Beaver Brook Development:  One More Time

             Fred Whitburn's Revenge

 (In order to access and read the public documents cited,  click on the italicized  phrase.)

                                      By Mike Kirby

  I was at the Northampton city planning office the other day going through the big folders of documents generated by the Beaver Brook development out in Leeds over the years.

  There were oceans of paper.  Suddenly I remembered old Fred Whitburn, and laughed.  If Fred has full grounds’ privileges up in Heaven and could look down to see how Patrick Melnik is doing as he tries to develop the land Whitburn loved, he'd be one happy guy.  With every step he takes, local developer and lawyer Melnik seems to be sinking deeper into a huge bureaucratic and financial morass.

  Fred Whitburn was a 96-year-old retiree who used to own a small brown ranch house at the corner of Leonard Street and Route 9. Behind his house were 37 acres of forested land that fronted on Route 9 and was the backyard for many homes on Grove Avenue, West Center and Leonard Streets in Leeds.   On its western edge it went all the way back to Beaver Brook as it ran south from the golf course to Mill River, about a half-mile away.

  For many years everyone in the

neighborhood took the forest for granted, kids built tree houses on Fred’s land; people enjoyed walking and snowmobiling in his woods.   Fred didn't mind, but he hated developers.  He showed up with all the other neighbors when they protested the construction of the condominium complex off of Evergreen Street.   He never posted his land. Real estate agents told families who were moving into the area that Whitburn’s land was too ledgy and swampy to ever develop.   It was.

 As he got into his 90s, Whitburn became  a little paranoid. Not many people came to visit him any more. His only relatives locally were his sister and her husband, Bob Dostal, who lived over on Westhampton Road.  Only Father Vincent O’Connor from Saint Catherine’s and the Dostals came around.   Fred had a lot of guns in the house, and a brace of fancy pistols stuck down into the cushions  of his recliner so he would be all ready when the bad guys came out of the woods.  There was also lots of cash squirreled away in drawers, which meant quarrels with his helpers over money.

 The Dostals did his shopping and took care of Fred, to the best of their ability.  An older nurses’ aide who worked for VNA/Hospice, Richard LaRose, came in several times a week to give him a shower and keep him company.

 His brother-in-law told me that at some point Father O'Connor encouraged Whitburn to make a will and referred him to Northampton attorney Patrick Melnik, who was active in the church.   On March 21 l997, Fred Whitburn's will was drafted by Atty. Melnik, making the home health aide, Richard LaRose, Fred's executor.  Melnik's wife, Alice, and two other women witnessed the will. Fred signed it with a ragged "X." The will awarded Richard LaRose all the cash Fred had in the house. It also stated that "any previous cash or currency given by me to Richard LaRose was given freely and is his absolutely." The will left the Catholic Society for the Propagation of the Faith in Springfield $100,000, and the remainder of the estate was split three ways - one-third went to the Massachusetts Society for the Prevention of Cruelty to Animals, one third to St. Catherine's parish, and the final third to Father O'Connor, for his personal use.  It was quite a document.

                              A Visit with the Priest

 Back when I was writing my original series of articles in downstreet.net  (The Beaver Brook Series, Volume 1, archives) I went out to talk to Father O'Connor, since deceased,  about the $114,000 he had received from the Whitburn estate.  In our short, rather strained interview, he had no comment on this whole business, other than to say that Whitburn was a penitent, and he could not violate the confidentiality of their relationship. He acknowledged that he and the church had received money from the will, but could not comment in any way on the matter.

 If the church had no hard and fast rules about priests being involved in will-making, home health agencies do. One day, feeling badly that he had assented to being named in Whitburn’s will without getting agency permission, LaRose  went to talk to his supervisor at VNA/Hospice. Home Health agencies have strict rules about what their employees cannot do when it comes to a client’s finances.  They can't get involved; they can't become guardians or executors or anything that gives them signature powers over the patient's money.    LaRose's supervisor gave him the choice of losing his job or resigning his role as executor. LaRose elected to remain as executor, and his sudden firing set up a lot of turbulence inside the agency.

