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The Westfield News Serving Westfield, Southwick, and the surrounding Hilltowns
www.thewestfieldnews.com
VOL. 83 NO. 242
WEDNESDAY, OCTOBER 15, 2014
“If you love someone, let them go. If they return to you, it was meant to be. If they don’t, their love was never yours to begin with.” — Author unknown
75 cents
School building contract void, city to rebid The new elementary school proposed for Ashley and Cross streets.
Court vacates school injunction By Dan Moriarty Staff Writer WESTFIELD – Hampden Superior Court Judge Daniel A. Ford struck down an injunction which prevented the start of construction of the Ashley Street elementary school project. Superior Court Judge Tina Page issued the temporary restraining order Sept. 17, 2012 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 $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 land. Those residents requested Ford to issue a permanent injunction until the city competes the Article 97 conversion process while the city argued that there is no grounds to prove that the Cross Street playground was subject to Article 97. Ford agreed with the city’s argument in his sixpage decision. Ford said the city took the land for non-payment of taxes on Nov. 13, 1939, but never recorded a document designating the land for Article 97 use with the Hampden County Registry of Deeds “as land devoted to the conservation, development and utilization of the agricultural, mineral, forest, water, air or other natural resources.” The City Council voted to approve an ordinance “providing that the land is ‘hereby named and shall hereafter be known as the John A. Sullivan memorial playground’.” 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 … ‘ “‘Municipal purposes’ would certainly seem to include the construction of a new school. The Supreme Judicial Court has held that, in cases of this type, ‘[t]he critical question to be answered is not whether the use of the land incidentally serves purposes consistent with art. 97,or whether the land displays some attributes of art. 97 land, but whether the land was taken for those purposes, or subsequent to the taking was designated for those purposes in a manner sufficient to invoke the protection of art. 97.’ [Mahajan v. Department of Environmental Protection, 464 Mass. 604, 615 (2013)]” “As previously set forth the land was not taken
for Article 97 purposes,” Ford said in his judgment. “Similarly, it was not subsequently designated for such purposes, because for such a designation to be effective it must be done by a document recorded in the Registry of Deeds. {See Board of Selectmen of Hanson v. Lindsay, 444 Mass. 502, 508-509 (2005) “To conclude that this could be accomplished solely by vote, without recordation of any instrument, would eviscerate the purposes of our recording acts.”)}. “It is undisputed that no instrument designating the land as Article 97 land was ever recorded in this case. As was pointed out by the Court in Mahajan, ‘where the property had indisputably been acquired as tax forfei-
ture and held as general corporate property, the town had to deed the land to itself for conservation purposes—-or record an equivalent restriction on the deed—-in order for Article 97 to apply to subsequent dispositions or use for other purposes.’ “The plaintiffs argue that the use to which the land has been put subsequent to the taking maybe considered in determining whether it has acquired Article 97 protection. They contend that its use as a playground for many years is entirely consistent with the purposes of Article 97. But see Curley v. Billerica, 2013 Mass. LCR LEXIS 128 (August 8, 2013) See Injunction, Page 7
Cross Street residents prepare to challenge court ruling By Dan Moriarty Staff Writer WESTFIELD – The residents of Cross Street who took the city to court plan to seek reconsideration of Hampden Superior Court Judge Daniel A. Ford’s decision to lift an injunction preventing construction of the Ashley Street elementary school project. Holyoke resident Thomas Smith, who grew up on Cross Street and whose mother continues to reside at 36 Cross Street, said residents of the Article 97 suit against the city will pursue two courses of legal actions seeking to overturn or reverse Ford’s decision to lift the Article 97 injunction halting construction of the proposed 600-student, 96,000-square-foot elementary school for more than two years.
