The court battle to resolve stalled action on the Garden Lane extension to Pillsbury Road, an access road to the proposed Woodmont Commons PUD (Planned Unit Development), has been stayed.
A court date had been set for Sept. 18 in Merrimack Superior Court on the lawsuit filed by Pillsbury Realty Development, LLC, developer of the 600-plus-acre Woodmont Commons, against DeMoulas Super Markets, but Pillsbury attorney Daniel Luker said last week that as a result of the recent Market Basket dispute and the buy-out of the company by Arthur T. DeMoulas, court action has been stayed until early 2015.
In the interim, he said, Pillsbury Realty and the Town of Londonderry would proceed with engineering on the road building so that in early 2015, construction could begin.
“If the sale (of Market Basket to Arthur T. DeMoulas) goes through as planned, it is a win/win,” Luker said.
The lawsuit, filed March 28, accused DeMoulas Super Markets of alleged breach of contract and “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 complaint alleged that DeMoulas’s actions put the entire Woodmont Commons project in jeopardy, as previously reported by the Londonderry Times.
The lawsuit seeks $18.5 million for the land Pillsbury purchased from 2009 through 2011, and $4 million in expenses, including the Woodmont Master Plan. It also seeks to attach DeMoulas’s New Hampshire real estate to obtain that money.
“With the proposed and publicized buyout by Arthur T., we believe that the project will go forward,” Luker said. “In the mean time, we don’t want to lose time, so we are moving forward with engineering so we will be able to start the construction process after the ground thaws in the spring.”
In June, Arthur T. DeMoulas, who owned a 49.5 percent share in the supermarket chain, was fired by the board as chief executive officer and store executives and employees walked off the job, while customers boycotted the stores, demanding the return of Arthur T. After prolonged negotiation, he was allowed to buy out the remaining shares in the company and resume direction of Market Basket stores.
At the time the lawsuit was filed, Town Manager Kevin Smith said ““The Town granted the approval for the (Market Basket) supermarket with the anticipation that the access road will be constructed, as it is important to the Town in terms of traffic mitigation.”
In a related matter, Town Attorney Michael Ramsdell sent a letter in July to the new DeMoulas Co-Chief Executive Officers, James Gooch and Felicia Thornton, noting that the Londonderry Planning Board had approved DeMoulas Super Markets’ proposed site plan for a new, much larger Market Basket store with the agreement that the company would work with Pillsbury Realty “to coordinate the appropriate means of providing future access to the former (Woodmont) 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 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.”
The DeMoulas company in May 2011 filed with the Town a copy of its “Access Agreement,” in which it agreed with Pillsbury to develop and build the Access Road “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 Market Basket.
Londonderry approved the Woodmont Commons PUD Development Agreement on Sept. 9, 2013. By executing the Development Agreement, the DeMoulas company acknowledged that Pillsbury was formulating “development plans for the Pillsbury property,” the letter from Ramsdell said. In October 2013, the Planning Board granted final approval of the comprehensive Master Plan for Woodmont Commons.
The town maintains the DeMoulas company “is obligated by its condition of approval and the Access Agreement to design, construct and deliver the Access Road.”
DeMoulas attorney Michael S. Sophocles responded in July with a letter stating, “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.”
Sophocles said the corporation has been trying to cooperate in this project but had not received any proposed plans or budget to “evidence that Pillsbury is prepared to commence its development.”
“(DeMoulas) is prepared to immediately implement a design which locates the Access Road along the westerly boundary of the DeMoulas property,” he wrote. “This location will allow for the roadway connection as contemplated by the Notice of Decision and the Access Agreement and will also… 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.”