ZBA, Selectboard secret water deal with Claremont Plymouth LLC illegally negotiated says Attorney General
Lawsuits and appeals say Zoning Board of Appeals, Conservation Commission violated the law in approving the project
ZBA and developer ask court to require elderly residents, retirees to post bond to cover developers’ legal fees of defending the appeal; residents fight back
October 30, 2023 Update: Why is the Plymouth Zoning Board of Appeals spending taxpayer money on a lawyer to go to court to try to force elderly residents to post a bond for developer’s legal fees?
In March 2023 lawsuit residents living next to a proposed 348-unit apartment complex in Colony Place appealed the Zoning Board of Appeals permit given to Claremont Plymouth LLC. The residents are all elderly, retired or semi-retired and include a Vietnam Vet. They appealed to protect their property value and right to enjoy their homes. The Claremont project is one of the most dense in the town. It is not affordable housing but market rate apartments. The permit hinges on the illegal secret water deal made by the Selectboard, then chaired by Betty Cavacco, and the ZBA, chaired by Buster Main.
In September, the Zoning Board of Appeals joined with Claremont, the developer, to bring a motion to ask the court to require the residents to post a bond to cover Claremont’s attorneys fees claiming the delay caused by the appeal would cost the developer money. This is an outrageous abuse of the bond statute. The Massachusetts Constitution and the town’s zoning law gives residents the right to appeal zoning decisions. The ZBA’s motion is an attempt to threaten and intimidate the residents so they drop their appeal.
Who is the ZBA and the Town Counsel working for? Developers or the residents whose rights to clean air, clean water and a pleasant community they are supposed to protect?
Read the residents’ response to the Town and Claremont here.
The residents lawsuit claims that the ZBA violated the Zoning Bylaw and the Open Meeting Law when it granted a special permit to Claremont for 198 residential units. The ZBA first issued the permit in December 2022. Residents filed a lawsuit to overturn the permit. After the lawsuit was filed, the ZBA realized the permit was illegal and it had violated the bylaw in issuing it. So, it just amended the permit, parroting language from the bylaw to try to fix their mistake. This forced the residents to sue again.
The lawsuit was filed after over a year of hearings and efforts by local residents to get the ZBA to follow the laws. With a campaign in 2022, “Why laws or bylaws” concerned community members challenged the developers’ request for “waivers” of the Town’s zoning laws saying if the ZBA granted them it would make a mockery out of the laws. The lawsuit claims:
- The residential units are not allowed in the “Mixed Commerce” district
- The project does not qualify for a variance and violates zoning laws for floor-to-area ratio, height, and density
- The ZBA violated the Open Meeting Law when it entered into the secret water deal (“Development Agreement”) with Claremont for the project
- The special permit hinges on the illegal secret water deal because Plymouth’s water system does not have enough water for the project, according to the 2022 Environmental Partners Report.
The lawsuit is here:
Conservation Commission violates wetlands laws, refuses to require developer Claremont to get permit for dredging pond, wetlands
The Plymouth Conservation Commission is also siding with the developer, Claremont. The 348-unit apartment complex plan calls for dredging a pond and wetland to install new stormwater drainage. This requires a wetlands permit under state and local laws. When the Conservation Commission refused to require Claremont to get a permit, Save the Pine Barrens filed a formal request with the Commission. This is called a “Request for Determination of Applicability.” The Conservation Commission still refused to do the right thing.
This forced STPB to file an appeal to the state Department of Environmental Protection to ask them to require Claremont to get a permit to dredge the pond and wetlands. The appeal is below. The next steps are a site visit and decision by DEP. Whatever DEP decides, either party can appeal for a hearing.
See the wetlands appeal here.
ZBA, Selectboard and Claremont’s secret water deal
On August 4, 2023, the Attorney General’s Office, Division of Open Government slammed the Plymouth Zoning Board of Appeals and Selectboard over Open Meeting Law violations surrounding the secret water deal with developer Claremont Plymouth LLC for up to 348 units in Colony Place. The Open Meeting Law violations are at the heart of a March 2023 lawsuit challenging the ZBA’s special permit for the project.
In exchange for a ZBA permit for “at least” 198 units on Lot 5A and 150 units on Lot 5A, Claremont agreed to pay Plymouth money for a temporary fix for its failing water system. The payment was arranged in the secret water deal behind closed doors — the same meeting that the Attorney General says violated the Open Meeting Law. The deal calls for Claremont to pay up to $2 million to the Town. After the Town waives all the fees and gives Claremont a 23% reduction in payments in lieu of affordable housing, the amount Claremont will pay is about $700,000.00. Town officials have misrepresented the “Development Agreement” as saving the taxpayers “millions of dollars”. In reality, this is a short term fix for the Town’s water crisis that allows a developer to make millions while sidestepping the zoning laws and affordable housing obligations.
