Above: An appeal held over zoom of the ZBA’s approval of Park Central decision is heading to a final decision. (image right by Chris Potter from wikimedia)
A trial over the Park Central 40B project is scheduled to resume (virtually) Wednesday, September 22nd at 2:00 pm.
The trial is an appeal of the Zoning Board of Appeals’ approval of the controversial development. Due to the pandemic, the Worcester Superior Court Judge ordered it be conducted as a Jury Waived Trial over zoom. Opening arguments and testimony were conducted in February and March of this year.
Abutters to the proposed housing complex raised concerns over road safety the project poses. They argued that the three deciding ZBA members rushed to a decision without taking issues seriously. (The ruling was made the night prior to a member closing on his house, which would have rebooted the process due to lack of quorum.)
Attorneys for the defense questioned plaintiffs’ standing and argued their case has no merit.
Initially, Judge Ritter ordered both parties to file Post-Trial Submissions, including a statement of Agreed Upon facts, by late May. On May 25th, the Court approved an extension due to a delay in production of court transcripts. The docket shows final submissions were made on June 7th.
Those filings included:
- Plaintiffs’ and Defendants’ Submission of Agreed Facts
- Plaintiffs’ Post-Trial Brief
- Plaintiffs’ Proposed Finding of Fact
- Defendant’s Request for Legal Conclusions and Rulings of Law
- Defendants Proposed Findings of Fact
- Defandants’ Argument for Plaintiff’s Lack of Standing and Failure to Plead Sufficient Facts
For a link to the zoom session, look for an update to this post between now and the trial.
Updated (9/22/21 9:45 am): I received confirmation that the zoom details for this afternoon are the same as for past dates.
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Thanks for the update Beth. All town residents should take a hard look at the documents posted above. Contrary to customary practice of towns typically not jumping in (very unusual), former town counsel did not remain neutral at all and stand down as claimed all along. He actually signed the developers final arguments, attacking the standing of town residents who are taxpayers who are the town. This was allegedly done without any discussion, knowledge, or authorization of the Chair of the Board of Selectmen.
Town counsel sat next to developers counsel in court the entire way, benefiting the developer. Now this. Signing the developers documents. This is ultimate controversial betrayal of the towns trust, town resident’s safety, and common sense. How is it the BOS had no idea? As a board they allegedly had no knowledge, didn’t read the documents obviously, (apparently had no access to them?!) and of course, presumably were not instructing their employee, the very person hired by them. He did not have his contract renewed in June. He is now replaced by new town counsel who actively worked against the anti corruption Article 1 (reaffirming ZBA quorum of four to hold a meeting) at the Attorney General level. In spite of this, the article is now law.
Deeply concerning as well, is the fact that the judge is apparently the former law partner of the Lieutenant Governors husband (?!) according to press articles. Guess who held a political fundraiser for the lieutenant governor right here in town? All these undisclosed and controversial undercurrents are concerning. One can only hope that the BOS takes better care of business and sides with the health and safety of the very people who put their trust in them and fairness.
Lack of Awareness,
Clearly you know little about how lawsuits and courts work. You’re attacks on Mr. Ciprano are at best as a result of ignorance of the process or at worst an intentional distortion to deceive those who are. The town is named as a defendant in the suit along with the developer. It is the duty of the town to defend itself as it does in all cases along with every other municipality in the Commonwealth. When you’re in court there are two tables, one for the plaintiffs and one for defendants, the town and developer are defendants so according to the rules of court they are seated together. You find it shocking that the town would sign the defendants submissions to the court, well they are the defendants so ergo the documents they submitted would be entitled defendants…, It is the Board of Appeals that are the principle defendants here not Park Central as it’s their decision being litigated and Park Central does not have standing to defend that decision only the Town does. As far as your outrage about the town challenging the plaintiffs standing to bring the suit it is misplaced. When defending a lawsuit you present all reasonable defenses and the failure to do so is malpractice. I would hope in the future you do some research and have an understanding about the subject at hand before you needlessly slander someone.
Clearly you know little about how municipalities and legal counsel are SUPPOSED to work. In the vast majority of cases, towns and town counsel allow private land owners settle disputes in court between themselves. The town almost always stands down, not wasting taxpayers dollars.
