The Zoning Board of Appeals opened appeal hearings on the Building Inspector’s ruling on Park Central Use Variance. A continued hearing will be held on November 3rd. In advance, the board is receiving written legal arguments from appellants and defense to bolster their cases.
Prior to the ZBA’s August decision to grant the Park Central 40B Special Permit, resident Karen Shimkus asked Southborough’s Building Inspector to advise the board that the linked 40A Use Variance had expired. Instead, Building Commissioner Mark Robidoux interpreted the Use Variance to be good for one year past a future date to be determined. That period would begin after all appeals are exhausted and/or ppeal period expired for the 40B project.
Robidoux’s interpretation supports the intent of the ZBA when they granted the variance. But Shimkus and the Planning Board both argue that the ZBA didn’t have the power to condition the extended term. Both parties filed appeals with the ZBA.
Last Thursday, Dennington asked Planning Board Member Meme Luttrell and Shimkus for permission to combine discussion of their appeals, rather than repeating the process for each. They agreed.
Meanwhile, Attorney Angelo Catanzaro preemptively argued that appellants had no standing. Dennington told Catanzaro he would have to wait to make that case until after the appellants made theirs. Then Dennington asked Luttrell and Shimkus’ attorney to defend their standing as well as their case.
Further complicating matters, Dennington was unsure if anyone could appeal the Building Inspector’s decision. He didn’t think it was proper for the Building Inspector to have been asked to issue the letter. He thought an appeal should have waited for an action, like the developer pulling a building permit.
Shimkus attorney, Donald O’Neil, rebutted that Robidoux could have ignored the request. But since he had made a ruling, they worried that if it was later disputed they would be told the appeal period had passed.
There were a lot of legal arguments made that evening. I can’t get into them all. But here are some broad strokes.
Catanzaro said that appellants had to be people harmed by the action. Luttrell argued that municipal boards have the right to appeal. And O’Neil argued that any resident has the right to see zoning enforced properly.
Referring to case law, arguments were also made on the merits of the appeal. Appellants argued that if the developer hasn’t acted on the variance, the term are only allowed for one year beyond the granted date. The ZBA also has the power to extend for another 6 months upon request prior to expiration. At the heart of the arguments – is the grant date the date it is approved, or can that approval date be put off to future, far past the expiration of appeal date.
Also at issue, what action did the developer need to have taken to keep the term alive.
Former Chair Leo Bartolini, now a member, interjected multiple times to tell Luttrell her arguments were wrong. He argued that it was all properly done and they had been assured by counsel it was right. And he defended the developer as not having asked for an extension because the board told him it wasn’t necessary.
But Town Counsel Aldo Cipriano advised Bartolini that he was premature in judgement. Cipriano indicated that appellants arguments may have merit. He said that both sides argued well and agreed with Dennington’s choice to get details citing case law in writing. He expressed interest in seeing what they have and learning from this case.
At the outset of the hearing, Catanzaro asked new ZBA alternate Debbie DeMuria to recuse herself. DeMuria led an article to gate Flagg Road and has made public arguments about safety issues that would be caused by allowing Park Central access to Flagg. DeMuria rebutted that she is not an abutter and had only ever argued about road safety, not in opposition to the project.
Asked for his opinion, Cipriano advised that it was up to DeMuria (and those who had voted on the Use Variance) to decide if they could be objective. After a decision is made, if appellants or defense believe that didn’t happen, they have grounds for recourse.
At their November 3rd hearing, the ZBA will first need to decide if appellants have standing to appeal. If they don’t, other abutters may be able to appeal in the future when Capital Group pulls a building permit for the project. If they do, then the ZBA will need to vote on case merits.
If they find on behalf of the appellants, the developer would likely file an appeal with the court. (After all, they can no longer re-apply for a new Use Variance. Town Meeting eliminated it.)