ZBA on Park Central appeal: Approval denied, Planning ruling reversed, Site Plan Review goes back to Planning

by beth on May 19, 2017

This week, the Zoning Board of Appeals ruled on appeals by the Park Central developer. The board rejected the developer’s claim that the project was “constructively approved”. But they also ruled against the Planning Board by reversing its decision.

That doesn’t mean that the Planning Board is required to approve the Site Plan. The developer is expected to return to the board with updated plans down the road.

Attorney Angelo Catanzaro had argued that Town bylaws dictated that the Site Plan was technically approved. But ZBA members opined the project was too big to allow approval based on vague technicalities. The board ruled 4-1 against the approval. (The minority was Paul Drepanos, the only sitting member who sat on the ZBA’s approval of the 40B permit.)

Last fall, the Planning Board rejected the developer’s site plan. That was partially based on the developer’s ongoing issues with the Conservation Commission. The board said there were too many uncertainties about the plan. 

Planning members wanted more information and more time to review plans just submitted that they believed would be changing. Capital Group Properties’ Bill Depietri claimed the board was dragging its feet. He refused to extend the decision deadline and walked out of the hearing.

The board voted to reject the plan rather than having it be constructively approved. Although the decision was verbally given to Depietri’s attorney that night, it was some time before the decision was written up. Catanzaro claimed it exceeded bylaw language on the timing for a decision in writing.

The board dismissed that notion quickly into last night’s continued hearing. But the appeal continued for more than an hour while the board heard from the public and debated what their other actions should be. 

In the January hearing, some board members, including Chair Andrew Dennington, opined that Planning was wrong to have rejected the Site Plan. They argued that Planning had plenty of time to review plans and make a decision.

This week, the board learned more about the ongoing issues with Conservation Commission. Planning Chair Don Morris argued that Planning knew that according to another Town board, the plan was “unbuildable”. Based on that, they couldn’t have approved it.

This month, the Conservation Commission ultimately denied the plans when the developer said he was at an impasse with them over purported wetlands and stormwater violations. Depietri plans to appeal ConComm’s ruling to MassDEP.

ZBA members spent much of Wednesday night wavering on how to remand the plan back to Planning. They accepted that the plans were still going through long appeals and likely to change. 

Town Counsel Aldo Cipriano told the board, with that knowledge, they could uphold Planning’s decision.

Prior to the decision, Morris pointed out that the outcome would be the same whether they upheld or reversed the decision. If their decision was upheld, the developer would still be able to resubmit plans.

Dennington urged fellow members that remanding the plan with instructions would send a clearer message than upholding Planning’s denial.

He didn’t clarify what that message was. But earlier, he stated:

Whatever happens, there’s going to be appeal from somebody. And we’re just trying to narrow the issues so that we don’t have this game of ping pong between this board and that board and that board and it goes on years and years.

Only member Debbie DeMuria disagreed with remanding. She opined it would add more complexity than upholding the ruling.

DeMuria was the replacement for member Leo Bartolini. Bartolini had served on the previous hearing, but was forced by selectmen to recuse himself after a controversial hearing.* DeMuria brought her own controversies to the table last night. (Scroll down for that.)*

The remaining board members voted to “reverse” Planning’s decision with qualifications. The developer is expected to resubmit updated plans 90 days after all appeals are resolved. 

One issue that came up in discussions wasn’t clarified by the ZBA. They didn’t specify whether Planning would do a full or just “residual” site plan review. Questions about it were raised.

Cipriano repeatedly asserted that Planning had the authority to do the full review. The residual language he advised the ZBA to include wasn’t meant to curtail their authority. That is something he said he would argue in any court.

Following the appeal decision, the board unanimously rejected asecond appeal by the developer. That filing was based on the Building Inspector refusing to write a letter opining that the project was constructively approved. It was considered without merit, since the board didn’t agree the project was approved.

Dennington shared his perception that people are misusing the Building Inspector. He claimed people have been calling on the Building Inspector write decisions on complicated legal issues just so they can file appeals based on whatever action he does or doesn’t take.

*Catanzaro tried to have DeMuria recused from hearings based on her signing of a petition asking for Bartolini’s removal from the board. She was also behind a Citizen’s Petition Warrant Article to gate Flagg Road if Park Central is developed.

Town Counsel Aldo Cipriano and DeMuria stood before selectmen a few weeks ago on the issue. DeMuria consulted with state ethics and was cleared as not being in conflict. Cipriano defended her. Selectmen were wary due to appearances. In the end, they voted to leave the decision in the hand of ZBA Chair Andrew Dennington. 

On Wednesday night, Dennington clarified that he wanted her in part because of her commitment to remain on the board for the next two years. He forecast the project would be back in front of the ZBA again.

Later that night, the topic came up again. Dennington asked who commenting Attorney Gary S. Brackett was representing for his public comments. Brackett again claimed to represent everyone who signed the petition. Dennington questioned that. And Catanzaro pointed out that includes DeMuria.

DeMuria had previously told selectmen that she doesn’t consider Brackett to represent her. This week she said that had been addressed and she wouldn’t revisit it. The matter was dropped when Dennington acknowledged that though he didn’t know who contracted Brackett, he presumably represented at least one resident.

{ 1 comment… read it below or add one }

1 Todd May 21, 2017 at 11:35 AM

Overall this appears to be a positive step for those of us trying desperately to keep our community safe and prevent the development. I’m interesed in other’s feedback regarding what we can continue to do as a community to stop the project.

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