ZBA Burns/Incinerates Biomass Permit...

**This post has been updated with pictures and for grammar.  This post has also been corrected to accurately reflect the comments of one speaker with regard to Massachusetts municipal waste incinerator ban.**

(WMassP&I)

As early as five thirty, a half hour before the zoning board of appeals hearing was set to begin, opponents of a proposed Biomass facility on Page Boulevard were arriving at City Hall.  Opponents from across the city and throughout the region poured into the hearing room that more than fifty years ago housed the second of the city's two legislative bodies.  As the room filled, supporters of the project were limited to a few seats off to the side.  Palmer Renewable Energy's imperious local attorney Frank Fitzgerald opted to stand.

Nobody knew what to expect from the board and between that and the tenor of hearing, many opponents could only guess how the board would rule.  Some were mindful of the high hurdle they would need to clear to sustain their appeal.  They would need not only a strong argument, but they would need to secure a unanimous vote from the board.

Before the ZBA were three matters.  Two involved biomass.  The other, the first one, involved an elderly woman who wanted to erect a temporary carport on her property.  The ZBA approved it with no opposition.

The real battle lay in the other two petitions.  Many had hoped that the biomass issue had died, at least on the city level, when the Springfield City Council revoked PRE's special permit.  However, the situation turned against biomass opponents again when Building Commissioner Steven Desilets issued PRE a building permit on the reasoning that a special permit was unnecessary.  That led to an appeal from local activist Michaelann Bewsee and two residents that live near the plant's proposed location, William and Toni Keefe.  The Springfield City Council, in exercising their prerogative as the authors of the zoning ordinance and issuers of special permits, filed the second appeal.

Michaelann Bewsee
(Michaelann Land Blog)

Bewsee's appeal came first and most of the arguments on the merits were the same for both the council's and her appeals.  However, there were issues of standing, that is were Bewsee and the Keefe's aggrieved parties to Desilets's decision?  While PRE was expected to attack the council's standing as well, that argument would likely fly directly in the face of established case law.

As would become a consistent problem throughout the hearing, ZBA chair Brenda Doherty implored the crowd to limit discussion of public health and air quality to only how it relates to the hearing.  The ZBA's jurisdiction was only zoning and could only consider the public health impacts to the extent they affected standing.  Despite that admonition, both sides veered away at times.

As lead petitioner, Bewsee spoke first.  She outlined the long, sordid history of the project, particularly its switch from burning construction waste to wood chips.  She outlined the project's original plan to burn construction and demolition waste for which the company requested and received a special permit for a recycling center on a 7-2 vote in 2008.  Since then the project changed to burning wood chips and the Springfield City Council completely transformed.  Following that transformation, the council revoked the permit on the grounds that the project had substantially changed.

Behind the desk are from left Commissioners Walter Gould
Brenda Doherty, Henry Nowick, Maria Perez and Daniel
Morrissey (partly obstructed).  Not pictured Commissioner Jose
Gonzelez. (WMassP&I)

Bewsee argued that the building permit was unlawful because Palmer Renewable's air quality permit was being appealed by none other than Bewsee herself and other environmentalists.  The city's ordinance and state regulations require that all air permits be obtained before a building permit is issued from the municipality.

Bewsee then explained how Desilets's decision was contrary to city zoning law.  Although the Page Boulevard property is zoned Industrial A, which is a very permissive designation, PRE was not merely proposing to engage in "processing," one of the approved activities as of right.  Rather the proposed process that the plant involved "incineration," which needs a special permit.  She disputed the notion that the wood being used did not qualify as waste.  Bewsee also defended her standing to appeal because the plant's emission's would affect her respiratory problems, but perhaps more critically, she defended the standing of the Keefes whose commute would be impacted by the trucks hauling waste wood in and ash out.

Pat Markey in 2007 with Karen Powell (WMassP&I)

Pat Markey, an attorney, former City Solicitor and former City Councilor who cast one of the two votes against the 2008 special permit, made the comment that would define the evening.  He told the board that proponents of the plant would offer a bunch of "smoke and mirrors."  He broke down the incineration requirement of the city zoning ordinance to its most basic component, "to burn to ash," and reminded the board that anything beyond that simply does not matter.

Other anti-biomass speakers drifted into air quality issues that Doherty tried to reign in.  The board also heard from a real estate agent who represented the owners of the former Friendly's on Page Boulevard that worried about the impact on that property's marketability.

Desilets was represented by Lisa DeSousa, an assistance city solicitor who, as Markey predicted, began the first round of dissembling.  She said that the plant would not engage in incineration of waste, refuse or offal, but would be burning fuel.  That difference, if it existed at all and expounded upon throughout the hearing, would form the crux of the board's final decision.  She did suggest, if not all that convincingly, that the air quality permit was actually in effect, as Bewsee and others had not requested a stay pending their administrative appeal of the air permit.

