Town Counsel update to BOS: Park Central, issues at former Stonybrook range, and more

by beth on April 5, 2019

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This week, the Board of Selectmen brought in Town Counsel to update them publicly on work he is doing for the Town. There were a number of topics that should interest different readers. So, I’m sharing his news below.

Following the update, Chair Lisa Braccio thanked him for the update, noting selectmen often get questions about what’s happening.

Selectwoman Bonnie Phaneuf suggested the board be updated monthly going forward. Members and Town Counsel Aldo Cipriano agreed. Though, the attorney qualified that some updates may be more appropriate for closed executive sessions.

[Editor’s Note: It’s worth mentioning a recently defeated Citizen’s Petition Article on Town Counsel that wasn’t mentioned that night. Article 33 included monthly updates to the board as one of Counsel’s responsiblities.]

Along with counsel’s updates, I’ve provided more context and background details. Because Park Central is the most complicated – that update is the longest. So, I’m covering his other items first. (If the development the only update you care about, scroll down to the bottom.)

70 Valley Road – former Stony Brook Golf Course

The owner of the 16.5 acre parcel with a deed restriction purchased it in 2016 for $600K, with public intent to turn it into an organic farm. Last September, it was put back on the market at double the price. The description acknowledged a deed restriction but pictures and photos indicate it was being used as a residence (although with many raised bed gardens).

This week, Cipriano told the board that a request for tax exemption was denied by the Board of Assessors under his guidance. He said that another application was submitted for different use, but assessors still don’t think it qualifies.

Meanwhile, the property has come under the microscope of the state Department of Conservation and Recreation which holds the restriction. Cipriano shared DCR’s finding that the existing septic system is prohibited, the outbuildings can’t be occupied as residences (and there is some evidence that they are), and most of what they are trying to do isn’t allowed.

Notably, back in 2010, the previous owner lobbied to remove DCR’s restrictions. He tried, unsuccessfully, to get support for building a 16 home subdivision on the lot.

Misc. projects

Delinquent Taxes
Several years ago, the Director of Finance sent Cipriano a “battery of cases” to collect delinquent real estate taxes. He said they collected a significant amount and things had “pretty much been in order” since. But a new group came in. He said that there are a variety of reasons people can’t/don’t pay. But it’s only fair to the residents who do pay that everyone does.

They recently collected about $150K in outstanding taxes. But there’s still a “significant amount” to collect.

Conservation Restrictions
Cipriano said the CRs take time but are moving forward. The Conservation Commissioner is currently the lead on the Halloran property. And the state is currently reviewing revisions to the CR for the Southborough Golf Club (aka St. Mark’s Golf Course) based on comments by the management company.

Fayville Hall sale
The property is under agreement. But the purchaser asked for an extension before the final sale, which was granted.

Park Central

For those of you unfamiliar, Park Central is a proposed 319 unit development made up of two projects – Townhouses under a zoning Use Variance and Condos under a 40B special permit. The controversial project sparked several suits and appeals. Some have been dismissed/closed. But five are still in process through three courts.

Cipriano represents the Town as a defendant in each case. But in some instances, the he is arguing alongside the developer’s attorneys and in others in opposition to them.

I had been occasionally checking in on the courts’ posted notes on the cases. But they don’t always make things clear. This week’s update helped clarify/confirm enough details to give readers an overdue update. 

Residents vs ZBA and the developer
Both of these appear to focus on the Use Variance.

Superior Court (1685CV01359)
This case contesting the ZBA’s approval of the Use Variance was filed in September 2016 by a group of 20 residents (some abutters, but not all) plus the L’Abri Fellowship. They claimed that the ZBA failed to comply with requirements and exceeded it’s authority. You can read more details about their grievances here.

According to Cipriano, a new judge had all parties in to make arguments over the course of two sessions this past January and February. They are waiting for him to make a decision. (No date is given for that.)

Superior Court (1685CV01827) and Appeals Court (2018-P-1314)
The Superior Court case was filed by three residents in December 2016. It appears it was to overturn a Zoning Board of Appeals ruling that fall.

