A Tale of Two Roads: The Continuing Saga of Subdivision Streets in Amherst Hills and the Meadows

Report on the Meeting of the Amherst Town Council, February 5, 2024, Part 2

This meeting was held in hybrid format and was recorded. It can be viewed here. 

Present
Mandi Jo Hanneke, Andy Steinberg, Ellisha Walker (at large), Freke Ete and Cathy Schoen (District 1), Lynn Griesemer and Pat DeAngelis (District 2), George Ryan (District 3), Pam Rooney and Jennifer Taub (District 4), Ana Devlin Gauthier and Bob Hegner (District 5). Absent: Hala Lord (District 3)

Staff: Paul Bockelman (Town Manager) and Athena O’Keeffe (Clerk of the Council)

The council reviewed the situations at two subdivisions built by Tofino Associates, Amherst Hills and the Meadows, and came to a different conclusion for each. The council referred the Amherst Hills roads to the Planning Board for a recommendation on whether the town should accept them as public roads. The council delayed a decision on the roads in the Meadows after a lengthy and often caustic discussion.

Roads at Amherst Hills Completed: Town Moves Towrd Acceptance 
One of the early issues that the Town Council dealt with in 2019 was a complaint from the residents of Amherst Hills subdivision off of Station Road that their roads were never completed and were now dangerous to walk or drive on. The subdivision was owned by Doug Kohl Construction and Kohl’s company Tofino Associates. Kohl died in 2010. Shortly afterward, local developer Ted Parker assumed control of the subdivisions for the Kohl family. Residents of the Amherst Hills Homeowners’ association received no satisfaction from Parker at getting their roads completed. The matter was turned over to the Planning Board, which decided after several lengthy discussions to rescind the building permits on nine unsold lots and require Tofino Associates to put $50,000 in escrow until the roads were finished. The road construction was started, and the lots released for sale in May of 2022. Now, with all the work done, Tofino has applied to have the roads accepted by the town.

The Town Charter requires that the Planning Board review the roads and make a recommendation to the council about whether the roads should be accepted as town roads. Therefore, the council unanimously referred the Amherst Hills roads to the Planning Board for a recommendation to the council. The portion of the subdivision in Belchertown has already been accepted as a public road by that town. 

James Masteralexis, representing the 32 Amherst Hills residents, supported Parker’s petition to make the subdivision’s roads public ways. He said, “The roads in this neighborhood have been completed. They’re in really good shape, and we believe that eventually you should accept these roads as public ways.” He added, “Our neighborhood has been through four years of legal wrangling in this matter. It’s been a long slog. I would ask the council to not delay in this matter.” He recommended that the Amherst Hills roads be considered separately from those in the Meadows, since the situations are different even if the developer is the same.

No Easy Solution to Fixing the Roads in Meadows Subdivision
As opposed to Amherst Hills, the Meadows subdivision, 28 houses on Hop Brook and Kestrel Lanes was completed in 2004. There are no building lots to withhold. In 2004, the Town Engineer listed three items that needed to be completed for the roads to become town roads. Parker said he did not find out about the required work until 2012, and does not know why the job was not completed in 2004. Meanwhile the roads have continued to deteriorate. The matter was evaluated by the Planning Board and referred back to the council to work out a solution with the developer.

To complicate matters, in 2001 the Planning Board required that Tofino put $10,000/lot, $130,000 total, in escrow as a bond to ensure that roads were completed. However, for unknown reasons, the town only collected $30,000 of this money. Parker speculated that no more was collected because there were only three small items on the punch list (i.e. the document listing the final work items remaining before a construction project is considered complete). He said Tofino refuses to pay more, even though he admits that Tofino owns the roads. He stated, “No town is ever obligated to accept the road as a public way. Without any guarantee that a road will be accepted by a town, is a developer then expected to be responsible for the maintenance of the road in perpetuity.” He explained that Tofino kept ownership of the roads, granting easements to homeowners, in order to make the conveyance to the town easier if the roads were accepted.

Several homeowners maintained that they are in legal limbo. They cannot repair roads that they do not own. Connie Kruger said the homeowners’ association has offered to contribute $140,000 toward road repair. She asserted that the town has $102,000 in escrow from Tofino for various projects, including $25,000 remaining in the surety for Amherst Hills. The total of the work is expected to cost about $400,000. 

