Friday August 31, 2012

LENOX -- The town's lawyers are seeking a quick ruling from a state court to throw out the lawsuit filed against Lenox last May by a group of 20 local citizens demanding removal of the Kennedy Park Belvedere.

Municipal-law specialists Koppelman and Paige will file a motion in a Boston court by the end of next week seeking a summary judgment dismissing the suit.

The document has been relayed to the citizen group's attorney, Martin N. Meltzer of Mountain States Law Group in Framingham.

Attorney Jonathan Silverstein of Koppelman and Paige told The Eagle on Thursday that Meltzer has until Sept. 6 to file opposition to the motion to dismiss, after which the paperwork will be forwarded to Suffolk Superior Court, where the lawsuit was initiated in mid-May.

In a telephone interview from Boston, Silverstein explained that his firm's paperwork had been served on Meltzer in late July. After the Sept. 6 deadline passes for his response, the court would schedule a hearing date for the motion to dismiss the citizens' group's lawsuit.

"I've learned long ago not to try to handicap a case," Silverstein said. "But there are very strong arguments for why the case should be dismissed and we're hoping that the judge agrees."

At the hearing, likely within several months, the attorneys for both sides would present their arguments without any witnesses. The session would be open to the public.

"The lawyers have told us that it's a high bar because judges are reluctant to dismiss right out of the gate, but we'll see," said Lenox Town Manager Gregory Federspiel.


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In his lawsuit, attorney Meltzer -- who did not return a call from The Eagle on Thursday for comment -- argued on behalf of the citizen group led by Lenox resident Sonya Bykofsky that the granite memorial on the south-facing Kennedy Park overlook is an obtrusive nuisance and violates the state's Scenic Mountain Act. The Kennedy Park Belvedere was erected 15 months ago as a tribute to the late Dr. Jordan Fieldman of Berkshire Medical Center.

The town's Conservation Commission, which has en forcement authority for the town bylaw based on the state act regulating alterations to vistas above 1,400 feet, ruled last spring, a year after the construction, that no violation had occurred. It issued a permit for the installation and also ordered some corrective work to improve drainage at the site.

According to Silverstein, the town's primary arguments in favor of a quick dismissal of the lawsuit include the citizen group's failure to appeal the Conservation Commission's approval of the project to the state Department of Con servation and Recreation within the required 10 days.

"The plaintiff's complaint doesn't even acknowledge that the Conservation Com mission issued the permit," said Silverstein.

He also contended that since the Scenic Mountain Act closely parallels the Wetlands Protection Act, the timing of the commission's approval of the belvedere after it was completed is not relevant, since such permits are routinely issued after the fact, often with conditions for alterations or modifications.

As for the citizens' argument that the memorial is a nuisance resulting from town negligence, Silverstein said state law bars any legal action against a town based on lack of permitting or inspections.

"Our position is that the lawsuit is barred because under a claim of negligence, a town cannot be sued for permitting or regulatory activity," said Silverstein.

The town's legal expenses are not covered by municipal insurance, Federspiel explained.

"We'll have to go to the voters for a special allocation, depending on how quickly costs ratchet up," he said. So far, the bills have totaled slightly over $3,000, according to Federspiel.

The lawsuit is the first court case filed under provisions of the Scenic Mountain Act.

The memorial was funded by Dr. Fieldman's father Michael, a New York-based architect, who spent at least $140,000 on the installation and on improvements to the overlook area. Dr. Fieldman died of cancer in 2006 at the age of 38.

The project had been approved by the Selectmen and the Kennedy Park Committee at open meetings held in October 2010.

To reach Clarence Fanto:
cfanto@berkshireeagle.com,
or (413) 496-6247
On Twitter: @BE_cfanto