Judge rules in favor of big box in Greenfield

  • Franklin County Superior Court Judge Richard Carey listens to witness Robert Chamberlin, an expert on traffic studies, during the “big box” trial in March.  STAFF PHOTO/PAUL FRANZ

Staff Writer
Published: 5/22/2019 6:49:22 PM

GREENFIELD — Nearly a decade after the developers sought to build a 135,000-square-foot superstore along the French King Highway corridor, they now have the permission to go ahead and build a “Walmart prototype” store if they are still interested.

Judge Richard Carey, out of the Franklin County Superior Court, ruled this week on the “big box trial” in favor of the developers and against the neighbors, who have been publicly supported by sprawlbuster Al Norman for all these years.

The neighbors, who are formally represented by local attorneys Tom Lesser and Michael Aleo, can appeal the decision. Lesser and Aleo did not respond to requests for comment.

Norman said he and the lawyers will likely meet with the neighbors this coming week to decide if they want to appeal the judge’s ruling, which he called “bizarre.”

“It was a long road to get here,” Norman said Wednesday. “Whatever we decide to do, we need to think carefully through what our options are.”

The lawyers for Greenfield Investors Property Development LLC, which also essentially represented the city of Greenfield, did not immediately respond to requests for comment, both by phone and email.

The Boston-based attorneys did not answer questions on whether the developer still wanted to build a store like a Walmart at the Ceruzzi Property, which used to be the old Mackin Construction gravel pit. They also did not comment on whether they would be willing to fight an appeal by the neighbors.

In late March, Carey heard testimony for the case that focused on the nuances of issuing a permit in a city, like traffic patterns. By the end of the trial, he commended both sides for the “enormous amount of work poured into this.”

Formally, the case was an appeal by the neighbors of a decision made by Roxann Wedegartner, who is now running for mayor, and the Greenfield Planning Board in 2011. The neighbors argued the Planning Board did not do its due diligence in issuing the special permit to allow for the big box store.

“It has been frustrating at times to say the least that the courts have taken as long as they did to decide this case,” Wedegartner said in a statement. “However, now everyone has had their day in court.”

The case faced several appeals and bounced around different courts until it settled in the local superior court, which accounts for a majority of the time passed on the decision. In 2016, a judge in the Massachusetts Supreme Judicial Court said the case could go back to local court.

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 said its “absurd” to believe that his side tried to delay it. He points to the legal documents that show the developer delayed the case.

By March, the “big box” case went before Carey for about a week. On the second day, the judge described the proceedings that focused on the minutia as “brutal.” Between 11 witnesses called to the stand and 55 exhibits, the civil case centered on whether the city’s Planning Board properly issued the special permit.

Carey ruled in his decision the Greenfield Planning Board’s original decision “reflects the exercise of careful and reasoned discretion.”

“Even if this court had concluded differently than the Planning Board, which it has not, the Planning Board’s decision should not be overturned unless it acts in an arbitrary, capricious or unreasonable manner or bases it decision on legally untenable ground,” Carey wrote. “Based on the evidence before this court, such is not the case.”

Carey found that the neighbors had a credible argument to appeal the decision of the Planning Board.

Michael Skawski, a resident of Wunsch Road, testified in court he and his wife had difficulty selling their home with a real estate agent because of the proposed retail development.

Resident Shirley Lowe, of Wunsch Road, told a story at the stand about how during times of construction and rush hour, drivers would try to cut through her block to avoid traffic. When then realized they needed to turn around, they pulled into her driveway.

“We look out the window,” she said, “and say ‘Someone is here,’ but they’re just turning around.”

But Carey did not find the overall argument by the neighbors and the experts their attorneys had testify to be persuasive enough.

The judge dismissed the testimony of local architect Margo Jones, who was brought forward as an expert on behalf of the neighbors.

Jones had argued the proposal was for a “giant and gargantuan” retail store that is “basically an unrelenting box,” which doesn’t fit the character of the neighborhood.

She was “candidly and admittedly an opponent of the project from its inception,” Carey wrote in a footnote.

“More significantly, she was effectively cross-examined on a number of critical issues, including her mistaken assertions regarding the size of other existing single tenant structures in Greenfield,” Carey said.

Carey said he found “substantial evidence” to support the board’s decision in regards to the design of the proposed development.

The judge said he believed the developer’s experts who said the big box store would not cause significant traffic issues to the neighbors, not cause environmental problems and could result in a positive fiscal impact to the city.

Norman said he felt the judge did not hear the arguments they attempted to present.

“I’m sort of wondering, ‘Was this the same trial I sat through?’ I don’t think it was,” Norman said. “Be that as it may, we feel we won a victory without even stepping in court.”

The sprawlbuster said in the time that has lapsed since this case went to court in 2011, the retail market has changed considerably. In today’s economy, big box stores are not built at the same rate as they were a decade ago. He doesn’t believe a Walmart would ever go in that permitted location.

With the removal of the overlay district in that area by the Greenfield City Council in March, allowing for gas stations and fast food restaurants to develop along the French King Highway corridor, and the ruling by the judge, it could now, after three decades of debate, be a new commercial retail zone.

“Unfortunately, this decision will lead to some difficult economic decisions for Greenfield,” Norman said. “Another retail zone on the end of Greenfield will be just further heartache.”

Nonetheless, the judge did not feel the Planning Board made a decision that he should overturn.

The neighbors “failed to produce credible evidence that the Planning Board’s decision was based on legally untenable ground, was unreasonable, whimsical or arbitrary, or somehow exceeded its authority,” Carey said.

You can reach Joshua Solomon at: jsolomon@recorder.com or 413-722-0261, ext. 264.




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