Judge weighs call to dismiss cherry tree lawsuit in Northampton

  • About 65 people attended a Zen ordination ceremony for seven Japanese Kwanzan cherry trees on Warfield Place in Northampton on Monday, July 12, 2021. GAZETTE FILE PHOTO

  • Neighbors watch as an employee of Northern Tree Service cuts down the last cherry trees on Warfield Place on July 29. GAZETTE FILE PHOTO

  • Northampton Police officers try to talk Katie Young into climbing out of a cherry tree on Warfield Place so the trees could be cut down, Thursday, July 29, 2021. GAZETTE FILE PHOTO

  • Northampton Police officers arrest Liz Gaudet who refused to climb out of a cherry tree on Warfield Place so the trees could be cut down, Thursday, July 29, 2021. GAZETTE FILE PHOTO

  • Warfield Place in Northampton as seen on Dec. 7, 2021. STAFF PHOTO/BRIAN STEELE

  • One of two newly installed wheelchair ramps on Warfield Place in Northampton. Dec. 7, 2021. STAFF PHOTO/BRIAN STEELE

Staff Writer
Published: 12/8/2021 8:45:36 AM

NORTHAMPTON — Hampshire Superior Court Judge Richard Carey is considering a motion to dismiss a lawsuit filed this summer against the Northampton Department of Public Works by residents of Warfield Place who argued that the city illegally cut down nine cherry trees on their street.

The two sides in the ongoing litigation appeared in court Dec. 1 for a hearing on the DPW’s dismissal motion. Court records show that Carey took the matter under advisement and there is no clear timetable for a ruling.

Plaintiffs Lois Ahrens and Oliver Kellhammer allege that state law required the city to hold a public shade tree hearing before the July 29 tree removal operation began. A city contractor cut down the trees to make room for a paving and street improvement project and officials maintain a hearing was not required.

Warfield Place is legally closed, but still accessible to traffic. Crews with the construction company Warner Brothers have finished paving several streets under a single contract, including Warfield Place, and most of the remaining work is on hold until the spring.

The widening exemption

City officials have argued that a shade tree hearing was not required because of the so-called widening exemption, which allows for the removal of shade trees without a hearing when widening a “highway,” meaning the public way and sidewalk. City Solicitor Alan Seewald said in May that the planned widening of one sidewalk was sufficient to trigger the exemption, and the 30-year-old trees were cut down despite months of vocal opposition from residents of the street.

Ahrens’ and Kellhammer’s court filings make the case that the widening exemption can only be used when “the municipality intends to expand the absolute parameters of the entire right of way,” not just one sidewalk, and they cite a 1934 Massachusetts Supreme Judicial Court case that determined the standards for using the exemption.

The plaintiffs are asking for a statement from the court that the DPW acted improperly and a judicial order that, in the future, public shade trees must not be cut down without a hearing. They also want the trees replaced with 25-foot mature trees rather than the saplings that are planned, and they are seeking monetary damages from the city, claiming their property values will suffer.

Nancy Frankel Pelletier, an attorney at Robinson Donovan in Springfield, filed a motion on behalf of the DPW to dismiss the lawsuit in October, arguing that the plaintiffs do not have the standing to sue, they did not suffer any recoverable damages, and state law only allows for relief if the defendant’s alleged violation — in this case, cutting down the trees without holding a shade tree hearing — is part of a consistent practice of illegal or unconstitutional policies.

Attorney John McNally wrote that the city’s alleged violation of the shade tree hearing requirement “is likely to be repeated” without the court’s intervention, and argued point-by-point against the DPW’s dismissal motion on legal grounds. McNally declined to comment on the litigation when contacted by the Gazette.

As soon as the July 29 removal operation started, a local attorney representing residents filed for a temporary restraining order in Hampshire Superior Court. The order was granted before the work was finished, but contractors with Northern Tree Service kept cutting down the last tree.

Two Warfield Place residents, Kathryne Young and her wife, Elizabeth Gaudet, climbed into separate trees to delay the work while a judge decided on the restraining order. As police removed them from the trees and placed them under arrest for disorderly conduct, Gaudet told them that the ruling was expected in “three minutes.” The charges were dropped the next morning and each paid a $50 fee.

The specific timing of the restraining order, and how officials on the scene at Warfield Place responded to it, are matters under consideration in the lawsuit.

Work on hold for winter

In an email to the Gazette, public works director Donna LaScaleia said more work is needed to complete the project on Warfield Place.

“We anticipate that unfinished project areas will be stabilized for the winter by the end of the year and work will be fully complete in the spring,” LaScaleia wrote. “To that end, temporary sidewalks have been installed in some locations, including Warfield Place.”

Reached on Tuesday, Young said the street “went from a beautiful neighborhood to kind of like a gross Walmart parking lot.”

Most of the southerly sidewalk was removed and, as of Tuesday, in its place is a patchwork of paved sections that provide driveway access and long stretches of dirt. There is no plan to restore the sidewalk.

“To get from the front of the house to your driveway, you need to walk in the street or walk on dirt,” Ahrens said. “This is the opposite of accessibility for people who live on that side of the street. ... The way they have it right now? Dirt, paved, dirt, paved, dirt, paved. They took out a perfectly good sidewalk to do this.”

Editor’s note: This story has been corrected to reflect that plaintiffs are seeking monetary damages.

Brian Steele can be reached at bsteele@gazettenet.com.

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