WOBURN - Acting on the advice of the city solicitor, members of the City Council's Special Permits Committee recommended a national child care corporation receive needed zoning waivers to construct a new franchise at the Sons of Italy site in West Woburn.

During a meeting in City Hall earlier this week, alderman on the committee voted 3-to-2 in favor of issuing a special permit to Atlanta-based Primrose Schools to raze the old social club and build a two-story day care facility at 168 Lexington Street by Woburn's Four Corners area.

The favorable dispensation was largely based upon a recent legal opinion from City Solicitor Ellen Callahan Doucette, who argued the state's Dover Amendment essentially renders local zoning regulations moot, when petitioners are seeking permits for educational and religious facilities.

The Sons of Italy Club, which previously housed the Shaker Glen Restaurant, is technically situated within an R1 of single-family zoning district, where daycare facilities are allowed by special permit.

However, during the introductory public hearing on the Primrose School petition in June, the council raised questions about the proposal's failure to meet required side setback regs, which require buildings to be spaced at least 25-feet away from the nearest lot line.

Plans submitted by the petitioner show side setbacks of 16.2 feet, and the proposal also fails to meet required green-space minimums. All other dimensional requirements under Woburn's zoning code will be met.

This week, Callahan-Doucette advised the council to waive the side setback and open-space requirements, despite suggestions from both Planning Director Tina Cassidy and Building Commissioner Thomas Quinn that Primrose School instead be forced to seek a variance from Woburn's Zoning Board of Appeals (ZBA).

According to the city lawyer, her recent examination of case law around the state's Dover Amendment indicates the city would likely lose any legal challenge that resulted from such a directive.

"You can't deny a daycare center. You just can't," said Callahan-Doucette, summarizing the ultimate findings of a four-page legal opinion issued to the council on July 3.

"The Dover Amendment, if you read my legal opinion, says certain uses you cannot prohibit. Daycare centers are one of them," she explained. "Even though [some case law] talks about reasonable regulations, if [those zoning controls] have the effect of preventing the proposal from going forward, it becomes unreasonable."

Last month, Concord attorney Mark Bobrowski, representing the child care provider, explained his client intends to raze the 12,005 square foot social club, which was originally constructed as a carriage house. A new 7,025 square foot building, capable of housing 177 students and 28 staff members, would be erected towards the rear of the 1.2-acre parcel.

Catering to parents of children aged between six-months and five-years-old, the new Primrose franchise will offer half and full day child care services at the proposed Woburn location, which is one of 38 new facilities expected to open across the country this year.

Presently, there are only a handful of other Primrose Schools in the immediate area, including properties in Burlington and Andover.

Though the company does not advertise tuition rates directly on its website, a 2018 article in Forbes Magazine claims the firm's monthly enrollment costs range between $800 and $2,400. The publication also reported that last year, Primrose Schools across the nation grossed about $750 million in revenues.

According to the petitioner, by shifting the building footprint about 80-feet back from Lexington Street, it will be able to furnish 45 onsite parking spaces by the front of the property. There will also be enough room to add an outdoor play area by the rear of the building.

Access to the site will be created by a 24-foot wide curb-cut, which will allow two-way traffic to circulate into the driveway. School officials have stressed that clients must park their vehicles and walk their child into the 2-story building each day, as Primrose Schools has a policy against exterior drop-off routines due to liability concerns.

MDM Transportation Consultant representative Bob Michaud, representing the petitioner, last month predicted the new use will bring no more than 66 hourly trips to and from the driveway during morning and evening rush hours.

Despite neighborhood concerns about traffic, especially given the limited on-site parking availability, Michaud predicted the redevelopment would not cause any issues along Lexington Street, which is reportedly used by as many as 17,000 motorists each day.

According to the traffic consultant, Primrose rarely encounters queuing at its other facilities, because the daycare provider allows parents to drop-off children at any time during a three-hour window that begins at 6:30 a.m.

Clients can similarly pick-up their children during a similar three-hour period in the afternoon. Michaud, referring to the petitioner's extension of both half and full-day programming, pointed out that child pickup schedules will likely be much smoother than the morning routine.

Dissenting votes

Though the council's 3-to-2 vote would seem to indicate significant division as to the wisdom of the city solicitor's advice, those on the dissenting side generally accepted the opinion at face value. However, Ward 5 Alderman Darlene Mercer-Bruen and Ward 1 Alderman Joanne Campbell — whose district includes the social club — opposed the removal of a proposed condition that prohibits Primrose Schools from transferring its special permit to a new entity.

A standard stipulation in special permits, non-transferrability clauses began being attached to the council's decisions after a Dunkin' Donuts franchise was able to move into the former Einstein Bagels store on Montvale Avenue in 2005.

When the Einstein Bagels store was granted its original special permit in 1997, the council endorsed the petition largely because the breakfast chain's operations were nothing akin to a Dunkin' Donuts location. However, because no prohibition was placed on the special permit regarding its transfer to another fast-food entity, Dunkin' Donuts was controversially able to slip unfettered into the Montvale Avenue storefront after the bagel shop shuttered.

As of late, the council has granted several petitioners relief from that standard condition over the objections of Mercer-Bruen, Campbell, and Ward 7 Alderman Lindsay Higgins. This week, Mercer-Bruen pointed out that city officials and Lexington Street abutters had both raised questions about important factors like traffic associated with the Primrose School application.

She argued the petitioner's subsequent explanation of how it operates played a significant role in the council's deliberations over the merits of the special permit application.

"[There are all these business-specific criteria] we're supposed to take into account while considering a special permit. For that reason, I'm not going to say you can just give that [permit to an entirely new entity we know nothing about]," said Mercer-Bruen.

Legal hypotheticals

With three attorneys sitting on the council, several alderman did engage in a hypothetical debate with Callahan-Doucette about her memo, even though they admittedly had no problems with its application in regards to the Primrose School petition.

Launched by Alderman at-large Michael Concannon, that legal-conference-like exchange centered around the city lawyer's belief that the city, if it was to ask Primrose School to comply with Woburn's side setback regulations, would run afoul of protections granted to schools under the Dover Amendment.

Before getting too deep into that legal discussion, Concannon made clear he had no intention of opposing the petitioner's request for zoning relief, as he felt the construction of a smaller day care center would actually be a betterment for the property.

"They could build a smaller building and still have a daycare. They're going to have [177] children there. If they built a daycare for 60 children, they could do that and meet our zoning," the alderman at-large contended. "The Dover Amendment says we can't prohibit a daycare center. It says nothing about [being required to okay] a certain-sized daycare."

Callahan-Doucette, referencing the Sons of Italy Club's status as an unusually-shaped and non-conforming property that already sits less than a foot from the lot line, suggested those factors had to be included in Concannon's hypothetical legal analysis. She also argued that existing case law supported her opinion that municipalities have a dismal success rate, when disputes over the Dover Amendment are settled by higher courts.

"If you denied it or tried to get them to reduce [its size], you'd probably run into a problem. And the issue with Woburn's zoning is that we require a special permit at all [for daycare centers]," the city solicitor retorted.

Before getting back to the specific petition at issue, City Council President Michael Anderson, also a practicing attorney, jumped into the opinion to support his council colleague's viewpoint.

"Not to beat a dead horse, but you say reasonable regulation is okay. So if in the future, someone comes in and says, 'We're going right to the lot line, and we won't have any parking,' we can say no," the council president interjected.

The city solicitor, though challenging whether any petitioner would ever try to open up a high-traffic business without a single parking spot, acknowledged that the council would have grounds to deny a permit under those circumstances.

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