SWL: ZBA denies permit to Park Central 40B under “Safe Harbor”, developer to appeal

Above: Google Map showing the area of the controversial proposed development. The 180 unit condo complex would be built near the existing pond on the site. Road access would route through Bantry Road’s cul de sac. (via Google Maps)

Southborough Wicked Local reports that on Monday night, the Zoning Board of Appeals voted down the permit to build a 40B project at Park Central.

The denial was based on a letter from MassHousing granting Southborough a one-year of “safe harbor”, during which the town can reject 40B projects.

Just two weeks ago, the ZBA told residents to expect months of frequent public hearings on the 40B project proposed at Park Central. Traffic hearings were scheduled to begin April 23rd.

At that meeting a MassHousing consultant for the town advised residents that the permit would be very difficult to deny. He cautioned that a denial would likely be overturned in court. And ZBA members recommended residents reach out to Capital Group Properties’ President, William DePietri to sit down and discuss their concerns. 

This week, DePietri is accusing the board and the town of deceiving him while orchestrating MassHousing’s ruling used to deny the permit.

Depietri also claims that the denial is invalid based on the timing of his application. He vows to appeal and to withdraw a planned $540,000 in mitigation funds to the town:

Depietri said he filed his application with the ZBA on Feb. 12, the day before the ZBA filed its approval of the extra 28 apartments at Madison Place [on which MassHousing’s ruling was based] with the Town Clerk.

He said that, under regulations, his project should be grandfathered, and believes he will prevail on appeal.

He also believes the town used “sleight of hand” to deny him in the first place.

According to state rules, the town had to notify Depietri of its intent to invoke “safe harbor” within 15 days of when the public hearing on his project opened.

The public hearing opened on March 26. Under ZBA regulations, it should have been held within 30 days of the filing – by March 14 – but Depietri said he assented to a request from the ZBA to postpone the hearing until a regularly scheduled meeting on March 26.

Depietri said he consented at the time in good faith, but now believes the town was stalling for time to get its safe harbor letter.

Town representatives are claiming there was no deception, just lack of internal communication. ZBA Chair Leo Bartolini told SWL the delay was in order to provide proper notice for a public hearing, and that he was unaware the town was seeking a safe harbor ruling. Town Planner, Jennifer Burney who sought the MassHousing ruling tells SWL that she wasn’t involved in the meeting delay.

For more details, click here to read the SWL story.

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9 years ago

Keep your $540,000 bribe and your fire works. We dont need it!

9 years ago

The town should have had a two-year safe harbor in place through June 2014 from the original Madison Place project – it didn’t receive this on a technicality as the papers were filed late. DePietri sounds like he is getting pretty upset over an invasive project that would ruin a neighborhood and cause the streets near Flagg/Deerfoot/Lovers to become very unsafe, when he shouldn’t have been allowed to propose it in the first place if the town had filed its papers on time.

If the $540,000 in “mitigation funds” is mitigating the area around the proposed Park Central 40B, then he should withdraw those funds (without any hard feelings). If it is completely unrelated to his 40B, then it just goes to show you that he feels like if he contributes money to the town, then his only intent is to “buy” the decision-makers in town so they won’t deny his proposals. “Bribe”, “blackmail”, whatever you want to call it, it’s certainly not out of the goodness of his heart – he’s clearly expecting to get something in return…

David Parry
9 years ago

Well, that was a pleasant surprise, and I bet a thousand residents are cheering. The whole town should join them.

I understand the residents relief, as well as the developer’s frustration, in this delay, but that is the “name of the game”, isn’t it, including all the “technicalities” that each side can dream up, to speed up or slow down a project.

The Town earned this “safe harbor” delay legitimately. Safe harbor is explicitly intended to prevent a town from being inundated by one affordable housing project after another. It was earned by the Town allowing the expansion of the other affordable housing project at Madison Place, across Rte 9 from Park Central. We owe Bob Moss, the developer of Madison Place, a big “thank you”, for going forward with that project. Why? Because it reduced at one stroke a huge chunk of our affordable housing deficit, and it also provides (at his expense), a major component of a future Rte 9 U turn via a “Jersey Left” via Crystal Pond Rd. So Bob Moss is as close to a hero as a developer can be. He did us a double favor. He cooperated to the full and he deserved to be approved by the ZBA.

Park Central, on the other hand is a potential disaster. I believe that, in the long run, the developer may yet be grateful for this delay, because it might do several things : (1) Save his good reputation, which is declining very fast. (2) Allow a cooling of the heels. (3) Allow time for study of a more meaningful and productive alternative use of his site. This would benefit all abutters, the town and the developer, –everyone. I will explain this below, because it is critical to this town’s (and his) economic future.

The “loss” of the “mitigation” funds, of $540,000 promised by the developer to the town would only have been valid AFTER approval, and AFTER immense damage to the entire neighborhood. Ask yourself, what would the probably loss in property values be to that neighborhood, on (1) the many subdivision homes looking out onto 3 storey buildings with no buffer to speak of, and (2) the many older homes along Flagg Rd that would face a road with all its magnificent trees cut down to accommodate a sidewalk to the nearby schools? This is not even including the loss of safety along narrow, winding, beautiful Flagg Rd. I would be willing to bet that the cumulative reduction in value would be far more than the mitigation funds.

