Tuesday, February 1, 2011

The Ghost of Christmas yet to come?

So yeah, I'm sticking my oversized neck out by publishing this but, unlike WikiLeaks, I will provide background and context for this important document, obtained under the legitimate protection of an Executive Session Monday night at the Amherst Redevelopment Authority meeting (legal advice from the town attorney is exempt from disclosure under Mass Public Documents Law.)

Kind of an "Executive Decision" on my part--as the acting Chair of the ARA and, as such, I of course take full responsibility.

I consider it a journalistic "correction" for something I previously published. When overly concerned, outspoken neighbor John Fox (a retired Washington attorney) visited the Amherst Select Board to rail against the Gateway Project and present to them a petition signed by 147 fellow "concerned citizens" he also attached to that petition an email exchange he had with town planner Christine Brestrup declaring Umass was subject to local town zoning and as such was limited in what they could develop on the former Frat Row, a now vacant prime piece of property (worth millions) sitting at the entry/Gateway to Umass.

Turns out our town attorney disagrees with that assumption. And it's an extremely critical point: UMass does not need the town or the ARA to build anything--including any kind of housing--on the former Frat Row. Backs up what Mr. Diacon pointed out an an ARA meeting months ago; they could build a 20 story residential project designed exclusively for undergrads if they so desired--all of it off the property tax rolls.

Key sentence of attorney Bard's email being the close: "It is therefore my opinion that, were UMass to retain ownership of the Gateway site and to development it for its own use in furtherance of its essential governmental function, such development of the site would not be controlled by the Town's Zoning Bylaw."

So NIMBY neighbors: be careful what you wish for. Torpedo the Gateway Project as envisioned in this joint coalition between the town, ARA and Umass...at your own risk.


Anonymous said...

You mean that we could cut off our noses to really, really spite our faces?

We've never done that before, have we?

LarryK4 said...

Yeah, unfortunately, the 1987 taking of the Cherry Hill Golf Course springs to mind. (Paying $2.2 million in eminent domain costs when the developer would have donated it to the town for free.)

Anonymous said...

Fuck Fox.


Anonymous said...

This just shows what a farce the whole process is. Citizens are asked to come to a hearing that actually has a preordained conclusion. If they don't toe the line of the chair of the committee they are called overly concerned. This is why people sue, because the hearing process is not actually about information gathering and then making a decision. They are just props. Pathetic.

LarryK4 said...

Yeah, don't you (whomever you are) just hate it when that "preordained conclusion" is not the one you want.

Depends on whose ox is being gored, eh?

This was not a Public Hearing where we asked folks to come in; it was a routine meeting of the ARA which has a Public Question/Comment period on the agenda.

The only "preordained conclusion" I had going into the meeting was that everybody would get their say.

And stakeholders will continue to get their say, over and over again, at the numerous Public Hearings coming up soon.

Dale said...

I agree Larry I don't think of it as a "preordained conclusion". I do believe many ideas are already solidly in the mix, but there is room for constuctive critisism. If people would present ideas in a proactive intellegent way they would be heard and recognized. The NIMBY population seems to be more set on not building any where and not having a suitable substitute that represents a better solution that would benifit the town. I do think UMass is willing to collaborate with Amherst to build a Gateway Project that will benifit both of us. Yes there will be things that we will wish we had done differently when it is completed, but that is the nature of all large scale projects. I've yet to see one that hasn't had a glitch that in the end. But if you hold out for the "perfect plan" nothing gets built. You go at these things with the best plan possible with anticipation adjustments may need to be made. Amherst can't seem to figure this out and it is our "Achilles Heel". We can continue to fight UMass and they can walk away from any Amherst planning meeting and move forward with what they feel would be in the best interst, or work with them with hopes our input might bring positive results.

LarryK4 said...

They indeed hold the ultimate trump card: "Get out of local zoning free".

We have more to gain from this joint project than they do.

Anonymous said...

I am a big supporter of the Gateway project Larry, but also think that you may be doing more harm than good to the cause with your aggressive, belittling tone towards concerned abutters. There are real quality of life issues associated with their proximity to campus and to this new venture. Their concerns deserve to be heard and considered and, hopefully, can contribute to a more successful project in the end. I appreciate the town manager's tact of slowing the pace a bit in order to create a more deliberate process. This is something that we don't just want to get done, but to get done right.

Anonymous said...

oversized neck for a tiny little head

LarryK4 said...

The enemy of my enemy is my friend.

And those who claim to be a "big supporter" under the cloak of anonymity, probably are not.

Ed said...

Larry -- it is even better than that.

Massachusetts is a Commonwealth and not a State and this means that municipalities (both traditional towns and cities) and "special municipal corporations" (aka "Authorities" like AHA, ARA, PVTA) are essentially chartered corporations.

They exist under a grant of authority from, and at the pleasure of, the state government. SCOTUS upheld the latter in the case of Etna, Dana, Greenwich & Prescott -- the state just discontinued their charters.

