How soon will Zika disease spread to New England?

Zika disease, at epidemic levels in Brazil for more than a year, has come to Miami, FL. Although often described as a “tropical disease,” it has escaped the tropics, and people are keeping a greater distance. This month, the Miami Herald quoted the operator of a Florida travel business, saying, “I had to cancel eight out of my 12 weekly summer season tours.” In recent days, several locally transmitted Zika cases were reported in Miami Beach, and the danger zone was expanded from 1-1/2 square miles to most of the community.

Origin of the threat: Zika is not a new threat. It was first found almost 70 years ago as a disease of rhesus monkeys in the Ziika Forest–for which the disease was named–located near Lake Victoria in Uganda. The cause is a flavivirus (“yellow virus”). That virus family and genus includes the agents of yellow fever, dengue fever, chikungunya and West Nile fever. The diseases have mostly been transmitted by aggressive species of mosquitos common in the tropics. Some of the diseases have migrated to temperate regions, and some infect wild and domesticated animals–including goats, sheep and mice–as well as humans.

The flaviviruses are single-strand RNA viruses, like the virus that causes AIDS. Lacking stabilizing effects of DNA-based genetics, they mutate relatively often, sometimes producing new, persistent strains. Research shows that happened in recent years with Zika. The original strain found in Africa caused mostly mild, brief illness in humans. The common symptoms were low fever, sometimes with skin rash or joint pain, that lasted up to a week.

The disease spread from Africa into south and southeast Asia. A 2007 outbreak on Yap and nearby islands of Micronesia drew attention because it seemed very widespread, even though it caused no deaths or long-term health problems. A survey using immunology tests suggested that about three-quarters of the population had been infected. Those tests encounter cross-reactions among the flaviviruses. A previous infection by dengue or chikungunya may produce a positive result. Since dengue is often present where Zika strikes, estimates of infections using immunology tests can be clouded by errors.

Growth of the threat: Starting in 2013, another flavivirus epidemic occurred in Tahiti and nearby islands of French Polynesia. This time health centers had genetics tests available when live virus could be sampled. They distinguish more clearly among viruses, and Zika was soon identified as a main cause of the epidemic. However, the virus had mutated, producing new strains. Some victims had more severe symptoms than previously reported for Zika disease. A small fraction of the victims developed long-term problems including profound muscle weakness, known as Guillain-Barré syndrome.

After the epidemic in French Polynesia, unusual problems began to be found in newborns: smaller heads than normal, called microcephaly. While such symptoms occur without Zika, they occurred more often in births from pregnancies during the epidemic. Other severe problems began to be found, including defects in the brain, eyes and spinal cord. Immunology tests associated a high proportion of newborn victims with Zika exposure.

During 2014, newer strains of Zika spread eastward, appearing in other Pacific islands and then in South America. During 2015, the disease spread through most of Brazil, then appeared in neighboring countries and Central America, including the Caribbean. Windblown mosquitos helped spread the disease, but epidemiologists also attribute the spread to infected people traveling to places where aggressive species of mosquitos are common. Cabo Verde, near the west coast of Africa, recently reported cases involving newer strains of Zika.

As of 2012, only five strains of Zika had been reported. By early spring, 2016, about 60 Zika strains had been identified by gene sequencing. Comparisons found two main groups: one common in Africa, the other common in south and southeast Asia. Strains responsible for the 2013 outbreak in French Polynesia and the recent outbreaks in South and Central America had developed from previous Asian strains. As with older strains, many people apparently infected by newer strains did not seek care for relatively mild symptoms, while the virus was infecting cells and multiplying.

During the past year, publications surged. By mid-September, 2016, gene sequences for almost 100 strains had been reported. Compared with other diseases, however, research on Zika immunology and therapeutics remains poorly developed. According to a recent review of the science, researchers “currently lack major basic tools for [Zika vaccine] development, including reliable animal models, reference reagents and assays.” In Congress, for months Republicans driven by reactionary agendas failed to act on President Obama’s request of February, 2016, seeking $1.9 billion in emergency funds for applied research on Zika.

Dangers and precautions: Soon after an infection has taken hold, Zika has been found in many body tissues and fluids. It may persist for months after symptoms of an infection–if there were any–have gone away. Laboratory measurements found that newer Zika strains are highly infectious; just a few copies of the virus may be needed to transmit the disease. Although apparently not contagious, the disease is transmitted by intimate contact, including sex. Since current genetics tests cannot insure that levels of Zika virus are below an infectious threshold, major health organizations have been recommending long delays between potential Zika exposure and pregnancy.

It is not yet known whether antibodies produced during infection by one Zika strain can prevent infection by other strains. A pattern from the closely related dengue virus is troubling. A previous infection involving one class of dengue virus does not prevent infection by strains belonging to another class and may worsen health hazards. Early indications, still controversial, suggest Zika infections might behave similarly.

There is no approved vaccine against Zika. One candidate vaccine recently began the first of three stages in clinical trials: testing for safety. The first vaccine approved against dengue began marketing just this year, after over 80 years of experiments, and already it has been clouded with safety issues–potentially worsening health hazards, including those from Zika.

Spreading disease: Mosquitos, notably those in the Aedes genus, have been the main vectors for Zika and other flaviviruses. The Aedes aegypti species is adapted to humans and their habitats. Other Aedes species are also frequent carriers, helping to infect wild and domesticated animals as well as humans. Although often called “tropical,” Aedes mosquitos live throughout the southern half of the United States. They are also key vectors for yellow fever virus, which became a scourge of East Coast and Mississippi River cities during the late 1600s through the late 1800s. New England is already visited by dengue fever, the flavivirus most closely related to Zika.

New England dengue fever cases

denguefevercasesnewengland2009
Source: Natural Resources Defense Council, 2009

The Aedes aegypti mosquito range extends into New England, including at least the western seacoasts of Connecticut. However, laboratory experiments show that mosquitos in the Culex genus can also carry Zika. They are common back-yard and house mosquitos throughout New England, with ranges extending well into Canada. During the last few decades, they have become vectors in the region for West Nile virus, and they may be vectors for dengue virus. Although the region is not likely to see Zika epidemics as widespread as those in the tropics, New England remains under threat.

– Craig Bolon, Brookline, MA, September 20, 2016


Roni Caryn Rabin, Zika test not easy to obtain, New York Times, September 20, 2016

Brendan O’Brien, Florida expands Zika zone in Miami Beach after five new cases, Reuters (UK), September 17, 2016

Lizette Alvarez, Pregnant women anxious as Florida’s Zika test results take weeks, New York Times, September 13, 2016

Chabeli Herrera, Nancy Dahlberg and Nicholas Nehamas, Zika takes bite out of Miami-Dade economy, Miami Herald, September 9, 2016

Maggie Fox, Zika funding fails again in Congress, NBC News, September 6, 2016

WHO expands Zika sexual transmission advice, Center for Infectious Disease Research and Policy, University of Minnesota, September 6, 2016

Wanwisa Dejnirattisai, et al., Dengue virus sero-cross-reactivity drives antibody-dependent enhancement of infection with Zika virus, Nature Immunology 17(9):1102-1108, September, 2016

Raj K. Singh, et al., Zika virus: emergence, evolution, pathology, diagnosis and control, Veterinary Quarterly 36(3):150-175, September, 2016

Rafael A. Larocca, et al., Vaccine protection against Zika virus from Brazil, Nature 536(7617):474–478, August 25, 2016

Luisa Barzon, et al., Infection dynamics in a traveler with persistent shedding of Zika virus, Eurosurveillance 21(32) online, August 11, 2016

Paulo Prada, Brazilian scientists find Zika traces in Culex mosquitoes in wild, Reuters (UK), July 21, 2016

Jesse J. Waggoner, et al., Single-reaction multiplex reverse transcription PCR for detection of Zika, chikungunya and dengue viruses, Emerging Infectious Diseases 22(7):1295-1297, July, 2016

Didier Mussoa and Duane J. Gublerb, Zika virus, Clinical Microbiology Reviews 29(3):487-524, July, 2016

Contrary dengue vaccine response hints at possible problems with Zika, Center for Infectious Disease Research and Policy, University of Minnesota, July, 2016

Amanda B. Keener, Zika and dengue immunity: a complex relationship, The Scientist (Canada), June 28, 2016

Ingrid B. Rabe, et al., Guidance for interpretation of Zika virus antibody test results, U.S. Centers for Disease Control and Prevention, June 3, 2016

Charlotte J. Haug, et al., The Zika challenge, New England Journal of Medicine 374(19):1801-1803, May 12, 2016

Van-Mai Cao-Lormeau, et al., Guillain-Barré syndrome outbreak associated with Zika virus infection in French Polynesia, Lancet 387(10027):1531-1548, April 9, 2016

Estimated U.S. ranges of Aedes aegypti and Aedes albopictus, U.S. Centers for Disease Control and Prevention, April 1, 2016

Lauren M. Paul, et al., Dengue virus antibodies enhance Zika virus infection, Florida Gulf Coast University (not yet published), April, 2016

New CDC laboratory test for Zika virus authorized for emergency use by FDA, U.S. Centers for Disease Control and Prevention, February 26, 2016

Jason Beaubien, Zika in French Polynesia, (U.S.) National Public Radio, February 9, 2016

Jon Cohen, Zika’s long, strange trip into the limelight, Science (online edition), February 8, 2016

Andrew D. Haddow, et al., Genetic characterization of Zika virus strains, Neglected Tropical Diseases 6(2) online, Public Library of Science, February, 2012

Mark R. Duffy, et al., Zika virus outbreak on Yap island, New England Journal of Medicine 360(24):2536-2543, June 11, 2009

Kim Knowlton, Gina Solomon and Miriam Rotkin-Ellman, Mosquito-borne dengue fever, Natural Resources Defense Council, 2009

Andrea Ryan and Melissa Lee Smith, Major American epidemics of yellow fever 1793-1905, (U.S.) Public Broadcasting Service, 2006

Laura B. Goddard, et al., Vector competence of California mosquitos for West Nile virus, Emerging Infectious Diseases 8(12):1385-1391, December, 2002

China’s influence on nuclear power

Over the next several years, China is likely to influence “third generation” nuclear power more than any other country. That is partly because China already is and will likely continue to be the largest market. It is also because China has the most active efforts at nuclear design, manufacturing and construction.

China’s nuclear fleet: Before 1994, no nuclear power operated in China. China never built “first generation” nuclear-power plants or any power plants with “boiling water” reactors. During 2016, 34 “second generation” nuclear-power units are or will be in full, normal operations at 11 power plants in China. Organizations primarily responsible for construction have been China National Nuclear Corporation (CNNC) of Beijing–5 plants and 15 units–and China General Nuclear Power Group (CGN) of Shenzhen–6 plants and 19 units.

Nuclear-power units operating in China during 2016

Click Here for a table of China’s nuclear power-plant units in full operation during 2016: plant and province, unit number, rated net MW, equipment type and source, year and month in full operation, builder organization.

Source: International Atomic Energy Agency, 2016

CNNC worked with several types and sources of equipment designs. CGN concentrated on a single type, first sourced from France. After building four units, CGN localized the type to China, with increased output, as the CPR-1000 design. That became the major nuclear-power design in China, built by CNNC as well as by CGN and representing 19 of the 34 units operating in 2016. The first CPR-1000 unit at Ling Ao in Guangdong province took 6-1/2 years to build. More recent CPR-1000 units have been completed in a little over 4 years, with about 90 percent of the value sourced from China.

Responses to disaster: After the Japanese nuclear catastrophe at the Fukushima Dai-ichi plant in March, 2011, the government of China briefly halted nuclear plant and unit authorizations and began a review of China’s nuclear-power programs. A so-called “white paper” from October, 2012–officially a statement of “energy policy”–provided the following:

“Since the Fukushima Dai-ichi nuclear disaster in 2011, China has launched comprehensive safety inspections at all nuclear-power plants. The inspection results show that nuclear security is guaranteed in China…China’s installed capacity of nuclear power is expected to reach 40 GW by 2015.” [Information Office of the State Council, China’s Energy Policy 2012, as released in English October 24, 2012, pp. 12-13 of 25]

The capacity goal was silently ignored. China’s net rated nuclear generation capacity at the start of 2015 totaled only 20 GW–half the claimed goal. No clear public statement came from China’s government reflecting the nuclear safety review. There was little chance of a candid assessment amid a command economy and regimes long arrogant toward the people of China. Because disclosing information outside official channels is harshly punished, China’s regulation of its nuclear industry is far less effective than even United States regulation in 1974, before dissolving the former Atomic Energy Commission and starting the Nuclear Regulatory Commission.

Some changes began with retirement of Hu Jintao as general secretary in the fall of 2012 and succession of Xi Jinping. During the Hu regime, China promoted pell-mell industrial growth at the expense of infrastructure and environment. Energy production gorged on China’s coal and led to large coal imports. Motor vehicle traffic grew apace, combining exhaust fumes with coal smoke to produce intense storms of air pollution–sometimes worse than Pittsburgh in the 1940s but enormously larger.

Regime change: Near the start of the Xi regime, the Chinese government lifted the moratorium on nuclear authorizations and quickly moved to consolidate and spur activities of nuclear organizations. Owing to needs for large sources of capital, these are all effectively arms of government–regardless of charters. A modest growth in nuclear-power capacity became a surge. More than half the nuclear generation capacity at the end of 2016 will have begun normal operations within the latest three years.

Nuclear generation capacity in China by years

chinanuclearpower2003to2016
Source: International Atomic Energy Agency, 2016

A practical effect in China of the nuclear catastrophe in Japan was to accelerate “third generation” nuclear-power technology, in hopes it would deliver on claims of safety yet to be proven through operating experience. Plans for “second generation” units were cut back and new plans for “third generation” units pushed forward. China had already contracted to build four AP-1000 units at Sanmen and Haiyang, mostly designed at Westinghouse in the United States, and two EPR units at Taishan, mostly designed at Areva in France. China had licensed Rev. 15 of AP-1000 designs from Toshiba of Japan–omitting aircraft impact resistance and rejected for U.S. plants, which use Rev. 19 of AP-1000 designs. Chinese organizations apparently saw EPR technology as less promising and had not licensed it from Areva of France.

In a reversal of usual behaviors, typically more proactive CGN had taken responsibility for EPR technology, while CNNC took responsibility for AP-1000 technology. Nevertheless, CGN moved rapidly toward a Chinese localization of “third generation” nuclear-power technology using AP-1000 rather than EPR as a model. The overall approach appears to wrap protective AP-1000 “third generation” elements around CPR-1000 “second generation” designs–the latter adapted and promoted by CGN but also utilized by CNNC.

For a time, CNNC and CGN elaborated separate, competitive approaches to integrating AP-1000 “third generation” nuclear technologies into Chinese “second generation” designs. Both organizations had built locally sourced “second generation” nuclear units at multiple power plants. In early 2014, China’s government directed the two organizations to produce a single design. They soon began to refer to the object of the joint effort as the 华龙 Hualong (grand China dragon) design.

Disputes over still separate elements of plans were resolved by reviewers assembled by Hualong International Nuclear Power Technology Company, a 50-50 joint venture of CNNC and CGN begun in March, 2016. Bloomberg News reported in early August, 2016, that CNNC elements were chosen over those from CGN. The organization will seek overseas business. Its 1.09 GW nuclear-power design has been designated HPR-1000. Geographic regions were separated for CNNC versus CGN activity. CGN, now focused on Guangxi, Guangdong and parts of Fujian provinces, will pursue opportunities in Europe. CNNC will seek overseas business in South America.

CNNC asserts that the HPR-1000 “design concept and technologies…have been verified” by “natural science.” That sounds like an appeal to magic. By comparison with the United States and the European Union, regulatory review in China has been, at best, extremely hasty. News sourced from China shows foundations being built for the first HPR-1000 unit in May, 2015, before organizing joint management and more than a year before resolving design issues. In telling contrast, U.S. regulatory review for the AP-1000 design took from March, 2002–when the first complete design was submitted–through December, 2011. No construction occurred during that interval.

Developing technology: The HPR-1000 design is not a knockoff of the AP-1000 design, although it uses similar approaches and has nearly the same external ratings. Obvious differences include these five. (1) AP-1000 has a water reservoir for passive cooling on the roof of its containment building; HPR-1000 has a water reservoir inside its building. (2) AP-1000 has two “loops”–steam generators; HPR-1000 has three. (3) AP-1000 has four coolant pumps moving reactor water through its steam generators; HPR-1000 has three. (4) AP-1000 has a core with 157 fuel assemblies, each 264 rods that are 15.0 ft long; HPR-1000 has a core with 177 fuel assemblies, each 264 rods that are 12.7 ft long. (5) AP-1000 has a vessel with 13.3 ft diameter around the core; HPR-1000 has a vessel with 14.4 ft diameter around the core.

