Park Central Update: Former ZBA Chair may not testify due to “memory issues” (Updated)

During Zoning Board of Appeals hearings on the Park Central development projects, then-member Leo Bartolini came under public fire for his handling of matters. Residents appealing the ZBA’s approval of the 40B project sought to force him to testify in the trial in process.

Last Thursday, local media wrote that Bartolini’s personal lawyer was seeking to quash the subpoena. An update to the docket on Friday appears to indicate he was successful.

On March 4th, Metrowest Daily News (and sister publications) wrote:

Leo F. Bartolini Jr., the former Southborough Zoning Board of Appeals chairman accused of impropriety by residents suing over a controversial development, asked a judge Thursday to excuse him from testifying in the case, citing medical reasons.

A lawyer for Bartolini told Worcester Superior Court Judge William J. Ritter that his client — who resigned his chairmanship in 2016 during a removal effort — is suffering “memory issues” from a medical condition he did not wish to publicly disclose. . .

Lawyers for the plaintiffs — who oppose a large mixed-use housing development they say would endanger public safety — panned the timing of the motion as “suspicious.” . . .

[Plaintiff’s attorney Daniel J. Pasquarello], mindful of the impoundment, did not go into much detail, but noted the records were more than a year old. He said despite a note in the records alluding to issues to be followed up on, there were no other records presented to the court indicating that happened. . .

Pasquarello, noting Bartolini is a key witness in the case, requested Ritter require him to testify. He argued the motion to quash the subpoena, in addition to being suspect on its merits, was also filed late.

As the article noted, Judge Ritter of Worcester Superior Court said he would take the matter under advisement. In the online docket for the case, a March 5th update appears to show the judge ruled in favor of Bartolini’s request:

Endorsement on Motion to Quash Subpoena and for a Protective Order (#51.0): ALLOWED
The court credits the medical documents dated February 3, 2020 and January 12, 2021 (which are subject to an Impoundment Order dated February 25, 2021 (paper #54)) and has applied the two prong test set forth in Commonwealth v. Allen, 40 Mass. App Ct. 458, 461 (1996). See Mass. G. Evid. § 601(b)(2020); Commonwealth v. Trowbridge, 419 Mass. 750, 755 (1995) (witness needs ability to “observe, remember and recount”). Moreover, the medical records, taken together, makes it clear that the witness’s medical issues are not a recent contrivance to avoid testimony in this trial. Notices mailed 3/5/21

Initially, Bartolini chaired the ZBA Park Central hearings on the 40B and Use Variance applications. After a July 2016 petition from residents called for his ouster, Bartolini moved down from Chair to act as a member (one of three presiding over the 40B hearings). 

A second petition renewed calls for Bartolini’s removal from the ZBA. While accusations focused on his interactions with residents, the complaints included his “lack of concern for the public safety aspect of adding Park Central traffic to Flagg Road”.

The Board of Selectmen held a formal removal hearing during which accusations against Bartolini included alleged unreported conflicts of interest and other behavior related to Park Central hearings. Ultimately, Bartolini prevailed in that hearing process, but resigned near the end of his term.*

To read MWDN’s full coverage of last week’s hearing on the Motion to Quash the petition, click here.

The Park Central trial resumed over zoom this morning as scheduled with testimony from plaintiffs. Following a break it will resume again at 11:50 am. As I previously noted, the plaintiffs’ attorneys informed the court that Southborough Town officials would be called to testify the week of March 22nd.

*Updated (3/9/21 3:22 pm): Initially, I wrote that Bartolini resigned ” after selectmen refused to reimburse him for his legal defense expenses”. That was based on coverage by local media at the time.

Just now, as I was looking through selectmen’s old minutes for a completely different story, I came across a section of the Board of Selectmen’s minutes from the meeting two weeks after Bartolini stated he was resigning. The minutes state:

[Selectman Bonnie Phaneuf] wanted to make the public aware that Mr. Bartolini told Chairman Kolenda prior to the meeting that he had made the decision to not seek reappointment; his resignation was not a result of the outcome of the meeting.

However, it is worth pointing out that his term wasn’t set to expire until June 30th.

Updated (3/10/21 12:14 pm):  The Telegram reported last night:

Lawyers and Ritter discussed the ruling out of earshot at a sidebar during the resumption of the virtual trial on Zoom Tuesday morning. The residents then moved on to call a different witness.

