Opinion
HSCV2009-00074
11-10-2014
Alan Scheinman et al. [1] v. City of Northampton et al. [2] No. 128850
John A. Agostini, Associate Justice, Superior Court.
Filed November 12, 2014
FINDINGS OF FACT, RULINGS OF LAW AND ORDER
John A. Agostini, Associate Justice, Superior Court.
I. INTRODUCTION
This controversy arises out of the creation of the Northampton Business Improvement District (the NBID). The plaintiffs, Alan Scheinman and other property owners in Northampton, filed this action against the City of Northampton (the City) and the Northampton Business Improvement District, Inc., claiming that the NBID is null and void because its formation violated Massachusetts General Laws, Chapter 40O, which governs business improvement districts (BIDs). In their first amended complaint, the plaintiffs challenge, inter alia, the validity of signatures counted in support of the petition to form the NBID and the method used for determining that there were proper assents by 60% of the real property owners within the proposed BID and the owners of at least 51% of the assessed valuation of all real property within the proposed BID.
In Count 1, the plaintiffs seek declarations that the NBID's establishment violated G.L.c. 40O and that the NBID is null and void. In Count 3, seeking relief in the nature of mandamus, the plaintiffs request the same declarations and seek orders that the NBID's operations cease and that the City issue a notice that the NBID is null and void. In Count 4, the plaintiffs seek injunctive relief, specifically, an order enjoining the operation of the NBID. Following a jury-waived trial before me over the course of five days, and based on the credible evidence and the reasonable inferences drawn from them, I make the following findings of fact and rulings of law and conclude that the NBID was not legally established and is null and void.
Count 2, claiming relief in the nature of certiorari under G.L.c. 249, § 4, did not survive summary judgment.
II. PRELIMINARY ISSUES
At trial, the defendants raised a litany of defenses which had been considered previously and rejected in pre-trial proceedings, including laches, exhaustion of administrative remedies and standing. The defendants have renewed these defenses at trial. Again, the defendants have failed to show that the plaintiffs are barred under the doctrine of laches from prosecuting this lawsuit. As a matter of law and fact, the plaintiffs could not have pressed a more persistent or timely opposition to the NBID. Scheinman accurately pointed out in his trial testimony that until the City Council voted to accept the NBID petition and approved it, any litigation by the plaintiffs would have been premature. Also flawed is the defendants' argument that the plaintiffs should have exhausted administrative remedies before filing this action, where no such administrative remedies were available.
On several occasions between January and April of 2009, Alan Scheinman questioned Northampton's City Clerk Wendy Mazza about his concern that the City was not complying with the statutory requirements for the establishment of the NBID. Scheinman's written communications to that effect were on January 5, January 6, twice on January 12, February 23, March 6 and April 21. At each of the Northampton City Council's meetings to consider the NBID petition, the plaintiffs objected on the record to the adoption of the NBID petition. On March 5, 2009, the City Council voted to accept the petition and to enter into a memorandum of understanding with the NBID. On March 19, 2009, the City Council approved the NBID petition. The plaintiffs brought this action on April 13, 2009. On June 15, 2009, the NBID was organized as a corporation under the name Northampton Business Improvement District, Inc. Under no view of this timeline can the plaintiffs' actions in opposing the NBID formation be fairly construed as dilatory.
Equally specious is the defendants' assertion that the plaintiffs lack standing to seek declaratory relief. On cross motions for summary judgment, Judge Ford concluded that the plaintiffs had standing to pursue Counts 1 and 3 and that the defendants' standing argument was moot due to the 2012 amendments to G.L.c. 40O, which bars property owners from opting out. I agree. In order for a court to entertain a petition for declaratory relief, the plaintiffs must demonstrate legal standing to secure the resolution of an actual controversy. Massachusetts State Police Commissioned Officers Association v. Commonwealth, 462 Mass. 219, 222, 967 N.E.2d 626 (2012). An actual controversy is
Pursuant to 2012 amended version of G.L.c. 40O, § 4, Participation in the BID shall be permanent until after the discontinuation of the BID as provided in this section, or until the dissolution of the BID under section 10. A non-participating owner in the district shall become a participating member on the date of a renewal vote.
a real dispute caused by the assertion by one party of a legal relation, status or right in which he has a definite interest, and the denial of such assertion by another party also having a definite interest in the subject matter, where the circumstances attending the dispute plainly indicate that unless the matter is adjusted, such antagonistic claims will almost immediately and inevitably lead to litigation.Gay & Lesbian Advocates & Defenders v. Attorney General, 436 Mass. 132, 134-35, 763 N.E.2d 38 (2002).
To establish standing, the alleged injury must be within the area of concern of the statute. Indeck Maine Energy, LLC v. Comm'r of Energy Resources, 454 Mass. 511, 517, 911 N.E.2d 149 (2009). The determination as to whether standing exists is based on several considerations, including the language of the statute, the Legislature's intent and purpose in enacting it, the administrative scheme, and any adverse effects that might occur if standing is recognized. See id. at 517-18. Moreover, a clear legislative intent is necessary to infer a private cause of action from a statute. Loffredo v. Center for Addictive Behaviors, 426 Mass. 541, 543, 689 N.E.2d 799 (1998).
The alleged harm from the formation of an invalid BID is squarely within the area of concern of G.L.c. 40O. See Indeck Me. Energy, LLC v. Comm'r of Energy Resources, 454 Mass. at 517. The language of G.L.c. 40O evinces strong support for the creation and operation of BIDs, which enjoy broad powers. Because those powers are so expansive, the Legislature imposed a rigorous BID formation process requiring notice, a public hearing and two separate determinations--one by the city clerk or her designee and another by the municipal governing authority--on whether the statutory criteria for BID formation were met. The unambiguous intent from this scheme was that BID petitions were to be scrutinized carefully and repeatedly to ensure compliance with the statute before they could be approved.
