As I posted last week, developer Bill Depietri is pursuing new plans for a 40B project at Park Central, off of Flagg Road.
To be able to take advantage of the special exemptions to local zoning bylaws under 40B, the project needs to be sponsored by MassHousing. Since the project is starting from scratch, it is a new opportunity for the Town and public to comment to the agency on the proposal.
A July 19th letter from MassHousing to the Select Board requests any public comment be submitted by August 22nd.
Although that information wasn’t publicly posted, the Planning Board informed the public of the deadline last night.* According to their remarks, Town boards were invited to provide comments to the Select Board in advance if they wanted to provide a joint comment letter.
Planning instead decided to work on a separate letter from their board. They also encouraged members of the public to submit their own comments to MassHousing and/or the Select Board.
Although the proposal is new, it clearly carries along baggage from the last go-round.
Already in last night’s meeting, some members of Planning wondered if they should put in a request now for special counsel to represent them during this 40B process. Marnie Hoolahan raised concern that current Town Counsel stepped in to represent the Zoning Board of Appeals in one of the trials.
The Planning Board wasn’t a party in that case. Between the lines, her concern seemed to be that Talerman defended the same ZBA position that the Planning Board had attempted to appeal.
Jesse Stein argued that it was too early in the process to assume that they would need independent counsel. He noted that Talerman had represented Planning against the developer when they were counter sued for their appeal against Park Central and the ZBA.
The Board had dropped their case due to their inability to receive independent legal representation. But the developer pursued and won sanctions (ultimately paid by the Town, not the board).
And speaking of that. . .
The ZBA Executive minutes posted on Friday show that in November 2016, as co-defendants in the case, two of their members (including one still serving) sought to press the countersuit against Planning.
The minutes summarize that Town Counsel asked for authority to dismiss the suit after Planning dropped theirs. It was granted 5-2. The two dissenting votes were by the remaining members of the three that approved the decision appealed by Planning.
Member Paul Drepanos was recorded as stating “he does not want to concede and would like it stated the Planning Board’s actions were illegal.” The other dissent was by late, former member Leo Bartolini, who wanted it “stated that the actions the Planning Board took were illegal.”
One other former member, Jeffrey Walker, had been “reluctant” but agreed to follow Counsel’s advice. Though “He added he would like to see the developer receive reimbursement for legal fees.”
The 2 dissents were striking since the reason Planning lacked counsel was Town Counsel’s advice, followed by the Select Board, that one board shouldn’t sue another. (It’s also worth noting that, through a separate case brought by residents, the Superior Court ultimately ruled in favor of the Planning Board’s assessment that the ZBA acted illegally.)
In contrast, then Chair (and now Select Board member) Andrew Dennington supported dropping the countersuit as “a rational way to end the contentiousness between the Boards”. Current Chair Craig Nicholson agreed saying he would like to work along with other boards. Also in favor was Debbie DeMuria who recently moved to the Planning Board.
In last night’s meeting, Luttrell noted that even as the project proceeds, Planning will expect to submit comments to the ZBA along the way as a normal part of the 40B hearing process.
The issue of legal advice first came up when Hoolahan raised that she was troubled by what she saw as inaccuracies in the proposal. One that concerned her and Chair Meme Luttrell was the assertion that a Use Variance still stands for the non-40B townhouse project, which had never been directly appealed.
Lutrell stated that never went into effect since it was contingent on approvals for the 40B and an expired appeals period. Upon questioning, she explained it could mean Depietri plans to to apply for a separate 40A townhouse project under the variance. Members hoped that Town Counsel would validate their opinion that the Use Variance is dead.
Issues members of the public asked Planning to include in their letter included road safety and pedestrian issues. Howard Rose posited that if the state was going to force a 40B project, they should also accept the egress directly onto Route 9. (MassDOT blocked the access point between Flagg Road and Rte 495 as unsafe.) Rose stated that he isn’t opposed to the project, just the proposed access points.
They also discussed the potential height of the proposed buildings. Although the renderings in the proposal modeled 4 story buildings, the description pitched “4 residential floors over a podium of covered parking.” Member Andrew Mills and Luttrell worried that 5 story buildings right next to Tara and Bantry roads would loom over abutting homes.
Planning will be working on their letter in a meeting hastily scheduled for this Thursday, August 4th at 3:00 pm.
Also on Thursday, the Conservation Commission is scheduled to discuss the application. I presume they too will focus on how to respond to the comment request. (Reminder, the developer filed two lawsuits against Conservation over their permit denials/conditions on earlier versions of the plan. While different plans were eventually filed, those also failed to pass muster with Conservation.)
That meeting may also include an update on an offline gathering of officials at Park Central that was scheduled for this morning. MassHousing invited interested members of the Town Boards to join them for their site visit.
For residents who want to comment directly to MassHousing, the information is:
- Michael Busby Relationship Manager, MassHousing, One Beacon Street, Boston, MA 02108; firstname.lastname@example.org.
- Refer to Proposed 40B— Residences at Park Central, Southborough (MH ID No. 1155).
Or you can email the Select Board at email@example.com. Although an agenda has yet to be posted, they are scheduled to meet next Tuesday, August 9th.
*Planning Board members and department staff referred residents to the letter that they incorrectly believed were posted to the Town’s website and in their packet, but weren’t. I reached out to Town officials today and received a copy of the letter from Town Administrator Mark Purple.