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Mayor to revisit ‘rules of evidence’ request

Would mean stricter process for ‘big box’ proposals

Recorder/Peter MacDonald
Greenfield Mayor William Martin in his office in the town hall

Recorder/Peter MacDonald Greenfield Mayor William Martin in his office in the town hall

GREENFIELD — The local man known for his sprawlbusting efforts both in Greenfield and across the nation is still asking the mayor to adopt a set of “rules of evidence” that all town boards would have to follow when reviewing a large project like the one proposed for French King Highway. But it doesn’t appear that the mayor is any more amenable to the request than he was when it was first proposed two years ago.

Albert Norman said he wants to see the town adopt rules that would turn the review of a “big box” project into something more like a federal court trial.

“Abutters deserve to be heard in cases where projects are going to affect them adversely,” said Norman. “They don’t feel they got that from the Planning Board during the review of the (big box) project.”

History

The town’s Planning Board began review of a 135,000-square-foot discount department store in 2010, when it was presented at 165,000 square feet.

Board Chairwoman Roxann Wedegartner opened the public hearing in September 2010 and closed that hearing five months later. Then, the board did its review and voted to approve the project on May 5, 2011.

The project has been under appeal by the abutters ever since and the town is still waiting to hear whether a court will decide its fate or it will come back to the Planning Board, which would have to begin its review from scratch.

Norman and others are still complaining that they did not feel heard by the town board and, therefore, need to see stricter rules about project reviews put in place.

Norman represented seven abutters to the French King Highway big box project throughout the entire review. He said he has not received any payment for his representation.

He said the way town boards currently function, abutters are held at a distinct disadvantage because once a public hearing is closed, they have no more input into plans for a proposed project.

Norman said with federal court-like rules of evidence in place, he, for instance, would be able to cross-examine a developer after a public hearing is closed and during a board’s review.

“The Planning Board considers itself an economic development board and it isn’t,” Norman asserts. “Rules of evidence is one reform necessary to give abutters a level playing field.”

Legal opinion received

The town went to Sullivan, Hayes and Quinn in Springfield, the law firm that represents Greenfield in some of its legal matters, and asked for an opinion, which it recently received.

Wedgartner and Mayor William Martin said they do not want to share the letter in its entirety until the rest of the Planning Board members have received it and had time to study it, but said the firm believes that rules of evidence are too complex and arcane to be adopted by town boards.

The firm also said that while it would not be illegal for the town to write a set of rules itself, it also is not necessary.

There is a set of rules of evidence written by the federal government and followed by all federal courts, but Massachusetts has only a guide for individual courts, cities and towns to follow. Even Massachusetts courts do not have specific sets of such complex rules, the town’s lawyers said.

Sullivan, Hayes and Quinn could not find any town or city in Massachusetts that has adopted such rules, but Norman said he believes Charlton has done so.

A call to Charlton’s town offices on Friday revealed that it has not adopted such rules.

Charlton does have its own rules concerning hearings, not reviews by the board. In those hearings, according to town rules, the applicant presents its project, objectors may cross-examine the applicant and then present their own evidence against the project, and then the applicant may cross-examine objectors. Town board members examine witnesses on both sides and each side is allowed a rebuttal at the end of the hearing.

In the rules of Charlton’s Zoning Board of Appeals it also says, “The board shall not be bound by strict rules of evidence, not limited to consideration of such evidence as would be admissible in a court of law, but it may exclude irrelevant, immaterial, incompetent, or unduly repetitious testimony or evidence. The chair shall rule on all questions relating to the admissibility of evidence, but may be overruled by a majority of the board members present.”

According to Sullivan, Hayes and Quinn, Springfield and Lincoln have used the state’s guide to rules of evidence for “some” projects, but have not adopted a set themselves.

Norman has offered to write, or help write, a set of rules for Greenfield.

Wedegartner said that while she believes it would be chaotic and time-consuming to try to understand the federal set of rules of evidence, or even the state’s guide, the board will discuss the issue and give the mayor its recommendation; the mayor will make the final decision.

In the past, Martin has said he does not believe it is necessary.

“I think the Planning Board has done its job over the years,” said Wedegartner. “Just look at the projects here in town.”

Wedegartner said the board has followed town and state rules for many years, before and during her tenure, and will continue to do so, with success, for many more after she leaves the board someday.

“Rules of evidence are not widely done, and that’s why there’s really no model for them,” said Wedegartner.

Aug. 15 meeting

She said the board will discuss the matter of rules of evidence at its meeting on Aug. 15. She said she does not know what time the discussion will happen because there are several other agenda items ahead of it.

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