NORTHBOROUGH – The Northborough Zoning Board of Appeals (ZBA) is heading to court.
In late November, the board denied a project that would have reconstructed a home at 129 Maple St. that was destroyed by a fatal fire in 2021. The project, which was proposed by David Cooley, called for razing the existing residence and constructing a five-unit multi-family, townhouse structure in its place.
After closing the public hearing in late October, the board voted 3-2 against granting a special permit with site plan approval to reconstruct a non-conforming, pre-existing multi-family structure that was destroyed by fire. Paul Tagliaferri, Suzy Cieslica and Brad Blanchette voted against and Fran Bakstran and Mark Rutan voted for the permit.
Now, DJF Realty, LLC filed an appeal of that decision on Dec. 19, arguing that the decision was “wholly arbitrary, capricious, based on legally untenable grounds and in excess of the ZBA’s authority.”
The plaintiff is asking the court to annul the ZBA’s decision, order the ZBA to approve the application and grant other relief that the court deems to be appropriate, according to the complaint filed in Worcester Superior Court.
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According to DJF Realty’s attorneys, the existing building was constructed around 1849 before Northborough adopted zoning in 1955. It was used as a multi-family residence and is a pre-existing, nonconforming use, they argue.
The Zoning Board of Appeals is able to grant a special permit “to extend or alter a nonconforming use … if it determines that the proposal will not be substantially more detrimental than the existing nonconforming use to the neighborhood,” according to the appeal.
The attorneys said the project called for reconstructing the building and continuing the nonconforming use, replacing the “outdated” building with the townhouse-style structure.
“As with the existing structure, each unit would contain just one bedroom,” the attorneys wrote. “However, each unit would be more consistent with modern codes and conveniences and would provide a more livable residence for its occupants.”
The attorneys argued that the project complied with all dimensional requirements under Northborough’s zoning bylaw. They said the sole reason in the board’s decision to deny was because the proposed building would be larger than what currently exists.
Only the use of the property as a five-unit residential development is nonconforming, and the developer wasn’t proposing to change the nature or character of the nonconforming use, the appeal said.
“Rather, the Plaintiff seeks only to continue the same use of the Property for five one-bedroom dwelling units. The proposed use is therefore identical to the existing use and clearly would not be substantially more detrimental to the neighborhood,” the attorneys wrote.
