Today, was the final day of testimony in a trial over the Park Central 40B project. The date of final arguments has yet to be scheduled but won’t be until after May 21st.
Abutters are asking the Court to overrule the Zoning Board of Appeals decision based on members acting capriciously and/or with conflicts of interest. Their ability to do that was limited by restrictions imposed by the Judge.
Plaintiffs attorneys weren’t allowed to question Leo Bartolini, who was one of the three ZBA members involved and acted as Chair for most of the hearings. Bartolini was excused from testimony based on his personal attorney’s assertion about a medical condition. (You can read about that here.) This week, the plaintiffs failed to convince the Judge Ritter to change that decision.
In addition, while attorneys could question the ZBA members about the hearing process, they couldn’t ask about their thought process. Town Counsel Aldo Cipriano and the developer’s attorneys successfully argued that case law required the appeal to focus on the “four corners of the decision” and not the mindset of the officials that made it.
That left plaintiffs’ attorneys with a difficult line to walk when questioning former ZBA member David Eagle. Eagle was one of the other three members involved and served as Chair on the matter at the time of the decision. Questions were often halted by sustained objections (though the Judge did offer some leeway at times.)
Below are some of the facts that plaintiffs were clearly seeking to draw the judge’s attention to and defense’s counter arguments.
Questions on Conflict of Interest
Plaintiffs attorneys tried to demonstrate that both Eagle and Bartolini were inappropriately conflicted by business relationships with the applicant.
Questioned about conflict of interest forms and statements that Bartolini had made, developer William Depietri claimed that Bartolini had confused Depietri’s brother’s business with his. He claimed there was no business connection between them.
Several times during the trial, plaintiffs showed images of trailers labeled with Eagle’s company name, Eagle Leasing, on work sites owned by Depietri or his subsidiaries.
Eagle and Depietri both asserted that some trailers had been purchased by Depietri many years prior. Others Depietri said were leased by subcontractors without his involvement or knowledge. On cross examination, Eagle asserted that the profits from trailer use by Depietri and subcontractors was a miniscule percent of his company’s business.
Purported Arbitrary and Capricious Behavior
Plaintiffs sought to show that the decision was rushed through for inappropriate reasons. The hearing was closed and permit approved on the same day that Eagle, sold his home to move out of town. If the decision wasn’t made then, the hearings would have had to start over.
Eagle, Depietri, and defense attorneys all noted that the 40B hearings had dragged on for years with many hearings. Eagle maintained that the ZBA had sufficient information at that time to make a decision.
Plaintiffs noted that there were times when the hearing was continued by request of the applicant without any substance reviewed/discussed. They also stressed that the project plans were revamped along the way, therefore earlier hearings didn’t truly relate to the revised plans.
Abutter Majid Yazdani testified that he had raised the issue about Eagle’s plans to move at a ZBA hearing. Eagle had told him it was irrelevent. The ZBA’s decision was made on a day in which the meeting was opened before 5:00 pm. (Typically, ZBA meetings began at or after 7:00 pm.) A break was taken and a continued hearing was held later that evening with the decision made around 10:00 at night.
The hearing was closed over objections from residents in the room and a unanimous decision was made without any deliberation by members.
Plaintiffs’ attorneys pointed to letters sent to the ZBA in the days before the decision from the Planning Board, Conservation Commission, and a member of the Board of Selectmen (Brian Shea). Each cautioned that Planning and Conservation needed more time to review details related to the hearing. Shea’s referred to the ZBA as acting against advice of Town Counsel if they made a final decision prior to proper feedback from Planning and Conservation.
Plaintiffs also highlighted a letter from the Police Chief to the ZBA indicating that a proposed conditions around restricting turns out of the development was one that his department would have trouble enforcing.
To further emphasize Town officials’ concerns at the time over the process, they questioned the Chairs of the Planning Board, Conservation Commission and Board of Selectmen.
An attorney for the developer countered by pointing to contingencies in the ZBA’s decision that require some approvals from Conservation and Planning.
Plaintiffs also highlighted the ZBA’s decisions to grant waivers to the developer related to Planning and Conservation oversight. And they drew attention to the method in which Eagle suggested that the developer propose a “reasonable” mitigation figure rather than the ZBA proposing one. (The mitigation funds purportedly would not cover the estimated costs of remediating area roads to be safer.)
While some of Plaintiffs questions related to either Eagle or Bartolini, and some to the Board as a whole, none appeared to focus on the sole member that is still serving on the ZBA, Paul Drepanos.
Testimony prior to this week covered concerns over road safety and traffic. That theme was also raised during questioning of Planning Chair Don Morris and then-Chair of the Board of Selectmen Brian Shea.
Next Steps
At a meeting Ritter expects to discuss scheduling of arguments at a meeting on the morning of May 21st. Between now and then attorneys will be working on submissions to the court. Judge Ritter also ordered all sides to work together to provide a list of established facts they agree upon.