Fitzgerald, the lead local PRE attorney, only confidently assured the board that all i's were dotted and t's crossed.  He, too meandered into more detail about the air quality permit than Doherty would have likely preferred, but handed most of the show off to Botson Attorney Thomas Mackie.  Mackie had appeared before the council at the revocation hearing and brought his trademark condescension and attitude that defined much of his earlier remarks before the council.  Absent, however, were the veiled threats of litigation he hurled at the council, as the appeals board members face considerably different political consequences than councilors.  He did display at least a passing respect for Bewsee as the appellant, however.

The Right of Appeal: A Preview...

**This post has been updated to reflect clarifications of some legal issues in this appeal.**

Biomass Protesters at Revocation Hearing last year
(WMassP&I)

This Wednesday Springfield will see perhaps the highest profile showdown over the proposed biomass facility on Page Boulevard since the Springfield City Council revoked Palmer Renewable Paving's permit.  Indeed, this may be more of a nail biter as most of the 2/3 of the council that voted to revoke had telegraphed for weeks that the PRE's project and its changes made it ripe for revocation.  Wednesday, however, will be something different.  For the first time an independent body will assess the council's decision to revoke PRE's permit.  This is very different from the permit granting process PRE faces before the Department of Environmental Protection, where the issue is not the validity of the revocation or Building Commissioner Steven Desilets's permit, but one of air quality.

The Zoning Board of Appeals is a body chartered under Massachusetts General Law to resolve zoning disputes within cities and towns.  The matters before it and indeed the people before it are dictated, however, by the city's zoning ordinances.  In that way, the mere fact that the council, who is not the only party opposing Desilets's issuance of PRE's permit, is in part due to their own ordinance.  Under Springfield zoning, the Springfield City Council approves special permits.  While this has often led to some concern that a political, rather than professional, appointed body (which can also be political), approves these permits, it also puts the Council in the game to stop PRE's building permit.  Because, in the council's view, its will with regard to the special permit is being subverted by the building permit, they have standing to appeal.  Were they merely the writers of the zoning ordinance, they may not be an aggrieved party within the meaning of the state zoning law.  In that case, only the private appellants to the building permit could go before the appeals board and, if still dissatisfied, onto court.  The private actors consist of nearby residents and several anti-biomass groups like Arise for Social Justice and Stop Toxic Incineration.

Now that the appeal is before the zoning board, whether the appeal of citizens or of the council, the issue will boil down to three basic issues.  It seems likely, as with any appellate board, that the board could choose to consider the appeals as broadly or as narrowly as they like.  Often times, to minimize the political blowback on themselves, such boards or appellate courts will consider matters as narrowly as possible.  They do not always, however.  Consider the Citizens United decision from the US Supreme Court.

The overall argument of the appeal is that the building commissioner acted beyond his authority to issue the building permit.  It boils down to several arguments.

(WMassP&I)

The first issue is whether Desilets acted in direct contravention of state law when he gave PRE their building permit.  Appellants are expected to argue this point first and foremost since it is probably the most airtight argument.  Massachusetts regulations say that before a building permit can be issued all other permits must be received first.  However, this does not turn on the special permit as its necessity is under dispute anyway.  Rather, appellants will likely point out that the commonwealth's Department of Environmental Protection has yet to issue PRE's air quality permit.  The Conservation Law Foundation and local groups had opposed PRE's receipt of that permit as well, but were uled to not have standing by a DEP hearing officer considering the case.  That hearing officer was overturned by the DEP commissioner who ordered the hearing officer to consider the matter again on the merits.  Consequently, there is no air quality permit and remains in litigation.

If the ZBA wants a clean way out, for now at least, they could rule on this alone in favor of the appellants.  It seems unlikely that either the Building Commissioner or PRE would appeal that ruling to court due to how cut and dry it is.

However, the other two issues will be presented too.  The final two are somewhat related.  Is a special permit necessary and is the facility an incinerator?  The city Law Department has issued a memo, upon which Desilets relied, that said a special permit was not necessary because the new design was not, as the original now-revoked special permit, a recycling center.  It is not using construction and demolition waste as a fuel and therefore is not a recycling center.  Consequently, no special permit is necessary.  However, the city zoning ordinance may still apply, appellants will argue.  The city requires a special permit for incinerators.  Because this facility, whatever the purpose, is burning wood chips, it is, as appellants will argue an incinerator.  The city requires a special permit for that, which PRE has never received or requested.