Nuclear “third generation” designs in China

Characteristic AP-1000 HPR-1000
rated net MWe 1110 1090
heat transfer 2-loop 3-loop
coolant pumps 4 3
fuel assemblies 157 177
rods per assembly 264 264
fuel rod length 15.0 ft 12.7 ft
vessel diameter 13.3 ft 14.4 ft
water reservoir on roof inside
passive survival 72 hr 72 hr
ground acceleration 0.3 g 0.3 g
seamless vessel on core yes yes
bottom cap solid solid
double containment yes yes
load following yes yes
refueling cycle 18 mo 18 mo
design life 60 yr 60 yr

Source: China National Nuclear Corporation, 2016

The HPR-1000 design leverages China’s infrastructure built around the CPR-1000 design, by far its most widely applied nuclear-power technologies. Chinese type AFA3G fuel assemblies have become its high-volume nuclear fuel, required by the CPR-1000 units. Type CF3 fuel rods for HPR-1000 assemblies are slightly (15.9 mm) shorter than type AFA3G rods for CPR-1000 assemblies and use a double-welding process. Dimensions of reactor vessels and steam generators nearly match, assuring that current manufacturers will be able to build them.

China’s nuclear industries remain plagued by lack of consistent standards for dimensioning, measuring, testing, inspection and qualification. Instead of adopting or developing a comprehensive set of standards, China continues to apply multiple standards copied from the countries that have been sources for equipment. Those include France, Russia, Canada, the United States, Japan and Spain. A document from China’s National Nuclear Safety Administration suggests that the French RCC-M code (Règles de Conception et de Construction des Matériels Mècaniques) may be the most commmon standard, because it was used for the CPR-1000 design. When foreign standards are revised–a frequent occurence–it is unlikely that the forest of Chinese copies can be kept synchronized. Over time, that can become a potential source of equipment failures.

According to CNNC in 2015, longstanding Chinese official policy of a “closed nuclear fuel cycle” remains unchanged. A presentation at a meeting in Sao Paulo, Brazil stated, “China has been adopting the closed nuclear fuel cycle, i.e., the spent fuel shall be reprocessed to recycled uranium, plutonium and other elements to enhance the fuel utilization.” [text in English, figure legends in Chinese] However, locations in the general area of a reprocessing facility proposed near Jiayuguan in Gansu, near a military outpost since the 1950s, currently provide only storage, despite a claim by CNNC about plans for “big commercial reprocessing.”

Energy context: During 2015, China’s nuclear-power fleet produced about three percent of China’s net electricity. So far, growth in nuclear electricity is far outpaced by growth in coal-fired electricity. Between 2014 and 2015, a rated 6 GW of nuclear capacity was added, while a rated 72 GW in coal-fired capacity was added. At recent rates of change, China might never achieve the current world average of about 11 percent nuclear electricity.

Quoting from China’s National Bureau of Statistics, Energy Post–produced in the Netherlands–finds that renewable electricity has been growing faster. Between 2014 and 2015, China reported adding about 33 GW, peak in wind capacity and adding about 18 GW, peak in solar capacity. Discounted by typical capacity factors of 90 percent for nuclear, 25 percent for wind and 12 percent for solar, China reported adding about 5.4 GW in average nuclear capacity and about 10.3 GW in average renewable capacity. There has been no information on China’s internal energy development costs that is generally regarded as reliable.

– Craig Bolon, Brookline, MA, September 9, 2016


Nuclear power-plants in China, International Atomic Energy Agency (Vienna), September, 2016

Nuclear power in China, World Nuclear Association (London), August, 2016

Tom Holland, Why Britain’s Hinkley nuclear reactor is a horror show, South China Morning Post, August 29, 2016

Edward Wong, Coal burning causes the most air pollution deaths in China, New York Times, August 18, 2016

Chris Buckley, Chinese city backs down on proposed nuclear fuel plant after protests, New York Times, August 11, 2016

Aibing Guo, CNNC says its plan to merge ‘Hualong One’ reactor designs favored, Bloomberg News, August 3, 2016

David Dalton, China nuclear companies form joint venture to export ‘Hualong One’ reactor, NucNet Newsletter (Brussels), March 17, 2016

‘Hualong One’ joint venture officially launched by China, World Nuclear News (UK), March 17, 2016

China’s electricity mix, Energy Post (Netherlands), March 1, 2016

China to build more ‘Hualong One’ reactors, Nuclear Engineering International (UK), February 25, 2016

Nuclear fuel industry in China, China National Nuclear Corporation (Beijing, in English), October, 2015

Chinese reprocessing plant to start up in 2030, World Nuclear News (UK), September 24, 2015

Haiyang Wang, China’s nuclear power development and ‘Hualong One’ (HPR-1000) pressurized water reactor technology, China National Nuclear Corporation (Beijing, in English), September, 2015

Emma Graham-Harrison, China warned over plans for new nuclear power plants, Manchester Guardian (UK), May 25, 2015

Fuqing-5 foundation in place, World Nuclear News (UK), May 12, 2015

Tang Bo, Use of mechanical code and standard in Chinese nuclear-power plants, National Nuclear Safety Administration (Beijing, in English), c. 2015

Ian Hore-Lacy, China’s new nuclear baby, World Nuclear News (UK), September 2, 2014

Caroline Peachey, Chinese reactor design evolution, Nuclear Engineering International (UK), May 22, 2014

Jane Nakano, The United States and China: making nuclear energy safer, Thornton China Center, Brookings Institution (Washington, DC), February 6, 2014

Matthew L. Wald, Approval of reactor design clears path for new plants, New York Times, December 23, 2011

Craig Bolon, Third-generation nuclear power: uncertain progress, Brookline Beacon, September 6, 2016

Craig Bolon, Nuclear power-plants at risk from hidden defects, Brookline Beacon, September 3, 2016

Craig Bolon, Will New England revive nuclear power?, Brookline Beacon, August 10, 2016

Third-generation nuclear power: uncertain progress

The AP-1000 nuclear power-plant design from the U.S. Westinghouse division of Toshiba in Japan may become the major and perhaps sole survivor of competition in “third generation” nuclear. Eight units are currently under construction in the United States and China. The European Pressurized Reactor (EPR) from Areva of France has four units under construction in Finland, France and China. However, it is currently on life-support, owing to design and testing scandals and to major manufacturing defects.

“Third generation” nuclear from Rosatom in Russia, Kepco in South Korea and Hitachi in Japan gained little traction outside countries of origin. No plants are under construction, and no financing has been announced for deals reported with governments in Egypt, Abu Dhabi, Poland and India. A former barrier to manufacturing–as of 2009 only one plant, located in Japan, able to produce critical components–has been overcome by large, new steel forging facilities in several countries, including China, Korea, India and the United States.

There are other claimants to “third generation” technology–not credited by international business. In Japan, Hitachi completed four ABWR units in the 1990s. All remain idle in the aftermath of the March, 2011, nuclear catastrophe at the Fukushima Dai-ichi plant. Using French technology, China General Nuclear Power Group (CGN) in Guangdong province developed the CPR-1000 design. Like the Hitachi ABWR, it produces a slightly improved “second generation” nuclear power-plant. More recently, possibly using technology from the AP-1000, CGN announced another cheapened design called ACC1000 at first and more recently 华龙一 Hualong One, couched in Chlingish, or HPR-1000. A prototype has been announced for the Fuqing plant in Fujian province, which currently has two CPR-1000 units.

Schedules and costs: There are currently four AP-1000 nuclear units under construction in the United States, using the Rev. 19 design–providing aircraft impact resistance–approved in 2011 by the U.S. Nuclear Regulatory Commission. There are four units under construction in China using the Rev. 15 design, documented in 2006 by the U.S. but lacking aircraft impact resistance. A nationalized company in China licensed the Rev. 15 design and announced plans to build 10 or more additional units. Rev. 19 of the AP-1000 received “interim” approval by the UK in 2011. Currently, UK officials remain conflicted about whether to build EPR units. The Office for Nuclear Regulation has registered slow movement toward final AP-1000 approval.

An AP-1000 unit in Sanmen, China looks likely to become the first “third generation” nuclear unit to operate. Chinese industry got a head start by adopting the Rev. 15 design, rejected for U.S. plants. However, all AP-1000 projects world-wide are around three years behind schedule. The worst delays were caused by test failures of coolant pumps built by Curtis-Wright of Cheswick, PA. Those were controversial elements, based on technology developed for U.S. nuclear-powered submarines. Each AP-1000 unit has four of the pumps, using an innovative, sealed design unproven in industrial applications. After delivery delays of up to about two years, revised pumps have been installed at four of the eight AP-1000 units currently under construction. The revised pump designs are apparently not part of the Rev. 15 technology licensed to Chinese industry.

Fully burdened costs of AP-1000 units in the U.S. were recently reported more than $7 a watt, nearly a factor of two cost overrun. Full cost of the EPR unit at Flamanville, France is also reported at over $7 a watt–and still growing. Both European EPR projects are around ten years behind schedule, with cost overruns at least a factor of three. Schedules for the two EPR units in Taishan, China leaped ahead of the two in Europe, under a less demanding regime of regulation. However, schedules for all EPR projects are now in question from recent threats of catastrophic failure, owing to major manufacturing defects that remain under review in Europe.

Safety concerns: Safety concerns are always relative. Fatalities in automobile crashes per miles of vehicle travel probably peaked in the United States during 1900 through 1920, years before the U.S. government compiled records. Since 24.1 deaths per 100 million vehicle-miles for 1921, official tallies fell almost continuously to a low of 1.08 for 2014. For decades, however, the lures of automobile travel distracted U.S. attention from the dangers, while enthusiasm surged.

Lures of nuclear power in China and several other countries will more likely be weighed against hazards of alternatives rather than against hazards of nuclear power-plants. Hazards in those countries are dominated by large-scale burning of coal. Chinese steel, smelting and cement plants have been expanding rapidly, most of them burning coal. Over the past ten years, China added more than 800 coal-fired power units averaging 600 MW capacity. Academic research published in the summer of 2015 attributed more than a million and a half deaths per year in China to air pollution.

– Craig Bolon, Brookline, MA, September 6, 2016


First two AP1000s move closer to commissioning in China, World Nuclear News (UK), May 26, 2016

Scott Judy, U.S. contractor shake-up stirs nuclear project’s acceleration, Engineering News Record (Troy, MI), March 31, 2016

‘Hualong One’ joint venture officially launched by China, World Nuclear News (UK), March 17, 2016

Heavy manufacturing of power plants, World Nuclear Association (UK), 2016

Fatality analysis reporting system, U.S. National Highway Safety Administration, 2016

Jim Green, EPR fiasco unraveling in France and the UK, Nuclear Monitor (WISE International, Amsterdam), October 15, 2015

Rod Adams, Reactor coolant pumps for AP-1000 still a problem, Atomic Insights (Crystal City, VA), August 29, 2015

Dan Levin, Study links polluted air in China to 1.6 million deaths a year, New York Times, August 14, 2015

As U.S. shutters coal plants, China and Japan are building them, Institute for Energy Research (Washington, DC), April 23, 2015

UK assessment of AP-1000 design advances, World Nuclear News (UK), March 12, 2015

Robert Ladefian, The world’s largest canned motor pump, Nuclear Engineering International (UK), January 1, 2013

AP-1000 overview (Westinghouse), International Atomic Energy Agency (Vienna), 2011

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Craig Bolon, Nuclear power-plants at risk from hidden defects, Brookline Beacon, September 3, 2016

Nuclear power-plants at risk from hidden defects

Recent reports show hidden risks of catastrophic failure at dozens of nuclear power-plants, world wide. Those include the Millstone plant in Waterford, CT. They arise from previously unreported manufacturing defects and potential defects in large mechanical components produced at Creusot Forge in France. That manufacturer–soon to be controlled by Électricité de France (EDF), the French power utility–has been in operation since the eighteenth century.

A foundry at Le Creusot, in the highlands of central France, opened in 1782 to make cannons for the kings of France. It has produced steel forgings since 1876. As of 2010, it had the third-largest forging equipment in Europe, featuring a 17 million pound-force press, built in 1956, and a 25 million pound-force press, built in 2008. Its heaviest press can produce thick-wall metal cylinders up to 19 ft in diameter.

Areva–the French nuclear conglomerate once known as Framatome and soon to join with EDF–bought the Creusot factory in 2006 from the Schneider enterprises, its operators since 1835. Areva and predecessors have employed the factory since the 1950s to design and produce large mechanical components of nuclear power-plants: reactor vessels, steam generator shells and pressurizer shells.

Creusot Forge has supplied hundreds of large components for many industrial plants now operating in Europe, Asia, the United States, South America and Africa. Faulty components went to three European Pressurized Reactor (EPR) nuclear units that are under construction in Flamanville, France, and in Taishan, China. Others were produced for two EPR units proposed at Hinkley Point in the UK. Faulty components have already been installed in France and China.

Nature of defects: Yves Marignac of World Information Service on Energy in Paris has supplied a detailed description of the EPR defects. They affect the heads and bottom caps of reactor vessels. Such a vessel is made from large forged parts: a “head,” a cylinder segment with ports for cooling water, two plain cylinder segments and a bottom cap. The last four are welded together, and the head is bolted on top.

Heads and bottom caps have been reported to have major defects caused by improper forging performed at the Creusot Forge factory. According to Mr. Marignac, portions of those thick metal parts have too much carbon in the steel, tending to make them less resistant to thermal shock than they need to be. In the event of a rapid cooldown to recover from an equipment problem, they would be prone to rupture, leading to catastrophic failure.

According to Mr. Marignac, the forging problem leading to “carbon segregation” is an issue known in industry that can be controlled by manufacturing techniques. When Creusot Forge made the EPR parts, starting in 2006, one of each type was supposed to be tested for the “carbon segregation” issue. That requires drilling into a part, extracting solid samples and analyzing them–destroying the part. However, the run of EPR parts, six of each type, was completed without such testing.

Eventually the French nuclear regulatory agency required testing, performed in the fall of 2014. Test failures were soon found. However, by that time three EPR reactor vessels had been completed. They had been delivered to one reactor under construction in Flamanville, France and two under construction in Taishan, China. There they had been installed and connected to other equipment. Reactor vessels and possibly other major components at those sites may have to be removed and scrapped, causing long delays and huge added costs. The Flamanville project is already many years behind schedule, and it has suffered at least a factor of three cost overrun.

Hidden defects: After learning about the defects in EPR reactor vessels, the French nuclear regulatory agency required an audit of nuclear-part manufacturing performed at the Creusot Forge factory. That uncovered potential defects in more than 400 large parts, going back to 1965. The agency has suspended the operating license for one French nuclear-power unit (Fessenheim Unit 2), found to have a defective part. At least 18 French nuclear-power units are being investigated for defects.

Based on the audit in France, at least 17 U.S. nuclear-power units are at risk from potentially defective parts made at the Creusot Forge factory. For example, Millstone Unit 2 in Waterford, CT, has a potentially defective replacement pressurizer. Some units have more than one potential defect. Kerri Kavanagh, a division head at the U.S. Nuclear Regulatory Commission, released a statement last June, committing to “appropriate regulatory and enforcement action if we find issues of safety significance.”

– Craig Bolon, Brookline, MA, September 3, 2016


Benjamin Leveau, EDF reactor may remain shut after regulator suspends certificate, Nucleonics Week (Platts, UK), July 19, 2016

French regulator investigating components in 18 reactors, Nuclear Engineering International (UK), June 29, 2016

Kerri Kavanagh, Quality assurance issues in France: implications for U.S. plants, U.S. Nuclear Regulatory Commission, June 20, 2016

Quentin Philippe, Is the EPR nuclear reactor fit for the current market?, Energy Post (Amsterdam), June 20, 2016

Anomalies and suspected falsifications at Areva’s Creusot Forge site, Greenpeace France, June 13, 2016

Nick Butler, EDF’s real problem is Flamanville not Hinkley Point, Financial Times (UK), May 14, 2016

Yves Marignac, Defauts de fabrication sur la cuve du reacteur EPR de Flamanville-3, [in English at GreenWorld] Fabrication flaws in the pressure vessel of the EPR Flamanville-3, International Atomic Energy Agency (Vienna), April 13, 2016

Creusot Forge and Creusot Mécanique, Areva Group (France, in English), 2016

Heavy manufacturing of power plants, World Nuclear Association, 2016

Jim Green, EPR fiasco unravelling in France and the UK, Nuclear Monitor (WISE International, Amsterdam), October 15, 2015

Oliver Tickell, Flamanville nuclear safety fail sounds death knell for Hinkley C, The Ecologist (UK), October 2, 2015

Henry Samuel, Areva aware ‘as early as 2006′ of serious fault in nuclear reactor destined for UK, London Telegraph (UK), July 9, 2015

Ernest Kao, Hong Kong experts flag fresh concern over Guangdong nuclear plant, South China Morning Post (Hong Kong), April 19, 2015

John Lichfield, UK nuclear strategy faces meltdown as faults are found in identical French project, Independent (London), April 17, 2015

Peter Thornton and Vito J. Colangelo, Variation of mechanical properties in large steel forgings, Watervliet Arsenal, U.S. Army, 1975

Craig Bolon, Will New England revive nuclear power?, Brookline Beacon, August 10, 2016

Labor rights for U.S. domestic workers

Labor standards–wages, hours, benefits and age limits–were a thin patchwork in the U.S. until the Fair Labor Standards Act (FLSA) of 1938. The Franklin Roosevelt administration considered FLSA its most significant social legislation after the Social Security Act of 1935. In its initial form, FLSA provided a 25-cent-an-hour minimum wage, a 44-hour straight-time work week, time-and-a-half pay for overtime and a minimum working age of 16. However, there were exceptions and exclusions.

