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Easthampton Stop & Shop trial begins in Hampshire Superior Court

Kenneth Cernak, owner of Cernak Buick across Route 10 from the proposed site, filed suit in February 2010. He alleges that the Planning Board’s decision to allow the project was illegal because members had been influenced by private contact they had with the Stop & Shop representatives outside public meetings before approving the project. He also claims his business would be adversely affected by the increased traffic from the supermarket.

In the jury-waived trial Tuesday in the Old Hampshire County Courthouse, Northampton attorney Mark A. Tanner told Judge C. Jeffrey Kinder that Stop & Shop representatives “systematically and very intentionally” contacted all five Planning Board members in attempts to meet with them and determine how they could get their support for the application.

Stop & Shop’s attorney, Kevin P. O’Flaherty of Boston, argued that the communication was not improper and did not influence the board’s decision. “The intent of Stop & Shop is irrelevant. What’s important is the intent of the board members ... that they did what they did on the basis of what they heard in the hearings,” he said.

O’Flaherty also told the judge he believed it was up to Tanner to prove not only that the private communication occurred, but also that it affected the board’s decision.

Tanner disagreed. “I think once I show there was improper contact, the burden shifts to Stop & Shop to show that they were harmless,” Tanner said.

Stop & Shop first proposed the project to city officials in 2008, two years after signing a lease for the 18-acre property with the Courtney family. After months of public hearings, the Planning Board denied the application for a supermarket, a second retail building and a gas station in September 2009 because the parking lot location violated zoning.

Stop & Shop submitted a second application that changed the parking lot and nixed the gas station, and the Planning Board approved it unanimously in January 2010.

Included in what Kinder called a “mountain” of court documents were emails, memos and testimony Tanner submitted that indicate that Stop & Shop representatives met and corresponded privately with Planning Board members during and between the two public hearings.

One such document indicated that then Planning Board Chairman Jason Duda met with Stop & Shop attorney Frank S. Fitzgerald before the first application was denied and offered the attorney advice on which board members might be open to meeting with him and strategy about how to present information at the next public hearing. Duda resigned following the denial and was not on the board when it approved the second application.

O’Flaherty argued Tuesday that any communication between board members and Stop & Shop representatives before the start of the second permitting process is irrelevant because the first application was denied. “Mr. Duda has no role in this,” he said.

On the witness stand, former Easthampton city planner Stuart Beckley said that while he often met with applicants to discuss their proposals, he could not recall another situation when an applicant met with Planning Board members other than the chairman. If the chairman met with applicants, he said, it was usually regarding procedural information about the hearing.

According to court documents, former board members Debra Hamel (who was appointed to replace Duda) and Edward Quinn refused to meet with Stop & Shop representatives. Chester Seklecki said that though he felt it was unusual, he agreed to a Jan. 12, 2010, meeting, where he was shown different versions of applications the supermarket chain was considering filing.

Ann Parizo, who served as board chairwoman after Duda resigned, said she met with Fitzgerald after the first permit was denied and felt that he was trying to gauge if she had any “major concerns” about the plans.

The trial will continue today and is expected to last at least a few days.

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

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