10-1-07
Judge to Decide Suit Against Walpole
Developer Claims Town Vote Illegal
By Chuck Bingaman, Contributing Writer
Superior Court Judge John Arnold yesterday set December 15 as the date for Berkshire Development and the Town of Walpole to file legal memoranda and briefs in a case where the developer is seeking to invalidate the March 2007 town vote clarifying Walpole’s zoning ordinance.
Two entities, Berkshire-Walpole LLC and Walpole Properties, LLC, are arguing that last March’s vote improperly asked voters if they wanted to change language in both the commercial and agricultural sections of its ordinance in a single warrant article.
In its initial answer, the town asserted that warrant article, while affecting two different types of zones, dealt with one issue: whether the town wanted to permit new commercial buildings exceeding 40,000 in size.
The meaning of a size restriction in the Walpole zoning ordinance has been argued for several years because it used the word “establishment” as what it limited to 40,000 square feet. The developers wanted that word to be interpreted as meaning new commercial buildings could be built with no size limit so long as no business within them exceeded 40,000 square feet.
On the other hand, many in the town argued that the intent of the zoning language was to limit the overall size of any new commercial buildings for aesthetic, historic and cultural reasons.
In an attempt to put the matter to rest, the Planning Board last March asked Walpole voters if they wanted to replace the word “establishment”, where it appeared in both in the commercial section and in the agricultural section of the zoning ordinance with the word “building”. The voters approved by a vote of 591 to 501.
Not liking that outcome, Berkshire Development returned to the Walpole Selectmen in April and asked that the vote be thrown out on the ground that, by combining the question for two types of zones into a single warrant article, the town denied voters the choice of voting for the change for one zone and not the other. Walpole Selectmen upheld the town vote, and Berkshire appealed to the Superior Court.
After the legal memoranda summarizing relevant law are filed in December, there may be oral arguments on the issue, but it is most likely, because there is no factual dispute in the case, that it will be decided by the judge without further hearing.
Behind the wrangling over the language of the ordinance and the desires of the townspeople, Berkshire Development apparently still wants to build buildings in the commercial zone in Walpole that exceed 40,000 square feet. Berkshire had presented a plan for a 68,000 square foot building south of North Meadow Plaza in fall, 2005 but eventually withdrew it in May, 2006 when the Planning Board was indicating little enthusiasm for approving it.
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