Popponesset Marketplace Open And Eager For Business

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By: Geoff Spillane
Published: 07/22/11

As summer 2011 nears its midpoint, it appears as if any uncertainty regarding the future of the Popponesset Marketplace has been put to rest.

“We are now confirmed as settling this case. The marketplace is open for business, and we plan on it being open well into the future,” Christopher Burden, whose family owns the Popponesset Marketplace, said.

A consent decree in the case of Daniel J. Murphy, Jr. v. Popponesset Marketplace, LLC was filed in United States District Court in Boston last week. A consent decree is a final, binding order that recognizes the voluntary agreement between parties to a suit, in exchange for an end to civil litigation.

“I’m thrilled to hear that shining star of Mashpee will remain open,” Wayne R. Taylor, chairman of the Mashpee Board of Selectmen, said.

Mr. Murphy, a longtime Popponesset summer resident, filed a lawsuit in 2010 claiming that the marketplace is in violation of the federal Americans with Disabilities Act (ADA) and required alteration to comply with accessibility guidelines.

Just before the Memorial Day weekend, the unofficial start to summer, both parties met in Mashpee for a meeting with nationally recognized mediator Brian J. Mone, president of Commonwealth Mediation and Conciliation Inc.

“We are very grateful to Brian Mone and his mediation expertise for helping to resolve this issue. Prior to the mediation, we could not have economically met the demands. The marketplace has a 10-week season, but 12 months of expenses,” Mr. Burden said.

Mr. Murphy, however, has mixed emotions regarding the settlement.

“I’m glad something was done, and we were able to keep the marketplace open, but I don’t think all the hoopla about closing was necessary. I’m not sure they’re doing as much as they could to improve access, and I don’t have a great feeling about it. I think I’ve been played a bit,” said Mr. Murphy, who added that disabled Americans represent 20 percent of the population and that improving access is not only the right thing to do, but is good for business.

Under terms of the agreement, Popponesset Marketplace LLC is required to pay attorney’s fees and litigation costs to Shaheen Guerrera & O’Leary LLC, the North Andover-based law firm that represented Mr. Murphy. The consent decree prohibits the payment amount from being released to the public.

While minor alterations not requiring a building permit were made prior to the marketplace opening for the 2011 summer season, there is a significant amount of work that must be completed by May 2012 to bring the complex up to full ADA compliance.

“We plan on beginning work this fall, right after the marketplace closes for the season. Given the uncertainty surrounding the marketplace this year, we deferred annual maintenance projects such as painting and replenishing the shells in the parking lot, so we have quite a bit of ‘catch-up’ work ahead, too.” Mr. Burden said.

The shell walkways at the marketplace were a major point of contention in the original lawsuit, as the uneven surface presented access difficulties for individuals in wheelchairs. To remedy the situation, an agreement was struck to maintain the Cape-inspired parking lot and walkways in combination with a path of “stable, firm, and slip-resistant” concrete that will wind its way through the marketplace.

Additional orders required by the consent decree include creating two additional handicapped-parking spaces with ample room for passenger loading, posting handicapped parking and “van accessible” signs, modifying the men’s and women’s public restrooms to be wheelchair accessible and well marked, and creating at least one accessible seating position at
The Raw Bar patio table seating area.

To ensure that the criteria specified in the consent degree are adhered to, the marketplace must provide written reports summarizing the status of the modifications to Mr. Murphy’s attorney in October and then again next summer.

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