BH is the wrong zone for our neighborhood!

After several public hearings where members of the public spoke at length against the change of zone and the sale of Lynch to Colvest, the Planning Board voted 4-1 to advise the Ordinance Committee to approve the zone change to Business Highway. We disagreed with the majority’s vote for many reasons. We do NOT think the Request for Proposal was well-written (it did not specify the city’s interest in developing for housing) and we do NOT think the city followed a good process in advertising the sale of the property. It may have been a LEGAL process, but that doesn’t mean it was done WELL. Several well-known and well-respected realtors who specialize in the sale of historic buildings told us that they had had no idea the building was for sale and that it was never properly advertised to garner attention. So we disagree with the two main points of the majority’s opinion. Below is the dissenting opinion, written by the Planning Board member who disagreed with the Board’s advice to approve the zone change. She makes many important points about how the Planning Board’s poor process and lack of due diligence led to their vote.

Re: RECOMMENDATION: R-1A TO BH / 1574 NORTHAMPTON STREET (105-00-061)

Dear Councilor Vacon,

As the Ordinance Committee is aware, on September 11, 2018 the Planning Board voted 4-1 to recommend approval of the above-referenced zone change application. Mine was the dissenting vote, and the following is my written dissent from the majority’s decision.

I am filing this dissent because this is a rare instance where the Planning Board’s review process, including its public hearing and its abbreviated deliberations, went so badly off the rails that allowing the majority recommendation to stand unchallenged would risk misleading the City Council and the public. 

To set out everything that has gone wrong would result in a document of near-novella length, so this will address only the most critical of the problems with the majority recommendation, and will do even that only in broad outline. Nevertheless, I hope it will be of help to the Ordinance Committee, to the City Council, and to interested members of the public.

1. Background: The Public Hearing Process

The Planning Board’s public hearing on this matter was marked by considerable and sustained public participation. In the course of our hearings we heard from both supporters and opponents of the potential zone change. There were more opponents than supporters, as reflected both in attendance at our hearings and comments submitted in writing. Opponents included nearby residents, a realtor specializing in residential conversions, a public health expert, and a safety expert formerly employed by Holyoke’s DPW. Those opposing the project in particular submitted a number of documents supporting their arguments, from analyses of likely tax revenues from the proposed development to professional opinions about the reach of previous marketing efforts and potential reuse. Opponents’ arguments and submissions reflected two separate sets of objections to the proposed zone change. We heard both arguments that the uses allowed in a BH zone are not appropriate for the site and arguments that the Lynch building should be preserved⁠1, as it will not be should the zone change go forward.

While we saw passionate disagreement, there was a critical point on which both sides were united. Everyone we heard from wants the same basic thing: vibrant, taxable⁠2 development that will help revitalize the neighborhood and add to its appeal while generating revenue for the city, both directly and indirectly. The disagreements are about the best and safest way to accomplish those goals, with underlying disputes about what options the City has, how the retail and business environment has changed over the past decades and how best to respond to those changes, and how desperate for immediate cash the City actually is. 

These are important disagreements, and need to be addressed. But they are constructive disagreements among people who agree on ultimate goals. This is not a fight between sentimental dreamers attempting to preserve derelict buildings at all costs, out of some sort of dysfunctional nostalgia,⁠3 versus hard-headed forward-looking realists. The hard-headed forward-looking realists are on both sides of this argument⁠4, they’re just analyzing the risks and potential payoffs differently.⁠5

It was clear through the course of our hearings that there were significant and ongoing failures of communication, and that the Planning Board majority often failed to grasp the nature of the objections to the zone change being raised. Perhaps as a result, it soon became apparent that the majority was failing to take the arguments and submissions from opponents of the zone change seriously, and often enough failing to even read or hear them. At no point in our hearings or deliberations was there any meaningful attempt to rebut either the zone change opponents’ arguments or the materials supporting those arguments; rather, the Board majority simply ignored them. 

