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78 Barnum Road in Devens
October 17, 2024
Ascend files $5M lawsuit against landlord of planned Devens manufacturing facility, claiming asbestos and compliance issues
Photo | Courtesy of Ascend Elements
Raw materials derived from recycled batteries at an Ascend Elements facility.
Westborough-based Ascend Elements has filed a lawsuit seeking $5 million in damages against the owner of a Devens building the company intended to turn into a manufacturing facility, the result of a months-long dispute between the two parties over the condition of the building.
Ascend claims it signed a 10.5-year lease for an approximately 70,000-square-foot facility at 78 Barnum Road commencing on Nov. 1, with the intent of turning the building into a manufacturing facility as part of its efforts to decarbonize the battery supply chain, but the owner of the property failed to complete work the owner promised to complete within 60 days of the the lease’s execution, according to the lawsuit.
Ascend claims the landlord had an obligation to perform a wide variety of work at the site but failed to deliver, including ensuring the building was compliant with the Americans with Disabilities Act, removing all asbestos, removing all of the landlord’s items, and fixing a garage on site the company claims is dilapidated, according to filings made in Middlesex County Superior Court by Ascend on Oct. 1.
The property is owned by 78 Barnum Road LLC, an Avon-based entity managed by Michael Lombardi, who purchased the building in 2014 for $1.78 million, according to Worcester District Registry of Deeds records.
Ascend declined to comment on the matter, citing a policy of not commenting on pending litigation. The facility is separate from 39 Jackson Road, a site the company intends to occupy as its headquarters following a move from Westborough. Ascend originally planned to move by September, but the move has not been completed, according to the company.
Robert Meltzer, a Concord-based attorney with Mountain States Law Group hired by Lombardi to respond to Ascend’s initial claims, did not respond to a voicemail Thursday from WBJ requesting comment.
Court documents show how the dispute has played out over the course of 2024, beginning with a letter sent to Lombardi from Ascend’s counsel on Feb. 23, which said the company was terminating the lease after being unable to obtain an occupancy permit from Devens, due to what it says was deficiencies the landlord was obligated to fix.
In a response six days later, Meltzer wrote Devens officials had told him there were no issues with the certificate of occupancy or ADA compliance at the site, calling the allegations levied by the company absurd.
Lombardi had no obligation to assist with compliance-related issues stemming from Ascend’s pending buildout of the facility, suggesting Ascend had buyer’s remorse over the lease and offering to negotiate a buy-out, Meltzer wrote.
Months later, a Sept. 4 letter included in court documents from Ascend’s counsel to Lombardi stated the two parties had attempted to enter a settlement but were unable to reach an agreement and reiterated demands for alleged deficiencies at the site be addressed.
Ascend’s letter claimed asbestos at the site had not been removed and included pictures which it claims shows the site was not broom-ready as promised by the lease, including debris, leftover equipment in the garage, and a large puddle Ascend claimed was the result of a leaky roof.
Meltzer once again dismissed Ascend’s claims in a follow-up letter from Sept. 9, saying his client bore no responsibility for improving the condition of the garage as it was not part of the space leased by Ascend. He requested proof from an outside consultant that on-site asbestos represented a health concern, and he claimed the puddle was not the result of a leaky roof, but rather a leaky roof drain pipe which had since been fixed. Ascend had agreed to an initial monthly rent of $110,107 per month in the first year of the lease, with a 2% annual increase.
Ascend is seeking at least $5 million in damages as a result of the alleged breach of the lease, according to a cover sheet submitted to the court. The company is being represented by Jeffrey Brenner, an attorney with Providence-based Nixon Peabody LLP.
While Meltzer was tasked by Lombardi in answering Ascend’s legal letters prior to the lawsuit, an attorney for the defendant has yet to be listed.
The property at 78 Barnum Road has now been relisted for lease, according to lists posted to real estate listing website LoopNet and MassDevelopment’s Devens community website.
Eric Casey is a staff writer at Worcester Business Journal, who primarily covers the manufacturing and real estate industries.
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