WESTFIELD – The attorney representing a group of Cross Street residents appealing a decision by the Zoning Board of Appeals to grant a dimensional special permit for construction of a new elementary school has notified that City Council that the city’s case is “fatally flawed.”
Mark A. Tanner of Bacon & Wilson, a Northampton law firm, filed the appeal on Dec. 15, 2011 of the ZBA’s decision in Hampden Superior Court on behalf of Ernest L. Simmons and Elizabeth Simmons of 32 1/2 Cross St., and Thomas P. Smith, a Holyoke resident with an ownership interest of his family home at 36 Cross St.
Tanner also named the City of Westfield and Mayor Daniel M. Knapik as defendants in the law suit contesting that the special permit decision by the ZBA is fatally flawed and that the board voted in violation of state law.
“Although this litigation and the ZBA appeal are not directly within the purview of the City Council, my clients believe it is important for the Council and citizens of Westfield to understand their position and beliefs with regard to this litigation and the construction of the School,” Tanner stated in the letter. “I therefore ask that you accept this correspondence on my clients’ behalf, and enter it into the public records of your meeting dated March 1, 2012.”
The ZBA approved a dimensional special permit for a reduction of side-yard set backs at its Nov. 16 session. That special permit was approved because two wings of the elementary school building will be less than the 15 feet side-yard setback required by city ordinance code.
A section of the south wing, facing Ashley Street will be within eight (8) feet of the St. Peter/St. Casimir Church property, while the middle wing will within 12 feet of the church property, specifically the parking lot which will be leased by the city for staff parking.
The ZBA voted unanimously to approve the dimensional special permit and attached three findings as part of that decision.
The Law Department advised the ZBA to modify those finding based upon case-law, court decisions made when a decision is appealed. The findings are based on standards of review by the special permit granting boards.
The Law Department advises all special permit granting boards, which include the City Council, Planning Board and ZBA, to attach specific conditions and findings as part of the special permit vote.
Tanner states that residents were not allowed to speak at the ZBA meeting during which the board voted to add the fourth finding to its decision. The ZBA had closed the public hearing on Nov. 16, but allowed Susan Phillips, supervisor of the Law Department and former Community Development Director Larry Smith to provide technical information to the board members prior to their vote.
“Further, in amending the Special Permit without affording interested parties the opportunity to be heard, the ZBA infringed on the public’s faith in the permitting process,” Tanner said in the letter to the City Council members.
Tanner cited the “Dover Amendment” with respect to the ZBA’s decision and his argument that the school, as proposed, does not satisfy the dimensional and setback requirements.
[The Dover Amendment is the 1950 Massachusetts statute that requires local permitting authorities to give more favorable treatment than what is conventionally required to the land use and zoning applications of, among others, nonprofit educational institutions and religious organizations.
Specifically, the Dover Amendment states that “[n]o zoning ordinance or by-law shall prohibit, regulate or restrict the use of land or structures for religious purposes or for educational purposes on land owned or leased by the [state], or by a religious sect or denomination, or by a nonprofit educational corporation” — except that reasonable restrictions in eight specified areas may be imposed so long as these restrictions do not unduly hinder the religious or educational use. Those eight areas of permissible zoning restriction are: bulk of structures, height of structures, yard sizes, lot area, setbacks, open space, parking and building footprints. (Mintz Levin’s Benjamin Tymann and Peter McCarthy LLP represented Gordon College at the Wenham ZBA and in Superior Court.)]
Tanner said that the city’s process was flawed because the project should have gone before the Planning Board for site plan review prior to being reviewed by the ZBA.
Ward 1 Councilor Christopher Keefe, who also services as the City Council president and was a former ZBA chairman, said the Planning Board could not review the project prior to the ZBA’s vote to grant the dimensional special permit and side yard relief.
“It was not a conforming building lot because of dimensional issue” until the ZBA granted relief, Keefe said. “The Planning Board could not review the project until it was a conforming lot.”