Salem End Rd Waterfront Property Developer Hides 80% of Lease Critical to Dover Amendment Approval

In the ongoing saga of 356 & 368 Salem End Rd, which is the clear-cut waterfront property near the bridge over the Stearns Reservoir, the developer has finally disclosed some vestige of a lease with New England Center for Children (NECC).

This lease is the document, which is essential to proving that there is a legitimate Dover Amendment project planned for the site.

For background on this residential development project which has brought an entire neighborhood into conflict with the developer, NECC and the city zoning authorities, see:

Framingham Zoning Board of Appeals Heads for a Showdown on Salem End Rd Waterfront Property

The remarkable fact is that the developer and NECC have not provided a lease which could be used to determine the fate of the proposed project.

Instead, they have provided a fragment of the lease. The full document, containing the ‘lease’ that was submitted to the Zoning Board of Appeals (ZBA) can be found here:

https://webapps.framinghamma.gov/WebLink/DocView.aspx?id=2506062&dbid=0&repo=Framingham

The ‘lease’ portion of the document has been extracted out for viewer convenience and can be seen here:

https://drive.google.com/file/d/1NkjhyG7_cF-Hb3sLCMTMq_95Gb1Pm6An/view

Among other things, the ‘lease’ has the following problems:

1. Its page numbering shows that it has at least 39 pages, but only 13 are provided.

2. Those 13 pages are heavily redacted, so that only about 2/3 of those pages can be read.

3. There is no signature page for the lease.

4. The important Agreement clause is entirely blacked out

5. The building is not specified in any way that a normal lessee would need to know before leasing. That includes Architectural Plans and Specifications and a Construction Management Plan.

6. A normal escape clause for the case where those plans cannot be agreed upon is likely hidden in a redaction.

7. The rent is redacted.

This is a small set of a very large number of problems.

Here is a visual of the 13 pages disclosed by the developer and NECC, with redactions shown in black.

Remember that there are at least 26 other pages, in the lease but not disclosed.

The question now is:

What will the ZBA do with this?

It is quite obvious that no one can determine with any confidence that this ‘lease’ aligns with Dover Amendment requirements.

There could be a redacted clause which allows NECC to withdraw from the lease at any time. There could be many problems. which a commercial real estate expert, or a good lawyer could enumerate, as noted above.

A simple approach would be for the ZBA to require disclosure of the entire lease in order to proceed in a proper manner.

Then everyone would know what was really going on here.

The worst outcome would be for the ZBA to OK this project, and punt it to the courts, where it seems certain that the lease would have to be disclosed in its entirety, as a Dover Amendment analysis by the courts would have to have the full facts.

The problem with the ZBA punting the matter to the courts is that the burden of defense of this open space would shift to the neighborhood.

That would be a giant problem.

The neighborhood does not have the resources of the developer, or the city, or NECC, to fight this battle, which could go on for a long time, and cost tens of thousands of dollars.

However, there is neighborhood resolve to engage in that battle and endure that financial hardship.

But how much fairer it would be for the ZBA to say NO, and let the developer and NECC fight the city on the matter?

In the end it’s up to the ZBA to choose wisely here, shouldering the full burden of its responsibility to do what is sound and protects the interests of the Framingham community.

Note on NECC Resources

One should be aware that NECC has substantial financial resources, as evidenced by its 990 non-profit tax filings. See:

https://projects.propublica.org/nonprofits/organizations/42708762

NECC has net assets of about $79 million, and its administration is highly compensated.