Multiple Activities On- and Off-site
by John DiCocco
Excavation and foundation work continues at the Bradford, the apartment and retail complex in Cushing Square, previously known as Cushing Village.
However, the contaminated soil remaining from the demolished Tops Cleaners continues to be a problem and has not yet been treated to a level that allows it to be handled as non-hazardous waste. A new round of tests is pending.
A Massachusetts Department of Environmental Protection (DEP) site visit in early October found a new area of potential contamination. Since DEP visits infrequently, and Toll/Nauset Construction (the primary contractor) hadn’t flagged this area on their own, it raises a question about whether more hazards remain uncovered.
Due to slower progress, the town’s licensed site professional (LSP1) John Thompson, also visits the site less often. The town still awaits the results of pending environmental tests on soil contamination, unresolved since the last report in September.
Despite claims by Toll that their construction is not responsible for a rash of rat sightings in the surrounding area, it is quite common for a large construction project to displace and disperse rodent populations. Water and sewer replacements do the same. Toll says that they have not had complaints from immediate neighbors.
The Cushing Square Neighborhood Association (CSNA) is exploring this further, and says rodent control measures in effect on the site would most likely benefit the immediate neighbors, but it would not be surprising to see the most new rat activity a bit further away.
And there’s off-site action as well.
CSNA continues to push for clarity on Toll’s plans regarding the safety of the Common Street perimeter barrier. Vertical drops of 20 feet or more are protected only by a flimsy chain link fence, where small children regularly walk to pre-school. Toll has finally acknowledged the issue, though they have not provided either a clear plan on their planned actions or an explanation why they believe no action is necessary.
Planning Board Resignations
Changes underway at the Belmont Planning Board (PB) could affect future oversight of the Cushing Square development, as well as other Belmont projects. In October, three members, Raffi Manjikian, Barbara Fiacco, and chair Liz Allison, resigned. The board requires four affirmative votes to approve any special permits.
Manjikian and Allison were also questioning Toll’s characterization of some spaces as “dens” or “studies,” when they could easily be seen—and used—as bedrooms, thus getting around the town’s prohibition of three-bedroom units in the development. With their resignation, it’s unclear whether other PB members would continue the query.
“Hopefully,” said CSNA’s Doug Koplow, “the Board of Selectmen will step in quickly to identify strong replacement candidates. In the meantime, it’s likely that CSNA will need to do more on its own to ensure that the project runs smoothly and that we don’t see any erosion in permit conditions that lead to a larger, less durable, or cheapened building project.”
Add to all this a lawsuit.
Starr Sues Toll Brothers
On September 9, Chris Starr, as Smith Legacy Partners, LLC (SLP), the previous developer of the site, filed suit against Toll Brothers for increasing the cleanup budget significantly without his agreement.
Changes underway at the Belmont Planning Board could affect future oversight of the Cushing Square development . . .
The original September 2016 agreement between Starr and Toll assigned $1.3 million to SLP for the cleanup, with any changes to be mutually approved by both parties. (Starr would pay this cleanup in exchange for the right to manage the leasing of the retail spaces in the complex.) Toll claims the cost has now risen to $4.2 million. SLP seeks $20 million in damages. Starr asserts there was little to no documentation of the change in procedure and no changes to the soil at the site that would precipitate the change.
Starr alleges Toll is “using these unjustified increases in environmental cleanup costs to eliminate our retail option and participation in the future of the Bradford,” as quoted by the Belmont Citizen-Herald.
Starr was on the other side of a similar suit he brought against the Price family, which previously owned Tops Cleaners, alleged source of the original contamination. (The owner died in the midst of the litigation, and the case continued against his estate.) In that case, Starr sought compensation of $8.3 million for cleanup, including $4.8 million for future costs. The judgment, concluded in 2010, denied most of Starr’s claims point by point, allowing only just over $650,000 in what were deemed legitimate costs.
The judge, evaluating the reasonable costs for environmental cleanup, indicated that in-situ treatment (where chemicals are mixed onsite to reduce contamination to below-hazardous levels) was expensive and duplicative, and that soil removal was the most appropriate treatment as well as likely to be the most cost-efficient.
However, since Toll acquired the property from SLP, Toll says the DEP has required that the Tops Cleaners portion of the site be neutralized by Toll before removal. There have been multiple treatments, and the soil is still being mitigated as we go to press. Toll has not indicated whether this will affect the project timeline.
Town has Lost $10 Million
The original expected date by which the SLP buildings were to have been fully leased was December 2008. The cost of this delay to Belmont in terms of property taxes forgone is now approaching $10 million.
The planning board asked Toll about the impact of Starr’s suit on project progression; Toll said there would be no impact.
Belmont Citizens Forum will continue to monitor this project.
1. LSPs are scientists, engineers, and public health specialists with significant professional expertise in oil and hazardous material contamination. They are licensed to act as de facto regulators on the site.
John DiCocco is the editor of Belmont Citizens Forum Newsletter.