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Our day in court

It is comforting to know that this newspaper (Recorder editorial Jan. 18) now believes that a Housing Court judge is “better suited” to decide the outcome of the French King Highway big box case than our Planning Board. The neighbors agree. That’s why they filed their appeal — and they won that right over the objections of the Planning Board and the developer.

The chairman of the Greenfield Planning Board says the judge concluded “the board conducted itself appropriately and provided ample due process.” The judge, in fact, said nothing of the sort. What she did say on “due process” was that the “de novo” hearing under Chapter 40A appeals “satisfies the requirements of due process.”

This is what the judge said: “This appeal, and the right to a de novo proceeding in which Greenfield Investors bears the burden of proving that it is entitled to the special permit/site plan approval ... suffice to afford the plaintiffs any process to which they are due.”

In other words, the neighbors have a right under Chapter 40A to appeal the decision of the Planning Board. Because they have that right, any due process “irregularities” that the neighbors raised are addressed by the fact that by granting them “standing” to bring an appeal, the plaintiffs now are able to have their case heard from the beginning. The ex parte communications between the Planning Board chair and members of the developer’s team during the hearings, were described by the judge as reflecting “the rough and tumble of the zoning decision process at the local level.” The judge never said the Planning Board “conducted itself appropriately.”

The judge also did not rule — as The Recorder suggests — that the Planning Board gave the neighbors “ample opportunity to weigh in.” Greenfield does not allow neighbors to cross-examine developers, to ask any questions that might get at the truth behind the glossy presentations. We have no “rules of evidence” in this town.

I asked the Town Council months ago to correct this deficiency, which would give all neighbors more of a level playing field when developers come knocking. I was referred to the mayor. But neither the mayor nor the council have done anything to create simple rules of evidence to protect neighbors.

Bottom line: The judge’s decision says the neighbors have a right to have their case heard by an impartial court. This is not something the Planning Board wanted, or the developer wanted. They tried to stop the neighbors from pursuing their case. The mayor said last September that the developer’s lawyers had addressed to the court the abutters’ claims that they would be harmed by additional traffic. The judge has now disagreed.

Finally, The Recorder states: “the opponents to the project appealed to have the project thrown back to the town. That didn’t happen.” In fact, if the court rules for the neighbors, that is exactly what may yet happen.

Al Norman, known nationally as a “sprawlbuster” consultant against Walmart and other big box developments, is a Greenfield resident.

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