The City owed a duty to the plaintiffs, who own property within the NBID, to have made two determinations as to whether the proposed NBID petition met the statutory criteria for establishing BIDs. As will be explained below, the plaintiffs have demonstrated that the City breached that duty, causing more than speculative harm to them, as recent amendments to the BID statute deny property owners the ability to opt out of BID participation. There can be no serious doubt that an actual controversy exists.
Where legitimate questions persist regarding municipal authorities' adherence to the statutory requirements in considering BID petitions, a reasonable inference is that the Legislature intended to allow private parties to challenge the BID formation. These plaintiffs who own property within the proposed BID and have diligently raised well-founded concerns regarding the legality of its formation are precisely those best equipped to bring an action challenging municipal authorities' conduct in this process. The plaintiffs had no other available avenue for relief. Seeking dissolution would be appropriate had the NBID been validly created, but it has no applicability where a BID is void from its inception. For all these reasons, there is no merit to the defendants' contention that the plaintiffs lack standing on their declaratory judgment claims. See Enos v. Secretary of Environmental Affairs, 432 Mass. 132, 135, 731 N.E.2d 525 (2000).
The defendants also argue in passing that Scheinman lacks standing and/or that he has no stake in the outcome of this action due to the nature of his interests in real property within the NBID boundaries. As to one property, Scheinman is a mortgagee or an equitable title holder. The statute does not exclude from the definition of property ownership a mortgagee's equitable interest and I decline to apply restrictions which the Legislature did not impose.As to another property, Scheinman is the fee owner of a rented, non-owner occupied residential condominium unit in a mixed-use (commercial and residential use) condominium located within the NBID. The defendants point to the petition, which states that " [a]ll private and public properties shall be included within the District, with the exception of residential condominiums and single-family residences." General Laws c. 40O, § 6, provides that all property physically located within BID boundaries is considered in structuring the fee formula, even though the municipality may exempt certain types of properties, such as residential, from paying BID fees. Accordingly, residential condominiums such as Scheinman's can be within a BID even though they may be exempt from the BID fees. See G.L.c. 40O, § 6. Consistent with this rule, the City and NBID proponents made no effort to identify and exclude from the counted assents those which were signed by owners of residential condominiums. Consequently, the defendants have not shown that Scheinman lacks standing or that he has no stake in this litigation.Nor do the defendants challenge (on grounds other than those discussed above) the standing of Scheinman's co-plaintiffs. Scheinman's co-plaintiffs are the owners of property within the NBID boundaries. Those properties are controlled at least in part by Eric Suher. The defendants do not contend that Suher, through his control and ownership of those properties, lacks standing. Instead, they only argue that it is " inequitable" for Suher to prosecute this litigation because some of the properties in which he has an interest did not opt out of the NBID. That uncontroverted fact may be attributable to many factors and actors with ownership control, but it does nothing to support the defendants' standing argument.
In another desperate argument, the defendants assert that this action is barred by the doctrine of sovereign immunity, which " protects the public treasury from unanticipated money judgments." Todino v. Town of Wellfleet, 448 Mass. 234, 238, 860 N.E.2d 1 (2007). The doctrine has no application where, as here, the plaintiffs do not seek monetary damages. See id. Apart from the defendants' argument concerning the scope of review, which is addressed below, the defendants' remaining renewed arguments falter on grounds already covered and merit no further discussion here.
One new defense argument also calls for preliminary attention. Weeks post-trial, the Northampton Business Improvement District, Inc. filed a Motion to Supplement the Record by Admitting Further Documents. Those documents purport to demonstrate the existence of sources which were theoretically available to the plaintiffs and to the municipal authorities in early 2009 to authenticate the signatures on the assents. For all the reasons set forth in the plaintiffs' opposition to the motion to supplement the record, I decline to exercise my discretion to allow the motion. Moreover, even if some of the documents could be viewed as admissible, which they are not, none aid the defendants because none show that the municipal authorities made a meaningful determination of the validity of the assents with the information that was before them at that time.
Many of these documents are copies of written communications, such as emails, as well as real estate and corporate documents linking signatories to the properties for which they signed assents. The vast majority of these documents were not considered by any municipal authorities before the NBID petition was certified and approved.
III. STATUTORY FRAMEWORK FOR BIDS
A BID formed pursuant to G.L.c. 40O is 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." G.L.c. 40O, § 1. A BID member is a property owner who participates in a BID, and an " elector" is a BID member or a natural person designated by a member to vote by proxy for such member " provided, however, that such designation shall be in writing and filed with the city . . . clerk; provided, further, that only one such proxy may be designated by an owner." G.L.c. 40O, § 1. " Property owner" is defined as the owner of record of property, and property is defined as any real property located within the BID. See G.L.c. 40O, § 1.
A BID approved by a municipal governing body has broad powers to administer and manage the BID and to promote its economic development. The BID formation process is governed by G.L.c. 40O, § 3, and begins with a petition by property owners within the proposed BID and it is filed in the office of the municipal clerk. To be valid, the petition to create a BID must contain five items:
The BID can be authorized to manage parking and to design, engineer, construct, maintain, or operate buildings, facilities, urban streetscapes or infrastructures to further economic development and public purposes, conduct historic preservation activities, supplement maintenance, security or sanitation, plan and design services, develop common marketing and promotional activities, and support public art and human and environmental services as related to the enhancement of the BID. G.L.c. 40O, § 2.
(1) the signatures of the owners of at least fifty-one percent of the assessed valuation of all real property within the proposed BID and sixty percent of the real property owners within the proposed BID; (2) a description of and a site map delineating the boundaries of the proposed BID; (3) the proposed improvement plan which shall set forth the supplemental services and programs, revitalization strategy, update mechanism, and budget and fee structures; (4) the identity and location of the management entity designated to implement and oversee the ongoing improvement plan; and (5) the criteria for waiving the fee for any property owner within the BID who can provide evidence that the imposition of such fee would create a significant financial hardship.G.L.c. 40O, § 3. The municipal governing body must hold a public hearing within 60 days of receiving the petition. G.L.c. 40O, § 4.
