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Developer fires back in fight over Amherst subdivision

  • Amherst Town Hall



Staff Writer
Thursday, November 14, 2019

AMHERST — A Hadley developer has filed a lawsuit in state Land Court against 50 homeowners and property owners in an Amherst subdivision aiming to protect the business’s ability to construct homes or sell nine lots in the Amherst Hills development.

The lawsuit is the latest skirmish in an ongoing dispute in which residents, led by James Masteralexis of Linden Ridge Road, recently asked the Planning Board to reverse most of its May decision to release 13 lots owned by Tofino Associates LLC from an approved covenant recorded in the Hampshire County Registry of Deeds July 2, 2003.

The neighbors have argued that Tofino should be required to address the deteriorating condition of subdivision roads, include Linden Ridge, Hawthorn Road and Concord Way. The town’s Department of Public Works has notified residents that the continued plowing and winter road maintenance may end if extensive potholes aren’t repaired and drainage issues with the roads aren’t fixed.

Tofino filed its complaint last week seeking nonbinding arbitration with those who live in the neighborhood near the Belchertown line, or mediation through the Real Estate Bar Association of Massachusetts.

The lawsuit comes after the Planning Board voted 6-0 Oct. 30 to advise Building Commissioner ​​​​​Rob Morra that ​​no new building permits or water and sewer connections should be issued for nine Tofino-owned lots in the subdivision until the roads are fixed. This advisory from the board is in place until at least Nov. 20.

Town engineer Jason Skeels estimated in 2017 that it would cost $288,895 to bring the roadS up to town standards, a cost that may have increased since that time.

The lawsuit states that the appeal made to the Planning Board was “de facto legal action against Tofino” and a “lot owners’ revolt” and that the current homeowners, as Amherst Hills Homeowners Association, have a responsibility to pay their fair share of subdivision private road maintenance “to fulfill their obligations under recorded documents.”

“The operative effect of the Planning Board action sought and obtained by Masteralexis’ action was to effectively enjoin Tofino from selling or building on subdivision lots and to force Tofino to bear the full financial obligations of private road maintenance,” the lawsuit reads.

But Mark Tanner, an attorney with Bacon, Wilson PC in Amherst, said Monday that Tofino should be paying the costs of building the roads, since it installed the base coat and first layer of asphalt several years ago. With the development still incomplete, Tofino never finished the roads to specifications in which the town could accept them as public ways.

Tanner added that there is no evidence any covenant says the homeowners association has to take care of the roads until they are finished.

“The argument Tofino is making on its face, quite frankly, is absurd,” Tanner said.

Michael Pill, an attorney with Green, Miles, Lipton LP of Northampton, who represents Tofino, said Monday that he believes the Planning Board was misled by Masteralexis.

“This is a property rights dispute that involves lot owners under covenants,” Pill said. “It doesn’t belong before the Planning Board.”

Thomas Reidy, also an attorney with Bacon Wilson PC, told the Planning Board that homeowners are in a bind because their safety, especially this winter, could be compromised by lack of plowing and treating roads.

He urged the Planning Board to rescind its release of lots for Tofino. “There could be irreparable harm if nothing is done,” Reidy said.