On Tuesday, the Select Board will vote on the final version of the Town’s comment letter to MassHousing on the controversial Park Central 40B project.
In the current version, the Select Board raises legal questions about the developer’s ability to pursue the application as submitted. It also “strongly” requests MassHousing not approve the application unless “Key Requirements” are met by the developer.
A draft letter has been posted along with 47 pages of communications from residents and other boards that will be attached. (Since it is in the middle of a very long meeting packet, it’s easier to view that here.)
Below are highlights from the communications, plus a recap of a related meeting between Town Counsel and the Zoning Board of Appeals.
The Letter and Select Board discussions
As part of the 40B process, the Town is given an opportunity to MassHousing before it rules on the application for 40B project eligibility.
In discussions on September 7th and 14th, Select Board members spoke about the need to make a strong case that the project as proposed is too problematic, especially related to road safety issues. They acknowledged that the agency may not find their concerns “compelling” but said they needed to try.
Last week, the Board discussed how to strengthen an earlier draft. That included inserting what they learned about a 2015 agreement that the application appears to violate. The updated draft urges the agency to seek “legal evaluation” of the situation.
As the letter explains, William Depietri (head of Capital Group Properties and Park Central) and some of the project abutters* signed an agreement prohibiting “any connection or access from the Project Site to, through or on Tara Road, Bantry Road, and Blackthorn Drive (except for emergency access from Blackthorn Drive to the Project as shown on the Concept Plan)”. Yet the application submitted specified the project would have a main egress point through the Blackthorn cul-de-sac.
The developer has the right to terminate that agreement with written notice. That would trigger a 2 year moratorium (from notice date) on applying “for the development of the Project Site in the same or substantially similar manner”.
Although not specified in the Board’s letter, members mentioned that the 2015 agreement specified 20 less units and showed buildings set further back from the neighborhood than proposed in the current application.
The comment letter is due to MassHousing by the 22nd. Members discussed having Town Administrator Mark Purple follow up with the state’s assigned liaison to stress some of the legal concerns.
If the application still proceeds, the Board is requesting MassHousing’s authorization include (in my words):
• Prohibiting any access to Flagg Road (including via Blackthorn or Tara)
• Protecting abutters through greater setbacks, visual and sound screening, and “possibly” reduced number of buildings/units
• Requiring the applicant to provide enough detail on plans for use of the site’s remaining 83± acres to allow the Town to conduct appropriate impact review
• Specifying the applicant is responsible for any necessary upgrades/modifications to public utility services (especially for water supply)
• Requiring compliance with Conservation Commission’s recommendations for wetlands protection and stormwater management.
The Select Board’s letter also details the rationale behind those requests.
Among the attachments, a letter from the Conservation Commission describes the developer’s non-compliance issues for the prior iteration of the Park Central application. Previously, the developer filed multiple appeals in court and with MassDEP against Conservation over disagreements about the reading of wetland and stormwater regulation requirements. MassDEP sent the developer back to the Town Commission.
The court cases were held up, then ultimately dropped after the developer didn’t file an appeal of the Superior Court decision to invalidate the ZBA’s special permit.
Other attachments include messages and letters from 11 concerned residents, some providing a lot of detail about traffic safety issues and/or other concerns. (A letter from resident Lincoln Merrihew is 18 pages long.
Not included in the packet was a separate letter from the other Board that previously tangled with the developer in court. The Planning Board is submitting their letter with concerns directly to MassHousing, though they will copy the Select Board. (Scroll to the Update at the bottom for that letter and details.)
In prior meetings, the Planning Board has said they will call out a statement of fact in the application that they disagree with. The developer has indicated that the Use Variance for a 40A Town House project is still in effect. The Board has opined that it never went into effect since it was contingent on Planning Board approval of a site plan for the ZBA permit that was nullified in court.
The Select Board’s letter also calls out the issue, asking MassHousing to confirm that the developer doesn’t intend to also pursue building the Townhouse project under a Use Variance previously granted by the Zoning Board of Appeals. The Select Board describes it as expired.
Those opinions were counter to a statement by Town Counsel to the Zoning Board of Appeals last week. (Scroll down for that.)
Zoning Board of Appeals
The ZBA was a lightning rod for the controversy surround the last Park Central application. Ultimately, a court ruled that their permit approval decision was legally flawed as structured and negated it.
In preparation for the Park Central application likely headed its way, the Zoning Board of Appeal held a special meeting with Town Counsel last week. Attorney Jay Talerman gave the Board an overview of the process and answered questions.
Half of the current members had no prior involvement with Park Central permits and projects. Two previously ruled on appeals to the ZBA related to the process.** Only one member who voted to grant permits for the prior projects is still on the board.
Member Paul Drepanos was one of the three ZBA members abutters who alleged acted capriciously. During last week’s discussion it became clear that he hadn’t understood that his approval of the 40B was voided by the court.
Drepanos asked Talerman why the project was back in front of them. He followed, “I know there were a couple of appeals. Is the approval no longer valid?”
