Last week, the Conservation Commission closed its hearing on a controversial development project. On September 10th, the Commission will deliberate and vote on the Notice of Intent for Park Central. Two nights prior, Town Counsel updated the Board of Selectmen on court cases related to the project. So, it’s time for me to update readers.
For those of you unfamiliar, Park Central is a proposed development off of Flagg road made up of over 300 housing units through two projects – Condos under a 40B special permit and Townhouses under a zoning Use Variance. The project sparked vocal opposition from a large group of area residents and led to multiple lawsuits and appeals.
Residents have raised multiple issues, but the main concern repeatedly voiced is the impact to road safety. Abutters say that the large complex will add too many cars to the area’s residential streets. (You can read some more about that here and here.)
Last year, I updated on five cases that were still in process through three courts. That’s winnowed down to only three pending cases in two courts.
Also slightly down is the number of units proposed for the development. Based on requirements from the Conservation Commission, the townhouse section of the project has been reduced from 142 units to 126.
Below are updated details on pending/resolved decisions by courts and boards.
Actions Still Pending
“Huang, Yan et al vs. Leo F. Bartolini Jr. In Official Capacity As a Member of the Town of Southborough Zoning Board of Appeals et al”
Worcester Superior Court (1685CV01359)
This is the only case still standing in which the developer is a defendant. It’s also one of the three remaining cases in which a Town board is a defendant.
The case contests the Zoning Board of Appeal’s approval of the 40B Condo development.* It 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 its authority. The suit claims the ZBA’s decision failed to “protect the health and safety of the prospective occupants of the proposed building, abutters to the project and other residents”. You can read a copy of the appeal filed in 2016 here.
The court docket shows that a video conference was held on August 11th for Trial Assignment. A “Jury Waived Trial” was scheduled for January 13th with a final trial conference on January 5th.
According to Town Counsel, Aldo Cipriano, the full proceedings are scheduled to take place via video conference. Last week, he noted that the trial will be a “De Novo hearing”. The judge will be given the decision, the plaintiffs will present their view on the decision, then the co- defendant (the developer) will have to defend the decision.
Town Counsel will only be representing the ZBA, not the developer. (He stated that he will let the plaintiffs and developer “adjudicate the principal issue of the status of the permit”.) Cipriano explained that his role is to defend that ZBA members “acted properly under administrative process and were not arbitrary, capricious or whimsical.” Plaintiffs in the case are claiming the board acted improperly.
Cipriano is also fighting the plaintiff’s request for ZBA members involved in the decision to testify. He indicated that the plaintiffs are trying to have the judge look beyond “the four corners of the decision” to which these types of appeals are normally limited. He did note that judges will sometimes allow new evidence to be introduced.
Town Counsel said he expects the January virtual hearing to last a couple of days.
Park Central vs the Town
vs ZBA in Land Court (17 MISC 000343) and vs Conservation Commission in Superior Court (1785CV01229)
In both of the above cases, the developer is appealing a decision by a Town board. The two 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 they couldn’t approve the project without the detail they needed. 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. The Land Court case is the developer’s appeal for the court to override the ZBA’s decision and consider the Site Plan approved.
Weeks later, the Conservation Commission denied the Notice of Intent for the project after the developers refused to make changes that they required. In June 2017, the developer appealed that decision to MassDEP (Mass Dept of Environmental Protection). They also filed an appeal in court against the Conservation Commission’s ruling.
Both cases are on hold while the developer waits on a new decision from the Conservation Commission.
Important developments appear to have come out of the developer’s communications with MassDEP. In July 2018, the plaintiff’s lawyer notified the judge on the ZBA case that he was filing modified plans with MassDEP. Last year, 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.
Town Counsel told selectmen that while the Superior Court doesn’t pay much attention to the Land Court cases, the Land Court generally does closely follow related cases taking place in Superior Court.
2020 Conservation Commission hearings
Based on the DEP ruling noted above, the developer submitted modified plans to the Commission. In January and February, the developer put off meetings, requesting time to respond to comments including ones from the Peer Reviewer. This spring, hearings were extended to future dates due to limited participation of the public during the pandemic. On July 30th, the hearing resumed.
During the hearing, a representative for the developer said that they have made a number of “improvements” in concession to the Commission. That included reducing the number of Townhouse units from 142 to 126, respecting the 20 foot no touch buffer zones, and more. There was still a noted “fundamental disagreement” between the developer and Conservation’s consultant and peer reviewer. The dispute was over the interpretation of stormwater regulations.
Commissioner Carl Guyer asked for confirmation that they were at the same impasse as they were at 3 years ago. The answer was not exactly. The 2016 plans exclusively used wetlands as retention basins. The new plans only partially use wetlands as retention basins, greatly reducing the volume of water. Meanwhile Fuss & O’Neill interpreted that the applicant’s planned use of those resources was against regulations.
That evening, the Commission and the applicant butted heads on whether the state’s easing of hearing deadline requirements under the pandemic allowed the Commission to extend the hearing without the applicant’s permission. The applicant team pushed for a decision that night. The Commission extended the hearing to last week, to allow abutters who weren’t able to connect by zoom to submit comments.
Last Thursday night, it appeared that the applicant and the Commission’s consultants hadn’t resolved disagreements between meetings.
The Commission closed the hearing but didn’t begin deliberations. The vote is scheduled for their September 10th meeting. In July, a member of the applicant team warned that if the Commission doesn’t approve the Notice of Intent, they will appeal it back to MassDEP.
“Shimkus, Peter et al vs. Andrew R. Dennington In Official Capacity As a member of the Town of Southborough Zoning Board of Appeals et al”
Superior Court (1685CV01827) and Appeals Court (2018-P-1314)
The Superior Court case was filed by three residents in December 2016. It sought 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. Last year, Town Counsel Aldo Cipriano indicated to selectmen that the Superior Court judge disagreed. Cipriano referred to a “dispositive motion” against the plaintiffs related to “standing and aggrieved party status”.
The court’s notes showed that ruling in June 2018 with the court supported a cross motion, to make plaintiff Jonathan Green responsible for statutory costs. (From the dockets, it looks like the other two plaintiffs agreed to drop this case against the ZBA along the way.)
Green appealed to the Appeals Court. According to the court dockets, the Appeals Court upheld the trial judge’s decision last November. The plaintiff’s case was dismissed.
*The Superior Court website lists the Shimkus v ZBA case as “Open”. Yet the detail in the docket states that the case was dismissed and notes it was upheld by the appeal decision. Cipriano indicated last week that it was resolved.
Updated (8/25/20 6:43): Fixed a spelling error.
*Updated (8/27/20 8:40 am): A commenter pointed out that I was wrong about the Huang v ZBA case being an appeal of the Use Variance. I found the filing. While it states as a fact that “the ZBA’s Use Variance Decision clearly represents an attempt to improperly circumvent the statutory one year time period”, the plaintiff’s case is against the 40B Special Permit. Under the Judicial Review, plaintiffs assert that they “are aggrieved by the Decision of the ZBA granting the Comprehensive Permit to Park Central and Depietri.”