Park Central: Trial in process; testimony to resume February 1st

Above: An update on the Park Central trial in progress. (image cropped from January 2020 project plans)

This week, the bench trial opened for an appeal of the approval for the controversial 40B project at Park Central in Southborough.

The trial focuses on Southborough Zoning Board of Appeal’s 2016 granting of a comprehensive permit for the project. The complaint is lodged against board members in their capacity and the developer.

Opening arguments began on Wednesday morning. Attorney Angelo Catanzaro represented developer William Depietri and Park Central LLC. He noted that of the 21 original plaintiffs he believed there were 8 remaining.

Catanzaro stressed that only persons aggrieved by a project are considered to have standing to appeal. He defined that they must be “truly and measurably harmed by the decision the board rendered”. Catanzaro stated their intent to rebut claims of increased traffic dangers creating measurable harm.

Referring to abutters’ locations and the direction of traffic to and from the proposed development, Dan Pasquarello said that if his clients didn’t have standing no one would.

Pasquarello accused the ZBA of ignoring a slew of unresolved issues to barrel ahead with a decision on the same day that one of the three ruling members sold his house. [Then-member David Eagle moved out of Southborough, making him ineligible to continue to serve.]

Town Counsel Aldo Cipriano rebutted that the board acted properly following 30 months of review when 6 months is the recommended standard. He claimed that any outstanding issues were covered by 105 conditions included in the decision.

On Wednesday and Thursday, attorneys for the developer presented witnesses that included Depietri, consultant Ed Marchant, Public Works Superintendent Karen Galligan, and former Police Chief Joseph Mauro. 

The first two provided background and history of the complicated relationship between the 40B project and a previously approved market rate project.

Marchant is an expert on 40B housing projects in Massachusetts. He had worked for the ZBA to advise them on the process. As part of that role, he helped to mediate an agreement between the developer and several abutters in the Bantry Road/Tara Road neighborhood. (Those abutters aren’t among the plaintiffs in the suit.)

According to plaintiff counsel Ginny Kremer, the defendants had filed intent to also use Marchant as an expert on the legality of the project. Judge William Ritter agreed with her that it would be inappropriate. At one point during cross-examination, Ritter warned that Kremer her questions could open a door for the defense. He clarified that there was a difference between Marchant explaining standard 40B procedures and discussing the legality or propriety of how the specific case was handled. Kremer backed away from her line of query.

In Galligan’s testimony she indicated that in 2016 or 2017 she had determined that Flagg Road could be widened. Kremer asked her about a 2013 memo in which she informed selectmen that widening the road had been studied several times and considered not feasible. She explained that was before a number of trees died. Once she considered it a viable option to remove trees, she realized widening the road was possible.

There is a break in the proceedings until the morning of February 1st. The trial is scheduled to continue to February 2nd and again on February 8th and 10th. The public can continue viewing the trial over zoom.

Plaintiffs in the case had asked for the trial to be postponed until in-person attendance was possible. Ritter stated that the defendants were entitled to a speedy trial and this was an example of a case that was appropriate for the format.

The zoom format did cause some hiccups, but so far nothing that appeared major. Judge Ritter had to occasionally remind non-attorneys who called in to mute themselves. Incidents with screen sharing or audio difficulties briefly held up proceedings at times. Ritter continually encouraged participants to take their time. At several points, he sought feedback from attorneys on whether they had any impediments.

Prior to witness’ testimony, Ritter questioned them on where they were and who they were with. He reminded each to treat their testimony as if they were on the stand. He clarified that they could not seek or receive outside assistance or communications. They could only look at what was on the screen or refer to specific exhibits as directed by attorneys questioning them.

On February 1st, the defense is scheduled to continue questioning an engineer who worked on the defendant’s traffic study. The plaintiffs case could begin as soon as that afternoon. Included on their witness list to examine are the three ZBA members who voted to approve the permit.