Above: The ZBA asserts that the developer needs to wait to apply until the legal battle with neighbors over a 2015 agreement (which they claim prohibits the siting of large buildings directly behind a neighborhood of single family homes and egress through a cul de sac) is resolved. (image cropped from 2023 presentation)
As I previously reported, the Zoning Board of Appeals denied the application for the rebooted version of a large 40B development at Park Central off of Flagg Road.
The legal justification for that decision is important, given the developer’s threat to appeal. This week, the written decision was posted to the Town’s website.
On September 20th, the ZBA met with Town Counsel to work through the legal language for their decision. That decision was submitted to the Town Clerk on October 2nd and posted today.
In the decision, the ZBA explains that the developer applied prematurely given the legal status of a 2015 covenant signed with neighbors (which the decision refers to as “the Declaration”).
Under the negotiated terms, William Depietri had agreed that if the project he was trying to get approved in 2015 fell through, he would abide by a cooling period before reapplying to build a “similar” project on the land. In past meetings, board members made clear they didn’t buy the developers’ attorney’s claim that the agreement didn’t apply.
The board concluded that the project should be denied “without prejudice to a future application for the Project”. That would allow the developer to reapply after the time period for the prohibition expires or when legal issues are resolved.
But, if the board’s decision is upheld by the Mass Housing Appeals Committee (HAC), the developer could lose its place in the pipeline for projects with approved eligibility. And if the Land Court ultimately finds in neighbors’ favor on the terms of the agreement, it is possible that by the time Capital Group Properties is free to reapply, the Town will have achieved “safe harbor” status.*
Representing the developer, Attorney Jason Panos has argued that HAC had been aware of the legal agreement when it determined the project was eligible to apply for a 40B permit.
In the denial decision, the board counters that HAC’s approval was “contingent upon the consideration of the practical effect of the Declaration”. In looking at the situation, board found that the applicant did not have the required “site control”. And the decision further asserts, that even if the applicant has site control, the agreement dispute is a barrier for moving forward at this stage.
You can read the full decision here, or the full findings below:
- The Board finds that the Applicant has failed to diligently and adequately pursue and prosecute the application. The Applicant applied notwithstanding clear knowledge of the Declaration and the legal impact thereof. The Applicant chose not to comply with the Declaration but, rather elected to apply for the Project and then seek to terminate the Declaration by notice to, and litigation with, the other parties thereto. That litigation has months, if not years to go before it is completed and the termination notice will not be effective for nearly another year. It is the Applicant’s duty to diligently pursue an application. The Board has numerous complex and active cases before it and the continued pendency of this matter on its agenda precludes the Board from working effectively on such projects.
- The Board finds that the Applicant lacks site control due to the provisions of the Declaration that preclude the present application. Without adequate site control, as required under 760 CMR 56.04(1) (c), the Board finds that the Application must be denied.
- Even if issues arising under the Declaration do not arise to site control, they present a practical and legal barrier to filing an application for a comprehensive permit.
- The Applicant has shown bad faith in breaching the terms of the Declaration then failing to negotiate with the other parties thereto, all of whom will be adversely impacted by the project.
- The Board finds that the denial of the project should be without prejudice to a future application for the Project. The Applicant has not presented the merits of the project, has not offered any substantive presentation of issues relating to traffic, engineering. architecture or other matters of local concern. The Board remains willing and ready to expeditiously review a new application for the project if and when the issues regarding the Declaration are resolved.
History
The building of a large Park Central residential development accessing Flagg Road, and/or the abutting neighborhood of Bantry and Tara Roads, has been controversial since an early version was first publicly proposed in 2013 (and apparently even further back when a prior property owner proposed a large project in 2006.)
Most of the current ZBA members weren’t involved in the hearings and approval and waiver decisions that prompted many of the related appeals and lawsuits. (Others were filed by developer Capital Group Properties against the Conservation Commission.) All of that came to an end in 2022 when the Worcester Superior Court nullified the decision and vacated the permit.
Capital Group pursued a revised project and submitted an application to the ZBA in September 2023. After being notified by an attorney for one of the families that signed the abutters’ agreement, the developer filed suit against all of the abutters asking for the Land Court to find that the agreement is unenforceable and/or inapplicable.
Initially, the board agreed to keep continuing the hearings while they waited to see if the legal issues could be resolved.
At their September 4th meeting, neighbors described the developer’s lack of outreach to them to “work things out” before or after suing them and aggressive legal tactics, purportedly dragging things out. The board denied the developer’s request to continue the hearings to next spring while the case continues. Instead they closed the hearing and voted to deny the application.
*The developer has taken the position that the project isn’t similar due to changes, including the fact that it is no longer linked to a non-40B townhouse project.
**Currently, there are two other 40B projects in front of the ZBA going through the permitting process, and another one in the works. Plus, the Select Board has made clear its desire to spend Affordable Housing Trust Fund and Community Preservation Act funds to create affordable housing projects. If the Town succeeds in approving enough Affordable Housing projects to equal 10% of all Southborough housing units, it can apply for a “safe harbor” status, good for at least two years.
Safe Harbor towns can still accept 40B proposals that officials believe are desirable for a community (and to help them keep extending the status). But no matter how many residents and officials object to a project, if a Town hasn’t met that threshold, it is “vulnerable”. That means it would take a very high bar to legally justify the outright rejection of a project that is deemed eligible by HAC.
Updated (10/4/24 9:49 am): Initially, I had the year wrong for the covenant, referring to it as signed in 2021. It was negotiated in 2015. I also clarified that the developer’s suit over that agreement is in Land Court. (And I fixed a poorly phrased sentence that made it sound like the neighbors voted to deny the application.)
