NewburyportNews.com, Newburyport, MA

December 14, 2010

AG requires change in DDR mall settlement

By Angeljean Chiaramida
Staff writer

SEABROOK — A recent change in the legal understanding that settled the Supreme Court lawsuit between the town and shopping center developer Developers Diversified Realty could put the town on the hook for more money when the time comes to widen a portion of Route 1.

Town officials learned last week that the attorney general required changes to the initial settlement document. DDR wants to build a 500,000-square-foot shopping center on 47 acres of land behind The Provident Bank at the busy intersection of routes 1 and 107. The agreement allocates responsibility and funding requirements to the town, the state Department of Transportation and DDR for road-widening improvements to Route 107's Interstate 95 overpass bridge and the southbound lanes of Route 1 from Route 107 to Lowe's.

The road improvements are meant to mitigate the additional traffic the shopping center is projected to bring to the already heavily traveled Route 1 corridor in Seabrook, which offers a retail shopping cluster.

The original memorandum of understanding delineated that Route 1 southbound would be widened to eliminate the lane drop from the BP gas station to Lowe's. NHDOT was slated to contribute up to $782,000, manage the project, appraise, negotiate and acquire the rights-of-way needed for the widening. DDR will contribute a maximum of $127,000 for design of the improvements.

In the first draft of the memorandum, Seabrook would contribute $595,000 and was responsible for the costs associated with the right-of-way acquisitions, the money coming from Seabrook's extraction fund containing the $800,000 the Kohl's developers paid years ago for roadway improvements. If more money were needed, the original document said the town would be responsible only for an additional $275,000 from future extraction fund payments from future developers.

However, the N.H. attorney general balked at the $275,000 limit, Planning Board Chairman Don Hawkins said. Since land acquisition issues, especially related to eminent domain takings, can end up in lengthy court battles, the attorney general said the legal battles could eat up all the $275,000 and more, Hawkins said. Since NHDOT could not assume the unknown responsibility for the overages if they occur, the attorney general required Seabrook to pick up the right-of-way acquisition overage costs completely, with no cap, Hawkins said.

Hawkins said the risk is minimal, since the additional money would come from future exaction fees. But at this point, pretty much all the money in the fund comes from $800,000 paid by the Kohl's developer. In addition, all the Kohl's money is fully committed by the memorandum to the widening of Route 1.

Bringing the bridge to five lanes, according to the memorandum of agreement, NHDOT will contribute no more than $4 million, with DDR's contribution capped at $2.3 million, with the town contributing $200,000, again from the Kohl's money. If additional money is required for the bridge, it too will come from Seabrook's future extraction funds.

Although a considerable load is borne by an exaction fund that could be empty after the planned road improvements for DDR's project, the Planning Board and all three selectmen approved the amendment to the memorandum. Selectmen and Hawkins said recently they were comfortable approving the change. Hawkins and selectmen insisted the taxpayers would never be responsible for any additional money for the project, since only money from exaction fees would be used to pay off any additional expenses to get the job done.

According to Selectman Brendan Kelly, whenever going into such an agreements, "there are an unlimited number of what-ifs involved." All three selectmen and Town Manager Barry Brenner said accepting the change and its unspecified risk to future exaction fund money is worth it, if it means getting rid of the traffic problems and accidents that plague that portion of Route 1.