Courtroom battle over Belvedere

Both sides have now filed briefs over the town’s motion to dismiss the citizens’ Belvedere case.

LENOX – The Kennedy Park Belvedere controversy has become a case of dueling legal motions.

The Belvedere was constructed in honor of the late Dr. Jordan Fieldman, a prominent physician who practiced at Berkshire Medical Center.

Opponents contested that The Belvedere was private memorial on public land, ruined the overlook, and should be removed. Supporters, however, countered that The Belvedere was appropriate and should stay.

A key question soon became whether or not construction of The Belvedere had violated Lenox’s Scenic Mountain Act. While the town initially denied that the act applied to The Belvedere, the Lenox Conservation Commission ended up determining that it did.

Part of the reasons for this confusion was that the Scenic Mountain Act, adopted by Town Meeting in 1975, had never been applied in Lenox previously.

The town then filed a Request for Determination of Applicability with the conservation commission to see whether or not The Belvedere violated the act. The conservation commission then proceeded to rule on January 5 that the Scenic Mountain Act was not violated by The Belvedere’s construction.

Opponents of The Belvedere, however, contended that this ruling was illegitimate because the Scenic Mountain Act included no provisions for approving a project after the fact, and that the only remedy for violations was removal.

In addition to alleging that town officials deliberately violated the Scenic Mountain Act, the complaint also accuses town officials of trying to address the violation with remedies not provided for in the act and of disrupting the efforts of the plaintiffs to find information, as well as trying to intimidate them into not seeking legal remedy.

Now the town of Lenox has fired back, asserting that the 20 Citizens lawsuit should be dismissed, in a motion filed by The Town’s Legal Counsel, the law firm of Koppelman and Paige, P.C., which was specially hired to defend against the suit.

Motion to Dismiss

Koppelman and Paige’s Memorandum in support of the Town’s Motion to Dismiss asserts that the citizens complaint has no standing for three reasons.

The memorandum’s chief assertion is that the plaintiffs failed to exhaust administrative remedies under the Scenic Mountain Act before filing their lawsuit. Specifically, the plaintiffs did not appeal the conservation commission’s Order of Conditions for The Kennedy Park Belvedere to the Department of Conservation and Recreation (DCR) within 10 days.

“All of the concerns raised by the plaintiffs in this action regarding the Town’s alleged violation of the Act could have and should have been addressed through an appeal to DCR from the Conservation Commission’s Order of Conditions, and if plaintiffs were dissatisfied with DCR’s decision, by a petition for review by this Court,” reads a portion of the memorandum.

The memorandum also asserts that the complaint’s contention that projects cannot be permitted under the Scenic Mountain act after the fact is a false one.

The memorandum says that there is no explicit authorization for “post-construction,” permits in the Wetlands Protection Act, Zoning Act, Subdivision Control Law or Building Code, while claiming that it is routine for property owners and developers to seek permits post-construction that should have been obtained before hand.

“The Plaintiff’s position that the Conservation Commission could not issue an order of conditions to approve the Memorial after it was installed not only defies common sense, it is also inconsistent with decisions under the most closely analogous statute to the act, the Wetlands Protection Act,” reads The Memorandum.

Secondly, The Memorandum asserts that the plaintiffs’ tort claim should be dismissed because it is barred by the Massachusetts Tort Claims Act, which provides immunity for municipalities from any claim arising out of an intentional tort by its employees.

Finally, The Memorandum says the public nuisance claim must be dismissed because it fails to state a claim upon which relief may be granted.

“Plaintiffs’ claim that the installation of the Memorial at Kennedy Park resulted in a public nuisance must be dismissed, because the plaintiffs have made no attempt whatsoever to allege that they have suffered a “special injury of a direct and substantial character” or that said injury is different from that shared by the general public,” reads the memorandum.

The Plaintiffs’ Respond

“Asking for a dismissal and getting one are two completely different things,” said Sonya Bykofsky, one of the 20 citizens suing the town, in comments to The Beacon.

Ms. Bykofsky was particularly frustrated by what she perceived as the memorandum’s reliance on technicalities, when, in her view, the town has been ignoring proper procedure throughout the process.

Ms. Bykofsky also remains unconvinced by the memorandum’s argument that the Scenic Mountain Act allows permitting after construction.

“Everything in that act has to do with things prior to construction,” said Ms. Bykofsky. “Nowhere does it say that any permitting can be done after construction.”

Such an opinion is shared by the lawyer for the 20 Citizens, Robert N. Meltzer of the Mountain States Law Group.

“There is no provision in the statute for going back after the fact,” said Attorney Meltzer.

Attorney Meltzer went on to say that he was skeptical of the relevance of the cases cited in the memorandum that purport to show a pattern of allowing permitting after the fact under other similar statutes.

“That’s not my experience,” said Attorney Meltzer. “My experience is you either follow the rules, follow the statute or you don’t.”

As for the other two arguments, Attorney Meltzer said that by adopting the Scenic Mountain Act, the town waived its tort protection, as well as the requirement that citizens state a claim upon which relief may be granted when filing a public nuisance claim under the statute.

“The statute says that any ten citizen can come in and enforce this statute,” said Attorney Meltzer, noting the provision of the Scenic Mountain Act which his clients had used to file their complaint.

Section 11.5 of the Scenic Mountain allows any ten residents of the Commonwealth of Massachusetts to challenge violations of the Scenic Mountain Act.

“They (the town) agreed that they can be a violator,” said Attorney Meltzer. “It (the Scenic Mountain Act) waived all of these protections (against being sued) that a town has.”

The plaintiff’s opposition brief to the motion to dismiss, filed by Attorney Meltzer on Thursday, September 6, contains these arguments in greater detail. It also asserts that the town’s assertion that the plaintiffs’ should have pursued administrative remedies before filing their lawsuit has no basis in fact.

“The Defendant has identified no case law or authority to support the contention that a party aggrieved by violations of the Act must first exhaust administrative remedies,” reads the brief.

“This is not a case that we filed casually,” said Attorney Meltzer, noting the months he’d been working on it. “They’re (the defendants) the ones that are trying to find an argument to get around the statute.”

As for which motion will be successful, Attorney Meltzer is confidant that the case will go forward.

“Motions to dismiss are very rarely allowed,” said Attorney Meltzer. “I think the court will take the cautionary road.”

Posted by Bera B. Dunau on September 6, 2012. Filed under Community News,Featured,News. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry