Holyoke resident files open meeting law complaint over zoning petition denial 

  • A city resident has filed an open meeting law complaint against the Holyoke City Council, alleging that the council voted on a petition for a zoning change without placing it on the agenda. The petitioners wanted to change three parcels — 001, 005, and 008 on map 223, block 00 — from “business-highway” zoning to “residential-two.” SCREENSHOT/MapGeo

  • Holyoke City Hall GAZETTE FILE PHOTO

Staff Writer
Published: 9/18/2020 10:55:02 AM
Modified: 9/18/2020 10:54:51 AM

HOLYOKE — A city resident has filed an open meeting law complaint against the City Council, alleging that the 13-member council voted in August on a petition for a zoning change without placing it on its meeting agenda. City officials say the matter was the result of a clerical error.

James Fitzgerald of 439 Northampton St. filed the complaint against the council, saying that the council didn’t give prior notice before it denied the petition, filed by Fitzgerald and his neighbors, to rezone a parcel in the Smith’s Ferry neighborhood. Fitzgerald has asked that the council reschedule a final hearing and vote with proper notice to community members and that Ward 3 Councilor David Bartley recuse himself from the discussion.

Fitzgerald said he filed the complaint because he feels as though some councilors “held the door open for the developer, then slammed it closed on the residents.”

“Councilors not involved in the Ordinance Committee (in particular, David Bartley) attended committee meetings, arguing against the petition on the landowner’s behalf, even though the landowner failed to appear despite receiving proper statutory notice,” Fitzgerald wrote in the complaint. “I believe the petition was acted on in my and my neighbors’ absence so that my legal counsel could not make any presentation to the full council regarding the petition’s merits.”

Fitzgerald also accused Bartley of having a personal role in the landowner’s original purchase, a claim Bartley denied in a phone interview and for which Fitzgerald offered no evidence when reached by phone.

At Tuesday’s City Council meeting, Bartley said of the complaint and the allegations it contains: “It’s completely baseless, there’s no merit.”

Zoning change petition

At issue is the zoning of three parcels on Northampton Street in Smith’s Ferry that are owned by JSH Nominee Trust and Michael Kane. The parcels are zoned “business-highway,” which allows for more development than the residential zoning of the rest of the properties abutting those parcels. The Smith’s Ferry neighborhood lies north of the city’s center along the Route 5 corridor.

At a joint meeting in February between the Ordinance Committee and the Planning Board, Fitzgerald and some of his neighbors petitioned for rezoning the three parcels near their property from “business-highway” zoning to “residential-two.” A residential-two zoning would mean greater restrictions on the kinds of development that could take place on the property.

Fitzgerald said that 37 people have signed the petition. Abutters expressed their worries at the February hearing, including concerns about the environmental impacts that any development would have on the area’s ecosystem — including the nearby wetlands — and the possibility of increased stormwater runoff on their properties.

The owner of the property wasn’t at that hearing, but his lawyer did speak at the next joint meeting of the Ordinance Committee and Planning Board on June 23. He said the owner had previously wanted to build a multi-family development on the property and is “vehemently opposed” to the rezoning. He said it would set a “dangerous precedent” to allow the rezoning of a property against the owner’s will.

Under state law, 10 registered voters can petition their municipality for a zoning change to a property. If the property owner files a protest petition, as the owner of the parcels in question did, the change would require a three-fourths vote by the City Council.

The neighbors have noted that a business hasn’t operated on the property in more than 70 years since the roadside restaurant Toto’s closed.

Some opposed to the petition, including Bartley, said they were uncomfortable with changing a property’s zoning based on a petition from abutters. At-Large Councilor Rebecca Lisi, who chairs the Ordinance Committee, noted that such a petition is allowed under state law, and that the owner’s ability to file a protest petition provides a check on any resident petition.

Despite the item not being on the agenda due to a clerical error, the City Council ultimately rejected the rezoning petition on Aug. 4. Under the council’s rules, the council can pull an item out of committee if nine of its 13 councilors vote to do so, which they did that evening.

Lisi said that the procedure of pulling an item out of committee is typically done with orders filed by councilors themselves. This item, she noted, was a citizen petition, and the neighbors didn’t attend the full council meeting that night to speak during public comment because their petition was not on the agenda. It is that procedure that has been challenged by Fitzgerald, who in an interview Wednesday noted that at the previous day’s City Council meeting, Bartley called him a “sore loser” for filing the complaint.

“We didn’t even get the chance to make our point, and it was just a lot of shenanigans,” Fitzgerald said. “I didn’t lose, I didn’t even get in the game.”

On Tuesday, the City Council voted to send the complaint to the city’s legal department as well as the council’s Development and Governmental Relations Committee, which Bartley chairs.

Bartley said he would allow the vice chair to run that portion of the committee meeting when the complaint comes up, with the legal department weighing in on how Bartley can participate in the discussion of the complaint.

Dusty Christensen can be reached at dchristensen@gazettenet.com.

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