This week, representatives for Costco and the property owners of 21 Coslin Drive updated the Planning Board on their plans to build a Costco in Southborough.
In the meeting, the board discussed a complication in the legal process. The Attorney General’s office held up its approval of the zoning bylaw revision that the project hinges on. The state is taking a closer look based on a complaint letter claiming the bylaw is illegal “spot zoning”.
Members of Planning and the attorneys appeared to believe this is just a brief delay in approving the zoning change. They assumed the AG’s office will soon approve the “Highway Major Retail use” on the old EMC property in the Industrial Park zone.
Most of the Costco discussion focused on the status of the project and the future application and hearings for a Special Permit and Major Site Plan Approval. That included the board agreeing to a plan to for expediting the process.
Legal Complaint
On January 12th, resident Carl Guyer emailed the Attorney General’s Office about the zoning change adopted by Southborough voters at the Special Town Meeting in October. He advocated that they “not allow this bylaw to stand”. He noted that while he didn’t know the legal definition for spot zoning, this “sure feels like it”.
Last fall, Special Town Meeting voters overwhelmingly approved a zoning update tailored to allow a use by special permit for a Costco-like project at 21 Coslin Drive. Leading up to the vote, there were a accusations by a few residents that by defining the use for only that parcel, the Town was implementing illegal “Spot Zoning”. The Town had also received a letter of complaint from the attorney for the owner of Park Central, a parcel that is also in the Industrial Park zone, but not eligible for the use based on the definition.
The developer’s counsel noted that municipalities often work with developers on tailored zoning to negotiate development projects that are for the community’s financial benefit.
In the case of the Costco project, officials were excited by the opportunity to bring in a retailer that would help the tax base and potentially attract additional commercial development. Planning members noted that developing the old EMC parcel for better commercial use was consistent with the Town’s goals in its official Master Plan.
Early on in the process, some members worried that the proposed bylaw change might be illegal. The sentiment changed after receiving a legal opinion from Town Counsel. In his October 20th memo, Town Counsel advised the board that illegal spot zoning refers to zoning arbitrarily approved by officials for the apparent benefit of the land owner rather than the community’s benefit.
In the written opinion, Attorney Jay Talerman cited case law defending his position that even if the zoning benefits the developer over other land owners, if the Town is implementing it for the community benefit, it is legal:
Spot zoning arises “when a zoning change is designed solely for the economic benefit of the owner of the property receiving special treatment and is not in accordance with the a well considered plan for the public welfare.” . . .
The municipality does not bear the burden of proving that the ordinance was reasonable, but need only “bring forward some indication that the zoning provision has some reasonable prospect of a tangible benefit to the community.”
In a public meeting, Talerman also advised that since the change had to be approved by Town Meeting voters after a public hearing process, the Town should be insulated from a serious legal challenge.
Before a zoning bylaw change is official, the state Attorney General’s office needs to approve that it complies with state laws. In this week’s meeting, Planning member Marnie Hoolahan asked for an update on news members received about the “hiccup” in that approval. The board recapped that in mid-January, they were told that the AG counsel assigned to the case had been about to issue the approval, but paused the finding after receiving the complaint.
In defense of the bylaw, the Town submitted Talerman’s written opinion from October.
I reached out to Planning for the complaint and opinion. Guyer’s email included the complaint:
What is wrong with the process is it is specifically allowing the new owner of this specific property to have development rights that have not been permitted in the past and still denied other to property owners in the zone.
In Talerman’s memo, he stressed that the Town’s choice to restrict the use from being allowed on other Industrial Park zoned parcels was legal, since it was done for the benefit of the community:
it is plain that the various qualifications under the High Major Retail use are not being established to confer a unique economic benefit but, rather, are intended to address common sense planning goals designed to protect the public’s health, safety and welfare. Particularly, the protection of adjacent residential zones, the preservation of scenic roads and requirements to ensure proper mitigation of traffic impacts are all valid rationales for imposing
conditions on the proposed use.
It’s worth noting that during the public hearings about the potential zoning change, Planning members were initially worried about the potential for the zoning bylaw to extend beyond the 21 Coslin Drive parcel. They discussed the potential impacts impacts if a large retailer was sited on parcels closer to neighborhoods or on backroads.
On Monday, Town Planner Karina Quinn said that she learned about Guyer’s complaint on January 13th. She had been under the impression that the delay was only expected to add about two weeks to the decision process. (So, the Town hopes to hear soon.)
The property owner’s attorney Robert Buckley indicated that he wasn’t concerned by the delay. He explained that the AG’s office needs to show they are giving the complaint due consideration and not dismissing it arbitrarily. Costco’s attorney, John Weaver, agreed. And he said it sounded like Town Counsel was taking the appropriate steps.
To avoid problems with getting approval for the Costco zoning change, the Planning Board had put on hold their work to update overall uses in the Industrial Park zone. Recently, they restarted that work, with hopes to bring a bylaw to Annual Town Meeting in March. (Stay tuned for news on that and other potential zoning changes.)
Application Status & Plans for Running Hearings
Buckley led the update in his continuing role as attorney for Atlantic Management. He explained that he and Weaver will act as co-counsel on the project application, but each representing their own client’s interest.
According to Buckley, both clients had given “marching orders. . .to get this done as expeditiously and efficiently as possible”. To accomplish that, he made two requests of the board: to form a subcommittee dedicated to the project and establish an “itinerary of topics” to focus on at individual meetings within the future hearing. The board informally agreed.
Project Status
Buckley told the board that the development team is working on decommissioning the existing building at 21 Coslin to prepare it for demolition.
The team expects to submit a comprehensive application for the site plan and special permit within the next few months. They have been tweaking the site plan and are trying to wrap up a traffic study.
Buckley noted that for most “projects like this”, the biggest issue is traffic. So they want to make sure they’re counts and analysis are accurate. He believed that study would be completed shortly.
No mention was made of their status for pursuing a license to sell alcohol.
Subcommittee & Itinerary Concept
Buckley suggested that to avoid confusion for the public and the board, a schedule should be set with hearing dates that focus on specific topics. Upon questioning, he explained how that would work, paired with the subcommittee concept.
For example — One night could focus on traffic, possibly lumped with another topic like “site circulation”. During that meeting, the public and board members would raise questions and concerns. Between board meetings, the subcommittee and development team could talk through the issues. They would then report back to the full board during regular meetings.
The public would still be able to ask questions about previously addressed topics in future meetings that aren’t the focus. But since the past discussions are public record, it would make it easier for the board to respond:
we had the same question and the consultants were told to find the answer, and we have the answer.
He pitched that it leads to more meaningful discussion “instead of always kind of spinning your wheels”.
The focused agendas is a method the Zoning Board of Appeals has used for many 40B projects. (Though, not with subcommittee meetings.)
