Above: Ferris Development is proposing a townhouse development off Route 9 & south Parkerville Rd. The compromise would add 28 units of housing, while being less intrusive than the alternative options. (image from concept plan)
Hearings for a proposed 200 unit 40B at Park Central continue to be dragged out while the developer fights with abutters in court over a negotiated agreement they claim he has violated.
Meanwhile, another developer seems to have made headway negotiating with public opponents to its two 40B projects at 120 & 250 Turnpike Road.
Compromise proposals were presented to the Zoning Board of Appeals that residents may support. (Or, at least, no longer vocally oppose it.) One of those compromises came with an unappealing alternative if the proposal is rejected.
The developer for those projects has also been accused of violating agreements. The main difference is those agreements were made by prior property owners.
Here’s the latest.
250 Turnpike Road – Navigating compromise with a carrot and a stick
The ZBA opened its hearing on the 40B at 250 Turnpike Road on June 26th. At the meeting, representatives for Ferris Development acknowledged the concerns that had been publicly raised about their initial proposal.
A prior owner’s agreement to not develop a project on the site has been a source of contention with neighbors who don’t want their views disturbed by the proposed 4 story, 56 unit condo building. They have also raised concerts about issues with water and drainage problems at the site and potential traffic on Parkerville Road.
Saying that they had been working with neighbors to come to a solution, the developer and attorneys presented two potential alternative concept plans.
“Option B”, meant to be more palatable to neighbors, was for a townhouse project on the original project site.
The revised project would be 28 townhouses (4 buildings of 6 two-bedroom townhomes, plus 2 duplexes of three-bedroom townhomes).
It’s a much lower profile project. And, because it cuts the number of bedrooms from 80 to 60, the size of the required septic would also be reduced. Since they would all be marketed as rentals, they would all count towards the Town’s affordable housing “safe harbor” status. (Currently the Town is 77 units shy.)
CEO David Ferris talked about having worked on a townhouse concept, prompted by a suggestion from abutter John Palmer, one of the vocal opponents to the initial proposal.
Ferris made clear that there was no commitment from the neighbors to support the plan yet. But he said “there’s a very good spirit of cooperation” which he hopes will lead to their buy-in for having less of an impact on them. Details that still need to be ironed out include which trees will remain.
Attorney John St. Andrew, a neighbor who has been representing other abutters, confirmed to the board that he still believed they had a legal right to prevent the development. But he advocated:
I am cautiously optimistic that the neighborhood — not everyone in the neighborhood, but most everyone in the neighborhood — could get behind the townhouse concept if it’s done right.
He told neighbors that they would hold off on making their legal case while they see if the ZBA could embrace the concept:
Tonight’s a kind of a put the swords down night and go to the back room and see if we can come to an agreement.
For those wondering if Ferris may be willing to reduce the project size even further, he signaled no. The developer stressed that the presented concept was “kind of at the smallest footprint” possible, and on the edge of being financially feasible.
If the ZBA and neighbors choose to take the stance that a project isn’t legally allowed on the site, Ferris said they would pursue the much less desirable 
“Option C”.
That project would keep the original large building concept, but move it to the abutting property the developer purchased — 125 Parkerville Road. Ferris referred to it as their “safety valve”.
250 Turnpike Road would be used only for the associated infrastructure (septic, parking, etc.). Since the abutting lot is small, the tall building would be right up against the road.
The board expressed appreciation for the developer and neighbors working together. They sought clarification from Town Counsel on the impact of the change at this stage. Counsel Jay Talerman didn’t foresee an issue, although Mass Housing would need to be informed.
Before putting money into reengineering plans for Option B, Ferris hoped the ZBA would give him clear guidance that they would be willing to lift the legal restrictions on the site. Talerman said it is the applicant’s responsibility to make sure there is no other title restrictions.
The developer will work on having plans developed while the board puts out an RFP to have a Peer Review conducted. The hearing was continued to August 21st at 7:15 pm. (You can find any schedule updates here.)
118-120 Turnpike Road
On June 12th, Ferris Development presented to the ZBA the compromise 40B proposal presented to the Planning Board in May. The project is for a 6 story building with 60 rental units, with 15 of the units designated for affordable housing.
