Above: Presenters showed the ZBA images of the “underutilized, overgrown, densely vegetated, unimproved land” sited for development of four large condo buildings directly behind, and accessing, a single family neighborhood. (images cropped from presentation)
This Wednesday night, the Zoning Board of Appeals will reopen its 40B permit hearing for the proposed building of 200 condo units on the Park Central site. The planned focus of the discussion are some of the most controversial elements to the project – the developer’s purported violation of terms agreed to with abutters agreed to in a prior “Covenant” and traffic the project will generate on backroads.
At the opening hearing in October, the board laid out a process for the hearing, heard a presentation on the overall project, and asked about the impact of litigation over the covenant.
Some residents have publicly questioned how the Town could hold hearings for the project when the applicant is in litigation with abutters about their ability to pursue the project as proposed.
One of the attorneys for abutters argued in a letter prior to the hearing that the ZBA wasn’t allowed to hold a hearing. At the hearing, and in a letter issued this week, an attorney for the developer argued at that the ZBA is not allowed to halt the hearings or even to consider the Covenant in their decision making.
At the October 11th Town Counsel Jay Talerman disagreed with each attorney’s position. He said that he believed the hearings needed to continue at this stage, but the project might end up conditioned on the resolution of the Covenant dispute. He also argued that the board may consider whether the Covenant has a practical impact on the project, even if not a legal one.
ZBA Member Michael Robbins told the public that the developer was legally allowed to keep moving forward at this stage. If the board halted the hearings and the developer won in court, the board and abutters “would be in a worse position”.
Project Traffic and Access
Residents have argued publicly that a large project on the site would lead to a dangerous increase in the number of cars using Flagg Road and offshoots. In the project overview in October, a representative projected that the development would trigger less than one additional vehicle per every three minutes.
He claimed:
“this is a particularly good site for ability to distribute traffic to the regional highway system. it is a unique site in the fact that it sits in the corner of 495 and rte 9. and although some of the access points may lie on Flagg Road, the development has been fashioned, not just with our own thoughts about access points, but it’s been heavily guided by prior conversations that we’ve had with the Massachusett Department of Transportation to help shape where those access points are, how traffic gets in and out, as it relates to the access to Route 9 Westbound.”
The project proposes to have a gated access point for development residents to enter and exit via Blackthorn Drive. In the Covenant previously agreed upon with neighbors, eliminating that access point (except for emergency vehicles) was one of the key conditions.
To help officials and residents follow the discussion at this week’s hearings, an updated version of the application with page numbers has been added to the Town website. You can find the documents and hearing schedule here.
More Details on the Covenant Dispute
In 2015, the ZBA pushed abutters of the initial 40B project to negotiate an agreement with developer Bill Depietri of Capital Group. The terms, agreed upon through mediation by a consultant for the ZBA, were put into a covenant. The developer agreed to some terms, including access points for the project and the siting of buildings, and the abutters agreed not to oppose the project or the linked townhouse development proposal. Although some residents did successfully appeal the permits, the abutters who signed the agreement weren’t part of the lawsuit.
After the developer’s new proposal was deemed eligible to pursue a 40B permit for their new proposal last winter, Hill Law issued a letter to the developer on behalf of two signatories to the covenenant that it violated the terms of their agreement. Among the violations are the proposed siting of large buildings close to the abutting land in the Tara/Bantry Road neighborhood and a proposed road access through Blackthorn Drive.
They also claim that if the developer wished to exit the agreement, he needed to adhere to a two year “cooling period” following notice of termination before reapplying for any permits on the proposed site.
In April, the developer responded by filing a claim in Land Court, requesting Declaratory Relief that the Covenant Agreement is unenforceable and/or inapplicable. Among the claims, the developers attorneys stated that the Superior Court’s nullification of the permit for the prior 40B project “in effect” nullified the townhouse project, which nullified the agreement. (They also issued a notice of agreement termination, but not until this past summer.)
Hill Law filed a counterclaim asking for the developer to be enjoined from pursuing permits and to cover their legal costs. A group of other abutters, referred to by their attorneys as “the Moving Defendants”, filed to have the developer’s case dismissed. That motion failed. They subsequently filed a counterclaim similar to the first abutters.
The next Case Management Conference with the judge is scheduled for December 20th. You can see more detail on the legal timeline and documents for the claims and counterclaims filed here.
Future Expectations
ZBA Chair Dave Williams said that he expects meetings to generally run no later than 9:00 pm, unless they are “close on something” and he believes an issue can be settled if they give it more time that night. But overall, he doesn’t believe late decisions will lead to the “best outcome” for the Town or applicants.
He plans to give the public a chance to comment and ask questions. If they run out of time on a given night, time will be allocated at the beginning of the next meeting. He will ask the public to avoid repeating previous arguments and be respectful.
The applicant has requested waivers to local zoning laws. Among those are requests that the Planning Board and Conservation Agent have already notified the ZBA of their objections to those requests. So look for more discussion on those points at a future date.
I expect the ZBA to update its dedicated page with future hearing dates and topics as they proceed. Videos of the meetings (like the October 11th meeting) will be posted on YouTube.
Updated (11/29/23 7:50 am): I added images and captions from the presentation.
Updated (1/5/24 9:50 am): I edited out the names of abutters at their request.
