By Laura Hayes, Senior Community Reporter
NORTHBOROUGH — For the second time in seven months, a developer has appealed a decision of the Northborough Planning Board in state Land Court.
Attorneys for the Gutierrez Company filed their latest appeal on July 23 after the board’s decision to reject plans to subdivide a site at 0 and 301 Bartlett St. in June.
Some of the board members had expressed concern about ownership, what was covered under their impact studies and whether the developer had the authority to execute its plans.
Four of the board’s members voted against approving the plans while one, Michelle Gillespie, voted in favor.
Gutierrez appeals permit denial
According to their appeal, Gutierrez sought to build an industrial subdivision including a warehouse and a privately-owned road. The land is owned by the Northborough Land Realty Trust, the attorneys wrote.
The road would cross over the Wachusett Aqueduct, which Gutierrez’s attorneys said was “pursuant to a specific Right of Way originally reserved in a certain Deed recorded at the Worcester District Registry of Deeds…”
The Massachusetts Water Resources Authority (MWRA) is described as the “owner of the fee interest” in that Right of Way, and the Northborough Land Realty Trust holds an easement to go over and use the right of way to access the property.
According to the appeal, the MWRA had issued an 8(m) Permit to the trust for their previous project, which the lawyers wrote gives them permission to install an access driveway and utility lines under the project’s access drive.
The Planning Board, however, had requested that the MWRA execute what is called a “Form C” or submit a letter indicating that the developers had the authority’s consent to build.
“The Board’s requirement that the MWRA (or the Commonwealth) co-sign the Application as a so-called ‘owner’ of the Property is not required under applicable legal precedent and, further, defeats the Trust’s undisputed right to utilize the Aqueduct Right of Way for purposes consistent with the Access Drive,” the attorneys wrote.
Gutierrez’s attorney Mark Donahue told the board during its June 15 meeting that Gutierrez had unsuccessfully tried to get the forms. They were advised that the MWRA doesn’t involve itself in local permitting, he said.
Donahue suggested at that time that the Planning Board could approve the project with the condition that construction wouldn’t start unless and until the board reviewed a 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.
The Planning Board went ahead with a vote to deny the project, however.
Continuing their appeal, attorneys said that decision “far exceeded the scope of the Board’s authority, was arbitrary and capricious, was inconsistent with the facts and evidence presented at the Hearing and was without substantial basis in law or fact.”
They also said the decision was based on the “misapplication of the subject rules, regulations and applicable law.”
Gutierrez asked, in part, that the court order that their application be granted.
Gutierrez appealed previous Planning Board decision
As this latest appeal plays out, this isn’t the first time that Gutierrez has taken the Planning Board to court.
In October of last year, the Planning Board denied a different Gutierrez site plan and Groundwater District Special Permit request. Those pertained to a proposed 150,900-square-foot warehouse at the same Bartlett Street site that Gutierrez brought before the board this year.
Gutierrez appealed that decision in January, with attorneys writing that the Planning Board “expressed confusion” regarding the correct criteria for the site plan and permit requests during hearings for the project.
“Pursuant to the Decision, it is evident that the Board failed to apply the correct standards to [Gutierrez’s] requests for Site Plan Approval and the Groundwater District Special Permit in clear violation of the Bylaws,” the attorneys wrote.
The attorneys also argued that the board’s decision wasn’t supported by facts and was contrary to the evidence presented.
Gutierrez argued that their decision was “far beyond the scope of its authority, arbitrary and capricious, and without substantial basis in law or fact.”
Attorneys for the Planning Board wrote in response that Gutierrez’s application didn’t satisfy the criteria in the town’s zoning bylaws, specifically saying that the developer’s traffic study was insufficient.
They said there were potential traffic hazards and said the development was incompatible with adjacent land uses, which include a neighborhood and Algonquin Regional High School. They further said the project was incompatible with the land’s environmental resources.
“Accordingly, the Board concluded that the adverse effects of the proposed use would outweigh its beneficial impacts to the Town and/or the neighborhood,” the lawyers wrote.
Judge orders trial for first Gutierrez appeal
Gutierrez had asked that the court annul the Planning Board’s decision via a summary judgment.
In a decision on July 30, Judge Kevin Smith denied part of that request, saying that “there are disputes of material facts that preclude the entry of an order allowing summary judgment.”
Continuing his summary judgment decision, Judge Smith wrote that it appeared that the Planning Board failed to apply a non-discretionary, nine-factor test that was required by the bylaw.
The judge also wrote, though, that there were disputes as to whether and to what extent Gutierrez’s application would have satisfied the test had it been administered.
“A trial of the disputed facts and whether the Board properly denied the site plan approval to the Gutierrez project is necessary,” the judge wrote.
Gutierrez proposals join ongoing debate on development
The property at the center of these recent Planning Board and court proceedings is located on Bartlett Street, near the Northborough/Marlborough border.
The entrance to Algonquin Regional High School sits roughly a mile up the road. A number of homes sit in between those two properties.
Also along Bartlett Street are a series of large warehouse and trucking facilities belonging to Amazon, FedEx and others. Those have recently sparked controversy in town as many have raised concerns about increased truck traffic.
“Because of our proximity to major roadways, our small town has been forced into the big shoes of a trucking and distribution epicenter, and we are tripping over our feet,” Planning Board Chair Kerri Martinek wrote in a statement to the Community Advocate during her re-election campaign earlier this year. “This issue has spilled over into impacting the safety and enjoyment of our neighborhoods and downtown.”
“Over the last few years, the board has increased our level of scrutiny to carefully evaluate the true impact on neighborhoods, environment, traffic, and safety,” Martinek wrote. “Projects must adhere to bylaws, and the benefits must outweigh the negative impacts.”
Martinek said she wanted to continue the Planning Board’s “momentum” while similarly continuing work to create bylaws “that protect neighborhoods that have been hit hard, such as areas abutting industrial districts.”
As some in town government have pushed to be more restrictive of development, however, others have raised their own concerns.
“We are developing a reputation of being a town which is difficult to work with – land owners are frustrated and don’t want to deal with the [Planning] Board,” wrote Andrea Leland in a letter to the editor published in the Community Advocate in May.
That letter by Leland endorsed Theresa Capobianco and Glenn Odone in what was an unsuccessful bid to unseat Martinek and fellow Planning Board member Anthony Ziton at the ballot box this spring. A Northborough resident, Leland also serves on Northborough’s Municipal Code & By-Law Committee, as well as on its Board of Trustees of Special Benevolent Funds.
She was echoed by Kimberlee Girard, who also endorsed Capobianco.
“We deserve better for our town,” Girard wrote. “Our town is getting a reputation. One potential resident looking to move to town with horses has gone as far to refer to us as ‘No-Boro.’”
Court proceedings continue involving Northborough
Back in land court, Gutierrez’s January appeal of the Planning Board’s 2020 decision is set to proceed to trial.
Meanwhile, the developer’s appeal of the board’s June decision is just getting underway. Planning Board members were served with a summons last week. As of August 4, a case management conference, one of the first steps in a civil court proceeding, was scheduled to take place on Wednesday, August 25.