More on the Cushing property:  Certainly a shoe full o’ stone.

In last week’s column I stated the purchase price of the Dawes property was $600,000.  Well, I was off a little—by an order of nearly a magnitude.  The purchase price of the Dawes land was $5,800,000.  For $600,000 I would have bought the land myself.  I wish I could say it was a typo or blame my editor, but alas, the mistake was solely mine.  When I sit down to write, I use my notes, and occasionally my notes are, to say the least—untidy.  However, the point I was making in last week’s Ramblings is still valid—buying the property made no sense.

I pondered, for a long time, how and why the Cushing land acquisition sailed blithely through town meeting with only minimal opposition.  Maybe, folks thought we were getting a good deal, but I came to the conclusion that town meeting was lulled into a sense of complacency because the land developers were “us”— trusted members of our own community.  I am sure the concept was neatly packaged and pre-sold to those people most likely to attend town meeting.

I will admit the concept had appeal.  The town will not be dealing with some rude auslander developer who’s coming to pillage our land.  It is “we” who are going to develop the land, and in doing so, “we” will accomplish all those wonderful things that were promised at town meeting; preserve open space, build affordable housing, and level land for soccer fields.

At special town meeting, we became all warm and fuzzy with this concept because it was our own neighbors, people like you and me, who were going to become the dreaded land developer.  This, folks, is a grand and glorious experiment—an expensive experiment, and what a wonderful thing it is for our citizen-developers.  They are experimenting with our money.  We gave them a $1.7 million dollar chemistry set.  As Walt Kelly said, in the famous comic strip Pogo, “We have met the enemy and they are us.”  The context is different, but the sentiment is the same.

I am still not sure how the development is going to happen.  No one, to the best of my knowledge, exactly addressed that question at town meeting.  Are we going to create another citizen committee and appoint “them” to become the general contractors, or are “we” going to sell the parcels to auslander developers who will then apply for a “friendly” 40B permit.  Considering the constituency of egos on the Planning Board, I don’t think there is such a thing as a “friendly” 40B permit, and there exists the real possibility the Planning Board will insist upon such odious restrictions and contingencies that the property will remain undeveloped.

The whole concept of the town-as-a-developer has a somewhat checkered past in the town’s history, with one success.  Some years ago, I recall the Conservation Trust ended up in the legal stewpot when they were sued by the landowners to whom they subdivided and sold lot, and dare I mention the Kunelius land-- again?  I recall the Trust for Public Land representative stating numerous times, at numerous meetings, that TPL had never defaulted (blah-blah-blah).

There is a first time for everything, and now the town (we) might be holding the satchel for what might be a very expensive legal battle.  Curiously enough, the Selectmen had been strongly advised by both Town Administrator Bill Wrigley ,and then town counsel Jake Diemert, to require an indemnification clause in the contract that would have held the town harmless had TPL defaulted.  To further worsen my perception of the whole town-as-a-developer concept, I recently heard this wrong-headed sentiment being expressed about the horrendously poor decision not to insist the town be indemnified, “Oh well, it won’t cost us much because the town’s insurance will pay.”

The only time the town has been successful as a developer was when the Stow Community Housing Corporation was formed in 1981, and built Plantation and Pilot Grove Apartments.  Oddly enough, or maybe not so odd when you think about it, both projects were successful because they were financed and managed completely outside of town government-- as a private corporation.

Last week, I wrote about the painful process that might occur when the town steps into the shoes of the purchaser of land that is coming out of Chapter 61-- blisters and a shoe full o’ stone.

I went to the Stow Town Building and purchased a copy of the Cushing purchase and sales agreement—now a matter of public record.  I read and re-read the document and gave it to several friends to read, none of whom were lawyers—for good reason.  I wanted an English language interpretation of the document.

At Special Town Meeting, the landowner contended she was entitled to, in addition to the main house lot, three additional lots of the landowner’s choosing.  We interpreted the agreement to say, that yes, the landowner is entitled to the main house lot, and two additional adjacent five acre lots (“36 acres of land, as generally depicted as Parcel “A” on the plan attached hereto as Exhibit A”—which was not attached to our copy of the agreement), and has the OPTION TO PURCHASE one additional “subdivided buildable lot” at a discount rate.  The landowner does not get to choose where that lot is, only to choose from among the subdivided buildable lots that the developer designs.

The Purchase and Sales Agreement reads, “In event the Seller exercises the right to retain the Lot in accordance with the provisions of this Paragraph, then the Purchase Price shall be reduced by an amount equal to eighty (80%) of the average asking price of the subdivided lots (or equivalent units) in the development.”  The keywords to us were the words the words “reduced” and “equal to.”

Sitting around the fireplace and reading the purchase and sales agreement, our “panel of experts” found it both enlightening and entertaining.  We all agreed there seems to be enough ambiguity in the purchase and sales agreement to allow a witch’s brew of costly litigation.  Interestingly enough, at special town meeting Town Counsel stated that he and the landowner had different interpretations of the agreement, but offered little in the way of details.  Saddle up folks, Stow’s warm and fuzzy “trust-me” government is again leading us into costly litigation.