Cushing Square developers threaten to sue town of Belmont
By Patrick Ball/pball@cnc.com
Belmont Citizen-Herald
Oct 26, 2010
Belmont, Mass. ?
The developers behind the proposed Cushing Village project aren?t giving up without a fight ? even if it means the battlegrounds are a courtroom.
A week after the Board of Selectmen announced publicly that they had broken off negotiations to sell the municipal lot on Trapelo Road to Smith Legacy Partners (SLP) and Oaktree Development ? the team that makes up Cushing Village LLC ? the developers have fired back in the form of a demand letter and notice of intent to sue the town of Belmont, alleging bad faith actions during the purchase negotiations.
?The BOS?s campaign of unreasonable demands and unwillingness to negotiate fairly is a calculated attempt to destroy the proposed Cushing Village development and thereby cause significant damages to SLP as the potential purchaser and Cushing Village LLC as the developer,? wrote Robert A. Fasanella, an attorney with Rubin and Rudman, the Boston firm representing Cushing Village.
According to the notice, which alleges the selectmen breached an implied contract and covenant of good faith by imposing demands beyond terms agreed to at Town Meeting and in a Request for Proposals RFP, the developers intend to file a civil action seeking $10 to $15 million in compensation for its losses, punitive damages, injunctive relieve and attorney fees. The action will be filed on Nov. 8 ? Town Meeting day ? unless a settlement to regarding the purchase of the property is reached before then.
?We?d much rather the ability to build this project under reasonable requirements, under terms we agreed to in the RFP we bid on,? said Chris Starr, managing partner with SLC and Cushing Village. ?We?d like it if we could get back to that rather than pursue what we think is a distasteful lawsuit. We?re holding our noses, but proceeding with it so we can do this development that we think would add so much to the town.?
Starr and his partners say the Cushing Village project would bring the town much needed revenue and it?s dead without the municipal lot and the ability to close Horne Road.
The selectmen took off both the table after the two sides reached an impasse about liquidated damages (the selectmen sought $4 million and the developers counter offers never topped $1 million) and the developers had not provided satisfactory evidence of their ability to finance the project.
?There is a timeliness to this, because we know that the town is considering its budget situation,? said Gwendolen Noyes of Oaktree Development, adding that revenue from the $75 million project would provide a boost as the town figures out how to pay for key services, like education.
Town responds
The Board of Selectmen received the demand letter and notice on Monday, Oct. 25. A day later, Ralph Jones, chairman of the Board of Selectmen, issued a public statement charging that ?SLP and CV have commenced a massive and well-financed public relations and legal campaign in an attempt to discredit the Board of Selectmen of Belmont.?
Jones wrote that the selectmen, who he described as ?part-time employees,? will issue a full-response as soon as possible to the demand letter and a public records request issued by Rubin and Rudman, the law firm that also handles legal matters involving the Belmont Municipal Light Board, which is involved in regulating.
In the statement, Jones says since the planned suit would be against the selectmen in their official and individual capacities, the notice of intent ?clearly is an attempt to intimidate and bully the selectmen,? but that he still intends to search for solutions that demonstrate willingness to work with developers in the best interests of the town.
?I?m planning to go back to the board on [Nov. 1] with a suggestion, but I don?t know how that suggestion will be received and I haven?t yet formulated all of the details on it,? Jones said Oct. 26 in a follow-up interview.
Jones said under the right circumstances he would be open to resuming talks with the Cushing Village developers, potentially engaging a third party to ensure that the two sides get past arguing about differences to work toward a solution beneficial to the town.
Asked if the conversation with his fellow selectmen would happen in public or executive session, Jones said he would have to review the rules.
?I?m hoping it will come up in open session,? he said. ?I think that would be appropriate, but I need to find out all the rules from Jeff [Conti, Belmont?s assistant town administrator] and from counsel.?
Firenze targeted
In addition to alleging a breach of implied contract and covenant of good faith, the notice asserts that Selectman Angelo Firenze in December 2009 ?implied at a public meeting that the BOS should not sell the property to SLP but instead sell it to another developer that was interested in the property but failed to submit a bid in accordance with the RFP.?