Largest Smoke Stack in the World (wikipedia)

These second two issues will undoubtedly reappear if the ZBA chooses to only reverse building permit on Wednesday on the narrowest grounds.  Indeed, they will likely reappear before the ZBA, unless the board sides with the building commissioner on the air permit.  If the board decides to rule beyond PRE's lack of an air permit, then there will almost certainly be an appeal regardless of who wins on the other grounds.  If the ZBA rules in favor of the building commission the citizens groups and the council will appeal.  Biomass opponents on the council still have more than enough votes to appeal to court.  That raises significant questions about the council's ability to represent itself because they cannot appropriate money, but none of the biomass opponents seem particularly worried about that.

The ZBA will have up to ninety days from the date of appeal (December 7, 2011) to make their decision.  An affirmative vote is required.  As an appeal is likely, the losers will have 20 days to appeal to court.  If the council is on the losing end, it will likely need a special meeting to vote to appeal to court in enough time and survive a Rule 20 invocation.

If the council and the citizens groups win, then it may get more interesting.  Who will appeal in that case?  PRE has standing to appeal to superior court, but the defendant, if they sue, will no longer be the city council, but the ZBA.  This could tidy up some of the legal wrangling as the Law Department would no longer be conflicted by having two adverse plaintiffs (the building commissioner and the board of appeals).  However, as Ward 8 Council John Lysak noted at a meeting last year, there may already be conflicts within the law department that could disqualify them regardless.  If the Building Commissioner appeals, which in theory he could if the City Solicitor agrees to represent him, then the Law Department becomes conflicted again.  Moreover, the ZBA, as the defendant is even more unable to defend itself if the law department steps away.  However, the Council and the citizens groups could easily intervene and take control of the case in court.

This situation presents a strange legal disposition.  Intra-municipal conflicts such as this one have been rare for fifty years  Indeed, the most authoritative case law on the matter stems from the 1920s, 30, and 40s when many of the laws governing municipalities, zoning and the like were originally written.  Certainly, it is common for the controversies to arise soon after a law is passed, the lack of significant case law since suggests that these conflicts are intentionally managed away by politicians and officials.  This leaves archaic, if valid case law for a legal situation that has itself become rare.  One way or another, Wednesday, as important as it may be, is not the last stop on this legal train.

The Year in Springfield, 2011...

(WMassP&I)

With another year under Springfield’s belt comes another edition of the Year in Springfield.  In its 375th year of existence the City of Homes suffered through one of the most erratic year of weather on record which brought a range of immense destruction and gross inconvenience.  Politically, it was also a tumultuous time from Springfield City Hall to Beacon Hill to the steps of Harvard University.

The year 2011 opened in Springfield with an eye, as in other places, to Washington, where a cadre of increasingly nihilistic “citizens” took their place in Congress and in state capitals across the nation.  While the boat rocked in Massachusetts with a shrunken, but still massive Democratic edge in the State House, Governor Deval Patrick took the oath of office once more. 

However, America was rocked only eight days into January when Arizona Congresswoman Gabrielle Giffords was shot in the head, by quite literally a madman.  Early accusations pointed to tea party extremism, but ultimately mental disease and not right-wing anarchy drove the young man to shoot Giffords and twelve others while murdering six.  Gifford suffered a traumatic shot to the head, be saved by the quick thinking of her intern of five days.

Cong. Gifford w/ her Mother weeks

after the shooting (PK Weis via Facebook)

President Barack Obama, given his first significant opportunity to play the healer-in-chief gave a stirring speech at a memorial service attended by Arizona’s Senators, its governor with Obama has frequently clashed, Giffords’ husband, Mark Kelly and Supreme Court Justice Anthony Kennedy, who oversees the Ninth Circuit within which the slain judge, John Roll, served.

The event took on somewhat of a local relevance when Congressman Richard Neal held a press conference after the shooting noting that he had known Giffords and had raised money for her ahead of what had been a difficult reelection in 2010.  However, he also urged that parties take down a notch the vitriol and anger that had become pervasive in politics whether Loughner was driven by politics or not.

Also in January Amaad Rivera took office as the Ward 6 Councilor following the resignation of Keith Wright.  He took office because the city’s succession law is only written with only at-large councilors in mind and fills vacancies with runners-up.  Technically, Rivera was a runner-up even though he lost the 2009 election.  The chorus of dissent included this blog and came to a head on a vote for eminent domain as part of Forest Park Middle School renovations.  Rivera invoked Rule 20, the council’s parliamentary motion to delay the project to the shock of other councilors.  While we would settle our differences with Rivera, many remained incensed over the use of Rule 20, ironically including some who would encounter similar anger over its usage.

