Court annuls ZBA approval of Park Central, orders permit be vacated

Above: The Court overturned the ZBA’s permit approving a large combined development of condos and townhouses at Park Central. (images cropped from past application materials filed with the Conservation Commission)

This month, Worcester Superior Court ruled in favor of residents appealing the Zoning Board of Appeals’s approval of a permit for a large development planned off of Flagg Road. 

(Before opponents of the Park Central project get too excited, I don’t know yet if the Town and/or developer plan to appeal.)

Below, I’m summing up the highlights from the ruling – with the caveat that I’m no legal expert.

While I’m updating on this case, I also took an updated look at other Park Central cases that have wound their way through the courts.

20 Property Owners vs. Southborough’s ZBA & Park Central, LLC

Superior Court (case 1685CV01359)

The ZBA combined conditions for a 139 unit Townhouse project under a linked 40B project for another 180 units in two large buildings. Residents were incensed when the ZBA rushed to close hearings and vote to issue the permit and conditions the night before it would have lost its quorum. (One of the three ruling ZBA members moved out of Town that summer. He closed on his house day after the ruling.)

This case brought by long list of abutters and area residents argued that the ZBA exceeded its authority and acted in an arbitrary and capricious manner. Defendents argued that the Plaintiffs didn’t have legitimate standing for an appeal and that the complaints were meritless.

Unlike many of the other cases, the public was able to watch both sides make their arguments over zoom in the jury-waived trial last year.

In a ruling issued on March 16th and mailed out on the 21st, Judge Ritter disagreed with plaintiffs’ characterization of the ZBA’s behavior. But it agreed that they had standing to appeal and that the Board’s approval of combined projects wasn’t allowable under state laws:

considering the totality of the circumstances, the issuance of the permit was not based on a legally tenable ground. Accordingly, the Permit must be annulled.

The Judge wrote that 40B confers on board power to override local requirements and regulations but cannot waive compliance with state laws. Taking the entire project into account, there would no longer be a 25% affordable housing component that is required for a 40B project.

Defendants had argued that state law and precedent shows that ancillary uses can be combined. Judge Ritter asserted the precedent cited was for an incidental use that complemented a project. He noted the scale of the townhouse project with no affordable housing component. The Townhouse project would be 58 acres vs the 40B’s 9 acres and was projected to be responsible for 40% of the total projects’ traffic.

The practical effect of the inclusion of the condo units within the permit results in an end run around the affordable housing statute. . . The legislature likely would not condone the manipulation of c. 40B so that major developments can bypass local authority under the pretext of affordable housing.

Other findngs in Ritter’s decision that I’m sure the plaintiffs look less favorably on were that the decisions weren’t capricious, the hearings weren’t rushed, there was no conflict of interest proven for ZBA members, and safety issues raised based on perceptions of traffic impacts were overblown.

(You can read the 1-page finding here and the 39 page judgement here.)

Other Residents case vs ZBA and the developer

Superior Court (case 1685CV01827) and Appeals Court (case 2018-P-1314)

In 2014, ZBA Chair Leo Bartolini proposed that the ZBA would approve a Use Variance for an additional residential project on the commercially zoned parcel, if Depietri switched his 40B project to be rentals. His reasoning was that while only 25% would actually be affordable, under state regs all rental units count towards the Town’s housing inventory to receive “safe harbor” status from other unwanted 40B projects. (At that time, Depietri had shared plans to come back with additional 40B projects in future years based on the safe harbor projections.)

The Use Variance for the Townhouse project was approved in the summer of 2015. In October 2016, Special Town Meeting voters stripped the ZBA of the right to issue any future Use Variances.

That fall, resident Karen Hanlon Shimkus asked the Building Commissioner to rule that since construction on the Townhouse project 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. The ZBA ruled in favor of the Commissioner.

Shimkus was joined by Peter Shimkus and Jonathan Green in appealing that decision in Worcester Superior Court. In June 2018, the Court upheld the residents’ standing to appeal but sided with the ZBA on case merits. Green appealed the finding to a higher court. In September 2019, the Appeals court affirmed the judgment. Green applied for Further Appellant Review by the Mass Supreme Judicial Court. That was denied in November 2019. The Superior Court followed up with an order that month dismissing the plaintiff’s original case.

Park Central, LLC vs the Town

vs Planning Board in Superior Court (case 1685CV01363)

In September 2016, the Planning Board filed an appeal against the ZBA and Depietri for the decision combining the two projects. Planning members argued that the ZBA usurped their authority by using the 40B laws to limit Planning’s scope of oversight on the Use Variance project.