Jesse Ferris, who purchased his home four years ago, said “We were very happy to move to the neighborhood. We were slightly less happy about the orange cone at the end of our driveway on top of a collapsed drainage hole, but we were told that the issue was on its way to resolution. Three years later, the manhole at the end of our driveway has completely collapsed, taking part of our front yard along with it. The post office has already filed two complaints with the town about the danger posed by the collapsed manhole in proximity to the mailbox.”

The councilors were not kind to Parker in their remarks. Pat DeAngelis (District 2) said, “First of all, to the other homeowners association [Amherst Hills], we’re not going to conflate them. But beware of the person you’re dealing with.” She continued, ”It does seem to me that the developer who didn’t pay the surety is responsible or fixing the roads, especially since you have a group of people who have purchased homes and are trying to live there and are willing to take money out of their own pocket to help solve the problem. And I hear the town saying we’re going to help. It’s kind of ludicrous to say, Mr. Parker, that your organization is not responsible.”

Parker denied that the homeowners could not fix the roads themselves. He said Tofino would gladly convey the roads to them if they would be willing to accept them. He also asserted that the normal lifespan of a paved road is 20 years, so the degradation of the roads was due to normal wear. He offered to contribute the money held in escrow, as well as the $50,000 or so left over in the surety from the Amherst Hills road repair, but he insisted that Tofino was not going to pay for a third of the repairs at the Meadows.

Andy Steinberg (at large) contended, “Tofino was expecting to pay $10,000 per lot that was sold, and by failing to pay it, or failing to have it collected by the town, has become unjustly enriched by that amount of money. Therefore, it seems to me that it should be rather embarrassing to Tofino, a business that wants to maintain the confidence of the community, that it has allowed that unjust enrichment to stay with it.”

Ana Devlin Gauthier (District 5) stated, “This is nuts! There’s a difference between a moving target and negligence. I get that the ball was dropped, but that doesn’t mean that the game was stopped. This company still has an obligation to do this. If we [the town] do the bare minimum, we’re impacting all of the residents of the town by adding a street which seems like it’s going to be in need of more repairs very, very soon, pushing back, possibly, the needs of others.”

Mandi Jo Hanneke (at large) added, “Mr. Parker, you keep saying, “I’m willing to do those three punch list items.’  It’s been 12 years, and you haven’t done those three items. What is stopping you? I don’t think anyone can trust your word at this point.”

DPW Superintendent Guilford Mooring said that there’s, “Never been a deadline put on a punch list. Normally, it’s taken care of pretty quickly. Mr. Kohl’s situation is probably something I’ve never seen before.” Town Manager Paul Bockelman said that the town could bill Tofino, but had no way to make them pay.

After over an hour of back and forth between the councilors and Parker and his associates, Bob Hegner (District 5) acknowledged, “We are at an impasse, and if we don’t break the impasse, we’re just back to square one.” Hanneke pointed out that Bockelman submitted a memo to the council with eight items that have yet to be addressed but must be in order for the case to be settled. These include providing the town with an updated subdivision plan and title certification for ownership of the roads and a detailed report from the town engineer on the state of the roads and what needs to be done for the town to accept them. She recommended continuing the discussion when those items were obtained. 

The council voted 12-0 to continue the discussion after the requested documentation was obtained, and the residents of the Meadows again went home without a resolution to their situation.

Amherst College Sign at Main Intersection Deemed Too Large
In a third, public way request, Seth Wilschutz of Amherst College presented a plan to place a large sign at the corner of South Pleasant Street and College Street. This intersection is actually part of the town common,and is not part of the Amherst College campus.. The 18 by 2 foot metal sign is aubergine in color with white lettering and would be placed on granite blocks with an 18-foot seating wall extending onto South Pleasant Street. The sign is part of a series of wayfinding signs that the college has placed around the campus directing vehicles and pedestrians and labeling buildings.

Pam Rooney (District 4) worried about the sign obstructing the vision of cars approaching the intersection from the west. She asked why it needed to be so big. Hegner shared this concern. The matter was referred to the Town Services and Outreach Committee by unanimous vote to develop a recommendation for the council The meeting was adjourned at 11:11 p.m. The council next meets on February 26.