lawsuit poised to challenge validity of BID

Alan Sheinman, David Passauit, and Eric Suher, three prominent Valley property owners and long time opponents of the Business Improvement District, are suing the city with the aim of making the council's decision of adopting the BID invalid and without effect. They feel strongly enough about this that they are running the lawsuit solely on their own funds. They feel fairly confident about their success. Yesterday, I had lunch with Allan Sheinman at Florence's Side Street Cafe, the last in a series of conversations I've had with him about BID issues, and got a better picture of all these goings ons.

Sheinman told me that despite being a longtime Northamptonite, he's been planning to move to his property in Holyoke for a while now. "I have one foot out of this city, I could just opt out [of the BID] and leave, but these actions on the part of the city and the BID proponents are so egregious and offensive that I can't just sit still for them. This is a blatant power grab by the city and a small elite of business and property owners, a direct result of their aggrandizing urge for power." Sheinman explained to me that after three years the city will have a good deal of control over the BID board---and yet, because the BID is allowed to meet behind closed doors by law, without any institutional transparency or public accountability, the city can wield this power over municipal affairs without being hindered by the requirements of representative democracy.

The property owners are hiring Alan Seewald, a well regarded area lawyer who has also worked for the city before. He is a lawyer well known for avoiding frivolous lawsuits or lawsuits that are unlikely to succeed and thus, the plaintiffs of the lawsuit can avoid the accusation of being liability happy or not having a serious grievance.

Sheinman has quite a few political objections to the BID, expressed in his conversations with me and in the literature he's been handing out urging businesses to opt out, and in numerous interviews he and his fellow plaintiffs have given the Advocate. He feels that the city and the Chamber of Commerce should offer basic maitenance of public property without requiring that businesses tithe to the powers that make up the BID--after all, that's how things operate in the majority of cities and townships across the nations, which do not have BIDS. And why should a tax paying businesses be denied these basic services if they opt out because their profit margin is too thin to afford the fees in the midst of a reccession? And in a time of economic depression, how does it make sense to force business and property owners to pay a tithe to the BID that represents 43% of their property taxes in order to receive basic services, something that will result in raised rents and thus raised prices, placing a further economic burden on all Northamptonites that live, work, shop, and own a business or property in downtown? And in this difficult economic situation, if a business or property does not opt out in time and fails to pay its fees, the BID can have a lien on that property. The BID can borrow money and buy property, and use it in competition with area businesses--so much for being an altruistic organization existing only to help area businesses and properties.

A good chunk of BID support in the first place came from residential condo owners who were excluded from the BID in the first place--90 of the 300 or so asssents, meaning if the BID had covered only BID and property owners, following legitimate procedure, it would have fallen short of the 61% of assents from real property owners required in order for the BID to be considered by council. Also, the BID gerrymandered large pieces of Smith's property into the district, making up 91% of the 51% of total assessed value required. Smith is buying its way into power over the city through unspecified "contributions to be negotiated" with the BID, in return for influence unhindered by the democratic process because again, BIDs, governed by private boards of directors, need not comply with open meeting laws or other public "sunshine" provisions that encourage citizen participation and institutional transparency. BIDs are granted broad powers, and as such may co-opt local government authority without local government responsibility to its constituency. With Smith and the residential condos' participations, the original impetus for the BID isn't representative of most Northampton businesses.

Sheinman's fellow plaintiff, Eric Suher, has "questioned why Smith College is being included in the BID, echoing [Scheinman's] assertion that the BID map boundaries were gerrymandered to ensure that the BID petition requirements would be met. 'The majority of the BID is not-for-profit, with Smith College not being required to pay the full half-of-one-percent of assessed value...' ("The BID-Ding Opens", Jan. 29,2009,the Advocate) This from an organization that purports to represent the needs of local businesses--yet it can't form a legitimate majority without including excluded property or a nonprofit with an entirely different agenda!

Furthermore, Sheinman believes that the BID has not followed the requirements set down by MA General Law 40O. The district is not zoned correctly for a BID,which requires that a BID contain a "contiguous geographic area with clearly defined boundaries in which at least three-fourths of the area is zoned or used for commercial, industrial, retail, or mixed uses," and yet 27% of the district is zoned for urban residential use.

Also, "Massachusetts General Laws Chapter 40O states that a BID petition must contain 'the signatures of the owners of at least 51 percent of the assessed valuation of all real property within the proposed BID and 60 percent of the real property owners within the proposed BID.' " ("The BID: Cooked or Raw?", Mary Sereze, Feb. 19, 2009) This should mean that 60% of the city's property owners have signed. Instead, the city is couting the signatures by parcel, and not by owner, resulting in multiple signatures from the same property owners: "five signatures from Smith College's Ruth Constantine and at least 18 from Northampton Mayor Mary Clare Higgins. Skera's Harriet Rogers signed once for 221 Main Street and once again for the basement of 221 Main Street. Condo owners were signing once for their residence and once again for their garage." (Ibid.)

Furthermore, Sheinman asserted that the city never checked to see if each signature was legitimate, as it has done before with other controversial petitions. When the Advocate made an investigation, the city clerk and the assessor's office merely stated that they just checked to make sure there *was* a signature. To have matched each signature with a place of residence, to have made sure the signer was the owner of the property, well, that would've just been "onerous", after all. Whenever there was a problem, the assessor's office sent the Advocate to the city clerk and vice versa in a circuituous go-round. If signatures were illegibile, the City Clerk would call the Chamber of Commerce, a strong BID proponent, to decipher them, a clear case of the fox guarding the hen house. What the Advocate was able to discover was that the city made going over the signatures as cursory and easy for the BID as possible. As for oppponents of the BID, things went differently for them.The city clerk and the assessor's office made checking the process a great deal more difficult for these people. As was revealed during a BID hearing, these city departments charged anti-BID investigators for copies and for their staff's time, something they did not do for the BID proponents.

But despite all these valid political problems with the BID, Sheinman and the other plaintiffs have decided to keep their legal complaints technical, so as to reduce controversy and increase their chances of prevailing. Their suit will be based on the fact that the BID proponents failed to give the sufficient notice required by law before the BID hearing. By law, two notices should be given 14 days before the BID hearing. In the first BID hearing, held on Jan. 15th, one notice was given on December 31st, meeting the standard. But the other notice was given on Jan. 6th, only 9 days before the hearing and without compliance to the standard.

Sheinman says he and the other plaintiffs are confident about their chances of winning, else they wouldn't be paying such large amounts out of their own pockets. (Though Sheinman says they do not want to be dependent on anyone's financial contribution, and thus they are paying for this themselves, donations are always welcome!) Their lawsuit should give us all hope---while we can encourage businesses to opt out, and monitor the BID for human rights abuses, it is very difficult for us to do away with the BID now that it's been adopted---we would require representatives of 51% of the district's total assessed value to agree to dissolve it in order to annul it. But if Sheinman, Suher, and Passuit's lawsuit were to win, the council's decision would be declared invalid and it would be as if the BID had never been adopted in the first place. Of course, the BID proponents could always try to push a new BID proposal through council, but it took them three years to do so last time, so at least a winning lawsuit would buy us all breathing room.

And yes, before anyone addresses this in the comments, the propertyowners and PINAC come from very different political backgrounds, and our opposition to the BID is differently motivated--the propertyowners are libertarian capitalists, and we are community oriented radicals. But both groups are concerned about the undemocratic nature of the BID, and I think this is one case where we can rejoice in politics making strange bedfellows. These propertyowners offer us a way to save our community from the BID in an easy, quick way, and are able to achieve something here that organizing cannot. Viva la difference!