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Green v Zoning Board of Appeals of Southborough & Another

Appeals Court of Massachusetts, Worcester

September 19, 2019

JONATHAN GREEN
v.
ZONING BOARD OF APPEALS OF SOUTHBOROUGH & another. [1]

          Heard: June 5, 2019.

         Civil action commenced in the Superior Court Department on December 6, 2016.

          The case was heard by Susan E. Sullivan, J., on motions for summary judgment.

          Daniel J. Pasquarello (Donald J. O'Neil also present) for the plaintiff.

          Angelo P. Catanzaro for Park Central, LLC.

          Aldo A. Cipriano for zoning board of appeals of Southborough.

          Present: Wolohojian, Milkey, & Hand, JJ.

          WOLOHOJIAN, J.

         At 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.

         Background.

         The 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.

         Because 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 appeal:

"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 ...

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