The fate of a controversial child care facility planned at 1688 Central Ave. is in the hands of Massachusetts Land Court Judge Jennifer Roberts, who is expected to issue a decision this summer.
Roberts presided over a three-day trial this spring on a lawsuit brought by the developer of the proposed facility, Needham Enterprises, against the Needham Planning Board. The developer is contesting the terms of a permit the Planning Board granted for the project in March 2022.
Needham Enterprises, owned by former Select Board member Matt Borrelli, is proposing to build a 10,000-square-foot building that it intends to lease to the Needham Children’s Center (NCC), which would transfer its longstanding childcare operation from the First Baptist Church on Great Plain Avenue to the new facility.
The project is as complex as it is contentious. It has involved nine public hearings, a citizens’ petition opposing the project signed by more than 400 residents, allegations of conflict of interest regarding Borrelli’s status on the Select Board, and the recusal of Planning Board member Natasha Espada, who lives across the street from the project and whose husband joined a lawsuit opposing it.
Needham Enterprises purchased the property in April 2020 for $1.2 million. The 3.47-acre property includes a 1,663-square-foot house, two garages, and a 4,800-square-foot barn. All but the barn are in considerable disrepair.
A demolition permit was issued in April 2021, but all of the buildings still stand as the plan to construct a day care center serving up to 115 children has not advanced.
The site is zoned for single-family use, but a child care facility can be allowed under a 1950 state law, the Dover Amendment, which exempts child care facilities from certain local zoning regulations.
After nine months of hearings and deliberations, the Planning Board approved the permit application on March 3, 2022. That approval, however, came with numerous conditions that Needham Enterprises says make the project economically unfeasible, claiming the permit was effectively denied.
Needham Enterprises filed suit on March 23, 2022, naming the Planning Board and its individual members — Paul Alpert, Adam Block, Martin Jacobs and Jeanne McKnight — and challenging the board’s decision on multiple grounds.
Three days in court
Judge Roberts framed the issues at trial as a question of whether the imposition of the conditions “nullify or unduly frustrate” the project, without advancing “reasonable municipal purposes.”
More particularly, she wrote, “is a condition unreasonable because of the excessive cost of compliance without significant gain in municipal concerns.”
Possible conflicts related to Matt Borrelli’s dual role as a Select Board member and permit applicant were not an issue at trial.
After more than a year of pretrial activity, Roberts heard testimony at three in-person trial sessions in Boston on April 25 and 26 and May 18. The parties submitted posttrial briefs, which served as closing arguments, on June 30.
While there were many permit conditions at issue, testimony focused on the necessity of a child care center to have a 4,800-square-foot barn for its storage needs and how much of a setback would be required between the building and Central Avenue. The minimum setback according to town bylaws is 35 feet. Borelli agreed to 64 feet and the final permit called for 120 feet.
While the initial permit required the barn be demolished, the town’s attorneys relented to allow the barn, provided the 120-foot setback was retained. Borrelli argued that the 120-foot setback effectively required the barn to be eliminated, as it would then become an impediment to satisfying other conditions related to parking and traffic flow.
In his posttrial brief, Needham Enterprises Attorney Evans Huber argued that the Planning Board exceeded its authority and violated Dover Amendment protections.
“There is no reported decision in Massachusetts involving a Dover Amendment use that imposes, or even discusses, much less upholds on appeal, a dimensional requirement greater than that set forth in the applicable municipal bylaw,” Huber wrote.
He also noted that the Planning Board imposed “no less than 44 mandatory conditions” and only some of the “most egregious” were dropped prior to trial. “Were the court to uphold this condition as ‘reasonable,’ it would be the first time that any court in the Commonwealth has done so in a Dover Amendment case,” Huber said.
In their posttrial brief, the Planning Board’s attorneys, Jason Talerman and Matthew Provencher from Mead, Talerman & Costa, argued that Needham Enterprises presented no evidence at trial in support of its claims.
“The Plaintiff has provided zero evidence regarding the baseline cost of construction, zero evidence regarding the rent to be charged to NCC, zero evidence regarding NCC’s cost of operating the childcare facility and zero evidence regarding the revenues of the childcare facility,” they wrote.
“The Plaintiff has failed to meet its burden to prove excessive cost of compliance with the Board’s conditions. Furthermore, the Plaintiff has failed to demonstrate that the Board’s conditions have frustrated or diminished the Project in any other way.”
The town’s attorneys also renewed their pretrial argument that Needham Enterprises had no standing to sue because it is technically not a day care operator and it had not exhausted available administrative remedies.
Parties related to the case who were contacted declined to comment.
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