The Roosevelt administration was opposed by an unreconstructed Supreme Court, losing the issues in a 1935 case [Schechter Poultry] and losing in its “court packing” efforts of 1937. To resolve Constitutional issues, FLSA focused on occupations related to interstate commerce–notably manufacturing–generally omitting coverage for agriculture, construction and many services: transportation, retail trade, government, health care, education, publishing, machinery repair and domestic work.

The 1938 law also excluded coverage for union shops, as endorsed by both AFL and CIO out of fears that a wage floor might presage a wage ceiling. It survived two Supreme Court challenges in 1941. [Darby and Opp Cotton] By then, former Pres. Roosevelt was serving a third term and had appointed a majority of the Court: Justices Hugo Black, Stanley Reed, Felix Frankfurter, William O. Douglas and Frank Murphy.

Strengthening standards: Since World War II, labor standards have gradually been strengthened through four main channels:
• FLSA regulations, expanding coverage and increasing requirements
• FLSA amendments, removing and modifying exceptions and exclusions
• state and local standards, expanding coverage and increasing requirements
• interpretations, policies and lawsuits sometimes expanding coverage

Trends in federal minimum wage

FederalMinimumHourlyWage1938to2016
Source: U.S. Department of Labor, 2016

There have been three notable eras in federal minimum wage. The Franklin Roosevelt through the Lyndon Johnson administrations substantially increased the wage level, starting around $4 an hour and growing to around $10 an hour–in 2016 dollars–during 1938 through 1968. The Nixon through the Reagan administrations substantially shrank the wage level, from around $10 to around $6, during 1968 through 1988. The Herbert Bush through the Obama administrations maintained a stagnant wage level between about $6 and $8, during 1988 through 2016.

Labor standards in retail trade made progress through state initiatives–notably in setting minimum wages. Every state now has laws that benefit some workers outside the initial FSLA focus. Even in the “at will,” “right to work,” wage-and-hours-free state of Mississippi, employers can’t fire a worker because of jury service, if a worker provides “reasonable notice.” As of the start of 2016, more than half the states had a statewide minimum wage higher than the federal standard: 29 states plus the District of Columbia.

Currently the District is highest at $11.50 an hour, while California and Massachusetts are next at $10.00–to be compared with the $7.25 federal standard since July, 2009. Alabama, Louisiana, Mississippi, South Carolina and Tennessee have no state minimum wage. Georgia and Wyoming wage levels are below the federal minimum. The Deep South was the region most hostile to FLSA in the 1930s and remains the region most hostile to labor today.

Coverage struggles: Since early years of labor standards, starting with the first laws enacted in 1912 by Massachusetts, many groups of workers did not benefit. The U.S. Fair Labor Standards Act, in both initial and current forms, begins by stating a focus on “industries engaged in commerce or in the production of goods for commerce.” [P.L. 75-718, Sec. 2(a) and 29 USC 202(a)] “Commerce” under FLSA has been limited, both initially and now, to mean “trade…among the several States….” [P.L. 75-718, Sec. 3(b) and 29 USC 203(b)]

FLSA allows states and cities to enact stronger requirements. During the Truman and Eisenhower administrations, some states and cities began to close gaps in wage and hour coverage left in 1938. So far, no labor scholar has published an inventory of those initiatives, but sectors often involved appear to be retail trade, construction and transportation.

At the same time, business interests began to promote anti-union, “right to work” laws, authorized under the 1947 federal Taft-Hartley Act. The earliest of them, predating the act, was an amendment to the Arkansas constitution. Statewide laws are currently found in 25 states that are generally hostile to labor.

“Right to work” states

RightToWorkStated2016
Source: AFL-CIO, 2016

The Kennedy and Lyndon Johnson administrations began to expand FLSA coverage beyond narrow views of interstate commerce dating from the Great Depression and earlier. FLSA amendments enacted in 1961 included employees of retail trade firms with at least $1 million in annual revenue. Amendments enacted in 1966 included employees of schools, nursing homes, construction firms, commercial laundries and large farms.

Domestic workers: Sustaining work performed inside and near homes–care for children, the elderly, sick and disabled, cleaning, cooking, pet and plant care, laundry and other household services–had not been a focus of federal and state standards, in contrast with work performed away from homes. Domestic work currently remains at the far reaches of labor standards in most states.

A pioneering effort in Massachusetts–coordinated by Melnea Cass, the legendary Boston activist for civil rights and housing–resulted in the first state labor standards law covering most domestic workers. Chapter 760 of the Acts of 1970 provided coverage under the state’s wage and hours law: minimum wage, maximum weekly straight-time hours, overtime pay and contributions to Social Security and Medicare. For workers employed more than 16 hours per week, the 1970 law required workers compensation and unemployment insurance. These were all standards that had applied to most other jobs in Massachusetts.

FLSA amendments enacted in 1974 set federal standards for some domestic workers but specifically excluded workers providing “companionship services for individuals who…are unable to care for themselves.” It also excluded all live-in workers from overtime pay benefits. [29 USC 213] Intermittent and varying work hours and direct employment by householders have proven to be areas of difficulty. Some observers estimate that two-thirds or more of U.S. employers subject to FLSA fail to comply fully with the law.

In 2013, the Obama administration revised regulations to extend FLSA coverage to all domestic workers employed by agencies, regardless of duties, effective at the start of 2015. However, some workers without specialized training may not be eligible for overtime pay, and workers directly employed by householders remained excluded from coverage. These and other gaps are slowly being addressed by state laws specific to domestic workers.

As of August, 2016, seven states had enacted some form of enhanced labor standards for domestic workers, and in six states those had come into effect. The first new law was in New York, enacted in 2010, followed by Hawaii and California in 2013, Massachusetts in 2014, Oregon and Connecticut in 2015 and Illinois in 2016. None of these states have enacted anti-union, right to work laws. While provisions of the recent laws about domestic workers vary greatly, most take into account special situations of live-in workers.

Connecticut has the weakest of the new laws, providing only a guard against harassment. Massachusetts and Hawaii probably have the strongest. Only Massachusetts requires sick leave and parenting leave. Only Hawaii requires disability and health care insurance. Most states require time-and-a-half overtime pay, workers compensation insurance and unemployment insurance. Massachusetts had already required those benefits, since 1970. Most new laws require at least a day per week off-duty and some amount of paid personal leave. Some of the new requirements are stronger than those of federal labor laws and regulations.

Information and compliance: Elusive elements affecting standards for domestic work remain information and compliance. That generally takes organization. NAACP chapters were involved during pioneering efforts in Massachusetts, in the 1970s. More recently, National Domestic Workers Alliance, first located in New York City but now in Chicago, was organized in 2007 from experience with Domestic Workers United, founded in 2000 in New York City. Massachusetts Coalition for Domestic Workers was founded in 2010 and is located in Boston.

During the last few years, the domestic worker organizations and their academic partners have surveyed many domestic workers and employers in several U.S. cities. They provide unique information about work experiences and direct employment by householders. So far, however, most publications do not measure a shadow economy of unreported wages and undocumented workers that are sometimes mentioned in general media but rarely surveyed. A UCLA survey of about 500 direct employer households reported 14 percent paying “out of pocket.”

As anyone who has run an above-ground small business knows, complying accurately with labor law is complex. So far, no state has set up a clearing house to provide simple and centralized access to required record-keeping, reporting and payments. Large payroll services–PayChex and ADP–do not provide all the services needed to comply with state laws and are tedious to use. Concierge services, mostly available from accounting firms, can be very costly. The domestic worker organizations have not seen these issues as parts of their missions. A barrier their reports rarely acknowledge is that there is no method to report wages or to pay Social Security and Medicare contributions for undocumented workers.

– Craig Bolon, Brookline, MA, August 25, 2016


Enhanced state labor standards for domestic workers, Brookline Beacon, as of August, 2016

Massachusetts Coalition for Domestic Workers (founded 2010), 197 Friend St., Boston, MA, 617-603-1540

National Domestic Workers Alliance (founded 2007), Chicago, IL, 872-216-3684

Saba Waheed, Lucero Herrera, Reyna Orellana, Blake Valenta and Tia Koonse, Profile, practices and needs of California’s domestic work employers, UCLA Labor Center, May, 2016

Minimum wage laws in the states, Wage and Hour Division, U.S. Department of Labor, 2016

Natalicia Tracy, Tim Sieber and Susan Moir, Invisible no more: domestic workers organizing in Massachusetts and beyond, ScholarWorks, University of Massachusetts Boston, October, 2014

Benjamin Collins, Right to work laws: legislative background and empirical research, Congressional Research Service, January 6, 2014

Minimum wage, overtime protections extended to direct care workers by Labor Department, U.S. Department of Labor, December 17, 2013

Rachel Homer, What’s happening with domestic workers’ rights?, On Labor (Cambridge, MA), November 6, 2013

Gerald Mayer, Benjamin Collins and David H. Bradley, The Fair Labor Standards Act: an overview, Congressional Research Service, June 4, 2013

Karen Michael, Labor law: the Supreme Court and the Fair Labor Standards Act, Richmond (VA) Times-Dispatch, April 28, 2013

Nik Theodore, Beth Gutelius and Linda Burnham, Home truths: domestic workers in California, National Domestic Workers Alliance (New York, NY), 2013

Linda Burnham and Nik Theodore, Home economics: the invisible and unregulated world of domestic work, National Domestic Workers Alliance (New York, NY), 2012

History of changes to the minimum wage law, Wage and Hour Division, U.S. Department of Labor, 2007

Howard D. Samuel, Troubled passage: the labor movement and the Fair Labor Standards Act, U.S. Bureau of Labor Statistics, Monthly Labor Review 123(12):32-37, 2000

Dora L. Costa, Hours of work and the Fair Labor Standards Act: a study of retail and wholesale trade, 1938-1950, National Bureau of Economic Research, Industrial and Labor Relations Review 53(4):648-664, 2000

Jonathan Grossman, Fair Labor Standards Act of 1938: maximum struggle for a minimum wage, U.S. Department of Labor, 1978

Peyton Elder, The 1974 amendments to the federal minimum wage law, U.S. Bureau of Labor Statistics, Monthly Labor Review 97(7):33-37, 1974

Leon H. Wallace, The Fair Labor Standards Act, Indiana Law Journal 22(2):113-149, 1947

Opp Cotton Mills, Inc. v. Administrator, U.S. Supreme Court, 312 U.S. 126, 1941

United States v. Darby, U.S. Supreme Court, 312 U.S. 100, 1941

U.S. Fair Labor Standards Act, in original form as Public Law 75-718, 1938

Schechter Poultry Corp. v. United States, U.S. Supreme Court, 295 U.S. 495, 1935

New gas pipelines spurned: no subsidies from electricity rates

If operators of interstate natural gas pipelines succeed in getting permits for expansions in Massachusetts, they will have to raise their own funds to install new lines. On Wednesday, August 17, the Supreme Judicial Court ruled out schemes that would have subsidized new gas pipelines from Massachusetts electricity bills.

Utility companies Eversource and National Grid had proposed to acquire interests in new gas pipelines and load costs upfront onto electricity rates. The Baker administration and its Energy secretary, Matthew Beaton, had supported the schemes–similar in effect to construction-work-in-progress tariffs used to force electricity customers in Georgia and South Carolina to pay for new nuclear power-plants while they are being built.

Corrupt schemes: Attorney General Maura Healey and state Sen. Stanley Rosenberg (D, Amherst), the senate president, opposed the corrupt schemes. They were joined by the Conservation Law Foundation in responding to a lawsuit filed by interests in natural gas import terminals. Imports of liquefied natural gas, while more expensive than domestic pipeline gas, have helped to reduce and prevent wintertime price spikes. As documented in 2015 by Analysis Group of Boston, that approach costs less overall than installing new interstate gas pipelines.

In what looks to be his last opinion, Justice Robert Cordy wrote for a unanimous court, finding that the Baker administration’s regulation, allowing pipeline construction tariffs, was “invalid in light of the statutory language and purpose” of the Electricity Restructuring Act. [Chapter 164 of the Acts of 1997] Specifically, Justice Cordy wrote, the Baker administration’s regulation “would undermine the main objectives of the act and re-expose ratepayers to the types of financial risks from which the legislature sought to protect them.”

It was a conclusive decision, putting paid to the corrupt schemes engineered by the pipeline companies and to the corrupt regulations adopted by their Republican sweethearts in state government.

– Craig Bolon, Brookline, MA, August 17, 2016


ENGIE Gas & LNG LLC v. Department of Public Utilities, Massachusetts Supreme Judicial Court, Case Nos. SJC-12051 and SJC-12052, August 17, 2016

Jon Chesto, SJC rejects Baker’s plan to impose fee for gas pipelines, Boston Globe, August 17, 2016

Naureen Malik, The U.S. has more gas than it needs and Boston’s importing, Bloomberg News, April 13, 2016

Craig Bolon, Will New England revive nuclear power?, Brookline Beacon, August 10, 2016

Craig Bolon, Little need for new gas pipelines, Brookline Beacon, July 20, 2016

Will New England revive nuclear power?

Many New England people became enthusiasts for nuclear power after World War II. Nuclear research reactors, nuclear equipment and service firms and one small nuclear power-plant emerged. Yankee Rowe, located in the Berkshire foothills of Massachusetts–the second commercial plant in the U.S.–closed in 1992. As of 2007 it had been disassembled and taken away, its buildings had been razed and the grounds had been cleared.

Yankee Rowe site in 1986 and 2006

YankeeRoweSite2006
Source: Vermont Public Service Board

All that is left now at the former Yankee Rowe site are 16 steel and concrete casks, weighing more than 100 tons each and guarded at all times, holding spent but highly radioactive nuclear fuel. One small research reactor remains–at M.I.T. in Cambridge, just southwest of Massachusetts Ave. between Vassar and Albany Sts. beside historic tracks of the former Grand Junction Railroad, now operated by the MBTA. Little known to the public, the M.I.T. reactor long ran on weapons-grade enriched uranium. Students and staff called the former Warner Calvary’s, next to the service entrance, the “nuclear diner”–zapped while you ate, no extra charge.

M.I.T. nuclear reactor, Cambridge, MA

Looking southeast toward Metropolitan Storage

MitResearchReactor2012
Source: Cambridge City Council, 2012

Nuclear eclipse: With closure of Vermont Yankee in Vernon, at the end of 2014, New England was left with four operating nuclear-power units. One of those four, the unit at the Pilgrim plant in Plymouth, MA, is now scheduled to close on May 31, 2019.

New England nuclear-power units

167 MW Yankee Rowe Rowe, MA opened 1963 closed 1992
641 MW Millstone 1 Waterford, CT opened 1970 closed 1985
860 MW Maine Yankee Wiscasset, ME opened 1972 closed 1996
620 MW Vermont Yankee Vernon, VT opened 1972 closed 2014
680 MW Pilgrim Plymouth, MA opened 1972 to close 2019
1130 MW Seabrook 2 Portsmouth, NH begun 1976 abandoned 1988
882 MW Millstone 2 Waterford, CT opened 1975
1155 MW Millstone 3 Waterford, CT opened 1986
1194 MW Seabrook 1 Portsmouth, NH opened 1990

Source: U.S. Nuclear Regulatory Commission

From peak nuclear generating capacity of 5.6 GW in mid-1991, New England will be left with 3.2 GW in mid-2019, a decrease of 42 percent over 28 years–with six of nine commercial nuclear-power units out-of-service. (Unit 2 at Seabrook was abandoned during construction and never operated.) Little of those losses can be made up from wind or solar sources, since they will stop when the wind stops blowing or the sun stops shining. Instead, the deficits are mostly being filled from newer combined-cycle power-plants fired by natural gas. The latest one, being built by Footprint Power at the site of the former coal-fired Salem Station, has about the capacity of the Pilgrim nuclear plant, soon to close.

Survivors: Although not well known to most of the public, after mid-2019 New England will no longer have any operating nuclear units with relatively hazardous Mark 1 “boiling water” containment designs–like those that exploded in March, 2011, at the Fukushima Dai-ichi plant in Japan. Vermont Yankee and Pilgrim plants used those designs. The three nuclear units to remain in New England used “pressurized water” designs, with more stable characteristics. Unit 2 at Millstone, with two secondary loops, will then become the region’s least stable. It was developed by Combustion Engineering–a high flyer of the 1960s that built 15 of the 119 completed U.S. utility-scale nuclear-power units, wound down operations during the 1980s and was sold in 1990.

Millstone Unit 3 and Seabrook Unit 1 both use Westinghouse 4-loop “pressurized water” designs. They were both completed after the major upgrades to safety requirements that followed the Three Mile island nuclear meltdown in 1979, under supervision of the Nuclear Regulatory Commission. Three Mile island has “pressurized water” units designed by Babcock & Wilcox, with only two secondary loops. Nevertheless, margins of stability were enough that the meltdown of Unit 2 was almost entirely contained. In contrast, Mark 1 “boiling water” containment designs had been strongly criticized during the 1960s for inadequate margins, but an industry-dominated Atomic Energy Commission, which was disbanded in 1975, had failed to intervene.

