SPRINGFIELD — The owners of the former Mount Tom quarry are asking a U.S. Bankruptcy Court judge to toss out a 2002 agreement that gives the state an option to claim the property.
Attorney Jonathan R. Goldsmith, representing Mt. Tom Companies LLC and its two principal owners Matthew L. Donohue and Timothy P. Kennedy, told the court during a hearing Friday he intends to file motions asking that the agreement be voided because it is not contained in the deed on file with the Hampden County Registry of Deeds.
Goldsmith acknowledged there was an agreement at the time of the sale to give the state the option to purchase property in the future.
“Under bankruptcy law, we can have it declared void because it was not recorded,” Goldsmith said.
He cited section 544 of the U.S. bankruptcy code, which allows trustees to avoid transfers of property that were agreed to prior to the declaration of bankruptcy, and Massachusetts General Law chapter 184, section 25, which frees real estate owners from an “indefinite reference” attached to a property if the owner was not originally a party to it or was not notified of it.
“The intricacies of bankruptcy law are very unique,” he said. “If it were not in bankruptcy, we would not have this argument. We would be bound by the option to purchase.”
Goldsmith said he would file his motions with the court by next week, and then it will be up to Judge Elizabeth D. Katz to decide.
Carol Iancu of the Massachusetts attorney general’s office, representing the state Department of Conservation and Recreation, told the court that Goldsmith’s argument “doesn’t hold water.”
“The DCR is absolutely entitled to the title, a clear title free of encumbrances,” Iancu said.
Under terms of the original sale in 2002, the state purchased 144.7 acres of property that used to be the Mount Tom ski area. The land was purchased to preserve the mountain in its natural state and for outdoor recreation.
Under terms of the agreement, Mt. Tom Companies, which owns the 16-acre quarry site, was allowed to continue to mine rock from the site for 10 years. Once it ceased being a quarry, the state was entitled to claim the property at no cost.
It ceased operations in 2012.
Ianco said it is important to take into consideration the context of the sale of 381 acres of the former ski area to federal, state, and non-profit organizations for a combined $3 million was to protect and preserve the mountain.
The state DCR formally moved to exercise its option on Dec. 7, giving its 60-day notice that it intended to acquire the property on March 25. That same day, Mt. Tom Companies LLC filed for Chapter 11 bankruptcy protection in the face of debts totaling $420,000.
The largest amount owed is $327,263 owed the city of Holyoke in property taxes dating back to 2013. The company also owes $93,336 to Site Reclamation LLC.
Site Reclamation is the sister company to Mt. Tom Companies, and is also owned by Donohue and Kennedy. It also purchased the adjacent Boys and Girls Club property in December for $100,000. Under terms of the purchase of the parcel by the club in 2002, DCR had the right to make a counter offer against any offer to purchase the parcel on Mount Tom. The six-month window to make a counter offer lapsed in December allowing Site Reclamation to acquire the parcel
The point of contention involving the quarry site has to do with its future.
Donohue and Kennedy want to operate a for-profit venture were the quarry hole will be filed in with clean fill from regional construction sites. In a period of 20 years or so, the quarry would be filled in and the original slope of the mountain restored.
DCR is interested in preserving it as it is but with a few safety precautions, including warning signs and a safety rope on top of the 160-foot ledges. The property since it ceased being a working quarry has become home to rare and endangered species and plants.
Iancu said refilling the quarry would harm the habitats that have developed there, and would also expose areas residents to increased truck traffic and vehicular exhaust.
To fill the quarry hole would mean 23 to 30 trucks a day driving in and out of Mount Tom for the next 20 to 30 years, she said.
Iancu also that any plan to fill in the quarry would require multiple permits for state and local agencies, and as far as she knows, none have been sought.
“There is a lot of uncertainty if this project is ever permitted to go forward,” she said.