Now back to the crux of the problem – traffic, and the lack of any sensible traffic solution. The connection of an industrial site to local residential subdivision roads is not only very disrespectful of the neighbors, but it violates one of the key elements of the Town Master Plan, namely that Rte 9 business traffic should be kept on Rte 9, and not allowed to bleed back through the neighborhoods.

The developer has proposed a new connector road behind the Red Roof Inn, leading to Flagg Rd, so that all cars from the 100 acre industrial site could exit the site via Flagg Road. The problem left unresolved if that the connection to Flagg Rd is intended to force cars (exiting from the industrial site), to head south only, toward Rte 9, and then continue onto Rte 9 westbound. This site drive exit onto Flagg Rd is unworkable and unenforceable. Cars will avoid the physical barriers and make sharp turns, or U turns, to return and head north up Flagg Rd. No signs are going to prevent this, and no police officer is going to stand there all day policing this artificial movement.. Because that is exactly what it is — artificial.

This project is harmful to:
1. The direct abutters (who will lose significant property values).
2. The existing residents nearby (who will suffer increased traffic).
3. The neighborhood all the way to Deefoot (which may lose its magnificent trees for the sake of sidewalks to a school).
4. The whole north end of town (which will receive unnecessary, additional traffic passing all the way through town center).
5. Rte 9 itself (which will suffer from more traffic leaving Flagg Rd, heading west but wanting to head in the opposite direction – east. So it will force traffic to do circles on the 495-9 ramps to return east on Rte 9 — which is NOT the purpose of the interchange and is a very dangerous move.
6. Last — but by no means least — this project is going to be exceedingly damaging to the developer’s reputation (which will go down the tubes).

Just because this may be allowed by State Ch 40B rules does NOT mean that it is justified. (Ch 40B allows an affordable housing development to ignore local zoning, and therefore affordable housing can be built in an industrial site where it would NOT otherwise be allowed). This project is NOT justified, because we can find other sites for the remaining portion of affordable housing which Southborough needs, in order to reach its 10% minimum, when Ch 40 B will no longer apply. We need just 58 affordable units. That is all.

The site should be used solely as industrial use, as intended by zoning. That is what Southborough needs for its tax base.

I have already met with Mr Deprierti about this huge problem he faces, and I have suggested a solution. I am city planner, I know how these issues can be solved, and I believe the solution I proposed to him could work. Now, with this unexpected delay, he has time to think this through.

The solution is this: to devise a traffic plan that allows traffic to exit the site, somewhere near Flagg Rd, and head west, BUT ALSO CUT ACROSS RT 9 AND HEAD EAST…..so that all cars from Flagg Rd ,and the project itself, do not have to do either of two inconvenient and unsafe moves: (A) Travel west on Rte 9 to make the dangerous U turn using the 495 ramps in order to head east on Rte 9. And (B) travel north to Main St, then all the way through Southborough Center, just to get back to Rte 9, to head east.

The result of this solution would be fourfold.
(1) The developer would have a first class entrance AND EXIT off Rte 9, and therefore will be able to get higher quality industrial development on the 100 acre site, which will increase in value significantly.
(2) The subdivision would be saved (with NO connections to the industrial site).
(3) The entire neighborhood would be able to use Flagg Rd to get onto Rte 9, not just heading west, BUT ALSO EASTBOUND, AND SAFELY.
(4) The town finds a site or a developer for a minimum of 58 units of rental, affordable housing elsewhere, and thus climbs over the 10% threshold, and thus gets rid of the Ch 40B “threat” of zoning over-rides for a time, and possibly forever. (Rental is important, because 100% of those units will count as affordable if they are rentals, even though only 25% are technically affordable. That is state law.)

There may be a real solution here, under which everyone could benefit. It could be a win-win. I will certainly work with the residential abutters, and I have pledged to possibly work with the developer, but it takes two to tango. Now is the perfect opportunity.

As it now stands, this project is the co-equal, most harmful development in Southborough, along with the Main Street Reconstruction Project. They are both unwelcome and unnecessary. They can both go away, because other alternatives are available.

David Parry

Al Hamilton
9 years ago

“He whom the gods would punish, first they grant their wishes”

I have concerns about the Park Central development as well but, 4 things bear consideration.

1. We had a chance to repeal the 40B legislation and the voters chose not too including the voters of Southborough

2. As long as we are under the 40B cap developers will use this law to bypass many of the local controls that we have in place. If not this project then some other.

3. The failure to file the “safe harbor” paperwork is probably not a trivial “scribners error”.

4. We will have to pay for our part of the appeal. If he wins we will have lost significant negotiating leverage. If he looses, there will be some other development plan offered for the site. We cannot continuously deny him the right to develop his property unless we either purchase the development rights or buy the property.

