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School opponents seek permanent injuction

Date: 10/10/2014

WESTFIELD – The Ashley Street School Project, once again, returned to Hampden County Superior Court. This time, the plaintiffs sought to make the temporary injunction suspending construction of the school permanent until Article 97 requirements were fulfilled.

The city intends to use Cross Street Playground as part of the new Ashley Street 600-student elementary school site, initially anticipated to open in September 2014.
The injunction has been in place since Sept. 18, 2012. Judge Daniel Ford presided over the hearing on Oct. 7. Attorney John Liebel represented the city of Westfield, having taken over the case for former city solicitor William O’Grady, who resigned after accepting a judgeship.
Attorney Thomas Kenefick III represented the plaintiffs: Virginia Smith, Thomas Smith, Daniel Smith, Ernie and Elizabeth Simmons, Brian and Erin Winters, Dean and Virginia Winters, Patricia Bettinger, Benjamin Larsen, Fred Pugliano, Don and Sharon Wielgus, Marcus and Karen Jaiclin, Frank and Helen Mochak, William Wigham, Gary Wolfe, William Schneelock, Fred Wrobleski, Jose Santos, and Francis and Barbara Simmitt.
Kenefick argued that the Cross Street Playground was protected by the Massachusetts Executive Office of Energy and Environmental Affairs Article 97 Land Disposition Policy that requires replacement land to be designated before protected land is converted or repurposed.
“None of the underlying facts have changed,” Kenefick said. “The large school is going to encroach upon this open space.”
Ford said, “The Land Court defines a playground as ‘an improved space with structures in it.’” He also noted that Cross Street Playground was not listed on in the Registry of Deeds.
Kenefick argued that the playground was protected by Article 97 because it had been used as “open space” for nearly half a century until the city decided to build a school on it in 2011, triggering the Article 97 requirements. “At this point in time, they have to comply with Article 97,” Kenefick said. “
Kenefick also stated that the acceptance and use of Land and Water Conservation Fund monies for the playground in the late 1970s as evidence that the land was indeed designated “open space” by the city.
“At the end of the day, all they want to do is build a school,” Liebel said.
He described the case as having “too much clutter.”
Liebel added, “There’s an enormous amount of documents that still doesn’t support the [Article 97 claim].”
Liebel argued that the Article 97 restriction only applies during the “initial taking” of land or when that taking is “ambiguous.” He stated that neither was the case with the Cross Street Playground.
The history of this case is below.
After months of inactivity, the National Park Service (NPS) declared its support for the conversion of Cross Street Playground in November 2013.
In a letter dated Nov. 18, 2013 the NPS stated, “The 46-acre replacement site is known as the Weilgus Property and is located approximately one-quarter of a mile from the converted parkland. The replacement site is of greater fair market value than the converted parkland and is of equal recreational usefulness and location.”
The mayor attributed part of the delay to the temporary government shutdown and sequestration.
On Sept. 7, 2012 the city hosted a groundbreaking for the site. In preparation for construction, Cross Street Playground was cleared and the former Ashley Street School was demolished. The site remained under temporary injunction while the NPS ruled on whether the Article 97 requirement had been satisfied for the use of Cross Street Playground as part of the new 600-student elementary school site, initially anticipated to open in September 2014. The injunction was implemented Sept. 18, 2012.
In March of 2013, the city submitted its environmental assessment of the playground, which is protected by the Land and Water Conservation Fund Act, to the NPS.
In April of 2013, during the public comment period of the assessment Alice Wielgus, owner of the property at 146-150 Main St., submitted a letter stating that her land, which was named as a replacement site in the environmental assessment to accommodate the conversion of the Cross Street Playground, was not for sale.
In the approval letter, the NPS cited a condition for the conversion of the Wielgus property, “The city of Westfield will conduct a Phase 1 archeological survey prior to any ground disturbing development at the replacement site. Additionally, no ground-disturbing activities can take place on the replacement site until the Phase 1 archeological survey and proposed construction has been reviewed by the State Historic Preservation Officer in accordance with Section 106 of the National Historic Preservation Act of 1966.”
The restriction was imparted because the property “contains two ancient Native American archeological sites that are recorded in the Massachusetts Historical Commission’s Inventory of Historic and Archeological Assets of the Commonwealth, but do not meet the Criteria of Eligibility for listing in the National Register of Historic Places,” according to the NPS.
To date, the city has not released details regarding the archeological survey.
The City Council’s Legislative and Ordinance subcommittee had been reviewing whether to take the Weilgus property, 146-150 Main St., by eminent domain since June of this year. To date, the matter remains in subcommittee and a decision has not been made.
At the July 7 council meeting, Weilgus told the councilors that she did not want to sell her land and that she was against the idea of the property being taken by eminent domain.
Earlier this month, Knapik announced that the city would no longer pursue taking the Weilgus farm by eminent domain and advised the City Council not to take action on the tabled matter. Another city-owned property will be proposed as a replacement site for the Cross Street Playground.
The brief Ford reviewed was filed on Aug. 7. The plaintiffs’ initial filing in 2012 resulted in a temporary injunction that halted the construction of the school.
Mayor Daniel Knapik released a statement regarding the Oct. 7 court appearance. It stated, “This afternoon, attorneys for the city of Westfield presented a brief to the Superior Court that presents a set of facts that we believe clearly show that the Cross Street parcel proposed to house a model elementary school is not subject to Article 97 of the Massachusetts Constitution and therefore not subject to the state legislature’s review. We look forward to the judge’s decision on this matter.”
Kenefick said, “I think the position of these folks is legitimate and valid. They needed their day in court.” He anticipated that Ford would issue his decision after reviewing the case.
“If the city complies with Article 97, then they have every right to do what they want to do,” Kenefick commented.