SOUTHBOROUGH – A Worcester County Superior Court judge ruled last month in favor of abutters who had opposed efforts to build a sprawling residential development near Route 9 in Southborough.
The judge specifically annulled the decision of the Southborough Zoning Board of Appeals (ZBA) to approve Park Central’s 40B project on a site near the intersection of Route 9 and I-495.
The judge also revoked the comprehensive permit issued to the developers, who wanted to build 180 apartments and 139 townhomes — the latter of which would be sold at market rate.
In his decision dated March 16, Judge William Ritter wrote that the inclusion of the townhomes in the permit was “legally untenable and not supported by the record.”
Developer pitches, then revises project
Park Central already owns 101.25 acres of land near the intersection of Route 9 and I-495.
Back in 2014, the developers filed an application for a comprehensive permit under Chapter 40B. Under this statute, zoning boards of appeals are able to approve projects as affordable housing developments if at least 20 to 25% of the units are restricted as affordable.
The statute applies to communities which are below a benchmark of 10% affordable housing. Southborough’s affordable housing inventory was 8.83% when plans were filed.
Park Central initially wanted to build 180 units, with 45 units, or 25%, being affordable. But its application was later modified to include 139 market rate townhomes, which would sit on 57 acres.
The 40B units would occupy nine acres.
Additionally, there would be 22 acres dedicated to open space.
Park Central Drive would be extended into the site, and there would be another entrance off the new John Boland Road onto Flagg Road, according to plans.
The ZBA initially granted a use variance for the townhomes that was conditioned on the future granting of the comprehensive permit, which was approved in August 2016 via a 3-0 vote by board members Leo Bartolini Jr., David Eagle and Paul Drepanos.
Judge issues decision
A total of 21 abutters subsequently appealed the ZBA’s decision in September of 2016.
In a joint pretrial memorandum filed in February 2020, abutters argued that the evidence presented at trial would show that the proposed project lacked adequate access, created hazardous traffic conditions and endangered the safety of local residents who live on nearby streets, as well as potential residents of the project.
Abutters argued that the ZBA ignored its procedures and requirements under Town Code, arguing that Park Central’s application was allowed to be passed with a vote of 3-0 when two of the board members should have been disqualified for various reasons.
The trial for this appeal lasted for 12 days, ending on May 1, 2021.
Ritter then concluded in his decision last month that the ZBA’s decision wasn’t based on “legally tenable ground,” saying that the project didn’t meet the comprehensive permit criteria under Chapter 40B due to the inclusion of the townhouse units.
The units have no affordability component, which is a requirement, Ritter said. He added that the court did not see sufficient information to prove that the affordable units needed the townhomes in order to be financially viable.
The addition of the 139 townhomes “significantly alters the scale of the project,” Ritter said, noting that the 45 affordable units didn’t represent 25% of the overall units.
He said the inclusion of the units “under the guise of affordable housing” wasn’t consistent with the intent and requirements of the statute.
“The legislature likely would not condone the manipulation of c. 40B so that major development can bypass local authority under the pretext of affordable housing,” Ritter said.
He also concluded that the ZBA’s decision to grant a permit, which exempted the project from Southborough’s stormwater bylaw, exceeded the board’s authority.
As he issued this decision, Ritter did conclude that the ZBA considered input from the town’s Planning Board and Conservation Commission in its process, noting over a dozen letters from boards contained in ZBA minutes.
“It is clear that there is a fair deal of hostility amongst the board on one side and the Planning Board, Conservation Commission, Board of Selectmen, and abutters on the other…,” Ritter noted.
Eagle’s home, meanwhile, had been listed for sale. And he signed closing documents for the sale of his house on the same day the board granted the permit according to Ritter’s decision.
Opponents of the Park Central project and the ZBA’s permitting of it had noted those facts, alleging that the ZBA’s vote was rushed to accommodate Eagle’s imminent departure from Southborough.
Ritter wrote, however, that these arguments weren’t persuasive.
“I do find that the board concluded its deliberations, voted, and executed the decision to ensure some finality for the project prior to Eagle moving out of town,” he wrote.
He noted that the application had been pending over two-and-a-half years.
In regards to other allegations of improper conduct, Ritter said he didn’t find any credible evidence of impropriety.
Case part of larger legal battle
This case is one of several that have roiled Southborough town government and residents for several years, as noted by MySouthborough.
The Park Central project has been in court on multiple occasions while developer William Depietri has pushed to move his project forward.
Cases have, at times, seen elements of town government at odds with one another, with the Planning Board filing an appeal in September of 2016 against Park Central and the ZBA.