Planning Board Denies Preserve Request for Fee Reimbursement

By Cynthia Drummond for BRVCA

August 16th 2025

RICHMOND – Members of the Planning Board voted at the Aug. 12 meeting to deny a request from the Preserve at Boulder Hills to return fees paid in lieu of a unit of affordable housing. The fee, $87,000, was a requirement of an inclusionary zoning ordinance that has since been repealed.

Because of that repeal, Preserve attorney, Americo Scungio, asked that the inclusionary zoning requirements be removed from the approvals of the Master Plan and the Final Plan for Phase 2B of the development.

Scungio’s letter to Town Planner Talia Jalette reads, in part:

“As to both the Master Plan Approval and the Final Plan Approval referenced above, in light of the Town's repeal of the inclusionary zoning ordinance, the applicant requests that the Planning Board remove the conditions that the applicant comply with the inclusionary zoning ordinance from both approvals. It is also requested that in light of the repeal of the inclusionary zoning ordinance that the Planning Board direct that any and all in lieu fees that have to date been tendered by the applicant pursuant to the repealed inclusionary zoning ordinance be reimbursed to the applicant.”

Board Chair Philip Damicis said the request had been discussed at a previous board meeting.

“At our last meeting, we had some discussion on this,” he said. “The board asked our solicitor, Mr. [Chris] Zangari, to put together a draft motion of findings for us.”

Zangari said his opinion, submitted to the Planning Board, differed significantly from the position put forward by the Preserve.

“The fee-in-lieu would be due for Phase 2 B, because the Master Plan and the Preliminary Plan had been approved, and they were vested with that ordinance, at the time, the inclusionary zoning ordinance,” he said. “Going forward, it would not be included, because the inclusionary zoning ordinance had been repealed.”

In other words, the requirements of the inclusionary zoning ordinance, including the in-lieu fee, were still in effect when the approvals were granted and would, therefore, still apply.

Scungio based his argument on the current absence of an inclusionary zoning requirement.

“Because there is no inclusionary zoning ordinance as it exists today, I’m talking with respect to the Master Plan approval for Phase 2,” he said. “We have asked the board to consider removal of Condition 15, which says inclusionary zoning has to be complied with at the time of approval. It is, I think, the right of the Preserve to get vested rights in the zoning ordinance as it exists today.”

Damicis said he supported Zangari’s argument.

“I see both sides - you know, as Chairman of the Board, I’m likely going to side with our solicitor,” he said.

Members approved a motion, made by Peter Burton and seconded by Nancy Hess, to deny the request to reimburse the in-lieu fee.

In addition, the board approved a motion by Vice Chair Andrea Baranyk that the conditions of the inclusionary zoning ordinance in effect when the approvals were granted will still apply.

Zangari asked for a clarification of the second decision.

“There was quite a bit of discussion about the implication of the second motion, meaning that Phase 2 B, the inclusionary zoning would still apply,” he said. “Is it fair to say that is your intent? That the remainder of Phase 2B, the inclusionary zoning requirements would apply?”

“Yes,” Damicis said.

The Board also approved another one-year extension to the Phase 2 Master Plan approval which was granted to the Preserve on Sept. 11, 2021. Subsequent one-year extensions were granted on Sept. 14, 2021, Aug. 9, 2022, Aug. 8, 2023, and Aug. 13, 2024.