Above: It’s time for an update on court cases and hearings related to the large residential development project, Park Central. (image cropped from January project plans)
Last week, the Conservation Commission closed its hearing on a controversial development project. On September 10th, the Commission will deliberate and vote on the Notice of Intent for Park Central. Two nights prior, Town Counsel updated the Board of Selectmen on court cases related to the project. So, it’s time for me to update readers.
For those of you unfamiliar, Park Central is a proposed development off of Flagg road made up of over 300 housing units through two projects – Condos under a 40B special permit and Townhouses under a zoning Use Variance. The project sparked vocal opposition from a large group of area residents and led to multiple lawsuits and appeals.
Residents have raised multiple issues, but the main concern repeatedly voiced is the impact to road safety. Abutters say that the large complex will add too many cars to the area’s residential streets. (You can read some more about that here and here.)
Last year, I updated on five cases that were still in process through three courts. That’s winnowed down to only three pending cases in two courts.
Also slightly down is the number of units proposed for the development. Based on requirements from the Conservation Commission, the townhouse section of the project has been reduced from 142 units to 126.
Below are updated details on pending/resolved decisions by courts and boards.
Actions Still Pending
“Huang, Yan et al vs. Leo F. Bartolini Jr. In Official Capacity As a Member of the Town of Southborough Zoning Board of Appeals et al”
Worcester Superior Court (1685CV01359)
This is the only case still standing in which the developer is a defendant. It’s also one of the three remaining cases in which a Town board is a defendant.
The case contests the Zoning Board of Appeal’s approval of the 40B Condo development.* It was filed in September 2016 by a group of 20 residents (some abutters, but not all) plus the L’Abri Fellowship. They claimed that the ZBA failed to comply with requirements and exceeded its authority. The suit claims the ZBA’s decision failed to “protect the health and safety of the prospective occupants of the proposed building, abutters to the project and other residents”. You can read a copy of the appeal filed in 2016 here.
The court docket shows that a video conference was held on August 11th for Trial Assignment. A “Jury Waived Trial” was scheduled for January 13th with a final trial conference on January 5th.
According to Town Counsel, Aldo Cipriano, the full proceedings are scheduled to take place via video conference. Last week, he noted that the trial will be a “De Novo hearing”. The judge will be given the decision, the plaintiffs will present their view on the decision, then the co- defendant (the developer) will have to defend the decision.
Town Counsel will only be representing the ZBA, not the developer. (He stated that he will let the plaintiffs and developer “adjudicate the principal issue of the status of the permit”.) Cipriano explained that his role is to defend that ZBA members “acted properly under administrative process and were not arbitrary, capricious or whimsical.” Plaintiffs in the case are claiming the board acted improperly.
Cipriano is also fighting the plaintiff’s request for ZBA members involved in the decision to testify. He indicated that the plaintiffs are trying to have the judge look beyond “the four corners of the decision” to which these types of appeals are normally limited. He did note that judges will sometimes allow new evidence to be introduced.
Town Counsel said he expects the January virtual hearing to last a couple of days.
Park Central vs the Town
vs ZBA in Land Court (17 MISC 000343) and vs Conservation Commission in Superior Court (1785CV01229)
In both of the above cases, the developer is appealing a decision by a Town board. The two are intertwined, so my background and updates are combined.
In September 2016, the Planning Board told developer William Depietri that they couldn’t approve the Site Plan without more details. Part of what they wanted was plans approved by the Conservation Commission. Depietri was still in process of working through what was needed with that commission. The developer refused to agree to a continuance and stormed out. The Planning Board said they couldn’t approve the project without the detail they needed. Without the developer’s approval to move the deadline, they could reject it or see it become constructively approved. So, they rejected it.