It similarly ignored or dismissed any suggestion that it should conduct a review of the history and background against which this zone change application was being brought forward, or that it should review any of the documents relating to the sale of the parcel to Colvest, or the documents relating to Colvest’s agreement to forgo certain uses that would ordinarily be available as of right in a BH zone — uses, notably, that were thought to contribute to the public opposition that derailed a previous proposal for the site. Its disinterest in looking at any of these materials, or in making any independent determination about the fitness of BH zoning for the parcel in light of changed economic circumstances, has proved unfortunate: as further discussed below, it allowed the majority to make assumptions that have proved to be erroneous, and those mistakes of fact, which it relied upon in making its recommendation, would have distorted any evaluation of the arguments raised by members of the public even if the majority had been more interested in engaging with them. Furthermore, to the extent that its recommendation is based on its mistaken understanding of the relevant timeline, the error critically undermines the recommendation itself. 

2. The Majority Recommendation and Errors of Fact

A. The Lynch School Property, the RPFs, and Time On The Market

While it does not appear in the majority’s written recommendation, a review of our very short deliberations shows that the majority based its recommendation in large part on a material error regarding how long the property has actually been on the market, and under what conditions. A great deal of emphasis was placed, both during the hearing and in deliberations, on the idea that the school and parcel had been on the market for ten years, with a net cast wide for any possible buyer or proposed reuse. If there were any rational possibility of any developer being interested in adaptive reuse of the existing building, it was argued, surely they would have come forward at some point over those ten years. And in the absence of any such offers or proposals, it was argued, the Colvest proposal or something like it was the City’s best and only realistic option.

The problem with this is that while it’s widely believed, it’s also wildly and provably wrong. The majority assumed it was accurate, and then refused to do the homework that would have told them otherwise, or to hold the public hearing open so that anyone else could do that homework. 

Examination of the real timeline shows that while the City Council has been interested in selling the property for redevelopment since the city acquired it from the School Committee in August 2010 (not summer 2008, as is often thought), it has actually been on the market for only a fraction of that time. There appears to be little public information about what efforts were made to market the property between August 2010 and the issuance of the first RPF in early 2014⁠6, and the Planning Board closed its hearing before any requests for clarification from the City agencies involved could be issued. 

From early 2014 to the present, however, the record is clear. Proposals pursuant to the 2014 RPF were due on May 16, 2014. Once that period closed, the property was no longer on the market. It remained off the market while the three proposals submitted pursuant to it were evaluated, and of course was no longer available for sale once a winning bid had been chosen and a purchase and sale agreement entered into. It remained under contract to the winning bidder, and thus off the market, until the City terminated the agreement in June 2017. After that, it was off the market while the City prepared its second RPF. That RPF was issued on November 29, 2017, and bids thereunder were due on January 18, 2018. Once that RFP closed, the property was once more off the market while the City evaluated the four bids it received, chose a winning bidder, and entered into the current agreement with Colvest. 

Notably, both the 2014 RPF and the 2017 RPF call for proposals for commercial development, with an emphasis on potential for tax revenue and job creation. The Planning Board’s hearing record includes an unchallenged opinion from a licensed realtor specializing in residential redevelopment, stating that the terms of both RPFs would have indicated to any professional in the field that proposals for residential redevelopment were not being solicited and would not be considered⁠7: explanation enough for why none were received. Whether there would have been such interest if the City had invited it remains unknown and untested: we have given ourselves no opportunity to find out.

The truth, then, is that the Lynch property has only been on the market for some four to six months out of the more than four years from the issuance of the 2014 RPF through the present moment.⁠8 The City received multiple proposals in response to both RPFs, despite these relatively short windows and the limitations on the kinds of proposals they invited. During this period, it has not been for sale for projects such as residential conversions at all. 

