LOWE'S Surrounded by Controversy
Read about our new neighbor.

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What's Wrong with "the Deal"?

Hadley Neighbors has reviewed "The Deal" with the assistance of an experienced municipal lawyer and found several flaws with this agreement that call into question its enforceability and the favorability of the terms to the town:

Page 2: The deal states that the developer will limit the building size to 181,000 square feet "after the relevant appeal period pursuant to M.G.L.A. c. 40A sec. 5 has passed without appeal." This means that if anyone, even someone without legal standing, files an appeal, the deal for a limit on building size is off. The filing of an appeal is an event that is completely beyond the control of the town or the developer. And, an appeal wouldn't even have to be successful to void the deal. Instead, this clause acts as a kind of insurance policy for the developer by discouraging any objections to the rezoning. After all, who wants to be the person who caused the town to lose out on limiting building size?

Page 2: The deal states that the developer will withhold payment of the $150,000 APR gift until a building permit is issued by the town. So if anything goes wrong with the permitting process, the deal is off. A better arrangement for the town would require the developer to put the $150,000 immediately into escrow as a show of good faith; or make a payment of $100,000 upon passage of the rezone and then remaining $50,000 upon issuance of the building permit; or pay the entire amount immediately upon passage of the rezoning.

Page 4: The deal fails to specify that Hampshire County is the exclusive legal venue for any litigation, and that the trust agrees to personal jurisdiction in Massachusetts. Without these provisions, the developer and/or trust could void the deal by simply incorporating in another state. Not only would this mean no money, but no restriction on building size either.

Page 1: On the third line from the bottom, the sentence "NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged..." indicates that funds have been received. They have not.