  Bob Dostal was in Florida when the will went down. Returning home, he received a certified letter from Melnik. He called the lawyer, and was told that Fred wanted Dostal to turn in his power of attorney. Dostal was out, and the lawyer and the home health aide were now handling Whitburn’s care. Fred had lost his old support network, which consisted of the Dostals and two professional organizations ,  VNA/Hospice and Highland Valley Elder Services. There's good reasons why home health organizations  are important. The first time someone gets sick or there's an argument, there can be real trouble.  And trouble commenced.

 LaRose hired a woman to look after Fred, but Dostal and a neighbor said there were problems. Arguments, accusations, gun waving. At one point Whitburn went into the Linda Manor nursing home and then wanted out. There was trouble with the last aide, and she left. The next morning Fred Whitburn was found on the floor, and he ended up back in the nursing home, where he suffered a fatal heart attack on March 28, 1998, a year after the will was executed.

 Three days after Whitburn’s death LaRose filed with the Probate Court to be the executor. On April 14 he returned notice of service to the court. Signing for him that ads were run in the Gazette appears to be Patrick Melnik. Notice of Service. This is an indication to legal minds that on that date Melnik was doing all the heavy lifting and paperwork, He was acting as LaRose's attorney.  Personnel at the court told me that only executors and their attorneys can sign this form.

 On July 13, LaRose filed an inventory of the estate. On that same day, the Beaver Brook Nominee Trust was formed. Declaration of Trust. Alice Melnik and her brother John Hanley signed for the trust and Patrick Melnik witnessed the declaration of trust.  At the time this happened, John Hanley was 59 and chairman emeritus of Scientific American, Inc., parent company of the magazine Scientific American. He was born and brought up in Northampton and educated at Annapolis and Temple University. His office address  at that time was on Madison Avenue; his home was at West 56th St. in New York City. He now has a new New York City residential address.

             Whitburn’s House and Land Sold for $315,000

 In August, LaRose billed the estate for clearing out the Whitburn house. The house and tract of land were valued by an appraiser at $315,000, and there were three bank accounts totaling $170,000. On Sept. 25, l998, LaRose deeded the 37-acre tract of land and the Whitburn house to the Beaver Brook Nominee Trust for $315,000, the exact amount at which it had been appraised.  It was never, to my knowledge, listed by any realtor.  If it had been, the estate might have made out better.  Five months later, Richard LaRose died of congestive heart failure. Deed.

 To sum up this ugly business, the old man's home health aide, acting for the estate, sold this valuable piece of property to a trust whose visible membership are principals  of Patrick Melnik's extended family. LaRose received nothing for it except the cash in the house, and he lost his job, and ended up cleaning out Fred's house for Melnik. His heirs got $10,000 for services rendered as executor.  On LaRose’s death, Melnik took over his role as executor and paid himself $23,000 plus for services and expenses to the estate.   Who are the actual beneficiaries of the Beaver Brook Nominee Trust? I didn't know that in 2001.

  I contacted the Massachusetts Board of Bar Overseers, and was told that the propriety of this transaction rested with the identity of the beneficiaries. If they are family members, yes there is something wrong; if they aren't, it's okay. The trustees wield decision-making power, but they do not necessarily benefit directly if the properties are sold.  Now in 2006, one of the beneficiaries has finally been identified.  On July 6, 2005. John J. Hanley, acting as trustee for the Beaver Brook Nominee Trust, sold 5.4 acres of Whitburn’s land that fronted on Route 9 to Patrick Melnik for $1.

 When I was working on the original series of articles, I gathered the basic documents in this case from Probate Court records and the Registry of Deeds, did a two-page summary of the legal events on the case and went to see Melnik. His offices are in a three-decker converted to offices on King Street, two doors from the old O'Connell Funeral Home. His secretary said he would see me on Monday, but on Monday morning when I showed up his secretary said he was tied up with other business and handed me this brief letter:

February 20, 2001

Mr. Michael Kirby: I have a fiduciary and confidential relationship with my clients that prevents me from speaking to you about any of their affairs and, therefore, I will not be able to see you.

From the tenor of the list that you delivered to me, I doubt very much that you are truly interested in the facts, and are only intent on disparaging reputations.