Councilor Amaad Rivera (WMassP&I)

However, the focus on Rivera would lessen as he became one of a super-majority of councilors that opposed a wood-burning biomass plant.  The special permit had been granted in 2008 by the last council on a 7-2 vote.  All ward councilors and two at-large councilors, including Jose Tosado who voted for the permit in 2008.  The Callahan Family, owners of Palmer Renewable Energy and like-named paving company poured money into experts who dismissed, often condescendingly, the health concerns raised by opponents.  Against the din of protests and threats of legal action the council revoked PRE’s permit on a 10-2 vote.

Biomass and Occupy Boston Bulletins...

Last week biomass opponents were despondent.  Kateri Walsh resorted to parliamentary procedure where the power of persuasion has failed--miserably--and delayed a vote to appeal the building commissioner's decision to issue permits.  Meanwhile, the hearing officer for the Massachusetts Department of Environmental Protection had ruled that the challengers to the commonwealth's air permit to Palmer Renewable Energy lacked any standing to oppose the air permit.

Since then all the bad stuff has been upended.  At-large councilor Kateri Walsh still opposed the council voting to assert its own legal rights, but her parliamentary did little to actual stop the council.  It passed its resolution to appeal the building commissioner's decision to the Zoning Board of Appeals with seven days to spare under state law.  Only Walsh and at-large councilor Jimmy Ferrera opposed the measure.  All other councilors voted to appeal  At-large councilor Tim Rooke and Ward 5 Councilor Clodo Concepcion were absent.  Each had historically voted in separate directions on the issue meaning their absences did not substantively change the vote's outcome.

At Occupy Boston, protesters were dealt a blow when a judge entertaining an injunction against the city prohibiting a surprise raid by police turned down their request and terminated the preliminary injunction.  Although the judge's opinion actually left significant grounds for appeal, protesters appear to be as resigned as ever to leaving the encampment.  The city has successfully blocked winterizing efforts and openly admitted it never really tried to address health and safety concerns.  That said, Occupy Boston, or at least its true activist members seem willing to move on to Occupy 2.0.

The problem at Occupy camps are well-documented, although often misinterpreted because the camps reflect ills in society at-large not an propensity for drug use and violence.  Indeed, the effort to expel such troublesome members, although often barred by the general assemblies' 3/4 majority needed for passage of anything, mirrors the same in society.  Cities, towns and states cannot exile drug addicts, the homeless or mentally ill any more than Occupy camps could.

The library, food and medical tents in Boston have been packed up and many protesters have removed valuables.  Although it is not know if Boston Mayor Tom Menino will move on the camp after his midnight deadline, both sides have to take stock.  Although Menino plays to the powerful quite often from his perch in City Hall, he has a point that more energy needs to be directed at Washington, DC or at least Beacon Hill.  To that end, protesters, if they want a peaceful end to this, even one that may include arrests, CANNOT throw anything or fight with cops that come into to clear the camp.  As to the city, do not repeat the mistakes made in New York.  No media blackouts.  No violence and no needless skull-thumping.  Just go in.  Drag off the diehards and move on.

The world will be watching.  Any blatant assault on civil liberties the judge did not exclude from the First Amendment will be a scar upon Boston it does not need and can certainly avoid.  However, the world is watching Occupy Boston and its sister groups, too.  Whatever unfairness directed at the camp and it is there, it is time to evolve and grow beyond that to make an impact beyond the simple, physical boundaries of Dewey Square.

Take My Council, Please: The Walsh Filibuster...

**UPDATED 12/3/11** Following a report by Maureen Turner posted to her Valley Advocate blog "On Springfield" on biomass & campaign contributions, the Republican today singled out Kateri Walsh's hundreds in campaign contributions from the Callahan family and their lawyer Frank Fitzgerald.  The same report notes that City Comptroller Pat Burns found ZERO financial implications to the city if the council appeals PRE's permits to the Board of Appeals.

(WMassP&I)

When Steven Desilets approved a building permit for Palmer Renewable Energy’s biomass plant off Page Boulevard, he had to know it would provoke a rebuke from the City Council.  Five months before he approved that permit, the council voted 10-2 to revoke PRE’s permit on the grounds that the project had changed considerably from its previous incarnation and would pose a threat to human health.  Desilets would approve the permit on the advice of the Law Department, which argued that PRE did not even need a special permit under the revised proposal.

On Monday the Council gathered for a special meeting to formally appeal the building permit.  Because the council is an integral part of the planning and zoning process of the city, it has standing under the umbrella state zoning law to appeal the decision.  It can appeal to both the city’s Board of Zoning Appeals and, if still unsatisfied, to court as well.  Indeed, it seemed as if the council would do exactly that last night…until one councilor made Republican Senate Leader Mitch McConnell proud and filibustered.

