Appeals Court rules in favor of Greenfield Planning Board’s big box decision 9 years ago

  • Mayor Roxann Wedegartner, formerly chair of the Greenfield Planning Board, said Thursday she is happy to have a decision from the Massachusetts Appeals Court, which upheld the board’s decision to issue a special permit to a company that wanted to build a 135,000-square-foot “big box” department store on the French King Highway more than nine years ago. Staff Photo/Paul Franz

  • Al Norman makes a point during a break in the “big box trial”€™ in Franklin County Superior Court in March 2019. The Massachusetts Appeals Court upheld the Greenfield Planning Board’s decision from more than nine years ago to issue a special permit to a company that wanted to build a 135,000-square-foot “big box” department store on the French King Highway. Staff File Photo/PAUL FRANZ

Staff Writer
Published: 10/15/2020 4:27:56 PM

GREENFIELD — More than nine years after the Planning Board issued a special permit to a company that wanted to build a 135,000-square-foot “big box” department store on the French King Highway, prompting abutters to begin their appeals, the Massachusetts Appeals Court has ruled in the board’s favor.

Formally, the case was an appeal by the neighbors of a decision made by now Mayor Roxann Wedegartner, who was the Planning Board chair at the time of the decision, and the rest of the board in 2011. The neighbors, with the help of self-proclaimed sprawl-buster Al Norman, argued the Planning Board did not do its due diligence in issuing the special permit to allow for the big box store.

Wedegartner said she is just happy to finally have a decision after all these years.

“It’s finally over,” Wedegartner said after receiving the decision Thursday. “The Appeals Court has reaffirmed the Planning Board’s decision on the French King Highway.”

On May 5, 2011, the Greenfield Planning Board issued a special permit to Greenfield Investors LLC of Ceruzzi Properties so that the large department store could be built, but seven abutters and Norman immediately filed an appeal. The case was taken up in several courts until the state Supreme Judicial Court took it up in 2015, and when Norman and abutters didn’t like that decision, they took it to the state Appeals Court.

Wedegartner said it’s possible Norman and the abutters, some of whom have apparently moved and are no longer abutters, might be able to ask the panel of judges that made the latest decision for another hearing, but the city has been told by its lawyer that it’s unlikely the request would be granted.

“Nine years and four courts later, I’d be shocked if that happened,” Wedegartner said. “As the former Planning Board chair whose name was at the top of the court case, I’m happy about the outcome, but it’s a shame it had to take nine years.”

Judge Richard Carey, out of the Franklin County Superior Court, ruled on May 17, 2019 at the “big box trial” in favor of the developers. The abutters filed an appeal of that decision, and the Superior Court assembled a record of the case, sending it to Appeals Court, where it was reviewed for more than a year by a committee of judges who made the decision. There was word earlier this year that the court had expected to have a decision, but then the pandemic hit.

“What’s most important is to take note that the Planning Board did its job and the courts affirmed that,” she continued. “That’s an important piece of property, and we hope it will be utilized to enhance economic development.”

Wedgartner said the city will wait to see what the developer decides to do next. The developer leased the property to Stop & Shop several years ago and she believes the lease is still in effect.

Reactions

Critics of the neighbors saw the delays in legal proceedings as a way to prevent a big box store from ever coming to town. Norman previously said it was “absurd” to believe that his side tried to delay it, pointing to legal documents that show the developer delayed the case.

“I haven’t see the decision yet, but that was clearly where the court was going,” Norman said Thursday. “Further appeal is possible, but I’m not sure what the abutters want to do. We kept Walmart at bay for more than a decade, so that’s a victory for us. I am proud to have kept these big box bottom-feeders away from Greenfield for 27 years.

“Sometimes, the passage of time becomes your friend,” he continued. “I’m delighted we were able to delay such a big project. Though, it was the developer who really delayed things.”

Norman said regardless, he believes the Supreme Court’s decision was poorly drafted with “a lot of flaws.” He said the Appeals Court only allowed 15 minutes of oral arguments and gave “a lot of discretion to the city.”

The abutters’ lawyer, Michael Aleo of Lesser, Newman, Aleo & Nasser of Northampton, said, “We are disappointed about the decision.”

A lengthy process

From the very beginning, the project stirred a lot of controversy. First, opponents fought to save a wetland now known as Wetland 4 on the property. Successful in that fight — the wetland was restored and expanded — opponents then realized a bigger fight when the project was approved to be built around the wetland.

The project started as a 165,000-square-foot store, but in 2010 the developer reduced the size, and later that year, Ceruzzi bought the 19 acres of then Mackin-owned land for $3.75 million.

The developer began the town’s permitting process in 2007 with the Conservation Commission and after being approved, moved on to the Planning Board for its review that began in September 2010 . The public hearing didn’t close until February 2011, when the board began three months of deliberations.

Neighbors said the board did not adequately consider specific zoning issues, including traffic and aesthetics, which they believed would lead to a decrease in their homes’ values. They argued studies the developer offered the board were not well done and used numbers that were often misleading or incorrect.

By contrast, the developer said the board was sufficient when it issued the special permit as it adhered to the zoning issues. The developer argued that traffic studies and appraised values of homes were done by experts with long track records of getting commercial projects approved before municipalities.

The feud over whether a big box store should come to Greenfield dates back 25 years. In October 1993, Greenfield residents voted on a ballot initiative that there should not be a zone within the town, at the time, that allowed for no cap on how big a building could be developed.

The developer’s lawyer, Marshall Senterfitt of Goulston & Storrs law firm in Boston, could not be reached for comment by press time.

Reach Anita Fritz at 413-772-9591 or afritz@recorder.com.



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