UPDATE: Judge hears initial arguments in Kennedy Park Belvedere lawsuit
LENOX - The Kennedy Park Belvedere dispute remains unresolved following a one-hour hearing at Suffolk County Superior Court in Boston on Tuesday afternoon.
Following arguments by attorneys on both sides of the civil lawsuit, Judge Heidi Brieger took the case under advisement for further review of the facts in dispute and of previous legal cases. Twenty Lenox citizens filed the lawsuit demanding that the town remove the granite memorial installed at the park's scenic overlook two years ago.
On Tuesday, Brieger declined to issue an immediate ruling to dismiss the lawsuit. The town's law firm, Kopelman and Paige, had filed a motion seeking its immediate dismissal.
It was the first day in court over the bitter dispute that surfaced several months after the memorial was dedicated on June 1, 2011. The ceremony was attended by New York architect Michael Fieldman, who had paid $140,000 to fund the construction of a belvedere on town-owned land to honor his late son. Jordan Fieldman, a local physician and park devotee, had died of cancer on June 1, 2006, at the age of 38.
"The judge heard both sides from attorneys who argued the same issues as in the legal briefs that were filed," said Selectman Kenneth Fowler, who attended the hearing with Selectman John McNinch.
According to Fowler, the judge said that she will review some new information that was presented relating to cases that may have set precedence.
Jonathan Silverstein of Kopelman & Paige, the lead attorney defending the town, was unavailable for comment in time for this report.
Attorney Robert N. Meltzer, representing the citizens group, told The Eagle that he feels "very confident" that Judge Brieger will allow the case to go forward.
"The one thing that was very clear to everybody in the courtroom was that we are at the beginning of a very long, very drawn-out process," said Meltzer. "There are a number of ways of looking at the facts. This is not one of those cases that is clear one way or the other. We're in for a long run."
Meltzer, who heads Mountain States Law Group in Framingham, told The Eagle late Tuesday that the judge asked for five days to review documents on previous cases submitted by town counsel. Meltzer plans to submit additional information as well.
The next step, within three weeks to a month, is likely to be a written decision by the judge on the town's motion to dismiss the case, according to Meltzer.
"If she decides for the town, our next step would be the Massachusetts Appeals Court," he said.
On the other hand, if the judge rules that the case goes forward, Meltzer added, he would begin depositions of town officials and of Michael Fieldman. "He's definitely a witness we would want to hear from sooner rather than later," the attorney said.
During the hearing, he added, "what really came across is that there has never been a case under the state Scenic Mountain Act before. Nobody is certain what a case like that looks like. My sense is that the judge will allow the case to be fleshed out through the fact-finding process."
Meltzer explained that he listed Attorney General Martha Coakley as an additional defendant "because we feel she's an interested party in the case. Where a statute is unclear, you err on the side of caution, so her presence is necessary."
Four of the 20 town residents who filed the lawsuit attended the session.
As Selectman McNinch pointed out, "Our attorneys are very good at not getting our hopes up. They told us anything can happen, that the law is backing us up but a judge is never quick to dismiss a case."
A group of residents led by local business owner Sonya Bykofsky formed Citizens Advocacy for All to protest the belvedere, arguing that it violated provisions of the Lenox Scenic Mountain Act and that the approval process by the town's Kennedy Park Committee and Select Board in the fall of 2010 had lacked transparency and violated open meeting laws.
On Jan. 5, 2012, the Lenox Conservation Commission, on a 6-1 vote, ruled that the project had not violated the act, which the town had adopted based on a state law. The town's bylaw applies to work at elevations above 1,400 feet that affects external views of the site from a distance.
In response, the citizens group decided not to appeal the ruling to the state Department of Conservation and Recreation but to pursue legal action against the town.
The civil lawsuit seeking removal of the Kennedy Park Belvedere was filed by Meltzer at Suffolk County Superior Court on May 17, 2012.
Last September, Kopelman and Paige filed a motion on behalf of the town seeking dismissal of the lawsuit. In his filing, Meltzer argued that the granite memorial is obtrusive, oversized, a public nuisance and a violation of the Scenic Mountain Act.
The town has conceded that although the memorial project should have come before the Conservation Commission prior to construction, no laws were violated. Coakley has rejected claims that open-meeting laws were violated, according to outgoing Lenox Town Manager Gregory Federspiel.
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