Town Sends Letter To Market Basket on Woodmont Access Road

On July 3, Londonderry Town Attorney Michael Ramsdell sent a letter to the two individuals, James Gooch and Felicia Thornton, who are acting as CEO of DeMoulas Super Market, Inc. (DSM) since the recent ouster of CEO Arthur T. DeMoulas, reminding the company of its signed commitment to assist Woodmont developers with an access road from Nashua Road to Pillsbury Rd.

“It is my understanding that the two of you are sharing the responsibilities of CEO for DeMoulas Super Market, Inc. (“DSM”). I write as counsel for the Town of Londonderry, New Hampshire (‘Londonderry’) with regard to the DSM ‘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,” Ramsdell’s letter said.

According to Concord Attorney Daniel Luker who is representing the Woodmont Planned Unit Development (PUD), Market Basket built the new store, but DMS, the parent company, has not complied with an agreement to work with the PUD in building the access road.

Ramsdell reminded DSM that on June 2, 2010, the Planning Board approved a proposed site plan for DSM to build a much larger Market Basket near the site of the previous store on the same site.

According to Ramsdell, two conditions of that site plan approval have as yet been unmet.

“General and Subsequent Condition No.1 of the DSM Site Plan Approval specified that: DSM shall 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 further stated that the minutes of the June 2, 2010 Planning Board meeting stated that, in reliance on DSM’s commitment to design and construct a new access and bypass route or access road with Pillsbury Realty Development, LLC, it would not require DSM to undertake off-site traffic mitigation improvements.

“After the Planning Board approved DSM’s site plan, DSM undertook the expansion and remodeling of the new supermarket site. On or about May 23, 2011, DSM filed with the town a fully-executed copy of its ‘Access Agreement’ pursuant to which DSM agreed with Pillsbury to develop and build the Access Road in compliance with General and Subsequent Condition Number.1. Paragraph 2 of the Access Agreement states that ‘plans for the access road shall be developed during the process of formulating development plans for the Pillsbury Property and the access road shall thereafter be constructed in connection with the development of the Pillsbury Property.’ Pillsbury’s plans showed both a concept for the Access Road and a redesigned and enhanced shopping center for DSM,” Ramsdell’s letter said.

Ramsdell said that on September 9, 2013, Londonderry approved the Woodmont Commons Development Agreement, which was executed by DSM, Pillsbury, Londonderry “and two other parties.” By executing the Development Agreement, DSM acknowledged that Pillsbury was formulating “development plans for the Pillsbury Property.” On October 2, 2013, the Planning Board granted final approval of the comprehensive Master Plan for the Woodmont Commons Planned Unit Development. DSM is obligated by its condition of approval and the Access Agreement to design, construct, and deliver the access road. Because it has been nine months since the Planning Board approved the Woodmont Master Plan, and ten months since the parties executed the development agreement, DSM’s performance of its obligation to construct the Access Road is overdue.

“While DSM has not constructed the Access Road, DSM has realized the revenues from its new supermarket facility since June 2011, when the Town granted DSM’s request for a certificate of occupancy. DSM’s obligation pursuant to General and Subsequent Condition Number 1 is plain. Similarly, Londonderry is entitled to the Access Road pursuant to DSM’s obligation as stated in the Access Agreement.

Londonderry requests that, as you survey your new responsibilities as CEO, you will see to it that DSM fulfills its obligation to Londonderry. The Town would greatly benefit from the Access Road, and DSM ensured Londonderry that the Town would receive the Access Road. If steps are taken expeditiously, required road approvals can be applied for well in advance of the 2015 construction season,” Ramsdell said.

Ramsdell requested that Gooch and Thompson provide him “on or before July 18,2014, DSM’s plan to undertake to ensure that the Access Road will be laid-out and substantially engineered in a manner consistent with the Access Agreement and the Woodmont Commons Planned Unit Development.”

DeMoulas Corporate Headquarters was contacted for comment, however no one was available to respond to the matter before press time.

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