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Wettlaufer hired big gun super lawyer Tani Sapirstein to represent the town in Superior Court on the town’s complaint for injunctive relief. The injunction is sought by the town because Karen Raymond is in fear that her house would catch on fire because LaMountain burns brush in connection with his land clearing operation needed to create pastures for his Hereford Cattle.

Chad Brigham, director of Northeast Concepts Inc. and LaMountain’s son Mike and his farmhands were grouped together in the seating area on one side of the isle; the three selectmen watched the spectacle paid for by the taxpayers to the tune of $350 an hour on the other side inside Court Room 3 on the third floor a the Hampden County Superior Court in Springfield.

Judge Cornelius J. Moriarty was already seated on his bench to the right, I got there a few minutes late.

Super Lawyer Tani Sapirstein started with her argument. She was very sharp and focused and it was obvious that she did her homework.

If you throw enough darts blindfolded, you will eventually hit the target. Regular readers of the Holland Blog know that one of the darts will cost LaMountain and Northeast Concepts $75,000 each; not because they did something wrong but because LaMountain’s attorney Erin O’Neil Baker missed a deadline. Wettlaufer’s victory was based on a so called “default judgment.” The Holland Blog wrote about it in “What really happened...”

Commenting about the “dart” mentioned above, Selectmen James Wettlaufer stated at the beginning of the selectboard meeting of November 3, 2009 about the default judgment against James LaMountain: “It ’s a very, very good thing for the town and it is about time. I also appreciate the fact that there were many witnesses who are residents in this town who contributed to this case...“ The same “many witnesses who are residents in this town” were the same this time around, Karen Raymond; the same one and only one!

LaMountain was representing him self; attorney Clifford Heaton’s presence was a mandate by law; Corporations need to be represented by an attorney. Northeast Concepts Inc. is named as one of the two defendants in this action, James LaMountain the other defendant.

As Judge Moriarty gave the floor to attorney Heaton, he started his argument without giving judge Moriarty his respect.
Judge Moriarty, “Would you please stand up if you address the Court please..” Judge Moriarty was extremely professional, impartial and showed a lot of patience with attorney Heaton and LaMountain who had a hard time not to interrupt Judge Moriarty. Heaton does not seem to be very experienced as a trial lawyer and many of Sapirstein’s objections were sustained.
The hearing was painful to follow, LaMountain’s attorney and LaMountain himself were not on the same page at times. Once Heaton objected to the Sapirstein’s request for admission of a document and LaMountain wanted the document submitted into evidence. The hearing was chaotic at times.

Around 11:45 a.m. judge Moriarty tried to bring the parties back to the issue relevant for the hearing.

The hearing was about the request by the town to enjoin the LaMountains for conducting any burns on the hillside property, that the LaMountain's claim to be a farm.

Super Lawyer Sapirstein’s argument was twofold:
First, she argued that LaMountain is not a farmer and instead a real-estate developer, and
Second, that conducting any fires would be to dangerous.

LaMountain’s position was that he is a farmer and as such would have the right to conduct burnings without the constraints put on individuals not engaged in farming.
The second contention he rebutted with his argument that he is not engaged in any activity that could even be remotely considered residential development.

LaMountain tried to lay a foundation to introduce a building permit for a farm building into evidence. Sapirstein was quick to object and pointed out that the document was just a copy and would not satisfy the “Best evidence rule.”
The judge sustained her objection (and rightfully so, rules are the rules.)
Sapirstein then produced a certified copy of a letter predating the issued building permit claiming that LaMountain poured a foundation for a residence without permit. Even so LaMountain has a building permit and the foundation is for a farm barn, what made it into evidence was the damaging letter which creates a false impression.

These little things add up over the course of a day; a defendant can be a farmer representing himself and end up as a real-estate developer at the end of the day.
Vise versa, a real-estate developer can be represented by a super Lawyer and end the day as a harmless farmer... that is just what Super Lawyers can do. That’s why Wettlaufer and Johnson don’t take town counsel Vincent McCaughey to battle and instead show up with the big guns.