Members liked that the new plan shifted the proposed building from the abutting open space to allow the initial lot to be donated to the Town. But they expressed concerns about the height. Attorney Louis Levine said that the 6 story building at the bottom of the hill might be lower than the 3 story building at the top of it. Member Jamie Meith proposed a balloon test.
Some members indicated their worry about the number of stories wasn’t really about the visibility of a building tucked away from residential abutters. It was more about understanding that residents already complain that 4 story buildings are too tall for Southborough.
During public comment, resident Paul Carter told the board that he worried it would set a bad precedent, making it harder for the board to reject future 5-6 story buildings. Member Paul Drepanos rebutted that as untrue. Meith later clarified that each project stands on its own merits.
Meith asked why the 118 Turnpike Road office building (which is only 35% occupied), couldn’t be used for residential. She noted that she hears questions from the public about why empty office buildings in town aren’t used to ease the housing shortage.
Representatives pointed to complications of the 40B regulations, difficulty converting part of a building (especially with a layout is based on current tenants), and the fact that they are still hoping to rent out the vacant commercial space.
The meeting included the initial Peer Review of the traffic data. The peer reviewer asked for more data in response to some of his comments. The board agreed that further discussion would make sense at a future meeting when the applicant’s consultant is present.
The next hearing date is July 31st at 7:00 pm in the Town House Hearing room and over zoom. (You can find any schedule updates here.)
Park Central — Delays continue
If both Ferris developments were approved, they would exceed the number of units the town needs for “safe harbor” from unwanted 40B projects. But the controversial 200 unit project, The Residences at Park Central, may already be grandfathered in.
Before the threshold is met, the project behind the neighborhood of Tara and Bantry roads was approved by Mass Housing as eligible to apply for a special permit. Abutters claim that developer Bill Depeitri of Capital Group Properties was legally prohibited from filing an application until mid-2025 under the terms of a 2015 agreement. It’s a dispute that is currently in Land Court.
On Wednesday night, the ZBA was scheduled to get an update from attorneys representing the developer. The board informed hearing attendees that the hearing it was being continued to July 31st.
ZBA Chair David Williams said that the continuance was based on applicant representatives being unable to participate that night. A letter from Panos Law Group shows that attorneys requested the continuance “in light of the pending litigation”.
Based on the court’s posted status, expect attorneys to inform the board that they are still in the discovery phase of the case.
From prior filings, it looks like recent disputes and discovery focused on communications between abutters over their understandings of the 2015 agreement.
The developer’s attorneys have claimed that the “cooling period” for a “similar project” application doesn’t cover the new project which they describe as significantly different.
Discovery allegedly uncovered that some defendants had disagreed about what protections the agreement would provide. The attorneys were looking for more of the “non-privileged” communications and to further question them about those.
Last winter, the ZBA debated whether they should rule the application in abeyance. They opined that the application, as proposed, violates the legal constraints of a 2015 agreement negotiated with some abutters.
After the applicant chose not to revise the application, the board chose to take a wait and see approach. They continued the hearing from January to April for an update on how things were proceeding in court. They left open the possibility of voting to reject or put the application in abeyance. But that seems increasingly unlikely.
In April, abutter Howard Rose argued that the ZBA should reject the application. He stressed that the developer is jumping the line by applying for a 40B project before he is legally cleared to, to take advantage of the Town not yet having reached its affordable housing “safe harbor” threshold.
The board expressed concern about the possibility the Mass Housing Appeals Committee could take oversight of project details away from the ZBA if they ruled in the developer’s favor. (It was an argument made by the applicant’s attorneys that Town Counsel Jay Talerman had described as highly unlikely but couldn’t entirely rule out.)
The board granted the continuance for a court status update on July 17th, which was then pushed for another two weeks. That is the evening of the next legal deadline in the case. But it won’t mark the end of the discovery phase.
Another submissions deadline is scheduled for August 16th, the extended discovery deadline is October 18th, and a joint status report is due by October 25th. The next status conference with the judge isn’t scheduled until November 8th.
The continued ZBA hearing will be on July 31st at 7:15 pm in the Town House Hearing room and over zoom. (You can find any schedule updates here.)