Also, in all municipalities, Town counsel is supposed to keep his or her boss at a minimum in the know. That allegedly did not happen here. The big takeaway is this: the town residents are the town, and the persons paying for this mess. In this case, defense counsel was called out in court for misrepresenting the record multiple times. That is not professional. That is much worse. The judge’s decision will supposedly take many months to decide. It’s clear you haven’t taken a ride on route 9 at 495 these days by Park Central. Check it out.
Comedy Central,
I would gladly put my experience working with Town Counsel against yours any day of the week. I wouldn’t count on a decision from the judge for at least 5-6 months.
In addition to the above posted documents, voters should google the May 2017 ZBA Decision, signed by Andrew Dennington (then ZBA chair), propagating “Residual Site Plan” review (see Condition #13 of May 2015 Use Variance, Park Central.), as originally fantasized by the now former town counsel. There is no such thing as “residual site plan” review in any town bylaw, or in the state of Massachusetts for that matter. Basically, it is a concocted attempt to usurp Planning Board review. That contorted legal argument was testified against by the decades more experienced expertise of the Planning Board Chair. He had never heard of it in his 35 years on the Board. Later, along comes Dennington who runs for BOS on the premise that he had nothing to do with the controversial Park Central decisions, but it’s his signature on the May 2017 decision that sealed the deal and helped further the efforts against elected officials, Planning Board. Unbelievable. A previous comment on this blog said it best:
“Side Show Bob: Dennington’s answers on Park Central make no sense. He talks like he’s part of Team Park Central. Like the town is just going to have to eat this….because it’s 40B law. Utter nonsense. This is a most disingenuous answer. This is NOT about 40B, this is about a massive commercial development (tacked onto a 40B) that is in the wrong place, a dangerous place for residents. This is about a midnight process run by 3 rogue ZBA members that had wanted for whatever reason to grant the developer some massive concessions in a comprehensive permit and use variance, and found crazy ways to disintermediate other town boards and committees, (possibly with guidance from town’s legal advisor). He doesn’t speak to this set of issues at all, hand-waves to the side show. I’ll never vote for such.”
Now town counsel is gone, but signs the developer’s paperwork as a parting gesture, allegedly without the knowledge of BOS. Here comes new town counsel joining the party on Wednesday, same guy who fought AGAINST the town anti-corruption Article 1, requiring a four person quorum to hold a ZBA meeting, as it had been practiced for decades. Dennington argued against that as well. It’s easier to get rid of a bylaw than abide by it apparently. Thanks to the town voters who rejected all of this baloney legal “opinions,” town residents overwhelmingly voted Article 1 in as law.
This is an example of how a community is fighting corruption at the local level. The fight has been going on for years and you may ask yourself why you should care.
Well, you should because if this is allowed, this type of corruption may happen next in your neighborhood, directly impacting you and your family.
This is bad for Southborough. Not just the project itself, but the malfunction of the town municipal government. Other towns must be laughing. Town residents should not have to monitor every move our officials make to make sure they act in our best interest: Town counsel sitting on the developer’s side, signing documents on his behalf is a clear conflict of interest! Town residents pay for the town counsel to represent us, not developers. Board of Selectmen not informed! Waived reviews and bylaws!
These facts alone should be sufficient to stop this project and have the developer reimburse all litigation costs.
But there is more:
Irregularities, threats: The project approval was bullied through, expanded as it went along.
Road safety: Even today there is not enough space for traffic to egress from Flagg Rd to Rt 9. Increased traffic load on the adjacent quaint New England residential roads: Lovers Ln, Deerfoot, Clifford, Main Street/Rt 30 etc.
Abutting residents: Concerned residents spending millions in litigation trying to expose and hold those responsible for this corruption accountable, and stop this project.
Environmental impacts: Very premature environmental impact decisions.
As a town, we can and we have to do better, we all need to work together to call out bullies and hold them accountable. Call your representatives, voice your concerns by attending meetings and committees. Our neighboring town Framingham recently abandoned its municipal government, we should not have to do the same.
I want to be sure other people in town realize that the debate about this is NOT about housing. It’s the LOCATION of the housing. It will wreak havoc Flagg Rd, Lovers Lane, Deerfoot, Clifford, etc. It is already very unsafe to drive on these narrow roads, let alone walk, and we have kids and adults who walk these roads and should be able to without fear of a huge spike in traffic on these country roads.