Talerman responded that “the court threw it out”. He followed:
not because of anything the board did per se on the 40B side. The court validated the decision on 40B it was the quirky issue of the variance wrapped into the 40B that caused its demise. Thought it was kind of interesting approach to it”
He noted that he was surprised that the developer didn’t appeal that decision and surmised he must have determined that reapplying was a better course of action. Asked by Drepanos if the Use Variance was still valid, Talerman responded that “ostensibly it might be, because the court didn’t rule on the legitimacy of the variance, just ruled that the 40B couldn’t be based upon the variance.”
That distinction is critical, since (prompted by outrage over the ZBA’s decisions) Town Meeting voters to stripped the board of its right to grant future use variances.
The attorney advised that if the Board doesn’t like the proposal, it should rule based on principle. They could either add conditions to that make it a project they can support, or deny it outright.
Talerman acknowledged that if the Board rejects the application, the authority for an appeal (the Housing Court) is decidedly pro-40B development. He also noted that over 90% of cases that make its way to the end decision are ruled in favor of the developer.
However, he qualitied that only about 50% make it all the way through that process. Talerman said that many developers drop projects that are being appealed rather than paying for continuing legal costs. (Meanwhile the Town’s agreement with Town Counsel is an annual fee not based on hours.) Other appeals are often settled out of court.
But Talerman’s advice also indicated that the Board would have a stronger standing in court if approved with conditions than if it denied outright. For a denial, the Board would be required to convince the court that there are significant impacts to environment or public health and safety that overwhelm the need to build affordable housing.
If the developer appealed a condition, they would bear the burden of proving it caused the project to be uneconomical. (And presumably, if an abutter appealed an approval or condition, the burden of proof would also be on them.)
In the discussion, Talerman advised the board against using the type of consultant that the ZBA took advantage of the first time around. The ZBA had relied on advice from a Technical consultant made available through MassHousing.
Talerman noted that the agency gives those consultants ” marching orders” to help facilitate a project approval. He followed that any information they need on the process will be available from his office. He hopes to personally attend each hearing, with other experienced staff members covering any he can’t.
Town Counsel promised that whatever decision the board decides to pursue, his office will work with them to make it “as defensible as possible”. The attorney was confident that the board should be able to get through the process within the 6 month window while meeting monthly (and keeping meetings to two hours or less), with the potential of one or two special meetings.
Counsel also advised that while the public has a right to comment in the hearings, it doesn’t need to be in each meeting. They may even want to dedicate some meetings for presentations and others for public comments. The ZBA Chair is also entitled to limit speech by time or cutoff if it gets too repetitive or “bombastic”.
The Board discussed having Chair David Williams will set commenting expectations at the start of hearings.
Conflict Appearance Questions
In an August meeting, two members of the Select Board stated they filed notices of appearances of conflict related to the Park Central application. Highlighting different appearance issues, a resident questioned if they should be involved in the process.
Member Andrew Dennington said that in a prior year his law firm represented someone that the developer sued. Resident Jonathan Green wondered by Dennington would want to be part of the Town’s actions. Green, a past plaintiff in one of the many legal appeals related to the prior project, noted Dennington’s role when he served on the ZBA. Dennington had voted against granting the Use Variance but followed with a vote approving the conditions. In the aftermath of the 40B decision (which he didn’t sit on), as ZBA Chair he was involved in other ZBA disputes with the public related to the project.
Select Board Chair Kathy Cook’s company rents space in an office building owned by Depietri. Green indicated that the relationship seems friendlier, with Cook purportedly having defended him in comments on this blog in the past.
*For those unfamiliar with the past appeal by neighbors or wondering why it wouldn’t have nullified the neighbor agreement: During the permitting process, the ZBA pushed abutters and developer to have external meetings and come to a compromise on a Use Variance project at the site. A set of neighbors signed onto an agreement in 2015. After the permits were ultimately granted for both the 40B and a linked 40A project, a different set of residents sued that the permit approved by the ZBA was invalid. The Superior Court judge ruled that the Board improperly used its 40B authority to usurp the authority other boards had over the permitting process for the linked project that wasn’t a 40B.
**Chair David Williams and Member Craig Nicholson were among the board members who denied 2016 appeals by the Planning Board and residents that the Use Variance had expired. They later rejected both the developer’s assertion that its site plan was constructively approved, and Planning’s denial of the plan. They instead voted to send the Site Plan back to Planning to reconsider, but only once the developer first received approval from the Conservation Commission (which never occurred). Neither sat on the original Use Variance or 40B decisions.
Updated (9/20/22 10:44 am): The Planning Board issued it’s letter this morning. Unlike the Select Board, Planning directly requested MassHousing to outright deny the application. The board stated:
we have several concerns regarding the inaccuracies presented by the proponent in the application as fact and truth and additional concerns regarding the site proposal, most prominently around safe access, and egress. This is the second attempt by the proponent to develop a landlocked property as a 40B. . .
Based on our prior experience and voiced concerns about the significant impact on health and safety as well as feasibility of a dense project on town infrastructure and utilities including water, schools, and public safety, we recommend that MFHA deny the application as submitted.
In between, the board referenced the applicant’s past unwillingness to collaborate with the Planning Board or to meet the requirements set by the Conservation Commission. The letter also includes a table (multiple pages long) detailing what the Board describes as “inaccuracies” in the application.
To read the letter, click here. The document also references and attaches the covenant with abutters and minutes from a Planning Board meeting with the prior property owner to show attempts to develop the “landlocked” site has been an issue since the 80s.