Neighbors, developer in dispute over Magnolia project expansion

By Richard Gaines
Staff Writer

August 12, 2008 12:15 am

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Abbott Real Estate Development, which paid slightly less than $3 million last year for 50 acres and a fully permitted, 41-unit subdivision in Magnolia, now faces the possibility of being compelled to pay another $400,000 for the right to increase the density by four units.

It is an expansion of a bitterly disputed, heavily litigated project that, according to two city officials, Abbott would prefer to avoid, and it will unless the previous owner wins a definitive Land Court ruling by Aug. 27 that clears all legal hurdles to the extra units.

Richard Rheaume, principal of Carter Hill Associates, which acquired the property from the initial developer Francis Tavares two years ago and sold it to Abbott last August, told the Times yesterday he believed the terms of the purchase-and-sale agreement gave him until Aug. 27 to resolve questions about the additional density of what had been known as The Woodlands and later Magnolia Woods.

Rheaume also said he was confident of winning the required ruling.

But Mark Nestor, an attorney for abutters and an abutter himself, said he was considering a number of legal options to challenge any ruling in favor of Carter Hill.

Francis Tavares, the original developer, bought the land from the estate of the late Kenson and Ruth Kennedy in the late '90s. In 2003, Tavares sued the city nearly simultaneously in Superior and Land Court for Planning Board rejections of different sized developments, using the much larger rejected plan as leverage while negotiating an agreement for the smaller project, 21 single-family or duplex units.

Those cases were resolved in 2006 when the city agreed to allow the 21 units.

Just before agreeing to sell to Abbott last year, Carter Hill, which had acquired the project from Tavares, filed for the additional density.

"I don't want to speak for Abbott," said Ward 5 Councilor Phil Devlin, "but I don't think Abbott is wanting to have those (extra) lots.

"There are people in Magnolia who wished this project never happened in the first place," he added.

City solicitor Suzanne Egan agreed with Devlin about Abbott's preference not to be required to make the $400,000 payment for the extra four units. She noted that Abbott was joined against its wishes to the fight for the extra units that Carter Hill launched after the Planning Board refused to approve the splitting of two house lots to allow the project to grow from 41 to 66 units.

Lee Bloom, vice president of Abbott, declined to comment on Devlin and Egan's assertion that Abbott doesn't want the extra building units at the $400,000 price.

But he confirmed Egan's claim that Abbott was involuntarily added to Carter Hill's suit.

"Carter Hill Associates' submission for two additional lots predated Abbott's purchase," Bloom said in an e-mail. That submission is the subject of litigation to which Abbott has been joined, over Abbott's objection.

"A settlement agreement is currently before the court for approval," Bloom wrote. "Due to the nature of the litigation, we are not at liberty to comment on the settlement terms."

Carter Hill sued the Planning Board in Land Court after the board rejected Carter Hill's application for the subdivision of two lots to allow 43 duplexes on the property which is bordered by Magnolia Avenue and Western Avenue.

It was an ANR or "approval not required" application, but according to the suit the board missed the statutory deadline for an answer, creating a "constructive approval," according to Carter Hill's May 2 motion for summary judgment.

With the suit pending, the board and Carter Hill entered into settlement negotiations which led to the agreement that is before Judge Gordon Piper.

A July 29 hearing on the motion was postponed and no new hearing was scheduled.

The judge's clerk, Catherine Downing, could not be reached yesterday.

Bloom conceded that Abbott did sign a purchase-and-sale agreement with Carter Hill, which committed the Boston development company to paying Carter Hill an additional $400,00 if Carter Hill were able to deliver the extra units "with no loose ends" by Aug. 27, the one-year anniversary of the $2,999,999 closing on the transfer of the subdivision plans and the property.

Bloom said Abbott is "proceeding on the construction of the approved infrastructure of the 21-lot subdivision. Abbott's intention has been to build 42 luxury attached townhouse condominiums, targeted to the active adult community."

Devlin said Abbott has held three community meetings. "I get the sense that the community feels a little more comfortable with Abbott," he said.

Richard Gaines can be reached at rgaines@gloucestertimes.com.

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