Councilor Fenton (Facebook)

Before the meeting began it was well-known where everybody stood.  Ward 2 Council Mike Fenton wisely requested a recorded vote on last week’s non-binding resolves and it revealed that at-large Councilors James Ferrera, Tim Rooke and Kateri Walsh were opposed to any further council action to oppose the biomass plant.  All ward councilors and at-large councilors Thomas Ashe and Jose Tosado were in favor of further action just as they were in favor revoking the permit.

Nevertheless, the opponents tried their best to derail the process.  Ferrera started first by trying to sow the seeds of confusion among the councilors with an assist from City Solicitor Ed Pikula.  Ferrera inquired into who would represent the council if it voted to appeal and Pikula argued that the Law Department may need to recuse itself because it would be obligated to defend the building commissioner.  Ferrera also asked about PRE’s existing suit against the city over the council’s permit revocation.  However, that remains, as Pikula described, a placeholder suit if a court or other board rules the special permit is indeed needed.

Ward 8 Councilor John Lysak took on Pikula’s position directly asking how the Law Department could be defending the city against PRE’s lawsuit on the revocation while maintaining the position that a special permit is not necessary.  Pikula argued that the two issues were parallel, but did not have conflict within each case individually.

At the same time, however, Pikula noted that the council cannot appropriate money on its own for a lawyer.  Though true, Pikula could also not deny that the council could finance counsel out of its own pockets, receive pro bono representation, or even go to court pro se.

However, Fenton noted that the council needed no lawyers to appeal to the Board of Appeals.  The board is an administrative body just like the City Council and like the City Council, appellants to the board appear without any council constantly.  Certainly a lawyer can represent an appellant before the board, but there are no legal documents to serve or actions taken that require a law license to be properly executed.  Thus, before the Board of Appeals, the council needs no lawyer and does not even need to contemplate the need to find money for one until and unless the Board rules against the council.

Take My Council, Please: Council Talks Turkey on Biomass...

(WMassP&I)

With the holidays around the corner, the turkeys of the Springfield City Council gathered Monday for a Thanksgiving week meeting to handle some issues that had been at a simmer for several weeks now.  Some of the hottest items were taken care of before they boiled over.  Others had the heat turned up higher for next week‘s special meeting.

Among the minutiae before the council was a series of utility reports, permit revocations for non-renewal, several property donations and grants.  The revocations were for underground storage tanks and parking lots permits brought up by the City Clerk because the permittees failed to respond to renewal notices.  The city formally accepted some parcels of property for public use and the council accepted grant money for Health & Human Services, Dispatch Services and tornado relief.

Bill Gibson of Springfield Speaks in Opposition to Biomass
Plant Permit (WMassP&I)

A speak-out before the meeting included several opponents of the biomass facility on Page Boulevard, which controversially received a building permit despite the council’s revocation of its special permit.  Among the speakers were local activist Michaelann Bewsee and a representative from the Conservation Law Foundation, a New England environmentalist group.  Kevin Sears of the Sears Real Estate Company spoke to oppose to the city’s Foreclosure Ordinances adding in an un-sourced claims of retaliation by lenders who would refuse to loan in the city (a legally suspect action, if true).

Budgetary updates showed the city more or less on target, but the monthly reports are off because City Hall was closed at end of the October when the city often receives tax money.  Ward 7 Councilor Tim Allen requested more information on the Tornado and now October Snowstorm costs to the city.  Those numbers were not included in officials’ reports because spending for disasters is done in separate emergency accounts.  Budget officials promised a detailed report on disaster spending by the next meeting.  In a pleasant surprise, the city also clocked in a higher than expected surplus last year of $4.7 million.

Ward 2 Councilor Mike Fenton, chairman of the Finance Committee, also announced an end to the city’s budget drama with the transfer of $6.2 million from stabilization reserves to close the city’s budget deficit.  Fenton praised the council reduction to $6.2 million from $10.5 million from stabilization reserves used to balance the city’s budget.  The reduction was made possible through cuts and an increase in local aid to the city.  Fenton called it a “much more reasonable position,” for the city in light of still-unknown disaster costs, union contract negotiations and another deficit expected next year.  Fenton also alluded to using some stabilization to mitigate an increase in the property tax rate for the city.

The Insight: Setti Warren and the Brown-out facing the Unemployed...

 **UPDATE** Editor's Note: In response to a comment, we wanted to add a clarification on the post itself.  The comparison between Scott Brown's and Setti Warren's service is NOT intended to cast aspersions on National Guard service.  There is a difference between touting one's own service retrospectively as opposed to prospectively securing that service so as to retrospectively tout it.  The comparison below is intended to suggest the Mass GOP perceives Warren as a threat, not speak to an individual's service or how that service qualifies a candidate.

