Big box headed to trial

No date set yet

GREENFIELD — A state Housing Court judge will review plans for a 135,000-square-foot big box department store on French King Highway and decide whether the town Planning Board made the right decision in approving the project two years ago.

Housing Court Judge Dina E. Fein will decide the abutters appeal of the Planning Board decision in a trial, which has not been scheduled yet.

The developer and town have not yet decided whether they will contest Fein’s decision to hear the case in Housing Court, but if they were to, it would delay the project even more. The Planning Board issued developer Ceruzzi Inc. of Fairfield, Conn., a special permit on May 5, 2011.

The decision was almost immediately appealed in state court by anti-Walmart activist Al Norman of Greenfield on behalf of seven abutters, who said they hoped to slow the project, or even stop it.

“This is another win for the plaintiffs,” said Norman, who is known nationally as a “sprawlbuster” consultant. “The developer tried to say the abutters had no standing early on and the judge disagreed. Now, we have our decision.”

Norman said anxious abutters will wait for a trial date to be set.

“We will finally get our day in court,” said Norman, who blamed the developer for all of the delays the case has faced.

In her decision though, Fein accused both sides, and herself, for the delays.

“Unfortunately, the case has been delayed by various procedural machinations, including parties’ multiple requests to continue, a motion for summary judgement, which was under advisement for longer than one would hope, and the request for administrative transfer (by Fein),” she wrote in her decision. “These delays are regrettable.”

She said delays didn’t happen because the case has been in Housing Court, but rather because of the “dynamics and demands of complex litigation.”

Norman said now the developer will have to make its case to Fein, from scratch, and she will decide whether it should move forward as it was permitted or go back to the town’s Planning Board for revisions.

Planning Board Chairwoman Roxann Wedegartner said she doesn’t consider the judge’s decision a bad one, but instead said that she understands that both sides file appeals in huge cases like this one.

“Lawyers for all sides do what they should on behalf of their clients,” she said.

Wedegartner said she feels bad for abutters, the developer and the town because the project has not moved forward in more than two years.

“Now, the case will go to trial and we’ll find out what we’re going to have to do,” she said.

Wedegartner said based on what she’s been told, she doesn’t expect the trial to be a long one.

“The judge will look at the project in light of our zoning laws and make a decision about whether the Planning Board should go back and look at the entire project, or maybe just some issues, including traffic, for example,” she said.

Wedegartner said the judge cannot ignore the town’s zoning ordinance, but may interpret it differently than the board did and ask the board to revise some parts of its decision.

David Martel of Doherty, Wallace, Pillsbury and Murphy law firm in Springfield is representing the board.

Martel said the trial could take several days, but the judge will likely keep testimony focused and move the trial along expeditiously.

“There won’t be constant audience participation like there was during the board’s public hearings,” said Martel. “Expert witnesses will be allowed to testify about issues like traffic and such.”

Martel said the judge will decide whether Greenfield’s Planning Board reached a “legal conclusion” when it decided to allow a big box development to be built on French King Highway.

Michael Aleo of Lesser, Newman and Nasser, the Northampton law firm representing the abutters, said the judge could overturn the board’s decision and make it start from scratch with its review of the project.

Aleo said the judge could also allow the project to move forward, as it is, or could rule that the board must look at just certain aspects of its original decision.

Aleo said a final pretrial conference will be scheduled, a trial date will be set, and then both sides will get ready for trial. Greenfield has been without a discount department store since the Ames store closed in 2002. Plans for a community-run department store in the downtown to serve the discount shopping needs of the town never materialized.

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