Heard: June 5, 2019.
action commenced in the Superior Court Department on December
case was heard by Susan E. Sullivan, J., on motions for
J. Pasquarello (Donald J. O'Neil also present) for the
P. Catanzaro for Park Central, LLC.
A. Cipriano for zoning board of appeals of Southborough.
Present: Wolohojian, Milkey, & Hand, JJ.
issue is whether a use variance lapsed pursuant to G. L. c.
40A, § 10, which requires that variances be exercised
within one year of their grant. On the parties' cross
motions for summary judgment, a Superior Court judge entered
judgment in favor of the defendants on the ground that the
plaintiff, Jonathan Green, had failed to exhaust his
administrative remedies. We affirm, but on different grounds.
essential facts are undisputed. On February 12, 2014, Park
Central, LLC (Park Central), filed an application for a
comprehensive permit to construct 180 units of affordable
housing on a 101.25-acre parcel of land in Southborough
(town). Park Central also proposed the construction of 158
townhouse units on another portion of the land, which were to
be sold at market rate. There was local opposition to the
entire development as originally proposed. During the
comprehensive permit hearing process, Park Central and
several direct abutters -– with the help of a
consultant engaged by the town zoning board of appeals
(board) -– negotiated a settlement agreement
(agreement) that resulted in significant changes to the
development and therefore had the general support of the
neighborhood. Among other things, the agreement changed the
type of affordable housing units from individual ownership to
rental units (which would result in the town's affordable
housing inventory far exceeding for decades to come the ten
percent baseline required under G. L. c. 40B, § 20),
relocated the affordable housing units away from the
neighboring residential community, and provided for a
permanent conservation restriction on a portion of the land.
The changes set forth in the agreement were incorporated into
a concept plan finalized on April 8, 2015.
the development was to be located in three zoning districts
("Industrial Park," "Industrial," and
"Residential A") that did not permit use of the
land for the development as of right, Park Central applied
for a use variance on April 13, 2015. The board granted the
use variance on May 27, 2015, subject to sixteen conditions,
the second of which (condition no. 2) is central to this
"The [v]ariance is GRANTED subject to, and the project
shall be constructed in substantial conformance with the
conditions hereinafter set forth which are incorporated
herein and made a part of this [d]ecision.
"2. The [v]ariance shall be effective only following
final [b]oard approval of [Park Central's] c. 40B
[c]omprehensive [p]ermit [a]pplication for a 180 unit
rental affordable housing project with buildings and
infrastructure located in substantial compliance with the
April 8, 2015 concept [p]Ian and which approval shall be
final with all appeals have [sic] expired. [Park
Central] shall ...