Jean Perry, Neighb News Correspondent
The Fairhaven Select Board and members of the Rogers Re-Use Committee were blindsided by the news at he Select Board’s June 9 meeting that regardless of any lease agreement with SMEC or Town Meeting approval to borrow $475,000, nothing can move forward until a judge issues a decision in a pending civil lawsuit filed by New England Preservation and Development, LLC and Zachary Mayo against the Town of Fairhaven.
Town Counsel Tom Crotty announced during the 6/6 morning meeting: “As a result of the failure of Mike Ristuccia and his grandson’s project and the cancellation of that agreement with them, they filed suit against the Town claiming that the Town is obligated to sell them the Rogers School building.”
Mr. Ristuccia is also on the Fairhaven Board of Health.
As part of that lawsuit, Mr. Crotty said, the plaintiff filed a Memorandum of Lis Pendens, which serves to notify any potential buyers of the pending lawsuit affecting the property’s title.
“Which they have to prove in court,” Mr. Crotty said, but, nevertheless, “Anybody that does anything with the building at this point does so at their own risk.”
Mr. Crotty’s opinion is that Mr. Mayo has “very little chance … of succeeding on that claim, but it’s still there; it’s still pending.”
On February 25, attorney for the Town, William Harrington, filed a special motion to dismiss the complaint and dissolve the memorandum of lis pendens, but months have gone by without a judgment. Mr. Crotty said he was not sure why it was taking the judge so long to respond, and he has consulted with Atty. Harrington on ways to expedite the decision.
Select Board member Bob Espindola, acting as chair while Selectboard Chairperson Daniel Freitas attended the meeting remotely, said he thought the chosen representatives for negotiations with SMEC — Selectboard member Keith Silvia, Interim Town Administrator Wendy Graves, and Mr. Crotty — were supposed to meet with Rogers Re-Use Committee members Susan Loo and Doug Brady and SMEC representatives ahead of the Wednesday morning meeting, but that did not happen. In fact, Mr. Crotty said he had not been consulted on the matter at all until Monday. He said the legal matter could still take two to three months to resolve.
“Then, obviously, we can’t put any money into anything until that’s settled,” said SMEC’s Executive Director Catherine Cooper. “Whether it has any shot or not, we obviously can’t do that while all that is pending.”
She said it was a timing issue for SMEC, having already spent time negotiating a deal that could potentially fall through. SMEC needs to find a space for its program and time is of the essence.
Mr. Espindola said he would not advocate the Town move forward with any spending either at this point, understanding that there are a number of “unknowns.” He said he could not advocate for the project to Town Meeting.
Mr. Crotty, Mr. Freitas, Mr. Silvia went back and forth a bit, blaming each other for the lawsuit suddenly gumming up the works.
SMEC agreed to send a letter expressing interest that the town could use to possibly speed things up in the court.
“This is a new wrinkle,” said Mr. Espindola, but suggested that if the issues can be resolved the matter can be taken up at the special town meeting scheduled for the fall
Mr. Freitas asked why, during the board’s third or fourth meeting negotiating a lease with SMEC, is the board just finding out about the memorandum of lis pendens. After several discussions and the board is just now finding about the Town’s inability to move forward with a deal. He mentioned Mr. Ristuccia by name.
“I need to find out why we had you at several meetings,” he said to Mr. Crotty, “and third or fourth meeting now, and we’re finding out that we can’t do anything anyhow. The other three meetings were useless, and we should’ve known that information then instead of now … in the eleventh hour [we are] finding out something different from you.
“It is you – you are the attorney for us,” Mr. Freitas said to Mr. Crotty. “We should’ve known this prior to.”
Mr. Crotty said the lis pendens was filed in October 2020 and that “this has been common knowledge for the [Select Board] for months and months and months.”
“I know we knew about this … problem,” said Mr. Freitas. “But when we started talking about coming to an agreement with SMEC … I think we should’ve been told about that at the beginning that this was going to block this, not now…. I wanted to know prior to, not now. We should’ve known a week or two ago that we shouldn’t even be entertaining this. I think that’s what’s my problem”
They could make it about “who knew what when,” said Mr. Crotty, but the deal had been in the works far sooner than he was asked to provide any input. The entire deal was being made without his involvement, he said.
“I wasn’t informed or asked an opinion; no one suggested that I be involved in the process,” said Mr. Crotty, adding that he was “brought in at the last minute.”
Mr. Silvia said Mr. Crotty was consulted during the last negotiations with Arch Communities, LLC and that when asked, Mr. Crotty said it was OK to negotiate with them even with the pending legal case.
Mr. Crotty said that is correct, they certainly could “negotiate,” and having a signed agreement to lease the building with SMEC would actually be an advantage to the Town as it could act as the basis for a request for the judge to expedite the case. Even just a letter of interest from SMEC could do the trick, Mr. Crotty said.
Just when it seemed SMEC had rescinded its offer to continue negotiating a lease, SMEC offered to submit the letter of interest in hopes that Mr. Crotty could nudge the judge to expedite a decision.
Even if SMEC were to look elsewhere, although space has been difficult for them to come by, they would still be delayed in setting up a space for their program in time for the next school year. Right now, the 2022-2023 school year is the likely time frame. Even a special town meeting before or during the fall could assist in sealing the deal once the judge issues a decision.
“I think this is a shame this is happening,” said Mr. Freitas. “It’s kind of embarrassing and we’re missing another opportunity and we’ve got to stop missing these opportunities.”
Mr. Espindola reiterated that Ms. Graves and Mr. Silvia were supposed to have met with Mr. Crotty before the meeting, but there was a “breakdown” of sorts.
Crotty said that if he had been invited to participate months ago, he might have been able to expedite the judge’s decision ahead of the present day.
“The timing now is unfortunate,” he said.
He added that there would be no harm in still seeking Town Meeting approval for the borrowing ahead of a signed lease agreement.
“Communications have been very poor at this point, and we need to fix that,” said Mr. Crotty.
The next day during a morning 6/10 meeting on the subject, Mr. Silvia motioned to recommend the article to Town Meeting, but Mr. Espindola urged the board to wait until it meets with FinCom Saturday before TM.
In the end, Town Meeting rejected the article overwhelmingly, 103-48.
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