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A development at 10 Converse Place will be back on the Winchester Planning Board’s agenda on April 15, after concerned residents took to social media to urge the board to continue the discussion.
“We heard from the petitioners as well as several members of the public and we continued it to Tuesday, April 15,” Chair Brian Vernaglia said. “We would like to give town boards and committees as well as residents a chance to weigh in.
“The question before the board is whether the proposed changes to the project, (a request to modify a 2022 Special Permit) are significant enough to require further in-depth review or whether they are de minimis (of least importance or something so small or insignificant it isn’t worth considering or the law will take no notice of) and could be addressed by minor changes to the previous decision,” Vernaglia continued. “There are outstanding issues beyond the purview of the board that may impact the proposal and they will need to be addressed outside of our hearings.”
The continuance from April 1 is just the latest in a long chain of economic, environmental and legal events hindering the project.
“We need to move in earnest,” developer Paul Ognibene said at a Select Board meeting Feb. 24. “Codes will be changing by June 30. If we don’t have our building permits, our plans will have to change. If we could get tacit approval, perhaps that's something you could support.”
As the granting authority for projects downtown, the Planning Board approved a design in 2022 submitted by developer Ian Gullespie for a new building with retail businesses on the ground floor and residences above.
Ognibene said the project became economically unfeasible for Gullespie, who has since gone bankrupt. The design will remain the same except for some changes planned for the parking garage plus other smaller changes.
“For the most part, we’ve tried to leave everything exactly as it was, but we need to make sure the project is viable and make some changes,” Ognibene said. “Not with the footprint, but inside the building.”
ConCom turned it down
Of greater importance is the impact the building will have surrounding wetlands, specifically Mill Pond behind the lot.
Designer Larry Beals told the Select Board the state Department of Environmental Protection has deemed it an area that will require the developers to mitigate negative effects at the site itself or elsewhere along the Aberjona River and other waterfronts.
“It’s taking what’s there and trying to add value by populating it with native plant species,” he explained. “Native species have wildlife value and stabilize the embankment so it doesn’t erode into the pond.”
He also explained formulas as to how much mitigation has to be undertaken relative to how much land the development will cover.
Conservation Commission Chair David Miller testified the area is protected by the Wetlands Protection Act and town bylaws on wetlands and the project was denied approval on that basis. He added the matter is pending in Land Court.
“There were several reasons for denial, but the main reason was insufficient mitigation on the riverfront,” he said. “The Conservation Commission is confident it will be upheld. The core concept is the riverfront must be left in a better state in its role as a riverfront than before the project started. The building is fully within the riverfront.”
He also said mitigation and proposals for mitigation must include performance parameters, which have not been supplied and thinks “the building is too big for the space.”
“They need additional land that is public land to reflect the permit application, as if a privately owned and financed building that requires access to public land is permittable,” Miller said.
He added any work done will require Notices of Intent, probably subject to review by the Conservation Commission. One of their conditions would probably be the area be “perpetually restored.”
Theoretically, mitigation could be done elsewhere along the riverfront if deemed more appropriate.
“The DEP has said they’d rather have mitigation in the area as opposed to going up or downstream, so we’ve concentrated on Mill Pond, but hasn’t said we have to stay within the confines of Mill Pond,” Beals said. “We could go up or downstream if the town has other priorities. A river is a constant flow of water, so if you do mitigation up or downstream it still benefits the same river system. If we could get a list of other sites, we’d consider them.”
“We’re totally open to work with the Conservation Commission,” Ognibene added. “If we don’t understand the properties, they could help us to.”
Conservation Commission Vice Chair Zeke Nims thinks mitigation away from Mill Pond may be more appropriate, in part because the town has invested some money in Mill Pond already. “The bank is not degraded, but possibly compromised,” he said. “There are other sites that could be actually mitigated.”
Complicating matters even further is the area is subject to Massachusetts General Laws Chapter 97, which govern open space.
“I urge the Select Board to seek clarity on the potentially complicated effects that would involve multiple local and state agencies,” Miller advised.
“Obviously we need it,” Ognibene confessed about the land.
Select Board Chair Michelle Prior asked him if a smaller building would eliminate the need for mitigation or as much mitigation.
“It wouldn’t be viable,” Ognibene answered.
Town Counsel Jay Talerman confirmed Miller’s remarks that additional permitting might be required.
“Given what the DEP has said, a mere license or letter saying ‘go ahead’ isn’t going to be sufficient. Perpetual conservation is a perpetual restriction. They need this land; it has to be conveyed in some shape or form,” Talerman explained. “We’d have to convey it in some way and it would have to be durable. Licenses are for work and when you’re done, you’re done. They’re temporary in nature. If we’re saying this is for use of the land and always has to be for use of the land, the durability of that requires an easement or outright conveyance, a Town Meeting matter. To divest yourself of the land in perpetuity is something you’d have to wrestle with.”
He mentioned the town being the official applicant as an alternative, with developers perpetually responsible for mitigation.
“We don’t want to own the land or control it,” Ognibene reacted. “We want to do the right thing by improving it for the benefit of the town, not our benefit.”
“We have to make sure everything is done with the greatest of care,” Select Board member William McGonigle said. “The property is in the middle of town; we see it every day. We have to take this slow.”
