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This is another FRIVOLOUS and needless appeal.

Tool Company ruling seen taking weeks

ROCKPORT - Cape Ann Tool Co. property-owner Christopher Kaneb will have his day in court Wednesday to convince a judge to dismiss an appeal that's held up redevelopment plans for the site for more than a year.

But it may be several weeks before Kaneb and others learn the Superior Court judge's decision regarding a motion to dismiss the appeal by a 10-citizen intervener group that - led by controversial activist and Stevan Goldin - has blocked Kaneb's plan to revitalize the Pigeon Cove property with a condominium complex and commercial building.

"We expect the judge to listen, ask questions, take the matter under advisement and then, in a month or two - hopefully not longer than that - issue a written decision," said Dan Bailey, an attorney who represented Kaneb throughout the project's Rockport permitting process. "I'd love for the judge to rule from the bench on Aug. 20, but that's only happened twice in my 20 years doing this."

On Wednesday, a Suffolk Superior Court judge will consider two motions from the defendants, the first to dismiss the appeal altogether and a second, to reconsider a June Superior Court decision allowing the plaintiff's to amend their original complaint, which was filed July 12, 2007.

"We filed the motion to dismiss on the basis that what (the plaintiffs) have said is the basis of their appeal is not something the Conservation Commission, Department of Environmental Protection or court can address," Bailey said.

The plaintiffs, a 10-citizen intervener group led by Goldin, moved to amend the original complaint and the motion was allowed by the court on June 6, 2008. According to that group's attorney, Robert Wolfe, the defendants (Kaneb's development company, Old Colony Maritime, LLC and the state's Department of Environmental Protection) are asking the court to change its mind and reconsider allowing the amendment. The Attorney General has not moved to reconsider, Wolfe said Friday.

In the meantime, Goldin, 66, is facing two counts of extortion for dealings with local developer Jay McNiff, and Gloucester Crossings front man Sam Park as well as two counts of violating state fund-raising laws for allegedly not registering as a charity an organization to which he directed donations toward.

Bailey, however, said the judge will not consider Goldin's criminal charges at Wednesday's hearing on the Cape Ann Tool property.

Goldin has been fighting projects from Rockport to Boston for years, relying on support of local residents who agree to band together as "citizen petitioners" in order to mount legal appeals.

The original complaint regarding the Cape Ann Tool Co. site was an appeal of the DEP's final decision, and its final decision on reconsideration denying the group's attempt to intervene with a DEP-approved superseding order over the Rockport Conservation Commission's order of conditions for the project.

Goldin and his group contend the state wetlands permit awarded to the town's Conservation Commission from the DEP last summer was invalid because of what Goldin described then as high levels of polychlorinated biphenyls at Pigeon Cove Harbor. PCBs are toxic chemicals formerly used as insulators in electric equipment such as transformers.

In 1993, the DEP investigated the factory site and found asbestos, oil and other chemicals. However, the agency oversaw a site cleanup in the late 1990s and declared the contaminants did not pose a significant health risk.

"I would not have been involved unless I thought there was an absence of scientific evidence to believe all is well in Pigeon Cove," Wolfe said. "If there is a scientific report out there, no one else has said that."

Wolfe said that, while the physical site may be considered healthy, the water nearby has never been cleared.

"They did a cleanup but nobody got their feet wet," Wolfe added. "The cleanup was on dry land."

Past judgments have not always been kind for Goldin. The Massachusetts Appeals Court, the state's second highest court, threw out a Goldin effort to stop a three-home subdivision in West Gloucester with the observation that Goldin's brief was "bereft of any reasoned argument." That court went on to punish Goldin with the assignment of court costs for advancing a case it called a "paradigm of frivolity."

According to the DEP's recommended final decision on the current matter - obtained by the Times and written by presiding officer, Philip Weinberg - the group's response to why the appeal to the Conservation Commission's conditions should not be dismissed by the DEP was inadequate.

"The petitioner's response stated only that pollution prevention 'is an interest of' the Wetlands Act, that the Conservation Commission Order did not call for removal of PCBs allegedly located in the harbor or retain an independent licensed site professional to monitor the site decontamination they desired," Weinberg wrote. "The (DEP) filed responses arguing the appeal should be dismissed for failure to state a claim for which relief can be granted."

Weinberg added that, even if the group's factual allegations were true, their appeal did not raise a specific claim under the Wetlands Act or regulations.

"It is apparent that the petitioners were dissatisfied with the outcome of decisions made in the course of the public process that reviewed the proposed cleanup and redevelopment and are looking to accomplish their objectives by misplaced reliance on wetlands jurisdiction, "Weinberg states in the May 15, 2007 decision. "Simply citing to the Wetlands Act does not constitute a viable claim with the required specificity."

Many residents want to see the eyesore structure on the Tool Company site razed in favor of Kaneb's 25 condominiums and 8,000-square-foot commercial building.

Neighbors like Marie Larsen and officials like Planning Board Chairman Samuel Coulbourn resent that none of the dozen people in the 10-citizen intervener group are from Rockport.

Armed with a Ch. 91 license and all required municipal approvals, Kaneb said that, if this final appeal on the project is dismissed, the project would most likely be back on track, needing only building permits to proceed.