Above: Last week, Town Counsel, the ZBA, and Park Central representatives discussed the impact of an ongoing legal dispute on the standing of the 40B application. (image cropped from SAM video)
The Zoning Board of Appeals made clear they won’t move forward on the current Park Central 40B application unless the developer makes changes or they receive a ruling from a judge (or the Mass Housing Appeals Committee).
The course they and the applicant will take will be discussed at the continued hearing on January 10th.
At last week’s hearing, all four members* said they believed considering the application would violate a 2015 Covenant between the developer and neighbors. They based their opinions on their reading of the legal agreement, letters from the developer’s and abutters’ attorneys, and answers to their questions from Town Counsel.
The board was opposed to wasting everyone’s time, by holding hearings on traffic and other issues if a court would later rule the project couldn’t move forward.
Park Central’s attorney, Jason Panos, argued that the board doesn’t have the authority to make the decision. After failing to change their mind, Panos discussed options the board was willing to entertain.
The developer could change the proposal to comply with the development restrictions in the agreement made with neighbors. In that case, the board and applicant would discuss in January any continuances needed to address changing project details.
If the developer doesn’t agree to make changes, board members appear prepared to vote to put the project in “abeyance” (on hold). That would likely be until after the two year “cooling period” the agreement calls for between the developer terminating the agreement and applying for a “similar” project permit at the site. (Notice was apparently given this past summer, so hearings could potentially resume in mid to late 2025.)
Following a brief recess to consult his client, Panos asked for a 30 day continuance to get back to the board with their decision. Due to the timing of holidays, that was pushed out to January 10th. Panos agreed that the initial 180 day deadline for the board to rule on the project would be extended the same number of days.
If the developer decides to stick with his current proposal, he will likely appeal an abeyance decision to the Mass Housing Appeals Committee (HAC). Earlier in the meeting, Panos warned that the HAC could rule against the ZBA, and has authority to take the project details out of their hands.
Town Counsel Jay Talerman assured them that, given the circumstances, that was unlikely. He believed that if the HAC or judge disagreed with their decision, the most they would do was to remand the application back to the board.
Panos floated taking a “hybrid” track that Talerman had mentioned in the October 10th hearing. Town Counsel had said the board could continue to hold the hearings, while waiting to see how the lawsuit between the applicant and abutters is proceeding in Land Court, or condition approval on resolution of the dispute. On November 29th, Talerman clarified that he recommends against that route.
Talerman said that if they were going to rule the project couldn’t proceed, the more factual exploration/peer review they conduct before they put it on hold, the more the odds increase of HAC taking over the board’s decision. (He explained that the HAC doesn’t want to take on the level of work that is meant for local boards.)
Talerman also rejected Panos’ arguments that the board didn’t have authority to consider the covenant. He said that the precedents cited were about disputes over land ownership, like property lines. Panos didn’t cite, and Talerman couldn’t find, any cases with issues about whether the application had the right to proceed.
Panos argued that the legal issue was being litigated in Land Court, and the board was inserting themselves in the middle of the litigation. Alternate Member Doug Manz rebutted:
I say, with respect, you’re forcing us to get involved. You are not waiting for the court of law to decide. . .
You are not here with the court having decided that issue. You guys are in dispute and you’re forcing us into a very awkward position. And that I think is bit disingenuous for us.
Member Mike Robbins agreed. He argued at the start of the discussion that he didn’t see how they could ignore the covenant wording.
A point of contention was interpretation of a clause in the Covenant requiring the developer wait two years before proposing a similar project at the site. Panos argued that the new project is substantially different. ZBA members all said that they believed the large housing project had enough in common to be considered similar.
During public comment at the end of the hearing, resident Jonathan Green questioned the amount of time the hearings will be extended if changes are made. He believed the changes would be significant enough to require the application to restart.
Talerman said he believed a revised project would be similar enough to proceed. Green highlighted that the Covenant doesn’t just prevent the road access to Blackthorne Drive that members had referred to. It also required the larger buildings to be set further back from the abutters.
Talerman first responded that he believed that there was room within the covenant to allow a different design. But he followed that if the developer agrees to proceed with the Covenant, whatever it restricts would need to be complied to.
The hearing was slated to also go into details on traffic conditions related to the project. That topic was tabled.
A week from today (December 13th), the board will open a hearing on a differing 40B permit application — 120 Turnpike Road. (You can find related materials here.)
Tonight, the Select Board will discuss Planning Board’s request for Special Counsel to advise them on legal issues around the 120 Turnpike Rd project, including restrictions in prior special permits granted at the site.
*Members Paul Drepanos (the only member to rule on the original Park Central approval) and Jaime Meith recused themselves from the hearings. The board only has one alternate, therefore only four members presided.