Ginny Kremer, one of the residents’ lawyers, told the Telegram & Gazette Tuesday that she anticipates filing a motion for reconsideration of the ruling.

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Rather than Rat
2 years ago

Fishy. No?

Tina T.
2 years ago

When is the next scheduled day of testimony? I see you noted the week of the 22. Will there be testimony on the 22nd? I find it very difficult to follow this trial as there is no one listing the dates and times of testimony.

Tina T.
2 years ago
Reply to  Beth Melo

Sounds like the residents have lost interest in the case if no one knows when testimony is supposed to resume. Even the Save Deerfoot website is out of date.

2 years ago
Reply to  Tina T.

No Tina, the residents are just exhausted trying to hunt down info, deal with insiders working the system, and using our own funds to fight for the safety of our streets and kids.

Tina T.
2 years ago
Reply to  Tina T.

For anyone interested, the upcoming dates of testimony for the Park Central hearing are:

March 18 @10:30 (Motion Hearing for Reconsideration)
March 22 @9:00 (trial)
March 23 @9:00 (trial)
March 24 @9:00 (trial)

Who’s Zooming Who?
2 years ago
Reply to  Tina T.

Tomorrow’s March 18 hearing is at 10:30 am via the same Zoom link.
The developer’s attorneys, are joining the motion to fight the subpoena of town official former ZBA chair from testifying. In a prior Zoom trial day, Attorney Catanzaro offered to reach out to Attorney Heller, who is representing this town official on his personal matters and quest to have his subpoena quashed. Judge Ritter stated at the time that he didn’t feel that was something Catanzaro should do. Fast forward: look who has three attorneys effectively fighting to stop the testimony, with the developer’s attorneys joining in. As the great late Aretha Franklin sings, who’s zooming who?

Tina T
2 years ago

Testimony to start at 9:30 today, Monday, March 22.

Cat 'n Zero
2 years ago

Yet again, this is what ZOOM has been like:

Not easy, has numerous technical difficulties, and is muffled sound or no sound at all during key testimony. Cat available to sit in wherever needed or to assist with technical difficulties.

Memory issues? That’s the one thing the taxpayers don’t have. The testimony yesterday on Zoom recalled the horrible “bullying” and running roughshod over the public trying to express legitimate concerns over safety, but were ignored. These pleadings were ignored by the very persons who claim no or some business relationships with the developer, while putting the opposite in writing. How about the one ZBA member who moved out of town the very next day after granting the permit, while Boards, Committees, and the public are pleading to slow down to address numerous unresolved critical matters and asking what’s the rush?

Testimony has described traffic queues of hundreds of feet via the so-called traffic “experts” own numbers, while claiming that only 15% of the traffic waiting in that queue will go left on Flagg. How about when Route 9 backs up in either or both directions? How about 100% of that traffic going left? 3,200 trips (but it’s only half folks! entering or exiting during the course of the day). And that’s if you agree with the numbers. How does the number not include Cumberland Farms traffic, school busses, or turnaround traffic from Route 9? Memory issues.

Testimony recalled numerous important legitimate concerns being expressed over shoving unprecedented traffic from one of the largest proposed developments in town down winding narrow back country roads, while the state will not allow same egress on Route 9 at a Level of Service “F” location. How does this make sense? These are the same back roads described by the town’s own traffic expert during meetings as not built to accommodate this kind of volume. The ZBA promised throughout that no commercial traffic would go out the proposed Flagg road exit into the neighborhood, but all commercial and residential traffic from both the existing and proposed developments is going out on to Flagg Road. How did that happen? You guessed it: Memory issues.

If one looks to see who is the judge on this case and googles his name, the following article comes up with the byline, “another nationwide search.” This is a relatively new judge who has stated twice in court that he may have made a wrong decision on a certain key matter and it’s “ripe for appeal.” This is the same judge that the developer’s attorney unabashedly requested (what the heck) in court after the appointment of a different judge. And BTW, the court clerk uses a personal Gmail account for court business. Not a state email address, a personal Gmail account.

It doesn’t matter what city or town hall or courtroom, every resident in the state wants the same thing: a fair and level playing field, without prejudice, bias, or club-like behavior. Otherwise, the law, justice, and best outcome for all is simply out of reach.

heads up!
2 years ago

Just want to draw your attention to the fact that the final 3 days of the Park Central trial are today, Monday 22nd – Wednesday the 24th. Please tune in to Zoom link:

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