Lawyer: Conflict of interest in SMOC case possible Saturday, June 7, 2008
Dan McDonald 508-626-4416 Metrowest Daily News
FRAMINGHAM -- With more than a week before the Zoning Board hears a social service agency's appeal to move its headquarters, a tangled web of issues has already spun itself around the proceedings.

Woven into that gossamer is the ongoing SMOC legal battle with the town, the possible appearance of a conflict of interest between the potential project developer and the ZBA chairman, and a public weighing federal court costs with First Amendment rights.

SMOC wants to move its headquarters from 300 Howard St. to a five-acre industrial site on 15 Blandin Ave. The nonprofit social service agency bought that property from NStar in 2005 for about $2.2 million.

The project would move SMOC into a manufacturing zone.

Building Commissioner Michael Foley has rejected the idea, prompting SMOC to take the matter to the ZBA.

Despite the zoning restrictions, SMOC lobbied for the move citing the Dover Amendment, a Massachusetts law that allows some organizations that meet specific criteria to circumvent local zoning rules.

For the Dover Amendment to kick in, certain requirements - such as an educational use of a facility - have to be proven.

SMOC said the site would include classrooms and a career center. Foley disagreed, stating that the primary or dominant use is not educational and therefore did not qualify for the Dover distinction.

Foley reviewed plans for the project drawn up by Capital Group Properties, which is owned by William Depietri of Southborough. Depietri is the brother-in-law of the ZBA chairman, Phil Ottaviani Jr.

SMOC Executive Director Jim Cuddy confirmed Depietri's company is being considered to complete the $10 million to $13 million overhaul of the 50,000 square-foot building.

Rob Meltzer, a local attorney active in town politics, worries about a potential conflict of interest.

"Can the town hear this case with (the lawsuit) pending for the benefit of a private developer whose brother-in-law is the chair of the ZBA?" Meltzer asked in a phone interview this week.

Asked about that potential conflict, Ottaviani said he would disclose in writing his relation with Depietri if he decides to sit on the case. He said he has not decided whether he will take part.

Of his brother-in-law's involvement, Ottaviani said, "He's designed a building and that's his only involvement to date."

But the connection between Depietri and Ottaviani goes deeper than blood.

On Sept. 11, 2000, when Depietri was involved with a Marlborough financial group called Wolfpen Financial LLC, that firm granted a $175,000 mortgage loan to Ottaviani's wife, Marilyn, through Salem Badger Realty Trust - a group for whom she served as a trustee, according to Secretary of State William Galvin's office.

"My brother-in-law has had a financial interest in Wolfpen, no question," said Ottaviani.

In a phone interview yesterday, Depietri said he has dropped his ties to Wolfpen.

Meltzer said he worries that residents may be cowed from speaking their minds on the Blandin Avenue proposal because they fear getting sued by SMOC.

SMOC's lawsuit - alleging town officials and residents conspired to stymie the expansion of the agency's social services and therefore discriminate against the disabled in violation of federal law - has created an atmosphere of fear and muzzled free speech, said Meltzer.

"Maybe this is what SMOC wants - to be able to operate with impunity," he said.

Cuddy said the case was not about free speech.

"You're talking about denying poor and disadvantaged people the same rights that you and I have," said Cuddy.

SMOC goes before the ZBA on June 17.

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