College Hall, photo by Ken Mitchell.
Included in tonight's city council packet is a memo dated December 8, 2008 from Smith College attorney Ed Etheredge to the city's ordinance committee and by name councilors Michael Bardsley, David Narkewicz and Robert Reckman respectively. The purpose of the memo is to oppose the inclusion of Smith College property in the Elm Street Historic district as is currently being proposed. Etheredge writes in part, "Aside from the specific legal concerns with the proposed ordinance, the effect is to include the entire college campus and adjacent buildings within Elm Street Historic District requiring every window replacement, every alteration or repair every painting or roof project of any structure or "feature" to obtain either a Certificate of Non-Applicability or a Certificate of Appropriateness or face a ciminal violation and fines up to $100.00 a day."
Etheredge continues, "As you know the definition of a historic district under G.L.c. 40C, the enabling stature authorizes the City Council to adopt a map which establishes the district and subject it to historic commission regulation. The district is defined as the area included within the map visible to the district. The purpose of the commission being "…to police the construction, alteration and demolition of visible buildings within the defined district, including changes in color and posting of signs." Warner v. Lexington Historic District, 64 Mass. App. Ct. 78, 79-80 (2005)."
Etheredge adds, "The significant expansion of the Elm Street Historic District to include the Educational Use Zoning District (EU) as proposed by the ordinance a new district map will have a significant negative impact on the college's operation, maintenance, repair, development and growth in addition to violating the recent Development Agreement negotiated with the City [in this case negotiated by mayor Mary Clare Higgins alone] to establish the Educational Use Zoning District, my personal experience reinforces this concern."
It is unclear to me why Etheredge makes such an assertion concerning the negative impacts to Smith when every property owner in the city must appear before the city when proposing to alter their property significantly. For instance, if you want to install a fence taller than six feet you must appear before the city and explain why. Every other property owner in the Elm Street district must abide by historic district rules and regulations so this essentially would treat Smith like everyone else. If the burden is not considered undue for the ordinary homeowner, why is it considered undue for a wealthy institution with vast financial resources? Further, the Elm Street Historic District does not extend to the Green Street area or to the State Street area, both of which are part of the EU. Etheredge's language would draw one to conclude that the entire EU would be included in the Elm Street district when this is not the case. Regardless, some would argue that the EU should be declared invalid anyway, because it has different height regulations applied around its periphery while zoning districts are supposed to be constructed in a uniform fashion.
Etheredge is a sharp lawyer as evidenced by the fact that Smith retains his services. He makes articulate arguments based on case law. In his memo he criticizes that the ordinance proposal lacks exemptions for Smith concerning, "walks, driveways, walls, fences, lighting fixtures, color of paint, repairs from fire or other casualty or any other categories." In short, he is arguing that Smith should not be encumbered by rules and regulations because Smith is special, that its needs should override Northampton's rules of government that are supposedly designed to benefit the public good. This is nothing new as Etheredge is merely repeating the tired arguments that he made on behalf of the college during the public discussion that transpired when the controversial EU was established in 2006. (Read my affidavit of those proceedings here. MSWord 97-03.)
While Smith enjoys various and numerous benefits that accompany its non-profit status, it is clear that Smith's president and board of absentee trustees require complete laissez faire from Northampton government. It is not enough that approximately 90% of Smith's property is exempt from taxation costing the city millions in lost revenues, this while the college does not not require proportionally fewer city services than its neighbors. No, rather, nothing can be permitted to interfer with the school's plans, whether those plans benefit the public good or not.
One of the tenets of Smart Growth is that new development or material renovations to existing structures should match or complement the character of the surrounding area. To Smith apparently this is poppycock. If the school should desire to create a new building along Elm Street and place its loading dock there as it did with its white monolith known as the student center, then so it should be, without question or scrutiny. After all, what is good for Smith is good for Northampton-an illogical assertion indeed.
You can read the full memo here: Etheredge memo (PDF). Scroll to page 5.
