Cross Street residents challenge ZBA

WESTFIELD – A Northampton law firm has filed an appeal with Hampden Superior Court challenging a special permit issues by the Zoning Board of Appeals for the proposed Ashley Street elementary school project.
Attorney Mark A. Tanner of Bacon Wilson filed the superior court appeal on behalf of Cross Street residents Ernest L. and Elizabeth Simmons of 32 1/2 Cross Street,  and Holyoke resident Thomas P. Smith, who has an ownership interest in his family’s house at 36 Cross Street.
The suit charged that the ZBA acted in an “arbitrary and capricious” manner when it granted a dimensional special permit to provide side-yard relief for the school project.
“There was no basis in fact or law for the grant of the dimensional special permit,” Tanner charges in the suit. “Any such grant was arbitrary and capricious, rest on legally untenable grounds, and was in violation of the law.”
The suit requests the court to take one of several actions; remand the issue back to the ZBA; find that the city “is not entitled to the permit it seeks in this issue as a matter of law and enter an order to that effect; or award such other relief (to the residents) as the court deems just.”
The plaintiffs contest the dimensional special permit “because there exists no basis in fact or law for approval of Westfield’s application in the first instance by the Zoning Board of Appeals.”
The ZBA was granted the ability to issue dimensional special permits by an ordinance approved by the City Council nearly two decades ago. Prior to approval of that ordinance, the ZBA had authority to grant only a variance, under very restrictive state regulations, or to make findings.
Only three bodies in city government are authorized to issue special permits, the ZBA, City Council and Planning Board.
The bulk of special permit case law pertains to special permits issued by the Planning Board. Those cases have led to an evolution of the special permit format, which now contains language of the reason for the special permit, conditions and findings, both of which are attached directly to the special permit.
Case law has established four standards, all of which must be satisfied, for the issuing body to approve the permit. The four standards are: the specific site must be an appropriate location for such use, structure or addition; the use as developed will not adversely affect the neighborhood; that adequate and appropriate facilities will be provided for the proper operation of the proposed use; and that the plan, as approved, conforms to all rules and regulations unless specifically waived.
The permitting board adopts findings that satisfy the criterion of the four standards, as part of the permit review process.
The ZBA conducted the public hearing on Nov. 16, at which the board unanimously approved the permit and attached three findings. The board convened again on Nov. 21 to modify its decision by adding a fourth finding, with input from Susan Phillips of the Law Department and Larry Smith, city planner and community development director, but did not allow or invite further public comment.
The city petitioned the ZBA to issue the dimensional special permit because the footprint of the proposed 96,000-square-feet school building encroaches into the 15-foot side-yard setback required under city ordinance. The proposed building has three wings on the west face of the structure.
The southernmost wing is within eight (8) feet of the property owned by St. Peter’s/St. Casimir’s Parish of the Springfield Roman Catholic Diocese, while the middle wing is within 12 feet of that property.
City ordinance also allows construction of a school in all zones.
The residents charge that the board “restricted the nature and duration of the public comment period despite the fact that the public’s proposed comments were germane to the Zoning Board of Appeals decision-making process.”
Mayor Daniel M. Knapik said Wednesday that the school project will continue while the appeal is resolved in Hampden Superior Court.
“I don’t think it will have a negative impact because the school opening is now projected for September of 2014. If we were still on a timeline to open in September 2013, I’d be concerned,” Knapik said. “At the end of the day, nothing says we don’t have the right to do this project.”
“So we will continue down the path as if everything is a go,” he said. “We have worked with Westfield State University to extend the (Juniper Park Elementary School) lease until June of 2014. The timeline now is for a fully commissioned building by April 20, 2014.”

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