In a story that appeared in the Feb. 19 edition of the Advocate ("Northampton BID—Cooked or Raw?"), this reporter examined whether Northampton city clerk Wendy Mazza had properly verified a petition, presented by a group of proponents headed by former restaurateur Dan Yacuzzo, to form a Business Improvement District (BID) within downtown Northampton.
Under state law, the city clerk must determine that a BID petition contains "the signatures of the owners of at least fifty-one percent of the assessed valuation of all real propery within the proposed BID and sixty percent of the real property owners within the proposed BID." The BID map must represent a "contiguous geographic area" in which at least 75 percent of the area is "zoned for commercial, industrial, retail, or mixed use."
The article also extensively quoted Alan Scheinman, an attorney and downtown business property owner who is an outspoken opponent of the BID. Scheinman had written to the city clerk and the City Council asserting that 27 percent of the proposed BID map by area—largely comprising several large parcels owned by Smith College—is zoned for residential use (Urban Residential C, or "URC"), and consequently, the 75 percent commercial zoning requirement of Chapter 40-O had not been met by the petitioners. No one has successfully challenged Scheinman on this point.
However, Scheinman erred on a lesser point—the types of mixed uses allowed in the URC zone—when he was quoted in the Advocate as saying, "Only two types of businesses are allowed in the URC zone by special permit from the Planning Board. They are funeral establishments and businesses related to junk cars/motor vehicle accessories/scrap metal. To the best of my knowledge, the planning board has never issued a special permit to allow any of these businesses in the URC zone…"
In Scheinman's view, because only limited commercial uses are allowed in the Urban Residential C zone, and then only by special permit, the URC zone can not be counted toward the 75 percent standard articulated in state law.
"The very small number of businesses, if any, within the zone were 'grandfathered' and not subject to the zoning law," Scheinman was quoted as saying. "And those few businesses, if any, make up such a small part of the URC portion of the proposed BID that their existence doesn't correct the failure to meet the 75 percent requirement."
Northampton Director of Planning and Development Wayne Feiden contacted the Advocate to protest about our quoting Scheinman without checking to see if his assertions were accurate. "In your recent BID story," Feiden wrote, "I was surprised and disappointed to see that you did not do fact checking when you quoted Alan Scheinman about zoning…. From the new publishing company on Dewey Court developed a couple of years ago to professional offices on State Street and Gothic Street and elsewhere developed over the past two decades, there are or have been numerous lawyers, architects, therapists, writers, editors, other professionals, and hair dressers who are probably extremely confused to learn that the only businesses allowed in the URC by Special Permit are funeral establishments and junk cars…"
Feiden has formally responded to Scheinman's assertion by issuing a statement to the city clerk certifying that "99.8 percent of the BID is zoned for or used for [italics ours] commercial, industrial, retail or mixed uses, far more than the required 75 percent." Feiden wrote to Mazza, "I have determined that the proposed Business Improvement District (BID) filed with you clearly meets the definitions of a BID, as defined in Massachusetts General Laws Chapter 40-O."
A look at Northampton's zoning code does reveal an oversight on Scheinman's part. Junk car and funeral establishments are not the only uses permitted within the URC district. Indeed, a broad category of mixed-use development is allowed with a special permit from the Planning Board. "Mixed residential/retail service, commercial uses" can be granted special permits in the zone, but may not include "banking, real estate and insurance offices or retail, personal and consumer service establishments, medical doctors, dentists, or chiropractors." Live/work spaces are also allowed by special permit under certain circumstances in the URC zone.
"A significant number of special permits have been issued for mixed use within the URC," Feiden told the Advocate in a recent interview. "For instance, Edgar Publishing, located on Dewey Court, was issued a special permit to run a business in the URC district. Low-traffic uses are more likely to get permits within the URC district. Therapists are OK, but doctors' offices are generally not. Sixty-four Gothic Street is another example of a development that was issued a special permit under URC zoning."
Scheinman's information was gleaned from a xerox of a hard copy of the zoning code available in the planning office. "My xerox copy of the zoning table, provided to me by the Planning Department, did not include any reference to mixed uses," Scheinman said. "If my copy is incomplete, and mixed uses are allowed by permit within the URC district, then I stand corrected."
In recent weeks, many and diverse arguments have been put forth by those who oppose the creation of a Business Improvement District within downtown Northampton. Some feel that a BID would be a gentrifying force, some are concerned about private control of public space (and the use of public money to abet that control), and others believe that this is the wrong time to be imposing additional taxes or fees on struggling businesses. Some complain that the BID petition is padded with assenting signatures from non-profit entitities and residential condo owners who have thrown their weight behind the formation of the BID, yet need not pay BID fees. But these complaints probably do not comprise a legal argument.
Chapter 40-O (the state-level BID enabling legislation) was passed in 1994, when Republican William Weld was governor of Massachusetts. Weld was enthusiastic about finding ways to use the private sector to attain public goals, and Chapter 40-O—which creates a special downtown taxation district governed by a private board of directors—is a vestige of that era. Opponents, some of whom have threatened to file a lawsuit if the City Council establishes a BID, may not like the philosophical underpinnings of Chapter 40-O, may object to aspects of its language, but if proponents meet its requirements, the opponents may have a hard time making their case in court. If procedural violations by BID petitioners or city government can be documented, however, a lawsuit might stand a better chance.
Questions remain about the quality of the process used by city officials in their verification of the BID petition, and opponents have suggested, during the public hearing process on the proposed BID, that they will not let the matter rest if the City Council votes to establish a downtown Business Improvement District in Northampton. (The public hearing on the proposed BID was formally closed on February 19, and the City Council must vote on the BID petition within 45 days of that date.)
"If the opponents are advised by counsel to bring suit after review of all the facts and law, then we will do so," Scheinman told the Advocate.
