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Sunday, April 8, 2012

Aldermen question easement for city field on ‘Parcel F’

NASHUA – Thirty-three acres known as “Parcel F” may be off the city’s negotiation table, but officials are still examining 3.5 of those acres that have been used as a city field for more than 15 years.

During two Board of Aldermen meetings last week, resident Geoff Daly questioned why the board never authorized an easement that put new restrictions on the field in January.

On Jan. 16, Pennichuck Corp., then owner of Parcel F, signed off on a recreational easement that had been settled with city legal counsel to designate how the field is used. It was executed two weeks before the city acquired the water company and its subsidiaries.

The easement is now in the hands of North Concord Street Properties, LLC, which purchased Parcel F from Pennichuck on Jan. 23 and thereby gained the recreation land in the $2.2 million deal.

According to a March 30 letter from City Attorney Stephen Bennett, the city plans on meeting with North Concord Street Properties to see if anything can be done to loosen up the restrictions of the new order.

Meanwhile, the resolution to bond $4.85 million to buy back the 33 acres of Parcel F from North Concord Street, which aldermen have wavered back and forth on buying, will come before the board again on Tuesday, according to Board President Brian McCarthy. It faces a recommendation for indefinite postponement, he said.

Daly first fought the recreation easement on Parcel F for preventing “unfettered access” to the field in a court case against Southwood, North Concord Street and the city in February. He ultimately dropped it by filing for a voluntary nonsuit weeks later, he said.

At the time, legal representatives for Southwood, North Concord Street and the city argued that Daly was trying to halt the sale of Parcel F with the suit, which is slated for North Concord Street Properties’s 85-unit senior housing development called “Hayden Green.”

The field in question is next to Pennichuck Middle School and is open for organizations through the city’s Parks and Recreation Department.

In 1996, Pennichuck and Southwood reached an agreement with the city authorizing its use of that land for “recreational purposes for an indefinite period of time.” It also permitted the city “to make whatever improvements it wishes on the site.”

City ordinance 96-06 recorded the agreement, but Pennichuck never executed an easement that would have formalized it on their end, Bennett said.

“Basic contract law does require that the parties to an agreement have a ‘meeting of the minds’ over the terms and conditions of the agreement in order to make that agreement enforceable as against the parties,” Bennett said. “Perhaps the best evidence of the intentions of the parties to this agreement is the use by the city field over the last ten to fifteen years.”

Even without the easement, the field has been used as a city practice field for youth sports and organizations since 1996, Bennett said.

Anticipating that the city was going to close on acquiring Pennichuck this year, Pennichuck and city legal counsel documented the city’s use of the field in January an access and recreational easement. But the easement included new terms that Daly claimed, and many aldermen agreed, limit what was originally agreed upon in the city’s 1996 ordinance.

The easement states that the city can use the land for youth sports activities, such as football, soccer and lacrosse, from 8 a.m.-9 p.m. It also prevents bleachers from being installed on the field, and permits only minimal lighting fixtures.

What seemed to concern most aldermen, however, were the restrictions placed on the groups allowed to practice on the field.

The easement prevents musical practices or performances, including those of marching bands, on the field, so that the Spartans Drum & Bugle Corps can use it at certain times during the week.

“It seems to me that in that easement we erred to the detriment of the city,” Ward 2 Alderman Rick Dowd said during a meeting last week. “It seems exclusive to one particular entity that is not even a city entity. It’s a private group.”

Mayor Donnalee Lozeau explained at the meeting that the easement had been written to characterize how the land had been used in the last 12-15 years.

Ward 7 Alderman June Caron, who worked in Parks & Recreation for 41 years, recalled that the field had always been used for the overflow of local football, soccer and lacrosse programs in need of field time, and for the 100-piece Spartans Band, which lacked a home facility for practicing.

“You have to understand the history of it. It was only there as an additional place for us to be able to utilize it for those leagues that were in need,” Caron said.

McCarthy said the field’s close proximity to Pennichuck’s watershed restricts its use with or without the easement. Bennett added that its location near a bog has always prevented the city from using fertilizers, pesticides, or building certain structures on the field.

Still, aldermen questioned whether the easement needed modifications, citing concerns that the restrictions conflicted with the city’s ordinance enough to invalidate the easement altogether.

“What if the school band wants to go out there someday?” Alderman-at-Large Jim Donchess said during the meeting. “Now we’ve put ourselves in a position where someone from Hayden Green can come down and say, ‘Sorry, you can’t use it for that.’”

“I just don’t see how the city could agree to take an unlimited easement … like was incorporated in the ordinance, and to have agreed to the type of limitations favoring one group over another that we ultimately saw.”

Bennett said he had been the one who failed to bring the easement before the board when it was agreed to in January.

McCarthy said the easement’s approval process falls under a “gray area,” but the hope is that the next easement negotiated between the city and North Concord Street Properties can be brought before the board for their input.

City easements typically are negotiated by the legal department and are signed off by the grantor, then accepted by the board, McCarthy said. If the board likes an easement, they don’t necessarily have to act on it, he said.

“I’m not sure exactly what happened there but we’re trying to untangle it,” McCarthy said. “I think it’s just a set of oversights. I certainly don’t think anybody set out to do anything nefarious to the easement. It looked like any other easement, therefore we didn’t look at the fact that the board had put some conditions on it.”

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