Northborough Planning Board heads to trial in Gutierrez appeal

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The Gutierrez Company’s project engineer Timothy Williams is sworn in to testify in land court this week. (Photo/Laura Hayes)

NORTHBOROUGH – Attorneys representing the Northborough Planning Board were in land court in Boston on Monday for the trial in a developer’s appeal of a 2020 Planning Board decision.

This development took place more than a year after the Gutierrez Company appealed the Planning Board’s decision in state land court, with attorneys arguing for several hours and hearing the testimony of a total of four witnesses.

What was proposed

In the appeal, Gutierrez argued that the Planning Board “failed to apply the correct standards” of review to their application.

Gutierrez had proposed the construction of a 105,900-square-foot warehouse located at 0 and 301 Bartlett Street.

The developers submitted an application with the Planning Board in December 2019, which was later revised in February of 2020. The property is located in the town’s Industrial Zoning District. It is, in turn, almost entirely within the Groundwater Protection Overlay District 3, though a small portion juts into the Groundwater Protection Overlay District 1.

The Gutierrez project called for 33 truck bays and 150 parking spaces. Gutierrez’s attorney Adam Ponte further noted that the project proposed the “permanent conservation restriction” of 13.21 acres that he said created a “significant wooded, forested buffer” between the site and surrounding residential properties.

Gutierrez sought the Planning Board’s approval of their site plans and special permits related to the Groundwater Protection Overlay District.

In their written decision, though, the Planning Board argued that, given the project’s size and scale, it is located in an “inappropriate” setting for its use. The board argued that the development would adversely affect the neighborhood, adding that “inadequate” facilities were provided.

In regards to the Groundwater Protection Overlay District, the Planning Board argued the project would “derogate” from the purpose of the district by “impairing ambient groundwater quality and reducing existing recharge capacity, and will adversely affect the quality or yield of an existing or potential water supply.”

Specifically, the Planning Board also said that a snow removal plan wasn’t “realistic” because of the precision required to move snow to exact specified locations.

Gutierrez rebuts Planning Board’s case

In court documents filed with Gutierrez’s appeal, its attorneys noted that the project had received either approval, recommendation or a permit from other boards and committees, including the Design Review Committee, Groundwater Advisory Committee and the Conservation Committee in Northborough.

The trial took place in Suffolk County Courthouse. (Photo/Laura Hayes)

Ponte argued in his opening statement that the case was about three things.

He described his client as a “responsible” developer with a “solid” track record that has developed properties within Northborough, including two larger projects nearby.

Second, he argued that the case was about an application for site plan approval and groundwater special permits. The application contained “everything that is required” for the approval, he said.

“The third is a curveball,” Ponte said. “And that curveball is, despite this project having received all of the necessary subcommittee approvals and state regulatory approvals, despite the fact that all the plans and reports and analysis have been submitted the satisfy the criteria of the bylaw, this board still found the basis to deny the site plan approval and groundwater special permit.”

He argued that, at the end of the trial, the court would not be “tricked” by the curveball.

“Here’s why – because the board was arbitrary and capricious in its denial of the application,” Ponte said.

Gutierrez’s Managing Director of Development Israel Lopez took the stand during Monday’s trial. (Photo/Laura Hayes)

Snow management, Ponte said, is the “crux” of the defendants’ position.

Gutierrez’s Managing Director of Development Israel Lopez later testified about the company’s snow management plans at its other properties.

Project engineer Timothy Williams additionally testified about the calculations to develop the snow removal plans, which included both primary and secondary snow storage sites.

In Williams’ affidavit, he said the design plans met the Massachusetts Department of Environmental Protection’s snow regulations adding that “there will be no adverse reaction to on-site resources as a result of this snow management plan.”

“Mr. Lopez will also confirm that his project engineer has taken specific calculations of this site,” Ponte said in his prior opening statement.

Those calculations, he said, confirmed that the site could handle up to an 18-inch snow storm event with adequate snow storage.

Ponte asked the court to issue an approval of the site plan and groundwater special permits or “remand” with the instruction to approve.

‘This is an extremely sensitive property’

Northborough’s Town Counsel David Doneski argues in court. (Photo/Laura Hayes)

Town Counsel David Doneski argued in his opening statement that town bylaws dictate that, in order for a site plan to be approved, an application must demonstrate that a project complies with “all of the zoning bylaw requirements.”

“In this case, those requirements include a special permit in the Groundwater Protection Overlay District,” he said.

The purpose of the district is to protect, preserve and maintain potential groundwater supply and recharge areas within Northborough’s aquifers, to conserve Northborough’s natural resources and to protect and preserve potential and present water supply sources, according to Doneski.

The bylaw is specific, Doneski argued, when it comes to what it requires and protects.

“Crucial” in the bylaw when considering groundwater special permits applications, Doneski said, is the fact that “the Planning Board must take into account the simplicity, the reliability and the feasibility of the control measures for groundwater protection that are being presented and the risk of those measures fail.”

He said the Bartlett Street property is “extremely sensitive.”

“A special permit…is a matter within the discretion of the special permit granting authority, even though it might be the case that an application presents all the facts that might entitle an applicant to approval,” Doneski said. “In this instance, the Planning Board recognized the facts that this is an extremely sensitive property.”

The Planning Board’s expert witness Mark Bartlett testifies. (Photo/Laura Hayes)

He referenced snow removal concerns in Gutierrez’s plans, arguing in opening statements that testimony would show that the procedures for handling snow do not meet a simplicity, reliability and feasibility test.

Doneski added that, if the court were to find that there was reason to find fault or misapplication of standards, the appropriate remedy would be a remand to the board and not an order for the site plan and special permit to be approved.

Gutierrez’s second appeal

This is not the only case involving the Gutierrez Company and Northborough Planning Board before Land Court.

A month before Gutierrez filed this appeal, the company filed another application with the town, seeking to build an industrial subdivision.

As part of the application, Gutierrez proposed building a road over the Wachusett Aqueduct.

The Planning Board later denied those plans in June 2021 with some board members expressing concerns about ownership, what was covered under impact studies and whether Gutierrez had the authority to execute its plans.

Gutierrez filed an appeal of this decision in July.

That case is still open before the Land Court. According to its docket, the most recent action was a case management conference held last August.

The board, likewise, is also facing a third appeal in Land Court of a permit denial for the STERIS Corporation, which had been seeking approval to expand one of its facilities on Whitney Street. This case is scheduled for a status conference in July.

What comes next

At the conclusion of the Gutierrez trial on Monday, Judge Kevin Smith told the attorneys to submit their closing briefs within 30 days after the court receives the transcript of the trial.

After Smith receives those briefs, the court will schedule closing arguments to eventually come to a decision in this case.

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