NORTHBOROUGH – Plans to construct a distribution center and warehouse on Bartlett Street have been remanded to the Planning Board.
Judge Kevin Smith issued this decision after the Gutierrez Company’s appealed the Planning Board’s denial.
“For the foregoing reasons, I find that the Board’s decision denying site plan approval … and a special permit … was legally untenable, arbitrary, unreasonable, and otherwise beyond the proper exercise of the Board’s law authority,” Smith wrote in his Nov. 9 decision.
What Gutierrez Company proposed
This decision is the latest after a years-long process to build the center.
In 2019, the Gutierrez Company filed an application to construct a 150,900-square-foot distribution center and industrial warehouse on a 66.08-acre parcel at 0 and 301 Bartlett Street.
The site was to be accessed off Bartlett Street. The project called for 33 loading docks and parking for 150 vehicles.
The site is located within Northborough’s Industrial Zoning District and two Groundwater Protection Overlay districts. Smith noted that the project was an allowed use in the industrial zone, but it could only be constructed after a special permit was issued because the property was in the Groundwater Protection Overlay District.
Specifically, Gutierrez sought site plan approval and two special permits, one of which would extend an industrial use into the Groundwater District 1.
As part of the project, Gutierrez agreed to preserve 13.21 acres as conservation land through a conservation restriction with the state’s Wildlife Heritage and Endangered Species Program.
The Planning Board denied the plans in 2020.
Smith wrote that the Planning Board denied the special permit “based largely” on their determination that the Operation and Maintenance Plan and Snow Storage Plan didn’t satisfy the bylaw requirements regarding the protection of groundwater resources.
“This conclusion primarily rested on the Board’s concern that the safeguards proposed by Gutierrez to protect the groundwater resources would not be successful because they required maintenance and monitoring that would not likely by followed by the operator of the Property,” Smith wrote. “In addition, the Board expressed concern that the Town lacked sufficient resources to monitor and enforce Gutierrez’s compliance with both plans.”
In his decision, Smith noted that the project had received either approvals or recommendations from six boards, including the Groundwater Advisory Committee, Conservation Commission, Design Review Committee, Massachusetts Environmental Protection Agency, the Division of Fisheries and Wildlife through its National Heritage and Endangered Species Program and Massachusetts Water Resources Authority.
Gutierrez appealed the decision to Land Court in Jan. 2021, and in May, the case went to trial.
A month before Gutierrez filed the appeal, the company filed another application seeking to building an industrial subdivision, which the Planning Board ultimately denied in June 2021.
Gutierrez also appealed this denial. This case is still open in Land Court. However, its docket indicates that the most recent action was a case management conference in 2021.
In his decision, Smith said the Planning Board did not apply a discretionary nine-factor test for approval and instead applied special permit criteria to the site plan review.
The nine factors target a number of topics, including emergency access and compatibility with the surrounding area.
“This was an error by the Board, corrected prior to trial by the parties’ stipulation that Section 7-03-050(C)(2) was the bylaw that should have been applied that the board,” Smith wrote.
Smith argued that Gutierrez’s evidence regarding their compliance with the factors was “essentially undisputed,” and he concluded that Gutierrez’s plan satisfied the nine factors and “should have been approved.”
In regards to the special permit, Smith said the evidence indicated that the project met “every state regulation or guideline for managing stormwater and protecting groundwater.” The snow storage plan, he said, met standards from the Department of Environmental Protection and conditions ordered by the Conservation Commission.
Smith remanded it back before the Planning Board, limiting it for the board to review the project under the nine-factor test and determining if and to what extent the operations and maintenance plan or snow storage plan required more detail from Gutierrez.
Developer continues legal fight with Northborough Planning Board