A Massachusetts Land Court judge issued a decision for the proposed day care facility at 1688 Central Ave. on Tuesday, saying the Needham Planning Board “exceeded its authority” in how it conducted its process. The judge’s decision annulled the permit the board had granted to Matt Borrelli’s Needham Enterprises in March 2022.
Needham Enterprises argued that the approval it had received came with numerous conditions that made the project economically unfeasible. Borrelli, a former Select Board member, sued on multiple counts, including claims the permit was effectively denied and that the Planning Board process was illegal.
Judge Jennifer Roberts focused on Count II of the complaint, in which Borrelli’s attorney Evans Huber argued that a state law, the Dover Amendment, exempted the project from the level of review the Planning Board ultimately conducted. As the Observer reported last month, the board’s review was a nine-month process with eight public hearings from June to December 2021, followed by deliberation from December 2021 to March 2022.
Under “Findings of Facts,” Judge Roberts noted, “Mr. Borrelli requested a process known as minor project review, pursuant to which the board could provide comments to the town’s building inspector on the LLC’s submission.”
Instead, the town would not allow the project to apply for a building permit without first undergoing a major site plan review. Borrelli formally objected to this level of review on April 16, 2021.
In her decision, Judge Roberts agreed with Needham Enterprises’ argument that, under the Dover Amendment, a child care facility is a protected use exempt from the level of review that was ultimately conducted.
She wrote, “… the lot conforms to zoning requirements as to area and frontage of the Single Residence A District.”
“The proposed building will comply with all applicable dimensional and density requirements of the Single Residence A District for an institutional use, namely, front, side and rear setback, maximum building height, maximum number of stories, maximum lot coverage and maximum floor area ratio.
“Any analysis of this project by local officials should have ended there,” she wrote. “The site plan approval process imposed on the project here went well beyond the reasonable regulation of childcare facilities permitted by the Dover Amendment.”
In summary, Roberts wrote, “What has been set forth above amounts to a wholesale rejection of the (Planning) Board’s arguments.”
Judge Roberts’ decision is not her final judgment and will be discussed at a hearing next week to consider next steps. The judge retains the authority to issue a judgment should the parties not be able to come to an agreement that the judge would ultimately need to approve.
The Planning Board acknowledged the decision at its Tuesday meeting with a statement, which said in part, “The Planning Board expects that it will discuss the decision and any next steps with special counsel, but it has not had an opportunity to do so yet. Accordingly, that is the extent of the update that the Board can offer at this time.”
Asked for comment, the board’s special counsel, Attorney Jay Talerman, said via email, “Aside from noting our disappointment in the Judge’s departure from well-established legal principles, I have no comment at this time.”
Huber, the attorney for Matt Borelli, declined comment.
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