Competitor files suit to reverse new Lebanon apartment complex’s city approval

Valley News Staff Writer
Published: 12/1/2020 9:55:58 PM
Modified: 12/3/2020 3:13:37 PM

NORTH HAVERHILL — The owner of the Timberwood Commons apartment complex is asking a Superior Court judge to reverse a recent Lebanon Planning Board decision allowing a competitor to build 250 new units across the street on Mount Support Road.

Merion Timberwood, L.P., a division of Pennsylvania-based Merion Residential, filed a lawsuit in Grafton Superior Court last month, claiming its experts weren’t given a fair hearing during the city’s review of the new development slated for the Route 120 corridor.

The project, put forward by Massachusetts-based Saxon Partners, would build two connected four-story buildings, parking and other amenities on a 75-acre parcel about a mile south of Dartmouth-Hitchcock Medical Center.

Its construction was approved during an Oct. 13 Planning Board meeting following a six-month review that saw Timberwood’s experts clash with those hired by Saxon Partners.

In court filings, Timberwood’s attorneys assert that the Planning Board erred by failing to discuss the project’s wetlands designation, that it was given “erroneous legal advice” by city staff, and that planners failed to act impartially.

The attorneys also say that Saxon Partners should have first obtained a special exception before bringing the project to the Planning Board, a claim that the Lebanon Zoning Board shot down in October.

Jason Reimers, an attorney with Concord law firm BCM Environmental and Land Law who filed the suit on Timberwood’s behalf, declined to comment on the litigation, as did Lebanon City Manager Shaun Mulholland.

“This will be a matter for the courts to decide,” Mulholland said in an email.

Planning Board members, city staffers and officials with Saxon Partners predicted before the apartment project was approved in October that Timberwood’s owners might file a lawsuit challenging its construction.

At the time, Lebanon Planning Director David Brooks also acknowledged the city’s approval was written to shield Lebanon from a court challenge.

The suit also came as no shock to Saxon Partners.

“I’m not surprised they did it. They announced to us back in June that they were worried about competition and they’d hired lawyers and engineers to appeal permits,” Donald Smith, a partner at Saxon, said this week.

Throughout the Planning Board review, engineers and wildlife experts hired by Timberwood argued that the Saxon apartment project would prove detrimental to a nearby wildlife corridor and wetlands.

The development, they said, also was “overbuilt” and could affect views at the Timberwood Commons complex, which has 252 units.

In return, Smith and Saxon Partners has accused Timberwood of attempting to kill a competitor’s project in a lucrative market near DHMC. A one-bedroom apartment at Timberwood Commons currently goes for more than $1,900 a month, according to its website.

As evidence, Saxon Partners said Timberwood’s owners didn’t participate in the recent Planning Board review of a neighboring 309-unit apartment complex put forward by Dartmouth College and New Jersey developer Michaels Student Living. That proposal is geared toward graduate students and isn’t expected to compete for DHMC employees.

The Timberwood legal filing focuses on the Planning Board review itself and argues the board members made several missteps in awarding Saxon Partners’ apartments site plan approval.

Those include relying on the advice of Zoning Administrator Tim Corwin, who practiced law in Pennsylvania before working in the Windham and Dover, N.H., planning offices. Timberwood’s attorneys say Corwin misinterpreted a court case, resulting in the company’s experts being denied the ability to fully testify to the Planning Board.

The suit also criticizes Corwin for a July 21 email exchange with a Saxon Partners attorney in which he provided past Planning Board decisions, at Saxon’s request, on other projects. Timberwood’s attorneys claim that in doing so he “advised” the Saxon attorney on what to include in a “legal analysis” distributed to the board. They also asserted that it was part of the Planning Board’s “pattern of conduct which deprived Merion (Timberwood) of procedural due process.”

The city of Lebanon will have 30 days to respond once it has been served by early January.

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

Correction

The owner of the Timberwood Commons apa rtment complex has until Jan. 9 to serve a lawsuit against the city of Lebanon related to a competitor’s development on Mount Support Road. An earlier version of this story incorrectly described the status of the service and the deadline for its delivery.




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