WESTFIELD – The City Council voted 8-4 to send a positive recommendation by the Finance Committee to appropriate $260,000 for the eminent domain taking of 33 acres of farmland owned by the Weilgus Trust to the council’s Legislative & Ordinance Committee for further review.
Motions to refer an issue from one committee to another are usually a routine process approved on a simple voice vote, but the split vote reflects the division within the council on the acquisition of the Weilgus property which, if taken through eminent domain, will be used to construct athletic fields.
Ward 4 Councilor Mary O’Connell requested a roll call vote on the referral, which was approved 8-4. O’Connell and At-large Councilors David A. Flaherty, Cindy Harris and Dan Allie cast the dissenting votes to refer the Finance Committee’s recommendation to the L&O.
That 8-4 vote is meaningful because a super majority, nine (9) positive votes by council members, are needed to approve the eminent domain process for both the appropriation and the actual order of taking. Ward 3 Councilor Brian Hoose was not present Thursday night.
The Finance Committee and the Legislative & Ordinance Committee conducted a joint meeting Wednesday night to discuss the $260,000 appropriation and the order of taking. Nine councilors were present at that discussion and the floor was opened to city officials and residents in an informal quasi-public hearing.
The Finance Committee, at the end of the Wednesday night meeting, voted 2-0 to give a positive recommendation to the $260,000 appropriation for the land taking and to refer the issue to the L&O which voted to keep it in committee to get additional information from the Law Department.
The issue is further complicated because it is directly linked to the construction of a 96,000-square-foot, 600-student elementary school at the corner of Cross and Ashley streets.
Holyoke residents Dan and Tom Smith, who own the Cross Street house where their mother resides and where they grew up, urged the council Wednesday night to defeat the land acquisition, a vote which would kill the Ashley Street school construction project that they oppose.
The Smiths, and other Cross Street residents, sued the city for violation of Article 97 in Superior Court and won a stay on the school construction project.
Hampden Superior Court Judge Tina Page issued the temporary restraining order in early September, 2012 after a motion, filed by several residents of Ashley and Cross streets, contended that the city is violating state and federal law by using part of the Cross Street playground for the $26 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 city has challenged Page’s stay on the grounds of recent court decisions, including one by the state’s Supreme Judicial Court limiting the scope of Article 97 protection for park land and another in the Land Court which differentiate between a playground and park under Article 97 protection.
The Commonwealth of Massachusetts Land Court issued a decision last year in Curley v. Town of Billerica, (Misc 12-459001, Middlesex) discussing the applicability of Article 97 to “playgrounds.” “Massachusetts law does not explicitly define what constitutes a playground, but it does draw distinctions between parks and playgrounds that indicate that a playground is not a park.”
The injunction issued by Page is limited to the playground land being incorporated into the 96,000-square-foot, 600-student school building project. That land will be used for subsurface infiltration of storm water collected off the building and for a recreational area.
Tom Smith questioned the need to acquire the Weilgus Trust property, actively-farmed land that has been in the family for several generations.
“I’d like to ask the City Council members why there is such a dire need to acquire active farm land from an elderly lady who gets income from the rent of that property,” Smith said.
That question struck a chord with several members of the City Council in attendance.
City Solicitor Susan Phillips declined to discuss the legal issues of the taking, and conversion process Wednesday night, or in executive session, because of on-going litigation by the city’s executive branch
Phillips said the city has complied with the Article 97 conversion to replace 1.37 acres of the Cross Street playground with the proposed purchase of 33 acres from the Weilgus Trust.
The Article 97 conversion requires a three-step process, Phillips said. “The first step was to get approval from the National Park Service to agree with the city’s conversion proposal. The second step, before the council, is to take the land through eminent domain and the third step is to get the state Legislature’s approval.”
The city hopes to avoid the third Legislative step if Page lifts her stay order based upon recent court precedent.
Phillips said that if the Weilgus family is not satisfied with the $260,000 purchase price, based upon an appraisal of the property, it can appeal that figure in Superior Court.
“Mrs. (Alice) Weilgus has the right to go to court and argue for a higher number,” Phillips said.
Mayor Daniel M. Knapik said Friday morning that the city has strong evidence that the Weilgus property has not be “actively” farmed for years.
“My understanding is that aerial photographs have shown no activity for a number of years,” Knapik said. “And that Alice Weilgus indicated to us that when it was active indicated that she was getting $5,000 a year in rent.
The $260,000 purchase appraisal for the property is equivalent to 52 years of rental income at that rate.
