Above: ZBA members listening to advice from Town Counsel about the unusual 40B situation. (image cropped from SAM video)
Last night, a representative for Park Central asked the Zoning Board of Appeals to consider the 40B Permit application “in abeyance” while litigation continues between the developer and abutters. The board agreed.
The hearing was continued to April 3rd, and the decision date extended. It wasn’t the decision that at least one group of abutters was hoping for. And the complicated status for “Safe Harbor” means that more 40Bs could be pushed through than would normally have standing.
At the prior hearing on November 29th, the board presented the developer’s attorney Jason Panos with three options. Those were: for his client to revise the application to meet conditions of a Covenant that the developer had signed with abutters in 2015, for the board to deny the permit, or for the hearings to be put on hold while the parties work out the Covenant dispute in court. On Wednesday night, they got their answer.
Panos told the board that since litigation appears to be on a fast track, with the potential for a trial this summer*, they will wait it out. He said that since the project couldn’t be on too long of a hold, he was asking for a continuance to the April Meeting. At that time, he will update them on the status and likely request another continuance.
After discussion and public comment, the board unanimously agreed to the request.
In November, Panos warned the board that if a denial was appealed to Mass Housing Appeals Committee (HAC), it could take the entire permit decision out of the ZBA’s hands — including potential concessions and conditions. Town Counsel Jay Talerman advised that under the circumstances, HAC would probably just remand it back to the ZBA. But last night, the board appeared to take that possibility seriously.
The board was asked about the impact if Safe Harbor is met by other 40B projects** while the Park Central application is on hold. (Safe Harbor means the Town has met housing thresholds*** that allow it to deny an undesired 40B project for not being in the Town’s best interest.)
Talerman said that for Safe Harbor, whether they denied the application or put it on hold was probably “a distinction without a difference”. He explained that the hold does keep the developer’s “place in line” for a 40B while litigation, but an appeal to HAC would have the same impact until that was resolved.
According to Talerman, if Park Central loses in litigation, then their place in line would go away. But if they prevail or settle after other 40Bs are approved that would allow the Town to reach Safe Harbor, “it ends up being a little bit of gravy”. (I assume the gravy is the extra 40Bs units the Town would approve.)
Talerman advised that he believed that the HAC would likely stay an appeal to a denial decision until the land case was resolved. But he believed that the ZBA would have a little bit more control of their destiny if they agree to the hold.
Attorney Benjamin Tymann, representing four abutting families, argued that allowing the developer to get in line and hold that place before he had the right to come in front of the board would be setting a bad precedent.
Talerman responded that if it was clear the application shouldn’t be in front of them, there would have been a summary judgement by the Land Court. Instead the case is headed to trial to determine the Covenant’s “ambiguous terms”.
Later, member Mike Robbins stated that, based on his reading of the Covenant, he was surprised there hadn’t been a summary judgement in the abutter’s favor. Tymann responded that it was too soon in the process.
Chair Dave Williams disagreed with the precedent concern, given the unusual circumstance. He believed the applicant’s request was reasonable.
Tymann also told the board that his clients have to pay attorney fees to be represented at each ZBA hearing. He said his clients would like the board to simplify things by denying the permit, and leaving the only dispute in land court.
Member Doug Manz expressed frustration at the position the applicant put the board in. But he believed denying the permit would further complicate things by opening a second legal front when the developer appealed.
Robbins said that as an attorney, he understood the fee issue and was sympathetic. But he believed that the abeyance allowed the board to still have some “semblance of control” and was the “least harmful bad option”.
Early in the discussion, Williams asked why the applicant didn’t choose to revise the application to meet the Covenant conditions. Panos stated that the terms were just one of the questions being disputed. The other was the applicant’s standing to be in front of the ZBA. He said that making the first adjustment didn’t guarantee that the dispute would be resolved.
*At a Case Management Conference for the Land Court case on December 20th, the judge ordered Discovery be completed by June 28th, counsels’ joint report filed by July 11th, and the next conference be held on July 18th.
**The 120 Turnpike Road 40B Project hearing opened on December 17th. Their next hearing is scheduled for February 6th. Although a hearing isn’t yet scheduled, Mass Housing also approved the proposed 250 Turnpike Road project as eligible to apply for a 40B hearing.
***The most common Safe Harbor threshold is having the number of low/moderate income housing units in town meet or exceed 10% of households on the most recent federal census for the town. (You can see more details on page 15 of the state’s Chapter 40B Handbook.) Without Safe Harbor, the ZBA’s ability to deny or curtail 40B projects has limitations.
