A house and garage were demolished at 1688 Central Ave. to clear the way for planned construction of a daycare center/ Credit: Needham Observer

Two of the three structures that sat at 1688 Central Ave. were razed last week, but Needham Enterprises still faces yet another obstacle along the gauntlet it has been running for two years to gain approval to build a daycare center at that site. At tonight’s Zoning Board of Appeals meeting, the project will face legal pushback by abutters who have opposed the project from its conception.  

Owned by former Select Board member Matt Borrelli, Needham Enterprises purchased the 3.47-acre property in April 2020 and brought its plans for a 10,000-square-foot day care center to the Planning Board in late 2021.

The parcel is zoned for single-family use, but Borrelli was able to override that zoning by invoking 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 project in March 2022, but attached numerous conditions that Borrelli found onerous. He appealed to Massachusetts Land Court, alleging his Dover Amendment rights had not been recognized, and won his case in August.

In her decision, Land Court Judge Jennifer Roberts ruled the Planning Board exceeded its legal authority in its handling of the application, stating the day care project “complies with the dimensional requirements of the local zoning bylaws and (pursuant to state law) is not subject to further review.”

The day after the case was decided Borrelli applied for a building permit, which the town’s Building Commissioner granted on Sept. 19. One month later, nine abutters to the property — Holly Clarke, Greg Darish, Robert DiMase, Matthew and Nicole Heideman, Carl Jonasson, Ann and Peter Lyons and Eileen Sullivan — filed the appeal that will be heard tonight.

The abutters’ attorney, C. Dylan Sanders, offered variations of many of the arguments made during the nine Planning Board public hearings as well as at Land Court. The 11-page brief offers a series of examples alleging the Land Court decision was far too generous in applying the Dover Amendment to override the Planning Board’s conditions.

Examples include whether the 4,800-square-foot barn at the property should be classified as an “accessory building,” the alleged unsafe soil conditions that are a legacy of past “unlicensed activities” at the property, an allegedly deficient stormwater management plan and other concerns.

Sanders also represents the abutters on a pending appeal of a case his clients lost during the Land Court trial. The abutters on three occasions tried unsuccessfully to intervene in the case out of concern their interests were not being represented by the attorneys the town hired to represent the defendant in that case, the Planning Board.

Sanders describes that particular appeal as a “threshold” issue, meaning it should have been allowed to run its course before the town acted on the building permit application. That case is being heard at the state Appeals Court, with Sanders’ brief due next week. Needham Enterprises would then have until late December to respond to the brief, meaning a decision would not be likely until next year.

Building commissioner Joe Prondak, whose office issued the permit, will respond to the appeal at this evening’s ZBA hearing. 

Several other town departments including fire, DPW, engineering and public health have filed responses stating no objections to the issuance of the permit. The Planning Board voted unanimously (with two abstentions) at its most recent meeting to offer “no comment” on the appeal.

Evans Huber, attorney for Needham Enterprises, also will be given an opportunity to respond before the hearing becomes open for other public comments. On Nov. 14, Huber submitted a 41-page correspondence to the ZBA in which he categorically rebuts the arguments made to support the appeal.

“Needham, through its Planning Board, has already litigated extensively in the Land Court the question of whether the Town has the authority to impose on this project the sorts of conditions that the appellants are now asking for and which the Planning Board imposed in its decision,” Huber wrote. He argues that the ZBA should follow the Land Court ruling, a decision which could be issued tonight.

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