Big box trial in early stages
GREENFIELD — Lawyers for the developer who wants to build a big box store on French King Highway, the town, and the seven abutters who want to stop the project, will go to Housing Court on Feb. 15 to set a date for the project to go before a judge for review.
Housing Court Judge Dina E. Fein ruled earlier this month that the case will have to be heard “de novo,” or from scratch, before the court, which will decide whether the project approved by the town Planning Board deserves the special permit granted May 5, 2011. The judge will determine the “legal validity” of the board’s decision.
Fein’s decision to go forward with the appeal process came more than a year and a half after the town’s Planning Board approved a 135,000-square-foot store. Shortly after the board’s decision, seven abutters filed their appeal in Housing Court.
It appears that if the judge favors the developer and the Planning Board, abutters could still challenge that ruling in state Appeals Court.
If the judge rules that the project violates zoning rules and regulations and should not have been given the special permit, it appears the developer would have the right to go back before the Planning Board with a project modified to satisfy the objections.
According to case law, the judge will make his or her decision based on whether the Planning Board made its decision on a “legally untenable ground” or whether its decision was “unreasonable, whimsical, capricious or arbitrary.”
During the upcoming meeting with the court on Feb. 15, lawyers will present to the judge how the case is proceeding, what documents and depositions they will present during trial, and how long they think it will take to make their cases, as well as other matters relevant to their cases. At that point, a trial date will most likely be set, based on those logistics.
Marshall D. Senterfitt of Goulston & Storrs in Boston, one of the lawyers representing the firm that wants to build the store, Cerruzi Inc. of Fairfield, Conn., said he does not want to comment on his client’s behalf at this point.
Mayor William Martin said he believes the judge will eventually find for the developer.
“But, because of the appeal, the developer will have to present its project all over again, sort of reinvent the wheel,” said Martin. “I believe the judge did find, though, that the Planning Board process was legal, methodical and transparent.”
Martin said he believes everyone who wanted to had the chance to discuss the matter in front of the board, both during the public hearing process and outside of that process.
Albert Norman, the Greenfield man who is known nationally as a “sprawlbuster” consultant against Walmart and other big box developments, and who has represented the seven abutters throughout the entire process, for no pay, he has maintained, said he was glad to see that the judge agreed with abutters, saying there was enough evidence to show that there was contact outside of the public hearing process between the board and developer.
But, the judge also said there was enough evidence to show that there was contact with the board, outside of the public hearing process, with abutters and “those acting on their behalf,” which means the same people who complained about the board having contact with others.
The judge also concluded that the abutters have not been deprived of their constitutional right to due process, because that right will be satisfied during the trial.
“The hearing process (with the Planning Board) was protracted and exhaustive, and the plaintiffs (abutters) actively participated in it,” the judge wrote in her decision.
Martin said whether the big box store is built on the French King property, or there ends up being a hot dog stand built there, any project will have to comply with town rules and regulations.
“And no matter what you put on that property, there is going to be more traffic generated than there is now,” said Martin.
The mayor said his concern is that there is only about 14,000 acres of open space in Greenfield at this point. He said less than 700 acres is zoned commercial or industrial.
“Twenty-five percent is unusable because of wetlands, slopes, or rocky ledges,” he said.
Norman and the seven abutters have said they’d like to see an 80,000-square-foot store built on the former Mackin Construction property, rather than the 135,000-square-foot store Ceruzzi wants to build.
Most of the abutters’ complaints have to do with the traffic the store will generate in their neighborhood especially along High Street, the visual impact such a large store will have on them, and their fear it will diminish their property values.
The Housing Court judge, like the Planning Board, will consider all of those issues and more before making a decision.