Park Central developer re-files for sanctions against Planning Board members (Updated)

by beth on February 17, 2017

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

The legal battle dates back to the Planning Board’s September filing of a court appeal, subsequently dropped, against the developer and Zoning Board of Appeals.

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.

{ 9 comments… read them below or add one }

1 Marnie Hoolahan February 17, 2017 at 7:03 PM

The residents circulated two petitions (one with well over 300 signatures) to appeal to our Board of Selectmen to help the Planning Board acquire independent counsel. They continued to deny the Planning Board counsel. The three voting members Brian Shea, Dan Kolenda and Paul Cimino were the sitting members to vote to support independent counsel. Paul CImino was in favor of allowing the Planning Board counsel but Brian Shea and Dan Kolenda continued to believe that Aldo Cipriano could advise Planning Board on a matter that he was defending the ZBA. Bottom line, our Planning Board is doing what the town should expect of them- namely uphold site plan rules and regulations. Now the proponent, William DiPietri and his attorney are using threats and intimidation tactics to scare the Planning Board and impose “sanctions.” Please explain to me how the proponent can file for sanctions AGAIN after the Worcester Superior Court threw out the previous filing for sanctions the first time?

The Planning Board needs independent counsel, this falls back to negligence on our Board of Selectmen (specifically Brian Shea and Dan Kolenda)- your job is to allow for the Planning Board to acquire independent counsel. Aldo Cipriano is conflicted and should not be allowed to represent “the Town” when it is very clear which Board in “the Town” he is defending. This is a conflict of interest and it undermines any justified balance in our judicial process.

Obviously two petitions (with a combined >500 signatures) that demand independent counsel meant nothing, obviously the word of the people has been minimized and ignored. This most recent action by the Park Central Proponent and his attorney is disgusting! Really are these the people the town wants to develop with???? Really?

Reply

2 mark dassoni February 21, 2017 at 9:55 AM

Sanctions is effort to bide by ZBA to bulldoze planning board ,selectmen and counsel are way too timid to fight back conflict of interest is only a excuse and bad one at that ,Mark Dassoni

Reply

3 Donna McDaniel February 19, 2017 at 9:21 PM

Thanks for the explanations of a difficult situation re Pl Bd., etc., (and then some….); not easy, I know. Too bad it’s at same time as pre-TM days since a lot for people to take in and for those who are just now paying attention to this long-running situation to determine if there’s anything any of us can or should do.
Only thing I can think of is pay attention and notice who’s up for election this year (I haven’t looked that up yet)… At the very least any candidate should be able to explain it to the rest of us… But then maybe the case could be settled before the May Town Election.
From a historical perspective… in my 40-some years of being involved in matters of our governing ourselves, I don’t recall any law suits between boards or individuals or even any serious squabbles in public. Not to say it’s good or bad but just some perspective. And time to pay attention!

Reply

4 Resident February 20, 2017 at 8:00 AM

I feel highly disappointed in our BOS over many issues. From Park Central to Main Street to the Mooney lights to the Golf Course. Our BOS seems to disregard the voice of the people and just push their issues through by strong arming us all. We need to continue to speak up loud and clear that this BOS is not working for us the way they should. Rooney and Kolenda are up for re election in May. They won’t get my vote.

Reply

5 beth February 20, 2017 at 8:11 AM

You are incorrect on one point. John Rooney isn’t up for re-election, though Selectman Dan Kolenda is. Rooney’s term ends in May 2019.

Paul Cimino is the other selectman up for re-election this May. But given the topic of the post and other comments – I should point out that Cimino (a former Planning Board member) consistently voted that the Planning Board should be able to decide for itself whether or not to hire counsel. (He didn’t say he agreed that they should. Just that as an elected board, he believed they should have the authority to make the decision.)

Cimino was outvoted by Kolenda and Chair Brian Shea.

(Rooney and Selectwoman Bonnie Phaneuf were conflicted out from the discussions and votes.)

Reply

6 Southern Breeze February 21, 2017 at 2:53 PM

Pretty sure that the BOS have not been involved with the Mooney Lights project. The ZBA and Recreation Department own that issue as far as I can tell.

Reply

7 beth February 21, 2017 at 3:20 PM

As a board they haven’t. But as individuals at least two have.

The first ZBA meeting on Mooney Lights wasn’t recorded and I didn’t attend. Apparently, both Bonnie Phaneuf and Dan Kolenda spoke.

At the second meeting, Phaneuf clarified that she had spoken as a resident, not selectman. She didn’t argue for either side. Instead, she raised specific concerns she believed should be addressed if ZBA looked to approve. (For instance – she thought there should be written confirmation from the air ambulances that use the field for emergencies on that side of town that the lights wouldn’t prevent them landing and taking off.)

Kolenda didn’t attend that meeting. That night, the ZBA said that several letters were submitted in support, including one from Kolenda. They referred to him as selectman and didn’t read the letter into record. So I don’t know if he weighed in from perspective of selectman or just as a resident.

Reply

8 Resident February 20, 2017 at 8:40 AM

Thanks for making that correction for me. I have a screenshot of the BOS and their dates for re-election but switched Rooney with Cimino. My apologies.

Reply

9 mark dassoni February 21, 2017 at 9:47 AM

First of all planning board is being pushed around too many times, on Feb.21 legal discussion is long over due is town getting counsel not likely , selectmen are playing blind mans bluff through this for years, saying that planning board is interfering with ZBA is totally farce , To the Flagg ,Deerfield , and Clifford roads citizens keep on fighting ,I live in Ashland but my mind set is there for all involved, Mark Dassoni

Reply

Leave a Comment

Previous post:

Next post: