Town Meeting voters who approved the “land swap” with St. Marks School may have thought controversies over the park and street road project abutting the Old Burial Ground would finally be laid to rest.
That hasn’t happened yet.
Town Counsel recently advised the Select Board that the park plans don’t require official Site Plan Review. Planning Board members publicly rebuked the Select Board — accusing them of continuing to prioritize chasing deadlines over following proper process.
The disagreement took place at the Planning Board’s June 27th meeting at which former Select Board Chair Kathy Cook and current Chair Andrew Dennington were present, along with Town Counsel.
Members of Planning expressed “disappointment” that the Select Board wasn’t following the process that was publicly agreed on leading up to the Town Meeting vote on the land deal. Cook argued that she didn’t “agree”, just “accepted” what she was told was required and recently learned wasn’t. Dennington wasn’t yet willing to commit to voluntarily submitting plans for Site Plan Review. And the Select Board has yet to publicly discuss the issue as a board.
Planning also questioned if the Select Board would live up to its promise to reconstruct the improperly removed historic stonewall at the site.
Below are more details on the disagreement and the status of the project.
Planning Chair Meme Luttrell opened the June 27th discussion, updating her board on the situation.
She reminded that when the Select Board was preparing to bring the land swap to Town Meeting voters, she and Town Planner Karina Quinn met with Cook to agree on the process. (Lisa Braccio, who was a Select Board member then and is a Planning Board member now, was also present for that meeting.) They discussed the park plans coming to the Planning Board for Site Plan Review. Luttrell said that the Select Board members agreed to that process which was later reiterated in public meetings (including at a joint meeting in May).
Since then, Town Planner Karina Quinn received emails informing her that the Select Board wasn’t pursuing Site Plan Review based on Town Counsel advice.
Explanations from Quinn and Town Counsel Jay Talerman revealed that the dispute over zoning requirements stemmed from disagreement over how use of the park should be defined under Town bylaws. (Scroll down for details on the interpretation issue.)
Not for the first time, the Planning Board lamented that they don’t have independent legal counsel. Members noted that Talerman represents the interest of the Select Board. Member Marnie Hoolihan suggested putting in a formal request to the Select Board for access to special counsel on the issue. Other members worried that under the circumstances it would be a waste of time.
Quinn noted that she believed the Building Commissioner’s opinion was needed as the Town’s Zoning Enforcement Officer. She hadn’t heard back prior to the meeting. I followed up with Quinn this week. She shared that Commissioner Casey Burlingame informed her that he agreed with Talerman’s legal opinion.
But during the meeting, Planning members argued that even if Town Counsel was right, the Select Board should voluntarily submit to Site Plan Review in the spirit of cooperation. It had been the boards’ joint expectation (and publicly communicated) leading up to Town Meeting. Now those plans were changing “at the 11th hour”.
Cook defended that she wasn’t going back on her word to Planning since she hadn’t “agreed” to a process. She specified that she had accepted Luttrell’s and Planner Karina Quinn’s assertion at face value that Site Plan Review was required. Now, she had learned from Town Counsel that it isn’t. She argued that Luttrell hadn’t clarified Site Plan Review might not be required. Luttrell countered that she was still convinced it is required and that if Cook had doubts she should have inquired months ago.
Cook and Planning members discussed possibilities for the Select Board to voluntarily seek a less formal review by the Planning Board. Stein suggested that the board could look at the plans even after it goes out to bid, assuming that changes they had wouldn’t be significant enough cause a problem. (That was apparently the path Cook said she originally intended to take for an official Site Plan Review.)
But Dennington warned against coming to an agreement without his full board’s deliberation. He pointed out that he and other Select Board members had never voted on the “agreement” that Planning was upset they weren’t standing by. And he indicated he wasn’t convinced that the plans should be submitted for review.
Stein later argued that Site Plan Review by the Planning Board was for the good of the Town, since it is the Planning Board’s area of expertise, not the Select Board’s.
That morning, the Select Board had signed the Purchase & Sale agreements for the purchase of land from St. Mark’s and sale of land to the school (more than 60 days after Town Meeting.)** Closing on the deals was scheduled for this Friday, July 7th. The board was eager to move ahead with plans for construction.
Earlier in the meeting, Planning voted to endorse the “Approval Not Required” application to divide the parcels involved in the sale. (I color coded the ANR map right to clarify which parcels are being sold and retained.) The parcel being accepted by the town (in light green) will be combined with existing Town property for creation of the new section of St. Mark’s Street and a “pocket park” next to the Library.
Cook discussed the need for the continued roadwork be covered under the original contractor this summer to avoid additional costs. The Select Board was also hoping to complete construction of the park this year. To that end, they hoped to issue the bid mid-July to build in enough time to have work completed before late fall.
Mitigation for removed stonewalls and trees
Without Site Plan Review, Planning members asked how they could ensure the Select Board would follow through on installing the stonewalls and trees they committed to as mitigation for those taken down on St. Mark’s Street in 2020.
Because the wall and public shade trees were on a designated scenic road, removing them required approval by the Planning Board in a public hearing. The Town had bypassed that process. At an overdue public hearing was held this May in which Select Board agreed to replant eleven trees at the St. Mark’s Street and Marlboro Road corner and reconstruct the historic stonewall, with a length at least as long as the original.
Planning members highlighted that park design plans created based on suggestions by the St. Mark’s St Working Group don’t include stonewalls. (The plans do include at least 11 trees, with 7 to be a “layered” mix of evergreens and deciduous trees by the Old Burial Ground to help provide a windbreak.) Dennington pointed out that the separate plans for the road construction work already include stonewalls to be rebuilt. But Planning members countered that it only showed 80 feet, and the original wall was 100 feet.
Dennington mentioned that the St. Mark’s Working Group had discussed including an add alt to the RFP to find out how much it would cost to add in a stonewall barrier around the entire park. (An “add alt” allows an underlying bid to be accepted without accepting the additional work if if its too pricey.) But he followed that he worried that including the alternate would overcomplicate the RFP process and increase the risk of not getting any bids back.
Later, Dennington asked for clarification if the stonewall was the only reason that Planning wanted to review the site plan. The answer was no. The discussion was ended without any clarity on next steps or if the item would be discussed at a future Select Board meeting. (They are scheduled to meet on Tuesday, July 11th. The agenda has yet to be posted.)
As for the parcel being accepted by St. Mark’s (the current St. Mark’s Street intersection with Marlboro Road), it will be combined with the center parcel they are retaining for creation of a larger parking lot. According to Quinn, the school recently confirmed that they will be bringing that to the Planning Board for Site Plan Review (likely in August).
Bylaw Interpretation Disagreement
To explain why she believed Site Plan Review was required, Quinn opined that the park is a recreational parcel, so subject to a Town zoning bylaw provision that parking be provided for: “Theaters, membership clubs and places of amusement, recreation and assembly (public or private): one space per four seats.” Those uses require “Off-street parking spaces shall be provided . . .and not more than 25% of the required parking spaces, other than for dwellings, shall be located in the required front yard.” Under the bylaws, any uses/buildings that require off-street parking “shall be subject to the site plan review and approval by the Planning Board”.
Talerman stated that the recreation use Quinn pointed to “clearly contemplates a structural element where there is going to be formal seating. This is a park space that is adjacent to the library. There’s no seating. There’s no assembly required. It’s simply a landscape space that people can enjoy. There’s no Band Shell. There’s no setup for permanent amusement or anything like that. It just it’s a square peg and a round hole.” He didn’t believe the plans “trigger” a formal review.
Stein questioned Talerman about the “no seating” description, referring to the story time area and benches in the artist’s rendering. Luttrell called the grass story time area “grass seating” and Stein noted it was “for people to assemble” for story time. Talerman rejected that, arguing that their definition would apply to any public property with a lawn.
*The St. Mark’s St Park Working Group voted 4-1 to recommend naming the park Southborough Heritage Park. Members spoke about their hopes that historical markers/a history walk will be incorporated into the park in the future. They referred to Heritage as not just referring to the history of the official town. It can incorporate the indigenous people and serve as a “living legacy” to incorporate the heritage of future generations of residents.
Only member Bill Sines opposed. Noting that the use and focus of the park could change over time, he advocated to name it “The Park at Southborough Center”. The ultimate decision will be made by the Select Board.
**A reader pointed out that the agreement signed by the school and Town prior to Annual Town Meeting included language that the P&S needed to be executed within 60 days of Town Meeting approval or the terms would be null and void. However, while the agreement was publicly shared so that voters would understand the terms, the Article was not based on that specific document. Instead, the Warrant and Motion referred to granting the Select Board authority “to enter into agreements for the conveyance of such land, on such terms as the Select Board shall determine”. And the agreement doesn’t appear to me to bar the Town and school from entering a new P&S if that agreement expired.
What I can’t yet say is if any terms were altered/renegotiated after the agreement expired. The Select Board’s discussions about the P&S were in closed executive session and no document has been posted yet. I have reached out to the Town and put in a public records request. When I do receive it, I’ll update this post. (And if there is anything worth highlighting, I’ll write a new story to share that.)
Updated (7/11/23 8:21 pm): I received the copy of the executed P&S agreements that I requested for the land deals. Each party will pay $1 for the parcel owned by the other, with agreements to be closed on concurrently. (That should have happened on the 7th.) You can view the documents here.