By CHAD CAIN
Daily Hampshire Gazette
Staff Writer
NORTHAMPTON — At a somber meeting of the Northampton Business Improvement District’s board Friday, members spent most of the time trying to interpret last week’s decision by a judge to disband the BID immediately.
Charles Bowles, chairman of the BID board, said First Night fireworks and the holiday lighting program downtown remain in question. The lights are in place — they never came down after last year, Bowles said — but it’s not clear if the BID is allowed to pay for the electricity to turn them on.
“We’re kind of in limbo right now,” Bowles said.
He said the meeting, which drew nearly every one of the board’s 12 members to Edwards Church, capped off a hard week for members who learned about the judge’s decision to dissolve the BID on Wednesday while preparing for a weekend memorial service for its driving force, Daniel Yacuzzo, 66, who died Oct. 17 of pancreatic cancer.
Bowles said the mood at the meeting was “not very good,” because board members are so discouraged.
“It’s pretty sad,” Bowles said. “It’s six years of hard work.”
Hampshire Superior Court Judge John A. Agostini ruled last week that the city failed to comply with state law when it created the BID five years ago. As a result, he ruled it “null and void” and ordered all operations to “immediately and permanently cease.” The lawsuit was brought against the city and the BID by property owners and BID opponents Alan Scheinman and Eric Suher.
Bowles said BID leadership is awaiting a ruling from Agostini on a request to hold off on his decision until the BID appeals, or, if it elects not to appeal, until mid-February so it can wind up affairs such as settling contracts, paying employees and closing its books.
BID opponents have raised objections to that request, saying that if Agostini grants it, he would be giving the organization permission to continue operating without limitations or guidelines. Alexandra H. Glover, a Great Barrington attorney representing the plaintiffs, asserted in documents filed Monday in court that the emergency motion to allow the BID to operate is “dangerously vague” and would give the BID the ability to continue “any and all operations, including the illegitimate taxation of property owners.”
“The motion has no substance or detail as to which activities the NBID intends to continue and which it does not,” Glover states. Approval of the request suggests that the BID could continue to conduct business as usual, she said.
In its motion filed last Thursday with Agostini, BID lawyers Harry L. Miles and Michael Pill requested two things. They want an additional 60 days after the appeal period expires Dec. 11 to put their affairs in order and close up shop. Alternatively, if the BID appeals and loses, it wants the decision delayed for 60 days after final resolution to give time to shut the BID down. Miles said BID leadership has not decided yet whether to appeal the decision.
Even if no appeal is filed, Miles said the BID still needs time to deal with its many commitments, such as lease agreements in effect for its vehicles, maintenance equipment and office equipment, as well as bank accounts, contractual obligations for goods and services, a promissory note to Florence Savings Bank and paying bills, according to the motion filed by BID.
The BID is also requesting permission to pay employees for work already performed. In addition to Executive Director Natasha Yakovlev, the BID has a part-time office employee and a maintenance crew of three to five people, depending on the season.
Agostini had not ruled on the motion as of yesterday.
In her motion to oppose the BID request, Glover argued that granting it would cause “immediate harm” to the plaintiffs in the state case, as well as 48 other plaintiffs involved in a separate federal lawsuit filed in March 2013. The federal lawsuit against the city and the BID asserts that a new state law that forced them to join the BID and pay its required fees violated their constitutional rights.
U.S. District Court Judge Douglas P. Woodlock informally put that case on hold last week, indicating that he would dismiss the lawsuit because it is moot after Agostini’s ruling.
According to Glover, the basis for Woodlock’s decision was the assurance that the BID would not assess fees against the plaintiffs, who are property owners forced to join the BID following a renewal vote this summer. She said BID attorneys told Woodlock during a telephone hearing last week that the organization would return assessments already paid by the handful of plaintiffs. The BID should not be permitted to spend any of its money without first repaying the money owed to the federal plaintiffs, Glover argued.
“It now appears that the NBID does not intend to refund that money, despite the promise to Judge Woodlock to do so,” she wrote.
Miles said the BID told Woodlock that any former opt-outs who paid their fee this fall would get a refund, and that is still the plan.
While some question whether the BID or the city is liable for repaying fees paid since the BID’s inception five years ago, Bowles said that those who were BID members up until this summer chose to join and willingly paid the associated fee. Those that did not want to join were able to opt out when the BID was first created.
Asked about this question, Miles said he has not researched the matter enough to have reached a conclusion.
“The first four years the people in it wanted to be in it. They wouldn’t want their money back for something they agreed to do,” Bowles said.
Then a 2013 amendment to state law eliminated the opt-out option and mandated that all property owners within a BID’s boundaries become members following a renewal vote. That vote occurred in July, and the new BID members received their first bills in October.
Bowles said the BID held the funds aside for the few new members who paid their fee, though he said decisions on whether that money will be refunded have not been made.
“We’re waiting on the stay because that will set a lot of things in motion,” Bowles said.
Bowles said it is unlikely BID advocates will go through the process of establishing a new BID in the future. Given that the Northampton BID followed the same process that every other community in the state did in terms of creating the BID, meeting the requirements set forth by the judge in his ruling would be extremely difficult.
“The way he’s written the decision is so complicated,” he said. “It would take a huge effort to create a new BID. It’s a precedent-setting judgment. That will be the next thing that all of the other BIDs will have to consider.”
Chad Cain can be reached at [email protected].