When the Board of Selectmen continually refused to support Planning’s request for Special Counsel based on Town Counsel’s argument that Town Boards shouldn’t sue each other, the Planning Board voted to drop its case. DePietri’s attorney filed a motion to seek sanctions against the Planning Board and to force Discovery. After the Planning Board’s case was dismissed, Depietri continued to press for sanctions. In June 2017, the Court sided with Depietri, awarding $4,645.50.

vs Conservation Commission in Superior Court (case 1785CV01229) and with MassDEP

In May 2017, 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.

In July 2018, the plaintiff’s lawyer notified the judge on the ZBA case that he was filing modified plans with MassDEP. In 2019, Town Counsel 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.

In September 2020, the Commission denied the updated NOI. (No new NOI for Park Central has come back in front of the Commission since.)

In December 2020, the Plaintiffs and Town Counsel filed an Agreement for judgment that the appeal of the Commission’s initial denial was moot, since the applicant withdrew that version of their Notice of Intent.

vs ZBA in Land Court (case 17 MISC 000343)

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 Planning’s decision 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.

Yet, when remanding the approval back to Planning, they essentially agreed with Planning by telling the developer to get Conservation Commission approval before returning to Planning. (As I noted above, that still hasn’t happened.)

Depietri filed an appeal in Land Court to override that ZBA decision and consider the Site Plan approved. This has been on hold for rulings in other cases. In January 2022, the court reaffirmed staying the case until a decision was issued on residents’ appeal of the permit in Superior Court.

Impact unknown (at least to me)

If upheld, presumably the most recent ruling would make the Land Court case another moot decision. As for vacating the ZBA permits, I don’t know what happens from here.

Town Counsel and/or Developer William Depietri may plan to appeal. If not. . .

I would guess that Depietri would only be able to pursue 40B projects and commercial projects on the property. (The ZBA can no longer grant new use variances.)

And, with the cancellation of this 40B project, the Town presumably won’t meet the state’s Safe Harbor metrics. Does that mean Depietri will file for another (perhaps larger) 40B project? Or could another developer beat him to it?

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Tom
4 months ago

The document contains a number of unsupported arguments, that many residents do not agree with. This decider wasn’t in the many meetings in town hall. He wasn’t there. The many residents who diligently attended were not mass hallucinating at the rush. The then ZBA did not even read the final document per the people who stayed to the very end. Thankfully, the upshot is correct: this wrong permit was found in violation of the law and rescinded.

Transparency
4 months ago

I want to show my appreciation for the citizens that worked tirelessly to be 1 of very few that have ever overturned a 40B in MA. Once the town approves this it’s an uphill battle of the greatest proportions. The judge will never agree with collusion, conflict of interest or process improprieties but make no mistake this does not dissolve the town appointed officials of their actions or the debacle that they created.

The town owes the citizens an apology and should not under any circumstance take part in spending another dime on behalf of the developer or ZBA to appeal this. They should celebrate this decision and make plans for more suitable affordable housing to be constructed. Key word there being affordable and not this BS to get around zoning regulations to make developers rich. If they do spend a dime to appeal we should vote out every last BOS member. This project has raised every red flag there is in this town and is a major safety concern, over populated development with no access to major roadways. Save this town from the influence of Capital Group, developers and their supporters in the EDC and keep Southboro as the only surrounding town that isn’t a giant strip mall.

Thank you to all of the citizens who stood up to this machine and continue to seek the truth even though they are criticized and targeted for their actions. We are grateful for you and this is just the start of better days in Southboro.

Marnie Hoolahan
4 months ago

This was a very long and arduous process. Justice has prevailed in the ruling. I echo Tom’s points and having sat in that room (for 2.5 years) AND on August 24, 2016, my 20th wedding anniversary to witness the ZBA race through and sign a document turned in with ammendments by the proponent’s lawyers (that none of them read, shared, or projected to the attending public), without a planning board site plan approval, or a conservation commission approval and grant the permit was unbeliveable. It inspired me to run for an elected role and encourage me to do my best in collaborating with developers and all the other Boards and Committees to ensure that what is being reviewed is in the best interest of our Town. Maybe the learning from this exhausting, expensive, and frustrating litigation process can pave a path for future volunteers and elected officials, myself included, to commit to and ensure that we work collaboratively for the best interest of the town and our residents. Certainly people may not like how I vote or what I do, but they will always hear my rationale for making the decision that I do- transparency is paramount.