“We’re preparing for an appeal (to Ford) for reconsideration of his decision and at the same time are preparing an appeal to the Appellate Court,” Smith said Tuesday. “We will also request a stay on (Ford’s) Decision to lift the injunction because if the city begins construction (of the new school) there would be irreparable harm (to residents of the neighborhood opposed to the school construction project).” Smith noted that Ford issued his decision within three days of the hearing at which the residents requested Ford to put a permanent injunction in place requiring the city to complete the Article 97 conversion for the of 1.37 acres of the 5.32 acre Cross Street playground See Cross Street, Page 7
Make-shift construction offices on the site of the former Ashley Street School in April of 2013 (File photo by Frederick Gore)
See Rebid, Page 7
Westfield traffic stop reveals stolen pistol By Carl E. Hartdegen Staff Writer WESTFIELD – A man stopped for a traffic infraction on Little River Road early Monday morning was found to be in possession of a stolen pistol and was arrested. State Trooper Matthew Kane (formerly a city firefighter) reports he was enforcing traffic regulations on Route 20 shortly after midnight when he observed a car “unable to stay within the marked lanes on the roadway” and he stopped the Honda Accord after it turned on to Little River Road and again twice crossed the center line. Kane reports that when the operator opened the glove compartment to get the vehicle’s registration he saw what appeared to be the handle of a handgun
and saw that the operator appeared to be shaking as he sorted through the papers he had removed from the glove box. Kane reports that he ordered the man from the vehicle and, after performing a pat frisk, investigated and found a loaded 9 mm Smith and Wesson automatic pistol. He reports that there was no round in the firing chamber and that “when the weapon was removed from the vehicle the operator made an unsolicited statement saying the firearm belonged to him.” The operator, Axel J. Gomez, 21, said that he did not have a license to carry firearms and Kane found that he had not been issued a firearms identification card either. Gomez was arrested and transported to the Russell state police barracks where,
By Peter Francis Staff Writer WESTFIELD – In the wake of a Superior Court decision granting the city of Westfield the right to proceed with the construction of a new elementary school on Ashley Street, it now appears that the city must now put the project out to bid again. The project’s original low bidder, Fontaine Brothers Construction of Springfield, received the contract on August 24, 2012, but City Purchaser Tammy Tefft stated that the city was informed by the office of Attorney General Martha Coakley recently that that contract is now void. “Due to the amount of time since the contract was awarded and stopped, it’s in the best interest to rebid the project,” said Tefft this morning. “So we have to do it again.” This is not new TAMMY TEFFT territory for the city and the process of putting a project out to bid hasn’t changed in two years. “It’s the same process with state governed rules as far as bidding goes,” said Tefft. “We have to go through the prequalification – we’ve got to redo the design documents, since things have already been done on the site – so we have to amend the document what the project entails.” Tefft stated that “pre-qualling” the general contractors and filed sub-bids is roughly a three to four week process. “We then send the bid documents out for actual bidding, which is usually about a four to five week process, between filed sub-bids and general contractor bids,” she said. “We then open the filed sub-bids and a week or two later, we open general contractor bids.” “Then, once everything is in, we go through the documents to make sure nothing is amiss and then make the award again for the construction of the school,” Tefft said. Fontaine’s winning bid in 2012 was $25,031,000, but Tefft believes it is too soon to estimate what a low bid might look like this time around. “It’s way too early to even tell,” she said. “We’ve got to go through the whole process of estimating it out.” Fontaine Brothers beat out three other general contractors for the project in 2012, all of which were “within the same price” according to Tefft. As to when the aforementioned process of putting the project out to bid will begin anew, Tefft is anticipating a start date around the end of December. “We’re negotiating right now with the
Kane reports, a check revealed that the gun, valued at $500, had been reported to be stolen in Vermont between May 28 and June 2, 2014. Gomez was charged with possession of a large capacity firearm, improper storage of a large capacity firearm, possession of a firearm without a FID card or a license to carry a firearm (a subsequent offense), possession of ammunition without a FID, receiving stolen property valued more than $250, carrying a loaded firearm without a license, failure to wear a seatbelt and a marked lanes violation. Gomez was transported to the Hampshire County House of Correction where he posted bail which had been set See Pistol, Page 3