Survival of current nuclear power-plants is hardly guaranteed. Heat exchangers, which industry calls “steam generator loops,” are major sources of added stability for “pressurized water” designs. They are also among the worst sources of failures. The reason that Maine Yankee was shut down after only 24 years service was impending failures of those devices. More recently, operators of the San Onofre plant in California squandered nearly a billion dollars on steam-generator replacements–botching the jobs, getting only about another year of service and starting disputes and chicanery after the San Onofre shutdown that could take a decade to resolve.

New thinking: In the late 1990s, manufacturers of nuclear-power equipment, encouraged by academics at M.I.T. and other schools of engineering, began to work up plans for a so-called “third generation” of nuclear power-plants. It was, perhaps timely, an era of “millennial thinking.” The initial goals, in the aftermath of the Three Mile Island meltdown and the Chernobyl disaster, were to make nuclear power far safer. Rather soon, however, came notions that nuclear power-plants might also be much cheaper than they had been for some 20 years. The two concerns reflected widely perceived problems of the industry.

In 1954, Lewis Strauss, then chairman of the Atomic Energy Commission, spoke at the National Association of Science Writers annual meeting, saying nuclear power would become “too cheap to meter.” He was soon countered by industry spokespersons, but the phrase stuck in memory, and notions that nuclear power should be low in cost became widespread expectations. If such notions ever had merit, they were demolished by long delays and steep cost increases to meet U.S. safety requirements added after the Three Mile Island meltdown. During the 1980s, the Vogtle plant in Georgia became a poster child for schedule and budget overruns. Its two units came on line in 1987 and 1989, more than 10 years late and at over 25 times the cost budgeted in 1971.

Alvin Weinberg, a former director of Oak Ridge National Laboratory–who had enthusiastically endorsed the “too cheap to meter” claim of the 1950s–re-emerged years later to make a claim for everlasting equipment. “If nuclear reactors receive normal maintenance,” he wrote, “they will never wear out, and this will profoundly affect the economic performance of the reactors.” Dr. Weinberg was not an engineer; he had never worked in industry. Still, trained as a physicist, he should have known better. He dismissed out-of-hand embrittlement and build-up of radioactivity, and he likely did not even think about structures and control systems. Such a cavalier approach reflected “millennial thinking” that remained common in public views for about a decade.

Rubber meets road, gives way: The U.S. economic recovery from 2002 through 2007 began to stimulate utility interest. During the Walker Bush administration, the Nuclear Regulatory Commission proposed a one-step process for utilities, to expedite approval of nuclear plants using standard designs. Four contenders vied for design approval: Westinghouse Nuclear, by then a division of Toshiba in Japan, General Electric Nuclear, by then a division of Hitachi in Japan, Mitsubishi Heavy Industries of Japan and Areva, the French nuclear conglomerate. No application came from Rosatom in Russia or Kepco in Korea, despite both announcing plans. Toward the end of 2007, Nuclear Street, a trade publication, reported 34 letters of intent to build new U.S. nuclear-power units. Of the 28 naming a design, 14 proposed to use the AP-1000 from Westinghouse.

By the late 1990s, academics and consultants were enjoying great sport as market speculators, projecting ever lower costs based on supposed economies of scale. In order to exhibit the lowest possible amounts, they touted so-called “overnight” costs–omitting interest, infrastructure, land and site preparation. “Overnight” estimates ranged as low as about $1 a watt, although some plants from the 1980s had cost around $4 a watt, before factoring inflation. After glory days of a so-called “nuclear renaissance”–around 1997 through 2007–both everyday and episodic factors intervened. The rubber was to meet the road when the equipment builders proposed prices and their potential utility customers had to figure out whether they could afford the tabs.

Starting in 2008, along with a sharp recession, the tabs came in high: at least $4 a watt, maybe more. The outgoing Walker Bush administration assembled $18.5 billion in a loan-guarantee program, likely supporting less than 5 GW of capacity and perhaps four nuclear-power units. Soon the incoming Obama administration faced huge economic stress to reverse the Walker Bush recession, the worst downturn since the Great Depression of the 1930s. It was eager to identify fast-growth opportunities, and it offered nothing more toward slow-growth nuclear power. Then came the Fukushima nuclear catastrophe in March, 2011, and financial losses threatened by the January, 2012, shutdowns of both San Onofre units near San Diego. Those episodes capped off a would-be “nuclear renaissance.” U.S. support for investments in nuclear power collapsed.

Active applications to build third-generation nuclear-power units in the U.S. dropped rapidly. In states with deregulated electricity markets, none survive. Utilities operating as unregulated merchant power generators proved unwilling to accept financial risks at prices being proposed–with or without loan guarantees. Only utilities continuing to function as government-backed monopolies maintained interest. Of 34 proposed new nuclear-power units, as named in 2007, only four units are now active–all using the Westinghouse AP-1000 design. Two are under construction at the Summer plant in South Carolina, and two are at the Vogtle plant in Georgia–the 1980s poster child for cost overruns. These projects took the federal loan guarantees, emptying the pot.

Propping up survivors: Odd as it might sound, Andrew Cuomo (D, New Castle), the New York governor opposed to the Indian Point nuclear power-plant in Buchanan, NY, has arranged subsidies funded by electricity customers to prop up four other nuclear-power units in the state. Estimated only a few months ago at perhaps $200 million over about ten years, the subsidies are now widely reported as likely to cost $8 billion or more. Within days Exelon, which already owned three of the units, announced a plan to buy the fourth from Entergy. Exelon is able to economize by sharing personnel, now the main expense of running nuclear plants fully depreciated years ago.

Operating New York nuclear-power units

610 MW Ginna Ontario, NY opened 1970
838 MW FitzPatrick Scriba, NY opened 1975
621 MW 9-Mile Point 1 Scriba, NY opened 1974
1140 MW 9-Mile Point 2 Scriba, NY opened 1987
1032 MW Indian Point 2 Buchanan, NY opened 1974
1051 MW Indian Point 3 Buchanan, NY opened 1976

Source: U.S. Nuclear Regulatory Commission

FitzPatrick and 9-Mile Point 1 used the Mark 1 “boiling water” containment design, the same as Vermont Yankee, Pilgrim and the wrecked Fukushima Dai-ichi units in Japan. If the two plants in New England deserved to be shuttered, then so do FitzPatrick and 9-Mile Point 1. However, unlike the many, longstanding critics of nuclear power in southern Vermont and eastern Massachusetts, in upstate New York very few people are demanding action on hazards their region faces. There are no signs that the Cuomo administration has genuine concerns about such hazards either, aside from personally and politically motivated attention to the Indian Point plant, located less than 15 miles from the governor’s home.

News from New York government sources has been the usual, opaque OCA blarney–officials covering arses–but obviously money spoke. A tiny fraction of $8 billion could fund a huge legacy of political campaigns. However, despite long entrenched corruption, Illinois governments rebuffed Exelon solicitations this year. Mr. Cuomo invoked environmental saviors to buttress his cause–notably James Hansen, a Columbia professor. Joined by three less well known partners, Dr. Hansen occupied a New York Times pulpit in November, 2013, to present a prayer for nuclear power. It was, the four then claimed, “the only viable path forward on climate change.”

Others disagreed. As the late Michael Mariotte of Nuclear Information and Research Service wrote, “No environmental organization took the bait. Instead, NRDC, Greenpeace, Friends of the Earth and Sierra Club decry nuclear power….” According to Morningstar, in an investment newsletter issued a week after the Hansen prayer, “Enormous costs, political and popular opposition, and regulatory uncertainty” render new reactors infeasible [as recounted in Forbes]. Low costs for nuclear power occurred only before nuclear disasters of the 1970s and 1980s, leading to stringent and costly safety regulations, and under repressive oligarchies, ignoring lessons from the disasters. Outside command economies of Russia, China and South Korea, only two of several “third generation” nuclear designs are being implemented: the AP-1000 in the U.S. and the EPR in Europe.

Practical developments: The European [or "evolutionary"] pressurized reactor (EPR), designed by Areva in France, took a partly conventional approach to reliability: increasing steam generator “loops” for a “pressurized water” reactor to four instead of two or three. That was adapted from a proven design: the Westinghouse 4-loop “pressurized water” units built in the U.S. during the 1980s. The EPR specifications have been disrupted by several surges of changes, leaving the first unit in Olkiluoto, Finland, more than ten years late, with at least a factor of three in cost overrun. Last year, the government of Finland cancelled another EPR unit, but the former Cameron and Osborne regime in Britain signed up for two EPR units at Hinkley Point in Somerset, on the Bristol Channel. Recently the successor British regime, headed by Theresa May, put those plans on hold, questioning Chinese involvement in the project.

The AP-1000, designed by Westinghouse in the U.S. and by Toshiba in Japan, mainly took a structural approach to reliability: providing a very large volume of passive cooling to manage a thermal spike. While the EPR design tends to increase complexity, working against reliability, the AP-1000 design tends to reduce complexity, at least in some respects. Four units are under construction in the U.S. as noted before, and four are being built in China at Sanmen and Haiyang. China has also licensed the technology, and it has developed a much-cheapened system, the CPR-1000, omitting most of the major improvements in safety and reliability. AP-1000 units in China use a cheapened design of that type, omitting protection against aircraft impacts required in the U.S.

All AP-1000 projects are running years behind schedules. Those in the U.S. suffer from major cost overruns, but there is no reliable information from China, since anyone providing it would probably be jailed or killed. Last year Chicago Bridge & Iron, one major contractor for the U.S. projects, sold out to Westinghouse, the other major contractor, creating an effective U.S. monopoly in nuclear power-plant construction. U.S. utility sponsors are protected by CWIP regulations–construction work in progress–enacted by politically captive state governments in Georgia and South Carolina and allowing the utilities to charge customers increased rates before the plants are operating.

New England opportunities: So far, there are few signs that New England will respond to what parts of the nuclear-power industry might cast as opportunities. New England nuclear generation capacity has been falling for about a quarter century. Once Pilgrim in Plymouth, MA, closes in 2019, only New Hampshire and Connecticut will have nuclear power-plants operating. No utility is likely to propose any new nuclear facility for the region until the “third generation” units under construction in Georgia and South Carolina have been operating for quite a few years and unless their safety and economic performance has lived up to claims.

Dominion Power, the operator of Millstone in Waterford, CT, since 2000, tried to put a squeeze on Connecticut government, similar to what Exelon has pulled off in New York. They frightened the state senate into passing a subsidy bill in April, 2016, but after that their momentum stalled. Dannel Malloy (D, Stamford), the state’s governor, could prove as susceptible as Andrew Cuomo became in New York. Last March, Malloy reportedly met privately with Dominion lobbyists and executives. Typical shell-game tactics are showing up. One news report quotes a state senator, Paul Doyle (D, Wethersfield), saying, “It’s not a subsidy.” Maybe, but it looks like a duck, quacks like a duck….

– Craig Bolon, Brookline, MA, August 10, 2016


Karen DeWitt, Nuclear part of New York’s energy future, WRVO (Oswego, NY), August 10, 2016

Leonard Hyman and William Tilles, New York nuclear plants deemed a ‘public necessity’, Oil Price (London, UK), August 6, 2016

Tim Knauss, New York board approves ratepayer subsidy to save upstate nukes, Syracuse (NY) Post-Standard, August 1, 2016

Kate Holton and William James, UK’s May worried by China investment, intervened to delay Hinkley, Reuters (UK), July 30, 2016

Vivian Yee, Nuclear subsidies are key part of New York’s clean-energy plan, New York Times, July 21, 2016

John O’Connor, Exelon to close two nuclear plants in Illinois, still seeking subsidies, Associated Press, June 2, 2016

Michael Steinberg, Nuclear shutdown ripped off California ratepayers, San Diego Free Press, June 2, 2016

Walter C. Jones, Who will pay for Vogtle construction costs?, Augusta (GA) Chronicle, May 1, 2016

Mark Pazniokas, Connecticut senate passes bill to stabilize revenues in nuclear industry, Connecticut Mirror (Hartford, CT), April 30, 2016

Carol Matlack, French plans for a nuclear plant begin to look like a bad deal for Britain, Bloomberg News, April 29, 2016

David Abel and John R. Ellement, Closing date set for Pilgrim nuclear power plant, Boston Globe, April 14, 2016

Steve Daniels, Exelon’s Crane beats the drum again for nuke subsidies, Chicago Business, February 3, 2016

Jeff McDonald, It’s not just the steam generators that failed, San Diego Tribune, January 30, 2016

Linda A. DeStefano, Oswego County leaders short-sighted in backing nuclear energy, Syracuse (NY) Post-Standard, December 23, 2015

Aaron Larson, CB&I out, Fluor in at Vogtle and V.C. Summer nuclear power plant construction projects, Power Magazine, October 28, 2015

John Lichfield, UK nuclear strategy faces meltdown as faults are found in identical French project, Independent (London, UK), April 17, 2015

List of power reactor units, U.S. Nuclear Regulatory Commission, 2015

Jack Newsham, Vermont Yankee nuclear plant shutdown complete, Boston Globe, December 29, 2014

Rinaldo Brutoco, Nuclear power: totally unqualified to combat climate change, Safe Energy Project (Santa Barbara, CA), September 14, 2014

Jusen Asa, et al., Nuclear power is not the answer to climate change mitigation, Tohoku University (Japan), January 31, 2014

Michael Mariotte, Letter by Hansen et al. misses the mark on nuclear power and renewables, Nuclear Information and Research Service, November, 2013

Jeff McMahon, Morningstar calls nuclear renaissance fiction and fantasy, Forbes, November 10, 2013

Andrew C. Revkin, James Hansen, et al., To those influencing environmental policy but opposed to nuclear power, New York Times, November 3, 2013

Michael R. Blood, Associated Press, Federal regulators say design led to nuclear plant problems, Boston Globe, June 18, 2012

John S. Quarterman, Original Plant Vogtle cost overruns, Lowndes Area Knowledge Exchange (Valdosta, GA), 2012

David E. Moncton, MIT Nuclear Reactor Laboratory, Cambridge (MA) City Council, 2012

Fred Contrada, Casks holding spent fuel assemblies all that’s left of Yankee Rowe, Springfield (MA) Republican, April 17, 2011

Yuri Kageyama, Associated Press, History of bungles and cover-ups in Japan’s nuclear industry, Sydney Morning Herald (Australia), March 17, 2011

Nuclear Reactor Characteristics and Operational History, Nuclear Reactor Operational Status Tables, U.S. Energy Information Administration, 2011

Adriaan Buijs, Too cheap to meter?, Canadian Nuclear Society, 2009

Loan guarantee applications for nuclear power plant construction, U.S. Department of Energy, 2008

David Schlissel and Bruce Biewald, Nuclear power plant construction cost, Synapse Energy Economics, 2008

Proposed new nuclear power plants, Nuclear Street, 2007

Tyson Slocum, The failure of electricity deregulation, Public Citizen, 2007

Yankee Rowe site closure plan, Rev. 4, Vermont Public Service Board, 2006

Alvin M. Weinberg, New life for nuclear power, Issues in Science and Technology 19(4), online, Summer 2003

John Deutch, Ernest J. Moniz, et al., The future of nuclear power, Massachusetts Institute of Technology, 2003

Brandon Haddock, Morris News Service, Nuclear power plant not drawing same attention as before, Athens (GA) Banner-Herald, May 18, 1999

Igor Kudrik, Russian nuclear power for the next century (in English), Bellona Foundation (Norway), 1998

Jim Riccio and Michael Grynberg, NRC’s efforts to renew nuclear reactor licenses, Public Citizen, 1995

Dan Adams, Conversion of MIT reactor to safer fuel pushed to 2027, Boston Globe, September 2, 2016

Craig Bolon, Losing steam: U.S. nuclear power-plants, Brookline Beacon, September 27, 2015

Craig Bolon, U.S. energy for 2014: a year of gradual progress, Brookline Beacon, March 10, 2015

Craig Bolon, New England energy: wobbly progress, Brookline Beacon, January 12, 2015

Little need for new gas pipelines

A year ago, companies based in the Southwest were planning about 3.0 billion cubic feet per day (Bcf/d) in new natural gas pipeline capacity entering New England, nearly doubling current capacity of about 3.6 BCf/d. Why would that happen? New England is at most a slowly growing energy market. Since the region was already well advanced in switching from coal-fired and oil-fired to gas-fired electricity generation, there were no huge, likely new customers. It was clear that pipeline companies had other motives.

Although pipeline companies would not admit it, most industry observers read those motives as sending U.S. natural gas into international markets through Canada. For such purposes, New England is not a market but a transportation route. The region does not need to accept environmental hazards in order to boost pipeline company profits milked from the region by using it as a pathway to foreign trade.