The majority’s error on this point is fatal to its assessment of the value of the Colvest project. Again, the rationale for approval leaned heavily upon the assumption and belief that the property had been actively on the market for longer than the City has even had control of it, and that throughout that time the City was seeking proposals for all sorts of reuse. This inaccurate and unreviewed assumption is its only basis for the conclusion that there is no reasonable and productive potential alternative to the kind of redevelopment proposed by this project; without it, the logic behind its recommendation in favor of the project (and thus, the zone change) fails.

B. Zoning for the Project

Members of the Ordinance Committee will have noticed that in making its recommendation, the Planning Board majority has chosen to ignore the fundamental principle that we zone for uses, and not for projects. This is clear on the face of its letter of September 19, 2018, and was stated even more explicitly in the course of our abbreviated deliberations on the matter. The Committee will also have noticed that neither the majority recommendation nor its additional comments in support of that recommendation contain any findings of fact, analysis or argument to support a conclusion that the range of uses allowable in a BH zone are appropriate for this parcel — or any findings or arguments related to zoning issues at all.⁠9

This absence is neither an accident nor an oversight in the drafting of the recommendation. Rather, it reflects the fact that in the course of our hearing and deliberations the majority never directly considered the question. Nor did it make any serious attempt to refute or even address arguments to the contrary raised by members of the public.  

It is a particularly unfortunate omission, and not just because whether the zone sought allows the best possible mix of uses for a parcel, considered aside from the desirability of any potential project, is or should be the critical question at the heart of any zone change proceeding. Examination of whether BH zoning is right for this parcel should rationally have incorporated an examination of whether earlier assumptions about appropriate zoning along the I-91 and Route 141 corridor ought to be revised in light of changes that have taken place in the business environment, and at the relevant corner, over the two decades since the last city Master Plan, and the decade since Lynch ceased to be used as a school. Such an examination is long past due. There has not been any full planning process for the Northampton Street corridor since the 1999 Master Plan. There also has been no formal evaluation and plan for the Lynch property site nor for the building and its potential reuse. Best planning practices call for zoning to result from planning, not vice versa; the delays and failures the City has experienced in its dealings with this property are an illustration of the point. These changes include some that extend far beyond Holyoke: new trends in urbanization and auto use, decline of brick-and-mortar retail, fashion for walkability. Recent Holyoke-specific trends also include an influx of homebuyers from other communities, from Northampton and Amherst to eastern Massachusetts and New York, drawn here by our beautiful neighborhoods and strong sense of community. 

These changes raise obvious questions about what kind of development will best serve the City’s economic future, and what kind may offer only illusory benefits or even create harm. Owners of residential property within easy walking distance of Lynch raised concerns that a project of the sort proposed by Colvest will have a negative impact on their property values, and will risk creating blight rather than alleviating it; a look at the current state of the former Rite Aid plaza (also owned by Colvest) across the street from the site does nothing to make those concerns seem frivolous. Nor does the state of the Kmart Plaza across the city provide any argument for confidence in the long-term stability of strip mall-type retail as a long-term endeavor.

Members of the public supporting the zone change, in turn, raised concerns about the economic health and stability of the Holyoke Mall, and suggested more retail space was needed to provide the City with a backstop source of tax revenue; opponents acknowledged the importance of the point, but asked whether, if we’re worried about whether the Mall can maintain its occupancy levels, it can possibly help to build yet more mall-like space. Similarly, they point to existing storefront vacancies within a block of the Lynch site. 

These are not one-off questions and conflicts: they will recur in other contexts in the future. The Planning Board is the correct city agency to address this sort of question, or at least to try to; it is unfortunate that it declined to do so here, and did its best to ignore the fact that the public was trying to bring it up. 

