Published: 12/26/2019 8:15:15 AM
AMHERST — A steep increase in the performance bond to guarantee a subdivision’s roads are built to town standards is being made by residents who live in the Amherst Hills development.
Despite what residents said was an urgency to their request, made to the Planning Board earlier this month, planners are waiting until their Jan. 15 meeting to determine whether to demand that Tofino Associates LLC of Hadley, which has handled the development of Linden Ridge Road, Concord Way and Hawthorn Road, increase the $288,000 security deposit that is part of a three-party agreement signed two years ago.
Thomas Reidy, an attorney with Bacon Wilson PC of Amherst, said residents he represents would like to see the performance bond increase closer to the $930,000 estimate provided by town engineer Jason Skeels to bring the deteriorating roads up to town specifications. That figure, though, may be high because it is based on prevailing wage laws.
“We think that $750,000 is reasonable,” Reidy said.
Under the agreement between the town, Tofino and Greenfield Savings Bank, signed Aug. 2, 2017, the final coat of pavement and all infrastructure, including catch basins, was to be complete by the beginning of the summer: “If the obligations are not completed by June 30, 2019, the Planning Board may require the applicant to provide additional security as necessary to maintain such direct and reasonable relationship, which security shall be a condition for obtaining further lot releases and/ or permit issuances.”
Reidy asked again that the board also rescind its May 1 decision to release nine Tofino-owned lots as a way of putting pressure on the developer to fix the roads.
But Planning Board Chairwoman Christine Gray-Mullen said the board should wait another month to learn more about Tofino’s plans.
Planning Director ChrstineBrestrup said Tofino has sent a letter to the town that it will complete the final work during the 2020 construction season. In addition, the board’s action in November, in which it instructed the building commissioner to not issue building permits or water and sewer connections for the nine Tofino lots, has been effective.
“That’s a pretty strong step you’ve taken,” Brestrup said.
Following that, and to protect its ability to build homes or sell lots, Tofino filed a lawsuit in Land Court against the residents seeking nonbinding arbitration, or mediation through the Real Estate Bar Association of Massachusetts. Tofino contends in that lawsuit that the residents, as a homeowners association, are responsible for maintenance of the roads.
Brestrup said Joel Bard of town counsel KP Law recommends against rescinding the release of lots, but that increasing the performance bond through a revised agreement is possible.
The residents jointly issued a statement outlining their concerns.
“When we purchased our homes, we did so with the understanding that, in the unlikely event that the town did not accept our roads when they were fully constructed, we would be responsible for maintaining them. However, we never agreed to construct our development’s roads nor did we agree to reconstruct roads that had never been completed.”
Several also spoke to the Planning Board about the urgency they feel.
“We do not have the faith in the way that Tofino has operated that some on this board do,” said John Kennedy of Linden Ridge.
Kennedy said that if Tofino is allowed to let roads continue to deteriorate, that would set a bad precedent for future developers to leave those who buy homes with the actual construction of roads.
“Tofino is only taking action because of the pressure you put on them,” Alexandra Meliou, also of Linden Ridge said.
Laurel Smith-Doerr of Hawthorn Road said the residents need to be assured there is enough money in the security agreement for completing the road.
Blake Spirko of Concord Way said his concern is that without increasing Tofino’s performance bond, the developer will sell properties and then possibly liquidate.
“I am worried that the roads aren’t going to be done,” Spirko said.
Scott Merzbach can be reached at smerzbach@gazettenet.com.
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