Lawsuit challenges decision to approve Lowe's

By Scott Merzbach
Staff Writer

Published on October 06, 2006

The approved plans for a Lowe's home improvement store that would be constructed on Route 9 have run into a challenge: a lawsuit filed with the state's Land Court.

The suit, filed Sept. 30 by Shutesbury attorney Michael Pill on behalf of his wife, Carol S. Holzberg, who owns a property at 284 Russell St. that is just east of the proposed site for the Lowe's store, claims that the Planning Board's decision to grant approval was arbitrary and capricious and seeks a judicial review of the decision.

Both Hadley Land Associates LLC of Colden, N.Y., which intends to build the store on a portion of the Long Hollow Bison Farm land, and the Planning Board are named in the suit.

The lawsuit argues that the decision to grant the special permit may have exceeded the board's authority, been arbitrary or capricious, been based on a legally untenable ground or failed to include adequate finding as required by law.

Pill asks first that the board's decision be 'annulled or remanded, and for such other and further relief as the court may deem just in the circumstances.'

Second, he asks the court to 'adjudicate the manner and extent to which the provisions of the Hadley zoning bylaw are applicable to the premises which are the subject of the defendant Planning Board's decision.'

Finally, Pill wants the court to 'grant such other and further relief as it deems just in the circumstances.'

Though the board decided June 20 to award Lowe's site plan special permit and an aquifer district special permit, the written decision was not formally filed with the town clerk until Sept. 14. At that point, abutters were notified they would have 20 days to file an appeal.

The lawsuit against Lowe's marks another chapter in the saga that began when Paradigm Development LLC first brought forward plans to rezone portions of the bison farm in 2003. After three unsuccessful efforts to rezone the 12.8 acres of land, the rezoning passed when Lowe's offered the town $410,000, primarily to preserve agricultural land elsewhere in the community.

Ronald Bronstein, president of Paradigm Development LLC and Hadley Land Associates LLC, said Tuesday that he was not aware of the lawsuit and had not yet been served by the court.

Planning Board Clerk William Dwyer, named in the lawsuit along with the other four board members, said it will be up to Hadley Land Associates and its attorneys to defend the appeal.

'It is our practice not to expend the town's legal budget in defending permits that have been granted,' Dwyer said.

Dwyer said appeals of its decisions to either Land Court or Superior Court are not unusual, with perhaps about one in 10 decisions ending up in legal proceedings.

Among larger projects in recent years, a group calling itself Hadley First sought to block construction of the 97,000-square-foot Wal-Mart store at Mountain Farms Mall by filing a lawsuit in Hampshire Superior Court in 1998. The lawsuit was eventually dismissed.

But Dwyer pointed out that the 323,000-square-foot Hadley Corner retail project, which would be anchored by a Home Depot, was not appealed after it was approved by the board in 2004.