Last Thursday, the Southborough Conservation Commission voted to deny Park Central’s Notice of Intent. An NOI approval is required to permit removal, dredging, filling, or altering of wetlands. Without it, the developer is (currently) unable to proceed to the Planning Board for needed Major Site Plan Approval.*
The Commission expects the developer of the proposed large housing development to appeal the decision to MassDEP (Dept of Environmental Protection). Though, commissioners noted that it would have likely ended up back at DEP however they ruled.
In last week’s deliberations, Commission members acknowledged significant improvements were made to the project since the last time it came before them. But across the board, they agreed that the project still didn’t meet requirements of the Wetland Protections Act. Member Ben Smith summed up:
I can’t approve a project that so flagrantly fails to meet the stormwater standards.
Member Jeffrey Peet credited the development team for putting in a great deal of work into improving the project since their initial filing. He remarked he was surprised in the end that given their investment in time and money, they didn’t take the final steps to make it compliant.
Prior to the vote Chair Mark Possemato pointed out that if the commission denied the project and DEP ultimately sided with the developer, they would be giving up local control of the project. But he also noted that if they approved it, abutters would likely appeal to DEP anyway.
Member Carl Guyer responded by asking which side of that the commission wanted to be on. Possemato answered that there was no question, the Commission is required to uphold the Water Protection Act.
Participating members voted 7-0 to deny the NOI based on a detailed statement explaining the application deficiencies. You can read the decision (apparently issued today) here. (All documents related to the application are posted on the Town website here.) You can watch last week’s deliberations and vote here.
As for the developer’s next steps, the developer had previously appealed to the DEP and was sent back to work out issues with the Conservation Commission. But Thursday night’s discussion indicated that Possemato believes the agency could have a different response to the revised plans.
Commission members recapped the development team’s pitch that while they would be adding some stormwater to wetlands, the designed system wouldn’t “harm” wetlands. Possemato asserted that wasn’t allowable under the language of the WPA. He said that the Commission wasn’t authorized to override that language. But he indicated that as a state agency, the DEP may be able to approve the developer’s plans if it finds it acceptable. Still, he noted that in his many years on the Commission, he couldn’t recall DEP not upholding one of their decisions.
DEP is only one of the appeals routes available. Park Central, LLC is also suing the Commission in Worcester Superior Court over its initial denial. A Pre-Trial Conference has been postponed multiple times due to the pandemic. It is currently scheduled for November 3rd.
*Park Central LLC is suing the Town for the decision that requires getting a Conservation Commission approval, then return to the Planning Board for Major Site Plan approval. The developer had maintained that the site plan was already constructively approved due to a delay in the Planning Board issuing a written denial. The ZBA’s decision denying that is under appeal in Land Court. That case had been on hold while the developer was dealing with the initial DEP appeal and then waiting for a new Commission decision. The next conference on the case is currently scheduled for February.
Updated (9/16/20 8:26 am) I initially failed to properly identify Chair Mark Possemato.