Make-shift construction offices on the site of the former Ashley Street School last year. (File photo by Frederick Gore)
SPRINGFIELD – A Hampden Superior Court Judge ruled in favor of the Zoning Board of Appeals last week, rejecting an appeal filed by several Cross Street residents who contested a decision made nearly two years ago.
Superior Court Judge Richard J. Carey ruled that the ZBA’s decision was legal and awarded the city summary judgment on June 18, 2014.
The board voted on Nov. 16, 2011 to grant a dimensional special permit requested by the city to allow construction of the 96,000-square-foot school building at the corner of Ashley and Cross streets.
The dimensional special permit is required because two wings of the school are less than 20 feet from the west side property line. City ordinance in a Residence B zone requires a side yard setback of at least 20 feet.
The largest wing, which fronts Ashley Street, comes within eight feet of the church property, while the middle wing is within 12 feet of the property line.
The ZBA then called a special meeting on Oct. 18 which focused on the fact that the board adopted only three of the four findings recommended by the city’s Law and Community Development departments. Those findings are attached to the special permit to explain why the board granted the special permit.
The board, at the Nov. 16 session, argued that one of the recommended findings was not within its scope of authority. That finding was an endorsement by the ZBA that “adequate and appropriate facilities will be provided for the proper operation of the proposed use” as an elementary school.
The suggested finding pertained to “adequate and appropriate facilities for safe pedestrian circulation” between the school and the parking lot of St. Peter’s/St. Casmir’s Church. The city is entering a lease agreement with the church for use of the church parking facility by the staff of the school.
The board rejected the finding because it felt that those issues, sidewalks and parking, are the purview of the Planning Board.
Board member Martin Newman, who has argued against the recommended finding at the first meeting, suggested at the second meeting that the board acted in haste on Nov. 16 and should have given further consideration to the findings needed to support the dimensional special permit.
The appeal of the ZBA’s decision was initiated by Attorney Mark A. Tanner of Bacon Wilson in Northampton, who 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.
The residents also charged 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.”
Carey also found that the ZBA’s decision was rendered moot when the city purchased a strip of land from the church to meet the setback requirements while the zoning appeal was pending. The property deeded provided the city with the necessary 15-foot setback as required by city zoning ordinance.
Carey found that the Cross Street plaintiffs failed to support an allegation that the ZBA “’limited the public’s ability to comment’” when it conducted a second meeting to clarify its findings.
Carey disagreed with the plaintiff’s assertion that because the church held an easement it deeded to the city, that acquired land could not be used for the setback requirement.
“There is nothing in the Westfield zoning ordinance which prohibits this land purchased by the city from the church from being used to satisfy the setback requirements,” Carey said in his decision.