Richard LaRose was one the kindest, gentlest and caring human beings I have ever met. Your attempt to discredit him with false representation s is despicable. I can only surmise who put you up to this and hope to learn someday who fed you this false information.

Mr. LaRose is deceased and cannot defend himself. I, on the other hand, will not stand idly by if you publish false statements impairing my reputation. I am sure you are aware that I did not represent Mr. LaRose or the estate of Mr. Whitburn, or the purchaser of Mr. Whitburn's real estate when it was sold, and any omission of this from your list, implying otherwise, would be a deliberate falsehood. Mr. LaRose and the Whitburn Estate were represented in this sale by another attorney, who Mr. LaRose knew and who had no connection to me or my family.

 Sincerely,

Patrick J. Melnik Esq.

                        We Talk to the Other Lawyer

 Following up on Melnik's letter, I went over to see the "other lawyer," Roger Walaszek.   His notary stamp was on the deed. His offices on Gothic Street are about a block away from Melnik's. When I showed him the deed, he shook his head and said he had never had Mr. LaRose for a client, and that he had just witnessed his signature on the deed. He pointed at the letterhead on the document.

"Look whose name is on it, " he said. "That's not my letterhead."

But then he sat down and thought about it. The wheels were turning.

"Whose land is this we're talking about?" he asked. "Oh," he said, "Well, I remember now. Patrick had a conflict and couldn't represent this man. I covered for him in the transaction. We cover for each other when there's a possibility of conflict."

 "Well, "I said, "You must have a client file."

But he wasn't sure about that. That was an old case, he told me.

                A Worried Community Gets Involved

 In the late fall of l998, a pre-development map of the wetlands on Fred Whitburn's acreage accidentally blew into a neighbor's backyard. It triggered alarm throughout the close-knit Leeds community.  One of his neighbors worked  in construction, and found out that Hanley had filed for wetlands determination, the usual first step in developing acreage.  Selective logging by Karl Davies, Melnik's partner in a Chesterfield real estate development, began in January, l999.   The logging and its scars raised the neighborhood’s temperature right away.

 Twenty-five people showed up for the first neighborhood meeting, and many of them showed up at the next meeting of the Conservation Commission, where they asked that the logging be postponed.

 At one point a letter signed by neighbors found its way to Melnik's desk. George Kohout of Evergreen Road, who is now a member of the planning board, remembered how incensed Melnik was. He was angry that people were addressing their concerns to him, rather than to John Hanley, his brother-in-law.

 "What are you doing dragging me and my wife into this business?" he told Kohout. "This is not our development. We've got nothing to do with it."

 His denials were not completely convincing. All the Beaver Brook lines radiate from his offices at 110 King St. in Northampton.  The Beaver Brook Nominee Trust is located physically, not in New York City, but at 110 King St. Real estate bills on the property were sent to 110 King St. in 2001.   It appears to be Melnik's signature on the check to the city for the preliminary subdivision filing fee.  Check and comparison document.

 Grove Avenue in Leeds parallels the east bank of the Mill River, overlooking the abandoned rail bed that may some day become a bike trail to Williamsburg. The houses are mostly older and modest, and their additions look home-grown. It is a narrow street, 1,200 feet long, 20 feet wide, a cow path to a dead-end.   In the year 2000 when the battle with Melnik was going full blast, the street had the air of a revolutionary commune.  Practically everyone I met was an environmentalist, knowledgeable and diffident. The street is full of young people with computers and sophisticated skills, and they started meeting with other neighborhood people at the Leeds School as far back as December of l998 to plan strategy.

 The vote of the Northampton Planning Board in February, 2001 approving a 49-unit Beaver Brooks Estates development seemed to foretell that the battle was lost, and the woods beyond Grove Avenue would be peopled with ribbons. In the end, only one Planning Board member, Paul Diemand, voted against the preliminary plans for Beaver Brook Estates. He thought the neighbors were getting a raw deal.   It seemed that soon the bulldozers would arrive, and ultimately we would have one more American subdivision carved out of the forest. And, yes, the development would be no Levittown, it would skirt the vernal ponds and the wetlands. Over-engineered pseudo-Colonials would line the roads. There would be no-squeak floors, Anderson windows and domed skylights.

