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City of Lebanon, Manchester developer spar over stalled housing project

Valley News Staff Writer
Published: 8/3/2021 9:52:53 PM
Modified: 8/3/2021 9:52:57 PM

CONCORD — Attorneys representing a Manchester developer argued last week that Lebanon is too late to halt its plans to build 117 homes on a hillside above Lebanon Middle School.

Brady Sullivan has “millions of dollars” invested in the Prospect Hills subdivision and, over its decadelong ownership of the project, gained certain “vesting” rights to continue, attorney John Cronin, with the firm Cronin, Bisson & Zalinsky, told the New Hampshire Housing Appeals Board on Friday.

The first phase — 54 homes built around Mountain View Drive — wrapped up just last year after years of delays, and Brady Sullivan has yet to break ground on the second phase, a 40-acre wooded parcel off Prospect Street.

Cronin told the board during an hourlong hearing, which also was streamed online, that the construction of a wastewater pumping station intended to be used for both sections of the development should be enough to gain vesting rights and reverse a March decision of the Lebanon Planning Board denying the project an extension.

“Our position is that Brady Sullivan could go in and ask for a building permit to get started now,” he said.

New Hampshire courts have ruled that vesting occurs when a developer completes “substantial construction” on a project or has incurred “substantial liabilities.”

But Lebanon’s attorney argued that Brady Sullivan’s costs don’t meet either of those conditions.

Courts have exempted the purchase of land, as well as engineering and architectural fees from considerations of vesting, said Christine Fillmore, who represents the city.

Prospect Hill’s first phase of development is also separate from the second in a regulatory sense, with each having its own requirements, deadlines and needs, she added.

“It’s difficult to see why any Planning Board would approve a phased project if a developer was free to ignore the deadlines after Phase 1,” Fillmore said.

The Housing Appeals Board’s decision could ultimately decide the fate of Prospect Hills.

Amendments to Lebanon’s zoning ordinance since the project was first proposed might force Brady Sullivan to redesign the project if it were to seek a new approval.

The city in 2017 adopted rules requiring “planned unit residential development” in certain zoning districts. In exchange for smaller lot sizes, the cluster developments set aside large tracts of land to be conserved as open space.

By comparison, Prospect Hills has a more traditional housing layout, with homes and roadways stretching throughout the parcel.

The housing project has vexed Lebanon officials since it was first proposed in 2005, when it first approved Lebanon natives Erik and Treff Moulton’s plans to build and sell homes at the site.

Their company, M&M Equities, began work on the first phase until the project fell on tough financial times during the Great Recession. It filed for bankruptcy by the summer of 2009 with only six homes complete, and the mortgage deeds were sold a year later to Brady Sullivan.

Since then, the developer has gone before the Planning Board every two years asking for more time to start work. The project’s latest approval, which dates back to 2018, gave Brady Sullivan two years to complete “substantial” development.

But, Fillmore said, no progress was made aside from the filing of plans. And when the company asked for an extension to 2024, the Planning Board unanimously denied it in March, with members expressing skepticism that work would be completed on time.

Cronin, the Brady Sullivan attorney, attributed the delays to the coronavirus pandemic and difficulty obtaining supplies and labor.

“In the decision-making process early on, we decided, ‘Let’s finish up Phase 1. We’ve got other projects that we’re in the middle of and not start with Phase 2,’ ” he told the board.

Those isues should have been enough to obtain the extension, Cronin said, adding that the Planning Board’s failure to vote in favor was “unreasonable” and “unlawful.”

However, Fillmore said the board’s decision was informed by the project’s timeline and Brady Sullivan’s past assurances.

During construction of the subdivision’s first phase in 2016, the company promised it was working to complete a turn lane and convey the deeds to water lines. Those were both done in 2020.

“So several of the items, which sounded imminent in 2016, were not actually finished until four years later,” Fillmore said. “And that was 10 years after Brady Sullivan acquired the project.

Members of the Housing Appeals Board, created by the Legislature last year, didn’t say when it will issue a decision in the case. Either side could appeal to the New Hampshire Supreme Court.

Tim Camerato can be reached at tcamerato@vnews.com or 603-727-3223.




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