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Town of Belmont Responds to O'Neill Properties with Process and Past Deadlines By Attorney for the Town, Judith Cutler March 1, 2006
March 1, 2006
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
J. Brian O'Neill, Manager A.P. Cambridge Partners II, LLC 700 South Henderson Road King of Prussia, PA 19406
Re: May 28, 2002 Memorandum of Agreement with Town of Belmont
Dear Mr. O'Neill:
I write on behalf of the Belmont Board of Selectmen ("Belmont") to request A.P. Cambridge Partners II, LLC's immediate performance of its remaining obligations under the above‑referenced Memorandum of Agreement ("MOA") between the Town of Belmont and A.P. Cambridge Partners II, LLC ("O'Neill") relative to the so‑called Belmont Uplands Site ("the Property"). Specifically, I refer to O'Neill's obligations under Sections 1, 2, 5 and 6 of the MOA, a copy of which is enclosed for reference.
As you know, in the first paragraph of the MOA, you agreed, on behalf of O'Neill, to perform the actions described in Sections 1, 2, 5 and 6 either: (a) on the first business day after the issuance of building permits applied for within sixty (60) days of the granting of design and site plan approval for development of the proposed Belmont Office or Laboratory Building under the Zoning By‑law Amendment adopted under Article 5 at the May 28, 2002 Special Town Meeting, or (b) if no such application for design and site approval had been filed within three (3) years of the Special Town Meeting date, then on the first business day after said three‑year period ended, i.e., May 31, 2005. Since no application for design and site approval was filed within the three-year period, Belmont considers May 31, 2005 to be the applicable performance deadline for O'Neill's obligations under Sections, 1, 2 5 and 6 the MOA, as described below. KOPELMAN AND PAIGE, P.C. J. Brian O'Neill, Manager A.P. Cambridge Partners Management Co., LLC March 1, 2006 Page 2
Section 1 of the MOA requires O'Neill to record a Conservation Restriction and Easement, after submitting the executed and acknowledged Restriction and Easement to the Massachusetts Executive Office of Environmental Affairs ("EOEA") for its approval and execution. Nine months after the performance deadline, O'Neill has yet to either submit, or obtain the requisite Board of Selectmen and Conservation Commission approvals of, the final form of the Conservation Restriction and Easement and has, accordingly, neither submitted the executed document to the EOEA for its approval, nor recorded it.
Section 2 of the MOA requires O'Neill to restore the wetlands and uplands areas on the Property in accordance with a detailed work plan consistent with the restoration plan entitled "Open Space Maintenance Plan, Belmont Uplands Site, Acorn Park Drive and Frontage Road, Belmont" dated May 17, 2002. Although Section 2 states that the restoration in connection with site plan approval for the development of the Property is to be completed prior to the issuance of the first Certificate of Occupancy for the anticipated development project, it goes on to provide that the Town or its Planning Board may, if O'Neill so requests, impose a performance bond for any work remaining to be completed at the time of the first Certificate of Occupancy. Read together with the provisions of the first paragraph of the MOA, it is BeImont's position that, because no application for design and site plan approval was submitted within the specified period of time (by the first business day following the expiration of the three year period after the May 28, 2002 Special Town Meeting), O'Neill is required under Section 2 to perform the work described in the Open Space Maintenance Plan in connection with any other development of the Property and, in connection with such other development, may be required to submit a performance bond to cover the entire, anticipated cost of the restoration work.
Section 5 of the MOA requires O'Neill to provide a one-time payment of $115,763.00 for the removal of Inflow/Infiltration ("1/1") from the Belmont sanitary system.
Section 6 of the MOA requires O'Neill to make a donation of $472,000.00 to the Town for use in the planning, designing and/or building of affordable housing or the acquisition or rehabilitation of existing housing stock as affordable housing.
According to the Town's records, O'Neill has not, to date, performed any of its obligations under Sections 1, 2, 5 and 6 of the MOA. Moreover, nine months have elapsed since the expiration of the performance deadline. Therefore, it is hereby requested that you notify Belmont, in writing, within fifteen (15) days from the date of this letter, of O'Neill's intentions with respect to meeting the following obligations under the MOA: KOPELMAN AND PAIGE, P.C. J. Brian O'Neill, Manager A.P. Cambridge Partners Management Co., LLC March 1, 2006 Page 3
1. Obtaining the approvals of the Board of Selectmen and Conservation Commission of the Conservation and Easement described in Section 1 of the MOA, submitting the executed restriction to the Massachusetts Executive Office of Environmental Affairs for approval, and recording the executed and acknowledged document;
2. Submitting to the Board a certified bank check, made payable to the Town of Belmont, in the amount of $115,763.00;
3. Submitting to the Board a certified bank check, made payable to the Town of Belmont, in the amount of $472,000.00; and
4. Performing the restoration work called for under the "Open Space Maintenance Plan" described in Section 2 of the MOA.
Further, pursuant to Paragraph 11 of the MOA, O'Neill has agreed to "take no action prior to the consummation of the actions described in Paragraph 1, 2, 5, 6 and 7, which would be inconsistent with its performance of such actions at the specified time," and to comply during the interim period with the provisions of the Conservation Restriction and Easement "as if they were in full force and effect and to retain ownership of the land which is the subject of the Conservation Restriction and Easement." The Board considers recent actions taken by you in obtaining MassHousing site approval and in submitting an application for a Comprehensive Permit under G.L. c. 40B to construct 300 units of housing on the Property, to be inconsistent with the Conservation Restriction and Easement terms. It is expected, therefore, that, you will modify the design of the housing project proposal pending before the Belmont Zoning Board of Appeals in order to reflect full compliance with the provisions of the Conservation Restriction and Easement described in Section 1 of the MOA "as if they were in full force and effect."
With regard to the restoration work required under Section 2 of the MOA, it is noted that O'Neill's Comprehensive Permit proposal for the Property incorporates the Open Space Maintenance Plan. It is expected, therefore, that you will have no objection to the imposition of conditions on any Comprehensive Permit which may be granted: (1) requiring satisfactory completion of the restoration work prior to the issuance of occupancy permits for any units in the development, and (2) requiring the submission of a performance bond prior to commencement of any construction activity on the Property, in order to secure the satisfactory completion of the restoration work.
Please be advised that, where the Town of Belmont has already fulfilled all of its obligations under the MOA, Belmont fully expects O'Neill's voluntary and immediate compliance with the MOA, as well. Belmont, however, is fully prepared to take all KOPELMAN AND PAIGE, P.C. J. Brian O'Neill, Manager A.P. Cambridge Partners Management Co., LLC March 1, 2006 Page 4
necessary actions to enforce the MOA in the event that O'Neill does not perform under the Agreement. A timely response to this letter is, therefore, imperative.
Should you have any questions or comments regarding Belmont's expectations in this matter, please contact either me at (617) 556-0007, or the Town Administrator, Mr. Thomas Younger, at (617) 993-2610.
Very truly yours,
[signed]
Judith C. Cutler
JCC/sjm Enc. cc: Board of Selectmen Town Administrator Planning Board Conservation Commission Zoning Board of Appeals Stephen Corridan, A.P. Cambridge Partners II, LLC (w/enc.)
250226/BELM/0001
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