Written notification of such hearing shall be sent to each property owner within the boundary of the proposed BID at least thirty days prior to such hearing, by mailing notice to the address listed in the property tax records. Notification of the hearing shall also be published for two consecutive weeks in a newspaper of general circulation in the area at least fourteen days prior to such hearing.G.L.c. 40O, § 4.
Prior to the public hearing, the local municipal governing body shall direct the town clerk or city clerk or his designee to determine that the establishment criteria has been met as set forth in section three.G.L.c. 40O, § 4.
At the public hearing, the local municipal governing body shall determine if the petition satisfies the purposes set forth and the establishment criteria of this chapter and shall obtain public comment regarding the improvement plan and the effect the proposed BID will have on the property owners, tenants, and others within the BID. If it appears that said petition is not in conformity with the purposes and establishment criteria, the local municipal governing body shall dismiss the petition.
Within forty-five days after the public hearing, the local municipal governing body, in its sole discretion, may by a vote declare the district organized and describe the boundaries and service area of the district. Upon such declaration, the BID may commence operations.G.L.c. 40O, § 4.
IV. SUBSIDIARY FINDINGS OF FACT
A. The NBID Campaign
The idea of an NBID began generating interest among some downtown business owners in 2006, over two years before the NBID petition was filed on December 10, 2008. A steering committee formed and worked with the local Chamber of Commerce to gauge and promote interest by reaching out to property owners through mailings and discussions. Together, the steering committee and the Chamber of Commerce used parcel information supplied by the Northampton tax assessor's office to create a spreadsheet to solicit and track support by property owners within the proposed NBID.
Between September 26, 2007, and December 10, 2008, the NBID proponents sent out 11 mailings to property owners within the then-proposed NBID boundaries requesting signatures on assents in support of the NBID petition. Although those mailings did not contain a copy of the NBID petition, at least one of these mailings included a business plan, an executive summary, an assent form, and a letter asking property owners to sign and return the assent forms.
During that campaign period, the proponents revised the boundaries of the proposed NBID in response to the interest or opposition encountered. The original 2006 NBID boundaries were adjusted in 2008 to remove 27 properties whose owners opposed the NBID and to add large areas of real property owned by Smith College. Other changes to the proposed NBID were in its fee structure. These changes to the boundaries and fee structure were not disclosed in any mailings or public meetings. The petition was not publicly available prior to December 10, 2008, when it was filed with the city clerk.
The NBID campaign was not without its detractors. Among the opponents were the plaintiffs, who launched a " No BID" campaign and mailed two notices to the property owners within the proposed NBID citing reasons for owners to opt out of the NBID.
By late November of 2008, the NBID proponents had gathered approximately 305 assents and believed that this sufficed to file the petition. On November 19, 2008, the NBID proponents met with Northampton's assessor, Joan Sarafin, and the assistant assessor, Joseph Cross, to show that there was one signature for each parcel within the proposed NBID. In that meeting, the NBID proponents brought the assents, a map of the proposed NBID, and a spreadsheet listing each parcel number. The NBID proponents presented each assent to the assessors and noted the corresponding parcels on the map. The assessors then checked off the line on the spreadsheet for each parcel for which a signed assent was presented.
The assessors did not check any of the signatures on the assents against their own records of the names of property owners within the NBID. The assessors rejected none of the signatures presented to them by the NBID proponents. They were not concerned about illegible or undated signatures or whether the signatories for corporate property owners had authority to sign the assents. Sarafin did not request or receive additional information and she does not recall being asked for further information regarding the signatures on the assents. I find, based on the credible testimony of Sarafin, that she was unable to read many of the signatures on the assents, but that nonetheless she did not determine the identity of those signatories or check the City's records to find out if those signatories were the property owners or if they had authorization to sign for the owners.
On or before December 8, 2008, Northampton's city clerk, Wendy Mazza, in anticipation of the filing of the NBID petition, delegated to Sarafin the job of determining whether the petition met the BID establishment criteria set forth in G.L.c. 40O. At that point, Mazza asked Sarafin to " check the signatures for the BID" and to " certify that each parcel had a signature." Mazza testified that she understood from NBID proponent Teri Anderson that the proper person to certify the petition was the assessor, Sarafin. On December 8, 2008, Sarafin signed a document entitled Assessor Certificate Northampton Business Improvement District (" the Assessor Certificate"). The Assessor Certificate states that the city's assessors " hereby certify that we have received and reviewed the attached list of assessed real property, real property owners, and the respective signatures . . . of the aforesaid real property owners within the proposed [BID]. We hereby further certify that the aforesaid BID signatures have been submitted for our review [and] are consistent with our block and parcel numbers within the BID and that in accordance with [G.L.c. 40O, § 3], the BID signatures meet and exceed the required [60%] of the real property owners within the BID, and further meet and exceed the [51%] of the assessed valuation of all real property within the BID."
Anderson was an employee of Northampton's Department of Community and Economic Development.
Because the parties refer to this determination as " certification, " I use that term for ease of reference, but note that the statute does not require certification of the signatures. See G.L.c. 40O, § 4 (" Prior to the public hearing, the local municipal governing body shall direct the town clerk or city clerk or his designee to determine that the establishment criteria has been met as set forth in section three").
The Assessor Certificate, with its purported determination that the signatures met the 60% and 51% statutory criteria, was not generated by the assessors but by the NBID proponents and presented to Sarafin for her signature on December 8, 2008. I find the Assessor Certificate to be completely baseless and lacking in any meaningful determination by the assessors that the assents met the statutory establishment criteria.
Sarafin testified that she did not count the assents or make the 60% calculation, but watched Daniel Yacuzzo calculate the 60% figure. Yacuzzo was then the chief NBID proponent and the chair of the NBID Steering Committee. He subsequently was hired as the executive director or president of NBID, Inc.
B. The Filing and Certifications of the NBID Petition and Assents
On December 10, 2008, the NBID proponents filed with the City the petition to form the NBID. Attached to the petition were: (a) a boundary description and map of the proposed NBID; (b) an improvement plan outlining the supplemental services and programs, revitalization strategy, and budget and fee structures; (c) 305 signatures on assent forms, and (d) the Assessor Certificate. The parties agreed at trial that on December 10, 2008, there were 494 parcels within the NBID. Therefore, to meet the 60% requirement, the NBID proponents had to have submitted at least 296.4, or 297, valid assents. In other words, the NBID proponents had an 8-vote margin of error.
