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Thursday, September 22, 2011

Nashua officials weighing Pennichuck land options

NASHUA – With the threat of a lawsuit hanging over their heads, city officials could soon limit their public discussions about a controversial housing development on Pennichuck property.

An aldermanic committee that deliberates Pennichuck Corp. issues met Tuesday night to discuss the company’s impending sale of land to developers who want to build an 85-unit housing complex on Concord Street. Residents fear the project could harm the watershed.

Alderman-at-Large Barbara Pressly asked her fellow Pennichuck Water Special Committee members if they wanted to discuss ways in which the city could preserve the 33 acres slated for development.

Pressly wondered if aldermen could ask the mayor’s office to put a hold on the project while the city, Pennichuck and the developers worked out a deal.

City attorney James McNamee told Pressly it wasn’t inappropriate for her to say the land should be preserved, but offered a word of caution. McNamee advised Pressly of the legal trouble the city could face if officials continued speaking at length about the property, leading to the project being delayed or halted.

McNamee called attention to Brad Westgate, an attorney for the developers, sitting in the audience taking notes. The notes Westgate takes could find their way into a lawsuit against the city, McNamee said.

Last week, Westgate accused the Conservation Commission of overstepping its bounds in trying to reverse a state permit for the housing project. And on Monday, Westgate sent a letter to aldermen saying that the developer would seek compensation if the commission’s action hampers the project.

McNamee said Mayor Donnalee Lozeau is talking to the developers behind North Concord Street Properties LLC, but if aldermen want to further discuss buying the property, they should do so in a nonpublic session.

Pressly agreed that aldermen could later discuss a deal in a private session.

Opponents of the project believe it could backfire on the city if environmental problems arise in the future.

The city is in the process of purchasing Pennichuck Corp. and its water systems for $200 million. Aldermen allowed Pennichuck to sell the land for $2.2 million to North Concord when the city entered a merger agreement with the water utility early this year.

Controversy over the housing project, known as Hayden Green, has grown since July, when the city Planning Board gave it a green light.

Nearly 130 residents signed a petition asking aldermen to stop the project because of potential environmental risks. Another resident, Geoff Daly, has talked to almost every city official, outlining what he claims is proof that the development will harm the watershed.

On Tuesday, McNamee rebutted two of Daly’s claims. Despite Daly suggesting so, there were no “irregularities” in the Hayden Green application process with the city, and aldermen cannot issue an injunction on the project, McNamee wrote in two memos.

Daly earlier this month presented photos and maps to the Conservation Commission to illustrate his claims that the development will jeopardize the watershed. The commission answered by sending Daly’s materials to the state Department of Environmental Services and asking officials there to review a terrain permit they granted the Hayden Green developers.

On Tuesday, McNamee told aldermen he had just spoken to commission members – who were meeting separately at the same time in City Hall – and outlined one of his memos. That letter says the commission can request a DES review, but it should keep in mind that if the terrain permit is suspended or revoked, the housing project will be delayed and the city could face a lawsuit.

Afterward, the Conservation Commission asked its chairman, David MacLaughlin, to call a special meeting to consider rescinding the DES request. MacLaughlin was not at the meeting, but he said in an interview Wednesday that the commission can discuss the issue at its next regular meeting, on Oct. 4.

MacLaughlin said he hopes he can convince the commission that it doesn’t need to rush to a reversal vote.

One of McNamee’s memos states that North Concord must buy the land from Pennichuck by mid- to late October. MacLaughlin said he doesn’t know when the sale closing date is.

Alderman Diane Sheehan also mentioned that Lozeau was talking to the developers. Lozeau has remained mostly quiet on the controversy.

Sheehan told Pressly that the more city officials talk publicly about the land deal and housing development, the more they potentially lessen a sale price. “The property is worth one thing if it’s developable; it’s worth another thing if it’s undevelopable,” she said.

Pressly asked McNamee for a full list of property transactions by Pennicuck’s real estate arm, Southwood Corp., over the past decade. She wants to know how much Pennichuck land had been developed in Nashua and Merrimack, and if any undeveloped property remains as the city moves to acquire the company.

When residents started objecting to the development in July, some aldermen said they had limited knowledge on the land deal when they approved a merger agreement between the city and Pennichuck in January.

Roland Olivier, Pennichuck’s lead attorney and CEO of Southwood, has said that in 2007, Pennichuck CEO Duane Montopoli informed former Mayor Bernie Streeter and Community Development Director Kathy Hersh that the company was about to ink a $2.2 million purchase-and-sales agreement with North Concord.

Also on Tuesday, the aldermanic committee decided it would ask city administration to have an official oversee the removal of materials that Daly discovered when he walked Pennichuck property near the Hayden Green development.

Montopoli recently acknowledged that two asbestos pipes and other construction scrap metals have been sitting unattended since the 1980s on the property. Montopoli told the city the materials will be removed by the end of the month.

Pressly said neighbors of Pennichuck land would be concerned if they saw materials being moved, and it would be best to have an expert oversee any work.

Albert McKeon can be reached at 594-5832 or; also check out McKeon (@Telegraph_AMcK) on Twitter.