By Laura Hayes, Senior Community Reporter
NORTHBOROUGH — Plans to subdivide a site at 0 Bartlett Street in Northborough were denied by the Planning Board 4-1 during the board’s June 15 meeting.
Planning Board members Kerri Martinek, Amy Poretsky, Anthony Ziton and Millie Milton voted for the denial. Michelle Gillespie voted against it.
Some members expressed concern about ownership, what was covered under impact studies and whether the developer had the authority to execute its plans.
Martinek said the board received two letters that opposed the project, raising concerns about safety, ownership and not knowing what would be on the site.
Resident Janeen Callaghan echoed those concerns.
“…It’s just not the neighborhood that we moved into, the more warehouses that go into this side of town,” she said.
The Gutierrez Company wanted to construct a driveway and divide the site, which consists of two lots, into four lots.
When the plans went before the Planning Board on Jan. 19, developers said the subdivision wouldn’t generate traffic, but any development on the subdivided lots would. Such developments would prompt a separate site plan submission, they said at that time.
The plans came on the heels of another set of plans submitted by Gutierrez seeking to build a 150,900-square-foot warehouse on that same site.
In October 2020, the Planning Board denied Gutierrez’s application for a special permit with site plan approval and two groundwater special permits connected to that effort.
Gutierrez appealed the Planning Board’s decision to the Land Court in January, asking the court to order that the application be granted.
Developer seeks state permit for aqueduct work
As Guttierez’s driveway sought to cross the Wachusett Aqueduct, Attorney Mark Donahue, representing Guttierez, said an issue arose in late February around whether the Massachusetts Water and Resources Authority (MWRA) was the owner of the aqueduct. In that case, it would have needed to sign Gutierrez’s application.
At the Planning Board’s request, Gutierrez started efforts to have the MWRA execute what is called a “Form C” or submit a letter indicating that developers had the MWRA’s consent to build, Donahue said.
“We have tried to get that and have been unsuccessful,” Donahue told the board. “We’ve been advised, as a matter of policy, the MWRA does not involve itself in local permitting. Rather it leaves that to local officials to do that.”
He said the MWRA has its own permitting process. That permit, called an 8(m) Permit, gives the MWRA the authority to issue permits to build, construct, excavate or cross within an easement or property interest held by the MWRA, according to the agency’s website.
Donahue did not have the requested form when it appeared before the Planning Board, June 15.
“I should think that should not lead to a denial of the plan for the following reasons,” Donahue said.
He said the plan did comply with the subdivision rules and regulations.
“We have demonstrated to you that there is no question of the legal right to cross the aqueduct,” Donahue said.
He said Guttierez provided the board with several documents, including a previously issued 8(m) Permit, which had been part of their previous plans.
He said Gutierrez proposed that one of the conditions of the approval was that construction wouldn’t start unless and until the Planning Board reviewed an 8(m) Permit, specifically for the subdivision plan.
“That, with all due respect, I think, is a better result than a denial based upon a very highly technical issue on a plan that meets the subdivision rules and regulations, which will lead to inevitable … litigation, cost to the applicant, cost to the town at undue need in this particular case,” Donahue said.
Planning Board members explain votes
Discussing this matter, Planning Board members offered reactions.
“In general, I feel that nothing has progressed further since the last time that we met,” Ziton said.
Martinek said after the hearing closed that the board has frequently discussed ownership. She said that, under town definitions, “an applicant must be the owner of all land included in the proposed subdivision.” The owner is defined as the owner on record according to the Registry of Deeds.
“I think that getting the consent or the awareness from the owner is a critical piece of proceeding with a subdivision plan,” said Milton.
Martinek further called the 8(m) Permit “a source of contention for the board.” The permit was “consistently” discussed, she said.
Milton said the project that the permit Donahue mentioned was issued for was “significantly different” than the current proposed project.
“I felt that just in case the original plan didn’t go through, this was a placeholder to get started to get the road in,” Milton said.
Poretsky said the board asked for a worst-case scenario about what could be developed on the four lots.
“It’s definitely going to be built on. It’s not a road to nowhere,” Poretsky said.
Gillespie, meanwhile, said the developer was working with the state to get the permit.
“I think with the argument that you’re putting forward, it’s weak because I think the state is saying that their preference is making it a condition as part of the decision,” she said.
Milton said it would have been “helpful” if the board had received a letter from the state making that point.
Photos/Laura Hayes
