Above: The ZBA Chair publicly doubts Planning’s motives for rejecting the Park Central Site Plan. The Planning Chair justifies to the public that they had been waiting for a “buildable” plan and would have continued hearings until they received it if the developer hadn’t refused. (images cropped from SAM videos of last week’s ZBA meeting and this week’s Planning Board meeting)
It’s time for another update on what is happening with the the 320 condo and townhouse development planned for Park Central. This one focuses on appeals and legal claims between developer Bill Depietri and the Planning Board.
Courtroom disputes between the parties were dismissed this month. (Though, a citizen’s case against the project is still pending.) Meanwhile, the developer’s appeals against Planning’s decision continues through a Town board.
The Zoning Board of Appeals opened a hearing on Planning’s rejection of the Park Central Site Plan last week. In the end, it was continued due to time constraints. The delay until February 15th will also allow the board to combine it with a second appeal filed by the developer.
Although the board has yet to vote, they have made their preliminary opinions on the first appeal known. ZBA members leaned towards overturning the Site Plan rejection without deeming it constructively approved.
Court disputes
Last September, the Planning Board filed, then later dropped, an appeal of the ZBA’s project approval. Depietri responded by filing for sanctions against the board and/or individual members as having acted in bad faith. He continued to press for legal costs after the appeal was dropped.
On January 10th, a Worcester Superior Court judge held a “Rule 16 conference” on the matter. At Monday’s Planning Board meeting, Chair Don Morris said the motion was dismissed without sanctions. Since then, member Meme Luttrell clarified the judge determined that the motion by Depietri wasn’t timely filed.
According to Luttrell, Depietri was told that he can re-file, but not against the individual members.
Lack of legal representation for the board has been a controversy. Selectmen repeatedly voted 2-1 not to allow the board to hire special counsel. It is the reason the board had to drop its appeal.
Once again, conflict of interest prevented Town Counsel Aldo Cipriano from representing Planning in the case. Instead, on January 10th, Cipriano represented the ZBA, a co-defendent in the original appeal.
But Morris told the public that Cipriano’s assistance that day, and leading up to it, was instrumental in getting the claim dismissed. Luttrell clarified that in this matter, the ZBA held the same position as Planning.
Cipriano testified that the ZBA wanted the case dismissed without sanctions as they did not believe the Planning Board acted in bad faith.
Luttrell also confirmed that she had felt compelled to hire an independent attorney to represent her. She couldn’t be sure if her attorney made a difference in the judge’s decision.
ZBA Appeal Hearings
Also last September, Planning rejected the developer’s Site Plan application for Park Central. It’s a decision that the developer is appealing in front of the ZBA. And he’s asking them to consider the Site Plan constructively approved.
Planning’s decision occurred in a meeting that took place after the board filed it’s appeal in court. Board members made clear that they needed final engineered plans and had a lot of details to go over. They asked for another continuance. Depeitri angrily claimed the the board was dragging its feet, refused to ask for another continuance, and left.
To avoid constructive approval, the board had to vote. Members unanimously rejected the plan as having failed “to furnish adequate information required by the bylaw” and for being too “intrusive on the needs of the public”.
Last week, the ZBA opened the hearing on Depeitri’s first appeal of the decision. Member Leo Bartolini was one of the presiding ZBA members on the case. An attorney for residents who have been seeking to oust him from the board called a point of order to object.
Attorney Gary S Brackett fervently tried to convince, Chair Andrew Dennington that Bartolini should be recused. Dennington argued that was Bartolini’s call. And Bartolini said that his attorney told him he could participate.
Depeitri’s attorney Angelo Catanzaro began his arguments by laying out a timeline to prove “constructive approval”. Catanzaro referred to the following bylaw language:
The Planning Board shall act on an application for site plan approval and shall notify, in writing, the applicant, the Board of Selectmen and the Building Inspector of its action within 60 days of the receipt of the application.
He claimed that clearly requires that a written decision be filed within 60 days of the application. The deadline had been extended until September 30th, the day after the board voted. But a written decision wasn’t signed until after their appeal was filed, well after that deadline passed.
After hearing from the applicant, Planning, and public commenters, Dennington began to take the pulse of his board. Members who spoke showed they were leaning towards agreeing with the developer that the Site Plan rejection was invalid.
Member Paul Drepanos, who sat on the initial approval, pointed out that the applicant hadn’t addressed all of Conservation Commission’s concerns. But his subsequent statements weighed against the Planning Board as always claiming they didn’t have enough time.
Bartolini asserted they had plenty of time given that they were receiving plans as the ZBA hearings were going on. And members Craig Nicholson and Dennington opined that Planning didn’t fully do its job in time allotted.
Morris rebutted that the board hadn’t been just putting things off. They had in depth discussions on project details.
In talking to fellow members, Dennington also quoted a statement in Planning’s written decision that said the applicant was erroneous in relying on the ZBA as final authority to approve the site plan. He then said he believed that their real reason for denying the site plan was their objection to the ZBA’s process.
On Monday, Morris seemed unfazed by those comments. He told the public that he believes the ZBA didn’t fully understand the Site Plan process. He implied they hope to remedy that for the continued hearing.
Morris said that the Planning Board’s site plan approval is based on plans that can actually be built. He furthered that throughout the summer, revised plans were promised “and to this day have never been submitted”. He said Depietri acknowledged there were serious wetland issues that still needed to be addressed.
As for the constructive approval deadline, the ZBA was wary of it as a “technicality”. The applicant was clearly aware of the decision.
Catanzaro rebutted that he had been waiting for the written decision in order to file an appeal. And he argued that the bylaw language is clear and should be enforced.