Back in the summer of 2007, Judge Dina E. Fine from the Housing Court ruled favorable for LaMountain and against the town of Holland. In her decision judge Fein opined: “At this stage, however, the only activity which is being conducted at the property is agricultural in nature:” See Findings, Rulings, and Order for Entry of Permanent Injunction, par. 14, page 6.

However, judge Fein also opined: “LaMountain has argued that the Town is not permitted to restrict the hours during which he may engage in agricultural burning. I disagree. 310 CMR 7.07(3)(e) mandates the hours during which seasonal burning must take place. The regulation does not, however, limit the Town’s authority to condition issuance of a permit for agricultural burning on such terms as the Fire Department determines to be necessary to protect against fire hazards.”
See Findings, Rulings, and Order for Entry of Permanent Injunction, par. 15, page 6.

I remember that I told LaMountain back in June of 2007 that even so Judge Fein ruled in his favor, Judge Fein didn’t get it all right.

Here is why: Judge Fein claimed that, “310 CMR 7.07(3)(e) mandates the hours during which seasonal burning must take place.”

She misread the Regulations;

310 CMR 7.07:(1) provides a general restriction to all persons to conduct open burnings.

310 CMR 7.07:
(1) No person shall cause, suffer, allow or permit the open burning of any combustible material.

310 CMR 7.07:(2) through 7.07:(3) provides exemption to the general restriction outlined under 7.07:(1).

310 CMR 7.07:
(3) Except during periods of adverse meteorological conditions as may be determined by the Department when direct or public notice thereof has been made by the Department through the news media, 310 CMR 7.07(1) shall not apply to open burning conducted for:

open burning of brush and trees resulting from agricultural land clearing operations;

This exemption, exemption “c,” unequivocaly allows LaMountain to burn brush without the limitations erroneously mentioned by Judge Fein. The limitations mentioned by Judge Fein are in a different and separate subsection of 310 CMR 7.07:(3), subsection “e.” As such the ristrictions only apply to the exemption allowed in this subsection, subsection “e”:

[T]he disposal of brush, cane, driftwood, and forestry debris excluding grass, hay, leaves, and stumps from January 15 to May 1 of each year. All such open burning shall be conducted:
1. on land proximate to the place of generation,
2. at a location greater than 75 feet from any dwelling, and
3. between ten o'clock A.M. and four o'clock P.M.
No such open burning shall apply to commercial or institutional land clearing for non-agricultural purposes.
Open burning under 310 CMR 7.07(3)(e) shall not be permitted in the Cities and Towns of Arlington, Belmont, Boston, Brookline, Cambridge, Chelsea, Chicopee, Everett, Fall River, Holyoke, Lawrence, Lowell, Malden, Medford, New Bedford, Newton, Somerville, Springfield, Waltham, Watertown, West Springfield, and Worcester, or where the Department has notified a city or town that:
1. open burning under this provision may cause or contribute to non-attainment of federal or state ambient air quality standards for particulate matter,
2. open burning under this provision may cause or contribute to a condition of air pollution, or
3. open burning under this provision is not permitted due to continued violations of the provisions for the proper conduct of such open burning. (Such action shall be taken only after said city or town has been given written notification of such violations and has in the opinion of the Department failed to take appropriate actions to prevent the continuance of such violations.) Upon request of the Department the permitting authority of any City or Town shall notify the Department of the number of permits issued during any burning period.

The limitations (hours during which he may engage in agricultural burning) mentioned by Judge Fein in her decision are only applicable to the exemption of subsection 7.07(3)(e), which provides: “[T]he disposal of brush, cane, driftwood, and forestry debris excluding grass, hay, leaves, and stumps from January 15 to May 1 of each year.”

To read 310 CMR 7.07 click here!

For the forgoing reasons, I suggested LaMountain back in 2007 to appeal Fein’s decision as he would run into problems down the road, and he did!

It is ironic, that the only fire that got out of control, the The “Twining” Burn of April 26, 2008. was a burn permitted by the Fire Chief during Meteorological questionable conditions.

Wettlaufer’s BIG GUN pleads “Public Safety.”

I remember that I told LaMountain back in June of 2007 that even so Judge Fein ruled in his favor, Judge Fein didn’t get it all right.

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