Posted by: Patricia Salkin | September 20, 2019

MA Appeals Court Finds Property Owner Failed to Exhaust Administrative Remedies Prior to Challenging Proposed Townhouse Development

This post was authored by Matthew Loeser, Esq.

In 2014, Park Central, LLC filed an application for a comprehensive permit to construct 180 units of affordable housing on a 101.25-acre parcel of land in Southborough. Park Central also proposed the construction of 158 townhouse units on another portion of the land, which were to be sold at market rate. 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, negotiated a settlement agreement. 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. The board granted the use variance, subject to sixteen conditions, in 2015.

In 2016, Karen Shimkus, a town resident who lived approximately one mile from the development, wrote to the town building inspector asking that he declare that the use variance had lapsed because the rights authorized under it had not been exercised within one year, as required by G. L. c. 40A, § 10. The building inspector denied Shimkus’s request, and the board denied Shimkus’s appeal. Jonathan Green, an abutter to an abutter to the proposed development, joined Shimkus as a plaintiff in bringing the underlying Superior Court action pursuant to G. L. c. 40A, § 17, seeking review of the board’s decision denying Shimkus’s request for relief. Shimkus subsequently voluntarily dismissed her claim with prejudice, leaving Green as the only plaintiff. On cross motions for summary judgment, the judge concluded that Green had failed to exhaust his administrative remedies, and judgment entered for the defendants.

On appeal, Green first contended that since the use variance expired before it became effective, there was never a time when Park Central could exercise the use variance. The court found that Green’s reading of this condition would render this particular use variance illusory since the timing of the comprehensive permit was in the board’s hands, rather than Park Central’s. Additionally, while the record did not provide any indication as to why the board did not grant the comprehensive permit within one year of the use variance, there was nothing to suggest that the timing was in any way attributable to Park Central.

Green lastly contended that disputed issues of fact existed as to whether Park Central exercised its rights under the use variance within one year. Contrary to Green’s allegations, Park Central demonstrated that it timely recorded the use variance and pursued approval of the comprehensive permit for its use variance. Additionally, Park Central included an affidavit of its manager, William DePietri, detailing various steps Park Central took after approval of the use variance and in reliance on it. Conversely, Green failed to offer any admissible evidence on summary judgment to counter DePietri’s affidavit. Accordingly, the judgement for defendants was affirmed.

Green v. Zoning Board of Appeals of Southborough, 2019 WL 4509069 (MA App. 9/19/20219)

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