The parties debate the meaning of the statutory requirement that there be assents by 60% " of the real property owners within the proposed BID." G.L.c. 40O, § 3. " Property owner" is defined in G.L.c. 40O, § 1, as the owner of record of property. The statute thus requires that petitions be signed by at least 60% of the owners of record of property within the proposed NBID. The Commonwealth of Massachusetts Executive Office of Housing and Economic Development explains this as follows: " The petition must be signed by the owners of at least 60% of the real property." This interpretation puts the focus not on the numbers of owners or the numbers of parcels, but rather requires support by those who own 60% of the real property within the NBID.The City and NBID proponents took a different approach to the 60% requirement. They gauged the owner support for the proposed NBID by dividing the numbers of signatures obtained, 305, by the number of parcels in the NBID, regardless of the size. Even under this approach which favors the defendants, as will be seen below, the petition fails to comply with the statutory criteria.For purposes of reaching the 51% and 60% figures with respect to property with multiple owners, the parties dispute whether only one owner's signature is required on the petition to count that parcel (as argued by the defendants) or whether all owners must sign the petition (as urged by the plaintiffs). The case law in this jurisdiction in the context of BIDs is silent on this question. In other jurisdictions, the courts are split, although the tendency in similar contexts is to require all co-owners to sign petitions for municipal improvements in order for the parcel to be counted in favor of a petition for an improvement district. See, e.g., Long v. City of Monroe, 265 Mich. 425, 427, 251 N.W. 582 (1933) (where property is jointly owned, signatures on petitions for special assessments to fund municipal improvements were invalid if not signed by both owners); 3 A.L.R.2d 127, § 2 (" The courts in most cases have manifested a decided disinclination to permit one co-tenant to burden the interest of the other by the unilateral action of the former, without the express consent of the latter, by petitioning for an improvement which if made might subject the other cotenant to assessments not desired by him"); 3 A.L.R.2d 127, § 4(a) (" It is generally held or assumed that one co-tenant may not bind the entire interest of the co-tenants by signing a petition for the improvement affecting the property").On the other hand, a rule requiring all co-owners to sign BID petitions would create an unwieldy procedure, if not an impossibly difficult task, which was likely not intended by the Legislature in enacting G.L.c. 40O. It is not necessary to resolve this issue either. For the reasons explained in this decision, not only is the NBID void due to a lack of statutorily required determinations by the municipal authorities, but even under the " one parcel, one vote" approach most favorable to the defendants, the assents fall far short of meeting the 51% and 60% statutory requirements.
In the 30 days after the petition was filed, anyone who signed an assent was allowed to opt out, even though those signatures still counted for purposes of meeting the statutory criteria. Within that 30-day period, over 60% of those who would have been fee-paying property owners opted out of the NBID.
On December 22, 2008, Mazza issued a document entitled City Clerk Certificate, which reads in pertinent part:
I . . . certify that the BID signatures that have been submitted for review to the Assessors for the City of Northampton are consistent with the Block and Parcel numbers within the BID, and that in accordance with [G.L.c. 40O, § 3, the BID signatures] as certified by the Assessors meet or exceed the required [60%] of the real property owners within the BID, and further meet and exceed the [51%] of the assessed valuation of all real property within the BID.
Mazza did not perform any of her own calculations before issuing this certificate. I find from Mazza's trial testimony that her certificate was based entirely upon the assessors' certificate. Mazza never had a conversation with Sarafin about the method used or the basis for the assessors' certification, and Mazza did not even know whether Sarafin had rejected any assents. I find that neither Sarafin nor Mazza made a meaningful determination on whether the petition satisfied the BID establishment criteria as mandated by G.L.c. 40O, § 4.
In late 2008 and early 2009, Scheinman repeatedly questioned Mazza about the NBID formation process, the validity of the assents and the certifications. Mazza credibly testified that she did not recall ever checking the assents for the problems, such as legibility, flagged by Scheinman. On January 7, 2009, Mazza sent an email to NBID proponents Fialky, Ann Burke, and Teri Anderson expressing her mounting concerns.
Burke was then a consultant to the NBID proponents in 2008-2009 and an employee of the Economic Development Council of Western Massachusetts.
I'm becoming more and more concerned about the process used to reach the percentages needed and being put in the middle of this, not having very much knowledge on this issue. I relied on the Assessors' certification that the process was done correctly [ ]when they met with you[; ] now in speaking with Assessorsoffice they told me they certified to the parcel being in the district and only looked to see if there was signature [sic] on the assent forms[; ] they did not check the signatures to see if they [were] the record owners signing, but certified that BID Signatures that have been submitted for our review are consistent with our Block and Parcel numbers within the BID. The Assessor sent another letter to " Inform me that [they] reviewed each property involved in the BID Program and checked to see that each parcel had a signature. They did not witness each person signing, but we observed that each parcel had a signature."
I am rescinding my certification . . . because they did not look at the signatures to make sure [they] were those of the property owners . . . I believe the signatures need to be reviewed by the Assessors to make sure they are from the owners of record and that the signatures that the Assessors cannot decipher should not be counted.
The law states prior to the public hearing [that] the local municipal governing body shall direct the city clerk or designee to determine that the established criteria has been met, which from the information that I continue to receive does not appear that you have [done], and so therefore I am the one who is getting the heat . . . and I cannot explain your process you used.(Emphasis added). In this email, Mazza recognized both that the statute tasks the City with making the determinations required for BID establishment, and that the NBID proponents, rather than the City, actually made those determinations through a process about which the City was ignorant.
