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With court battle over, Stop & Shop can build in Easthampton



Last modified: Friday, December 20, 2013
EASTHAMPTON — A representative for Stop & Shop said the company will move ahead with plans to build a supermarket and attached retail space on Route 10 now that a neighbor has decided to drop his legal challenge.

“Stop & Shop is pleased that the legal process has concluded and that we can now refocus our attention on finalizing the development plans and permits,” spokeswoman Lindsay Hawley said in an email Wednesday. She declined to say when construction could begin.

The decision by Kenneth Cernak to drop his appeal marks the end of a nearly four-year legal battle over the planned construction of a 45,000-square-foot supermarket and 4,900-square-foot attached retail space at the current site of Tasty Top on Route 10, also called Northampton Street. Cernak is the owner of Cernak Buick across the street.

He sued Stop & Shop and the city in February 2010, a month after the Planning Board approved a special permit for the project. He alleged the decision would adversely affect his business, was influenced by inappropriate contact with supermarket representatives and was unlawful for other reasons.

Two Hampshire Superior Court judges ruled in Stop & Shop’s favor on all counts, most recently on June 19, but Cernak’s lawyer, Mark A. Tanner, filed an appeal July 16. Stop & Shop’s attorney, Kevin P. O’Flaherty, argued that Tanner and Cernak were just trying to prolong the suit to prevent construction, and Hampshire Superior Court Judge Daniel A. Ford ordered Cernak to post a $50,000 bond to protect Stop & Shop and the landowner, Courtney Easthampton LLC, from incurring costs due to the project’s delay while the appeal was in court.

City Solicitor John H. Fitz-Gibbon, who represented Easthampton officials in the suit, said Tanner told him Tuesday that his client was dropping the appeal, but didn’t say why.

“It’s been a long battle,” he said. “I’m glad to see it finally come to an end in the city’s favor.”

Fitz-Gibbon said Tanner indicated he would file the paperwork to officially drop the appeal in Massachusetts Appeals Court Wednesday or Thursday.

Mayor Michael A. Tautznik, who was named as a defendant in the case, said he was pleased to hear that the suit would be wrapped up before he finishes his last term in office at the end of the year. “This is another item off the list,” he said Wednesday.

Taxpayers were paying the attorney to work on the case as long as it was in court, he said, and he would rather be spending those dollars elsewhere.

A proponent of the project, Tautznik said the Route 10 corridor is ideal for commercial development like a supermarket and the project got resistance partly because it was not spearheaded by a local developer. “We do need commercial growth,” he said.

While he has not reached out to Stop & Shop representatives about their plans for the project, he said it has the necessary land use permits in hand. Now, it will need to finish and file construction documents with the city to obtain a building permit.

Rebecca Everett can be reached at reverett@gazettenet.com.