EMC takes Planning Board's decision to Land Court
By Ken Powers Contributing Writer

Southborough - The Planning Board's decision to rescind a constructive approval of the definitive subdivision plan submitted by EMC Corp. has prompted EMC to file an appeal regarding the decision against the Planning Board in Land Court in Boston.

EMC's subdivision plan is part of its attempt to construct a state-of-the-art technological campus on its property on Route 9.

Vera Kolias, Southborough's town planner, said EMC Corp. filed the appeal Aug. 3.

Kolias said copies of the appeal were distributed to the members of the Planning Board and Town Counsel Aldo Cipriano at the Planning Board's most recent meeting, Aug. 6.

Cipriano said at the Aug. 6 meeting that the town has 20 days to respond to the appeal. He said the town will not only respond to the appeal but that it plans to file a countersuit.

The focus of the EMC appeal, Cipriano said, is that by not taking a vote or asking for an extension to consider the subdivision plan within the state-mandated 90-day period following the filing, the Planning Board, in essence, signed off on the plan - which in legal terms is called a constructive approval.

At the Aug. 6 Planning Board meeting, Planning Board Chair Charles Gaff ney said the Planning Board had filed an extension to consider the plan within the 90-day period, but that it failed to file the extension with the town clerk's office, as is required by state subdivision control law.

Gaff ney said the extension was filed prior to the Planning Board's July 9 meeting.

At the July 9 meeting, after he learned that the extension had been improperly filed, Gaff ney said the board decided to rescind the approval so it could start over and correct the mistake made with regard to filing the extension.

Gaffney said the board wanted an extension to continue to review the plan because "parts of the subdivision plans filed did not comply with the rules and regulations of the town of Southborough governing the subdivision of land."

The Planning Board set aside time at its Aug. 6 meeting for a hearing on the plan, but EMC did not respond to the invitation.

Cipriano said EMC's suit contends the Planning Board rescinded approval of the plan in an incorrect manner, exceeding its authority in the process.

Cipriano said other highlights of the EMC appeal include the contention that the constructive approval not only allows the plans in the definitive plan, but also all the amendments, since the Planning Board canceled a hearing on the amendments to the plan.

"We will file a responsive pleading on behalf of the Planning Board together with what we call a compulsory counterclaim," Cipriano said. "We will review the entire process and procedure and decide what is the next procedural step to follow."