Mayor Warren with Rexene Picard (WMassP&I)

Yesterday in Springfield Newton Mayor and candidate for the Democratic nomination in next year's Senate race toured Futureworks, the jobs training and labor exchange based at the STCC Technology Park opposite the college  Rexene Picard, the organization's executive director showed the mayor around the facility and explained the importance of funds form the Workforce Enhancement Act, especially at a time when so many are looking for jobs.

Warren met with both job seekers and the people whose job it is to take the less out of the jobless.  Futureworks programs cater to a wide range of people from all skill levels, education and age group.  Picard noted that the organization often helps people, who are looking for work for the first time in twenty years, navigate the more complex and often electronic aspects of modern recruiting.

WMassP&I spoke with Mayor Warren at the conclusion of his tour about a range of subjects affecting both the Springfield area and the commonwealth at large.  On a local level, Warren was asked about the Environmental Protection Agency and how it relates to the controversial biomass plant proposed for Page Boulevard in Springfield.  Specifically, the question related to Sen. Scott Brown's vote to gut the EPA's rule-making ability, just as the agency began a 3 year evaluation on the impact of biomass plants and Springfield was locked in a high-stakes fight with a developer over the same issue.

The Newton mayor said he was "deeply concerned" about Brown's positions on the environment, particularly his vote on the EPA and the senator's questioning of the science of global climate change.  Warren encouraged a movement toward renewable energy, but remained cautious about biomass.  Energy produced by burning dead plant matter needs "deeper study," he said.  Fundamentally for Warren, the concern is that the health and environmental effects of these plants were unknown.  When asked, Warren did say he had met many residents of Western Massachusetts who also expressed concerns about the unknowns of biomass plants' health and ecological impact.

The Old Seal of FEMA (wikipedia)

Under President Bill Clinton, Setti Warren was the New England Director for the Federal Emergency Management Agency.  As a result Warren was asked about the fiscal impact that reckless budget cutting could do to imperil federal disaster relief from which Springfield and its neighbors have recently benefited.  Warren, who has visited with tornado victims at the MassMutual Center, took a moment to point out that FEMA, under Pres. Barack Obama's leadership, has vastly improved itself since Hurricane Katrina.  The president "values this agency," Warren said adding that the Bush administration had "dismantled" the work of James Lee Witt, the Agency Director under whom Warren served.  As a result, the current talk in Washington over the debt and deficit has thus far been "irresponsible." It is neither focused on investing  in our workforce nor maintaining adequate preparedness for disasters to the benefit, Warren suggests, of tax cuts for the wealthy.  Warren was unequivocal, "We need to invest in recovery."

WMassP&I mentioned that Senator Brown was in Springfield recently.  At Brown's appearance, this blog posed a question to Brown as to whether he was telling his colleagues, namely the anti-government ones, about the good work being done in Springfield by government.  Brown deflected and did not answer.  So a similar question was posed to Warren.  As Senator, would Warren go to Washington and inform his colleagues there about the good work public service and servants are doing in Massachusetts in order to counter the anti-government sentiment prevailing there?  Warren spoke more broadly.  Yes, he would bring those positive observations back to Washington, but he would also be telling his colleagues about what his constituents are most concerned about.  Having held 24 town hall meetings across his own city of Newton, Warren says that his constituents are more interested in jobs and how budget cuts will affect them, not vapid demagoguery about government.

Take My Council, Please: REVOKED!...

(WMassP&I)

After all of the drama, all the testimony, all the passion, the Springfield City Council voted this evening to deny a permit for a used car dealership on Newhouse Street in the City’s Outer Belt Neighborhood.  Yes, the tension and the anxiety over what may be among the council’s most important votes this year gave way as councilors accepted the concerns of neighbors about the impact the dealership would have.

No, there really was a vote on a car dealership, but it by far overshadowed by the vote of the city council to revoke the permit for Palmer Renewable Energy’s proposed biomass plant on Cadwell Drive and Page Boulevard just off I-291.  Although the chamber was not as packed as it was for last week’s testimony phase, there was a significant showing of plant opponents and a few supporters, mostly craft union members.

Councilor Fenton (Facebook)

Ward 2 Councilor Mike Fenton read into the record a report from City Solicitor Ed Pikula which said that the council had sufficient evidence upon which it could base its decision to revoke the permit.  The City Solicitor stated the changes from the original project may deviate from the permit, could have a profound impact on the neighborhood, environment and public health and may justify the council’s revocation.


