Judge sets September 2023 trial date for appeal of South Deerfield park approval

  • A rendering of the proposed North Main Street Park in South Deerfield from ProTerra Design Group. Screenshot

Staff Writer
Published: 10/5/2022 5:58:20 PM
Modified: 10/5/2022 5:54:03 PM

SOUTH DEERFIELD — A Franklin County Superior Court judge has set a September 2023 trial date in an abutter’s appeal over the Deerfield Planning Board’s site plan approval for the proposed North Main Street Park.

After a hearing Tuesday afternoon, Judge Michael Callan set a June 16, 2023 deadline for the discovery period — the process in which attorneys exchange information — and a final pretrial conference for June 26, 2023, with an expected trial date of September 2023, according to court documents. This decision follows an appeal, filed by property abutter Judith Rathbone in June, of the Planning Board’s site plan review decision.

The town had motioned for an expedited trial because it received a $938,500 Land and Water Conservation grant to help fund the park’s construction, but the town may lose out on the grant because the money has to be spent by June 2023. Residents also previously appropriated $2.1 million in Community Preservation Act (CPA) funding toward the project. The park, which abuts Frontier Regional School, is proposed to feature two athletic fields, a walking loop, a pavilion and a bandshell, among other amenities. The Selectboard is the applicant for the project.

Attorneys James Martin and Jason Talerman, who are representing Deerfield, argued in court documents that the risk of losing the grant could put the entire project at risk because it “would not be financially feasible” to complete. Additionally, they state any discovery period would be redundant because Rathbone and her attorney, John McLaughlin, have attended “all of the Planning Board hearings and received all of the documents and plans submitted by the Selectboard.”

“The plaintiff throughout the course of the hearing process retained expert consultants and submitted reports from the same. … Thus, there will be no harm to the plaintiff in expediting the hearing in this matter,” Martin and Talerman wrote. “If this matter is not expedited, it is likely it will not be calendared for trial until after the expiration date of the financial grant the town has received. Such delay will materially impact the viability of the park project.”

McLaughlin wrote in a memorandum of opposition that Deerfield’s reasons for the expedited trial request were unclear and Rathbone is “entitled to discovery on all of the claims in her complaint.”

“None of these reasons could justify this court ordering an expedited trial,” McLaughlin wrote. In relation to the grant, he added “the town’s lack of details suggests that, in fact, the town is not likely to lose the grant and therefore is grasping at straws.”

At Tuesday’s hearing, Talerman suggested the trial could happen before June and McLaughlin said he would be ready for a trial by the end of 2023. Callan, however, decided to set it for September.

“The parties should be prepared to try the case in the September 2023 trial session,” Callan wrote in the expedited trial motion document.

In Rathbone’s original appeal, one of her main complaints alleges the town has skirted the Green Development Standard bylaws that were passed at June 2021’s Annual Town Meeting. The bylaws prohibit commercial, industrial or institutional developments from altering more than 40% of a site. McLaughlin wrote that the project will “physically alter 7.41 acres of the 8.48-acre site, which is 84% of the subject property.”

While the bylaw prohibits “commercial, industrial or institutional” projects from altering more than 40% of a site, there is no mention of municipal projects. The crux of McLaughlin’s argument is that the word “institutional” applies to town government based on the fact that Deerfield’s bylaws use the latest version of Merriam-Webster’s Unabridged Dictionary to define words that are undefined by the town’s bylaws. Additionally, in the town’s stormwater eligibility permit, there is a checkmark in the “Yes” column asking if the project is “for commercial, industrial or institutional use.” In the site plan review application, however, the proposed use is marked as “municipal.”

In May, Planning Board Chair Analee Wulfkuhle said town counsel advised that since the town’s bylaws do not specifically mention municipal projects, then municipal projects cannot be implied to fall under those bylaws.

“Our legal counsel has found precedent that states you can’t imply something that’s not there; it needs to be stated,” Wulfkuhle explained at the time. “We felt comfortable following legal counsel’s recommendation.”

Chris Larabee can be reached at clarabee@recorder.com or 413-930-4081. Domenic Poli contributed reporting to this story.


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