November 6, 2010
Abutters condemn secrecy, lack of input
By Angeljean ChiaramidaStaff writer
Daily News | www.newburyportnews.com
SEABROOK — Without allowing comments from abutters or holding a public hearing, the Seabrook Planning Board has unanimously approved a deal struck behind closed doors that will allow a once-rejected half-million square-foot shopping center to be built on Route 1 and settle a lawsuit pending in the state's highest court.
The unanimous vote from the five Planning Board members present settled four years of controversy and the town's suit against Ohio-based Developers Diversified Realty. Since 2006, DDR has tried to gain approval of its nearly 500,000-square-foot mall proposed for 47 acres of land just east of the Route 1/107 intersection behind Provident Bank. The proposal includes a Target store as a cornerstone to the mall.
Planning Board Chairman Don Hawkins said the terms of the settlement stipulate Seabrook drop its Supreme Court suit against DDR because of promises within the memorandum of understanding that DDR will improve local roads.
The vote came after the board emerged from an hour-long, closed-door session with its attorney, Walter Mitchell, who briefed members on the final settlement between the town, DDR and the state Department of Transportation that will end the suit. Also present at the non-public meeting were Town Manager Barry Brenner and Selectman Aboul Khan.
Prior to going into executive session, Hawkins told abutters and Route 1 businessmen Arleigh Green, of Seabrook Truck Center, and Michael Kettenbach, of Demoulas Supermarkets Inc., they would not be allowed to comment.
As Green and Kettenbach left the meeting, they condemned the secret atmosphere, insisting the finalized settlement proposal should be aired for a "full vetting," letting residents and area businesses owners along Route 1 ask questions and make comment prior to the board's vote.
Since a negotiated deal calls for considerable road construction along the Route 1/107 corridors, where many businesses are located, both men felt area businesses and the public should have had an opportunity to see and comment on its terms prior to acceptance.
"We don't have a problem with DDR's mall as long as they meet the (traffic) mitigation requirements as it relates to Route 1," Green said as he left the meeting after the board went into non-public session. "Unfortunately, we've all been kept in the dark here. I'm not sure this is legal."
"Where's the public knowledge; where's the public comment?" Kettenbach asked. "This should have been a public process, publicly debated."
After DDR appealed the Planning Board's May 2009 denial of its shopping center to Rockingham County Superior Court, Green and Demoulas filed and were approved as legal interveners siding with the town.
After Superior Court Justice Kenneth McHugh reversed the Planning Board's denial, Kettenbach and Green had been involved in the initial mediation of the New Hampshire Supreme Court case the town filed against DDR in hopes of reversing McHugh's decision.
About a month ago, upon learning of the settlement agreement the Planning Board was about to review, The Daily News made an official Freedom of Information Act request to the Planning Board for a copy of the document. The request was denied. Hawkins said at the time the settlement was "still under negotiation" and exempt from FOIA requirements.
But Thursday night, the finalized memorandum of understanding was brought to a vote after a discussion conducted by the board behind closed doors.
Upon coming out of non-public session, Hawkins briefly outlined the agreement, took no comments, and board member John Kelley offered a pre-written motion for approval. The motion was seconded by Bette Thibodeau and approved by all five members present, which also included Bob Fowler and Selectman Bob Moore.
No questions were allowed by those at the hearing. Copies of the settlement were released to the public only after the board approved it.
Hawkins called it a "win-win" proposition, and every member praised it as a way to end the court battle, allow the shopping center, and improve traffic flow along Route 1 and Route 107, which will be widened with funds provided by the New Hampshire Department of Transportation, DDR and the town.
The settlement must still be reviewed by the state attorney general, who Mitchell said could change wording but not its terms. After that, the Board of Selectmen must approve the settlement and release town funds for the road improvements as stipulated in the settlement, Mitchell said.
Settlement calls for road improvements
Terms set by a memorandum of understanding between the Seabrook Planning Board and Developers Diversified Realty, which is building a 500,000-square-foot mall off Route 1 include:
Funding for the roughly $10 million in road improvements will come from NHDOT, DDR and the town.
Town funds will not impact taxpayers, Hawkins said. The money used will come from $800,000 in extraction funds the developer of Kohl's gave to the town for Route1/107 corridor improvements as a conditions of approval.
Hawkins said if the multi-road improvement projects go above estimates and the town is called upon to contribute money beyond the $800,000, those funds should come from extraction funds from future developers.
The agreement requires NHDOT to manage all construction.
Money pledged by the town and DDR must be transferred to the state prior to construction.
Should construction costs be less than estimated, refunds will be prorated.
Road improvements are not required for DDR's Phase I construction, 149,000 square feet of retail space, consisting mostly of a Target store.
Road improvements must take place if DDR builds Phase II, roughly 500,000 square feet of retail space, including Target.
Given the downturn in the economy, DDR has 18 months to decide if it will build Phase II, at which time the project's approval and conditions expire.
Should DDR sell the land, DDR's responsibility as stipulated by the agreement will be binding upon a new owner.
Road improvements
Two lanes will be added to the Route 107 bridge spanning Interstate 95, bringing it to five lanes, with NHDOT's contribution capped at $4 million, DDR's contribution capped at $2.3 million, and the town contributing $200,000. If additional monies are required, they will come from the town's future extraction funds.
Route 1 southbound will be widened to eliminate the lane drop at the BP Gas Station to Lowe's. NHDOT will contribute up to $782,000, manage the project, appraise, negotiate and acquire the rights-of-way needed for the widening. DDR will contribute a maximum of $127,000 for design of the improvements. The town will contribute $595,000 and is responsible for the cost associated with the right-of-way acquisitions. If more money is required, the town is responsible for an additional $275,000 from future extraction fund payments.
Improvements to Provident Way east and Route 1 north to Spur Road will be funded entirely by DDR at a cost of $3.156 million.
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