Court overturns Park Central’s ZBA endorsement, orders permit revoked

Above: The Court overturned the ZBA’s permit approving a large combined condo and townhouse development in Park Central. (images taken from previous application documents filed with the Conservation Commission)

This month, Worcester Superior Court ruled in favor of residents appealing the Zoning Appeal Board’s approval of a permit for a large planned development off Flagg Road.

(Before opponents of the Park Central project get too excited, I don’t know yet if the city and/or developer plan to appeal.)

Below, I summarize the highlights of the decision – with the caveat that I am not a legal expert.

While I’m updating this case, I’ve also taken an updated look at other Park Central cases that have made their way through the courts.

20 Property Owners v ZBA and Southborough’s Park Central, LLC

Superior Court (file 1685CV01359)

The ZBA combined the terms of a 139-unit townhouse project under a 40B linked project for another 180 units in two large buildings. Residents were furious when the ZBA rushed to close hearings and vote to issue the permit and terms the night before it lost quorum. (One of the ZBA’s three ruling members left town that summer. He closed his house the day after the ruling.)

This case, brought by a long list of scorers and locals, argued that the ZBA had exceeded its authority and acted in an arbitrary and capricious manner. The defendants argued that the plaintiffs lacked standing to appeal and that the complaints were without merit.

Unlike many other cases, the public got to watch both sides make their case on Zoom in last year’s non-jury trial.

In a ruling released March 16 and mailed March 21, Judge Ritter disagreed with the plaintiffs’ description of the ZBA’s behavior. But he agreed that they had standing to appeal and that Board approval of the combined projects was not permitted under state law:

in all the circumstances, the issuance of the permit was not based on a legally defensible ground. Accordingly, the permit must be revoked.

The judge wrote that 40B gives aboard the power to override local requirements and regulations, but cannot waive compliance with state laws. Considering the entire project, there would no longer be a 25% affordable housing component required for a 40B project.

Defendants had argued that state law and precedent showed that incidental uses can be combined. Justice Ritter asserted that the cited precedent was for incidental use that supplemented a project. He noted the scale of the townhouse project with no affordable housing component. The townhouse project would be 58 acres compared to 40B’s 9 acres and is expected to be responsible for 40% of the projects total traffic.

The practical effect of including condominium units in the permit has the effect of circumventing the Affordable Housing Act. . . The legislator would probably not tolerate the manipulation of c. 40B so that large developments can circumvent the local authority under the guise of affordable housing.

Other findings of Ritter’s decision that I’m sure plaintiffs are less supportive of were that the decisions weren’t capricious, the hearings weren’t rushed, there was no proven conflict of interest for ZBA members and safety concerns raised based on perceptions of traffic impacts were exaggerated.

(You can read the one-page conclusion here and the 39-page judgment here.)

Cases of other residents against ZBA and the developer

Superior Court (file 1685CV01827) and Court of Appeal (file 2018-P-1314)

In 2014, ZBA President Leo Bartolini proposed that the ZBA approve a use waiver for an additional residential project on the commercially zoned parcel, should Depietri turn his 40B project into a rental. His reasoning was that while only 25% would actually be affordable, according to state regulations, all rental units count against the city’s housing inventory to receive “safe harbor” status from other 40B projects. unwanted. (At that time, Depietri had shared plans to return with additional 40B projects in future years based on Safe Harbor projections.)

The Use Spread for the townhouse project was approved in the summer of 2015. In October 2016, Special Municipal Assembly voters stripped the ZBA of the right to issue future Use Spreads.

That fall, resident Karen Hanlon Shimkus asked the building commissioner to rule that since construction on the townhouse project had not begun within a year of the waiver granted, the approval had expired. Instead, it determined the developer had until one year after the related 40B development’s special permit was approved and its appeal period expired. The ZBA ruled in favor of the commissioner.

Shimkus was joined by Peter Shimkus and Jonathan Green in appealing the decision to Worcester Superior Court. In June 2018, the Court upheld the residents’ ability to appeal, but sided with the ZBA on the merits of the case. Green appealed the decision to a higher court. In September 2019, the Court of Appeal upheld the judgment. Green requested further review of the appellant by the mass Supreme Judicial Court. This was denied in November 2019. The Superior Court acted on an order that month dismissing the plaintiff’s original case.

Park Central, LLC vs. City

vs Planning Council in Superior Court (case 1685CV01363)

In September 2016, the Planning Council filed an appeal against the ZBA and Depietri for the decision combining the two projects. Planning members argued that the ZBA usurped their authority by using 40B laws to limit the scope of planning oversight over the Use Variance project.

When the Board of Selectmen continually refused to support the planning request for a special council based on the council’s argument that councils should not continue, the planning council voted to drop their case . DePietri’s attorney has filed a motion seeking sanctions against the Planning Board and forcing Discovery. After the Planning Council’s case was dismissed, Depietri continued to press for sanctions. In June 2017, the Court sided with Depietri, awarding $4,645.50.

vs. Superior Court Conservation Commission (case 1785CV01229) and with MassDEP

In May 2017, the Conservation Commission rejected the project’s Notice of Intent after the developers refused to make the changes they needed. In June 2017, the proponent appealed this decision to the MassDEP (Mass Dept of Environmental Protection). They also filed an appeal in court against the decision of the Conservation Commission.

In July 2018, plaintiff’s attorney informed the judge hearing the ZBA case that he was filing amended plans with MassDEP. In 2019, the city council told elected officials that “in a significant sense” the DEP sided with the Conservation Commission in asking the developer to provide more details to the commission.

In September 2020, the Commission rejected the updated Notice of Intent. (No new NOI for Park Central has come before the Commission since.)

In December 2020, the plaintiffs and the city’s attorney filed an agreement for judgment that the appeal of the Commission’s original denial was moot, as the plaintiff withdrew this version of its Notice of Proposal.

vs ZBA in Land Court (case 17 MISC 000343)

In September 2016, the Planning Board told developer William Depietri that they could not approve the site plan without further details. Part of what they wanted were plans approved by the Conservation Commission. Depietri was still working on what was needed with this commission. The promoter refused to accept an extension and stormed off. The Planning Board said it could not approve the project without the details it needed. Without the developer’s approval to move the deadline, they might reject it or see it become a constructive approval. So they rejected it.

Depietri appealed Planning’s decision to the ZBA at a hearing in May 2017. The ZBA rejected the developer’s claims that, due to Planning’s slow paperwork, the plan had been approved from constructive way. But they also ruled that the Planning Board should not have rejected the site plan.

Yet when they returned the approval to Planning, they essentially agreed with Planning telling the developer to get Conservation Commission approval before returning to Planning. (As I noted above, this still hasn’t happened.)

Depietri appealed to the Land Court to overturn this decision by the ZBA and consider the site plan approved. This has been suspended for decisions in other cases. In January 2022, the court reaffirmed the stay of the case until a decision is made on the residents’ appeal of the permit to Superior Court.

Unknown impact (at least for me)

If upheld, the most recent ruling would likely make the Land Court case another moot ruling. As for the cancellation of ZBA permits, I don’t know what happens from here.

The city council and/or developer William Depietri could consider appealing. If not. . .

I guess Depietri could only pursue 40B projects and commercial projects on the property. (The ZBA can no longer grant new usage deviations.)

And, with the cancellation of this 40B project, the city is unlikely to comply with the state’s Safe Harbor measures. Does this mean that Depietri will file for another (perhaps larger) 40B project? Or could another developer beat it?


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