NORTHAMPTON — A Hampshire Superior Court judge has dismissed a lawsuit filed this summer by residents of Warfield Place that accused the Northampton Department of Public Works of illegally destroying nine cherry trees on their street without a proper public hearing.
Judge Richard Carey ruled Dec. 9 that the complaint filed by two plaintiffs — Lois Ahrens and Oliver Kellhammer — did not state “a claim upon which relief can be granted,” but he also did not settle the issue of whether the city should have held a public shade tree hearing before the July 29 tree removal operation.
“I’m sad and disappointed for us on Warfield Place, but also for the residents here in Northampton. It means that the mayor and the DPW can twist a law,” Ahrens said. “I’m afraid that the city will learn it can do anything it wants to do, and work with impunity.”
The plaintiffs have until Jan. 10 to file an appeal, but Ahrens said they do not plan to do so.
“I read Judge Carey’s substantive and well-reasoned decision,” Mayor David Narkewicz said on Tuesday, “and I am glad that he agreed with the city’s position that this lawsuit had no merit and should be dismissed.”
Ahrens and Kellhammer sued the DPW in August, alleging that the process for cutting down the trees to make room for a street improvement project violated Warfield Place residents’ rights and that the loss of the trees could lower their property values. State law Chapter 87 requires the city to hold a hearing before the tree warden and the Planning Board before removing public shade trees, but the city cited an exemption for projects that widen a public way.
The plaintiffs asked for declaratory relief, essentially a statement that the city misapplied the shade tree hearing law and a court order that required shade tree hearings under similar circumstances in the future. They also sought unspecified monetary damages for the alleged lowering of their property values.
Carey wrote that, under state law, he cannot provide declaratory relief because the city’s actions were not part of an established pattern of “repeated” illegal or unconstitutional practices, and there is also no legal basis for him to order future shade tree hearings.
The plaintiffs’ attorney, John McNally, said their “strongest request was for declaratory judgment,” but they did not have a chance to find out “how often this incorrect standard has been applied in the past. We didn’t get a chance to do any discovery on that.”
Ahrens and Kellhammer asked for monetary damages under Chapter 87, and Carey found that “the short answer to the Plaintiffs’ demand … is that (Chapter 87) does not provide such relief.”
McNally said Chapter 87 offers “a mechanism” for collecting damages if, for example, a public shade tree falls on someone’s house. The lawsuit aimed to use that mechanism in response to the demolition of shade trees, not just property damage.
“We were saying the statute has a broader purpose,” he said.
Kellhammer said he was glad the lawsuit “informs the public” about the city’s practices.
“They were not really focused on consensus-building or due process,” Kellhammer said, adding that he and Ahrens do not have the same resources as the city and cannot “infinitely” fight the matter in court.
City Solicitor Alan Seewald advised officials in May that the shade tree hearing law did not apply to Warfield Place. He said there is an exemption for projects that widen a “highway,” a term that includes sidewalks on a public street; the ongoing Warfield Place repaving project removes one sidewalk and widens the other.
The plaintiffs’ lawsuit said the city misused the “widening exemption.” They argued that a 1934 Massachusetts Supreme Judicial Court case, Graham vs. Board of Public Works of Pittsfield, established the standards for using the exemption and that widening a single sidewalk was not sufficient.
Carey’s ruling did not wade into the interpretation of the Graham case. He wrote that there are “reasons to believe that the disputed issue” of whether a shade tree hearing is required “will be resolved prior to any further tree removal.”
Also at issue was whether the city violated a temporary restraining order granted by a Superior Court judge nearly two hours after the tree removal started but before the work was finished. Carey wrote that the plaintiffs should have sought the court’s intervention in advance.
“It is clear,” he wrote, that future attempts by the city to remove public shade trees “will be met by a more timely motion for a temporary restraining order or preliminary injunction, and then the court can proceed to determine the applicability (of the widening exemption) on a full record after trial.”
In her view, Ahrens said the judge’s ruling gave the city “a pass” for violating “an actual restraining order. … That’s dangerous for the rule of law everywhere in the commonwealth.”
Brian Steele can be reached at bsteele@gazettenet.com.