Depietri appealed the case to the ZBA at a May 2017 hearing. The ZBA rejected claims by the developer that due to slow paperwork by Planning the plan was constructively approved. But they also ruled that the Planning Board shouldn’t have rejected the Site Plan. And yet, when remanding the approval back to Planning, they essentially agreed with the board by telling the developer to get Conservation Commission approval before returning to Planning. The Land Court case is the developer’s appeal for the court to override the ZBA’s decision and consider the Site Plan approved.
Weeks later, the Conservation Commission denied the Notice of Intent for the project after the developers refused to make changes that they required. In June 2017, the developer appealed that decision to MassDEP (Mass Dept of Environmental Protection). They also filed an appeal in court against the Conservation Commission’s ruling.
Both cases are on hold while the developer waits on a new decision from the Conservation Commission.
Important developments appear to have come out of the developer’s communications with MassDEP. In July 2018, the plaintiff’s lawyer notified the judge on the ZBA case that he was filing modified plans with MassDEP. Last year, Cipriano told selectmen that “in a significant sense” the DEP sided with the Conservation Commission by requiring the developer to provide more detail to the commission.
Town Counsel told selectmen that while the Superior Court doesn’t pay much attention to the Land Court cases, the Land Court generally does closely follow related cases taking place in Superior Court.
2020 Conservation Commission hearings
Based on the DEP ruling noted above, the developer submitted modified plans to the Commission. In January and February, the developer put off meetings, requesting time to respond to comments including ones from the Peer Reviewer. This spring, hearings were extended to future dates due to limited participation of the public during the pandemic. On July 30th, the hearing resumed.
During the hearing, a representative for the developer said that they have made a number of “improvements” in concession to the Commission. That included reducing the number of Townhouse units from 142 to 126, respecting the 20 foot no touch buffer zones, and more. There was still a noted “fundamental disagreement” between the developer and Conservation’s consultant and peer reviewer. The dispute was over the interpretation of stormwater regulations.
Commissioner Carl Guyer asked for confirmation that they were at the same impasse as they were at 3 years ago. The answer was not exactly. The 2016 plans exclusively used wetlands as retention basins. The new plans only partially use wetlands as retention basins, greatly reducing the volume of water. Meanwhile Fuss & O’Neill interpreted that the applicant’s planned use of those resources was against regulations.
That evening, the Commission and the applicant butted heads on whether the state’s easing of hearing deadline requirements under the pandemic allowed the Commission to extend the hearing without the applicant’s permission. The applicant team pushed for a decision that night. The Commission extended the hearing to last week, to allow abutters who weren’t able to connect by zoom to submit comments.
Last Thursday night, it appeared that the applicant and the Commission’s consultants hadn’t resolved disagreements between meetings.
The Commission closed the hearing but didn’t begin deliberations. The vote is scheduled for their September 10th meeting. In July, a member of the applicant team warned that if the Commission doesn’t approve the Notice of Intent, they will appeal it back to MassDEP.
You can look at materials related to the hearings here. You can view the July 30th hearing here and last week’s here.
Case Resolved*
“Shimkus, Peter et al vs. Andrew R. Dennington In Official Capacity As a member of the Town of Southborough Zoning Board of Appeals et al”
Superior Court (1685CV01827) and Appeals Court (2018-P-1314)
The Superior Court case was filed by three residents in December 2016. It sought to overturn a Zoning Board of Appeals ruling that fall.
Karen Hanlon Shimkus had asked the Building Commissioner to rule that since construction didn’t start within a year of the granted variance, the approval had expired. Instead, he determined that the developer had up to a year after the linked 40B development’s special permit was approved and its appeal period expired.
Hanlon Shimkus filed an appeal with the ZBA. At the time, developer William Depietri’s attorney argued that the resident had no standing to appeal. As I wrote then:
He said she would have to prove “real and measurable harm” from the Building Inspector’s decision. He argued that her home, a 1/2 mile by car from the project, is not proven to be impacted enough by increased traffic to meet that criteria.
