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- The Forecaster
CUMBERLAND — Three days before the deal’s disputed deadline, a Maine Superior Court judge on Monday ruled that the potential buyers of 100 acres of shorefront property along Foreside Road can have more time to complete the sale.
The extension means the buyers, Peter Anastos and developers David and Nathan Bateman of Bateman Partners, won’t have to sign off on the purchase before knowing whether the town will pay them $3 million for nearly 25 acres of the parcel.
Justice Thomas Warren granted an injunction to the buyers – known as 179 Foreside LLC – which enforces their rights under the terms of an extension to the purchase agreement. The decision voids a requirement to close on the property by Thursday, Oct. 30.
The seller, Spears Hill LLC, had argued that a $15,000 extension fee was paid improperly, and so the sale of the 179 Foreside Road property should close this month.
Voters will decide in a Nov. 4 referendum whether to bond the town over 20 years, at an annual cost of $240,000, in order to acquire part of the property, formerly an estate of Phillips and Marion Payson. Spears Hill member Peter Robbins is a member of the family.
Supporters have said purchasing the parcel – including 2,200 feet of shoreland and a 200-foot pier – would accomplish the town’s longtime goal of providing public access to Casco Bay.
Opponents – including residents of the adjoining Wildwood neighborhood, whose private beach abuts the property – argue that the parcel is worth far less than the purchase price. They also doubt the feasibility of using the land for recreation, claim other areas of shoreline are better-suited for that purpose, and criticize the speed and transparency of the sale.
Now the buyers can adhere to the current extension of the purchase approval period, which runs through Nov. 7, and get one more extension, which would push the closing date to Dec. 7. By that time, the developers also hope to have site plan approval from the town.
Fifteen days are allowed for closing, which must be concluded by Dec. 22.
“We’re very excited,” Nathan Bateman said after Monday’s decision. “The opposition (against) public access threw a legal ‘Hail Mary’ today. … The judge saw completely through that, and now the town of Cumberland is going to have the opportunity to vote for public access, or against public access.”
Gerald Petruccelli, an attorney for Spears Hill, said that he wanted to consult with his clients before discussing any next steps.
David Sherman, an attorney for the buyers, said they sought the injunction “to prevent the seller from forcing them to close by a deadline that my client properly extended by paying an extension fee and by providing notice of an extension of the approval period.
“We’re seeking an injunction to prevent the seller from forcing the buyer to close without permits or approvals (from the town) in place, and my client bargained for the right to get those approvals prior to a closing.”
Sherman said that on Sept. 12, 26 days before the expiration of the approval period, the buyers’ brokering agent, Chris Lynch, wrote to the sellers’ agent, Sandra Wendland – both of Legacy Properties – to confirm when the approval period would expire. Oct. 8 was the original expiration date agreed upon by both parties, with closing required by Oct. 23, unless the buyer tooks steps to extend it, Sherman said.
Lynch wrote to Wendland on Oct. 2 to inform her he had received a $15,000 check from the buyers for the extension, along with a note expressing their intent to extend the approval period by 30 days, Sherman said. Lynch informed Wendland Oct. 3 that the check had been deposited into Legacy’s escrow account, asking that she confirm receipt, to which she responded “thanks,” Sherman said.
“There was no response from Ms. Wendland, following the receipt of this information, that somehow the delivery of the funds was improper, or that it was deposited in the wrong account, or that the check was made out to the wrong person,” Sherman said.
The buyers first heard of the situation on Oct. 17, nine days after the extension deadline had passed, and were then told the closing would have to occur the next week, according to Sherman.
With the matter going to trial Oct. 27, the closing deadline was postponed to Oct. 30, pending the judge’s decision on whether it could be extended further.
Petruccelli didn’t dispute that notice of the desired extension was given, but noted in a court memorandum that while the buyer delivered a check to its broker, the check was made payable to the broker, and not the seller.
“The actual issue is whether the fee got paid; and the fee did not get paid,” he said. “As a matter of physical and economic fact, if my client tried to spend a dollar of that $15,000 fee this afternoon to buy a candy bar, they would not be able to do it. The fee was not … paid over to the defendant at any time.”
Wendland’s expression of “thanks” was an acknowledgement of receiving Lynch’s message, and “not a confirmation that the purchasing power of that money is now in my hands, and I am free to deliver it to my principal.”
Petruccelli noted that “we don’t have the money, and the reason we don’t have the money is because Lynch has the money, and Lynch is on the other side of the line. And the question of whether or not we had a duty to tell Lynch how to advise his client, is turning things on their ear.”
The Bateman Group signed an agreement in June to buy the more than 100-acre Payson land, which was listed for $6.5 million. Should the sale be consummated, the town would buy its acreage from the developer.
A conservation easement on the property would remain in place. It allows up to 10 homes to be on part of the property (three currently exist), and for a sale to the town, Town Manager Bill Shane has said.