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Where should big box appeal go? Greenfield contigent heads to Boston to hear arguments



Recorder Staff
Last modified: Friday, January 22, 2016
*Archive Article*
BOSTON — The state’s highest court heard arguments Thursday morning about if and where an appeal to stop a planned big box store on French King Highway should be heard, and stakeholders on both sides said they were happy with the way things went.

During a hearing at the John Adams Courthouse in Boston, the developer’s Boston-based attorney Marshall D. Senterfitt argued that as a result of a 2006 statute that changed the then-existing jurisdiction over permit cases involving large-scale developments, the Housing Court no longer had jurisdiction to hear the case. He said based on that statute, an appeal for a large-scale development may only be filed originally in Superior Court or in the Permit Session of the Land Court.

However, the abutters’ attorney, Thomas Lesser of Northampton, argued Housing Court has jurisdiction over the case and said that even if the developer, Ceruzzi Inc. of Fairfield, Conn., is correct and Housing Court does not have jurisdiction, then his clients’ case should still be transferred to Superior or Land Court.

“I feel great after the argument,” Lesser told The Recorder.

He said one of the final questions Chief Justice Ralph D. Gants asked Senterfitt was an obvious indication that the court didn’t think denying the abutters’ appeal would be fair.

“How can it be fair to obtain the result that you seek, which is that they are denied any opportunity to have this matter heard on the merits by a court with jurisdiction, even if you’re right?” Gants asked Senterfitt at the hearing, which was broadcast live online.

Lesser said, “Obviously to me, it was clear the court did not think that was going to be fair and they were going to rule in our favor and allow it to remain in Housing Court or allow it to be transferred to another court.”

However, Senterfitt argued that the ability for a plaintiff to file in the wrong court and then subsequently transfer to a new court would effectively extend the 20-day statute of limitations to “a very long period.”

“In this case, it would be four years,” he said.

Following the hearing, Senterfitt told The Recorder it wouldn’t be appropriate for him to comment on what impression he got from the justices’ questions, saying it’s very difficult to know what their decision will be based on a hearing.

“The court asked a lot of good and relevant questions and we’re pleased with the way that things went and we look forward to the court’s decision,” he said.

Greenfield Councilor At-large Isaac Mass, a local lawyer and supporter of a department store development on French King Highway in town, rented a bus to Boston for members of the public who wanted to hear the arguments firsthand and to show support for the discount department store, calling the bus the “Economic Development Express.”

Mass founded a group called Citizens for Growth years ago and has fought for a big box store for more than a decade, saying Greenfield needs a discount store to accommodate the needs of all residents.

He said although he didn’t have an exact head count, the 40-seat bus was about two-thirds full and among those who went were four town councilors, License Commissioner Ruth Henry, and Roxann Wedegartner, chairwoman of the Planning Board, which approved the retail project. That decision was appealed by a handful of abutters, aided by nationally known big box opponent and self-styled “sprawlbuster” Al Norman of Greenfield.

“It’s amazing,” Mass said. “This is a Thursday in the dead middle of winter during a workday. To get this many people to come out, it was amazing. I can tell you when we walked into the courtroom, the justices clearly noticed the people from Greenfield involved.”

He added the group departed from the Home Depot parking lot on the Mohawk Trail at 5:30 a.m., stopped at Adams Donuts for breakfast and arrived at the John Adams Courthouse right at 9 a.m. due to mechanical issues with the bus. Therefore, he said the group was unable to rally on the front steps of the courthouse as planned.

Greenfield Councilor At-large Penny Ricketts said she felt as though the group was recognized by court officials, saying members were greeted at the front of the courthouse and escorted in.

“They were definitely aware that we were coming,” she said. “As the arguments were being discussed, we were shaking our heads and you could see (the justices) taking note of us. I feel we played such an important role without even speaking.”

Mass said the group was impressed with arguments from both sides and members followed the proceedings “very well,” despite a lot of legal jargon and references to statutes.

Wedegartner said the mood on the bus was “upbeat and positive,” despite the early hour.

She said she thought the justices were probably swayed, to some extent, by Senterfitt’s argument that the appropriate place for the appeal to be heard is through the Permit Session of Land Court or in Superior Court, but added she thought they were also interested in fairness to the abutters.

“They’ll have to walk that line,” she said. “It’s not a clear-cut, one-side-is-a-winner type of argument.”

Mass said he felt as though the justices had a clear handle on what the law is, but added it’s difficult to determine from oral arguments what the ultimate result of the case will be.

Norman, who has represented the seven abutters since the developer filed his plans with the town in 2007, said he was unable to attend the hearing or watch it online because he was at work, but he was “very pleased” after speaking with his attorneys afterward.

“I’m very confident that the Supreme Judicial Court will not allow this developer to push these people out of court,” he said. “I’m appalled that people like Councilor Mass don’t want these neighbors to have their right to have their day in court. It’s a little disheartening to have a lawyer arguing that they shouldn’t have their day in court.”

Lesser agreed, saying, “This case is not going to get thrown out.”

Both Lesser and Mass said they expect a decision within four to six months.

You can reach Aviva Luttrell at: 
aluttrell@recorder.com 
or 413-772-0261, ext. 268
On Twitter follow: @AvivaLuttrell