On October 3, the Mattapoisett Planning Board did something they have been contemplating for months, calling in a $1.5 million surety for a housing development built on what the board believes were empty promises.
Coming before the Planning Board on this night to discuss all matters related to Brandt Point Village, a single-family home subdivision that has seen investors and developers come and go over nearly 10 years, were Marc Marcus, the current investor and developer from Omega Financial and his attorney John McGreen. Also representing Marcus was Al Loomis of McKenzie Engineering.
Representing the Town was Jonathan Silverstein of KP Law and the Town’s peer review consultant, Ken Motta of Field Engineering.
There were two matters relating to the subdivision on the evening’s agenda: 1) a public hearing for modifications to the definitive subdivision plan, and 2) discussion and potential vote for Notice to Cure: Performance Secured by a Lender’s Agreement – Default, potential vote to call surety.
Chairman Tom Tucker said before the opening of the public hearing that the surety issue would be taken first before the Planning Board would open the hearing for modifications to the plan of record.
Tucker cited numerous requests by the board since 2016 for work to be completed on Phase 1, and status updates on a punch list of things incomplete and pending.
“How many times have these drop dead dates …” searching to find the words, Tucker continued, “Our job is to protect land owners and the Town of Mattapoisett.”
Tucker asked the board to consider calling the surety now, as the August 1, 2018 deadline for completion of all work on Phase 1 had come and gone.
But McGreen asked that his client be allowed to give an update now, so that the board could first learn what Marcus was requesting in terms of site plan modifications before calling in the money.
Tucker was not moved to do so.
McGreen and Marcus were able to say that work had been taking place on Phase 1, including a complete reconstruction of the main roadway into the development.
Gail Carlson, a resident of the development and former Planning Board member, has come before the board on nearly a monthly basis for the past year, alerting the board that work was not taking place as scheduled. She shared what she and her fellow homeowners in Phase 1 consider incomplete conditions.
From a letter presented at the meeting, Carlson read in part, “This project has been a long, protracted, and problematic one since its inception. … Brandt Island Realty Trust entered into a mutually agreeable time table on August 1, 2016 with a completion date of August 1, 2018.”
At the 2016 meeting, the Planning Board released three lots in Phase 2 based on the agreement that by August 1, 2018 all work on Phase 1 would be completed or the surety could be called.
Carlson reported failures in the community’s septic system, landscaped areas wild with weeds and construction debris, shabby exterior lighting with exposed wiring, along with other issues. Further, Carlson said that the homeowners had no representation in the Home Owners’ Association that she said is controlled by the developers. She accused McGreen of slurring the residents during an August 2016 meeting when he allegedly said, “…in case the natives get restless.”
Carlson read on: “Our quality of life and ability to fully enjoy our homes … has been affected. … We are embarrassed … due to the overall disrepair of the area.”
Of the three lots in Phase 2 that were released, Carlson and others said the buildings were incomplete shells now in a state of deterioration, adding further to a neighborhood in distress.
Carlson said the principals of the realty trust had not lived up to the agreement executed in August 2016 and asked the board members to move forward “with any legal means afforded to them.”
McGreen asked if he could respond to Carlson’s comments before the board moved to vote on the matter before them. He said that, because Carlson had been a board member, his client didn’t want to attend requested meetings because, “We thought Ms. Carlson was using her leverage on the board.”
Tucker responded, “She did not use any leverage – absolutely not!”
McGreen said that the majority of the complaints such as landscape and septic maintenance were the responsibility of the homeowners’ association, to which Carlson retorted,” There isn’t an HOA.”
McGreen continued, “We are going to call the homeowners’ association meeting to bring up everything here. They are going to pay their fair share.” He said that the developer had been providing mowing and plowing services, which garnered snickers from the neighbors who Carlson said had paid for plowing.
Planning Board member Janice Robbins said, “This is not the Town’s problem. You made an agreement; you promised to complete. … Tonight you are here because you knew (about the surety call).”
McGreen argued that the developer was paying for everything – a new entrance roadway, engineering, the peer review consultant, and even items he believed was the HOA’s responsibility.
Marcus told the board, “We are hoping for relief (on items incomplete on Phase 1) on what we have so far so we can get occupancy permits (on Phase 2 structures).”
Tucker responded, “Work has to be completed. I can’t believe you’ll complete anything.”
The surety was called by unanimous vote.
McGreen, along with Silverstein, discussed with the board the option of allowing the developer to draw down the $1.5 million surety amount by calculating the costs associated with completing work on Phase 1. The board agreed with this request, with Robbins saying, “The Town is entitled to the whole amount, minus any work.”
With the surety called, monies would now be available to the Town, which may elect to hire their own contractor to complete Phase 1.
The hearing on site plan modifications and associated costs was continued to October 15.
In other matters, Form A Approval Not Required applications from Michael Farrington LeBaron Way Trust, and David Sylvia and Ellen Horrocks, 31 Park Street, were granted.
A Form C Definitive Subdivision Plan, Snow Fields Estates, application by Dennis Arsenault was continued until October 15.
Site Plan Review for applicant Chase Canopy, Fairhaven Road, and Nicky’s Lane was approved.
The board members also discussed the draft medical marijuana bylaw. Planning Board Administrator Mary Crain asked the board to consider holding a public forum during the next regular meeting to vet the language, and a public hearing on a final bylaw amendment on November 5 in advance of the November 26 Special Town Meeting. All members were in agreement.
The next meeting of the Mattapoisett Planning Board is scheduled for October 15 at 7:00 pm in the town hall conference room.
Mattapoisett Planning Board
By Marilou Newell