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Proponents revise Highway Major Retail warrant article; Planning Board continues public hearing after debate over 'spot zoning' concerns
Summary
Proponents revised a warrant article to add a Highway Major Retail use to Southborough’s IP district and named the Planning Board as the special‑permit authority; opponents said the draft effectively benefits one parcel and risks being challenged as spot zoning.
Southborough — Proponents of a warrant article to add a “Highway Major Retail” use to the Industrial Park (IP) zoning district presented a revised draft Monday that identifies a single parcel and makes the Planning Board the special‑permit granting authority. After public comment from an owner of large IP parcels and legal back‑and‑forth about whether the draft constitutes unlawful spot zoning, the Planning Board continued the public hearing to Oct. 20.
Attorney Christine Hung of Reimer & Brunstein, representing Atlantic Management and owner/developer Atlantic Management’s team, said the updated draft responds to Planning Board comments by naming the precise parcel and by designating the Planning Board as the Special Permit Granting Authority (SPGA). “Most notably, the revisions are that the planning board is the special permit granting authority, and … we have identified the specific parcel,” Hung told the board.
Capital Group Properties — which owns substantial land in the IP district and whose permitting manager, Shannon Boyce, submitted a multi‑page legal letter — argued the draft is tailored so narrowly that only a single lot would qualify, leaving most IP parcels excluded. Their counsel’s submission cited Massachusetts case law and statutory requirements and concluded the article functionally benefits a single developer. Boyce read the letter into the record, writing that “after applying each of the definitional filters to the parcels within the IP zone, the amendment does not operate as a neutral district wide framework. Instead, this is a functional example of classic spot zoning because it effectively benefits 1 development proposal on 1 parcel.”
Town counsel and the proponents responded that the draft advances public planning objectives called out in the town’s master plan and that courts defer to zoning changes adopted through a public hearing and town‑meeting process unless challengers carry a heavy burden. An attorney representing the proponents summarized the view that limiting the use to a specific parcel and requiring a special permit provides continuity of review and public safeguards.
Planning Board members expressed support for the revisions (including several members who said they favored the Planning Board serving as SPGA to avoid procedural “ping‑pong” between boards), but they also said additional outreach and clarity in the article text would be helpful. The Board received written input from Capital Group and others that will be included in the record. The Board voted to continue the public hearing to 7 p.m. on Oct. 20 to allow further review and for proponents to supply a clean and red‑line version of final language.
Why it matters: the article would create a new major‑retail use with threshold criteria (size, frontage/access to Route 9, buffers from residential zones and lot size) and could affect traffic, tax base and future permitting for adjacent parcels; objectors warn a narrowly drafted article could be vulnerable to an Attorney General or court challenge on spot‑zoning grounds.
What’s next: proponents to submit a version 7 clean/red‑line draft (the board requested minor edits, including changing a frontage test to an ingress/egress test), Atlantic Management to continue outreach, and the board to reconvene public hearing Oct. 20.
