DeMoulas Attorney: Ready to Start Woodmont Access Road

The attorney representing the co-Chief Executive Officers of DeMoulas Super Market, Inc. (DSM), the company operating the Market Basket stores, said the company is not ignoring any obligation concerning an access road from Nashua Road (Route 102) to Pillsbury Road. Indeed, he suggests a meeting be set as soon as possible to finalize arrangements for the road.

On July 3, Londonderry Town Attorney Michael Ramsdell sent a letter to James Gooch and Felicia Thornton, co-CEOs of DeMoulas Super Market, Inc., reminding the company of its signed commitment to assist Woodmont Commons developers with an access road from Nashua Road to Pillsbury Road.

“It is my understanding that the two of you are sharing the responsibilities of CEO for DeMoulas Super Market, Inc.,” Ramsdell wrote. “I write as counsel for the Town of Londonderry with regard to the Market Basket’ supermarket located and operating at Londonderry Tax Map 10, Lots 52 and 54-1. By this letter, Londonderry requests that DSM satisfy its obligation to the Town regarding that specific Market Basket store.”

According to Concord attorney Daniel Luker, who is representing the Woodmont Planned Unit Development (PUD), DeMoulas, as the parent company, has not complied with an agreement to work with the PUD in building the access road.

Ramsdell reminded DeMoulas that on June 2, 2010, the Londonderry Planning Board approved a proposed site plan for DeMoulas to build a much larger Market Basket near the site of the previous store. According to Ramsdell two conditions of that site plan approval have as yet been unmet.

One condition specifies that DeMoulas would work with Pillsbury Realty Development, LLC to coordinate the “appropriate means of providing future access to the former orchard parcel and Pillsbury Road, through an easement or other legal agreement to be worked out between the parties. The future access shall be stipulated in the agreement to allow for an eventual four lane roadway connection (anticipating future traffic demand for the development of the former orchard parcel), but can initially be designed as a two lane roadway. No certificate of occupancy for the relocated supermarket shall be issued until such time that an agreement for the future access is completed and a copy is provided to the Community Development Department for the project file,” Ramsdell’s letter said.

Ramsdell said that on Sept. 9, 2013, Londonderry approved the Woodmont Commons Development Agreement, executed by DeMoulas, Pillsbury, Londonderry “and two other parties. By executing the Development Agreement, DeMoulas acknowledged that Pillsbury was formulating ‘development plans for the Pillsbury Property.’ On Oct. 2, 2013, the Planning Board granted final approval of the comprehensive Master Plan for the Woodmont Commons Planned Unit Development. DeMoulas is obligated by its condition of approval and the Access Agreement to design, construct and deliver the Access Road.”

Ramsdell continued, “Because it has been nine months since the Planning Board approved the Woodmont Master Plan, and 10 months since the parties executed the Development Agreement, DeMoulas’s performance of its obligation to construct the Access Road is overdue.”

On July 15, DeMoulas attorney Michael S. Sophocles responded on behalf of Gooch and Thornton.

“Your letter addresses the construction of an access road between DeMoulas’s property at 34 Nashua Road and the adjacent land of Pillsbury Realty Development, LLC, commonly known as the ‘former Woodmont Orchard’ or ‘Woodmont Commons’ (the “Pillsbury Property”), he wrote. “DeMoulas is cognizant of the Town’s concerns respecting the status of the Access Road and welcomes this opportunity to address those concerns.

“Please be assured that DeMoulas and its new management team are well aware of the terms and conditions contained in the Notice of Decision issued by the Londonderry Planning Board on June 2, 2010, as well as the terms and conditions contained in DeMoulas’s Access Agreement with Pillsbury dated May 11, 2011,” he added. But he wrote that “Contrary to the suggestions in your letter that DeMoulas is obligated pursuant to the Access Agreement to ‘develop and construct’ and ‘deliver’ the Access Road, DeMoulas’s obligation under the terms of the Access Agreement is to ‘work with Pillsbury to coordinate appropriate means of providing future access to the former orchard parcel and Pillsbury road’ and to ‘cooperate” with Pillsbury in formulating development plans for the Access Road.’ Notwithstanding what is being reported by various media outlets and the allegations by Pillsbury in its litigation against DeMoulas in connection with this matter, this is exactly what DeMoulas is attempting to do – cooperate in the implementation of the Access Road in full accordance with the terms of the Planning Board decision and the Access Agreement.”

