Lest we forget,
once we came close to losing the meadow between the Smith Vocational School and Florence, and the whole farm program. And it wasn’t that long ago. The meadow and its cows is an elegant reminder of the old Northampton, the town Jenny Lind called the paradise of America. The school’s main campus, which used to total eighty acres, wraps around land-hungry Cooley Dickinson Hospital to the south and west. Once upon a time, not too long ago, there was a pretty orchard behind the hospital. Students harvested fruit from the trees and stored the apples and peaches in barns on the grounds of the school. Gradually, however, the orchard fell on hard times, a victim of budget cutting. ·
In the early nineties when I was on the city council, I got a call from a friend who worked at Smith Vocational. He says, “Mike, they are trying to shut down the farm program up here, and you’ve got to come to the board meeting to show your support for the farm and this guy Ed Maltby, who manages it. ” So I went, along with quite a few other Northampton city councilors. It was a stormy meeting. I was mildly surprised to find Mayor Mary Ford engaged in shouting matches with farm supporters.
Part of this nine acre plot of land that once was that orchard is covered by a Cooley Dickinson Hospital parking lot; part is used as a detention pond and wetland replication area to handle the runoff from the hospital’s project that added a new emergency room and birthing department to the hospital. Smith School, and therefore the City, still owns the land today. There is no lease, no agreement, no piece of paper that transferred the property from the school to the hospital. There’s no sign that indicates to people parking at Cooley Dickinson that they are parking on city land. The hospital got use of the land for free. And the fingerprints all over this deal belong to Edward Etheredge, a lawyer who represented both the hospital and the Smith School during this period. The hospital created a wetland on someone else’s property without a transfer of deeds.
I meditate on all this and wonder why. What is it about politicians and governing bodies that they become victims of smart well-connected lawyers time and time again? Why do they give away tax breaks and incentives and free land and get back zip? I think sometimes that politicians and civil servants are so used to being kicked around that they kind of invite it.
The State of Massachusetts has a good law governing how public land can be disposed of. Section 30b of the Annotated Laws of Massachusetts is short, clear and elegant. Municipalities desirous of disposing of city land need to get an appraisal, and do a so-called RFP, or public request for proposals for the land. This has to go in the paper and advertised and then the land is sold to the highest bidder. It’s so good a law that no one wants to follow it here in Northampton.
It inhibits deal-making. This land swap only came to light because of the civil suit “David Dec vs. the Massachusetts Teachers Retirement”. Dec, the former business manager for Smith School, spent a lot of time on the stand talking about the struggles of the former trustees and Steve Johnson, the administrator of the school in l992, to shut down the farm program. For many years it was in decline. Enrollments were low, its equipment was old, and its herd was dwindling during the l980s. Abutters and mayors of Northampton, Dec said, were after its land. He told the court about a land swap carried out by Cooley Dickinson Hospital and the school where the two parties swapped some good dry land ( which the hospital got) for some swampy land (which the school got). The land swap, as it turned out, never happened. The notion of the Smith School and the hospital swapping land parcels dates back to the 70s and Mayor Sean Dunphy.
The city needed land for parking for football games along North Elm; the hospital needed land for more parking. In l986, under Mayor Dave Musante, a resolution authorizing the land swap was passed by the City Council, and the Probate Court was petitioned to approve the transaction. In its first form, it was a better deal for the city. In return for 2.56 acres of high land that adjoined the Cooley Dickinson parking lots to the south, the city got 6.71 acres of bottom land off of North Elm. About two years later, however, the hospital put the court petition on hold. It still is on hold, twelve years later. On December 26, l990, Mayor David Musante signed a one year “license agreement,” and he and Craig Melin, the new administrator for the hospital, signed it. It gave them the right to use each other’s land for a year. No signature was on there from the School’s trustees, who evidently had been bypassed. The license agreement then lapsed, and there was no agreement in force for about five years. The hospital was mowing the land now, and planning its “Project 2000” expansion and modernization project. When Mary Ford became Mayor, she was told the “swap was a done deal” by the then city solicitor, the late Katherine Fallon. But, of course, it wasn’t. The new version was markedly different. The 6.71 acre parcel off North Elm had been cut back to a tiny triangular shaped parcel (1.9 acres), along with another small parcel of less than an acre behind the wood chip plant. Neither of these parcels had frontage of their own. The hospital under this new deal had stripped away from the swap the valuable portions of the land, the property that adjoins the backyards of Elm Street. Many abutters would like to extend their backyards, and at least two of them had approached the hospital to buy small strips of land. One of them, Danny Yacuzzo, owner of the East Side Grill and a member of the Planning Board recused himself from the hearings on Cooley Dickinson’s special permit hearing because of his conflict. I walked this triangular-shaped parcel this winter. It was a beautiful sunny day out among the cat-tails. Maybe it was drier back in the seventies when talk of this landswap first started, but now it’s swampy and impenetrable. Why? Water running off newly developed land, including the parking areas and buildings up at Cooley Dick on the crest of the hill. Between the creek that runs along its frontage, the wetlands and the mandated buffer area, you wouldn’t be able to build anything on this land. The Mayor at trustee meetings said this parcel might be good for a trail or dirt road linking the High School and Smith School. When you think of all the real needs at Smith Vocational, you might think that there is a better use for their money and energy that hacking a trail through this awful brush and building a new bridge across this little creek. The new proposal was discussed by trustees in the fall, winter and spring of 1995/l996, at about the same time the hospital was in the final stages of getting its construction permits in order. Most of the proceedings were done in executive session. On December 19th, l995, it was decided that city appraisers would look at the land and give the board their idea of how much the parcels were worth, and the hospital would be asked to get their own appraisal. Although all further proceedings were in executive session and any reports of their discussions were spindled and mutilated, it is clear that the board didn’t move forward. The value comparisons were not equal, indeed they were wildly dissimilar. The city assessor estimated the land value for its “highest and best use”. The hospital land it was offering the city was only worth $19,500, and the Smith School land was valued between $52,600 and $110,400. On February 14, l997, the hospital’s appraiser submitted their figures. He said the hospital land was worth $7200.00, and the Smith School land, $6500.00. At this point, I feel this appraisal amount should be put it in caps and boldface, maybe in twenty-four Palatino: $6500.00 for an acre and a half of prime real estate here in Northampton? Garden variety house lots within a mile of downtown are going for big money these days. You don’t need a gun to rob people with; a nice appraisal will do just as well and expose you to less countermeasures.
