WESTFIELD – A Hampden Superior Court Judge yesterday modified an injunction to allow the city to proceed with the $36 million elementary school project site preparation and demolition of existing structures.
Superior Court Judge Tina Page issued the temporary restraining order on Sept. 5, 2012 after a motion was filed by several residents of Ashley and Cross streets who contend that the city is violating state and federal law by using part of the Cross Street playground for the 96,000-square-foot building 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 that land, something the residents charge is protected park and open space.
The city is prepared to begin construction of the 96,000-square-foot, two-story, 600-student facility in partnership with the Massachusetts School Building Authority. The city elected to participate in the MSBA model school program to maximize state funding for the new school construction, which has a $36 million budget. The MSBA will reimburse the city for more than $23 million of that cost.
Page ruled yesterday that the injunction pertains only to the disputed playground property and that the city, through its contractor, Fontaine Brothers Inc. of Springfield, can continue work.
Page issued an order requiring the city to pursue a resolution of the Article 97 issue through the General Court. That process requires a two-thirds majority vote in both the state House of Representatives and state Senate.
The Article 97 conversion will require the city to replace the playground facilities being incorporated into the school project. That conversion process requires the city to own the land where the replacement facilities will be constructed.
Mayor Daniel M. Knapik said yesterday, after receiving Page’s decision, that the city will consider all options to resolve the Article 97 suit now pending in superior court.
Knapik said that Article 97 does not prevent the city from moving forward with construction of the new school and that the city’s position is that the Article 97 conversion does not have to be congruent with the school construction effort.
The city can seek to remedy the Article 97 conversion separately from the construction, but that the city would become ineligible for state and federal environmental grants until the Article 97 conversion process is completed.
State Sen. Michael R. Knapik said he hopes the city will appeal Page’s decision because the General Court is out of session until January and the Article 97 conversion issue cannot be resolved through normal channels until that time.
“The ruling does not stop the project,” Sen. Knapik said. “It says get the Article 97 ducks in a row. That has always been part of the school building project process. We knew there would be a legislative component.”
“Work on the new school can continue on non-Article 97 land,” Knapik said. “We have to see if there is some other remedy to speed the Article 97 resolution, which can be done over the next several months.
“The future option for park and recreational facility development is an opportunity to do something dramatic in the same area of the city.”
Knapik said that the city has been in discussion with state and federal officials who “believe that the city can do this without a formal process.
“The good news in the ruling is that the city can get on with demolition and site preparation,” Knapik said. “All of these delaying tactics could cost the city hundreds of thousands of dollars. The developer (Fontaine Brothers) could also decide that the suit is capricious and seek some level of damages from the plaintives.”
Mayor Knapik said that the demolition process cannot occur until hazardous materials, including asbestos, have been removed from the building.
That remediation process will occur over a span of several weeks, followed by the demolition of the former Ashley Street School, which will take about a month to complete.
When contacted for comment this morning, Mass. Secretary of Energy and Environmental Affairs and former Mayor of Westfield, Richard K. Sullivan, Jr. said, “I have totally recused myself of any Article 97 talks.”
