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Judge rules in favor of Stop & Shop project advancing in Easthampton

Judge C. Jeffrey Kinder said in an eight-page decision issued Monday that communications between Stop & Shop and members of the Planning Board did not interfere with the board’s vote to approve the supermarket’s application to build a new store at the site of Tasty Top on Route 10.

“I’m pleased the judge found that the integrity of the board members was not compromised,” Mayor Michael A. Tautznik, a supporter of the project, said Wednesday. “I always had faith that the board’s actions were above board and appropriate.”

The lawsuit was filed by Kenneth Cernak, owner of Cernak Buick, across from the proposed Stop & Shop site.

Cernak alleged that private contact among members of the Planning Board and Stop & Shop improperly influenced the board’s vote of approval. The suit sought to have that vote overturned.

Although Kinder disagreed, saying contact among the parties did not rise to the level of violating due process, Stop & Shop is not out of court yet. The court has still not ruled on another of Cernak’s charges: that the board’s approval of the project was unlawful because it did not comply with zoning regulations.

“It’s just another delaying tactic,” Tautznik said. “The question is whether it’s legal to put a grocery store in a highway business district. We’re fairly certain the law allows it and we’re fairly confident we’ll be successful in this.”

A hearing is scheduled for April to determine if more court proceedings will be needed to resolve the second count.

Tautznik said he thinks the supermarket chain will not break ground on the project until after everything is settled in court, although they technically could.

This summer would actually be a great time to start construction, he said, since traffic will be detoured away from that area of Northampton Street for six months starting in June for the reconstruction of a bridge over the Manhan River near the downtown.

“I don’t know how fast they’ll be able to mobilize though and I don’t know how long it will take the court to take care of this remaining count,” he said.

Calls to Stop & Shop’s attorneys were not returned Wednesday. Efforts to contact Cernak were unsuccessful also.

Dennis Courtney of the land trust that is leasing the property to Stop & Shop declined to discuss the outcome of the suit, but said he plans to open Tasty Top this summer as usual.

“I’ll go as long as I can,” he said Wednesday.

Tautznik said the city will be glad to have the added tax revenue from the store in the city coffers, especially when each year cuts to city and school staff have to be considered to balance the budget.

“Estimates put the tax revenue at between $60,000 and $70,000, which is one of the positions we’re looking at having to eliminate from the schools,” he said.

“Getting new growth from commercial development is really valuable. Those tax dollars go a lot further (than residential tax dollars) because they don’t require a lot of city services.”

The controversy involving the 35-acre property, which encompasses Tasty Top and the Easthampton Golf driving range, began in 2004, when Stop & Shop contacted the Courtney family about the parcel.

In a series of heated public hearings in 2009, residents and nearby business owners argued that the store would snarl traffic and would not benefit the city.

The Planning Board denied the permit in September 2009 because the parking lot as designed violated zoning, but Stop & Shop came back with scaled-down plans and the board approved them four months later.

Vote not tainted

Kinder’s decision to let the Planning Board’s Feb. 1, 2010, approval stand was issued a week and a half after the three-day jury-waived civil trial began March 12.

In it, he wrote that there was no evidence the Planning Board members vote was tainted by members’ communications with Stop & Shop representatives outside of public meetings.

Cernak’s lawyer, Northampton Attorney Mark A. Tanner, presented evidence that Stop & Shop representatives made efforts to meet privately with every member of the Planning Board and attempted to gauge their interest in various plans before resubmitting the second application.

“The question is not whether Stop & Shop intended to influence the board, but whether or not, through ex parte contacts with board members, Stop & Shop caused the board to do what it would not otherwise have done,” Kinder wrote. “In my judgement it did not.”

He wrote that though he does not “condone” Stop & Shop’s actions, “they were not so egregious as to affect the administrative process in a way that substantial justice was not done.”

Kinder ruled that Cernak had a “full and complete” opportunity to be heard at a public hearing on Stop & Shop’s application and that each of the board members voted “based only on what was presented at the public hearing.”

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

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