My neighborhood underwent a major housing development and I and many of my neighbors initially opposed the development. We got together and hired legal counsel to assist us. At our initial meeting we were filled with fire and fury and our consul told us something we did not want to hear. Her words were to the effect ” The developer has powerful rights as well and is entitled to develop his property. If he crosses all the towns and states “T’s” and dots all the “i’s” he will be able to build on the property. Think very hard about what you want out of this process and negotiate for it.”

It was not a message we wanted to hear but in the end that is what we did.

9 years ago
Reply to  Al Hamilton

Al, this is probably a stupid question, but are single family homes, if rented, ever eligible to be counted in the Town’s total number of rental affordable units? Do we keep track of private rentals?

Also, can on-campus housing for faculty members, though the schools are private institutions, be considered as housing that supports the definition?

I guess I am wondering if we have other options with the quota that think outside the box, that don’t result in more apartment complexes being built?

Tim Martel
9 years ago
Reply to  Al Hamilton

The neighborhoods recognize Mr. Dipietri’s rights to build.

We just want him to build in accordance with the Town’s bylaws and master plan, instead of using the State’s 40B rules as a hammer against his own community.

I think Mr. Dipietri might be surprised by how willing people are to work with him on a non-40B project for that site that does not directly access the neighborhoods.

9 years ago

Mr. Parry, that was very helpful. I appreciate the various explanations.

I do not have personal experience with Mr. Depetrie but I caution Brian and those in opposition to him or his company that insults and accusations leave no room for the losing party to exit gracefully. It appears the Town is vulnerable on 40B and you have poked the tiger.

9 years ago
Reply to  M

I am not opposed to 40B in general, but it is clear that this proposal is unusually invasive. Madison Place received comparatively little pushback from residents for a reason – because it does not cause severe safety concerns for multiple neighborhoods and roads which could not safely handle the increased traffic.

I don’t believe anything I said was insulting or accusatory. If (I did say “if” originally, as well) the $540k in mitigating funds was unrelated to the project, then it seems fair to say that there may have been an expectation of some level of cooperation or approvals in return, otherwise that money would not have been pulled from the table.

It’s important to be able to have a dialog about proposals for this town and be able to support or oppose them, and this provides somewhat of a forum for that. Stating facts and forming logical conclusions (as I believe I did) and bringing attention to issues should not be taken personally by anyone unless those conclusions are incorrect (in which case, feel free to offer other conclusions).

David Parry
9 years ago

In answer to the questions from “M”, it is not a stupid question.

Single family homes, if rented, CAN be made eligible to be counted in the Town’s total number of rental affordable units It has been done before. The town DOES have records of such units in our affordable inventory, including duplexes. Also, on-campus housing for faculty members, even with private institutions, CAN be considered as affordable housing. But all of this requires massive paperwork and approvals, and usually it is not worthwhile to go through all the hoops just for one to three units;.

You want to think outside the box. But first you have to recognize that we are missing 58 units. I suggest you find another developer to build the 58 missing units. And you need to find a site that will not cause an equal uproar elsewhere. The pity is that Bob Moss couldn’t have got another 58 units into his project, and we would be done with this issue. Yes it is a big complex, but it is well designed, with good amenities, and he is being very successful in renting them at a high rent, AND MOST OF ALL it impacts on no residential abutters. That was his key to getting approval.

Kathy Cook
9 years ago

It would be helpful if those who oppose the proposed 40B project would stop making unnecessary, personal comments about Mr. Depietri. There are certainly issues with the plan that need to be discussed but comments made by Rob and Brian are not helpful. First, mitigation funds are very common in large development projects today. And they are never made out of the goodness of a developer’s heart. They are part of the overall business deal so of course Southborough won’t receive mitigation funds if the project doesn’t go forward. Why would anyone expect otherwise?

Second, why would anyone criticize Mr. Depietri for all of the charitable funds he contributes to many Southborough groups including the group that puts on Summer Night. I know of no one else that contributes as much as he does to various local charitable causes including the public schools, the Town Scholarship Fund, the Community House and the Recreation Commission. And I am confident there are others. So unlike Rob, I don’t want him “to keep it”. I want him to continue to support these causes because the support is really needed. This is not the first time I have seen anonymous comments that took personal shots at Mr. Depietri. It really should stop. We should only focus on the merits of the project. If the one year moratorium stands, then maybe it will give all sides time to work on a mutually acceptable plan such as Mr. Parry has proposed with an understanding of what the laws and rules regarding 40B projects actually are. I personally am very grateful to Mr. Depietri for all that he has done for charitable organizations that I am associated with and wish I could find more like him in Southborough. These groups need much more local financial support than they get so cannot afford to lose the support they currently have due to irresponsible comments on this blog.

9 years ago

As I said in my original post, “If the $540,000 in “mitigation funds” is mitigating the area around the proposed Park Central 40B, then he should withdraw those funds (without any hard feelings).”

I don’t know what, specifically, the mitigating funds were for, but if they were essentially connected to or dependent on the project going forward, I don’t think it’s unfair for the planned use of the funds to be publicly known.

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