Update on Park Central court trial

by beth on February 25, 2021

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Above: An appeal of the ZBA’s Park Central decision continues to be held over zoom. (image right by Chris Potter from wikimedia)

The “jury-waived trial” against Southborough’s Zoning Board of Appeals and the Park Central developer resumed this morning. The case is an appeal of a decision to allow a 180 unit condominium 40B development be built off of Flagg Road. (The project is also linked with a Townhouse development approved for the site.)

Proceedings today (and future scheduled days) will continue to use the same zoom link I initially shared.

At the end of February 18th’s proceedings, attorneys discussed scheduling with the Worcester Superior Court judge. Plaintiffs’ attorneys planned to question more of their clients today and a traffic engineer (Kenneth Cram). The trial resumed today, February 25th at 9:00 am. A break is now scheduled for 10:00 am due to the court’s schedule conflict.

Plaintiffs’ testimony will continue along with one other witness on March 9th.

Attorneys agreed that Town witnesses (officials and former officials) won’t be called on until the week of March 22nd. 

So far, a lot of the trial has focused on whether or not the Zoning Board of Appeals took seriously potential dangers of increasing the number of drivers using Flagg Road. Defendants have argued that a commissioned traffic study indicated there wasn’t an issue. That report projected that most drivers would turn right out of the development towards Route 9.

Many vocal area residents have argued that drivers coming from the Park Central project would find accessing Route 9 from Flagg Road problematic. They would ultimately turn left to find alternate routes. One of those potential routes would be down Lover’s Lane. Some argued that another study, including looking at Lover’s Lane, was warranted.

On the 18th, two plaintiffs testified: Benjamin Keyes of L’Abri Fellowship and Linda Perkins of Tara Road.

Keyes asserted that he is in favor of Affordable Housing projects and his objection to the development wasn’t a Not in My Backyard reaction. He noted that he wouldn’t be able to afford to live in town if he wasn’t provided housing by his employer. He clarified that he finds the project problematic due to it’s size and access points. He opined that it would add a dangerous level of traffic to back roads. He assured that he would have objected to the project even if it was across town from him.

Perkins testified about her concerns over traffic. She answered questions about her experiences navigating area roads with other drivers given visibility issues.

Keyes’ testimony also gave a hint where future questions of one former Town official may be directed.

He took photos at the construction site for “Maynard Crossing” (begun in 2018). The photos indicated the project was being developed by the same developer, Capital Group Properties. Multiple Eagle Leasing trailers were shown on site.

The ZBA decision was completed late the night prior to member David Eagle signing papers to sell his Southborough residence in 2016. Eagle was one of the three remaining ZBA members who ruled on the application. Eagle is a Vice President of Eagle Leasing. (In a 2013 Metrowest Daily News article, he was described as a co-owner of the family owned business.)

In opening arguments and reinforced through questioning, defendants’ attorneys have taken the position that the matter was heard by the ZBA for a longer period of time than usual and no further review or information was necessary before making a decision.

Updated (2/25/21 9:30 am): Added detail to clarify that the Maynard Crossing development was after the Park Central decision was made.

{ 3 comments… read them below or add one }

1 Cat 'n Zero February 26, 2021 at 7:07 AM

This is what ZOOM has been like:
https://youtu.be/lGOofzZOyl8

Not easy, has numerous technical difficulties, and often just shuts down and stops recording, halting the proceedings. Catching every third word during key testimony. At times, does not allow attendees in. Yesterday, the court recording system simply shut down during key testimony again.

Talk about confusion in the courtroom. Town Counsel first tells the judge that he is representing all town officials including Conservation Commission Chair, Planning Board Chair, plus the ZBA. Then he tells the judge that special counsel is involved, Talerman, with some town officials but never explains to the judge how he is involved. Con Comm had its own attorney, Rebecca Lacey (now nowhere to be found), due to Town Counsel stating that he had a conflict of interest, since he was representing ZBA. Planning Board went without any counsel at all during critical hearings for the same conflict of interest reason. The cherry on top is the developer’s attorney drafting and submitting affidavits for the then ZBA Chair Leo Bartolini and ZBA Member Andrew Dennington, town officials.

If you will recall, Talerman was the attorney who went behind the town voters back to the Attorney General’s Office with Town Counsel to try to “doom” Article 1, the ZBA quorum requirement, that went missing but was overwhelmingly voted back in by the Town. Article 1 restored the board to its always quorum of four as an anti-corruption measure. In spite of the efforts to tank it, it was approved by the Attorney General and is now current bylaw restored.
Talk about confusing. Taxpayer dollars are paying for this bullshit.

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2 beth February 26, 2021 at 8:01 AM

Yesterday, Town Counsel told the Judge that Special Counsel Jay Talerman will represent Planning Board members. He also clarified in response to representation issues for Leo Bartolini that he is representing ZBA members related to their capacity as members at the time of the decision, and the “four corners of the decision” (and implications or something along those lines). He isn’t representing the members’ current day personal interests. It appears that there are legal arguments being made by a personal attorney for Bartolini about his ability/requirement to testify in the trial.

I can’t speak to the veracity of “the developer’s attorney drafting and submitting affidavits for the then ZBA Chair Leo Bartolini and ZBA Member Andrew Dennington, town officials.” I haven’t been able to watch all of the testimony and I don’t have access to all of the documents. So I don’t know if that is public record or a claim being made about something behind the scenes.

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3 Cat 'n Zero February 26, 2021 at 10:20 AM

Thanks for additional info. However, Town Counsel specifically said at least twice to the Judge to that he “represents all government officials” and represents “all town officials.”

Your information speaks to Planning Board right now. However, Planning Board went without any benefit of having an attorney for years, throughout the entire process. Town Counsel stated he had a conflict of interest due to representing the ZBA. So now it’s Talerman? That is the attorney that tried to tank Article 1, the forever ZBA quorum requirement of four to hold a meeting, against the overwhelming town vote to reaffirm and restore the bylaw. The bylaw was successfully restored in spite and is now the law.

So what about Conservation Commission? Who is representing Conservation Commission? Is that Rebecca Lacey? Or does the public go off of what Town Counsel told the judge, that he “represents all town officials?” Who exactly is town counsel representing? He said at least twice “all town officials.” Again, who is representing Conservation Commission? Is there any other town official not represented by Town Counsel? Thanks

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