Take My Council, Please: In Appeal, Reaching Critical Biomass…
UPDATED 9/12/14 4:18PM: To clarify that Sarno’s action does not, in itself, terminate the Council’s appeal. He may or may not authorize funds, but he does not have the discretion to authorize the appeal itself or not.
SPRINGFIELD—In a decisive move to continue the battle against a proposed wood-burning power plant on Page Boulevard, the City Council voted Wednesday to file its intention to appeal a Land Court decision that reinstated the plant’s building permit. The impact was put into doubt, however, as Mayor Domenic Sarno announced the next day he would not appropriate funds to pay an attorney to represent the Council even as another party has filed its own appeal.
Voting 11-1 with at-large Councilor Tim Rooke the sole no and at-large Councilor Tom Ashe absent, the Council opted to not accept an August decision from the Boston-based court that ruled the city’s Zoning Board of Appeals improperly quashed Palmer Renewable Energy’s building permit in 2012. The Council and residents in the city successfully petitioned the ZBA’s to overturn PRE’s building permit, which Building Commissioner Steven Desilets issued on the advice of the Law Department.
The Council had voted 10-3 in 2011 to revoke the biomass special permit and voted similarly to appeal Desilet’s decision to issue a building permit. Three new faces have joined the Council since then and opponents feared risk-averse councilors might decline to appeal for fear of exposing the city to liability.
The three residents that originally petitioned the ZBA, led by Michaelann Bewsee, Executive Director of Arise for Social Justice, along with the ZBA itself have standing to appeal, but anti-biomass City Hall sources felt it sent a bad sign if the Council did not stand by residents in this fight. Bewsee’s appeal could still go forward—indeed, after the Council voted she said she intended to file it.
The overriding complication stems from the Council’s lack of legal representation unless Sarno approves money to hire outside counsel. The Law Department, as a result of advising Desilets in 2011, is conflicted and cannot represent the Council in this matter. During the appeal to Land Court, the city hired James Donahue to represent the ZBA in PRE’s lawsuit. Were Sarno to deny funding, the Council could seek representation pro bono or from co-appellants counsel or withdraw its appeal. Donahue’s agreement with the city only extended to litigation in Land Court.
The Council debate was miraculously brief. Ward 7 Councilor Tim Allen, opened the meeting with a refresher of the legal briefing Councilors received from Donahue, who was hired for the Land Court case. In short, Allen reiterated who could appeal and that appealing would not be frivolous, thus not entitling PRE to damages if the city lost in the end.
At-large Councilor Kateri Walsh asked Council President Michael Fenton if the mayor had given any indication what he would do if the Council appealed. Fenton replied that the mayor would not make a decision until and unless the Council voted to appeal. Many councilors argued that their decision to appeal should not be contingent on the certainty of their ability to retain counsel. If no counsel could be retained, the body could withdraw its appeal.
Rooke, who along with Walsh (who voted for the appeal Wednesday) was one of only two remaining councilors who opposed repeal, queried Assistant City Solicitor Anthony Wilson if the Council could expose the city to damage if it later withdrew its appeal. Wilson, like many in the room, seemed confused by the question (as may have been its intent to discourage appealing), although as an employee of the Law Department, he could not offer legal advice on the matter due to the conflict.
Under the City Charter and general municipal finance law in Massachusetts, all appropriations, except those required by state law or contracts, must originate with the mayor. The Council may cut, reduce or approve them. To pay for an attorney, the Council would need the mayor to approve funding.
Rooke also suggested that the Council’s appeal did not matter as it was possible if not certain that Bewsee would appeal anyway. He made a motion to recess to ask Bewsee, in attendance. After a two minute recess, the Council came back into session, Bewsee having told them nothing of her intentions absent consultation with her lawyer.
Kenneth Shea, the Ward 6 Councilor, recommended and the Council approved, that, as a procedural matter, the Council’s order be amended to permit Fenton, an attorney, to file the notice of intent to appeal on the Council’s behalf.
Ward 8 Councilor Orlando Ramos, in whose ward the plant would be built, rose argue for appealing. He acknowledged that cost is a concern, but it cannot be barrier to doing what is right. He pushed back on the suggstion that the Council should fold because it might lose and urged Councilors to remember why they had gotten into public service.
At-large Councilor Bud Williams, usually a loquacious councilor, called for debate to end and the matter voted on, but not before taking a swipe at Ramos, “this is not the time for political speeches.” A moment of irony hung over the room while City Clerk Wayman Lee prepared to take the roll call of the Council.
After the meeting, Bewsee, speaking to the press, said the Council’s decision was “a step in the right direction.” But, she continued, “now we need to get the money.” Bewsee also announced her intention to appeal and preserve her appeal rights before the Massachusetts Appeals Court, which is the intermediate appellate court in the commonwealth.
This morning Sarno announced in a statement saying that he would not fund the appeal. Asserting he would not have allowed the project to advance unless it cleared all other regulatory hurdles, he opposed fighting the decision any further. Sarno added that he had approved funding for the Land Court case. That comparison in inapt though as the city was the defendant and it would have been politically unpalatable to leave it unrepresented in court. The statement also noted the supposed economic benefits, but opponents dispute the numbers.
Sarno’s move does not kill the Council’s appeal as some news stories have suggested. The Council could still retain an attorney pro bono or be represented by a co-appellants’ lawyer. If not, then the Council’s appeal would be withdrawn.
Sarno has never said so explicitly, but most biomass plant opponents believe the mayor has fought vigorously to see it approved. PRE’s owners, the Callahan family, have contributed over $7500 since Sarno was elected in 2007. Frank Fitzgerald, local counsel for PRE before the City Council and the ZBA, contributed hundreds more to Sarno over the years until, as attorney for the developer of MGM Springfield, he was prohibited from doing so by the casino law.
Bewsee would not comment about the impact of Sarno’s decision on her case without consulting her lawyer. In a statement she said, “I’m not surprised by Mayor Sarno’s decision, because he’s always supported this biomass plant.” Bewsee added that if Sarno still fancies himself “the people’s mayor,” he should heed the will of the people and their representatives. “The city council has made a lawful decision to appeal, and he needs to do the right thing for the council and the residents of the city.”
Asked for comment, Council President Fenton, who filed the Council’s intent to appeal today, said only that he was “disappointed.” “We’re evaluating our options,” he told WMassP&I.