Although the ZBA ruled in support of the Commissioner’s decision, they did support the resident’s standing to appeal. Last year, Town Counsel Aldo Cipriano indicated to selectmen that the Superior Court judge disagreed. Cipriano referred to a “dispositive motion” against the plaintiffs related to “standing and aggrieved party status”.
The court’s notes showed that ruling in June 2018 with the court supported a cross motion, to make plaintiff Jonathan Green responsible for statutory costs. (From the dockets, it looks like the other two plaintiffs agreed to drop this case against the ZBA along the way.)
Green appealed to the Appeals Court. According to the court dockets, the Appeals Court upheld the trial judge’s decision last November. The plaintiff’s case was dismissed.
*The Superior Court website lists the Shimkus v ZBA case as “Open”. Yet the detail in the docket states that the case was dismissed and notes it was upheld by the appeal decision. Cipriano indicated last week that it was resolved.
Updated (8/25/20 6:43): Fixed a spelling error.
*Updated (8/27/20 8:40 am): A commenter pointed out that I was wrong about the Huang v ZBA case being an appeal of the Use Variance. I found the filing. While it states as a fact that “the ZBA’s Use Variance Decision clearly represents an attempt to improperly circumvent the statutory one year time period”, the plaintiff’s case is against the 40B Special Permit. Under the Judicial Review, plaintiffs assert that they “are aggrieved by the Decision of the ZBA granting the Comprehensive Permit to Park Central and Depietri.”
Beth, your summaries contain many errors and too much of town counsels wrong arguments and spin. He has had a number of decisions go against him, especially on standing of town residents. Incredibly, he actually fights against the standing of the town’s own residents (and lost —see Judge Riordan’s decisions, two of them). Many of the legal issues are still preserved for appeal, in spite of this town counsel’s declarations. Crazy machinations? How about this: This town counsel and special town counsel, Jay Talerman, actively fought against the Town voters overwhelmingly approved town vote passing Article 1 (the Anti-Corruption/ preservation of the ZBA quorum requirement) at the Attorney General level, behind the scenes, without public discussion or knowledge, and lost. The bylaw voted in by town residents is now law, preserving the ZBA quorum at four persons to hold a meeting and making it harder to stack a ZBA. (As an important aside, in court, Judge Freniere told town counsel that she could count to four and that if the town had a bylaw of four, then town counsel has a problem. Fast forward, town counsel files an “emergency” motion and declares the quorum “null,” deletes it with no public discussion or disclosure, and the residents (!) reinstall it by overwhelming favorable vote.). How about that? Chock one up for the town citizenry.
The main trial is the upcoming primary legal hearing. It is not about the Use Variance, as incorrectly summarized above. It is about the 40b comp permit and the proposed development’s detrimental, unsafe impacts on an entire section of town, adding thousands of traffic trips on state protected narrow country scenic roads, as well as Route 9 / I-495 locus ranked Level of Service “F” by Mass DOT. The traffic studies did not include any of the feeder roads. How irresponsible and bizarre is all of this? And the town, with it’s cronyism and then melted down, three person ZBA, does not protect its own residents. How many of the BOS and various boards, including Advisory, have direct financial links to the developer? How many have been directly admonished by the State and asked to stand down due to Conflicts of Interest? And then did not? The town could do a much better job of self policing, appointments, and following state laws. The residents have to go to the enormous expense and trouble to fight for their own safety and well being and their children. It’s just plain wrong.
The primary legal hearing is to take place in January, and it remains the main key full trial pertaining to preserving the health and safety of town residents in the neighborhoods near this massive and controversial project. This town counsel sits next to developer’s attorney in court and they join each other’s arguments, fighting against the safety of town residents, paid for by the taxpayers. It is nuts. In fact, when Cipriano did not show up for the recent Pretrial conference, the developer’s attorney, Catanzaro declared to Judge Ricciardione that he was fully authorized to speak for town counsel about court dates. How incredible is that? And then goes on to specifically ask for Judge Ritter! Simply unbelievable. The scheduling judge was having none of it and scheduled the next available date.