There are some real questions about the authority of one municipal corporation to regulate another -- this comes up when a town or city owns property in another municipality (eg Northampton's waterworks which is up in another town) or when the AHA or ARA want to build something.

The ARA is an independent entity and you can do things independent of the town's permission -- it usually is politically wise not to do so, but legally you can give town meeting "the finger" and do whatever you want to. Legally, the only thing that the town can do is go to the parent (the state) and ask them to tell you to play nicely with the other children.

Now, UMass *is* the state and that means not only does Amherst have no authority whatsoever over it, but that UMass (the grownup) has the authority to tell Amherst (the child) what to do.

Back in the '60s, when UMass was expanding (and buying up entire neighborhoods via emminent domain) the Town of Amherst freaked out and tried to stop this and was not able to.

The best they were able to do was to get then-AG Ed Brooke to write a letter to UMass asking them to please be considerate of the municipality and to please listen to the concerns of their leaders.

UMass chooses to pull permits for things like the new steam plant because it respects the expertise of the Amherst Fire guys and for a lot of practical reasons including not having to explain to a jury why you didn't have municipal inspectors checking things if anything ever happened.

The two things that no one really quite understands is (a) the extent to which UMass voluntarially subjects itself to Amherst authority and that (b) it doesn't have to.

UMass not only has the authority to tell Amherst to go f*** itself, but also to trespass every Amherst official from campus (like happened to Larry) and that includes the Amherst police.

They could put a nuke plant on North Pleasant Street if they wanted to, they could go through the NSF to do it, and with some of the new Homeland Security stuff, they wouldn't even have to tell Amherst it was there....

Ed said...

One other thing -- I caution you all to be very careful in asking the university to have authority over the students for two reasons.

First, student and employee (faculty as well as staff) rights are both in the same Wellman document and it can be revoked at the next BOT meeting. The Red Book could be re-written tommorow and all collective barganing contracts exist under the auspices of changable state laws.

With the internet, it isn't a four-hour round trip for a Boston bureaucrat to be aware of what is happening out here, and never forget that that there is every bit as much a cry to "control" the leftist activism as there is to "control" the students -- a university that discovers that it has the authority to do the latter can be bullied into doing the former.

More importantly, bureaucrats love power. Once UMass discovers that it can play hardball with the students, it is going to start doing it with everyone else. UMass is a sleeping tiger - academics are inherently timid - but I really caution people about asking for decisive action from UM because you might start seeing it in places you don't want to.

Like in the North Pleasant Street Nuke Plant....

Ed said...

Larry -- only a bit off topic, but I thought you and yours would love this:


And I really love the idea of the "'Gateway Nuke Plant' -- ionizing the atmosphere and attitudes for eons..."

"Calling Homer Simson, Calling Homer Simson...."

Anonymous said...

That's the problem. You treat people who live near the proposed Gateway as the enemy.

Ed said...

Second try:

Blogger apparently doesn't like long urls, so click on this:
And then click on the column (Golden Parachute for School Superintendent).

And if that doesn't work, then go to
http://www.townhall.com/columnists and click on Kyle Olsen, and then click on...


LarryK4 said...

Yeah it's going to be interesting to see what the salary is for the new permanent Superintendent (whoever that may be.)

Ed said...

"That's the problem. You treat people who live near the proposed Gateway as the enemy."

No, I am not even elevating the people who live near the fifth largest residential college in the country to the status of "enemy."

I think you are irrelevant.

You chose to live near a very large university that answers not to you but to a whole bunch of people who live 90 miles to the East and who are very (VERY) different from you.

I do not mean this as a personal insult but in the context of a large state government, a large university, and some really pressing economic challenges, you folks are truly inconsequential. You are really nothing more than annoying pests to UMass and you get what you want because UMass really has better things to do than to fight with you.

But sooner or later, they are just going to stomp on you.

Knowing this Chancellor personally, hearing what I have about the new President, and knowing some stuff about the "Higher Ed Bubble" that I can't reveal, it very well may be sooner than later.

In encouraging them to stomp on the students, they are going to do it to you too...

You are not the enemy, you are irrelevant.

Anonymous said...


The Grammar Nazi....

Ed said...

One more thing that no one has yet explained:

Exactly how does having Precinct 10 happy benefit UMass students? Exactly how is the student experience enhanced because a retired DC lawyer's house is worth more money than he paid for it?

Education is a business, its customers are students, and it is increasingly becoming a competitive market. There are too many colleges in the country right now and not all will survive.

Only something like 18% of the UM budget comes from the state. 82% of the budget it has to earn, just like any other business does, and the vast majority of that it has to "earn" from the students, who are its customers.

That is what I meant when I cautioned that "students are not an inexhaustable fungible resource" -- UMass, which has been closed for two days, has to compete with USC (in sunny Southern California) for students, and it is cheaper for a MA resident to go to the University of Arizona than to UMass Amherst.

UMass is already looking at things from the perspective of marketing -- what do you think the new Rec Center was all about -- and exactly how does having people who choose to live right next to UMass -- and allegedly have IQs above 12 and kinda knew about the ZooMass reputation happy benefit the average undergrad?