Pillsbury Realty Development has sued DeMoulas Super Markets for its alleged “purposeful, deliberate, and continuing delay in fulfilling its obligations under an Access Agreement signed by the parties in May 2011, thereby blocking Plaintiff’s ability to move forward with its development plans.”

The lawsuit filing states “Plaintiff’s inability to move forward with the access road also imperils the project approvals, which will expire in October 2017 unless Plaintiff commences “active and substantial construction” of the Project in accordance with the Master Plan.

Sophocles said the Access Agreement provides that the Access Road is to be constructed “in connection with the development of the Pillsbury property,” but “to date DeMoulas has not (despite repeated requests by this office) been provided with any proposed plans, specifications or budgets for the Access Road or any related traffic improvements which would evidence that Pillsbury is prepared to commence its development.”

He noted that the majority of the Access Road would be on the Pillsbury property, and “DeMoulas must therefore rely on Pillsbury for design and construction coordination of the Access Road.”

Sophocles claims it is Pillsbury Realty that is unprepared. Michael Kettenbach, principal of Pillsbury Realty, is head of RMD Retail Management and Development. He is married to a member of the DeMoulas family.

“Notwithstanding Pillsbury’s apparent unpreparedness to commence construction, DeMoulas’s Board of Directors authorized the Development Agreement in December of 2013, which was executed by DeMoulas and delivered to Pillsbury on Jan. 7, 2014,” he wrote. “As I am sure you are aware, Section 3 of the Development Agreement provides that active and substantial development activity need not commence for four years, and the Access Agreement contains no stated timeframe for DeMoulas’s performance. While it is clearly not DeMoulas’s intent to delay performance, DeMoulas respectfully disagrees with your assertion that its performance under the Access Agreement is in any way overdue.”

The letter also states, “you requested that DeMoulas provide its plan to design, construct and deliver the Access Road in a manner consistent with the Access Agreement and the Woodmont Commons Planned Unit Development… Please be advised that DeMoulas is prepared to immediately implement a design which locates the Access Road along the westerly boundary of the DeMoulas Property, as depicted (or substantially as depicted) on the plan attached to the Access Agreement that was provided to the Town on or about May 23, 2011. This location of the Access Road will allow for the roadway connection as contemplated by the Notice of Decision and the Access Agreement and will also, as required by Section 3 of the Access Agreement, limit the impact on the DeMoulas Property and ensure that the existing building on the DeMoulas Property will (at least in part) remain as an approved space for retail and commercial uses.”

Sophocles said that on Feb. 10, 2014, Pillsbury’s counsel indicated in an e-mail that the “west boundary” location for the Access Road, as depicted in the plan attached to the original Access Agreement, would be considered by Pillsbury to be the “final layout” for the Access Road.

“With this location agreed upon, DeMoulas is committed to preparing the requisite construction documents, participating in the construction, and paying its share of the cost for the Access Road, all in accordance with the requirements of the Access Agreement,” Sophocles said.

Sophocles said he is prepared to meet with Pillsbury Realty at its earliest convenience to address any remaining Town concerns and facilitate an early implementation of the Access Road.

“Furthermore, at the appropriate time, I suggest a meeting be held in your offices with the appropriate officials from the Town of Londonderry and representatives of both DeMoulas and Pillsbury to finalize arrangements for coordination of the parties’ respective plans, specifications, permitting and construction,” Sophocles wrote. “To avoid any further misunderstandings and misinformation, our meeting should be scheduled as soon as possible.”

Town Manager Kevin Smith, who provided the letter to the Londonderry Times upon its request, had no comment on it.

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