Gas giant collapses: Since then, new information appeared, and pipeline momentum stalled. Last November, Maura Healey, the state’s attorney general, released a report prepared by Analysis Group of Boston (AGB), examining needs for new gas pipeline capacity to provide reliable electricity. In its 70-page report, AGB showed that adaptation of the current electricity network can meet needs for at least the next fifteen years, without new gas pipelines.

New England was not well outfitted for cold winters of 2013 and 2014, when natural gas supplies were stressed, causing spikes in electricity prices. Advance preparation–stockpiling fuels and equipping plants to burn either gas or oil–began to help the next year. In the winter of 2016, milder weather and better preparation led to no electricity price spike.

Monthly electricity prices, Jan. 2010 thru June 2016

IsoNeMonthlyHubDayAhead2010to2016
Source: ISO New England data, July, 2016

The region’s average wholesale electricity price for the utility year ended March 31 was 2.8 cents per kWh. Wholesale electricity prices this year stand comparable to other regions that organize competitive generation markets. Retail prices remain higher in New England than in most of the U.S., but that is mainly because of aging distribution networks, incurring high maintenance costs. Despite claims from pipeline promoters, given good management of current gas supplies, New England has little to gain and much to lose from new pipelines.

This spring, the proposed Northeast Direct pipeline was cancelled by financial parent Kinder Morgan of Houston, TX. It was the largest and most disruptive of the New England projects, threatening undisturbed lands and state forests across northwestern Massachusetts and southern New Hampshire. Although Kinder Morgan cited “market” factors, it no could longer depend on political pressures stimulated by electricity price spikes.

Next largest projects: Access Northeast, sponsored by Spectra Energy of Houston, is the next largest project. Unlike Kinder Morgan’s proposed line, most of Spectra’s proposal was sited along rights of way for the Algonquin pipeline, opened in 1953, which Spectra now operates. However, Access Northeast also includes large branches that would plow through new territories.

Spectra Access Northeast, eastern Connecticut through Massachusetts

SpectraAccessNortheastCTRIMA2016
Source: U.S. Federal Energy Regulatory Commission, July, 2016

The largest new branches are proposed in central and eastern Massachusetts, running from the Algonquin main line in Medway to West Boylston, just north of Worcester, and from Medway to Canton, where that new branch is to rejoin and reinforce the southern part of the main line, heading toward Weymouth. The branches through new territories, about 50 miles in all, are generating much more opposition than the rest of the project, about 75 miles that are nearly all sited on current Algonquin rights of way.

Opponents of Spectra have more complex targets than opponents of Kinder Morgan. There are now three Spectra projects in New England. Algonquin Incremental Market has been in construction since 2015, aimed at increasing capacity along the Algonquin main line between southern New York and eastern Massachusetts. Its most controversial feature has been a high pressure, 3-1/2 ft diameter pipe under the Hudson River, passing a few hundred feet from the Indian Point nuclear power plant in Buchanan, NY.

International exports: Atlantic Bridge is the most revealing and speculative Spectra project. It would increase compressor power all along the Algonquin line and add a new compressor in Weymouth. That one would be used to reverse gas flow on the HubLine, opened in 2003 across Massachusetts Bay between Weymouth and Beverly Harbors. There are no proven markets in New England to be served. Instead, like the recently cancelled Kinder Morgan project, Atlantic Bridge would aid international export of U.S. natural gas through Canada.

So far, Spectra has shuffled along plans for its three large, mutually reinforcing projects in defiance of law. The combined new capacity from the three large Spectra projects is more than the capacity that was planned from the cancelled Kinder Morgan project. A 1976 Supreme Court opinion held that “when several proposals…that will have cumulative or synergistic environmental impact upon a region are pending concurrently before an agency, their environmental consequences must be considered together.”

Ms. Healey, the attorney general, is currently defending the state against a pipeline company lawsuit for a small project, extending a branch line into northwestern Connecticut across a state forest. So far, however, while she raised the issue of concurrent projects in comments sent to the U.S. Federal Energy Regulatory Commission, she has not launched a court challenge against the Spectra projects–all seeking separate reviews instead of joint review as elements of a single, larger project.

– Craig Bolon, Brookline, MA, July 20, 2016


Jon Chesto, Kinder Morgan shelves $3 billion pipeline project, Boston Globe, April 20, 2016

Mild weather, ample natural gas supply curb Northeast winter power and natural gas prices, U.S. Energy Information Administration, April 5, 2016

Sam Thielman, Planned gas pipeline alongside Indian Point nuclear plant stirs meltdown fears, Manchester Guardian (UK), April 4, 2016

Clarence Fanto, Massachusetts attorney general picks up fight against natural gas pipeline that would serve Connecticut, New Haven (CT) Register, March 21, 2016

Wholesale power prices decrease across the country in 2015, U.S. Energy Information Administration, January 11, 2016

Paul J. Hibbard and Craig P. Aubuchon, Power system reliability in New England, Analysis Group (Boston, MA), November 18, 2015 (1 MB)

Paul L. Joskow, Natural gas: from shortages to abundance in the U.S., American Economic Review, 103(3):338-343, 2013

Bruce Estrella, HubLine impact assessment, mitigation and restoration, Massachusetts Office of Energy and Environmental Affairs, 2009

Craig Bolon, New England gas pipelines: attorney general weighs in, Brookline Beacon, November 1, 2015

Craig Bolon, New England gas pipelines: need versus greed, Brookline Beacon, August 29, 2015

Bugle Taps for “West Station”

A so-called “West Station” project has looked to be the last spray of transit sparkle from the former Patrick administration. The state transportation project list still shows a huge “sleeper” project. Like many other state Web sites, that one is also fouled with mold: years out of date. It estimates a total project cost of about $434 million.

The most recent online data for DOT project no. 606475, from the spring of 2011, called for “replacement of the elevated viaduct, realignment of I-90 (the Massachusetts Turnpike), reconstruction of (the Allston) interchange and connecting ramps, reconstruction of Cambridge Street, reconstruction of Beacon Park Yard to accommodate an MBTA commuter rail layover facility and construction of West Station.”

Flack work: As recently as the fall of 2014, state publicity flacks were blaring trumpets. Nicole Dungca, a press-release parakeet for the Boston Globe, wrote, “A $25 million transit station…is meant to help overhaul the huge swath of land near the Allston-Brighton tolls…nimble, self-propelled cars…would mimic trolley or subway service.” The first time we heard Buddliners called “nimble.” However, her story cautioned, “There is currently no timeline….” She might have added, “There is also no money.”

In the spring of 2014. a more experienced Globe reporter, Martine Powers, had written, “A MassDOT official announced that the cost of constructing a new rail station would not be part of the $260 million budget” for the Allston interchange project. Other than canning a “$25 million” rail station, there has still been no news saying how a “$434 million” project in 2011 might cost only “$260 million” in 2014. Big Dig in reverse gear?

Contacts at the transportation department continue to say that plans for an Allston rail station remain on the dead-letter heap. According to a report from December, 2015, “Toll revenues can not be used” for such a station. No other funds are cited. What happened to a project feature claimed to “transform” the Allston area?

Intervening opportunities: For many decades, the Cambridge Street and Lincoln Street part of Allston has been industrial and low-rent residential: some two-family houses and three-story brick apartments, a couple of auto repair shops, a rail yard, a bearing distributor and a warehouse for used furniture. A steel warehouse gave way to a speculative Internet connection hub–never finished and now vacant 15 years. Seemingly perennial Allston Food & Sprits–home of “frog legs”–has flipped since 2007. No more venison, geese or frog legs.

Brighton on the south side of the Turnpike is a different scene, more like rags to riches. New Balance, hero of that story, tore down the former Honeywell factory on Life Street, built a new headquarters office and is replacing dilapidated warehouses with new office buildings, housing and retail shops. New Balance is also paying the whole tab for a new station on the former main line of the Boston & Albany Railroad, now the MBTA Worcester commuter-rail line. Most Allston neighborhoods are closer to that station–adjacent to the Everett Street overpass–than to the rear of the former rail yard. No funding problems. Now a so-called “West Station”–less than a mile to the east–no longer matters.

– Craig Bolon, Brookline, MA, July 14, 2016


Peter B. Kingman, Buddliner awaiting disposal next to Fitchburg Line in Cambridge, New England Railroad Photo Archive, 1989

Mass. Highway project no. 606475, in online descriptions of state projects, last update 2011

Martine Powers, Allston rail station plan scrapped for now, Boston Globe, May 26, 2014

Nicole Dungca, New transit station could transform Allston area, Boston Globe, September 30, 2014

Jessica Geller, New Balance opens new world headquarters at Boston Landing. Boston Globe, September 17, 2015

I-90 Allston Interchange, Massachusetts Department of Transportation, December, 2015 (8 MB)

Nicole Dungca, New Balance, MBTA break ground on Allston-Brighton station, Boston Globe, May 12, 2016

Fairer elections and more diverse officeholders

Some supposedly “American” innovations in democracy actually began in Australia, led by Tasmania. Perhaps the most surprising of them might be the official and anonymous ballot–first used there in 1856–inaccurately called the “secret ballot.” After experiments in Louisville, KY, and other cities, in 1888 Massachusetts became the first U.S. state to require government printed, anonymous ballots based on the Australian model. Washington and Lincoln had been elected using open, privately printed ballots, as was New York City’s infamous Tweed gang.

A more rarely used Australian innovation aims at fair representation, intended to make it more feasible for minorities of all sorts to become officeholders. Tasmania has used one such approach since 1907: ranked voting. Candidates are ranked on ballots, and votes are distributed according to the rankings. In Massachusetts, the City of Cambridge adopted a version of this approach, starting in 1941, and still uses it.

Ranked and weighted voting: Tallying elections using ranked voting is always complex, and it always involves some arbitrary shortcuts for distributing votes according to rankings. No state has adopted it. Cambridge used to need about a week for a tally until 2001, when the city bought a computerized system–also adopted by Burlington, VT. Australia continues with slow, manual tallies. A week after its 2016 elections for parliament, the winning party was known, but the numbers of members for the parties remained in doubt.

It has been shown that unbiased translation from voter rankings to candidate selections poses a factorially complex problem, far beyond foreseeable computing power for voting populations of most communities. Weighted voting provides a far less complex approach to fair representation, in which voters weight rather than rank their support for candidates. Modern forms of it are innovations from the United States, not Australia.

CumulativeBallotExample

The simplest fair-voting plan equips each voter with multiple votes to be allocated among the candidates for an office. Such an approach can be compatible with electronic, scanned and plain-paper ballots and can yield an almost instant election result. Adding normalized weights that were assigned to candidates by voters avoids the arbitrariness and huge complexity of trying to interpret rankings. Weighted or “cumulative” voting is used in business settings, but no U.S. states and only a few communities–such as Port Chester, NY–have adopted it. However, the Electoral College that chooses Presidents has provided a longstanding example, since 1824.

Official cliques and transformative change: Local governments in most communities often fall into control of official cliques, but those may wax and wane over time as powerbrokers come and go. Election reforms can help communities resist cliques, increase diversity and improve open government. One can expect resistance to such reforms from members of cliques.

New England towns with representative town meetings typically have annual elections for groups of officeholders who hold staggered terms, with only a subset of a group elected at a time. Such a custom promotes formation and persistence of official cliques; they need focus on only a small number of candidates in any one year. It harbors minefields for independent candidates and newcomers.

A potentially transformative change to a New England town would truncate current terms of offices and change to elections every few years, with all members of groups of officeholders elected at the same time, as typically occurs in cities. Coupled with change to weighted or “cumulative” voting, minorities of many sorts would see improved opportunities to counter cliques and to elect some officeholders.

– Craig Bolon, Brookline, MA, July 10, 2016


Kristen Gelineau, Associated Press, Australian leader claims election win, but questions remain, ABC News, July 10, 2016

Stephen St. Vincent, Could ranked choice voting stop Donald Trump?, Philadelphia (PA) Citizen, March 10, 2016

Ranked choice voting and instant runoff, FairVote (Takoma Park, MD), 2015

Cumulative voting, U.S. Securities and Exchange Commission, 2014

Jill Lepore, How we used to vote, New Yorker, 2008

Peter Brent, The Australian ballot, Canberra Times, 2005

Andrew Gelman, Jonathan N. Katz and Joseph Bafumi, Standard voting power indexes do not work: an empirical analysis, British Journal of Political Science 34:657–674, 2004

David Goode, The advent of proportional representation in Cambridge, Cambridge (MA) Civic Journal, 1998

Douglas J. Amy, A brief history of proportional representation in the United States, Mount Holyoke College, 1997

Lani Guinier, The case for cumulative voting, WBAI Net (New York, NY), 1994

John J. Bartholdi, III, and James B. Orlin, Single transferable vote resists strategic voting, Working Paper No. 3221-90-MS, Sloan School of Management, Massachusetts Institute of Technology, 1990

Electoral Reform with the Massachusetts Ballot Reform Act and New York (Saxton) Bill, Economic Tracts 24, Society for Political Education (New York, NY), 1889

Chump No. 2 returns as anti-Semite

Completing his circle of hatred joining with the Ku Klux Klan–complementing his attacks on black and Spanish-speaking Americans, Muslims, women and the disabled–the Chump has recently gone after Jews, in a message sent from his account on a popular social medium. Reuters reporter Emily Flitter wrote a story released Saturday, July 2, describing a scurrilous Presidential campaign message–soon published by the Washington Post, the San Diego Jewish World, the Tri-County Sun Times of Houston, the London Daily Mail, the Jerusalem Post, the Indian Express and other news media worldwide.

Hillary Clinton attacked in anti-Semitic smear

TrumpClipClintonCorrupt20160702
Source: message from Donald Trump, nominee for President

The slur on Hillary Clinton featured a Star of David outline, emblazoned with “Most Corrupt Candidate Ever!” and hovering over a scattering of United States currency. To anyone familiar with centuries of pogroms and anti-Semitic poison, an implied linkage was stark: Clinton, Jews, money and corruption.

According to Ms. Flitter, the recent attack on Hillary Clinton was a “reminder of the unrestrained side of Trump…the candidate has mocked a disabled newspaper reporter, referred to undocumented immigrants from Mexico as ‘rapists’ and recently pointed to a black man in the crowd at one of his rallies and called him ‘my African-American.’” After a brief intermezzo, turning to teleprompters and scripted speeches, Chump No. 2 appears back in force: racist, narcissist and grossly anti-Semitic.

– Craig Bolon, Brookline, MA, July 3, 2016

Postscript: The Chump saying he meant it, neo-Nazis going on a rampage and spokespersons for Jewish organizations rejecting the Chump. Around two weeks before his party’s national convention, he still had no campaign. Like sexual aggression, his narcissism is usually an incurable sickness. July 8, 2016


Emily Flitter, Reuters, Trump tweet that blasts Clinton as corrupt includes the Star of David, Washington Post, July 2, 2016

Richard North Patterson, Too sick to lead: the lethal personality disorder of Donald Trump, Huffington Post, June 3, 2016

Jewish Virtual Library, Protocols of the Elders of Zion, a nineteenth-century anti-Semitic libel

Jill Colvin, Associated Press, Trump’s star tweet appeared on a white supremacist site, Washington Post, July 3, 2016

Jenna Johnson, Trump says campaign shouldn’t have deleted image circulated by white supremacists, Washington Post, July 6, 2016

Jose A. DelReal and Julie Zauzmer, Trump’s vigorous defense of anti-Semitic image a ‘turning point’ for many Jews, Washington Post, July 8, 2016

Craig Bolon, Chump No. 3, plain vanilla creep, Brookline Beacon, June 16, 2016

Chump No. 3, plain vanilla creep

The briefly visible Chump No. 3 soon lapsed into the racist and narcissist Chump No. 2 and likely harbors, out of easy sight, Chump No. 1–the business bully. It was No. 1 who tried to grow a fortune, but he was not great at business. As one observer found, the Chump would have a bigger fortune today if he had been able to stash his huge inheritance in an indexed mutual fund during the 1970s and had left it alone.

Incompetent: While some simply call him a sleazebag, the Clinton campaign will likely crunch the Chump’s most vulnerable features: that is, sucking into his own malarkey, casually lying in statement after statement and blowing his cool over minor slights. Well after the Chump grabbed the Republican nomination earlier this year, reporters at the New York Times finally explored a long history of bluster, poor business judgment and mismanagement.

While the worst burdens of his business disasters fell on vendors, lenders and investors, the Chump lost his sprawling gambling empire in Atlantic City, NJ. From four major properties, only the Taj Mahal remains open hoisting the Chump’s name. That is his in name only–now owned by others under bankruptcy controls. The Chump claims he made out big-time anyway, extracting bonuses and fees. He says he would manage the United States the same way. Apparently he means to treat allies of all sorts like suckers.

Previews: Some find no parallels among U.S. Presidents and major-party candidates. Actually, there are several. Within living memory, Nixon surely comes closest. Lacking the public swagger of the Chump, he shared the petty views, casual bigotry, frequent lies, moral collapse and greed. Far more than Goldwater, the 1964 candidate, it was Nixon–the only President to resign the office–who led his party to displace Dixiecrats as fountains of racism.

