Above: A proposed apartment building at 120 Turnpike Road might be shifting further from the conservation land some are organizing to protect now that Town officials claim the originally planned footprint is on land that the Town is entitled to. (images from renderings and breakneckhill.org.)
The 40B process for a housing project at 120 Turnpike Road hit another snag. Recently, Town Counsel opined that 6.2 acres of land gifted to the Town by the prior owner is an existing condition for the property site plan.
That would prevent the new owner from building a 60 unit 40B on the land as had been planned.
Based on the passionate public response, Ferris Development hit rewind on its request for the Planning Board to remove the condition. The developer is reexamining the plan layout for a different potential compromise.
But the developer didn’t hit a big pause on the 40B process.
This week, the Ferris Development’s attorneys asked the Zoning Board of Appeals to move into the Peer Review phase of the project and keep on schedule to meet again in June.
The board was told that even if changes are made based on a compromise, they expect the size and scale of the project to be similar enough for the Peer Review to not be a waste of time. The aspect that the ZBA was most confident wouldn’t be impacted was review of the Traffic Study. But they were also persuaded that some work related to the building design may still be relevant enough.
The 40B project proposed behind office buildings on the property and abutting Breakneck Hill Conservation Land (BHCL) had already been complicated by multiple legal issues related to zoning laws and prior permits. The most recent hurdle is based on a condition in a 2019 Site Pan Modification approval by the Planning Board.
When the past owner of the commercial property sought approval for adding a parking garage, it offered up 6.2 acres adjacent to Breakneck Hill Conservation Land. Ferris’ attorneys have argued that as nullified based on lapsed special permits for the work that were never taken advantage of.
But Town Counsel has noted that the condition is in the Site Plan Approval and that was utilized for changes that were made on site (including the addition of pavers). He asserted that condition is not negated by selling the property, lapsed permits, or the new owner offering to remove the pavers.
The gift could be rescinded if the Planning Board voted to modify the site plan to remove the condition. That was a possibility that many residents showed up at the April 29th hearing to oppose.
In the hearing, Ferris’ counsel pointed out that the Select Board never officially accepted the gift for the Town, and the prior owner and Town didn’t follow through on an ANR to split the 6.2 acres from the rest of the property. (Planning members pointed to the timing of Covid as having caused disruptions that were the likely reason those steps weren’t followed through on before the property’s sale.)
Based on the sentiment of the board, and passionate statements by public commenters, attorneys asked to withdraw their application without prejudice. Planning held off on voting to allow more board members and the public voice their opinions.
After several public comments, CEO David Ferris approached the mic and repeated the request to withdraw the application. He suggested he wanted to see if engineers can come up with an alternative plan for the site that the community will better support. He indicated that the Planning Board may be willing to waive some of the parking requirements in order to help make shifting the footprint of the building work.
Earlier in the meeting, both the developer’s attorney and Town Counsel acknowledged that the situation is muddy enough that the Town and developer could end up in long litigation. Pointing out that he is a resident who grew up in town, Ferris told the room that he wanted to avoid that:
I’m a compromising guy who’s trying to do the right thing in the community.
He asked for residents who had come out to oppose their request/project to share their contact information with his attorneys so they could see if another avenue is possible.
The development firm had tried to negotiate for support from the Town by offering the following items in exchange for the Town relinquishing claims on the 6.2 acres:
A 5.30 lot on Brigham Road for conservation. It would have been purchased by Ferris Development to donate. (See lot “&R” on map right.)- At 120 Turnpike, an easement for a trail connection to the Conservation Land and 4 designated parking spots for the public.
