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  • Staff photo by Don Himsel

    Geoff Daly and Fred Teeboom at Hillsborough County Superior Court before the start of Tuesday's hearing on Parcel F.
  • Staff photo by Don Himsel

    Attorney David Pinsonneault listens to Geoff Daly present to Judge Jacalyn Colburn on accessibility to some Pennichuck Water Works property during Tuesday's hearing in Hillsborough County Superior Court in Nashua.
  • Staff photo by Don Himsel

    Geoff Daly presents to Judge Jacalyn Colburn on accessibility to some Pennichuck Water Works property during Tuesday's hearing in Hillsborough County Superior Court in Nashua.
  • Staff photo by Don Himsel

    Geoff Daly, left, and David Pinsonneault during Tuesday's hearing.
Wednesday, February 29, 2012

Arguments heard over city field abutting ‘Parcel F’ in Superior Court

NASHUA – Resident Geoff Daly says he wants “unfettered access” to recreational fields wedged between Pennichuck Middle School and a 33-acre parcel in the hands of real estate developers. But attorneys claimed in Hillsborough County Superior Court on Tuesday that Daly’s plea is actually an attempt to halt the private land sale of the abutting property, which already took place.

The $2.2 million land deal in question, which closed Jan. 23, transferred Pennichuck’s ownership of “Parcel F,” considered the company’s last untouched, developable piece of property, to North Concord Street Properties, LLC to build 85 units of elderly housing.

The deal closed just days before Nashua acquired Pennichuck Corp.

Daly, who has led 100-person protests against the land sale since September, represented himself in court Wednesday to urge Judge Jaclyn Colburn to delay the deal while the court examines the city’s handling of a small parcel within Parcel F: 3.5 acres that the city has used for recreation since 1996.

Daly at Tuesday night’s Board of Aldermen meeting reiterated his appeal to open Parcel F discussion to the public.

“I’m going to ask this chamber tonight to please not hold non-public sessions concerning Parcel F,” he said during the initial public comment period. He also asked aldermen and others to view a Telegraph video of the court proceedings “to see the mayor answering questions.”

Alderman David Deane, in moving for the non-public session, said a closed meeting was justified. “We’ve heard a lot of remarks about Parcel F meetings … the discussion we’re going to have warrants non-public session,” Deane said.

With the help of resident Dan Richardson, Daly faced off against attorneys representing the city, Pennichuck real estate subsidiary Southwood Corp., and developer North Concord Street Properties, to bring attention to the ordinance and easement on the recreation parcel.

“Mr. Daly and others have been … the spearhead of various attempts to stop North Concord Street from developing land that it already has all the necessary approvals from both the city and the state,” said attorney David Pinsonneault, representing North Concord Street Properties. “This is just one more attempt to make that goal, if not impossible, more difficult.”

The three attorneys opposing Daly’s petition for relief each filed motions to dismiss the case with Colburn on Tuesday morning.

“North Concord Street Properties should not be a party in this case,” Pinsonneault said. “We don’t have a dog in this hunt.”

Colburn instructed Daly that he had 10 days to reply to his opponents’ motions to dismiss his case.

Colburn also said she would review motions filed to vacate her temporary order to delay the Parcel F sale.

After the hearing, Daly said he would be returning to superior court with legal counsel to respond to the motions.

City aldermen agreed to the $2.2 million land deal for Parcel F in November 2010, when they approved the city’s purchase of Pennichuck Corp. On Jan. 25, the city acquired Pennichuck for $152 million and agreed to honor the Parcel F land deal as part of the acquisition.

Nine days prior to the Pennichuck acquisition, the city obtained a recreation easement on the 3.5-acre parcel abutting Parcel F, which Daly claims restricts public access to the land and changes the intent of the city’s 1996 ordinance on the parcel, which had called for “recreational purposes for an indefinite period of time.”

Daly claims the city obtained the easement Jan. 16 without the required approval of the Board of Aldermen, and it prevents the general public from walking, running, biking or using the land for other recreational purposes.

“The act, that ordinance, had to go in front of the aldermen to be revised and it didn’t,” Daly said. “This is all within the city charter and code.”

Daly said at an aldermen’s meeting earlier this year that the city had forgotten about the recreation parcel, asking how officials knew what Nashua controlled and what would be included in the Parcel F development.

City officials have argued otherwise.

“The latest lawsuit with the 3.5 acres that the city is supposed to have an easement on – we have that, we knew about it,” Mayor Donnalee Lozeau told The Telegraph’s editorial board last week. “When we closed our agreement with Pennichuck, it was clear to us that we had to formalize that agreement because all we had was a letter from the Pennichuck CEO at the time and the mayor and an ordinance that passed, but nobody ever registered it as this was the city’s, so we made sure that we did all the legal work that had to be done on that, so that wasn’t even included in Parcel F, that whole discussion. That was already a separate piece, remains a separate piece, and is owned by the city.”

Daly said he has accumulated 113 signatures protesting the way the recreation easement was handled and they include state representatives and residents living outside the vicinity of the Concord Street development.

“It’s the way the city handles its business,” Daly said.

Pinsonneault said the easement negotiation on the 3.5-acre parcel within Parcel F occurred before North Concord Street purchased the land and that Daly’s motion, intending to halt the Parcel F sale, occurred after he knew that the land deal had closed Jan. 23.

“The issue is moot, and the authorities that I’ve cited are clear about that,” Pinsonneault said. “If the court knew that the closing had already occurred, it most certainly would not have issued the temporary order.”

Pinsonneault went on to claim that Daly does not have standing to bring the court action.

“This petition was filed under false pretenses,” Pinsonneault said. “We heard about this cry about the ball field behind Pennichuck Middle School, but the real goal here is to stop North Concord Street from building a house on that property. … This pleading is a Trojan horse.”

Pinsonneault added that the developers holding Parcel F do not intend to build on the 3.5-acre parcel containing the city’s recreation easement.

City attorney Stephen Bennett agreed that Daly’s injunction concerns the Parcel F sale as a whole.

“This has little, if anything, to do with recreation, and everything to do with Mr. Daly’s nonstop efforts since last fall to halt the sale of Parcel F to North Concord Street LLC,” Bennett said.

Bennett said the Board of Aldermen’s review of the easement that Daly seeks had already happened in 1996 with the original ordinance issued on the land, and that its recreational use actually dates back as early as 1984 when the parcel was rezoned from “rural residence” to “park industrial” for use as a recreation area.

Bennett said the recreational parcel had been used for youth sports such as Pop Warner football and lacrosse since 2000, and that access to the property had always been open to the public through Pennichuck Middle School grounds. Vehicle access to the property, however, is protected by padlocked gates that the city controls to protect a nearby bog, Bennett said.

“Pennichuck Corp. and the city didn’t want folks going back there and dumping things, or accessing those areas without us knowing that they were back there,” Bennett said. “It was more the access to the watershed area, not so much the fields.”

Bennett added that the city does not use fertilizers or pesticides on the field to protect the watershed and that the field is utilized strictly as a practice field.

Both Pinsonneault and Bennett claimed that Daly knew the Parcel F sale had closed when he went to court to halt the deal and had misrepresented the facts to the court.

Daly argued that public access to the city field via Pennichuck Middle School is not sufficient, as it puts a resident at risk of arrest for trespassing or pedophilia for being on school grounds.

Daly also claimed that he only knew of the closing on the Parcel F sale the day he filed his petition for relief.

Maryalice Gill can be reached at 594-6490 or Follow Gill on Twitter (@Telegraph_MAG).