Karen Hanlon Shimkus had asked the Building Commissioner to rule that since construction didn’t start within a year of the granted variance, the approval had expired. Instead, he determined that the developer had up to a year after the linked 40B development’s special permit was approved and its appeal period expired.

Hanlon Shimkus filed an appeal with the ZBA. At the time, developer William Depietri’s attorney argued that the resident had no standing to appeal. As I wrote then:

He said she would have to prove “real and measurable harm” from the Building Inspector’s decision. He argued that her home, a 1/2 mile by car from the project, is not proven to be impacted enough by increased traffic to meet that criteria.

Although the ZBA ruled in support of the Commissioner’s decision, they did support the resident’s standing to appeal. From this week’s update, it sounds like the Superior Court judge disagreed on the latter. Cipriano referred to a “dispositive motion” against the plaintiffs related to “standing and aggrieved party status”.

The court’s notes show that ruling last June and the court supported a cross motion, to make plaintiff Jonathan Green responsible for statutory costs. (It looks like the other two plaintiffs agreed to drop the case against the ZBA along the way. But I don’t know the details on that.)

Green is currently appealing the decision. The original case will remain open until the appeal is resolved. Cipriano said that all attorneys have filed their papers, but he doesn’t know when the Appeals Court will hear the case.

Park Central vs the Town
vs ZBA in Land Court (17 MISC 000343) and vs Conservation Commission in Superior Court (1785CV01229)

The two above cases are intertwined, so my background and updates are combined.

In September 2016, the Planning Board told developer William Depietri that they couldn’t approve the Site Plan without more details. Part of what they wanted was plans approved by the Conservation Commission. Depietri  was still in process of working through what was needed with that commission. The developer refused to agree to a continuance and stormed out. The Planning Board said that if they couldn’t approve as is. Without the developer’s approval to move the deadline they could reject it or see it become constructively approved. So, they rejected it.

Depietri appealed the case to the ZBA at a May 2017 hearing. The ZBA rejected claims by the developer that due to slow paperwork by Planning the plan was constructively approved. But they also ruled that the Planning Board shouldn’t have rejected the Site Plan. And yet, when remanding the approval back to Planning, they essentially agreed with the board by telling the developer to get Conservation Commission approval before returning to Planning.

Weeks later, the Conservation Commission denied the developers project after he agreed to make changes that they required. In June 2017, the developer appealed that decision to MassDEP (Mass Dept of Environmental Protection). They also filed appeals in court against the ZBA and the Conservation Commission for the above rulings.

Important developments appear to come out of the developer’s communications with MassDEP. (Though, I can’t find that a final decision has been posted.)

In July 2018, the plaintiff’s lawyer notified the judge on the ZBA case that he was filing modified plans with MassDEP. Cipriano told selectmen that “in a significant sense” the DEP sided with the Conservation Commission by requiring the developer to provide more detail to the commission. As of March, the developer intended to submit modified plans to the commission in coming weeks.

A phone conference for a ZBA case update with the judge is planned for May 7th. Cipriano described the case against Conservation as dormant, waiting for outcomes in other cases.

As of today, Conservation has yet to post an agenda for discussions or hearings on Park Central. (If I see something, I promise to post something. But, to be sure you get a timely update, you may want to sign up to get the commission’s agendas through the Town’s e-alerts here.)

You can view Cipriano’s update in its entirety via Southborough Access Media’s video here. (Or you can click here for the rebroadcast schedule for Verizon Channel 37 & Charter Channel 192. His update is about 15 minutes into the meeting.)

{ 6 comments… read them below or add one }

1 Taxpayer Alert April 6, 2019 at 12:05 PM

Nowhere in legal history of Massachusetts do you ever find a Town counsel sitting on all sides of a private land dispute, with the taxpayers footing the bill for Town counsel to sit next to and argue in court for a developer.

Also, not only do towns not take sides in most cases, neither do Zoning Board of Appeals. This should be a huge wake up call for the taxpayers to pull the plug on paying for this.

Town counsel’s version is whitewashed. He lost in court twice. Judge Riordan ruled against him twice. This is not reported above. Why is that?

Also, there are other cases going on not included above, including the fact that the ZBA was operating under a four person quorum, until it melted down to three and kept going. After the permit was granted, one of the ZBA members moved out of town the same day of the recording of the comp permit. His house sale closed first. He was no longer a resident of the town when the comp permit was recorded.

