Divided Planning Board rejects Village Gate project

By Jay Turner

A proposed housing subdivision off Village Gate Road that would have netted the town more than 30 acres of conservation land ended in defeat last week after a deadlocked Planning Board rejected the developer’s application for a special permit.

The so-called “flex plan,” submitted by Canton builder Pat Considine under the town’s flexible development bylaw, was designed to limit the impact to the surrounding wetlands as recommended by the Conservation Commission as well as the state Department of Environmental Protection. In effect, the proposal would have clustered the 28 homes while setting aside more than half of the 64-acre property to be preserved as either common open land or undisturbed wetlands.

But while the Planning Board had greenlighted the idea when it was first proposed last spring, it became increasingly clear over the past few weeks that two of the board’s members — past chairman Gary Vinciguerra and current chairman Kristen Mirliani — were not comfortable with certain aspects of the project, whereas another two members, George Jenkins and Jeremy Comeau, were firmly in support of it.

Normally, the Planning Board, with five members, could avoid such a stalemate. However, board member Chris Connolly, who has ties to Considine, opted to recuse himself from all proceedings involving this project, which is referred to in documents as Turtle Creek.

In addition, the Planning Board is required to have a super majority (four affirmative votes) in order to grant a flexible development permit. And yet with neither side prepared to yield its position, the process dragged out until it reached a virtual standstill on May 4, when the two sides engaged in what looked like a staring contest as Mirliani repeatedly called for a motion to approve.

At the heart of the dispute was the issue of a 30-foot, “no-build” wetland buffer zone required by ConCom and whether or not it could be counted toward the open space requirement as spelled out in the bylaw. Tom Houston, the board’s consulting engineer, had stated in his review that the bylaw was unclear in this regard and that the board, as a result, had a “policy decision” to make around including the buffer as usable open space.

Both Jenkins and Comeau argued that the open space in the plans satisfied the intent of the bylaw, whereas Vinciguerra and Mirliani seemed far more concerned with establishing a precedent, particularly since two other previously approved flex plans did not make specific reference to the buffer.

Vinciguerra further reminded the board that if the buffer were deemed ineligible, then 3.5 acres of the roughly 10 acres of usable open space would be excluded and the project would be in violation of the bylaw.

Meanwhile, Considine and his attorneys were surprised that the issue had been raised at all, noting that they had resolved all outstanding engineering and zoning issues with the consulting engineer months before.

“We felt we were in full compliance,” said Considine in a follow-up interview, adding, “We clearly, definitively asked the board to supply us with any outstanding issues that they might have had.”

At the meeting on May 4, a visibly frustrated Considine went on to outline the purpose of the flexible development bylaw, arguing that the buffer — and the project as a whole — clearly met the intent as it relates to open space.

“I don’t think that we could present a flexible development that more suits and satisfies the intent that’s being proposed here,” he concluded.

With both sides refusing to budge, the meeting soon devolved into a battle of wills, as members proceeded to make various competing motions, all of which were rejected 2-2. On four occasions Jenkins or Comeau attempted to adjourn the meeting, to no avail, prompting Jenkins to jokingly ask if he could “go home and get [his] pillow.”

Eventually, Mirliani made a motion to deny the project, which also failed to carry by a vote of 2-2.

By default, the decision to grant the special permit carried over to the board’s next meeting on May 18, which began with a dispute over whether or not to accept a packet of information submitted by Attorney Robert DeLello on behalf of Considine.

DeLello insisted that the documents amounted to clarification of existing issues; however, Mirliani, citing the opinion of town counsel, determined it to be inadmissible.

“I feel it would be a gross unfairness to the abutters were we to accept this without allowing them the opportunity to respond,” said Mirliani, referencing a group of neighbors who have taken legal action against Considine.

Despite continued objections raised by both DeLello and Considine himself, the board proceeded with a vote on the special permit.

“Let’s just make a motion, get this nightmare over with,” said Jenkins, who also stated his intention to draft a secondary opinion that would include DeLello’s letter.

Jenkins’ secondary opinion, along with the final written decision, was scheduled to be discussed at a public meeting on Tuesday, May 24. (available on Cable 22/Verizon 42)

In a follow-up interview on Sunday, Comeau admitted he was confused as to what Mirliani and Vinciguerra planned to use in their report as a basis for denial other than the 30-foot buffer issue, which is murky at best.

“Other than that [buffer,] I don’t know why they would turn this down. It’s a better solution to what’s already been approved,” said Comeau, referring to a 28-unit conventional subdivision that was previously approved by the board and is currently on file at the Registry of Deeds.

But Mirliani indicated on Sunday that “there are absolutely more issues than the 30-foot buffer” and that they were all discussed at length earlier in the process.

She noted that there are a few technical issues, such as the fact that Considine does not currently have ownership of a strip of land that is identified in the plans — even though the bylaw requires that the development must be on a single tract under one ownership.

Arguably the biggest issue, she said, is that Considine’s right to access and extend Village Gate Road has not been firmly established, owing to the fact that the road is a private way. She added that recent legal challenges by the abutters, although they have since been dismissed, did not clarify the issue of access.

Considine, meanwhile, firmly believes he has proven his right to access, both in the courts and through a statement from town counsel on the conventional subdivision.

“I have an approved subdivision plan on file at the Registry of Deeds to go down Village Gate Road and build 28 homes,” he said.

Furthermore, town counsel did make another determination back in November on the issue of access relative to the flex development.

In a document deemed confidential by then chairman Vinciguerra but made public in the secondary opinion prepared by Jenkins and Comeau, town counsel states that the “Planning Board could reasonably conclude that the applicant has established access rights to the property over Village Gate Road” by providing evidence of the following: an express grant of an easement “benefitting at least a portion of the property,” and prescriptive rights of access “by use by the public and maintenance by the town for over 20 years.”

As for where this project will go from here in light of the recent denial, Considine would not comment on what his next move might be, although he certainly does not appear ready to give up on the site altogether, noting that there is still a “tremendous opportunity to turn this property into a stunning development.”

What’s more, Considine said he is firmly committed to protecting Balancing Rock, a geological and historical treasure at the end of Village Gate Road that is believed to be part of a sacred site predating the arrival of Europeans in New England.

“I will not use Balancing Rock as leverage for anything I want in this town,” insisted Considine, who has done his own “extensive research” on the significance of the large rock and surrounding terrain. “It was my plan all along to protect [the site]. I would never deface what I believe to be historical in nature.”

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