After sending this email, Mazza never formally or expressly, in writing or verbally, communicated that she changed her decision rescinding her certification. I find that she did not withdraw her rescission and I do not credit her trial testimony that she somehow withdrew her rescission by " moving the process forward" after January 7, 2009. Any such attempt by Mazza to reinstate her certification of the signatures and petition would have been void on this record, which compels the conclusion that neither Mazza nor Sarafin made in any meaningful way the determination required by G.L.c. 40O, § 4, " that the establishment criteria has been met as set forth in section three."
Within days of rescinding her certification, Mazza received emails from some signatories and others connected with real property within the NBID. Mazza believed that those emails, which are discussed below, demonstrated the validity of about 40 of the assents.
C. The Public Hearing on the Petition
On January 15, 2009, the City Council commenced the public hearing on the petition and held continued public hearing sessions on February 5, 2009, and February 19, 2009, on which date the public hearing on the petition closed. Nothing in the record supports an inference that the City Council made its own determination that the petition satisfied the criteria in G.L.c. 40O for creating a BID.
On December 12, 2008, the NBID proponents sent to property owners the first written notice of the public hearing, set for January 15, 2009. That notice gave the wrong location. On December 19, 2008, 28 days before the hearing, the NBID proponents sent a second notice of the hearing to property owners but with the correct location. On December 30, 2008, and January 6, 2009, the Hampshire Gazette published notices of the January 15th public hearing on the petition. The latter notice was published only nine days before the public hearing, although G.L.c. 40O, § 4, requires that " Notification of the hearing shall also be published for two consecutive weeks in a newspaper of general circulation in the area at least fourteen days prior to such hearing ." (Emphasis supplied.) The plaintiffs argue that the defendants failed to provide proper notice of the public hearings because: (1) the BID proponents issued the notice, (2) the notice was not published in two consecutive weeks at least 14 days prior to the public hearing, and (3) the first written notice gave the incorrect address of the hearing.Improper notice of a public hearing may invalidate the proceedings " if the board attempts to delegate to a petitioner its duty to mail whatever notices may be required." Kasper v. Bd. of Appeals of Watertown, 3 Mass.App.Ct. 251, 254, 326 N.E.2d 915 (1975). In the context of proceedings under G.L.c. 40A, § 17, an owner entitled to written notice of a public hearing " must show that he is prejudiced by such failure if he wishes to attack the ensuing decision on that ground." id. at 257.The same principles apply to this context. The plaintiffs have not shown that they were prejudiced in any way by the notice they received, either as mailed to them personally or as published in the local newspaper. The lack of prejudice defeats their argument of entitlement to relief based on inadequate notice. Cf. Kasper v. Bd. of Appeals of Watertown, 3 Mass.App.Ct. at 254.
On March 5, 2009, the City Council voted to accept the NBID petition and to enter into a memorandum of understanding with the NBID. On March 19, 2009, the City Council approved the petition. The plaintiffs brought this action on April 13, 2009. On June 15, 2009, the NBID was organized as a corporation under the name Northampton Business Improvement District, Inc.
V. ULTIMATE FINDINGS OF FACT AND RULINGS OF LAW
A. Scope of Review and Availability of Mandamus Relief
The parties continue to debate the intertwined issues of the scope of review for the plaintiffs' claims and the availability of relief in the nature of mandamus.
In the absence of an alternative remedy, relief in the nature of mandamus is appropriate to compel a public official to perform an act which the official has a legal duty to perform . . . Stated negatively, a court may not compel performance of a discretionary act . . . and, even if the act sought to be compelled is ministerial in nature, relief in the nature of mandamus is extraordinary and may not be granted except to prevent a failure of justice in instances where there is no other adequate remedy . . . Mandamus relief is not a matter of right but of sound judicial discretion.Lutheran Service Association of New England, Inc. v. Metropolitan District Comm'n, 397 Mass. 341, 344-45, 491 N.E.2d 255 (1986) (citations omitted).
At issue is whether the City's function in forming the NBID was discretionary (and thus, as the defendants assert, entitled to a strong presumption of validity) or whether it was strictly prescribed by G.L.c. 40O. The defendants' view is that the City had discretion in determining whether the petition met the statutory BID criteria because G.L.c. 40O, § 4, delegates to the City Council what the defendants characterize as the " working out of procedural details" in the formation of BIDs. On that basis, the defendants assert that relief in the nature of mandamus is inappropriate and that the standard of judicial review is deferential, such that the City Council's formation of the NBID can only be set aside if it is found to be arbitrary and capricious and lacking a rational basis. For this argument, the defendants rely upon G.L.c. 43, § 1 (city council is legislative branch of municipal government), and Fabiano v. Boston, 49 Mass.App.Ct. 281, 287, 730 N.E.2d 311 (2000) (city council's legislative act is entitled to presumption of validity).
The City Council's role is explained in G.L.c. 40O, § 4, which states in part:
At the public hearing, the [City Council] shall determine if the petition satisfies the purposes set forth and the establishment criteria of this chapter . . . If it appears that said petition is not in conformity with the purposes and establishment criteria, the [City Council] shall dismiss the petition.
The mandatory language defeats the defendants' argument that the City Council had discretion to interpret or disregard the statutory criteria required for BIDs. See G.L.c. 40O, § 4. See also Manning v. Boston Redevelopment Auth'y, 400 Mass. 444, 453, 509 N.E.2d 1173 (1987) (a statute should not be " construed in such a way as to make a nullity of pertinent provisions"); Canton v. Bruno, 361 Mass. 598, 603-04, 282 N.E.2d 87 (1972) (where Legislature determined extent of power delegated to create local districts and to prescribe the terms and conditions under which it could be exercised, actions taken beyond the authority conferred or not in compliance with conditions governing its exercise were invalid). The " establishment criteria" of G.L.c. 40O are not, as the defendants suggest, mere procedural details, and the statute unequivocally requires the City Council to dismiss nonconforming BID petitions. G.L.c. 40O, § 4. Accordingly, there is no merit to the defendants' argument that mandamus is unavailable or that the City Council's actions must be upheld unless they are found to be arbitrary and capricious.