C. The City’s Rejection of BH Zoning

That being said, though, it should be acknowledged that the majority’s determination to avoid the question of whether BH is an appropriate zone for the parcel is in one sense absolutely necessary in order for it to issue the recommendation it wanted to make. On any fair reading of the facts, it is clear that the City, acting through both the administration and the City Council, has already determined that the full range of uses available in a BH zone are wrong for this parcel and should not be allowed there.⁠10

This determination is inherent in the terms of the 2017 RPF, in the administration’s decision to accept a significantly lower price for the property from Colvest than was offered by a rival bidder, in consideration of Colvest’s agreement to place legal restrictions on the property that would prohibit specified uses on the property that are allowable in a BH zone, and in the City Council’s acceptance of that rationale in its vote to accept that lower price. If the City believed that BH zoning was right for the parcel, no such restrictions on allowable uses would be necessary, and there would have been no reason to forego the substantially higher purchase price to obtain them.⁠11

In substance, the Colvest deal appears to have been tailored to try to use non-zoning tools to create the equivalent of what would be a reverse spot zone if it were done directly with zoning tools. Someone should take a hard look at whether this Rube Goldberg sort of approach to the problem really works to protect the public from noxious uses; whether, if it does not, it’s operating as a way of misleading the public about what its officials are up to; and perhaps whether, if it is effective, a creative lawyer could make a colorable argument that it should be considered an impermissible reverse spot zone achieved by unusual means. 

In recommending the zone change without any explanation or findings, the Planning Board majority avoided having to confront this tension. But in light of the undeniable fact that neither the administration nor the city council believes that the full range of uses allowed in a BH zone are appropriate there, it seems only prudent for the Ordinance Committee, or the full City Council, to take a hard look at whether these agreements fully protect the public from the risk inherent in rezoning this parcel so as to potentially allow these noxious uses⁠12.

3. Animus

Finally, the Ordinance Committee should be aware that our hearings were marred by all-too-visible bias by members of the Board, pointedly directed against members of the public who opposed the zone change. It was clear from early in the hearing that the majority’s attitude toward them was one of long-suffering, grim tolerance, occasionally escalating into visible impatience and anger. It was also clear, and can be demonstrated by reference to recordings of our hearing and deliberations, that Board members were neither listening to nor reading information presented by members of the public. This isn’t a legal problem for a legislative hearing; members are under no obligation to read all the materials, or even to be present for all sessions of a public hearing. But it does speak to the rigor of the analysis that comes out of the hearing.

This is rare to the point of being unprecedented in my experience: a departure from the civility I have been privileged to see members of the Board display over my years as a member. I would not mention it here, save that it is unfortunately relevant to the Board majority’s assessment of the information presented to it. The problem here is not mere disagreement as to the recommendation the Board voted out. Reasoned disagreement that acknowledges and engages with the arguments being made, and with the facts offered to support them, is one thing; a rousing new cover version of that popular standard, “La, la, la, I Have My Fingers In My Ears And I Can’t Heeeaarrr You” is quite another.

Again, I regret the circumstances that make it necessary for me to file this dissent, and hope that despite its length and contents it may be of some use to the Ordinance Committee and to the City Council. If you have further questions, or if I can be of further help, please do not hesitate to call on me.

Respectfully,

Mimi Panitch, Member

Holyoke Planning Board

1 Many who oppose it are concerned with the appropriateness of the uses available in BH, and would oppose this zone change even if there were no architecturally significant structure on the site. Others would prefer to see the school building preserved and believe zoning for projects like residential reuse, if possible, believing that would be a better and ultimately more productive course of action for the city.

Still others point out that adaptive reuse that might be economically unfeasible now may well become feasible in the future, and point out that to demolish an irreplaceable and architecturally significant structure in what may well be a temporarily or artificially depressed market for it is bad investment practice, the equivalent of panicking and selling Apple stock in mid-1997. (If you did this, you’re sorry now.)

Members of the public showed considerable interest in exploring the basis of assertions that adaptive reuse was economically unfeasible. The materials and reports necessary to confirm such an assessment were not available by the time our hearing closed, and it is not clear that all the analyses that would be needed for a full assessment have been made — not out of any dereliction of duty, but because there has been no need to make those assessments. But the members of the public inquiring after these technical details were clearly interested in a full determination of whether and under what circumstances reuse really would be feasible — not in insisting that the city attempt the impossible, or waste time chasing after it.

