Above: A public trial will be held over zoom this week. Residents concerned about the outcome of a Park Central appeal can zoom in to view it starting tomorrow morning. (image right by Chris Potter from wikimedia)
This week, a “jury-waived trial” opens in Worcester Court against Southborough’s Zoning Board of Appeals and the Park Central developer. The case is an appeal of a decision to allow a 180 unit condominium development be built off of Flagg Road.
A reader shared a zoom link, encouraging residents to watch the proceedings (and signal to the judge public interest in the outcome).
The large development at Park Central (which also includes a proposed Town House project under a linked Use Variance) has been a subject of controversy in town. The proposed development spawned massive opposition from area residents, several appeals, court filings and even Citizen Petition Town meeting Articles.
In September 2016, residents were angered with the ZBA put an end to hearings and ruled to grant the Comprehensive Permit – one day before one of the three members (David Eagle) moved out of town.
This particular case was filed by 20 Southborough plaintiffs against the board members* and the developer (William Depietri and Park Central LLC). The suit is primarily based on the allegation that the approval was built on an underlying approval for the Use Variance that the board was “made aware” had already expired.
In addition, plaintiffs argue that the board was improper in approving the project despite “legitimate objections raised by the public pertaining to demonstrable public health and safety issues”.
The suit alleges:
The August 24, 2016 Decision of the ZBA is arbitrary and capricious and fails to protect the health and safety of the prospective occupants of the proposed housing, abutters to the project and other residents of the Town of Southborough.
They further allege the board exceeded its authority and:
failed to comply with applicable procedural requirements during the course of the public hearing process and acted in a grossly negligent and careless fashion in approving the Comprehensive Permit.
They are asking the court to annul the ZBA’s decision and “Enter such other relief as this Court deems fair and just.”
Over the summer, Town Counsel Aldo Cipriano told selectmen he was trying to convince the court the officials shouldn’t have to testify. According to Trial records, on January 5th, the court held a hearing on motions by both sides to exclude evidence or testimony.
The judge denied defendant’s motions to prevent questioning of the defendants and prevent the plaintiffs from introducing evidence including on allegations of bias or conflict of interest.
A decision on the plaintiffs request to “Preclude Expert Testimony From Edward Marchant on Legal Issues” has been reserved for trial. A motion by plaintiffs to delay the trial until after that motion is ruled on was also denied. According to Metrowest Daily News, the plaintiffs’ requests to appear in-person were also denied due to Covid safety guidelines.
The trial will open with the defendants arguing their case this Wednesday and Thursday (January 13-14). It isn’t yet confirmed which days the plaintiffs will be heard. The ZBA members sued have been subpoenaed.
The proceedings begin at 9:00 am on Wednesday morning over zoom. (The Meeting ID is 161 434 1135 and passcode is 933634).
*The suit is filed against Leo Bartolini, Jr., David Eagle, and Paul Drepanos “as members” of the board. Although, the first two no longer serve on the board, they are the three officials who approved the comprehensive permit in 2016.
Updated (1/13/20 8:09 am): In the 3rd to last paragraph, I inserted a fact from the Metrowest Daily News’ coverage.
I will be watching & encourage residents to watch how our Town Counsel handles this case. He is supposed to work in the best interest of the residents; Still waiting for that to happen.
Stay tuned. Additional court dates are February 1 and February 2. Save the dates. Let your thoughts be known to the Board of Selectmen.
This town counsel is fighting against the health and safety of town residents on the taxpayer’s dime. We are paying him! He has sat next to the Developer’s attorney in court the entire way. At one recent hearing where town counsel did not attend, the Developer’s attorney said that he was “authorized” to speak on behalf of town counsel. The developer appears to be benefitting from this. Town counsel was right there during the process advocating for “residual” site plan review of the market rate portion of the proposed project. There is no such thing. Not in Massachusetts law and not in the Town of Southborough Bylaws.
This town counsel has attacked the standing of this town’s own residents and failed. He and the developer’s attorney are expected to continue to do this right now, in spite of safety and health concerns raised by many boards and committees, as well as attorneys, and residents.