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.
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?