Take a look at the Board of Bar Overseers website for more information on the developer’s attorney, Angelo Catanzaro (see the BBO Public Admonishment listed under the attorney’s name.) The developer’s side of the equation absolutely unfairly benefits from town counsel fighting against the health and safety of the towns own residents. It all makes no sense.
Thank you for clarifying about the 40B condo. I found the filing and updated the info.
BTW, the melted down, three person ZBA lost another member immediately after voting the comp permit in, against the written protests of other town board members and committees stating that there were too many unaddressed matters. The three members voted it through on August 24, 2016. One ZBA member put his house on the market in April 2016. He knew he was selling his house and would no longer be a resident and then not qualified to vote as a ZBA member. His house sale recorded just hours before the comp permit was recorded at the Registry of Deeds. He was shown the photos of moving trucks at his house during the public hearing.
This information is very misleading and much of it is incorrect. Residents should reach out to Selectmen to have town counsel removed in all capacities due to his unethical management of pretending to work for the town while using taxpayer dollars to argue with and on behalf of Park Central. Our town will suffer the consequences of this development on the entire north side of Southboro including roads like Flagg, Deerfoot, Clifford, parkerville, lovers 30 and Sears(easiest way to services in Marlboro). If your not paying attention then you will be in for an awakening when the impact affects our schools, services and the safety of our roadways. The Selectmen need to take charge and support conservation, planning and the citizens that helped to get you elected. Enough with pretending that park central was nothing but an inside job created by the developer, town counsel, the then zba and former members of BOS. The nonsense does not need to continue please take action and remove Aldo now and be part of the solution and not be silent on the issue!!!
Please clarify what words I wrote that you believe are misleading or incorrect. It is not my intention to mislead.
Last week there was a team of people hired by the town to do a ‘tree inventory’ specifically related to the goal of widening Flagg road. We literally ‘went down this road’ years ago. Can anyone speak to this?
Yes it’s illegal and the trees are protected. Whoever ordered the tree taken down at the end of Flagg should be fired. My guess is it’s the DPW head. She’s multiple strikes at this point anyone remember plow gate? That tree was protected, healthy and NOT infringing on wires. Write your Selectmen Flagg is protected and not designed for this nonsense. This road is not equipped to force a development of this capacity
These country roadways are state law protected designated scenic roadways. At the BOS September 2016 Flagg Road Safety Meeting, roughly 150 residents turned out to express their concern and anger over the way the town was handling Park Central and getting ready to tag trees and remove stone walls. This was decried as illegal, but the town has continually installed various stuff and junk, some good, some defacing overload, all at taxpayers expense and to the ultimate benefit of the developer. This stuff and junk would normally be at his expense and conditioned on project approval.
In the meantime, the Gittens Flagg Road Petition was submitted to the town and lies buried in Town files. Signed by virtually everyone on the west end of town and all Flagg Road area residents, it calls for the Town to leave Flagg Road alone, and these voters are opposed to widening. The road cannot be widened and should not be widened. It is home to two schools and children who bike and walk to school. It would be ludicrous especially to accommodate a private developer and jeopardize the health and safety of the people who live here. This BOS needs to protect and fight for the residents who live here, not greedy developers looking to make a fast buck and cash out on the backs of taxpayers. These roads are not developers driveways.
Looking at the home page for this blog, I see no new posts in over a week!
Has the ability to comment been disabled?
???
Nope.
Beth, will you be doing an update about the Conservation Commission denial of Park Central at their last meeting? Where does the matter go from there? Thanks
There is a lot I’m behind on. I did manage to watch the vote last night and started to draft a story. I hope to post it later this morning.
I wasn’t able to get it in this morning – but did get it in today. Here’s the update.
I really admire the way you take responsibility for doing so much work on behalf of us citizens of Southborough.