The Zoning Board of Appeals did not take a formal vote, but it sent a clear signal last week that it has found no justification to revoke the building permit issued in September for a childcare facility at 1688 Central Ave.
The three voting members of the ZBA explained their legal reasoning after sitting through a second session of testimony on the appeal filed by a group of abutters to the project, which is already well under construction. The wide-ranging testimony included implications of corruption and bullying that have marked the project since its outset.
Needham Enterprises is building a 10,000-square-foot structure that it has under lease to the Needham Children’s Center, which would transfer its longstanding childcare program from the First Baptist Church on Great Plain Avenue to the new facility.
The abutters claim the building permit is deficient, particularly because the project has not undergone a site plan review they claim is required by town bylaws.
ZBA members Peter Friedenberg, Valentina Elzon and Acting Chair Howard Goldman provided nearly identical summaries of their positions after voting to close the public hearing and proceed with their deliberations on the appeal.
“We are, for better or worse, narrowly focused in this forum,” said Friedenberg. “Is there a violation of a provision of our zoning bylaw that is applicable to this project within the contours of the Dover Amendment, and the Land Court decision such that we should revoke the building permit? That’s the lens through which we have to filter everything we’ve read and heard.”
Friedenberg was referring to the Planning’s Board’s lengthy regulatory review process on the project, which carries protections from the Dover Amendment, a state law which exempts childcare facilities from certain local zoning regulations.
The project was given a green light to apply for its building permit by a Land Court judgment in late summer that ruled the Planning Board had exceeded its authority in applying multiple conditions to the project.
Friedenberg then listed the several elements of the project to which neighbors have objected since the project first came before the Planning Board in early 2021. This includes the retention of the 4,800-square-foot barn on the property, the lack of a landscaping plan, the lack of a construction management plan, the claim of insufficient parking and traffic management and the overall scale of the building in a residential neighborhood.
In every instance, Friedenberg said, “I have not seen a compelling case” for revoking the permit.
Elzon concurred with Friedenberg’s assessment, as did Goldman, who reiterated what he said multiple times during the hearing, including at the outset.
“This childcare project is protected under the Dover Amendment,” Goldman said. “If the project complies with the bylaws, the board has no discretion to deny or revoke the permit.”
The question of site plan review
During the testimony, the attorney for the 11 abutters who are contesting the building permit renewed his argument that the project had not legally undergone the required site plan review.
While a site plan review had indeed been conducted by the Planning Board during its nine months of review, that plan was thrown out under the Land Court decision. The Planning Board permit had contained numerous conditions concerning setbacks, traffic management, the elimination of the barn and other limitations that Needham Enterprises successfully argued were not permissible under the Dover law.
“There has been abundant process, most notably by the Planning Board,” said the attorney, C. Dylan Sanders. “The problem is that process has been set aside by the court. We’re asking you here to revisit that process.”
Other testimony from several opponents on the project cast aspersions on the integrity of the process to date. Needham Enterprises is owned by Matt Borrelli, who was a member of the Select Board during the period the project was under review by the Planning Board and multiple other town bodies. There were allegations that Borrelli somehow influenced town officials, although no specifics were provided. Borrelli is no longer on the board, having opted not to run for re-election this past April.
Stanley Keller, an attorney who resides on Country Way around the corner from the site, said the town should have appealed the Land Court decision instead of leaving it to the abutters to take up the fight.
“It is inexplicable to me why the town didn’t appeal,” he said. “All of that really raises questions about the integrity of the town.”
Another Country Way resident, Eric Sockol, doubted whether the project had been subject to the “checks and balances” of a standard town review. “In reality, possibly some corners slipped,” he said.
Pine Street resident Patricia Falcao went further. After erroneously referring to Needham Enterprises as a “large venture capital operation,” she asked, “Is this an open question that we’re looking at a classic case of small town corruption and bullying with elected officials abusing the power of their office?”
Borrelli was not in attendance, but his attorney Evans Huber characterized the comments as “fairly offensive.”
“I think it’s fair to say Mr. Borrelli was treated far worse than many developers in his position would have been,” said Huber.
“I think it’s abundantly clear that Mr. Borrelli has not been given any special favors. He hasn’t been allowed to take any shortcuts,” said Huber. “In my opinion, the treatment he got in front of the Planning Board was egregious in terms of the level of conditions the Planning Board tried to impose on a Dover Amendment use — including conditions that town counsel told the Planning Board they couldn’t impose. But they went ahead and did it anyway.”
The ZBA is expected to vote on the appeal at its next meeting, which will be held via Zoom on Jan. 18.
“No matter what happens in this decision, my suspicion is someone will appeal it to a higher court,” said Goldman, the ZBA vice chair.
“I would put all my chips on that bet, whether it’s Mr. Huber or myself,” said Sanders, attorney for the abutters. “So, welcome to the party.”