- Installing “more significant green buffers to screen the Conservation Land from views of the new 40B building”
- Installing ADA-accessible pathways and raised garden beds at Breakneck Hill’s Community Garden;
- Donating $100K to the Conservation Commission, split evenly for purposes of:
- Environmental cleanup
- Developing plans to identify and designate appropriate protection for the Town’s groundwater and surface water areas
- Having an inventory and assessment done for forest resilience related to climate change
- Trail maintenance and cleanup
The Conservation Commission opposed that offer. A letter from Conservation Agent Melissa Danza to the Planning Board summed up their position:
The proposed alternatives do not provide an equal value that the Town would benefit from with the addition of 6.2 acres to BHCL. The Brigham Street lot is an undevelopable lot, as the new construction has altered the maximum amount of Riverfront Area, is not adjacent to any open space areas, is primarily protected wetland resources, and has an abundance of invasive species.
The addition of parking spaces and connection to existing trails could further exasperate the unauthorized access and impacts to the property, and the monetary donations, in the opinion of the Conservation Commission, did not adequately equate to the benefit of additional space and location at BHCL.
The Stewardship Committee, which previously shared a letter on this blog opposing the developer’s request, submitted a message to the Planning board asking it to “take all appropriate steps with the appropriate parties to enforce the transfer of the 6.2 acres to the Town as conservation land”.
Public commenters at the meeting were resounding in their position that the land promised should be kept and that siting a 40B in that open space would threaten habitat at the abutting conservation land.
Matthew Probst of Woodland Road told the Planning Board that he felt that he represented the opinion of many of the abutters in the room and most residents. He said they believe the site plan was “exercised” and opposed granting the request:
We want to be clear we are wholeheartedly in favor of supporting additional 40b housing in Southborough. Affordable housing is critical for the diversity and well-being of our community. However. . . the proposed location for what would be one of the tall residential complexes in town is fundamentally inappropriate. The 6.2 acres in question are adjacent to Breakneck Hill, a cherished national resource that provides immeasurable ecological recreational educational and aesthetic value to our town.
Ferris said that he received texts from some people in the room who wanted to comment in support. He followed that he told them there wasn’t a point given the vocal opposition.
One entity that did publicly support Ferris was the Southborough Select Board. The board submitted a letter strongly supporting the 40B. It asked the Planning Board to:
work with the project sponsor and wave the donation requirement of that specific property
The Select Board was hopeful that the project would be a good one for the community and help the Town get closer to the 40B safe harbor threshold. After voting on the letter at their May 24th meeting, Select Board Co-Chair Kathy Cook told Planning Chair Meme Luttrell that they weren’t saying not to negotiate to get something back.
The Select Board’s position angered resident Kristen Lavault. At the April 29th meeting, she commended the Planning Board for doing a better job of listening to the public.
Planning members Marnie Hoolahan, Debbie DeMuria, and Lisa Braccio were each in favor of keeping the condition in place. Luttrell and member Jesse Stein voiced that they were more willing to consider negotiating an agreement, but weren’t satisfied with the ones offered.
Stein asked counsel about the possibility of conditioning that the Planning Board (rather than just the ZBA) would have oversight of a 40B Site Plan. According to counsel, that isn’t possible under the 40B laws.
The board approved the request to withdraw the application without prejudice.
An announcement from the Town’s Conservation Agent yesterday notified the public that its Conservation hearing last night on the Notice of Intent for constructing the building was being continued to May 30th to give the developer more time:
At the request of the applicant, the application for 120 Turnpike Road, as submitted to the Conservation Commission will be continued at tonight’s meeting until 5/30. The applicant has stated that there may be substantial plan changes based on community and town department feedback. In respect of the Commission, they did not want to present a project that may be drastically changed or different than currently proposed. There is expected to be limited to no discussion except for discussing the continuance request.
Discussions of Chestnut Hill Farm and ongoing activities will resume with the Trustees of Reservation on 5/30 as well.
The next ZBA hearing for the 40B (and modification to a 2005 Special Permit) is scheduled for Wednesday, June 12th at 7:00 pm. (Location is TBD but it will likely also be available for zoom participation.)
This morning, I learned that a “Friends of Breakneck Hill” group has been formed. Probst is putting together a contact list for residents that want to stay informed and collecting public opinions of neighbors on 120 Turnpike Road. He shared that those interested can sign up at breakneckhill.org. The website notes “There are no costs or obligations associated with joining us!”
