The Planning Board on Monday unanimously voted not to approve a proposed amended definitive subdivision plan for 0 Benson Road after receiving input from town counsel.

This situation called into question a Planning Board decision made nearly two decades earlier. The definitive subdivision plan was approved when property owner Wayne Comeau agreed to donate a parcel to the Hopkinton Area Land Trust (HALT) in exchange for the extension of a dead-end road.

But Comeau never donated the land to HALT, previously saying that he forgot about it for more than a decade. When he did approach HALT, the nonprofit was no longer interested because the property it had hoped to connect to this parcel was no longer available. HALT asked Comeau to make a $1,000 donation in lieu of the land. Comeau wants to build a home there.

The Planning Board has been discussing this complex case for several months. The hearing also was continued seven times, frustrating members. Comeau’s first attorney, Donna Wolf, sought to find another open space parcel to essentially swap for the one previously intended to be donated to HALT, but Wolf was not successful.

Comeau’s attorney, Peter Brooks, introduced himself at the Feb. 24 meeting. He said then that the “central issue” was whether the board’s decision about the subdivision “contained a condition that a gift be made.” If that were a condition, he questioned whether the “failure to complete that gift” would make the lot in question unbuildable.

Chair Rob Benson said “the takeaway from this letter [from town counsel] is that we’re not legally obligated to grant the waiver.”

Vice chair Matthew Wronka pointed out that town counsel “didn’t really address the question” as to whether the original decision from 2006 should be rescinded. His concern was what could happen if the property changed hands.

John Gelcich, the acting director of the Land Use, Planning & Permitting Department, explained that once a subdivision is created, there essentially is a deed restriction on that parcel. If Comeau were to sell either or both properties, the conditions of the original approval would remain in place.

Brooks said he understood that the board most likely would follow town counsel’s advice. But he did not believe the letter acknowledged the concerns he previously raised. Brooks had cited around 10 cases to bolster his argument that a community could not condition the donation of a property owner’s land as part of its decision because it is illegal under subdivision control law.

“None of that’s really addressed in here,” he said of town counsel’s response. “It’s not even clear that town counsel read any of those cases.”

Brooks added that the donation of the land was intended but not a condition for the decision.

Town counsel’s letter “shouldn’t be given much weight,” he said, shortly before the unanimous decision against his client.

Benson read the findings explaining the reasoning behind the negative decision that noted Comeau’s failure to donate the land to HALT. Also, HALT’s receipt of the monetary donation did not negate the board’s 2006 decision about the parcel.

Said Brooks: “I think it’s going to go down a path that is very unfortunate and very costly to Wayne Comeau.”

Board votes against article on South Street rezoning

The bulk of the meeting focused on a proposed Town Meeting article that seeks to rezone a building at the corner of South Street and Hayward Street from a residential lakefront district to a rural business district. Marguerite Concrete, founded in 1989 by Hopkinton resident Jim Marguerite, seeks to change the zoning so that he can locate the company’s corporate headquarters there. Marguerite intends to donate two lots to the town as open space.

This proposal was voted down at Annual Town Meeting in 2023. Resident Peter Bemis, who originally submitted the article, tried to have it withdrawn before the meeting but missed the deadline. Town Meeting members insisted that a vote be taken, particularly people involved with the Lake Maspenock Preservation Association, and it was defeated unanimously.

That vote prevented the article from being presented again for two years. The proposal was discussed before the Zoning Advisory Committee last year in preparation for its consideration in May.

Attorney David Click represented Marguerite. He clarified that the two parcels his client intends to donate would not be rezoned.

Architect Scott Richardson explained that five small parcels consisting of approximately 2.5 acres would need to be rezoned for Marguerite’s proposed corporate office building at 70 South Street.  A paper road divides these parcels from the two that would be donated.

Member Lucia Lopez pointed out that a strip of land appears under the proposed building lots and questioned if its zoning would remain intact. Richardson said the 10-foot wide strip was meant to serve as a divider between the office building and Hayward Street and would be given to the town. The intention was to “restrict any access to or development off of Hayward into this parcel,” Richardson said.

Benson said it would be “kind of tone deaf” for the Planning Board to recommend a proposal that was unanimously voted down by Town Meeting in 2023.

Richardson said the addition of the 10-foot-wide strip prevented entrance to the building from Hayward Street, in deference to residents’ concerns. He said the office building would mesh with South Street being the “industrial engine” of the town.

Lake Maspenock Preservation Association president Sabine St. Pierre said she believed the proponent tried to make some concessions to residents “a little too late.” She was concerned that there were “no guarantees” as to what could be developed there if the zoning change were approved.

She added: “Once it’s deemed business [zoning], you can’t go back.”

Traffic, drainage and proper notification to neighbors were raised as issues by other residents.

Wronka noted that the applicant did make concessions that might make a business more palatable to residents. The town’s lack of a strong commercial base was a reason to consider the proposal. He and member Jane Moran voted in opposition in the 6-2-1 decision not to support the Town Meeting article. Member Vikasith Pratty, who lives in the neighborhood, abstained.

Board recommends administrative articles

The board decided unanimously to recommend four other articles for the warrant.

One article would amend the definition of a veterinary clinic to include onsite cremation and aquamation, also known as alkaline hydrolysis. Another was submitted to correct a document reference number in the bylaw section regarding duplexes.

The language regarding floodplain districts needs to be amended by the town to conform with state and federal regulations, Gelcich explained. Similarly, an article related to accessory dwelling units needs to be amended in order to mirror the state’s language.