Zoning Board of Appeals meeting 11/16/ Credit: The Needham Channel

Preliminary work has begun on the construction of a long-planned day care facility at 1688 Central Ave. at the same time the building permit for the project is being challenged by a group of abutters.

The Zoning Board of Appeals (ZBA) heard nearly three hours of testimony last week. They adjourned without making a decision on the appeal of the permit issued last month to Needham Enterprises, owned by former Select Board member Matt Borrelli. Testimony centered on concerns about the barn on the property, stormwater management and possible soil contamination.

First proposed in the spring of 2021, the project calls for a 10,000-square-foot day care center on a 3-acre parcel in an area zoned for single-family residential use. The Planning Board granted the permit in March 2022 partly based on a state law, the Dover Amendment, which exempts child care facilities from certain local zoning regulations.

While technically an approval, the permit contained numerous conditions that led  Needham Enterprises to sue the Planning Board in Land Court for relief. The trial concluded in August, with the developer succeeding in shedding the multiple conditions and being allowed to apply for the building permit.

The judge in the Land Court case ruled the Planning Board had exceeded its authority, and the permit was issued Sept. 19. One month later, nine abutters appealed that decision to the ZBA.

The first half of last week’s hearing was dedicated mainly to the core issues argued at Land Court regarding the scope of the Dover Amendment and how extensively the project can legally be reviewed.

The attorney for the abutters argued that the project should be required to undergo a site plan review that would allow reconsideration of many of the conditions the Land Court disallowed.

“The project does not comply with the town’s zoning laws,” said C. Dylan Sanders. “It does not have site plan approval as the bylaw requires.

“The Dover Amendment expressly allows the town to regulate,” Sanders said.

Many project elements are at issue, including the 4,800-square-foot barn on the property and certain dimensional requirements, such as how far back the day care building needs to be from Central Avenue. The possibility of contaminated soil and the project’s stormwater management plan were also called into question.

Evans Huber, attorney for Needham Enterprises, referred to the Land Court’s judgment that the Planning Board review had been excessive and that the ZBA would be flying in the face of that court ruling by ruling otherwise.

“You’ve been deluged with a lot of paper, but I think in some ways we can boil this down to something that is much simpler than the scores and scores of legal analyses that you’ve received, “ Huber told the three-member ZBA.

“The only question this board has the authority to answer is whether or not this building permit was issued in violation of a particular provision of the bylaw.”

The building permit was approved by Joe Prondak, the town’s building commissioner. Prondak said he found no violations of the town’s bylaws by Dover Amendment standards. He also cited written responses from multiple town departments that also contained no objections to the permit being issued.

As for the adequacy of the stormwater management plan, town engineer Tom Ryder said it was more than sufficient. While one resident claimed it was a mere two pages, Ryder said the report contained 131 pages. 

“It has a narrative and data. There’s a maintenance plan. They have calculations and the management plan is on a larger sheet,” said Ryder.

While the initial stormwater plan was based on the project being connected to town sewer, the developer recently cited expense concerns that require a change to a septic system. Ryder said the stormwater plan might need to be revised, depending on how the septic system is sited on the property.

There were also no written objections from the Board of Health, which had been asked to review concerns raised about possible contaminated soil on the site, allegedly from unlicensed uses by prior owners. 

When the hearing was opened to comment from the public, multiple residents referred to submitted photos of rusted drums and other items that suggested prior owners had conducted dubious activities on the site. They raised concerns about contaminated soil and argued against using the site as a day care facility.

Members of the ZBA suggested the residents would be advised to raise those concerns with the state Department of Environmental Protection (DEP), which has regulatory authority over contaminated land.

The ZBA adjourned the public hearing after receiving nearly 90 minutes of comments. While the hearing will not reopen until its next meeting on Dec. 14, the soil issue was further discussed the following day at the monthly meeting of the Board of Health.

Residents frequently raised concerns over the soil during the Planning Board’s consideration of the project, and they raised those issues once again at Friday’s Board of Health meeting.

During the Planning Board process, the public health department had attempted to engage a Licensed Site Professional (LSP) to investigate the site, but no LSPs responded to the request for proposals.

Attorney Huber had stated at the ZBA hearing that an LSP advising Needham Enterprises on the project said there’s no visible evidence of hazardous materials on site, but Huber did not say whether the soil has been tested. 

“We have anecdotal reports,” Tim McDonald, head of the public health department, told the residents. “We have pictures of things being stored. We don’t have documentation of an environmental spill or contamination.

“The interpretation from town counsel and the chief counsel of the Mass. Association of Health Boards was there has to be clear documentation for Public Health to override personal property rights.”

A DEP spokesman confirmed that the public health department has communicated the soil concerns to the agency. 

“This property is not listed in our online database,” said the DEP’s Ed Coletta, referring to a database DEP maintains of properties that are confirmed to have tested positive for a contaminant or where a spill of a hazardous material was reported.

“Mass. DEP has been contacted by the Needham Public Health Division and a couple of nearby residents regarding this site, and we’re looking into it,” he said.

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