On Wednesday, Park Central developer Bill Depietri’s attorney filed another motion for sanctions against Planning Board members. He is requesting over $11K to recoup legal expenses incurred based on an case filed by the board
Central to the battle has been the Planning Board’s lack of legal counsel. Selectmen have consistently denied the elected board’s requests for independent counsel, despite citizen petitions asking them to allow it.
Selectmen have said they wanted to avoid internal legal battles between boards. In the past, they said that they would review the need again if the situation calls for it.
The posted agenda for this Tuesday’s Board of Selectmen meeting doesn’t include it as an agenda item. But it does include a planned Closed Executive Session to discuss pending litigation.
[Editor’s Note: Originally I posted that there was no information as to whether litigation was this item or another. What I had missed was that the Planning Board posted an agenda yesterday afternoon for a meeting in the same time and place as Selectmen. That agenda lists discussion of “Status of Legal Sanctions pertaining to Park Central”. It also shows the board entering closed Executive Session related to litigation.]
In January, a similar motion by Depeitri was dismissed as not timely filed. Last month, Planning member Meme Luttrell said she believed he was told he could file again against the board, but not individual members. Based on the new filing, his his attorney didn’t have the same takeaway.
The papers filed in Worcester Superior Court seek sanctions against all five Planning Board members “individually and as members of the Southborough Planning Board (“Plaintiff”), jointly and severally.
The motion calls the board’s appeal filing:
a knowing, intentional, and malicious act designed to interfere with the right of William Depietri and to unlawfully challenge the authority of the Zoning Board of Appeals.
The motion cites the board’s appeal filing despite Selectmen’s denial of legal counsel to consider the case as “defiance”.
In January, Town Counsel Aldo Cipriano testified on behalf of the Planning Board that their actions weren’t malicious. However, he was unable to represent them. Luttrell hired her own counsel and other members went unrepresented.
The motion implies that the board members acted knowingly with internal counsel:
Member Philip A. Jenks is an attorney at law licensed in the Commonwealth of Massachusetts and represented, assisted, guided and joined wiht all Plaintif Members of the Planning Board in detemining to commence this action. Jenks signed the Notice of Dismissal that was filed in this Court.
In past Planning Board meetings, Jenks warned fellow members and the public he didn’t have legal expertise related to their situation. He indicated they shouldn’t consider his opinions to be legal advice.
The night of the filing, Attorney Angelo Catanzaro and his client Depietri were scheduled to argue two Park Central appeals in front of the ZBA. Instead, the hearings were postponed to April at their request. (That request made well in advance and noted on the agenda. I just failed to notice the note on the agenda when I posted meetings of the week on Monday!)
One was an appeal against the Planning Boards’ rejection of the Park Central Site Plan. That hearing was continued from January. The second appeal was filed more recently against Building Commissioner Mark Robidoux. The agenda posts the appeal is against the the Building Inspector for:
failure to issue a decision. . . affirmatively concluding that the site plan was constructively approved and has resulted in actual harm to the applicant, an aggrieved party
At Wednesday’s meeting, ZBA Chair Andrew Dennington clarified that the developer had requested Robidoux write a letter declaring that the site plan was constructively approved. Both appeals are rooted in the Planning Board not issuing a written decision in a certain timeframe.
The hearings were continued to April 12 at 7:00 and 7:05 pm.
Updated (2/17/16 2:38 pm): The Planning Board has posted that it will discuss the status of sanctions on Tuesday night. The board appears to be part of Selectmen’s closed Executive Session related to pending litigation.