B. The Required Determination pursuant to G.L.c. 40O, § 4
In any event, the failure by either Mazza or Sarafin to make a determination as required by G.L.c. 40O, § 4, that the criteria for establishing a BID had been met renders their certifications arbitrary and capricious. This entitles the plaintiffs to a declaration that the NBID was not properly formed and is null and void. See G.L.c. 40O, § 4. Absent compliance with that statutory hurdle, the City Council had no legal basis upon which to have held a public hearing on the petition. See G.L.c. 40O, § 4.
The evidence compels the further conclusion that the City Council also abdicated its responsibility under Section 4 to " determine if the petition satisfies the . . . establishment criteria of this chapter." The statute's requirement that two separate determinations be made of such conformity, one by the city clerk (or her designee) and one by the City Council, underscores the critical nature of this determination. See G.L.c. 40O, § 4. Yet at no time did the City Council make a meaningful or independent determination that the petition for the NBID complied with the statutory establishment criteria. The City Council's complete side-stepping of its obligation under G.L.c. 40O, § 4, provides yet another reason for the NBID's invalidity.
C. Whether the Petition Conformed to the BID Establishment Criteria
Moreover, under no view of the evidence could Mazza, Sarafin, or the City Council have made a rational determination on the information before them that the NBID petition was supported by " signatures by the owners of at least [51%] of the assessed valuation of all real property within the proposed BID and [60%] of the real property owners within the proposed BID." See G.L.c. 40O, § 3. The City Council was required to dismiss the petition at the public hearing stage due to the myriad of problems on the face of the assents, including illegibility, lack of dates, and lack of adequate evidence of authority for agents to sign for property owners. See G.L.c. 40O, § 4 (" If it appears that said petition is not in conformity with the . . . establishment criteria, the [City Council] shall dismiss the petition"). Cf. McCarthy v. Secretary of the Commonwealth, 371 Mass. 667, 684-85, 359 N.E.2d 291 & n.22 (1977) (signatures required for certification allowing candidate's name to be on ballot could be stricken where " signature on petition not substantially as registered; incorrect address; illegible signature or address; no such registered voter in municipality . . ."). As detailed below, many of the assents suffer from multiple defects, each of which independently warrants invalidating them.
1. Illegible Signatures
Valid signatures must be decipherable, either through a legible signature or with the name printed out nearby. Cf. McCarthy v. Secretary of the Commonwealth, 371 Mass. at 684-85 & n.22. I find that of the 305 signatures on assents submitted with the petition, at least 63 are illegible and have no printed name nearby to reveal the signatories' identities. These signatures should not have been counted toward meeting the 60% or 51% statutory criteria. See id.
Among the illegible signatures are those on assents for the following parcels: 43 Center Street, Units B and G; 19 Clarke Ave. Apts. 1 and 4; 16-20 Crafts Avenue; 43 Gothic Street; 15 Hampton Avenue and Hampton Avenue parcel 32C-036-001; 36 King Street; 22-24 Main Street; 25 Main Street; 29 Main Street; 31 Main Street; 84 Main Street; 108 Main Street; 126 Main Street; 135 Main Street; 140 Main Street; 150 Main Street; 159 Main Street; 175 Main Street; 179 Main Street; 180 Main Street; 189 Main Street; 207 Main Street; six units at 209 Main Street; 211 Main Street; 219 Main Street; 229 Main Street; 235 Main Street; 247 Main Street; 18 Masonic Street; 68 Masonic Street; 25 New South Street, Unit 201; 35 New South Street, Units 103, 107, 108, 110, 112, 208, 301, 403, and 408; 21-23 Pleasant Street; 42 Pleasant Street (signatures for two condominium units); 99 Pleasant Street; 53 South Street; 55-7 South Street; 55-8 South Street; 61 South Street-Garage 1; 61 South Street-Garage 5; 61-2 South Street; 61-8 South Street; 61-10 South Street; 65-8 South Street; 65-10 South Street; and 5 Strong Avenue.
Two signatures for 43 Center Street, one for Unit G and the other for Unit B, are both illegible, with no printed name nearby to be able to determine who was signing. To the right of these signatures are notations by the NBID proponents who wrote Duke Corliss (for Unit (G) and Safe Passage (for Unit B). Nothing on this document or on any other record before the municipal authorities at that time shows that Duke Corliss is the name of the person whose illegible signature appears on the left, or that Safe Passage, Inc. accorded proxy authority to the person who signed for it.
Sarafin could not decipher the signatures on assents for 19 Clarke Avenue, Apartments 1 or 4. It is not possible to determine who owns this property from the assents.
The signatures for these two Hampton Avenue properties are both illegible. The assent does not provide the name of the property owner, Saga Communication, Inc., and Sarafin did not have or seek information establishing the signatories' authorization to sign for the owner.
Sarafin was unable to read the signature for the assent to 22-24 Main Street. There was no evidence before her about this signatory having authority to sign for the property owner.
One individual whose signature is illegible signed assents for many properties, and noted that the following five properties were owned by Chamisa Corporation: 25 Main Street, 29 Main Street, 31 Main Street, 0 Main Street and an unnumbered address on Main Street. Nothing on this signature page explains who the signatory is or how he had authority to sign for the corporate owner for these five properties.
For 84 and 180 Main Street, the last name of the signatory is illegible and there is no identification of the property owner, later discovered to be Bermore Ltd. Partnership.
As discussed below, the signature on the assent for 108 Main Street is not only illegible, but the person subsequently identified as the signatory, Jeffrey Lipston, sold that property on July 23, 2008, before the NBID petition was filed, adding a second reason for striking this signature.
Sarafin testified that she was unable to decipher the signature for the assent for 126 Main Street. The assent contains no legible information as to who owns the property.
The assent for this property contains only the date, an indecipherable signature, and the address. There is no legible identification of the property owner and nothing to support an inference that the signatory had authorization to sign for the owner.
The signature for 140 Main Street is illegible without any printing to show who signed, much less the signatory's authority to sign as an agent of the owner, which is now known to be WAMI, LLC.