Ward 4 Councilor E. Henry Twiggs announced his support for revocation in remarks which outlined the council’s role as a regulatory body.  In that spirit, Twiggs noted that he resisted efforts to broadcast his position.  “We are here to be neutral,” Twiggs said explaining that he felt the contradictions and changes to the biomass proposal led him to oppose the plan

Councilor Walsh (Facebook)

At-large Councilor Kateri Walsh opened the debate for those in support of sustaining the permit.  Walsh said that her own research and calls to state environmental officials had led her to conclude that the impact of this project would not be different from the original plans (WMassP&I’s twitter feed misidentified Walsh’s position as saying it was different).  Absent that difference, Walsh said the city council should not revoke the permit and that she would vote likewise.


Ward 6 Councilor Amaad Rivera reminded the council that they were sitting in a regulatory setting and that their job was to make a judgment as to the status of the permit based on the evidence before them.  It was the council’s duty, Rivera argued, to determine whether the current project was different from the project originally approved, but to do so without being swayed by the prospect of job creation alone.


At-large Councilor Tim Rooke took a similar, but more forceful stand than Walsh.  He suggested that there was “no just cause” for the city to revoke the permit.  He also implied that the council was on a “dangerously reckless path” by voting to revoke.  Rooke appeared to argue that the city was acting out of turn.  Although it is rare for the council to so revoke a permit, it has with time practically become a reserve power of the council, in part because of misunderstanding or indifference to the council’s functions.  In that way, Rooke may have missed the mark in his broad admonition to the council.

Councilor Lysak (Official Site)

Undaunted, Ward 8 Councilor John Lysak, whose district include the site of the plant, replied “no amount of money was worth the risk” to to the health and safety of his constituents and others throughout the Springfield area.  Council President Jose Tosado also reminded Rooke of the posture of the council with regard to the permit.  The council was not acting as a legislative body, but a regulatory one, however elected.  Walsh attempted a parliamentary maneuver to get Tosado to step down to speak (which would have yielded her the dais), but he resisted.  After some additional comments from councilors, the vote was taken.


As the vote proceeded, it became increasingly clear where the result would come down.  Some of the biomass supporters could be heard during the meeting muttering that it was over.  Revocation required nine votes, consistent with special permit actions.  At-large councilor Jimmy Ferrera was absent due to a family emergency, but it clear that by the time City Clerk Wayman Lee had made his way to councilor Amaad Rivera, jubilation was pulsing through the crowd.  With the ninth vote cast for revocation (it happened to be Fenton), the crowd burst out in cheers nearly drowning out the recording of Tosado’s vote.


Take My Breath Away...

(WMassP&I)

In many ways, we have abdicated our responsibility on the Biomass issue.  When the permit was rammed through the city council on a 7-2 vote in 2008, it was hailed as a jobs creator period. Since then there has been a growing movement to stop the plant, slated for development off of Page Boulevard near I-291.  Palmer Renewable Energy, owned by the Callahan family that owns a paving company by the same name sought to use renewable energy grants to build the facility.

The plan calls for a power plant fueled by wood chip.  At first biomass was seen as being a great alternative energy source because it was renewable and ostensibly admitted less pollution.  However, it may be helpful to think biomass in the same way as LASIK laser eye surgery.  It is so new we do not have any idea what the long term effects are. As what data we do have began to come to light, the power plant began to look more and more like a liability for public health in the Greater Springfield area.

(WMassP&I)

The council faced a room filled with supporters and opponents of the biomass plant, but the supporters clearly had an advantage in homemade signs and possibly numbers as well.  Both sides were fairly civil throughout the process, but the opponents of the plant held their colorful signs highest on their experts' best points and throughout much of their opponents' comments.

From a legal standpoint, the Council's options are limited to revocation of the 2008 permit.  According to some legal sources, they can vote to revoke it, but as with granting a special permit they need 9 votes.  If last night's vote to close the meeting is any indication, they probably are close if not past that threshold.  However, the council can only revoke it for "just cause." 


As former City Solicitor and City Councilor Pat Markey put it to the Council, they get to decide what just cause is, but they have plenty to base their conclusion on.  Markey noted (he was one of two councilors in 2008 that voted no, Rosemarie Mazza-Moriarty was the other) that the original permit was for a recycling center.  Markey explained that that made sense at the time because the original project called for burned construction and demolition waste to power the plant.  That idea was later abandoned as skeptical regulators demurred.  As such, the new plan uses so-called green wood chips.  These chips are sometimes from tree debris, but other times from living trees.  Markey argued that the new plan fails to be recycling as that term implies previous used material.  This plan is an incinerator, instead, which requires a separate special permit, Markey said.

