Planning Board hit by 55 Lenox St. suit

On Monday, the Planning Board convened for a meeting originally scheduled for Feb. 23 that was moved because of the blizzard, but – although the mild weather outside was welcome – another kind of storm had blown into the Senior Center (275 Prospect St.) from 55 Lenox St.

On Jan. 5, the Planning Board had controversially voted down the application for that 96-unit transit-oriented development. Its 4-1 decision was based on the silent ambiguity of the Town’s zoning bylaw pertaining to mechanical parking lifts constituting an approved parking spot. It was also based on its disagreement with Building Commissioner Gary Pelletier’s interpretation of Massachusetts General Law as it pertains to whether or not interior construction “materials” include finished products, and whether or not the Board has the authority to rule on them.

In its rejection of the 55 Lenox St. application – which was filed under the increased density zoning guidelines of the recently approved MBTA Communities Act – the Planning Board went against not only the professional recommendation of Pelletier, but also against the advice of Town Counsel David DeLuca and Director of Community Development Sarah Dixon.

The repercussions of the decision were almost as immediate as the applause that had gone up from residents on Jan. 5 once they realized that the proposed development had been voted down.

The largest of them was the lawsuit filed in Land Court by Lenox LLC on Feb. 5. It contends that the denial was “arbitrary, capricious, exceeded the Board’s authority, and was based on errors of law.” As relief, the developer is seeking an annulment of the decision, a declaration that the 55 Lenox St. proposal meets the standards for site plan approval under Town Zoning Bylaw, and its attorney’s fees and costs incurred in its litigation against the Board and the Town.

To finance this, Town Manager Tony Mazzucco has stated to the Finance Commission that he will be requesting a reserve fund transfer at the May Town Meeting to cover the legal expenses.

On Monday night – after a 40-minute open session – attendees and media were asked to leave, and Dixon closed the doors to the main hall for an executive session to discuss case strategy. It ran 45 minutes and was attended by Dixon and Planning Board members Robert Bamber, Ernie Paciorkowski, Joseph Sheehan, and Debbie Holmwood (remotely). Brian Hachey was absent. Mazzucco and Board of Selectman (BOS) Vice Chairman Bill Plasko were also present.

A Land Court case management conference call is scheduled for 9 a.m. on Friday, March 13.

Beyond that, the effects of 55 Lenox St. could be felt in the open session.

Although never mentioned by name, the rejected project’s key point of contention fueled the discussion concerning citizens petition zoning amendment articles being formally referred to the Planning Board by the BOS. These petitions require a Planning Board public hearing before Town Meeting. However, it can only offer recommendations regarding these warrant articles.

This proved to be an issue for Sheehan when it came to the proposed citizens amendment to better define what a parking space is, and to clarify what constitutes mechanical lift parking.

During the 55 Lenox St. application process – for which a public hearing was held on Dec. 15 before the Jan. 5 discussion and vote – he had raised detailed questions, scenarios, and arguments against the use of mechanical lifts to meet the project’s parking requirements. It also became clear that he wanted the Planning Board to rectify the ambiguity of the parking space bylaw.

“Can we do our own – that’s what I was hoping to do in the first place – if we don’t find this language adequate?” Sheehan asked on Monday. “I don’t want to be set up for failure on this. I think this is very important that we get something done on this as soon as possible.”

Dixon pointed out that the time and effort required for Planning to prepare a zoning amendment and then bring it through the public process would negate having one ready for May, although she did say that having one ready for the Fall Town Meeting might be a possibility.

“It may very well be that the Planning Board chooses to go in that direction and say ‘We would like the opportunity to work on our own articles that address these things,’” she put forward toward the end of her response to Sheehan’s question. “In which case, it absolutely can and should continue that conversation, and we can begin that work of preparing our own articles.”

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The public hearing on all citizens petition zoning amendment warrant articles to be voted on at the May Town Meeting is tentatively scheduled during the April 27 Planning Board meeting.

In other Planning Board news:

The illuminated sign for the not-quite-ready-to-open Gemma Kitchen & Bar (171 Nahatan St.) – formerly the Olde Colonial Café – was approved. Co-owners Michelle Jewell and Giuseppe Tropeano anticipate that the restaurant will open for business within the next 4-5 weeks.

Dixon also gave an update on the Town’s Comprehensive Plan, as well as a tentative timeline as the 18-month project approaches completion. She suggested a special Planning Board meeting for March 30 at 7 p.m., at which the final draft will be presented. This will be followed by a public comment period leading up to the Board’s vote on its final adoption on April 27.

Finally, a new associate member – Steve Teehan – was unanimously approved by the Board after being recommended from a pool of eight applicants by Sheehan and Paciorkowski.

The next Planning Board meeting is scheduled for 7 p.m. on Monday, March 23.