Shutesbury Smack Down

The Appeals Court, as expected, did not overturn Superior Court Judge Mary-Lou Rup's decision and they did not even bother to rule on the votes of Shoshana Holzberg-Pill and her brother Jacob Holzberg-Pill (thrown out by Judge Rup) because upholding the voting rights of Richard and Joan Paczkowski made the matter of the Pills votes moot.

The Shutesbury Board of Registrars had allowed all four contested votes (Pills and Paczkowkis) to count but threw out the vote of Christopher Buck (originally allowed by the Town Clerk) bringing the vote total to a 522-522 tie, measure fails.

A pro library contingent of ten voters appealed the decision of the Board of Registrars tying to get the "no" votes of the Paczkowskis thrown out, but instead Superior Court Judge Mary-Lou Rup upheld their votes and went even further, throwing out the Pill "yes" votes.

Thus with this Appeals Court ruling today, the new Shutesbury library $1.4 million override vote now-and-forever stands at 522-520, ballot question fails.

And because the deadline to accept a state grant of $2.1 million--requiring the $1.4 million in town matching funds--expires June 30, the issue that refused to die is now dead, buried with a big ol' building sited squarely on top (just not a new library).

Appeals Court Decision

Shutesbury Library Drama Continues

Shutesbury Community Church managed major renovations with private fundraising

Andy Warhol once said "Everyone would be world famous for 15 minutes," and lawyers in the contentious Shutesbury Library $1.4 million override election had their 15 minutes before a trio of judges at the Boston Court of Appeals on Tuesday morning trying to convince the justices that Hampshire Superior Court Judge Mary-Lou Rup was either as wise as King Solomon or wrong as a stopped clock.

Boston attorney William McDermott, representing two of the original 10 class action Yes voters, squandered precious time trying to get the justices to allow into evidence interrogatories that Judge Rup had not allowed on a technicality (they were unsigned). The justices pointed out to Attorney McDermott that if the Paczkowskis voter status is upheld the Pills (yes) votes would be moot.

Attorney Alan Seewald, hired by 3rd party "intervenors" from the No side, shared 15 minutes before the justices with Shutesbury town attorney Donna McNicol who argued the Board of Registrars correctly allowed the yes votes of Shoshana Holzberg-Pill and her brother Jacob Holzberg-Pill as well as the No votes of Richard and Joan Paczkowski, long-time residents who winter in Florida (bringing the vote to a 522-522 tie).

Oddly, Attorney MacNicol as part of her defense of the Pills also defended the behavior of Christopher Buck the only vote thrown out by the Board of Registrars and barely mentioned in the original case brought before Judge Rup.

Alan Seewald, the Pro from Dover, defended Judge Rup's decision but was questioned sharply by justices about "disenfranchising" Shoshana Holzberg-Pill and her brother, who attended the hearing, Jacob Holzberg-Pill.  But Attorney Seewald had never requested Judge Rup simply throw out the Pills yes votes only that, "If your honor were to disenfranchise the Paczkowskis, you must do the same with the Holzberg-Pills."

Shutesbury Town Administrator Becky Torres, a new-library supporter, also attended the appeals hearing.

The Appeals Court is expected to rule before June 30 thus giving the town time to tap into the $2.1 million state grant dangling in the wind since the heated political theater began.  If the court upholds Judge Rup's decision the vote ends up 522-520 in favor of NO.  If the court reinstates the Pills votes but fails to overturn the Board of Registrars decision on the Paczkowskis, the vote will be 522-522 tie, ballot question fails.

In order for the election outcome to change the appeals court has to allow the Pills votes and disallow the Paczkowskis, a seismic overrule of Judge Rup and about as likely to happen as a snowstorm blanketing the area later today.

Look for a safe, tidy compromise:  the justices will reinstate the Pills votes, but keep in the Paczkowskis thus bringing the tally, once and for all, to a 522-522 tie, the $1.4 million override fails.

Quaint Shutesbury M.N. Spear Memorial Library

One last time, into the fray

Shutesbury:  Where the welcome sign is not the only thing frayed

The back-and-forth in the sad saga of the Shutesbury library vote is enough to give an observer whiplash.