Relieved
4 months ago

It is such a relief to finally have a judge see this project clearly for what it is. The upshot of the ruling is that this was never really a 40B project. The 40B component was an excuse for the developer to get his foot in the door, get his zoning waivers, get his infrastructure built, THEN build the market rate townhouses (on industrial zoned land). This is a plain violation of 40B law, and I am so thankful that the judge saw this basic fact and pulled the plug on Park Central. He writes: “the inclusion of the condo units under the guise of affordable housing is inconsistent with the intent and legal requirements of c. 40B” and “The practical effect of the inclusion of the condo units within the Permit results in an end run around the affordable housing statute” (see pg. 20). He also refers to the project as “an attempt to bypass local authority under the pretext of affordable housing.”

This is what many residents have been saying all along! I am disappointed that it takes years of work by concerned citizens, 12 days of trial, (and who knows how much money), simply to prevent an illegal project from being built. Where was town council when the ZBA was violating c. 40B?

Thanks to all who spent their time fighting this. This ruling is a victory both for people concerned about safety on the roads, but also for people who desire good government in Southborough.
The developer may well appeal this decision, but he can’t change the simple fact that Mass state law prohibits this project.

Accountability, No More Schemes and End Runs
4 months ago

Per above, decision reads: “End run around affordable housing statutes” . . .”a manipulation of Ch. 40b . . . “. END RUN. MANIPULATION.

Why didn’t the EXPERTS that the town PAID, starting with the LAWYERS, stop this illegal scheme? Didn’t they read state law, Chapter 40B? It is clear that ancillary uses cannot be ANOTHER whole project. All of the dishonesty comes out now after years of pure bs.

Imagine all the time and taxpayer money that would have been saved? All this WASTED money could have been better used elsewhere, the Senior center or on roads!

BOS needs to provide a full accountability to taxpayers and get explanations and REFUNDS, especially from the attorneys. If they are not fired, they should be immediately. Lawyers are expected to read the law. Not actively contribute to breaking it or doing “end runs” around it. Those lawyers and any other lawyer involved in this expensive terrible travesty should absolutely be held fully accountable. Town officials and the other so-called 40B “experts” as well. Guess what: they are NOT experts. Get the money back. Accountability for participating in PROPAGATION of a scheme that is illegal. Imagine the money and time that could have been saved. This town deserves better!

Now it has been confirmed: The elected officials on Planning Board were RIGHT all along. They tried to tell Shea, Rooney, and others on BOS that they understood the law and the proposed project was an illegal end run around the law. This is why it is so important to vote. So important to put honest people who understand the law and respect the law in place. Care. Vote. Remove and fire the manipulative bad actors. Hold every one of them accountable.

M
4 months ago

Beth,

Thank you so much for the summary. I gave up on trying to make sense of all these lawsuits a couple of years ago! You made it clearer. Not an easy task. Much appreciated.

roxanneperro@gmail.com
4 months ago

There is a god. However, it wasn’t god who uncovered the lies, corruption, and cheating of Park Central. It was the dedicated citizens of this town who fought long and hard. Fighting, always fighting for the truth. The boards of this town, owe apologies to all the residents who finally attained justice. The very idea that the BOS hired town counsel to fight on behalf of the defendant against what was right and just for the people of Southborough sickens me to the core. The plaintiffs should be paid back, for all the legal expenses that financially impacted them and who sacrificed sometimes all they had, but stayed in the fight, because it was just and the right thing to do for all the town. Thank you all who fought for me. Just wondering, can you impeach a board in this sleepy little town, and I’m talking about the residents who refused to get involved, and witness cheating at it’s best.

Ben
4 months ago

Clearly a relief to everyone that was working tirelessly to fight injustice.
A Big thank you goes to the planning board; namely Donald Morris for standing up against the powers of greed and evil attempting to jam this down the throat of we the taxpayers.
The whole idea of park central “Stinks on ice”.
If Flatley couldn’t pull it off with his war chest of millions then why would anyone else attempt it ,even by stacking the town’s deck in his favor?

Mike Robbins
4 months ago

Its complicated.

1. The 40b was able to move forward b/c the town was under the 10% minimum affordable housing requirement.

2. Years later the town is still under the 10% minimum and there by still vulnerable to another 40b project.

3. We need to address this issue so that another 40b and cannot be forced upon us.

4. Affordable housing is a good thing! If we get over the 10% we can then have a “friendly 40b” which allows local authority over the project.