                   State Agencies Erect Some Roadblocks

 And then Boston came to the rescue.  Quietly Dan Keith and some local volunteers were out in the forest charting vernal ponds and conducting studies, they put their documentation together and went to MEPA and the Bureau of Fisheries and Wildlife.    On Nov 2, 2001, the State Fish and Wildlife people and the Endangered Species Program (NHESP) denied the developer's  proposal to construct a 54-unit development: it would have a negative impact on the habitat of endangered species.  Suddenly everything stopped, and the developer was writing letters to Boston and Boston was taking its time in writing back.

   In March of 2003 the planning board denied a Melnik attempt to divide the project area into long convoluted flag lots that had their houses built on the high land at the rear of the parcel using small bites of frontages out on Route 9.  On July 24, 2003, in an eight-page report, the state Environmental Protection Agency required that the developer file an Environmental Impact Report (EIR). Four vernal ponds were certified, which extended federal protection from development to the areas inside the project footprint. Two of the ponds were found to have Jefferson salamanders in them; it expanded the current endangered species area along the Mill River to include the developer’s parcels.

 Facing a lawsuit from an abutter on Grove Avenue, Melnik decided to avoid trouble with the Grove Avenue people by moving the project's back entrance about 500 feet north to Chestnut Street and buying a parcel with a four-unit apartment building that fronted on Evergreen Street. The land, however, would cost him dearly.  On Feb.18, 2005, Robert J. Kelley and Emily Kelley sold their 2.9-acre lot to Patrick J. Melnik for $575,000.

 Today the much-revised 31-unit Melnik/Hanley development does a lot less damage to the habitat than the original 49-unit plan.  That plan had lots right up against the vernal pools, lots with wetlands on them and a through road that would have made a splendid cut-through from busy Route Nine to Grove Avenue and all points west and south.   A smaller group of neighbors were there the other night at the hearing.  Their opposition continues to the smaller development, although the grounds for it are somewhat narrowed.  Now plans call for Chestnut Street to be extended into the forest, and there will be a 870-foot cul-de-sac running off of it, and there are cul-de-sacs off the cul-de-sac.

 Out on Route 9 there will be a six-unit condominium, with no road linking the two developments. John Hanley has sold some of the land.  The 5.3 acre lot that the six-unit condominium will sit on once belonged to Fred Whitburn; it now belongs to Patrick Melnik.   The expensive land that gives the developer frontage on Evergreen Street also is owned by Patrick Melnik, which makes this project now officially a joint Melnik/Hanley development, a fact now acknowledged in their correspondence with Boston.

 Quite a bit of land will be under conservation restriction, but access to it will be difficult for anyone but the new property owners.  About $2,000 a unit will be paid to the city for a traffic mitigation fee.

The other night Melnik’s latest plans for the inner portion of the project were rejected.   He can come back, however, with changes, and he probably will.  Representing Melnik at the hearing was his son, Patrick Jr. who now has graduated from law school and joined the family business.  As of February he was living in the 4-unit apartment complex on the land his father bought from the Kelleys. But a fire there badly damaged his apartment.

  Patrick Melnik Sr. is obviously sick of the delays that plague this project, and told the planning board that he hoped that weeks rather than months would transpire before their next hearing. The first hearing dealt with the part of the development that fronts on Route 9, and it looks likely that the board will approve this segment of the project because it is relatively conventional and will have minimal traffic impact.   The other part of the plan with all the cul-de-sacs, however, faces rougher water. One board member remarked that he had been looking at pretty much the same bad plan for many years. The “common driveways” and the larger lots that they feed will probably not be approved.  The DPW has refused to give the developer a storm water management permit; there seems to be reluctance on the city’s part to let him use city water because of pressure problems, and a promised letter from the people who look out for endangered species has yet to arrive from Boston.

 The conservation commission, in a letter to the planning board, echoed these concerns; it wants the planning board to enforce the 500-foot limit on cul-de sacs, but one neighbor said that the board, at last report, was leaning toward granting the developer this important waiver. There was good news and bad news said one neighbor who sat through it all.

  The next planning board meeting on Beaver Brook will be May 25 at 7:30 pm.  What the City could look at is the thorny question of whether the developer has, fact, a clear title to Fred Whitburn’s property.