Pat Markey with Karen Powell in 2007 (WMassP&I)

Markey said the permit change, the change in truck movements, the lower threshold for regulation, and the EPA's own misgivings about biomass amount to plenty of "just cause" for the council.  Furthermore, he assured the council, the worst Palmer Paving could do is sue, win and get their permit anyway.  Susan Reid, Massachusetts Director of the  Conservation Law Foundation, a New England environmental legal group, argued that the increase in relative pollution by the plant could actually negate any positive effect.  Among her arguments was that the pollution increase could raise local temperatures and thereby increase energy usage for Air Conditioning.


A Northampton doctor that works in Springfield noted that the added pollution could have a particularly deleterious effect on days with air quality alerts.  Others spoke to the additional harmful effects caused by the additional truck trips.  Michaelann Bewsee, an activist in the city, took great pains to note that she and others had done their homework on the situation.  An asthma sufferer noted a connection to asthma rates and school absenteeism.


Representing the Biomass plant were Attorneys Frank Fitzgerald and Thomas Mackie.  Fitzgerald protested the legitimacy of this hearing and claimed that the only "just cause" for the city to revoke the permit was non-compliance with the original permit. At times he and his co-counsel claimed that even the original permit were unnecessary.  Fitzgerald also made several references to the direct economic benefit to the city.

Take My Council, Please: Trash Fee Lives...Biomass Looms...

 **Programming Note** WMassP&I will be live-tweeting today's BioMass Meeting.  Check out Hashtag #Biomass or visit our Facebook page or Twitter Feed.

(WMassP&I)

Yesterday's City Council meeting in Springfield had some wind taken out of its sails when three potentially contentious issues were unceremoniously withdrawn from the agenda.  Home rule petitions on the Council's succession and term were sent back to committee while the Tax Incremental Financing Plan for F.W. Webb was also withdrawn as questions arose about the fairness of the deal.  Left on the table were plenty of scraps worth digesting, but in many ways the victories of the night were overshadowed by the looming monster of tonight's Biomass Permit hearing.

The speakout was only attended by Springfield Education Association President Tim Collins, who called upon the council to minimize or even reverse declines in spending for the schools and reject suggestions that money allocated for schools be redistributed to the city side of the budget.  The School Department budget typically makes up more than half of the city's overall budget and is almost entirely financed by the state, save for a mandatory 10% contribution from city funds.  With unrestricted local aide in context, it could be argued that the school department is completely funded by the state.

(The Second Speaker was your Editor-at-Large.  Not knowing if the home rule petition to disastrously expand the Council's tenure to four years was withdrawn, I made a plea to not limit Democracy by means of extending the term.  Specifically, the concern rests with the possibility of laziness or inertia that could otherwise check overreach by the Mayor.  Comparisons were drawn between anti-voter bills in Wisconsin and Florida.  Because I did not have prepared remarks I have nothing to post, but when this issue resurfaces, I will again advocate against it.  For now it has again returned to the back burner.)

Councilor Ferrera (Urban Compass)

Boilerplate approvals were granted to transfer funds among departments.  Transfers included funding for advertisements in the newspaper for sales of property (as required under state law) and snow removal.  There were some questions from at-large Councilor Jimmy Ferrera and Ward 4 Councilor E. Henry Twiggs as to the source of additional money needed by the law department.  However, the Law Department urged the council not to worry, but that they would provide more details in a less public setting to satisfy privacy concerns.  Approval was granted to accept a grant as well.

The F.W. Webb proposal drew scrutiny at a recent Finance/Economic Development Committee meeting.  That meeting, according to minutes collected by the City Council office, generated skepticism from councilors in attendance.  The company's proposal includes a minimum promise of less than 40 jobs over the 20 year life of the agreement.  Additionally many of these jobs would probably pay wages topping out at $18/hour.  The city would receive full market value for property on the Smith & Wesson Industrial Park, but the net job creation seems minimal. 

Additionally, the long term tax revenue, when the incremental financing is included, would amount to about $3 million over 20 years.    During the first ten years, the tax incremental financing would save F.W. Webb on average about $50,000 annually.  Perhaps if the job numbers were better this may seem like a deal.  Needless to say the TIF has been postponed.  The property's sale, controlled by the Springfield Redevelopment Authority, is contingent on Council Approval of the TIF.

Councilor Rivera (Facebook)

The home rule petitions on the Council were also withdrawn.  Because we have discussed the Four year term in the past and above (cough, power grab! cough, cough), we will set aside that debate to move onto the other.  Council President Jose Tosado somewhat improvidently called the petition the "Amaad Rivera bill." It was spurred by the resignation of Keith Wright and seating of Ward 6 Councilor Amaad Rivera as the next highest vote getter.  The succession touched off a maelstrom of chatter and outrage among many Forest Park residents (where Ward 6 is principally based) and some councilors.  However, the determination by the City Solicitor and Election Commissioner was correct.