Yesterday, an appeal was filed against the Zoning Board of Appeals’ approval of the Park Central 40B. Owners of 20 nearby properties are asking the court to annul the August 24th decision.
There has been strong neighborhood opposition to the combined development project for 319 units off of Flagg Road*. Plaintiffs in the suit are claiming the board acted improperly. Much of the claim against the 40B decision is based on the linked Use Variance for townhouses granted in May 2015.
Normally, a Use Variance lapses one year after granted, unless the applicant files for and receives an extension. Residents pointed out to the ZBA this summer that more than a year had passed, and no application for extension had been filed. But the ZBA’s Use Variance decision defined the approval as taking effect upon approval of the 40B, after appeals have expired.
The appeal claims that the Use Variance “expired by operation of law on May 27, 2016” and that the original decision’s effective date:
clearly represents an attempt to improperly circumvent the statutory one year time period
Earlier this summer, Town Counsel Aldo Cipriano answered questions for the Planning Board on the linked projects. At their request, he also answered some questions from residents in the audience.
Prior to the meeting, many believed that the Planning Board’s hands were being tied by 40B regulations. In that meeting, Cipriano explained that most of the limitations to the Planning Board’s authority over the linked developments were based on the Use Variance decision. He also explained to neighbors that the appeal period for that passed 20 days after it was filed the previous summer.
Some residents were angered by their purported inability to appeal the Use Variance. They said that they didn’t have enough information at that time to know if they should appeal. They had been waiting on the information that came out during the linked 40B application.
Cipriano was asked about the expiration of the Use Variance. He said that he had provided his opinion on that to Town officials, and couldn’t answer that in public. (Earlier, he warned he couldn’t answer questions that would give an advantage against the Town. He seemed to indicate that included either the applicant before the Planning Board or residents opposing a Town decision.)
Yesterday’s appeal points to more than the Use Variance effective date as improper. It also claims:
- The Use Variance allowing construction of 158 townhouses* next to the 180 40B project, and integrating the projects, greatly increased impacts, including project egress and traffic related concerns, “without any supposed corresponding public benefit”
- The 40B decision “is arbitrary and capricious and fails to protect the health and safety of the prospective occupants of the proposed housing, abutters to the project and other residents”
- The ZBA failed to comply with procedural requirements and “acted in a grossly negligent and careless fashion”
- The ZBA “has exceeded its authority”
During public hearings on the 40B, the ZBA frequently referred to some details as based on agreement worked out with the neighbors. That agreement was written into the Use Variance conditions. It included the ability for the project to access Flagg Road in both directions.
The agreement was between the developer and owners of six abutting properties. It was a deal that some neighbors negotiated after developer Bill Depietri threatened to use a right of way through the Bantry Road cul-de-sac as a main point of access for the development.
The appeal filed yesterday lists as plaintiffs owners of 14 other abutting properties and five individual residents from Flagg Road, Deerfoot Road, Clifford Road, and Lover’s Lane.
The ZBA’s David Eagle, overseeing the final hearing and decision, told the public an appeal was likely. Justifying that night’s decision, he said it was time to act and “let the chips fall where they fall.” Eagle moved out of town the next morning, and resigned from the board. He is one of three defendents listed on the appeal, along with deciding members former Chair Leo Bartolini and Paul Drepanos.
Southborough Wicked Local reports that Depietri plans to fight the appeal.
* The 40B is for 180 condos. The linked Use Variance project allows and additional 158 townhouses on abutting land. In filing updated plans, Depietri has revised that to 139 townhouses.
Updated (9/14/16 4:56): I originally wrote that owners of five properties negotiated the agreement included in the Use Variance decision. The decision lists easements on five properties, but refers to six property owners.