeting, Catanzarno claimed that the language refers to the owners of the end housing, not the developers. He argued that though the language is unclear, the ZBA is the permitting authority.

ZBA members decided that it was not their place to question the advice of the town attorney.

The project still needs to face the Planning Board to resolve details. ZBA’s approval stipulated that the developer adhere to original conditions agreed upon during the 40B process, though granting Planning Board authority to make adjustments. They also requested the Planning Board to double check if the development’s private road should be subtracted from the calculation for the number of units allowable.

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