Bear Hill’s 60-home development back to square one

Bear Hill’s 60-home development back to square one

CUMBERLAND – The long and often convoluted history of one of Cumberland’s largest proposed housing projects, now tied up in litigation with one of the town’s most well-known developers, is still taking more twists and turns than the Diamond Hill roundabouts.

Back in July 2011, The Valley Breeze reported that real estate broker John Brady, owner of 88 acres of Bear Hill, was nearing final approvals on his Gold Rush Estates, a development of 60 homes named in honor of old-time landowner David Curran and the mini-gold rush that hit Bear Hill in May 1904.

Asked back then when he expected work on his project to get started, Brady said it wouldn’t be happening soon due to the condition of the economy. A decade later, the 60-lot subdivision project, first granted preliminary plan approval in 2008 but allowed to be put on pause through state tolling statutes, still waits in limbo.

On March 31, the Cumberland Planning Board denied a request by the Irene O’Malley Trust for an extension on the preliminary plan for the project, essentially sending the Gold Rush Estates back to square one in seeking approvals.

On behalf of the applicant, attorney Jennifer Cervenka had asked for a stay until this summer to allow them to potentially see the court matter that’s tying up the property resolved. Even with a no vote, said Cervenka, she asked for and received certain statements from the board.

The basis for the request, said Cervenka, was primarily that there is ongoing litigation between the applicant and Terrapin Development (Jim McKee) “related to a sales agreement gone awry,” as Director of Planning Jonathan Stevens and Town Solicitor Kelley Morris Salvatore said in a joint memo of March 26. Town officials describe this matter as a long and complicated one.

At a March 2 Planning Board hearing, Cervenka detailed plans to transform their request from an extension to a stay to June 2021. She said she believed that the Rhode Island Department of Environmental Management’s position was that if an applicant runs out of extensions, they would have to apply for a new permit under current stormwater management standards. The applicant was not able to meet a conditional term of the last extension as of right because they could not keep that RIDEM permit alive.

In the fall of 2016, the Irene O’Malley Trust entered into a purchase-and-sale agreement with Terrapin.

The key provision of that agreement was that the trust agreed they would sell phase one of four phases of the Gold Rush development to Terrapin. It also gave Terrapin a right of first refusal on phases 2, 3 and 4. After entering the agreement, Terrapin took over trying to get the preliminary plan recorded because under that purchase and sale agreement, it was the primary responsibility of Terrapin.

For phase 1, Terrapin satisfied the North Attleboro Department of Public Works that stormwater runoff from that phase would not negatively impact neighborhoods in neighboring North Attleboro, Mass.

A letter from Cumberland’s assistant solicitor stated no objections to recording phase 1. The letter further stated the town was withholding approval with respect to the other three phases.

Phase 1 was never recorded, and the two parties ended up in litigation over the matter.

Before this permit came out of the tolling period, in 2017 Terrapin sued the trustees in Superior Court seeking to compel them to sell phase 1, and for contractual damages. That litigation is ongoing. The trustees didn’t want to take action during the litigation where the rights to the development were at issue, saying that to have recorded anything during this time or taken action could have prejudiced them in the legal process.

In the summer of 2018, the Superior Court issued a decision to terminate the purchase and sale agreement and it dismissed the complaint for specific performance, so the trust prevailed.

Terrapin appealed that decision to the Rhode Island Supreme Court, with oral arguments happening this spring and the case expected to wrap up by summer to determine who has rights to the project.

At the March 2 Planning Board meeting, Brady said he’d tried at length to get a meeting with North Attleboro representatives on the drainage issues, but to no avail. At that meeting, he referenced the challenge of having to go up against a developer who is the brother of the man who is now Rhode Island governor, Dan McKee.

Since 1994, the property has been zoned Agricultural-2 (A-2), which requires 2-acre lots. Based on file documents, it appears that an action was filed against the town in 1994 relating to density issues, which eventually resulted in an interim order in 1998 that permitted a 60-lot subdivision, with a 1-acre-per-lot minimum size.

The order requires that the property owner follow the rules and regulations of the Planning Board. It appears that there was never a master plan filed with the Planning Board because of the agreement to allow 60 one-acre lots.

Documents indicate that 10 years later, on Jan. 30, 2008, a preliminary plan was approved, and on May 23, 2011, a joint motion and consent order was entered by the Superior Court stating that the town was authorized to record the final subdivision.

According to Cumberland officials, North Attleboro officials had objected to the project all the way back in 2007, but complaints had been ignored.

Under the plan, Cargill Road and Stagecoach Road, both dead-end streets created in the 1980s when Bear Hill Estates was installed near the North Attleboro line, are extended to create two of the main roadways in the development. A number of other street names were also proposed based on the area’s history, including Sparkling Jewels Court, Dreamer’s Way, Gold View Drive and Irene’s Golden Way, named for Irene O’Malley, who with her husband purchased the property from the Cargill family in the early 1960s. Brady is O’Malley’s son.

Conflict between O’Malley and the town started in 1994 when the town rezoned the land from residential to agricultural, requiring larger, 2-acre house lots than the smaller size that residential zoning called for.

In 1998, O’Malley prevailed in Superior Court. The town of Cumberland, represented at the time by former Rhode Island House Speaker Gordon Fox, was ordered to permit 60 lots.

The subdivision plans stayed on hold until a second round in court established that lots could vary in size and not all be the full 40,000 square feet.


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Prior to the Planning Board’s denial of the stay on March 31, Morris Salvatore noted the fact that many town and state regulations have changed since the original approvals were given. Because the original proposal was approved through a settlement, neighbors didn’t get to participate in hearings as they would through a typical application process, she said.

The applicant has attempted to record a plan, but can’t do so without providing an improvement guarantee, she said, which he hasn’t agreed to do. Morris Salvatore said she didn’t believe third-party litigation was a legitimate reason for a delay.

Cervenka responded that the board does have authority to extend the timeframe for good cause, which is not a defined term. She said the board should not consider any of the time from November 2009 to June of 2017 when tolling statutes were in effect. By late summer, she said, she believes there should be a definitive answer from the state’s highest court on who owns the development rights.

If the board was still inclined to deny, she said, she requested that members place on the record that Terrapin has not sought to record a preliminary plan, has not put a performance guarantee in place, and has not sought extensions on the plan.

Morris Salvatore agreed that the board should only consider the time periods of January 2008 to November 2009 and June of 2017 to present when making its decision. She said she also didn’t have an issue with any of the issues Cervenka wanted placed on the record for the benefit of legal proceedings.

Morris Salvatore disagreed with Cervenka’s contention on the board’s authority, saying she does not believe members have authority if state permits aren’t current.

Member Steven D’Ambrosia asked whether the developers might have to start from square one no matter what the board did, as state regulations have changed over time, and Morris Salvatore said that yes, that is possible.

Comments

When are there not?? And that is before, during...and often after!

I'm sure this amount of land is very expensive, but does anyone know if Pawtucket Waster Supply or Cumberland Land Trust tried to buy this land? I'm pretty sure it is part of the watershed area for the water supply. It's beautiful land, too bad it wasn't saved for open space.

Not one of our most well-known but one of our most infamous developers in Cumberland. Anyone who has lived in Cumberland for even a short period of time, knows any type of involvement with McKee is courting disaster. Think Hidden Meadow develop-
ment. My condolences to all involved in this morass.