Long ago, Jackson shared both the swagger and the racism. He treated U.S. government like his private farm. A contemporary defender of the practices coined a phrase: “To the victor belong the spoils.” [U.S. Sen. William Marcy (D, NY), 1832] After Nixon, however, as Richard Cohen described in the Washington Post, Republicans “welcomed [racists]…creationists, gun nuts, anti-abortion zealots, immigrant haters…and homophobes.” The Party of Lincoln becomes the latter-day Party of the Chump.

Ordinary: What stands to hold back the Chump is recognition that he was a rich kid who grew into a plain vanilla creep. Except for a sense of entitlement, there is little outside the ordinary. The Chump never went to public schools and never served in the military. He was expelled from Kew-Forest, a private school, even though his dad was on the governing board. He went to Fordham and then Penn, neither a marked sign of great distinction. He won no honors and earned no further degrees. Then he worked in his dad’s business.

According to a first-person report, in the early 1970s the Chump picked up a date in a white Cadillac with a car phone–then enormously expensive–but he had no money to pay the steakhouse tab in Brooklyn, sponging off his date and never paying anything. While the Chump worked for his dad in rental housing, the company was targeted with a federal civil-rights lawsuit for refusing to rent to African-Americans, a violation of the Fair Housing Act. According to a news medium, the Chump hired Roy Cohn as a lawyer, the well known ally of former Sen. Joe McCarthy and J. Edgar Hoover. His defense failed; he was forced into an anti-discrimination agreement.

– Craig Bolon, Brookline, MA, June 16, 2016


Willa Frej, GOP operative lashes out at party, calls Trump ‘Cheeto Jesus’ in epic tweetstorm, Huffington Post, June 16, 2016

Benjy Sarlin, Katy Tur and Ali Vitali, Donald Trump does not have a campaign, NBC News, June 15, 2016

David Cay, New evidence Donald Trump didn’t pay taxes, Daily Beast, June 15, 2016

Paul Farhi, Trump revokes Post press credentials, Washington Post, June 13, 2016

Russ Buettner and Charles V. Bagli, How Donald Trump bankrupted his Atlantic City casinos but still earned millions, New York Times, June 12, 2016

Candy Woodall, Pennsylvania business nearly collapsed while Trump made millions bankrupting his Atlantic City casinos, Harrisburg (PA) Patriot-News, June 12, 2016

Trump University documents reveal Trump’s sleazebag marketing, Reverb Press, June 1, 2016

Steve Benen, Trump on his tax rate: ‘None of your business’, NBC News, May 13, 2016

David Smith and Julian Borger, A president Trump fills world leaders with fear: ‘It’s gone from funny to really scary’, Manchester Guardian (UK), April 28, 2016

David E. Sanger and Maggie Haberman, In Donald Trump’s world view, America comes first and everybody else pays, New York Times, March 27, 2016

Reena Flores, What Donald Trump’s “America First” vision of the world looks like, CBS News, March 26, 2016

Glenn Kessler, All of Donald Trump’s Four-Pinocchio ratings, in one place, Washington Post, March 22, 2016

Ben Mathis-Lilley, A cornered Donald Trump…deceptive sleazebag, Slate, March 4, 2016

Ed O’Keefe, Mitt Romney slams ‘phony’ Trump: He’s playing ‘the American public for suckers’, Washington Post, March 3, 2016

Dallas Frankline, “His promises are as worthless as a degree from Trump University”–Mitt Romney delivers a speech on Trump, KFOR (Oklahoma City, OK), March 3, 2016

Jeet Heer, How the Southern Strategy made Donald Trump possible, New Republic, February 18, 2016

Robert O’Harrow, Jr., Trump’s bad bet: How too much debt drove his biggest casino aground, Washington Post, January 18, 2016

Shirish V. Dáte, Donald Trump could have been even richer by doing nothing, National Journal, September 2, 2015

Valerie Strauss, Donald Trump really went to an Ivy League school, Washington Post, July 17, 2015

Richard Cohen, Nixon’s lasting damage to the GOP, Washington Post, August 4, 2014

Lucinda Evans, How Dixiecrats became Republicans, Topeka (KS) Capital-Journal, February 5, 2013

Craig Bolon, Chump No. 3 sounds like No. 2, Brookline Beacon, June 11, 2016

Chump No. 3 sounds like No. 2

Given a sardonic sense of humor and a Democratic persuasion, there’s five months of entertainment to go: Three Stooges in One. The primaries are over. Who will show up now at Stage Right? Will it be the business bully? The sick hustler? Or some other Chump No. 3?

At first outing–Richmond Coliseum the evening of Friday, June 10–it was back to Chump No. 2: racist and narcissist. The crowd didn’t show–three-quarters of 12,000 seats empty. However, no apologies for the Mexico border wall. It will be “strong, powerful and beautiful…We’re going to win so much…We’re going to win at every single level.”

Counter-demonstrators marched in the streets. Banners read, “Build kindness, not walls” and “Take your border wall & shove it!” Republicans lost more support from Spanish-speaking voters, if there were any left to lose.

– Craig Bolon, Brookline, MA, June 11, 2016


Michael Campbell, Trump energizes supporters as protesters march through downtown Richmond, WWBT (Richmond, VA), June 10, 2016

Peter Wehner, The indelible stain of Donald Trump, New York Times, June 12, 2016

Matea Gold, Karoun Demirjian and Mike DeBonis, Trump’s ‘Pocahontas’ attack leaves fellow Republicans squirming again, Washington Post, June 10, 2016

Russ Buettner and Charles V. Bagli, How Donald Trump bankrupted his Atlantic City casinos but still earned millions, New York Times, June 12, 2016

Philip Rucker, Romney warns Trump’s rhetoric could lead to ‘trickle-down racism’, Washington Post, June 10, 2016

Trash metering: cheaper by the barrel

A regular meeting of the Board of Selectmen started at 6:15 pm in the sixth-floor meeting room at Town Hall. The main business of the evening finally began an hour and a quarter later: a public hearing on trash metering, repeatedly postponed for more than a year.

Melvin Kleckner, the town administrator, seemed to suggest he had played some role in the plans, saying his administration was “still early in the process.” While that might be, Andrew Pappastergion, the public works commissioner, had described the elements at a public meeting two years earlier: standard-sized trash carts replacing a wobbly approach that charges every participating household the same fee for unlimited refuse collection and disposal.

The gist of the new plan is that households can sign up for trash carts of different sizes and pay annual fees for weekly collection and disposal. They can also buy standard plastic bags, as many as they need, for either regular or overflow refuse collection. Bags are more costly to handle, so proposed fees per pound of refuse put out in bags are higher than fees for using standard trash carts. Mr. Pappastergion did not give a starting date for trash metering, saying it was still at least a year away.

The most recent twists on the plan were on display at the hearing: four sizes of standard trash carts with capacities rated at 18, 35, 65 and 95 gallons–all to be supplied by the town. Starting about five years ago, Brookline has been supplying bright blue plastic carts for recycling. They were originally all 65-gallon capacity. More recently, 35-gallon and 95-gallon capacity has been available on request. The 18-gallon cart is a new member of the line. It has about the same girth as the 35-gallon cart but is not as tall.

Refuse service fees, cheaper by the barrel: According to Mr. Pappastergion, several other communities in eastern Massachusets now operate refuse and recycling collections in similar ways. However, the rubber meets the road in pricing. The fees now proposed make refuse services much cheaper by the barrel, rather than by the bag.

type refuse, lb fee–weeks annual lb annual fee fee per lb
big bag 25 $3–1 1300 $156 $0.120
18-gal 24 $130–52 1248 $130 $0.105
35-gal 48 $180–52 2496 $180 $0.072
65-gal 87 $260–52 4524 $260 $0.057
95-gal 125 $340–52 6500 $340 $0.052

Proposed fees are also much higher for the smaller trash carts: about twice as much per pound for the 18-gallon carts as compared with the 95-gallon carts. Mr. Pappastergion did not provide the comparisons that the Beacon shows, above, and he did not offer any explanation of pricing. Multifamily buildings with space for the larger carts will pay much less for refuse services than buildings that lack enough space. A typical 3-family building would pay less yet get a bigger service quantity by using 65-gallon rather than 35-gallon trash carts:

size number carts annual fee annual lb
35-gal 3 $540 7488
65-gal 2 $520 9048

Public comments: Sean Lynn-Jones, a Precinct 1 town meeting member who chairs the Advisory Committee, urged that Brookline “maintain flexibility” and consider individual circumstances. Kenneth Goldstein, who stepped off the Board of Selectmen a year ago, recounted his experience using a single, 35-gallon trash cart for his family of four. They get along with it, he said, “It works.”

Nomi Burstein of Garrison Road told a different story. Space in her neighborhood is very limited, she said, not enough even for current recycling carts: “Last year we stopped recycling during the winter.” Susan Granoff of Vernon Street, a Precinct 7 town meeting member, agreed. “Lack of storage space,” she said, “is a big problem.” Anne McNulty of Claflin Road said her street is “littered with blue.” Brookline recycling carts are being kept in front of buildings for lack of space to store them elsewhere.

Ms. McNulty’s neighbor Harry Friedman, a Precinct 12 town meeting member, said Claflin Road neighbors will hold an exhibit on their street next Sunday afternoon, May 22, showing how difficult a situation the town-supplied carts are creating for their urban environment. Mr. Friedman sponsored Article 17 at the annual town meeting that starts Tuesday, May 24. It proposes a resolution seeking an “exception system” where use of trash carts would be “impractical.”

– Beacon staff, Brookline, MA, May 18, 2016


Warrant report for the 2016 annual town meeting, Town of Brookline, MA, May 10, 2016

Department of Public Works, Hybrid pay-as-you-throw (trash metering) proposal, Town of Brookline, MA, May 17, 2016

Public Works: question time and complaints, Brookline Beacon, May 15, 2014

Craig Bolon, Recycling makes more progress without trash metering, Brookline Beacon, April 11, 2014

Opioid overdose deaths: Brookline reporting low hazards

Opioid overdose deaths, caused by both prescription painkillers and illegal narcotics, have grown rapidly in the past few years. According to recent articles in the Boston Globe, the problem is particularly severe in New England, including Massachusetts. However, community burdens are grossly unequal.

A recent Globe article indicated that some small towns, including Aquinnah on Martha’s Vineyard, have major problems. However, the Globe lacks math skills. Its reporters and editors failed to consider whether data they presented had statistical significance. For Aquinnah, numbers of events were so small that there was little significance. Lack of significance occurred with 254 of the 351 Massachusetts cities and towns.

Rates of opioid overdose deaths varied greatly among the 97 communities for which data had strong statistical significance. For the four years of data now available, calendar 2012 through 2015, the statewide average was 162 deaths per year per million residents. Communities can be compared by the differences between their opioid overdose death rates and the state average. Expressing those differences in units of confidence intervals gives a statistically weighted picture when comparing communities.

Considered that way, the three least hazardous communities were Brookline, Needham and Wellesley:

Community 4-year rate 95%-confidence interval difference, in intervals
Brookline 17 17.0 -8.5
Needham 9 26.0 -5.9
Wellesley 9 26.8 -5.7

From 2012 through 2015, Brookline experienced a rate of 17 opioid overdose deaths per year per million residents–from a total of 4 events. Statistics gave 17.0 as a 95%-confidence interval for its rate. The Brookline rate was 8.5 confidence intervals lower than the state average: a very significant difference.

At the other end of the scale, the three most hazardous communities were Lynn, Quincy and New Bedford:

Community 4-year rate 95%-confidence interval difference, in intervals
Lynn 357 62.9 +3.1
Quincy 333 60.1 +2.9
New Bedford 329 58.8 +2.8

From 2012 through 2015, Lynn experienced a rate of 357 opioid overdose deaths per year per million residents–from a total of 125 events. Statistics gave 62.9 as a 95%-confidence interval for its rate. The Lynn rate was 3.1 confidence intervals higher than the state average: a very significant difference.

Massachusetts opioid overdose deaths concentrated in 17 high-hazard communities: Lynn, Quincy, New Bedford, Fall River, Worcester, Lowell, Haverhill, Brockton, Everett, Revere, Weymouth, Pittsfield, Taunton, Malden, Wareham, Stoughton and Carver. With 18 percent of the state population, they experienced 33 percent of the events.

– Craig Bolon, Brookline, MA, May 4, 2016


Lenny Bernstein, Deaths from opioid overdoses set a record in 2014, Washington Post, December 11, 2015

Matt Rocheleau, Opioid overdose deaths by Massachusetts town from 2012 to 2015, Boston Globe, May 3, 2016

Opioid overdose deaths in Massachusetts communities, 2012-2015, Brookline Beacon, May 4, 2016

Civil rights lawsuit: New York Times and its officers charged

In news reported cautiously in the U.S. but strongly in Britain, on Thursday, April 28, the New York Times and two of its senior officers were charged with discrimination by age, sex and race, in a class-action lawsuit filed by a distinguished New York City law firm: Wigdor LLP, specializing in employment law. The clearest early news article appeared in the Guardian newspaper the same day: Rupert Neate, New York Times boss sued over alleged ageist, racist and sexist hiring practices.

Douglas H. Wigdor, lead counsel, is a former founding partner of Thompson Wigdor & Gilly. The recently filed case–Grant, et al. v. The New York Times Company, et al., no. 2016-cv-03175–is pending in the U.S. District Court for the Southern District of New York. The 61-page complaint document is available on the Web from a free archive of documents.

The senior New York Times officers cited as defendants are Mark Thompson, named chief executive officer in 2012, and Meredith Levien, named chief revenue officer the following year. They are both named as defendants in their “individual and professional capacities,” and a jury trial is demanded.

In support of discovery, Wigdor’s federal court filing seeks “a list of all members of the Age, Race and Gender Classes, including all last known addresses, telephone numbers and e-mail addresses of each such person, so Plaintiffs can give such persons notice of this action and an opportunity to make an informed decision about whether to participate in it.” The Guardian estimated a “multimillion-dollar” potential in penalties.

The Times has denied allegations in the lawsuit. Eileen Murphy, a spokesperson, reportedly said the complaint contains “recycled, scurrilous and unjustified attacks” on the news organization and its leaders. She claimed that the “suit is entirely without merit, and we intend to fight it vigorously in court.”

Plaintiffs in a “hostile work environment”: The initial plaintiffs are Ernestine Grant and Marjorie Walker, who have worked for a combined 25 years in the advertising department at the Times. Both are described as black women, aged 62 and 61 respectively. In the complaint document, Wigdor says new patterns of discrimination took hold after Mark Thompson, former head of the BBC in Britain, became chief executive at the Times in 2012.

According to the complaint, Ms. Walker encountered a “hostile work environment” with Amanda Smith, a new supervisor hired by Meredith Levien, the company’s “chief revenue officer”–a newly created position–hired by Mr. Thompson, the new chief executive. Formerly an account manager on the “high-revenue Fashion and Jewelry team,” Ms. Walker was transferred to the Help Wanted sector–”a clear demotion.” WPIX in New York City interviewed Ms. Grant and Ms. Walker, quoting Ms. Walker as saying, “We have relationships and a track record of sales, which I am an example of…[the work environment] said to us we were not wanted and we would be pushed out.”

Previous patterns of discrimination: The lawsuit alleges current patterns of discrimination said to resemble previous ones reported at the BBC while Mr. Thompson led that organization.

• “Mr. Thompson was involved in a highly publicized BBC scandal regarding a decision to bury an expose of child sex abuse allegedly committed by one of the BBC’s most well-known personalities, Jimmy Savile.”

• “Following a slew of allegations of age and gender discrimination at the BBC, Mr. Thompson admitted that during his tenure, the BBC had problems with the way it treated older women.”

According to the complaint, “Mr. Thompson…was embroiled in a scandal that saw the [BBC] squash an important piece of investigative journalism. That piece would have revealed one of the network’s most well-known former personalities, Jimmy Savile, to be a serial pedophile.”

The complaint cites several examples of gender discrimination at the BBC under Mr. Thompson. It says that he “acknowledged that these incidents had served as a ‘wake up call’ and admitted that his company had an institutional problem regarding the treatment of senior and experienced women.”

• “In November, 2008, four female BBC presenters of the…show Countryfile–Michaela Strachan, Charlotte Smith, Miriam O’Reilly and Juliet Morris–all in their 40s and 50s, were dismissed from the program while male hosts John Craven and Adam Henson were kept on.”

• “In July 2009, then 66-year-old Arlene Phillips, a former theater choreographer, was replaced on the Strictly Come Dancing panel by Alesha Dixon, a 30-year-old pop star. The male judges, whose ages ranged from 44 to 81, were all retained.”

A report of abusive treatment: The complaint alleges that at the BBC, “Mr. Thompson was nothing short of an abusive supervisor.” One item describes an encounter with staffer Anthony Massey, who “approached Mr. Thompson to discuss a pending story,” saying that “before Mr. Massey could say a word, Mr. Thompson ‘suddenly turned, snarled and sank his teeth into [Mr. Massey's] left upper arm.’…” The item quotes a newspaper description of the incident: Richard Kay, The day I was bitten by BBC boss, London Evening Standard (UK), March 24, 2005.