5. I feel strongly that vilifying Bill Depietri as evil, greedy, etc., are unfair and incorrect. Bill is a local developer, makes his income from developing property – from what I see that he has built he does a nice job. The nastiness on the blog posts that I have seen over the years are not helpful. People can be upset and angry by how Park Central got approved but attaching labels and making nasty anonymous comments to a neighbor of ours is destructive and counterproductive.

6. Thank you to all the plaintiffs in the case. Anyone who has been involved in any litigation knows that it is emotionally and financially exhausting. They spent years of emotional energy and tens of thousands fighting this and they deserve acknowledgement.

With the decision annulled we will see if there is an appeal. If not, we can look forward to when the next 40b is filed.

To me this is the issue. Our Town needs to ensure that we are above the 10% affordable housing threshold. As if this requirement not met we are just going to go through this all over again.

Inaccurate
4 months ago
Reply to  Mike Robbins

It’s a frightening thing to see a current ZBA member make a number of inaccurate statements above.

Also, Mike, your characterizations of the developer are your own. You are currently serving on ZBA and probably shouldn’t be making biased statements in favor of any person coming before any board or not in favor, either way.

Some people may agree, while others do not. There were a number of threat letters from the developer to town officials that were part of the trial. Those who were targeted would likely not share your opinions. A few of these volunteers on ZBA resigned because they directly didn’t want to deal with the threatening behavior.

Also, it is clear you did not follow the trial. Nor understood the decision. It was clear from the trial that there was no one, including the town, who was opposed to 40b. The defendants pushed forward an illegal position, a position against the law and lost. The decision language is clear: a “manipulation” and “end run” on the law. This is not a technicality as town counsel falsely claims in his attempt to minimize the decision. If it is, it’s a big technicality: this huge expense and waste of time IS AGAINST THE LAW. Imagine the money that could have been saved if someone on the ZBA actually read the law and understood it. Not one more cent should be spent. And every lawyer that played a role in this should be turned in to the state.

YY
3 months ago
Reply to  Mike Robbins

First of all, thank you for your service and I actually agree with almost everything you said but I am also extremely alarmed because while it makes sense for the town to strive to get over 10% threshold, the absolute prerequisite for me is any project meets the requirements set forth in 40B and ZBA should remain a neutral body (neither for or against developers).

ZBA at that time should have never ever approved Park Central project without ANY meaningful public comment on the huge 40A component of the project. You or anybody else can prove me wrong by actually pointing to where that happened in any meaningful way (something besides the ZBA shutting any effort to have that discussion).

That alone, to me, shows how biased ZBA was. What was even crazier was the ZBA usurping the authority of the Planning Board for the 40A component and leaving it “residual” site plan. Hopefully the ruling moves this from a point of debate to agreed upon facts. What would be even better but maybe, sadly, too much to ask is any current or future ZBA to not repeat this.

Also regarding your recently letter on anonymous posting, like I am doing, it should not be who said what as much as what is said and the matter it was said.

mytownsouthborough
4 months ago

Of course it’s fair to vilify the developer, and the boards. How can the above person even remark, when they are sitting on the ZBA, (biased perhaps) and the BOS, who joined in to conspire with the developer to ruin this town, at every opportunity. The craziest thing is that you brilliant residents paid with your hard earned tax dollars, to help the previous town counsel fight against us. That’s a hoot, but pathetic. Town counsel sat with the developer, to insure that the 40B would go through, no matter what, no matter how it impacted residents, abutters, roads, traffic, schools. Of course a member of the previous ZBA board high tailed it out of dodge on the first train asap.

Gimme a Break
4 months ago

I agree with “Inaccurate” above that in the face of Park Central outcome it is pretty frightening that a current ZBA member goes on this blog mentioning and touting developers involved. Soon we will have EDC chiming in and offering their pro-developer 2 cents (no thanks). Cheers to the folks who fought this battle and won. Also, hats off to Don Morris a class act who told the truth about Park Central and serves as a voice of reason among the chaos. Many could learn from his example if they cared to do so but unfortunately most seem to be driven by greed and self interest above all else.

roxanneperro2@gmail.com
2 months ago

Do you know what else is scary. A former ZBA member sits on the BOS. A former ZBA member is a developer. Any conflicts here folks???????????????

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