Reached by phone on Tuesday, Firenze said the letter misrepresents his stance on the matter.
?I said there was no obligation for the town to sell it to the developer,? he said.
Firenze said the implication was that the two sides had been negotiating for more than 18 months from when the award was originally made, and in the meantime, another local developer, Bill Dillon, had approached him to ask what was going on with the property, prompting him to ask whether there was an obligation to sell.
?That?s what I mentioned, that if they weren?t interested in doing something with the property, then maybe we should think about what we ought to do with it,? Firenze said. ?There was no secret deal; there?s no agreement. There are people interested in that piece of property, and we have an obligation to do what?s best for the town.?
Firenze said at the time, he sat down with an architect and looked at pencil sketches of Dillon?s plans to develop the municipal lot. Since the public announcement that negations between the town and the developers had stalled, he has heard from another developer interested in the property.
?Ralph and Mark [Paolillo] don?t like dealing with developers, but I don?t see a problem with it,? Firenze said. ?I do it all the time. If they want to talk to me about it and get my input, I?ll give it to them, but that doesn?t mean I favor one project or another ? I?m trying to do what?s in the best interest of the town.?
Negotations between Belmont, Cushing Square developers to restart
By Patrick Ball/pball@cnc.com
GateHouse News Service
Nov 02, 2010
Belmont, Mass. ?
Preliminary talks between the town and Cushing Village developers will resume, possibly as early as this evening, Ralph Jones, chairman of the Board of Selectmen, said on Nov. 2.
In an executive session on Nov. 1, the selectmen authorized Jones to begin renegotiations with developers Smith Legacy Partners and Oaktree Development for the sale of the municipal parking lot in Cushing Square. A meeting to discuss preconditions ? namely a public records request and potential lawsuit ? is anticipated for tonight, Nov. 2, Jones said.
?We need to get those things stopped so we don?t have to spend all of our time responding to a lawsuit and records request,? Jones said. ?We?ll see where it goes. I?m trying to lay out a roadmap to try to get people moving.
Jones said he was hopeful this would move the process forward.
?What I?m hopeful is that we can get the Board of Selectmen work done so the process can get over to the Planning Board, where the real work will have to begin, because they?re the ones that will have to make sure the building is acceptable to all parties.?
Jones said at the Planning Board level is where any collaboration among the developers, town boards and residents would happen with regard to the size and design of the proposed $78 million development.
Collaboration with the developers was a topic brought up early in the selectmen?s meeting on Nov. 1, well before the executive session took place, which authorized Jones to resume talks with the developers.
Precinct 5 Town Meeting member Don Becker, who said he was speaking on behalf of other Cushing Square neighbors, publicly announced his support for the selectmen?s decision to break off negotiations with the developers for sale of the municipal lot in Cushing Square, a piece of property the developers say is vital to the project.
?The Board of Selectmen, we believe, acted prudently to represent the best interests of the town,? Becker said, adding his group believes the developers? refusal to agree to a $4 million liquidation cost validates concerns about financing for the project. ?This is an opportunity, we believe, to develop an appropriately scaled project and to move forward collaboratively. We would like to move forward in this manner to achieve a project that almost everyone can support. We understand that we?re never going to achieve complete unanimity of what should go in the square, but we believe collaboration is a goal we can attain.?
The climate around Cushing Village became a bit acrimonious in recent weeks, as the selectmen pulled the municipal lot off the table and the developers fired back with a public records request and notice of intent to sue for damages.
However, even as they submitted their demand letter and notice of intent, the developers maintained their preferred outcome would not be a legal battle, but rather to reopen negotiations and move the project forward as planned.
?We?d much rather the ability to build this project under reasonable requirements, under terms we agreed to in the RFP we bid on,? Chris Starr, managing partner with SLC and Cushing Village, said last week. ?We?d like it if we could get back to that rather than pursue what we think is a distasteful lawsuit. We?re holding our noses, but proceeding with it so we can do this development that we think would add so much to the town.?
