North Adams Files Suit Against Scrapyard for Back Payments, Fire CostsBy Tammy Daniels, iBerkshires Staff
05:10AM / Friday, February 17, 2023 | |
 The city is seeking $83,000 to cover firefighting costs incurred over a fire at Apkin & Sons in 2021. |
Apkin & Sons closed in December and says its cleaning out its five-acre property.
NORTH ADAMS, Mass. — The Redevelopment Authority is asking the court for an attachment on Apkin's scrapyard to prevent the company from selling the 5-acre property.
The authority and the city of North Adams are seeking more than $200,000 in alleged delinquent lease payments and firefighting costs as well as cleanup and environmental monitoring at the site in a request for a preliminary injunction.
Apkin, represented by Donovan & Connor, is countering that it owes nothing for the "free public services" of fire suppression and that, at most, it owes $30,000 for the easement it's leased since 2005.
The Redevelopment Authority filed suit against George Apkin & Sons Inc., PWJ Corp., and 17 Depot Street Realty LLC on Feb. 8 in Berkshire Superior Court.
The suit is seeking at least $218,771.76, of which $134,980 is lease payments dating back a dozen years and double recompense for using areas not within the lease, and $83,791.76 for fire services.
A fire at the facility in May 2021 took dozens of firefighters from as far away as Orange and Northampton to bring under control. The state fire marshal's office concluded that gasoline left in the tank of a junk car ignited when workers at the scrapyard attempted to remove it.
"It is likely that such damages will exceed this amount when taking into account the passage of time and the Plaintiffs' additional claims concerning the need for environmental remediation due to the manner in which Defendants' used the Authority Property," the lawsuit states.
A motion filed last week states, "There exists a clear danger the Defendants will transfer the property they own that abuts the Authority's in the event they are notified of this matter, in which case the Plaintiffs will have no means of recovering under any judgment rendered in this matter."
The authority claims that the scrapyard entered into a lease to use some of its property in 2005, but stopped making its $5,000 a year lease payments in 2011. It "significantly expanded the scope and intensity of its use" of the property, according to the authority, and has allowed hazardous materials and contaminated products to come in contact with the property including "an unpermitted pond."
Apkins argues that the fire never spread to the Redevelopment Authority land and that no action was taken to change the lease, terminate its occupancy or send notifications of lease violations for the past decade.
Its response filed on Thursday says the city can't bill for putting out a fire because common law recognizes those actions under the "free public services doctrine."
"The common law does provide create an exception for 'chronic wrongdoers engaged in a pattern of conduct that creates great public expense' but does not create liability where there is a single discrete incident that requires a single emergency response," the response states.
The scrapyard's attorneys pointed to Freetown's rejected attempt to recover costs fighting a massive tire fire in the 1970s because the blaze was contained to private property.
The request for a preliminary injunction by the city asks that the company no longer be allowed to trespass on authority property and the defendants immediately remove all cars, junk and debris, as well as the pond.
The plaintiffs are asking for the ex parte attachment to prevent the scrapyard being sold. The suit states that the city had been apprised of a potential sale and that negotiations with the defendants had stalled.
"There is an imminent danger the Defendants will sell the Apkin Property prior to resolution of this matter," the suit states. The plaintiffs are asking for an attachment of $218,771.76 on both the scrapyard and the company's still operating Adams location.
The defendants claim the city can't seek an attachment against PWJ or 17 Depot Street because they are not on the land lease since PWJ owns the property in North Adams but Apkins is the business that signed the lease. And that any recompense of delinquent payments should be capped at $30,000 because of a six-year limitation.
The response also says the authority has not proven any environmental impact or damage to the land in question. The property is a former railyard and for decades was utilized "by railroads and others for industrial storage, including the storage of oil and coal."
"Apkin has been actively wrapping up its business and clearing all properties utilized during its business operations," the defendant states. "I am not aware of any items stored by Apkin, PWJ, or Depot Street on the Leased Parcel, any other Authority property or on property belonging to the city."
The Redevelopment Authority was established as part of Urban Renewal and controls development in a swath of the downtown area that includes Western Gateway Heritage State Park, the old Sons of Italy and land along Christopher Columbus Drive/Melody Lane that abuts the scrapyard.
The authority held an executive session on Feb. 1 related to litigation but did not take any votes in open session and declined to comment on what the litigation involved.
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