The ZBA negotiated the Development Agreement with Claremont, according to a statement by Town Manager Derek Brindisi to the Attorney General’s Office in the Open Meeting Law investigation. The ZBA and Selectboard met in an illegal “executive session“, a secret meeting behind closed doors, on November 15, 2022 to “discuss” the Agreement. The Attorney General ruled on August 4, 2023 this meeting violated the Open Meeting Law. In January 2023, the Selectboard voted after-the-fact to approve the Agreement that was negotiated behind closed doors.
The Development Agreement is here:
Below: Location of proposed Claremont development project in Colony Place, Plymouth, MA. The site abuts a large conservation area in Kingston.
Town’s Water crisis: ZBA issues permit anyway
On November 16, 2023, the day after the closed-door joint meeting of the ZBA and Selectboard, the ZBA opened the public hearing on Claremont’s special permit application. The ZBA said the water situation is at a “tipping point.”
Since 2019, the Town’s own consultant has been warning of a water supply crisis and telling the ZBA not to issue new permits for more development. The ZBA has ignored these warnings.
In 2019, the Town’s consultant Environmental Partners issued a report about the water demand of the Oasis 362-unit development off Route 3 near “Old Exit 10”. The report says there was not enough water for the project. The ZBA approved it anyway.
Again in 2021 Environmental Partners warned the ZBA not to approve another 350+ unit development – this time The Walk — without addressing water issues. The ZBA approved a deal between the Water Department and the developer for a cheap bandaid and the project went ahead anyway. The Town ignored concerns about further contaminating the North Plymouth wells and ruining Darby Pond and Muddy Pond, a globally rare ecosystem in permanent conservation protection.
The 2022 Environmental Partners report was the third warning that the ZBA ignored. TRead an analysis of the report and Plymouth’s water crisis on this website post. The 2022 Environmental Partners report is posted here:
At a minimum, projects in West Plymouth should be hold because there is not enough redundant capacity in the West Plymouth Pressure Zone wells for more water withdrawals. Instead of slowing development, the ZBA and Planning Board recently approved the huge new Hyandai car dealership near Colony Place in an aquifer protection zone – complete with a car wash and auto body shop that will discharge runoff into the ground. The area is being mined for sand and gravel and leveled.
The Claremont 348-unit project is a bell-weather for how Plymouth seeks to address its future water supply issues.
Claremont project in drinking water well protection zones
The purple lines on this map shows the “Zone II” areas of protection around Colony Place and Claremont’s site. Impacts in this protection zone is a separate concern — is another concern, on top of how the Town can’t supply water from the wells. Claremont’s site and the mining operation are in the Zone II.
Colony Place development raised concerns in 2003, promises made, bait and switch happened
When Colony Place was first developed in 2003 there were serious water and
other concerns that where pushed off to the future with vague promises. Read
more about the environmental review process starting in 2002 here.
Massive sand and gravel mine at Claremont site increases need for careful environmental review, hydrology study
Operation started in 2001 leveled hills, forest, mined in the aquifer
Starting in about 2001, Saxon Properties conducted a massive sand and gravel mining operation on about 250 acres in the area that would become Colony Place. Saxon and P.A. Landers Trucking removed at least 2.5 million cubic yards of material . The ZBA issued an earth removal permit for the operation in 2001. The plan was for the “Plymouth Gateway” retail mall. The operation leveled an area of 150 foot hills, some of the region’s highest. It mined into the Plymouth Carver Sole Source Aquifer. There has been no accountability for the environmental impacts of this strip mining. It left the underlying groundwater aquifer with NO PROTECTION at all. Further, there was no reason why the mall could not have been built within existing topography. Since the project was proposed there has been a switch from commercial and retail to dense residential development and car dealerships. No one knows exactly how much sand and gravel was stripped off or how deep the mining went into the groundwater.
The images below show the massive sand and gravel mining operation that took place at the site. This type of earth removal threatens the water quality of the aquifer that lies beneath these sands. The ZBA ignored these impacts and the current condition of the site when it issued the 2023 special permit to Claremont.
Before Saxon Properties-P.A. Landers sand and gravel mining operation: 257 acres of pristine forests and upland.
Below: During sand and gravel mining, 2003
Below: During sand and gravel mining, 2004
Below: After: 2021
Planning Board grants Claremont approval to fill wetland ponds, July 2023
On July 26, 2023, the Planning Board purported to grant approval for Claremont to excavate two ponds and fill them in order to “redesign” the “stormwater system” installed on the lot by Saxon Partners/Gary Darmin.
Nearby sand and gravel mine by Franklin Marsh Cranberry Co. mining in the aquifer
Colony Place and the Claremont project are near the Franklin Marsh Cranberry Co. sand and gravel operation. This operation is mining in the Plymouth Carver Sole Source Aquifer. The groundwater is hydrologically connected to the nearby Claremont site. Public and private water supply wells are also in the area. There was never a hydrology report for this egregious cranberry ruse.