The fact is that you are irrelevant. You can huff and puff and pass your resolutions and fly your UN flag on the town common and all the rest but you are irrelevant.

When UMass finally realizes that the baby boomlet is over and that there aren't enough 18-year-olds to fill every existing college seat in the country and that it literally has to put other colleges out of business or itself go under ---

When UMass finally gets into basic survival mode -- when things are worse than they were in the early '90s -- they are not going to care what you think. And they will stomp on you, brutally, if you are in their way.

And that is why I am really cautioning you on going too far (which you are, particularly with the Berlin Wall proposal) and in starting the precedent of UM regulating the off-campus activities of citizens because that will also apply to employees at some point.

If students will want to come to UMass and (more importantly) donate to it after they graduate because of something you are proposing, UMass will listen to you. Otherwise, you increasingly are irrelevant. This is a business, not a charity, and there really is no reason for them to care if you like them or not....

Ed said...

Larry -- another case you might want to look at is City of Melrose v. MBTA -- I don't know the cite but email me if you can't find it.

Melrose, a city near Boston, is where the MBTA's Orange line ends -- like in DC, the subway comes above ground outside the city, it and the commuter rail trains share a surface railbed on property owned by the MBTA (and formerly the Boston & Maine Railroad).

Melrose had an ordinance prohibiting billboards. At the time, Melrose was also still "dry" with no public sale of alcohol allowed within city limits (ie no bars or package stores).

The MBTA let a private billboard company put up billboards on its land (and got money from this). One of these billboards advertised an alcoholic beverage, and was real near and clearly visible from a middle school. (Medford also sued, and the school may have been in Medford, I know they also had an issue as to how close one of theirs was to I-93, but I am complicating things here.)

Melrose had city ordinances that (a) prohibited billboards (b) prohibited advertising alcohol and (c) prohibited putting things up without permits, which the MBTA also didn't have. Melrose argued that erecting billboards to advertise alcohol had nothing to do with the MBTA's primary governmental function of running trains, and thus that Melrose's rules would apply to the MBTA.

I know the lawyer who argued this case personally -- he is a good one. And he lost.

The SJC ruled that the MBTA needed money to run those trains, and anything that raised the money it needed to perform its primary governmental function was inherently part of its primary governmental function.

(I really am disappointed that Amherst's lawyer missed this case in his brief -- Amherst's position is even weaker than he wrote.)

What this means is that UMass could put a Walmart on North Pleasant Street and the town can't stop them. Like the MBTA, UMass could lease that land to a private for-profit entity to use for a purpose completely unrelated to education -- say a strip club -- and be exempt as long as they make money on it which they can then use for their primary mission of education.

Melrose v. MBTA -- the same SJC that gave us gay marriage gave us that, I think they were wrong in both cases, but the law is what the judges say it is and we have to live with it.

And UMass really could build a Walmart on North Pleasant Street -- or put a strip club there or whatever would make them the most money and Amherst couldn't say anything because UMass needs money to run its university....

Anonymous said...


No wonder you haven't graduated. You have too much time on your hands.

Anonymous said...

Larry, why can't you take people's comments at face value? Don't you think it IS possible that you are doing more harm than good to this important venture by continuing to rail against the opposition? I want The Gateway Project to succeed. I agree that it presents an important opportunity for the community, including those factions of the community that live in close proximity to it. But how does treating those with concerns as "the enemy" help to create a constructive climate for realizing that opportunity? I don't get it.

LarryK4 said...

I'm but a very tiny cog in a very large wheel. You give me too much credit.

Anonymous said...

In this town, development opportunities like this require all the cogs to be working in sync. We don't need any of them gumming up the works.

LarryK4 said...

Anons abrogate the right to use the collective "we".

Ed said...

No wonder you haven't graduated. You have too much time on your hands.

They closed the library for two days, you schmuck. Of course I had way too much time on my hands....


Anonymous said...

Whenever you're out reasoned Larry you resort to the "attack the anon" strategy. I used to wonder why you didn't just disable anon posters given your disdain for them, but then I realized it would force you to actually address the substance of people's arguments, which is not your forte.

LarryK4 said...

But if I disabled Anon posters than you would not have just posted. Just because you can post Anonymously does not mean you have to. You can leave your name.

My theory is if you really truly believe you have "substance" to your argument, then you would not be afraid to take responsibility for it.

Anonymous said...

Again the planning dept gets the law all wrong.

Anonymous said...

Ah, yes, the old demand surrender by demanding a "constructive climate" trick.

We're seeing it with the schools.

We're seeing it with Gateway.

Is anyone else tired of political combatants in Amherst insisting that their opponents be as nice as they are? Give me a break.

Anonymous said...

Because of the combative attitude of one libary trustee, the Jones Library has lost two long time, excellent library employees.

So, yes, combativness does have its downside.

LarryK4 said...

Geeze, now your comparing me with Carol Gray. Yikes!

But of course you are too nice to mention her by name.

Roach patrol said...

@February 4, 2011 10:13 PM

Disarming you makes it easier for them to take you down.