Sarafin testified that she could not decipher the signature for the assent for 175 Main Street. This assent is also undated and, although it states the name of the owner, Main Street, LLP, Sarafin had no information during the certification process showing who was authorized to sign assents for the owner of this property.
Sarafin testified that she was unable to read the eight signatures on one assent sheet listing eight properties at 207 Main Street, 209 Main Street, and 211 Main Street.
Next to the illegible signature is a notation of " 247 Main (243)." The signature was checked off, signaling its acceptance, despite the illegibility and the lack of information about the identity of the owner or the significance of the reference to 243.
Sarafin was unable to read the signatures on the assents for 35 New South Street, Units 103, 107, 108, 110, and 112.
Sarafin testified that she was unable to read the signature on the assent for 53 South Street. Nothing on the assent informs the reader of the identity of the owner.
Sarafin credibly testified that she could not read the signatures for the properties at 55, 61 and 65 South Street. No other information on these assents sheds light on the name of the property owner.
Sarafin was unable to read the name of the signatures on the assents for 61 South Street-Garage 1, and 61 South Street-Garage 5, and neither of these assents state the name of the property owners.
Absent meaningful verification at that time by the municipal authorities, none of these illegible signatures should have been counted in support of the NBID petition. Instead, they should have been rejected by the assessor's office, by the city clerk, and by the City Council. See G.L.c. 40O, § 4. Cf. McCarthy v. Sec'y of the Commonwealth, 371 Mass. at 685, n.22. Because the record establishes that far fewer than 297 of the 305 signatures were invalid due to illegibility, the NBID petition failed by a wide margin.
2. Authorized Signatures
As set forth above, G.L.c. 40O, § 3, requires " the signatures of the owners of at least fifty-one percent of the assessed valuation of all real property within the proposed BID and sixty percent of the real property owners within the proposed BID" (emphasis added). Section 3 does not expressly permit anyone but an owner to sign a petition to support a proposed BID. The only non-property owners who can sign for an owner on BID matters are " electors, " which are defined as BID members or natural persons designated by a BID member to vote by proxy for such member, " provided, however, that such designation shall be in writing and filed with the city or town clerk; provided, further, that only one such proxy may be designated by an owner." G.L.c. 40O, § 1.
Therefore, G.L.c. 40O, § 1, does not allow anyone to act on behalf of a property owner unless that person has been designated as the sole proxy and such designation is in writing, by the property owner, and has been filed with the city clerk. Although the provision for electors appears to apply once the BID has already been established, there is no reason to believe that the Legislature intended to set a lower standard for a representative to act for a property owner at the petition phase.
Many of the properties within the NBID are not owned by natural persons, yet relatively few of the signatures on the assents state the name of the owner or the basis for authorizing the signatory to sign an assent. Nothing in the evidence shows that the assessors, Mazza, or the City Council confirmed that each signature which they accepted and which was purportedly made in a representative capacity was written by a property owner or an owner's authorized agent. At best, by mid-January of 2009, only a few of the purported agents who signed on behalf of property owners likely qualified as authorized proxies through a written designation filed with Mazza as required by G.L.c. 40O, § 1.
Examples of assents lacking identification about the property owner and the signatory's authority to sign for that owner are the following: (1) Richard Madowicz signed an assent for property at 3-5 Clarke Avenue, which was owned by Clarke Avenue, LLC; (2) Joseph Blumenthal signed an assent for 25-27 Pleasant Street, which was owned by " Try All Reelty, Inc." [sic]; (3) W.G. Penman signed two assents for properties at 43 King Street and 1 King Street, which were owned by DP Holdings, Inc.; and (4) an undecipherable signature (due to a poor photocopy) is on an assent submitted on behalf of the First Church of Christ Scientist, 79 Masonic Street.
Equally ineffective are assents signed by persons whose purported documentation of agency authorization was no more than a notation or other communication from themselves. Proxy or elector status must be conferred by and communicated by the owner, not the agent, at the relevant time; otherwise the requirement would be meaningless. G.L.c. 40O, § 1. Exemplifying this problem are assents signed by Diana Vershon for properties at 125 Pleasant Street, 111 Pleasant Street, and 30 Hampton Avenue. Next to her signatures, Vershon noted her title, property manager. These signatures should not have been counted in favor of the petition, absent evidence that the owner filed with the City anything in writing identifying Vershon as an authorized proxy for purposes of the NBID petition, and absent evidence that the municipal authorities were aware of and took into account any such information in late 2008 or early 2009.
A further defect exists with respect to the assents signed on behalf of Smith College. General Laws c. 40O, § 1, requires each property owner to designate a single proxy, yet two individuals signed assents for Smith College. Ruth Constantine, Vice President for Finance and Administration and Treasurer for Smith College, signed assents with respect to five parcels owned by Smith College. On January 19, 2009, Constantine sent an email to Mazza notifying her that " I'm writing to confirm that I am fully authorized to sign documents on behalf of Smith College, includ[ing] those we executed for the BID." Additionally, Laurie Fenlason signed an assent for " Smith College Property at 62 State Street, " and sent an email to Mazza representing " This email will certify that [as Executive Director of Public Affairs at Smith College], I have the authority to sign the [BID] petition on behalf of the college." Even accepting that Constantine and Fenlason each had authority to sign documents on behalf of Smith College for some purposes, both could not have had authority to sign assents for the NBID as representatives for Smith College. See G.L.c. 40O, § 1.
Sarafin could not read Constantine's signatures or ascertain her identity from the assents.
3. Stamped Signatures
Sarafin was unable to read stamped signatures on assents submitted with respect to 27 condominium unit parcels at 17 and 25 New South Street. All of these stamped 27 signatures are illegible, without a printed name below to permit an identification of the name of person whose stamp was used or the name of the person who used the stamp for the other person. Sarafin conceded at trial that she could not read the signatures, yet she did not reject them or inquire further about them. On January 10, 2009, Amanda Allen sent an email to Mazza stating that she was a member of Emerald City Partners and an owner of those condominium units and that she approved the use of her stamped signature on those assents. The statute requires signatures, and does not expressly or implicitly recognize stamps as a legitimate substitute, much less those where the actual stamping was done by unidentified individuals.