With the June 30 deadline looming for the town to accept a $2.1 million state grant, the Supreme Judicial Court last week refused to hear an expedited appeal of Judge Rup's decisive decision to throw out two previously counted yes votes of attorney Michael Pill's grown children thus bringing the (never say) final vote to 522 "no" to 520 "yes" in the $1.4 million override request required to match the state grant.

Originally library proponents had filed suit against the Board of Registrars requesting the court, "Order the defendant Board of Registrars not to count the votes of Richard and Joan Paczkowski, or in the alternative if the Paczkowski votes are to be counted, then order the defendant Board of Registrars to count the vote of Christopher Buck."   Either of those two alternatives would have changed the outcome of the library vote from a failure to passing.

Instead Judge Mary-Lou Rup not only upheld the Board of Registrars decision to allow the challenged Paczkowski votes but then she went a step further and negated the votes of Shoshana Holzberg-Pill, and Jacob Holzberg-Pill.  To date the only negated vote that now seems unchallenged is that of Christopher Buck, who signed a legal document (license) in Kentucky, where he has been  employed full-time for the previous two years, clearly stating Kentucky is his sole legal domicile for voting.

Since town attorney MacNicol is now being so accommodating there's probably enough time for "direct appellate review" by the appeals court of Judge Rup's decision, which most experts believe will be upheld.  By then, however, the June 30 deadline will be at hand and no compromise possible between the opposing sides to get a piece of the $2.1 million state grant.

The picturesque M.N. Spear Memorial Library

The year (1923) Babe Ruth broke the record for all-or-nothing home runs, he also lead the league in strikeouts.  Those who fail to learn from history...

Shutesbury Library: Noose Tightens

 And NO, it will be

The desperate motion by attorney Michael Pill and FRIENDS OF THE M.N. SPEAR MEMORIAL PUBLIC LIBRARY, INC. for a review by the Massachusetts Supreme Judicial Court of Judge Rup's recent decision to throw out his grown children's two yes votes in the overly contentious failed Shutesbury Library $1.4 million override vote has been denied.

The case remains in the appeals court but this attempt to leapfrog that judicial arena would have fast tracked the case thus giving it a chance to be heard before the June 30 deadline for the town to accept a $2.1 million state grant towards construction of the $3.5 million library.  Now it as all but assured the June 30 deadline cannot be met.  A very expensive overdue notice for sure.
 
Maybe now would be a good time for, um, compromise?

  Supreme Judicial Court for the Commonwealth of Massachusetts

RE:    No. DAR-20760

FRIENDS OF THE M.N. SPEAR MEMORIAL PUBLIC LIBRARY, INC. & others
vs.
BOARD OF REGISTRARS OF VOLTERA OF THE TOWN OF SCHUTESBURY & others

Franklin Superior Court No. FRCV2012-00014
A.C. No. 2012-P-0843

    NOTICE OF DENIAL OF APPLICATION FOR DIRECT APPELLATE REVIEW

Please take note that on May 24, 2012, the above-captioned Application for Direct Appellate Review was denied.

Susan Mellen, Clerk

Dated: May 24, 2012

To:  William A. McDermott, Jr., Esquire
Michael Pill, Esquire
Donna L. Macnicol, Esquire
Alan Seewald, Esquire
Franklin Superior Court Dept.

Shutesbury Library: Neverending NO

Today attorney Alan Seewald and town attorney Donna MacNicol received official notice that Shutesbury pro-library override proponents are appealing the decision last week of Superior Court Judge Mary-Lou Rup who sustained the judgment of the Shutesbury Board of Registrars allowing the challenged no votes of Joan and Richard Paczkowski.

The judge, however, threw out the yes votes of Jacob Holtzberg-Pill and Shoshana Holzberg-Pill (grown children of attorney Michael Pill, initially allowed by the Board of Registrars) bringing the total vote tally to 522 against and 520 in favor of the $1.4 million override for a new library.

The new library total cost is $3.5 million but the Massachusetts Board of Library Commissioners granted the town $2.1 million towards construction costs.  After the second defeat at the ballot box the Library Commissioners voted to extend the deadline until June 30 to give the town time to unite behind a single design plan, but made it perfectly clear there would be no further extensions.

Judge agrees: No it is!