Passing the torch: The lawsuit alleges that Mr. Thompson has sought to embed discrimination at the New York Times by hiring managers who support and encourage it, saying, “Mr. Thompson used his sway as CEO to hire in and reward managers who would carry out his vision of the ideal workforce.” Co-defendant Meredith Levien is cited as a prime example, “Mr. Thompson’s first major appointment of a business-side executive.”

According to the complaint document, “At the beginning of her tenure at the Times in 2013, Ms. Levien made it very clear that she was looking for a very particular workforce, one that was filled with ‘fresh faces,’ i.e., younger employees without families…who were white. Ms. Levien’s speech to various Times personnel also was shockingly rife with racially charged innuendos, such as references to the need for employees to be ‘people who look like the people we are selling to.’ Ms. Levien’s remarks gave cover to and outright endorsed increasing disparate treatment against older, female and/or nonwhite employees….”

The recent class-action lawsuit follows at least two other individual lawsuits charging discrimination at business departments of the Times, begun during Mr. Thompson’s leadership.

• “Tracy Quitasol, a 51-year-old Asian-American woman and Executive Director who worked at the Times for nine years, alleged in her federal discrimination complaint against the Times that soon after Ms. Levien became her supervisor, the ‘vast majority’ of the around 30 older (and generally racial/ethnic minority) employees were targeted by Ms. Levien….”

• “Arielle Davies, a Director in the Advertising division of the Times, also came under the supervision of Defendant Levien in or around August, 2013. Ms. Levien…in her first conversation with Ms. Davies, asked whether Ms. Davies had children and, upon learning that Ms. Davies did not, remarked, ‘Good, you should wait.’…[Ms. Davies] was terminated, purportedly in connection with a reduction-in-force…she was the only employee in her department affected….”

According to the recent lawsuit, discrimination at the Times has included “the unlawful denial of promotions, compensation commensurate with younger white employees and equality with respect to the terms and conditions of their employment, including, in many cases, the termination of such employment…generally refusing to provide equal terms and conditions of employment for older, Black and/or female employees.”

Enforcement process: In the federal court filing, Wigdor describes other enforcement process underway against alleged discriminatory practices at the New York Times. A complaint to the Equal Employment Opportunity Commission is alleging violations of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967. The New York City Commission on Human Rights and the Office of Corporation Counsel of the City of New York are also involved.

The complaint against the New York Times says that “diversity has been subverted at every turn throughout the organization….” It cites the abrupt terminations of Janet Robinson as chief executive in 2011 and of Jill Abramson as executive editor in 2014, the first women to hold either position. Both were replaced by men. In 2013, it says Ms. Levien “evaluated” about 30 employees, claiming that “nearly all of those who were over the age of 40 and were people of color soon left their employment with the Times.”

Pursuit of class actions greatly increases potential penalties for the New York Times. Illegal practices of racial discrimination alleged include “paying Black employees…less than similarly situated white employees, failing to promote Black employees…in favor of similarly or less-qualified white employees and failure to prevent, address, properly investigate and/or take remedial action regarding discrimination against Black employees.”

Illegal practices of age discrimination alleged include paying older employees…less than similarly situated young employees, failing to promote older employees…in favor of similarly or less-qualified younger employees and failure to prevent, address, properly investigate and/or take remedial action regarding discrimination against older employees.

Illegal practices of gender discrimination alleged include paying female employees…less than similarly situated male employees, failing to promote female employees…in favor of similarly or less-qualified male employees and failure to prevent, address, properly investigate and/or take remedial action regarding discrimination against female employees.

Wigdor and the plaintiffs are seeking remedies for violations of the federal Civil Rights Act of 1866, Civil Rights Act of 1964, Fair Labor Standards Act, Age Discrimination in Employment Act and Equal Pay Act, as well as the state Equal Pay Law and Human Rights Law. The lawsuit alleges that some “actions were intentional, done with malice and/or showed a deliberate, willful, wanton and reckless indifference to Plaintiffs”–seeking additional “awards of punitive damages.” The recent federal complaint also asks for “an injunction and order permanently restraining Defendants from engaging in such unlawful conduct.”

– Beacon staff, Brookline, MA, April 29, 2016


Sydney Ember, Suit accuses New York Times executives of bias, New York Times, April 29, 2016

Complaint, Grant, et al. v. The New York Times Company, et al., U.S. District Court for the Southern District of New York, Case no. 2016-cv-03175, filed April 28, 2016

Rupert Neate, New York Times boss sued over alleged ageist, racist and sexist hiring practices, Manchester Guardian (UK), April 28, 2016

Mario Diaz, Current New York Times employees speak with PIX11 regarding discrimination they filed against paper, WPIX (New York, NY), April 28, 2016

Emma Whitford, New York Times executives sued for alleged race, gender, age discrimination, The Gothamist (New York, NY), April 28, 2016

Terrence McCoy, How BBC star Jimmy Savile allegedly got away with abusing 500 children and sex with dead bodies, Washington Post, June 27, 2014

Steven Swinford, Former BBC boss Mark Thompson ‘lied’ over Savile evidence, Nick Pollard claims, London Telegraph (UK), December 11, 2013

Tom McCarthy, Mark Thompson spared heavy criticism in BBC Jimmy Savile report, Manchester Guardian (UK), December 19, 2012

Richard Kay, The day I was bitten by BBC boss, London Evening Standard (UK), March 24, 2005

Babcock Street: a fake bicycle track

Staff of the Transportation Division in Public Works have come up with plans for a so-called “bicycle track” on Babcock Street. A classic bicycle track is a fully separated path, similar to much of the 40-year-old Paul Dudley White path around the lower Charles River. Shabby Brookline plans were shown at a public meeting in Town Hall on Wednesday, March 9.

Babcock Street is much too narrow to insert a bicycle track without some other change. The two plan variants show most of Babcock Street becoming one-way for motor vehicles, from the north boundary of Fire Station 5 toward the south side of Commonwealth Avenue. The proposed bicycle track would use street width now occupied by southbound traffic on Babcock Street.

One variant leaves short, two-way segments between Freeman Street and Manchester Road and between Commonwealth Avenue and Winslow Road–producing four changes between one-way and two-way in less than half a mile. Both variants require bicyclists to cross an open, unprotected segment of Babcock Street near the fire station.

Who ordered that? Actually, no one did. The plans developed during a review of street patterns triggered by a project to rebuild Babcock Street, replacing crumbling concrete pavement. There was no coherent strategy and hardly any structural thinking when choosing Babcock Street for Brookline’s first major, urban bicycle track. It was not an obvious town priority.

At Bicycle Advisory Committee last summer, Babcock Street proved merely a convenient target of opportunity, located in a neighborhood where members of the committee did not live. Over the years, that committee has lapsed into a claque of mostly single-interest “groupies” who collaborate to select a replacement for a member who leaves. The practice has left no diversity of outlook and little broad-based community engagement.

Neither plan variant provides a fully separated path. Instead, both merely show soft pavement raised a few inches above street level, leaving bicyclists exposed to trucks and cars. No guard rails or other physical barriers have been planned. Trucks and cars could easily climb the beveled edges of the track. Northbound bicycle riders would have northbound truck and car traffic approaching from behind, out of direct sight.

At the Wednesday meeting, bicycle promoters claimed the proposed track would improve the neighborhood. It would appeal, they said, to youngsters riding tricycles and scooters, to people using wheelchairs and to older bicycle riders. However, coming mostly from people living outside the neighborhood, those sentiments lacked appeal. No one could imagine a responsible parent allowing a child onto the proposed track.

Instead, the proposed track–burdened with gross, obvious hazards–looked likely to discourage anyone but the “road warriors” who are willing to use the current, dangerous painted bicycle lanes in the open streets. For them, it would likely become no more than a luxury hood ornament, subsidizing private vanity at public expense. Rather than a real bicycle track, it’s a TINO: a Track In Name Only.

Comparisons: Fortunately, there are nearby comparisons, showing how some hazards of the proposed bicycle track have been reduced elsewhere. The divided bicycle track segment on Vassar Street in Cambridge, between Memorial Drive and Massachusetts Avenue, opened several years ago. The street schematic has the following elements, from north to south:

• north-side walkway
• one-way bicycle track, heading west
• tree berm
• high curb, north side
• parking lane, heading west
• vehicle lane, heading west
• vehicle lane, heading east
• high curb, south side
• tree berm
• one-way bicycle track, heading east
• south-side walkway

Vassar Street bicycle lanes have dark paving and gray edge blocks, totaling about 6 ft wide starting about 4 ft from curbs. Walkways, also about 6 ft wide, have light paving blocks and are farthest from the roadway. Bicycle lanes have painted, federal-standard bicycle markings and painted arrows. Spans between bicycle lanes and curbs include trees in some portions. However, there are no traffic signals.

Separation from motor vehicle lanes, tree berms, parking lanes and high curbs all contribute to safety. None of those major safety features have been planned for Babcock Street, even though they need not subtract from street width. The features are not some kind of “Cambridge pattern.” Across Massachusetts Avenue, running toward Main Street, Cambridge narrowed the spacings and removed most tree berms and parking lanes. That part of the Vassar Street track has seen several serious bicycle crashes, including at least one fatality.

A newer Cambridge bicycle track, opened around a year ago, extends along the north side of Western Avenue from Central Square to Memorial Drive. Like the Babcock Street proposal, it has a two-way track on one side of the street, with the following schematic elements, from north to south:

• north-side walkway
• two-way bicycle track
• tree berm
• high curb, north side
• parking lane, heading west
• vehicle lane, heading west
• vehicle lane, heading west
• high curb, south side
• tree berm
• south-side walkway

Like the main portion of the Vassar Street bicycle track, the Western Avenue track uses contrasting pavements and positions high curbs, tree berms and parking lanes to protect bicyclists. Traffic signals include elements for bicycles, pedestrians and motor vehicles. None of those major safety features have been planned for Babcock Street. While it will take several years to measure effects on safety, the care and thoughtfulness put into the Western Avenue design are obvious. They show the current Babcock Street plan as a TINO: a Track In Name Only.

A way forward: Current plans for a fake bicycle track on Babcock Street should be shelved. They violate responsibilities for public safety. Clearly Brookline lacks the technical skills and the seasoned, mature leadership that would be needed for such a project. Rather than waste more resources on project plans, the town should start recruitment efforts.

– Craig Bolon, Brookline, MA, March 12, 2016


Craig Bolon, Brookline bicycle crashes: patterns and factors, Brookline Beacon, August 16, 2014

Molly Laas, Cambridge bike lane death trap, Boston Phoenix, July 11, 2002

Software magic: epic bungling of healthcare.gov

In October, 2013, New York Times reporters Robert Pear, Sharon LaFraniere and Ian Austen first reported gross conflicts and disorganization among contractors developing the major U.S. health-care Web site, healthcare.gov, and their supervisors who were federal government employees. While the Times described problems soon after a crisis became public, its reporters did not explain how the problems developed.

Three weeks later, Washington Post reporters Amy Goldstein and Juliet Eilperin traced them to blunders committed by lawyers who were serving as government officials but had no significant operations backgrounds, technical competence or business experience–their authority underwritten directly by Pres. Obama.

Protracted failures of the U.S. healthcare.gov Web site became a classic case of the “software runaway,” memorialized about 20 years ago in the like-named book by Robert L. Glass. Recently, the inspector general for the U.S. Department of Health and Human Services provided a legal-eye view of this epic disaster.

Within the industry, a disease had been recognized by the late 1960s, with crashes of early airline reservation systems as the major, public danger signs. After a few years, remedies were known, and software professionals were addressing issues when clients and employers allowed them the time and responsibility to do that. The Software Engineering Institute at Carnegie-Mellon University gradually created a new profession: “software architect.”

However, the lure of “coding” as a source of instant magic remained amazingly seductive and has continued to undermine efforts. Project failures remain common, although few become as dramatic as the one that almost capsized the federal Affordable Health Care program. The root causes are usually the same: muddlers in charge of projects–lacking strong skills and strong character. Muddlers can be pleasant to work with and are often successful in some roles. Developing new software is not one of those, nor is designing a new bridge.

Assigning blame: As Daniel Levinson, inspector general for Health and Human Services, wrote, core elements in the recent disaster were:
Poor leadership: “HealthCare.gov lacked clear project leadership to give direction and unity of purpose, responsiveness in execution and a comprehensive view of progress.”
Poor management: “[The office] mismanaged the key…development contract, with frequent changes, problematic technological decisions and limited oversight of contractor performance.”

The software, coordinating transactions between millions of users and hundreds of back-office systems, would have been a nightmare on a sunny day. As usual, the foul-ups began at the beginning: writing requirements. The approach in nearly all durable efforts has been to start modestly and build out in steps. Disregarding readily found advice, spun from a long history of painful failures, government nitwits bought into the aptly named “big bang” approach: launch everything–all at once–and make it slick and shiny, and thus very complicated.

Chief Muddler at Health and Human Services was Marilyn Tavenner, the former administrator of the Centers for Medicare and Medicaid Services–not a “dear, sweet woman” but by training a nurse and street-wise organizer. Trying to direct technology, she was out of her depth. She lacked the sense to find and hire someone who could do the job.

While manufacturing a disaster, she had plenty of help from White House nitwits. They had only dreams of sharing limelight in a splendid performance. They had no industry backgrounds and no role in making anything actually work. Up against those would-be luminaries, Ms. Tavenner lacked the character to say “No,” and she lacked the skills to see she was merely rearranging deck chairs on the Titanic.

Remedies and wreckers: Mr. Levinson, the inspector general, seems to think remedies are obvious. He calls for “clear leadership.” However, his approach of “project leaders” would not help when designated leaders were also nitwits or muddlers. He is on sounder ground seeking “factors of organizational culture” that might help. However, as a career bureaucrat and a lawyer, Mr. Levinson does not seem to understand just what those factors might be or how to get them.

No major news source has yet described how a senior Administration official behind the blunders, Nancy-Ann Min DeParle–former director of the Office of Health Reform at the White House and from 2011 to 2013 Pres. Obama’s deputy chief of staff for policy–was allowed to quit the government before the health-care reform program began operating.

An ambitious person, regarded as a health-care policy expert, Ms. DeParle had served in prominent positions in the federal government and the state government of Tennessee, where she spent much of her youth and graduated from college. Her most obvious blunder, failing to set and then freeze program requirements, allowed a stream of changes ordered when efforts were already gravely behind schedule.

By failing to name key perpetrators in the healthcare.gov collapse and failing to state plainly what they did wrong, Mr. Levinson, the inspector general, emulates ancient Tibetan lamas. He is spinning prayer-wheels. His report will be shelved and forgotten, as federal government lurches toward its next appointment with disaster.

– Craig Bolon, Brookline, MA, February 23, 2016


Daniel R. Levinson, U.S. HHS inspector general, CMMS management of the federal marketplace: case study, February, 2016

Amy Goldstein, HHS failed to heed many warnings that HealthCare.gov was in trouble, Washington Post, February 22, 2016

Robert Pear, Sharon LaFraniere and Ian Austen, From the start, signs of trouble in federal project, New York Times, October 13, 2013

Sharon LaFraniere, Ian Austen and Robert Pear, Specialists see weeks of work ahead on federal health-care exchange, New York Times, October 21, 2013

Amy Goldstein and Juliet Eilperin, HealthCare.gov: How political fear was pitted against technical needs, Washington Post, November 2, 2013

Robert L. Glass, Software Runaways: Monumental Software Disasters, Prentice Hall, 1997

Diversity Commission: staying the course

A regular meeting of the Diversity, Inclusion and Community Relations Commission on Wednesday, February 17, started at 6:30 pm in the Denny Room at the Brookline Health Center. Once again the agenda included review of the commission’s recent statement on institutional racism in the Brookline work force. That statement had been read by Alex Coleman, chair of the commission, at a hearing–organized as more than two hours of “public comment”–held by the Board of Selectmen on January 5.

The commission meeting attracted some notice, with Ellen Ishkanian reporting for the Boston Globe. Aside from occasional visits to the Board of Selectmen and the School Committee, since the 1970s there has rarely been a Globe reporter at a town board or commission meeting. Bernard Greene, the first African-American ever elected to the Brookline Board of Selectmen and the board’s delegate to the commission, stayed for the full duration of this meeting. At the previous meeting, he left after making a brief statement.

Disputes and lawsuits: Disputes over racism in Brookline’s work force became stronger after a federal civil rights lawsuit was filed on behalf of Brookline firefighter Gerald Alston in December, 2015. Mr. Alston had truncated a previous state lawsuit and a state civil rights complaint that were begun in hopes, so far unrealized, of settling his charges about racial mistreatment.

Racist practices had been tacit in Brookline since at least the Reconstruction era, following the Civil War. They became officially recognized concerns with creation of the former Human Relations Commission at the 1970 annual town meeting. Once tolerated practices became explicitly illegal after passage of the Civil Rights Act of 1964 [Public law 88-352], sponsored by former President Kennedy–a Brookline native–but enacted after Mr. Kennedy’s assassination and during the Lyndon Johnson administration.