The almost comical footnotes to this lopsided process was today in “zoom” court when defense counsel, Catanzaro, had high praise for comp permit decision under appeal, calling the decision “genius,” in the way it linked the 40A market rate project to the 40B project, doubling the size of the project. (This has never been done in the history of Massachusetts btw, pretty bold right?). His self-serving compliment was a simultaneously humorous and vomit inducing moment of irony: Catanzaro wrote the comp permit decision, not the ZBA or town counsel, as taxpayers might expect. No, folks, as pointed out in final arguments, in this town the developer’s counsel writes the comp permit decision language and then pats himself on the back later in court in the end. From out of state, Vermont, by the way. The night of the approval back in August 2016, as plaintiff attorneys pointed out, the draft decision was circulated at the last possible moment amongst the 3 Zba members jamming it through, without providing copies to the public. After all, why would they care to read it? New town counsel, who wasn’t there in 2016, with great “reluctance” jumps in today reminding the judge that the controversial zba members are only little ole amateur volunteers, with their direct email communications to the developer (“ex parte” which is illegal) on what should go into the final decision, all while the public is deprived of fair and open process or even a copy of what is deciding the fate of the residents. Laughable and sad.
Catanzaro also complimented the judge with high praise for treating the defendants so favorably in the past. (See the transcripts: this is what prompted Catanzaro’s appalling request months ago in open court (say what? Yes that’s illegal, but who cares?) to have this judge Ritter preside versus the previously appointed judge, only to get his wish (!) late last year, without the knowledge of plaintiffs counsel, who learned same later. Developers counsel was communicating with the court clerk via her personal gmail account versus state email account, without any cc’g of plaintiffs counsel. (But again, why would anyone check or care?). In the end, if the Governor only knew, the law and fair play are seemingly out of reach for your average joe who just wants to appeal and right what seems to be terribly wrong. Residents were refused their day in court in person, and this closely watched trial was reduced to Brady Bunch squares on a computer. Who cares that the taxpayer residents paying for all sides of this mess are disrespected to the point of their own roadways being not included in traffic studies and never provided copies of a biased decision (never mind give feedback on) that would alter safety of roadways and lives forever. This town instead fought the standing of its own residents on their own legitimate and legal right to appeal and be heard on the very matters that will impact health and safety forever. Take a look at the BBO website (licensing agency for attorneys) for the public admonishment of developer’s counsel: this is who wrote the comp permit decision. Unbelievable.
Beth, can you please repeat the links just posted to pics 1, 2, and 3 here of 18 wheeler tractor trailer on Flagg Road under this article about Park Central and Flagg Road as well for reference purposes? This trial is all about Flagg Road. Also there are photos of fire truck / safety vehicles unable to pass other vehicles on Flagg Road, including snow conditions. Hoping that the reader with those photos can also send to you for posting.
BTW, a clarification on the above and Catanzaro: the word he used was apparently “brilliant” in his crass self brag about the attempted “link” of the market rate add-on ancillary residential project contained in the Comp Permit Decision to the 40b project (which is against 40b law). There are a number of adjectives that come to mind, but neither genius or brilliant are appropriate or applicable words. Also, it is highly objectionable that when new town counsel was late showing up for zoom court, keeping everyone waiting, it was developers counsel who jumped on the phone to get him to dial in. This illustrates a familiarity that smacks of a certain bias and too familiar with the defendants. Doesn’t sit right.
Here are the photos you refer to. They were submitted by “Resident of Flagg” to be shared in comments under the story on truck traffic in town. For that commenter’s description of the incident, click here.
photo 1 photo 2 photo 3
I think this project is great for the town. It takes care of needed affordable housing, it’s on route 9 in an already commercial area and the roads in question argued to have traffic impact need to be widened anyway. It’s time to expand the roads, add sidewalks and get safe access to our publicly funded schools and keep our kids safe. We all need to embrace it and get this tax money into our town which very much needs more tax base since we are losing so much to St. Marks and other “non-profits” that keep expanding their footprints.
Oh please, have you ever been on Rt 9 by 495? I imagine you have but you seem to be mistaken about the traffic. It is already a total disaster and I can’t imagine they’re going to widen it any time soon. Adding sidewalks to Flagg? Where have you been? Methinks you’re in cahoots with the developers here.
It is proven that this project will cost the town money, not generate it. Please review the data and the facts.
“expand the roads, add sidewalks” !! Seems fantastical that the town could seize so much property from so many homeowners.
I do think the topic of lost revenue as non-profits buy local properties is a worthwhile discussion. I wonder if there’s a way to add some sort of local fee or tax to any sale that removes properties from the real estate tax rolls… a fee significant enough to give the Town some time to better deal with the lost revenues.