M.N. Spear Library, Shutesbury

After hearing two hours of testimony on Monday, April 23 from both sides of the contentious Shutesbury Library Override debate , Judge Mary-Lou Rup decided in favor of the two challenged no votes but threw out two yes votes thus changing the original January 10 tie vote to 522-520, meaning the $3.5 million renovation Override failure is upheld.

"Friends of the Library" filed suit to have two "No" votes voided, those of Richard and Joan Paczkowski, who winter in Florida but spend nine months annually in Shutesbury in a home they have owned there for thirty five years.

Attorney Alan Seewald represented the NO side, and he argued that if the Paczkowski's votes are ruled out then the judge should also throw out Jessica Buck (wife of Chris Buck, who already had his vote ruled out by the Board of Registrars on January 25 because he signed a legal document in Kentucky a month before the Shutesbury vote giving up his right to vote anywhere else) and attorney Michael Pill's grown children Shoshana Holzberg-Pill  and Jacob Holzberg-Pill who live and reside in New York and California respectively.

The Judge's decision to uphold Richard and Joan Paczkowski's right to vote in their hometown combined with agreeing with Attorney Seewald's argument for nixing the yes votes of Shoshana Holzberg-Pill  and Jacob Holzberg-Pill brings the final vote tally to 522-520.

Judge Rup's Decision

Shutesbury Library site contamination confirmed

 Shutesbury Library proposed site (former auto body shop)

As residents of Shutesbury hold their breath awaiting the decision of Judge Rup concerning the eligibility of voters in the contentious 522-522 tie Override vote, town administrator Rebecca Torres received confirmation from an environmental consultant that PCBs are indeed present at the site and an "Immediate Response Action plan" required by the state Department of Environmental Protection for PCP detection within 500 feet of drinking wells has been implemented.

Additional soil samples from beneath drum will be taken and analyzed

Shutesbury shoot out widens

Now come Alan Seewald, former Amherst, current Northampton city attorney and private practice attorney, to join the Shutesbury library legal fray by filing a "Motion To Intervene" on behalf of ten No voters requesting a Superior Court Judge review three additional yes votes, besides the one already ruled invalid, on identical grounds: residency.

The three challenged votes--two Pills and another Buck-- are the same previously challenged ones the Board of Registrars allowed at the January 25 recount where they did, however, sustain one challenged vote: Christopher Buck.  That brought the contentious vote tally back to 522-522, override fails.

Pro-override voters then filed a lawsuit against the Town Clerk and Board of Registrars demanding a Shutesbury couple with 37 years of residency, but who winter in Florida, be disenfranchised; and that Christopher Buck--who signed a legal document in Kentucky shortly before the Shutesbury election with the provision, "I do not claim the right to vote anywhere outside Kentucky"--be counted.

Now counter-petitioners are asking the Judge to rule Christopher Buck's wife Jessica, who also lives with him in Kentucky, ineligible.  Shoshana Holzberg-Pill, and Jacob Holzberg-Pill, who live and work full-time far from the bucolic community of Shutesbury, also make the short list.

And if that is not reassuring enough, attorney Seewald throws in the kitchen sink, asking the judge to declare the entire second override election invalid because town officials--in their haste to fast track the library--neglected to return to Town Meeting for a second spending authorization contingent on a Proposition 2.5 Override.

This entire legal maneuver will be made moot in the likely event the judge disagrees with pro-overriders and allows the original January 25 decision of the Board of Registrars to stand.   

Shutesbury Library Answer and Statement of Claim

Incendiary Library Debate

After extensive public discussion, one positive Town Meeting vote and two successive Override failures, the fate of Shutesbury's new library is now in the hands of a Superior Court Judge, as proponents of the library/community center refuse to take NO for an answer.

They will, however, learn to do that soon enough.

Interestingly, lead architect of the lawsuit and--questionably--its attorney of record, Michael Pill, makes a good living servicing NIMBY clients shouting NO.

Mr. Pill represented neighbors trying to stop the HAP Butternut Farm low-income project in South Amherst (and failed), the Amherst neighbors on University Drive opposed to rezoning property for senior housing combined with mixed use commercial (and won), and he's representing Amherst Woods neighbors opposed to a solar farm on the old landfill, which he will surely lose.

Of course win or lose, Mr. Pill always gets paid.