4. Property Transfers Between Signing of Assent and Filing of Petition
By the time the NBID petition was filed in December of 2008, several of the assents which had been counted in favor of the petition were invalid because the signatories no longer owned the property. Those four are the following: (1) on October 2, 2007, Daniel Yacuzzo signed an assent for property he and his wife, Gail Yacuzzo, owned through the corporate owner, Lilo, Inc., at 19 Strong Avenue, but on December 7, 2008, before the NBID petition was filed, the property was sold to DK Flynn Realty, LLC; (2) on September 28, 2007, Jeffrey Lipston signed an assent for property he owned at 108 Main Street, but on July 23, 2008, he transferred that property to Coggins Realty, III, LLC; (3) on December 6, 2007, Joice Gare, Trustee, signed an assent for property at 110-112 Main Street, but on September 30, 2008, that property was sold to Main Street, LLC; and (4) on December 6, 2007, Joice Gare signed an assent for property at 114 Main Street, but on September 30, 2008, Gare sold that property to P+Q, LLC. These four assents should not have been counted in support of the NBID petition.
As noted above, the signature on that assent is also invalid due to illegibility.
5. Assents Without Any Identified Properties
The NBID petition also contained assents which did not identify any particular parcel. One example is an assent form containing six illegible signatures, all dated April 3, 2008, and all reading " R.E. Carle, LLC" where the property addresses should appear, but without any addresses. These six signatures should not have been counted toward supporting the NBID proposal.
In sum, of the 305 assents filed with the petition, dozens and dozens should not have been counted. The number of valid assents does not remotely approach the 297 needed to meet the requirement that 60% of the real property owners within the NBID have signed the petition. On this record, it is unnecessary to consider whether the owners of at least 51% of the total assessed property value of the real estate within the proposed NBID supported the NBID. The parties' remaining arguments are either without merit or do not alter the outcome reached here. The NBID was never validly formed; it was void ab initio .
The plaintiffs also take issue with what they see as the NBID proponents' failure to show that the petition was signed by the owners of the property within the proposed NBID because the assents were attached to the petition but were not on the same document. The plaintiffs' concern is that the signatories on the assents were not informed of the contents of the proposed NBID as it appeared in the petition filed on December 10, 2008.Although the physical separation of the petition from the assents is not a problem, see G.L.c. 43, § 38 (" [s]ignatures to initiative petitions need not be all on one paper"), the text of a petition must be presented to the signatories before they sign it, or the signature requirement is meaningless. See Capezzuto v. State Ballot Law Comm'n, 407 Mass. 949, 955-57, 556 N.E.2d 366 (1990).
A person permitted to describe orally the contents of an initiative petition to a potential signer, without the signer having actually examined the petition could easily mislead the signer by, for example, omitting, downplaying, or even flatly misrepresenting, portions of the petition that might not be to the signer's liking. This danger seems particularly acute when, in this case, the person giving the description is the drafter of the petition, who obviously has a vested interest in seeing that it gets the requisite signatures to qualify for the ballot.Id. at 955-56. The failure to present signatories with the applicable version of the text to which they are asked to give assent may not be fatal if the persons signing the petition had before them a written summary prepared by a neutral government official. Id. at 957. In contrast, signatures by individuals with only oral summaries made by a partisan advocate of the petition are invalid. See id. A summary's sufficiency must meet the following standards:
No doubt details may be omitted or in many instances covered by broad generalizations, but mention must be made of at least the main features of the measure. And the summary must be 'fair'; that is to say, it must not be partisan, colored, argumentative, or in any way one-sided, and it must be complete enough to serve its purpose of giving the voter who is asked to sign a petition or who is present in a polling booth a fair and intelligent conception of the main outlines of the measure . . . [T]he language of a summary will be invalidated where, in the context of the entire proposal, it is significantly misleading and likely to have a major impact on voters.First v. AG, 437 Mass. 1025, 1026, 774 N.E.2d 1094 (2002).Nothing in the evidence in this case shows that any of the assents were signed when the signatories had in hand either a petition or a written summary providing a fair and intelligent outline of the proposed NBID. This flaw is further exacerbated by the fact that the proposed NBID was materially amended on unspecified dates, and those changes were not communicated to prior signatories. Nonetheless, I credit the testimony of Daniel Yacuzzo that he and other NBID proponents sent out mailings to property owners and that in at least one such mailing, he included a summary of the NBID. The plaintiffs have not shown that the summary was significantly misleading or that it did not provide a fair and intelligent outline of the proposed NBID, even if it was sent by the NBID proponents. Accordingly, this basis for the plaintiffs' claims is unavailing.
ORDER
For all the reasons set forth above, it is hereby DECLARED and ADJUDGED that:
(1) the defendant City of Northampton failed to comply with the requirements of G.L.c. 40O by failing: (a) to check each signature on the assents to determine which ones matched the Assessor's Office's records of ownership, (b) to confirm that each accepted signature was written by an owner or an authorized proxy, and (c) to reject illegible signatures;
(2) the Northampton Business Improvement District was not validly established and is and has always been null and void; and
(3) any actions taken by either of the defendants to operate the Northampton Business Improvement District are null and void.
It is further ORDERED that:
(1) any and all operations undertaken by the Northampton Business Improvement District shall immediately and permanently cease;
(2) the City of Northampton shall, within seven days of entry of this Order, correct its official records to state that the proposed Northampton Business Improvement District was not legally established and is null and void; and
(3) the City of Northampton shall, within seven days of entry of this Order, issue a notice directly to all property owners within the proposed Northampton Business Improvement District and through publication in the local newspaper that the Northampton Business Improvement District was not legally established and is null and void.
The plaintiffs have not sought in their pleadings or otherwise damages for the return of fees paid into the NBID. Any request for such relief, therefore, is deemed to be waived.
It is further ORDERED that the Northampton Business Improvement District, Inc.'s Motion to Supplement the Record by Admitting Further Documents is DENIED.
SO ORDERED.