2 Or a reuse that would save the city as much money as a taxable development on the site would generate. Money, after all, is fungible.

3 Our hearings showed that many (though of course not all) of those opposed to the demolition of Lynch are relative newcomers to Holyoke, homeowners relocating from anywhere from Amherst and Northampton to New York. They have no old school memories, or sentimental memories; but they do appreciate the architecture and argue persuasively that it adds to the value of their neighborhoods and their property. Their argument is also the argument of many longtime Holyokers who do cherish their memories of Lynch School, but are more concerned now with the value its presence, or the absence of what they see as a noxious form of development, adds to their property. 

If they are right, it is worth noting that the value added is ultimately reflected in the property taxes they pay.

4 This is a critical point. To insist that objections to this zoning proposal are simply nostalgia and resistance to change, when it’s actually concern about issues like the future of brick and mortar retail, the potential for blight inherent in vacant storefronts or certain kinds of downmarket retail, the value of walkable versus auto-oriented commerce, and similar issues, only results in people talking past one another. It creates anger and mutual misunderstanding between people who might otherwise work together productively toward shared goals.

5 Thus, “solutions” like a proposal that Colvest use architectural salvage from Lynch School to construct some sort of memorial beside an entrance to its new building, or in a lobby inside it, are unhelpful. They address concerns around memories and nostalgia; but the people objecting to this proposal aren’t interested in memories, they’re interested in place making and walkable streets. 

It’s not that these proposed solutions are insufficient or unwanted, it’s that they’re irrelevant.

6 Publicly available records show that the city refused to consider leasing the structure to the Paolo Freire charter school at some point subsequent to the issuance of its charter in 2012, on the grounds that it wanted to sell the property for commercial development. Had it been leased, the city would presumably at least have gained an income stream and been relieved of any costs for maintenance; in any event, this is evidence of active interest in the property, if not active interest of the precise type the City Council most wished for.

7 It is helpful to have the opinion of a licensed professional in the field. But the same conclusion would likely be drawn by any lay reader examining the terms of these RFPs: the city is very obviously looking for commercial-type projects.

8 This is no mere technicality. In email to local news media, the Director of the Office of Planning and Economic Development indicated that while the agreement with Frontier remained in place, he was unable to even conduct talks with developers that had expressed interest in the property.

9 In fact, the recommendation constitutes an abdication of any responsibility the Board might have had to issue advice and a recommendation based on its own, independent examination of the merits of the rezoning proposal. Rather, it is explicitly and solely based on the Board’s taking notice of the fact that administration officials have reviewed the bid, and the City Council has approved it. Neither the Ordinance Committee nor the City Council can reasonably rely on it, because it relies entirely on the City Council’s own previous decisions. 

In that sense, it is very like that classic one-line review: If you like this sort of thing, this is the sort of thing you’ll like.”

10 It’s either that, or this deal is something of an attempt to scam the public, or that part of the public that objected to the Frontier proposal on the grounds that it didn’t want the uses Frontier was proposing there. I prefer to assume the City is acting in good faith.

11 All things being equal, property in a less restrictive zone will be more valuable than property in a more restrictive zone. 

Simply creating a zoning district that would exclude the uses the City seeks to avoid on this parcel, and then seeking to rezone to that new district rather than to BH, would create obvious issues of reverse spot-zoning; the Colvest transaction takes a different route to what some might call an eerily similar result.

12 If the City Council ultimately votes to approve this zone change, there will be no question but that it is zoning for the project rather than the use. While it presumably has the legal power to do so, the decision should end both the Ordinance Committee’s and the Planning Board’s practice of disallowing public comment directed to potential projects in the course of zone change applications. We disallow them now, of course, on the grounds that we’re not zoning for projects; if that’s demonstrably untrue, we cannot continue to pretend otherwise.