Which opens up the topic of sharp lawyers, real estate people and real estate appraisers. It’s not easy making a living as an appraiser because the big guys are always shopping around to get the right figure. Heritage Bank wouldn’t have gone down with the crash it had without its cozy relationship with local appraisers who would give bank officers the highly inflated figures they were looking for. The trustees were naive if they thought that they would get back an objective appraisal from Cooley Dick that would speed things along. The hospital wanted a bargain; Ed Etheredge wanted a deal that he could crow about to the board of directors. And I’m sure that the Chair of the hospital’s Board of Directors, Matthew Pitoniak wanted a bargain too. Unlike many lawyers who threw away their Heritage money in buying nightclubs, ski condos and big power boats, Matthew Pitoniak was a shrewd investor, using Mike Smith’s money to build an empire that includes today the Tunnel Bar and the Depot and car washes.
With the huge difference between the Buscher memorandum and the Hospital appraisal stalling negotiations, Attorney Janet Sheppard suggested to the Mayor that the city should go to Springfield and get away from all the trouble and funny business that seems to happen here in Northampton. (MAK interview with Mary Ford, March 22, l999) She told the Mayor that she would get an honest appraisal in Springfield. When it arrived, she was shocked.
“I looked at it and I couldn’t believe my eyes.” said the Mayor. The second appraisal that the City’s Attorney had provided said that the parcel of city land was worth less than $10,000, and their estimates of value were very close to the hospital’s. The figures were saying go ahead, but the new estimate didn’t kick start the stalled negotiations. Evidently they were not believed. What I think happened was that Mary Ford is an honest woman and she woke up late in the game and decided that swapping the Smith Vocational Land for the hospital land was not a even-steven business, no matter what these appraisals said. But she never picked up her whistle and blew it. “ While we were twiddling our thumbs” in the Mayor’s words, the hospital went ahead with their plan, won all the approvals from the city, strong-armed the planning board, and got their permits. A paragraph that the planning department had inserted into the special permit that would have forced the hospital to remove their improvements if the land swap failed, was deleted at the urging of the Mr. Etheredge. The city attorney, Janet Sheppard, dutifully passed on correspondence about the deal to the trustees, but never said stop to Etheredge. Never said “You don’t own this land, you can’t do this.”
When it’s public land and the movers and shakers want some of it, it’s another strategy. Nothing straight up. Let’s see if we can get some land for free. Let’s trade. It’s conniving and wheeling and dealing. Talk to the Mayor, have her talk to the trustees of the school in executive session. Do things on the Q.T. Hire a lawyer to do your wheeling and dealing that is well connected. Ed Etheredge has phenomenal connections. Former Assistant District Attorney, lawyer for the city, lawyer for the Vocational School, lawyer for some of the major players in the Heritage wrecking crew. If the hospital had proposed a fair trade that the school really wanted, it might have worked. But the prime movers in this, all along, have been the Mayors and the hospital, not the trustees or administrators of the school. Faced with a tough embarrassing fight on the surface, the mayor wimped out and let the hospital build on city land. Her director of planning, Wayne Fieden, even changed the city’s zoning map to eliminate the parcel in question. All this makes Mary Ford looks bad, and undercuts the moral obligation she has to look out for the public interest, and enforce land law even-handedly. There seems to be one policy for friends of the administration and one for its enemies. The owner of the Northampton airport historically has not been able to cough without getting a special permit, and his proposals for projects at the airport have always met endless delays. When the Valley Community Development Corporation found that the porches for their rehabbed building on Old South Street were jutting out less than two feet into the city’s right of way, the city made them demolish and rebuild their porches, which cost about $20,000 and delayed occupancy of the building for a month. No license or waiver was generated for them. So what is it about politicians and governing bodies that they become victims of private enterprise and smart well-connected lawyers time and time again? Because these boards are not made up of high-powered professionals. They are made up of people like you and I, often bewildered by complex legislation and legal requirements. They are constrained by tight budgets, and are dependent, in many ways, on their lawyers to survive in this litigious world. Because the lawyers involved in this case, both working for the city, came up with two “low-ball appraisals very close to one another, and far from the real market value of the land. Ed Etheredge put the Smith School in a bad place when he continued to work for them, bill them every month for all their routine legal work, wringing their budget dry while he was manuvering, on behalf of the hospital, to get use of their land for free. Between June l996 and November l998 he billed the school $16,562.96 for their legal work. Where were they going to get the money or the leverage to fight their own lawyer, the Mayor and one of the biggest institutions in town? Beyond this there are the moral questions, which lawyers, by and large, are very uncomfortable with. They represent their clients like gladiators of old; they see themselves as smart and correct and the other side as dumb and venal. They are fighters, not lovers. They wouldn’t dare sit down with their clients and say dumb things like, “Well, you know the Smith School is broke now and has no money for new equipment in their budget, maybe the best thing for the hospital to do would be to pay them land rent for the land we are using until we get all this legal business squared away.”