DCR sued by Town for Jerry Jingle
Published on December 7th, 2005
Alleging that former MDC Commissioner David Balfour illegally created Jerry Jingle Park for the benefit of a local restaurateur, the Stoneham Selectmen filed a lawsuit in Superior Court against the state's Department of Conservation and Recreation (DCR).
Endorsing the legal action against DCR - which inherited the former MDC after Gov. Mitt Romney reorganized the agency - three Selectmen are similarly named in a separate suit also filed last August in Superior Court which seeks damages on behalf of 24 private citizens as taxpayers residing in nine separate counties across the Commonwealth.
According to Selectman Cosmo Ciccarello, who is the lead plaintiff in the private suit and a major proponent for the separate town action, the legal course was considered a last-resort effort after state officials repeatedly refused to consent to the town's demands that it be reimbursed for tax revenue lost through the purported sweet-heart deal.
"It really is a shame," said Ciccarello of the need to pursue a remedy in court. "But let's face it, this was a sweet-heart deal and everybody knows it. They took land under conditions that were not for the public's benefit. It was for a private use."
"It was done under false pretenses. 25 percent of that park is on the gas station's property. And that 25,000 square foot park is really nothing; it's a parking lot for [J.J. Grimsby's]," the seventh-term Selectman charged. "It's up to the courts now to decide what to do, but we want the taxes we lost from that land."
A DCR spokesman declined to speak with The Stoneham Independent about the two suits, claiming the agency's policy was to refrain from commenting on legal proceedings.
The Selectmen's allegations that Balfour swiped the currently designated park land through an eminent domain proceeding to increase the parking area for his friend Robert McAree, an owner of J.J. Grimsby's, is nothing new to Stonehamites.
However, for the first time, the recently filed lawsuit links those accusations to official MDC documents issued both prior and after the government seizure of a significant portion of the 25,000 square foot park from Michael Bugazia, the owner of an adjacent gas station.
According to the suit, Balfour "concocted a scheme" to assist McAree in avoiding increased costs for a parking area at the restaurant, the use of which was leased to J.J. Grimsby's by the gas station owner.
To do so, town officials claim, Balfour and MDC employees purportedly commenced an eminent domain proceeding to seize the land and then grant a permanent easement to Grimsby's for the parking lot.
First proposing that the land-taking was to create a tot-lot in June of 2002 and then later for a "passive open space that fits with the Fells", the MDC then abandoned its plans for granting the easement and instead sought a favorable lease agreement with Grimsby's after the Selectmen challenged the use of the site, according to the suit.
According to an appraisal of the approximately 25,000 square foot land parcel sent to MDC General Council Thomas Gray on June 13, 2002 from the Reynolds Company, a Quincy-based real estate appraiser, the total value of the property in question was approximately $450,000.
However, the state agency in turn ended up doling out $675,000 for the fee interest in the land, nearly 35 percent above that estimated worth. In addition, according to a March 10, 2003 memo to Gray from Francis D. Faucher, the MDC's Deputy Commissioner, the estimated cost for creating the resulting Jerry Jingle Park totaled over $150,000.
Of that construction cost, the centerpiece of the parkland, a wooden gazebo, carried a $7,600 price-tag, 4 percent of the overall building costs and less than 1 percent of the total acquisition and construction expenses.
In addition, the lawsuit alleges, of the original 25,000 square feet of open-space or parkland described by the MDC, over half has been paved over for a parking lot, which currently has restaurant signs posted about it warning, "Parking for Grimsby's Restaurant Customer's Only; All Others Towed".
"The so-called park as it is constructed and landscaped...actually consists of only 25 percent of the land, configured in a rectangle of 6,000 square feet," the town's lawsuit reads.
"In an attempt to conceal the fact that over 50 percent of the so-called 'park' was actually being paved for parking for the restaurant, the MDC undertook a scheme to have its contractor, at public expense, illegally plant grass and provide curbing...on the gas station owner's land."
"This area...remains in the gas station owner's title, and is available for his use, with no public rights thereon. In fact, the gas station owner in October 2002 had a concept plan prepared showing a proposed new gas station with a Dunkin Donuts," the suit furthers. "The...proposed traffic lane shown on that plan runs within arms reach of the gazebo."
In a further attempt to offset any significant charge to Grimsby's associated with leasing the parking lot area from the MDC, a legal provision was included allowing the restaurateur to offset the license expenses with any maintenance costs, town officials allege.
On May 7, 2003, that license fee was reportedly set at $1400 a month, but was allegedly reduced the next day to "$590 per month, retroactive to December 1, 2002, again reduced by Grimsby's cost of maintenance."
According to a Dec. 1, 2003 letter sent from McAree to the MDC, he paid nothing for the cost of leasing the property in a two-month period between Sept. and Nov. of that year, claiming that "a total of $2205 was deducted from the license fees due of $1770."
"P.S.," McAree wrote, "I spoke this morning with Ken Collette. I called in response to a letter from him requesting actual canceled checks as proof of maintenance expenses. He agreed that since we are still trying to iron out the billing and payment procedures, all documentation will be submitted by mid-January 2004."
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