My Turn: Leveling the playing field

Two years ago this month, the Greenfield Planning Board, by a one-vote margin, voted to grant a special permit for a 135,000-square-foot big box store in a special overlay zone along the French King Highway. At that time, few people in Greenfield would have imagined that seven neighbors to this huge project could void this decision in court for two years.

But they did.

On Feb. 17, 2011, the Planning Board closed the public hearing in this case. The abutters at that point were not allowed to speak, to cross-examine the developer — to do anything for the next five meetings, which stretched out until May 5, 2011. During this time, a significant volume of new information and opinions were added into the record by the developer, but the abutters were invisible witnesses to the proceedings.

The Planning Board knew that these seven people were “parties of interest” under state law, and that if they were not satisfied with the Planning Board’s decision, they could sue the developer and town — the same right the developer had.

But because the Planning Board’s Rules and Procedures have no “rules of evidence,” the abutters were unable to challenge any statement the developer entered into the record after Feb. 17, 2011. On the key issue of whether or not a smaller store was possible, no one challenged the developer’s assertion that 135,000 square feet was the smallest size it could consider — a statement made right after Mayor Bill Martin said that Wal-Mart had told him directly that they would come into town at 100,000 square feet.

Having been effectively locked out of the process, the abutters filed a lawsuit challenging the Planning Board’s decision.

If the town of Greenfield has adopted rules of evidence, abutting property owners, or their lawyer, would have had the right to question a petitioner’s witness, redirect examination of the petitioner’s witnesses, re-cross-examination, rebuttal, etc. I have testified at hearings where Wal-Mart’s lawyers were given the right to cross-examine my testimony. That is fair and proper. What rules of evidence do is guarantee that the no statement will go unchallenged, and the planning or zoning board can make a more informed decision based on a robust debate of the facts before them.

The day after the Planning Board closed the public hearing, and silenced the abutters, I wrote a letter to the Planning Board that said, in part: “The abutters believe that the expert statements that have been introduced into the record by a local architect, by our traffic engineer, and our economic impact analyst, all merit consideration by the board, but the chair(woman) is not considering or referring to such documents at all, has refused to have traffic and economic peer reviewers look at or comment on such reports, and has essentially ignored these documents … suggesting to board members that only documents produced by the town planner, or the peer reviewers should be consulted during the special permit review. This creates a very narrow lens through which to view this massive project.”

Had the Planning Board paid more attention to all the parties of interest in the French King case — not just the developer — perhaps a compromise could have been reached. Instead, we’ve had two years of delay — much of it due to legal maneuvering by the developer and the town.

It is up to the mayor to task the Planning Board, Zoning Board, and Conservation Commission to adopt rules of evidence that give abutters the right to cross-examine developer in an open forum until the boards are ready to deliberate on their own.

As it stands now, homeowners and taxpayers are being denied their basic right to protect their properties from unwanted, and inappropriate development. The hearing rules are so wired for the developer, you can see the plugs.

Al Norman is a Greenfield resident, and the founder of Sprawl-Busters.

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