Did you notice that the quorum requirement language went missing out of Town Code, was simply deleted, by persons who had no legal authority to delete it?

And never told the public? (Why not tell the public you ask, until well after the fact ? Good question.)

And then proceeded to use a “nullity” argument (an argument benefitting the developer) in court (it was null and void) to which the presiding judge responded that he can count to four?! It was a stellar WTF moment underscoring the crazy bigger picture of the town’s misplaced involvement.

Also, not sure what your source of information is, but it is a jumbled up mix of misstatements.

On the use variance matter, the use variance simply expired as a matter of law (one year from the date of grant) without the developer seeking an extension or renewal. The renewal would have had to have been recorded at the Registry of Deeds. It is not.

Read the law if you are confused.
https://malegislature.gov/Laws/GeneralLaws/PartI/TitleVII/Chapter40A/Section10

It very simply states that it expires after one year. It was not renewed. They did not renew it.

The profound real question is why do the citizens have to be dragged to court to straighten out a mess created by an illegal three person ZBA ? You will recall that the quorum requirement was just overwhelmingly reaffirmed by the voters and approved by the Attorney General’s Office. It is four. And we can all count to four, except some apparently.

The town ignores the safety factor of putting huge amounts of traffic down winding country roads and threatens the safety of all, including children in two school zones. The traffic studies omitted all the feeder roads. Crazy? The reader can be the judge. Gross negligence? The reader can be the judge. Biased? The reader can be the judge.

The taxpayers are being ripped off and it needs to stop. Who is profiting from this conflicted mess? The town has no place being on all sides of a private developer’s land matter.

Reply

2 beth April 6, 2019 at 6:36 PM

Thank you for pointing out that there is another suit. Can you give me more details on who is named in it and what court it is in? It could be one of the cases that showed up as close to which I did not report on. Or it could be that I couldn’t find it in the trial courts database based on my searches. But I really did try to find all of them.

Or, perhaps the quorum aspect is part of one of the cases mentioned above.

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3 arborist April 6, 2019 at 1:25 PM

My hat off to the BOS, I think a monthly report is a step in the right direction, I realize that some issues can not be made public due to their nature until the legal process has proven right from wrong..

Reply

4 wait a minute April 6, 2019 at 4:40 PM

Wasn’t there another major appeal of the ZBA’s approval of Park Central based on the lack of quorum? Did Mr. Cipriano not comment on this?

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5 what he said April 8, 2019 at 8:47 AM

As Taxpayer Alert (above) pointed out concerning the Southborough town counsel:

Cipriano represents the Town as a defendant in each case. But in some instances, the
he is arguing alongside the developer’s attorneys and in others in opposition to them.

Can you say, “Conflict of interest.”?

This attorney *cannot* have it both ways. He should recuse himself from representing either one side or the other in these cases. What about the state Bar Association? What about ethical conduct? If Cipriano doesn’t have the courage or moral fiber to recuse himself, the BOS should ask him to represent one side or the other. If ho opts to represent the developer, then taxpayers should not be paying his fees.

Why are Southborough taxpayers being fleeced to pay for this conflicted representation?

This attorney serves at the pleasure of the town’s BOS. Where is the ‘leadership’ among BOS members that continues to allow this behavior on the part of Cipriano?

If this drama were a movie script, someone or some group of people would be getting rich as a result of these hijinks.

Think about it.

Ask yourself why Cipriano is still being allowed to argue both sides of the issues around this development project. Who in the BOS stands to benefit? Who in the ZBA stands to benefit? Who in Planning stands to benefit?

Something stinks here…

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6 Kevin Krivanec May 24, 2019 at 10:13 AM

I own 164 Main St. I will never sell my land for an access road to go next to 495. Despite that my frontage is the first 150 feet from 495 heading towards Southborough center my driveway is an easement over my neighbors lot so even if I wanted to sell the land I don’t know that it’s possible to cut up the lot that way. No one from the town or the developer or anyone else’s come to talk to me or contacted me in anyway but I would stand with the Labree fellowship in opposing this project.

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