M.N. Spear Memorial Library, Shutesbury

Two of the eight challenged ballots (that the Board of Registrars allowed) just happen to be Mr. Pill's grown children, ages 28 and 32. And two other challenged ballots (also allowed) had close ties to the Powers That Be in rural Shutesbury:  The 25-year-old son of former town administrator David Dann and the 29-year-old son of Becky Torres the current town administrator who was Chair of the Select Board when the proposed library site was purchased in 2004.

Proposed site for new library

Christopher Buck was the only vote overruled by the Board of Registrars and thrown out because he voluntarily registered to vote in Kentucky shortly before the second Shutesbury Override vote.  And that clearly trumps any previous voting place.

Even the complaint filed by library supporters telegraphs their lack of confidence in throwing out the Paczkowski no votes, as they ask the judge for a remedy:  "Order the defendant Board of Registrars not to count the votes of Richard and Joan Paczkowski, or in the alternative if the Paczkowski votes are to be counted, then order the defendant Board of Registrars to count the vote of Christopher Buck."  Which would approve the Override by a count of 523-522.

Richard and Joan Paczkowski taking the time on 10/14/2011 to reregister in Shutesbury--their hometown for the past 37 years--trumps their previous registration in Florida where, like many folks of retirement age from the northeast, they winter. 

Much is made out of the Paczkowski's taking out a Homestead Declaration on that Florida property. Almost four years ago, however, the Amherst Board of Registrars took up that exact scenario with Anne Awad and Robie Hubley, who had taken out a Homestead Declaration on a house in South Hadley (where they currently reside) but used an empty condo that was up for sale as proof of residency in Amherst to not only vote, but also to hold elected office.

The Amherst Town Clerk testified at the 7/3/08 hearing: "There was no known legislation whereby the signing of a Homestead Declaration for a property in another community could be used to determine that an individual could not be registered to vote in the community in which they consider themselves to be a resident."

The Amherst Board of Trustees voted 3-0 to allow Hubley and Awad to maintain their voting rights in Amherst.  Just as the Board of Registrars did in Shutesbury on January 25 with Joan and Richard Paczkowski. 

Case closed.

 And NO, it will be

Polluted Library vote

Automotive trash pile behind building

In spite of the rosy Gazette headline (1/7/12) "Consultant finds no contamination at proposed Shutesbury library site" published just days before a critical second Override vote (1/10/12), even the most cursory perusal of the property would indicate otherwise.

Leading library proponent Michael DeChiara added even more emphasis on the "Yes For New Library" Facebook page by publishing the word "NO" contamination in all caps. 

In fact, the consultant hastily hired by the town after a whistleblower voiced concern over the contamination discovered, "All Extractable Petroleum Hydrocarbons 'were below the reporting level of the laboratory methodology with the exception of 19.1 PPM C19-C36 Aliphatic Hydrocarbons and 33.5 PPM CII-C22Aromatic Hydrocarbons detected in Sample FD-S-2."

The report continues: "The sample from beneath the drum was analyzed for Polychlorinated Biphenyls based on detection of PCBs in the petroleum remaining in the drum by Oil Recovery, Inc. A total of 39.9 parts per billion PCBs was detected in soil."

One of three drums left on site

Debris immediately behind building

Note to Gazette headline editor:  PCBs constitute "contamination."

When the town purchased the 22 acre site for $212,500 eight years ago from Amherst developer Barry Roberts, the property was only assessed at $137,500.  Even though it resembled a junk yard modeled after "Sanford and Son", no pre-sale environmental study was performed.  If any individual taxpayer tried that with a mortgage, the bank would demand an environmental site assessment as per normal business practice known as "due diligence."

Additionally, a fire station two doors down and a DPW across the street are what the consultant refers to as "Recognized Environmental Conditions."   Especially since the fire station is a known hazard contaminated by a leaky underground gas tank that has cost the town over $200,000 to date in clean up costs, with no end in sight.

The homeowner sandwiched between the fire station and the proposed library site has a contaminated well and receives potable water by special arrangement with the town.

Virtually all houses in Shutesbury have septic systems and well water. The elementary school is the only facility with town water/sewer, although much is made of the current library not having "running water."

You expect spin from both sides on any question as important as an Override vote, but when town officials downplay public health issues you have to wonder what else they would do in order to get their way?

Inside the former three bay auto repair facility, the concrete floor is cracked

Automotive fluid runoff  channeled to open floor drain