COMMONWEALTH OF MASSACHUSETTS

SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT

HAMPSHIRE, ss.

ALAN SCHEINMAN, et al.

Plaintiffs
v.
CITY OF NORTHAMPTON and
NORTHAMPTON BUSINESS
IMPROVEMENT DISTRICT, INC.,
Defendants

CIVIL ACTION NO. 09-074

)
)
)
) PLAINTIFFS OPPOSITION TO
) DEFENDANT NBIDS EMERGENCY
) MOTION TO STAY JUDGMENT
)
)
)
)

Now come the Plaintiffs and hereby urgently oppose the Defendant NBIDs
Emergency Motion to Stay Judgment in this case. The Emergency Motion is so
dangerously vague that allowance of same would give the NBID the ability to continue
any and all operations, including the illegitimate taxation of property owners. This result
would cause immediate harm to the Plaintiffs herein, as well to the 48 Plaintiffs in the
pending federal case challenging the constitutionality of the statutory amendment to c.
40O. Moreover, while the federal case is, of course, not the responsibility of this Court,
that case was informally stayed by the Honorable Douglas P. Woodlock in an afternoon
hearing on November 12, the same day as this Courts ruling in this case and as a result
of said ruling. The basis for the stay was the assurance that the NBID would not and
could not assess any of the Plaintiffs, property owners who were forced into the NBID in
July due to the statutory renewal vote.
In fact, as detailed below, counsel for the NBID unequivocally represented to
Judge Woodlock that the NBID would return assessments paid by the handful of

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Plaintiffs during the federal case. It now appears that the NBID does not intend to refund
that money, despite the promise to Judge Woodlock to do so.
The legal authorities cited by the Defendant, M.G.L. c. 156B and 156D, are
inapposite because those statutes pertain to the dissolution of corporations. As made
explicit in the Courts Findings of Fact, Rulings of Law and Order, the NBID was void
ab initio. The Court did not dissolve it, nor could it have, because it never existed.
As further grounds, the Plaintiffs state:
1.

If the Court alters its ruling and permits the BID to resume operations, the

owners1 of real property in the District will be in limbo. All of the BID members received
bills for assessments on or about October 1, and under Chapter 40O, those assessments
have automatically become liens on the owners real property 30 days later. The City
Assessors records reflect that those bills are unpaid. Moreover, there is a risk that a
creditor of the NBID could attempt to reach and apply the alleged debts of the Plaintiffs
and other formerly nonparticipating property owners to the NBID. It is manifestly unjust
for the illegal operations of the District to continue to harm these property owners, all of
whom chose not to participate in the District.
2.

Despite requesting that the NBID be placed into existence, the Motion has

no substance or detail as to which activities the NBID intends to continue and which it
does not. The reference in the Motion to the NBIDs clearly non-essential activities of
removing snow from sidewalks, cleaning sidewalks, maintaining planters and removing
1

These property owners include the Plaintiffs in this case, the Plaintiffs in the
Federal case challenging the constitutionality of the 2012 amendments to c. 40O (W.
Michael Ryan et al. v. Northampton Business Improvement District, Inc. et al., 3:13-CV30052-DPW), and all other property owners who were involuntarily forced into the
District by the NBIDs renewal vote.

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fallen leaves essentially much of its normal activities suggests that the NBID seeks to
continue to conduct business as usual. Granting this Motion would be to give the NBID
free reign to continue its operations without limitations or guidelines. The NBID has not
presented this Court with a schedule of its assets and liabilities, an accounting of the
NBIDs present financial status and its obligations as of November 12, or any a specific
and limited proposal for extricating itself from the mess that the Defendants have caused.
3.

Most notable is the omission of any reference to whether the NBID will

seek to collect any additional dues from any property owners. It is critical to note again
that the NBID has already been instructed on November 12, 2014 by Judge Woodlock in
the Federal court case to return the dues paid by the property owners who were forced into
the NBID by virtue of the 2012 amendment to the statute and the NBIDs successful
renewal vote. That hearing, conducted telephonically, was attended by Attorney Glover
for the Plaintiffs, Attorney Miles for the NBID, Attorney Lawless for the City, and
Assistant Attorney General Hanson for the Commonwealth of Massachusetts. The NBID
should not be permitted to expend any of its funds on hand without first and promptly
repaying the money owed to the referenced federal Plaintiffs. Further then NBID cannot
be permitted to continue to exercise its illegitimate power to assess and collect dues under
the threat of property liens and judicial collections.
4.

The Motion to Stay should be unnecessary. The Defendants have been

aware of both the defects in the formation of the NBID and the relief that the Plaintiffs
were seeking for almost six years and have had ample time to prepare for the possibility
that the NBID would be found void ab initio. Like everything else in this case, the
Plaintiffs have clearly made this point for more almost six years now.

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In short, the Plaintiffs and other owners of property in the District are at great risk,
among other dangers, of (1) liability for current illegitimate (and unconstitutional)
assessments, (2) harm from the fact that the Citys Assessors records reflect that they have
unpaid assessments that constitute an automatic lien on their properties, (3) harm from the
related fact that any lender, purchaser, or other transferee of District property will be faced
with the uncertainty of the NBIDs existence its liens, and future assessments, which will
clearly affect the marketability or value of the properties, and (4) the risk that the
assessments promised by the NBID to be repaid to the federal Plaintiffs will not be
recovered if the NBID spends the money on day-to-day operations such as those listed in
the Emergency Motion for Stay, and then has no funds to refund assessments when the stay
is lifted and/or the Appeals Court affirms this Courts ruling.
WHEREFORE, the Plaintiffs respectfully but urgently request that this Court deny
the Defendant NBIDs Emergency Motion for a Stay of Judgment.

ALAN SCHEINMAN, et al.

By Their Attorneys,
LAZAN GLOVER & PUCILOSKI LLP

By:

Dated: November 17, 2014

_____________________________
Alexandra H. Glover, BBO #561429
785 Main Street
Great Barrington, MA 01230
Tel: (413) 644-0200 Fax: (413) 644-0201
glover@lazanlaw.com

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CERTIFICATE OF SERVICE
I, Alexandra H. Glover, Attorney for Plaintiff, hereby state that I served the
above document on the Attorneys for the Defendants, by email and first-class mail, on
the date set forth above.

_____________________________
Alexandra H. Glover

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