1-24-08

Berkshire Withdraws Appeal in Walpole Suit

By Chuck Bingaman, Contributing Writer

            Berkshire Development’s years long effort to develop a triangle of land south of Walpole’s South Meadow Plaza took another surprising turn last week when the Springfield, Massachusetts based developer withdrew a legal appeal the day before filing its brief in the Superior Court in Keene.

            The case had challenged the way the town had voted in March 2007 to make it clearer that new commercial buildings were limited to 40,000 square feet. In his letter withdrawing Berkshire’s appeal, attorney Thomas R. Hanna said, “My clients’ withdrawal of this appeal does not relate to the analysis of the merits.  Rather, Berkshire is determined to work cooperatively with the town on development that will benefit both the town and the developer.”

            In the shifting battle over the wording and meaning of Walpole’ zoning ordinance, the town’s Planning Board voted in May 2006 to interpret the language as preventing the building of any new structure in the commercial zone that exceeded 40,000 square feet.  The language had been ambiguous in the minds of many, and Berkshire, wanting to build a large commercial mall-type building on the site, had interpreted the language to mean that there were no limits on the size of the building.  Instead, Berkshire argued that the ordinance language merely prevented any single “establishment” or business inside such a large building from being more than 40,000 square feet.

            As if to emphasize the Planning Committee’s 2006 ruling, the town voted in March 2007 to rewrite the language to make it even clearer that the 40,000 wording applied to the overall size of the building—not the businesses inside of it. 

            But then it got complicated.  The warrant article sought to change the language in two sections of the zoning ordinance—commercial and rural agricultural—in a single warrant article.  The warrant article passed at the Town Meeting, but Berkshire Development, still hoping to move ahead with a large, mall-type building on their land, appealed to the board of selectmen to throw out the vote and to separate it into two questions, one each for the commercial zone and the rural agricultural zone.

            Berkshire, through its attorney, had argued that lumping the language change together for both zones deprived voters of voting for the change in one zone and not the other, contrary to state law that requires only one subject per warrant article.  Walpole selectmen saw the change in language as the identical issue in both zones and affirmed the town’s vote in a special town meeting in May 2007.  Berkshire appealed to the Superior Court in Keene.

            Over the summer counsel for both sides met with the judge, agreed on a schedule for filing legal arguments in December and eventually extended the deadline for the filing of written arguments to January 15, 2008.

            Last Monday, January 14, Berkshire development counsel Thomas R. Hanna of Keene informed Walpole counsel Jeremy Hockensmith, also of Keene, that his client was withdrawing the appeal and not filing the brief after all. 

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