WESTFIELD – The Office of the Attorney General wrote a letter on September 30, 2016, asking the Supreme Judicial Court to hear the appeal of Smith et al. versus The City of Westfield citing “a substantial public interest in reversing the Appeals Court’s decision and clarifying an ambiguity in the Court’s decision about what public lands are protected by Article 97.
The Supreme Judicial Court decided at the end of December to hear the appeal. 
Thomas Smith, lead citizen-plaintiff in the case along with his brother Daniel, told The Westfield News that the letter from Assistant Attorney General Seth Schofield came “out of the blue” to their attorney, Thomas A. Kenefick, III.
Smith and his brother, who live in Holyoke, grew up at 36 Cross Street where their mother, Virginia B. Smith still resides at age 90. The house is the closest at 60 feet to the proposed Ashley Street Elementary School building. Smith said his mother used to be an elementary school teacher at the old Ashley Street School.
Smith said the city initially rolled out the school project in June 2011. He said at first the neighborhood pointed out serious flaws in the design; specifically, small streets, a large school, and a small property.
“It wasn’t until Dec. 2011, we came upon state documents that the Cross St. playground was ‘protected open space’ and started making calls to state agencies,” Smith said, adding that it took them 2 ½ months to understand what land protection meant. The proposed school project called for conversion of 1.37 acres of the Cross St. playground to the school project.
In March 2012, Smith and his brother held a public meeting in St. John’s Lutheran Church. Smith said fifty people attended the meeting, where they explained Article 97, National Park Service protection, and what the city had to do to convert the playground to school property. In May of 2012, they filed suit.
According to the recent letter from the Attorney General, “Article 97 protects ‘the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air, and other natural resources.’ Art. 97. It accomplishes this purpose by prohibiting the government (and municipalities) from selling or changing the use of public parkland without legislative approval in the form of a two-thirds roll call vote from both the Senate and the House of Representatives. Id.”
Smith said following the filing of the lawsuit in 2012, the city accepted bids for the school project. In late July, 2012, the project was awarded to Fontaine Bros to build a $36 million 600-student elementary school.
The hearing for an injunction was scheduled for Sept. 12, 2012. According to Smith, ten days before the court hearing, the city started demolition. Smith, who teaches landscape design and construction at Springfield Technical Community College, left school to talk with the construction manager and tell him that there would be a court hearing in a week. The construction manager said he had orders to proceed.
Within a week, the plaintiffs were able to obtain a restraining order. By that time, Smith said, a portion of the playground was destroyed, and trees cut down and cut up. He claims the city cleared more than the 1.37 acres called for in the project.
An article that appeared in The Westfield News in November 2012 on the outcome of the initial suit states: “Hampden Superior Court Judge Tina Page issued the temporary restraining order in early September after a motion, filed by several residents of Ashley and Cross streets, who contended that the city is violating state and federal law by using part of the Cross Street playground for the $36 million school project. The residents filed the suit earlier this year, charging that the city is violating Article 97 of the Massachusetts General Law which sets preservation protection for open-space land.”
The injunction was overturned two years later by Judge Daniel A. Ford on October 10, 2014, who said the property did not fall under Article 97. Ford wrote that “It is abundantly clear that when the City took the property for non-payment of taxes in 1939, it did so for the purpose of satisfying a debt and not for purposes of conservation or recreation.
“G.L. c. 60, Section 77 provides: ‘After foreclosure by a town of the rights of redemption under a tax title or taking, as herein before provided, the land shall thereafter be held and disposed of like any land belonging to it and held for municipal purposes …” Smith and the other residents on the lawsuit appealed the decision.
On August 25, 2016, the Massachusetts Appeals Court said Judge Ford was right, according to Mayor Brian P. Sullivan shortly after the Appeals Court ruling. “The appeals court affirmed the ruling of the lower court, saying yes, the lower court got it right, and the appeal is denied,” Sullivan said.
The plaintiffs had 25 days to appeal the ruling to the Supreme Judicial Court.
The Supreme Judicial Court hearing will be the fourth hearing on the matter.
The letter by the Attorney General’s office in September in support of the hearing focuses on the differing interpretations of Article 97 protection.
“This case raises an important recurring question about the precise post-taking or post-acquisition measures necessary to trigger the application of Article 97 to parkland that was not taken or acquired initially for Article 97 purposes but has since been continuously used for one or more of those purposes.
“The government, including municipalities would greatly benefit from more clarity on what measures are `sufficient’ to designate land not originally acquired for Article 97 purposes as Article 97 land, thus triggering the Article’s important constitutional protection. And the facts of this case represent an ideal vehicle to do so, because the record includes so many different types of evidence that reflect a clear intent on the part of the City of Westfield to designate the disputed land as protected parkland subject to Article 97. For example, the City of Westfield transferred “full charge and control” over the disputed land to Westfield’s Playground Commission in 1948.. and enacted an ordinance in 1957 recognizing that the land had been “designated as a public playground” and dedicating it as the John A. Sullivan Memorial Playground…. Later, in 1979, the City applied for and received money from the federal Land and Water Conservation Fund (LWCF) and the LWCF’s authorizing Act mandates that a grant recipient must maintain the benefited land in perpetuity for public outdoor recreational use… And, in 2010, the City confirmed that the Park was permanently protected recreation land.
“These facts, taken individually or together, should have been sufficient… to bring the disputed parkland within the protection of Article 97. There is thus certainly a substantial public interest in this Court’s clarification of this important public issue.”
The Massachusetts Association of Conservation Commissions (MACC) also wrote a letter on September 26, 2016 in support of the hearing on the appeal, via their attorney Luke H. Legere of McGregor & Legere.
“Specifically, MACC agrees that land not expressly acquired for Article 97 purposes is commonly dedicated to such purposes at a later date. In these circumstances, this Court’s prior decisions appear to allow for Article 97 protection only where the subsequent restrictions on use is formally recorded in the chains of title.
“Article 97 itself does not, however, require that dedication of land to Article 97 purposes be reflected in the property’s chain of title in order to qualify for protection.
“MACC respectfully requests that this Court allow the Plaintiffs’ Application for Further Appellate Review in this matter to address this fundamental inconsistency between Article 97 and the cases interpreting it.”
“There is no support in the neighborhood whatsoever for that sized school there,” Smith said last week. “It’s not fair to the neighborhood – 600 students in such a small area,” he added.
He said initially when they found out the city knew about the protections, it “ticked the neighborhood off.” According to Smith, the Cross St. Playground is one of the “highest used playgrounds” in Westfield, and the original home of the Little League. He said it is the only recreational open space serving that section of the city.
Smith said even if the city prevails in the Supreme Judicial Court, there is still a pending suit on the replacement land on Ponders Hollow Road, and two other potential legal courses they could follow. He said he and two elderly retirees are paying for the legal fees, which he called “a huge sacrifice for people on fixed income.”
“We’re going on and on, we’re committed to this,” Smith said, adding, “We have the ultimate level of commitment to protect the rights of the people.”