While some media seem to be making sport from Brookline’s struggles–as though novel or surprising–that could be because a substantially upper-income community has been providing public exposure of situations similar to ones simmering–and sometimes boiling–in less wealthy places. Last year 12 New York City police officers filed a federal civil rights lawsuit, alleging racial targeting and arrest quotas.

According to Saki Knafo, writing in the New York Times, “The lawsuit claims that commanders now use euphemisms…pressuring officers to ‘be more proactive’ or to ‘get more activity’ instead of explicitly ordering them to bring in, say, one arrest and 10 tickets by the end of the month.” In Brookline, the town administrator was quoted, saying, “…use of sick leave and other accrued leave is carefully regulated,” after pay of a protesting black police officer had been docked.

Institutional racism: On February 17, Alex Coleman, chair of Brookline’s diversity commission, began the meeting by recalling that consensus on the commission had been to “stand by the statement” made January 5 about institutional racism but “provide additional information.” He said the January statement was “one town body expressing its opinion to another one.” Dr. Coleman noted that the commission “did not have formalized fact-finding…we don’t have the authority to do that.”

When replacing Brookline’s former Human Relations / Youth Resources Commission with its current Diversity, Inclusion and Community Relations Commission, authority to “secure the investigation of…complaints charging discrimination” was deliberately removed. A new “mission” statement was added, with an obvious effect of limiting the scope of the current commission. [previous and current Article 3.14 of Brookline general bylaws] Those changes were proposed by a committee that had been appointed by the Board of Selectmen, on which then and current board member Nancy Daly and current board member Bernard Greene served.

Commissioner Malcolm Cawthorne, an African-American Brookline native and Brookline High School history teacher, asked, “Are we going to have a statement tonight? I don’t agree we need to make a statement.” Commissioner Anthony Naro, a lawyer who works as a public defender, said, “The only benefit to a statement…is it can serve an olive branch.” Dr. Coleman recognized Martin Rosenthal, a Precinct 9 town meeting member and a lawyer, who also served on the committee that proposed the current commission bylaw.

Statements: Mr. Rosenthal presented a draft of an additional statement that he urged the commission to adopt. The intent, he said, was “to build bridges.” The January 5 statement, he claimed, contained “things that…were not factual findings but are being used that way…You won’t do well if you don’t have credibility in the whole community.” However, Mr. Rosenthal did not explain why, if he wanted the commission to conduct fact-finding investigations, he had opted to remove that authority when he was serving on the committee that proposed the current bylaw.

Mr. Greene took a hard line, as at the previous meeting, saying to commissioners, “You need to rescind the [January 5] statement…It’s not just destructive but wrong and incoherent…an embarrassment…starting out with a poke in the eye….” Like Mr. Rosenthal, Mr. Greene did not explain why, if he wanted the commission to conduct fact-finding investigations, he had opted to remove that authority when he was serving on the committee that proposed the current bylaw.

Mr. Naro responded, saying, “The commission always viewed [the January 5 statement] and presented it as an opinion…Attorneys might have tried to morph it into something else.” He described watching the January 5 hearing with his family, saying, “By the time Alex made his statement, my family were flabbergasted at what we heard…The town’s reputation was already in great disrepair…If half the [January 5] allegations were true, it’s disturbing…listening that night to all those people get up.”

Commissioner Enid Shapiro agreed, saying, “There is racism…It’s not hidden away some place…We need to pay attention to this. It’s time for us…[to be] coming forward with a description of what we might do.” Her reaction to the arguments from Mr. Rosenthal and Mr. Greene was firm. She said, “We need to move on from this discussion…We’re just becoming angrier…[We should] move beyond this discussion.”

Mr. Cawthorne concurred. “As a black man who chooses to live in the town,” he said, “being profiled…I ran into racism [growing up] at Devotion [School]…We stand by our statement, our statement that took at most one minute compared to the 1-3/4 hours before it…You walk into the shoes that were there before me.” After more discussion involving all the commissioners who were present, Ms. Shapiro and Mr. Cawthorne moved to table further review of the January 5 statement. The other commissioners agreed, in a unanimous vote.

– Beacon staff, Brookline, MA, February 19, 2016


Saki Knafo, A black police officer’s fight against the New York City police department, New York Times, February 21, 2016

Ellen Ishkanian, Brookline officials spar over ‘institutional racism’ claim, Boston Globe, February 18, 2016

Jenna Fisher, Crowd rallies at Brookline Town Hall to support officers alleging racist treatment, (Brockton, MA) Enterprise, January 12, 2016

Jenna Fisher, Brookline selectmen flee public comment on alleged racism, (Quincy, MA) Patriot Ledger, December 22, 2015

Benjamin Weiser, Class-action lawsuit, blaming police quotas, takes on criminal summonses, New York Times, May 18, 2015

Jackson Marciana, Police abuse cases forced New York City to pay $428 million in false arrest and civil rights settlements, Countercurrent News, October 19, 2014

Wesley Lowery, Only 24 percent of population, blacks in Boston make up 63 percent of stop and frisk encounters, Washington Post, October 8, 2014

Slavery to freedom: escaping from Brookline, Hidden Brookline, Town of Brookline, MA, c. 2010

Diversity Commission: messengers and victims, Brookline Beacon, January 29, 2016

Board of Selectmen: complaints of racial mistreatment, Brookline Beacon, January 27, 2016

Board of Selectmen: hearing airs racial tensions, Brookline Beacon, January 6, 2016

Civil rights lawsuit: town and individuals accused, Brookline Beacon, December 14, 2015

Advisory Committee: neighborhoods, snow, human relations, Brookline Beacon, April 30, 2014

Craig Bolon, Human relations: more than advice?, Brookline Beacon, April 26, 2014

Human Relations Youth Resources Commission: coping with changes, Brookline Beacon, April 24, 2014

Education: looking back, the “coding” wave

Illustrating the proverb that schooling means teaching the children to meet the challenges of the grandparents’ generation, President Obama has advertised a new initiative: teach “coding.” The President, who has many admirable qualities, is leaving a shabby heritage as an educational fool. His Department of Education proved, quite remarkably, coarser and meaner than the one butchered by his predecessor.

Teaching “coding” today has even less promise than teaching “auto mechanics” and “new math” in the 1960s or teaching “leather working” and “machine shop” in the 1940s. It is an invitation to become a victim of outsourcing. For most, it would be more helpful to teach the durable skills of plumbing and carpentry. The President invites comparison with Mao’s Great Leap Backward.

Arts of “coding” became highly valued in the 1960s and 1970s, during the second-generation of mainframe computers–with transistor logic and magnetic core memory–and the first generation of minicomputers. Over the next decade, ordinary “coding”–writing lines of programs–soon took a back seat to the higher arts of project management, software organization and reliability testing. That was an age when complex products of mere “coding” began to crash and burn on an epic scale. Now “coding”–within the industry–has become a low-level skill.

During the late 1970s, Brookline was romanced by “coding” visionaries–including disciples of the late Marvin Minsky at MIT–to buy into long-forgotten “Logo” technology. They promised to teach youngsters computational thinking by having them move around “turtles” on a display screen. The Advisory Commmittee discovered that more than a million dollars, in today’s money, would at best instruct a few dozen students. A potential for public embarrassment erased “Logo” from the budget.

Today, even the higher and practical arts of software development provide good jobs for only small numbers of industrial workers. The vast majority who work with computer technology engage with intermediates: software and Internet sites that are dedicated to specific tasks. A tiny population writes the software for Excel or other spreadsheets, but millions use spreadsheet technology to solve or manage business problems. Applied skills, rather than “coding,” remain broadly useful job qualifications.

– Craig Bolon, Brookline, MA, January 31, 2016


Valerie Strauss, All students should learn to code. Right? Not so fast, Washington Post, January 30, 2016

Toluse Olorunnipa, Bloomberg News, Obama: Every child must learn to code, Bangkok Post, January 30, 2016

Tania Branigan, China’s great famine: the true story, Manchester Guardian (UK), January 1, 2013

Robert L. Glass, Software Runaways: Monumental Software Disasters, Prentice Hall, 1997

Diversity Commission: messengers and victims

A regular meeting of the Diversity, Inclusion and Community Relations Commission on Wednesday, January 27, started at 6:30 pm in the Denny Room at the Brookline Health Center. The agenda included review of the commission’s recent statement on institutional racism in the Brookline work force, which was read by Alex Coleman, chair of the commission, at a public hearing held by the Board of Selectmen on January 5.

Town government, according to the commission statement, has a “culture of institutional racism” that “the Board of Selectmen…allowed.” The statement read by Dr. Coleman called on the Board of Selectmen, “as the elected leaders of the town, to exercise your responsibilities and duties, as commissioners of the Police and Fire Departments…to stamp out this culture.”

Attacking messengers: The commission’s January 27 meeting began with a statement from Bernard Greene, who is the delegate from the Board of Selectmen. Mr. Greene said his board was “actively taking steps to determine the facts” about complaints of racial mistreatment. However, he claimed the commission’s statement “has not been helpful to efforts to deal with these problems.”

Mr. Greene objected to what he called a “pathetic process that resulted in the statement.” He said he was “here to request that this commission rescind that statement and disavow it to the board and to the public.” After it does that, he said, “maybe the board can then begin to fulfill a useful role in addressing those problems.” Mr. Greene then left, saying he had “another meeting.”

Commission members had previously received a message from Joslin Murphy, the town counsel, sent by e-mail to Dr. Coleman on January 15. Ms. Murphy claimed the statement was “causing damage to the Town’s reputation as a community and employer.” She demanded “that the Commission take immediate steps to retract this statement and publicly acknowledge that it was not factually supported at the time it was made.”

Another objection to the commission’s statement circulated at the meeting, written by Neil Gordon, a Brookline constable and a Precinct 1 town meeting member. In it, Mr. Gordon said he could “find no meaningful substance behind the statement.” He asked “where the commission reviewed” employment practices of the Board of Selectmen and whether “the process by which the Board of Selectmen appointed Joslin Murphy as Town Counsel [was] tainted by a ‘culture of institutional racism’ that was allowed by that board.”

Blaming victims: Dr. Coleman described contacts with Ms. Murphy, recalling that “she was saying we had no facts supporting” the statement. However, it was delivered in the context of a two-hour public hearing including several personal descriptions of alleged racial mistreatment by Brookline employees. He recounted telling Ms. Murphy, “We look forward to working collaboratively.”

Ms. Murphy is one of several defendants in a federal civil rights lawsuit brought on behalf of a group of plaintiffs that now includes eight Brookline employees and residents. According to allegations made in this lawsuit, “…the Town of Brookline appointed a white woman with multiple relationships within the workforce, Defendant Joslin Murphy, as the town’s chief legal counsel” in 2014. [Amended complaint, paragraph 132, p. 42]

Plaintiffs in the lawsuit allege blaming victims as a theme of racial mistreatment, writing, for example, that Brookline “allowed false rumors to spread that [a plaintiff's] complaint was meritless; it encouraged [other employees] to shun and ostracize him.” [Amended complaint, paragraph 8, p. 5] In another instance, an alleged breach of confidence identified a plaintiff “as the one who had protested the use of racist language and caused [the plaintiff] to be ostracized within the department.” [Amended complaint, paragraph 19, p. 9]

Responses: With 11 of 12 members participating, the commission did not seem inclined to a change of mind about its statement. Tony Naro stated, “The way Town Counsel has addressed the Commission through [Dr. Coleman] is disrespectful…Our statement was an opinion…[Others] should not threaten us, bully us and demand that we retract the statement.” Dr. Coleman commented, “We are not a fact-finding group.” Malcolm Cawthorne said, “We stand by our statement.”

Several commission members suggested ways that the commission might describe the background of its statement, but only Sandy Batchelder proposed to reopen and possibly revise the statement. No one proposed to rescind or retract it. Kelly Race said, “We should take a vote on whether we stand by our statement…It was the opinion of the commission.”

Speaking from the audience, Frank Farlow, a Precinct 4 town meeting member and co-chair of Brookline PAX, agreed, saying, “It was the unanimous opinion of a large commission after extended discussion.” Commission members decided not to compose an immediate reply to criticisms but instead to resume reviews at their next regular meeting in February.

– Beacon staff, Brookline, MA, January 29, 2016


Statement to the Board of Selectmen on institutional racism in the Brookline work force, Commission for Diversity, Inclusion and Community Relations, Town of Brookline, MA, January 4, 2016

Letter to commission chair Alex Coleman, from Joslin Murphy, Brookline town counsel, January 15, 2016

Amended complaint and jury demand, Alston v. Brookline, Federal case 1:15-cv-13987, filed January 26, 2016

Board of Selectmen: complaints of racial mistreatment, Brookline Beacon, January 27, 2016

Board of Selectmen: hearing airs racial tensions, Brookline Beacon, January 6, 2016

Civil rights lawsuit: town and individuals accused, Brookline Beacon, December 14, 2015

Board of Selectmen: complaints of racial mistreatment

A regular meeting of the Board of Selectmen on Tuesday, January 26, started at 7:00 pm in the sixth-floor meeting room at Town Hall. Neil Wishinsky, the board’s chair, read a statement about complaints of racial mistreatment lodged by staff of the fire and police departments. While expressing concerns over the issues, Mr. Wishinsky’s statement did not mention new efforts to address them.

Civil rights lawsuit: In a document filed at the federal court in Boston on the day of the meeting, the civil rights lawsuit brought on behalf of firefighter Gerald Alston was joined by police officers Prentice Pilot and Estifanos Zerai-Misgun. Five other Brookline workers and residents–all alleging racial mistreatment–also joined: Cruz Sanabria, Juana Baez, Rogelio Rodas, Demetrius Oviedo and Deon Fincher.

The Brookline police officers rejected an offer of mediation made by Daniel O’Leary, Brookline’s chief of police, writing that “Racism cannot be mediated.” According to the officers, “The Chief and the Selectmen made promises regarding ‘zero tolerance’ for racism on the force, but we have experienced two separate occasions already where we reported these incidents and the perpetrators remain on the job, without consequence.”

The amended complaint in the lawsuit now names several Brookline staff alleged to have engaged in racial mistreatment, although it does not add them to the list of defendants. A central issue raised in the lawsuit remains an alleged “racist and unconstitutional policy” claimed to be “longstanding” in town government. Brookline’s Diversity, Inclusion and Community Relations Commission testified to the board on January 5 that the town government has “a culture of institutional racism” which “the Board of Selectmen…allowed.”

Some allegations can grow more chilling as one understands them better. For example, “Other police officers referred to [Mr. Zerai-Misgun] repeatedly as an FI, the police designation for a suspicious individual….” [Amended complaint, paragraph 18, p. 8] The abbreviation means a target of “field interrogation”–suggesting that an African-American may be targeted by race.

Complaints of racial mistreatment: An African-American member of the Diversity, Inclusion and Community Relations Commission has described, at a public meeting of the commission on December 16, how he was personally targeted. The commission meeting was attended by Bernard Greene, a member of the Board of Selectmen who is African-American. The amended complaint also recounts other incidents involving Mr. Greene.

“Following the meeting, Selectman Bernard Greene met with the Police Chief and other town officials to formulate a plan to discredit the officers’ allegations. Selectman Greene later executed that plan by sending a confidential e-mail to selected town residents…Selectman Greene intended for his e-mail to be confidentially distributed among a select group of politically active residents as part of a broader whispering campaign to discredit and smear the officers and their supporters.” [Amended complaint, paragraph 31, p. 13, and paragraph 38, p. 15]

These allegations sound at least as serious as ones directed at Stanley Spiegel, a Precinct 2 town meeting member who was named as a defendant in the lawsuit. However, Mr. Greene has not been named as a defendant. The Brookline Department of Public Works and Office of Human Resources are implicated in other incidents described in the amended complaint.

“Deon Fincher was hired by the Town of Brookline as a laborer in 2009…Mr. Fincher was the only Black worker in [the] sanitation division…All the teams alternated between driving and collecting trash, except for one…On Mr. Fincher’s team, Mr. Fincher threw trash full time…In 2010, he injured his shoulder and required an operation…Mr. Fincher complained that the repetitive throwing motion was damaging his shoulder…The Town’s Human Resources director refused to assign Mr. Fincher another job…The head of the division…was hostile to Mr. Fincher when he attempted to assert his contractual rights. Mr. Johnson yelled at Mr. Fincher for requesting a union representative. White employees did not receive the same hostility.” [Amended complaint, paragraphs 87-96, pp. 29-31]

Sandra DeBow-Huang, director of the Office of Human Resources, has been named as a defendant in the civil rights lawsuit. Kevin Johnson, the highway, sanitation and fleet maintenance director in the Department of Public Works, has not been named as a defendant.

– Beacon staff, Brookline, MA, January 27, 2016


Prentice Pilot and Estifanos Zerai-Misgun, Racism cannot be mediated, statement to Brookline Board of Selectmen, January 26, 2016

Amended complaint and jury demand, Alston v. Brookline, Federal case 1:15-cv-13987, filed January 26, 2016

Memorandum in support of partial motion to dismiss, Alston v. Brookline, Federal case 1:15-cv-13987, filed January 12, 2016

Complaint and jury demand, Alston v. Brookline, Federal case 1:15-cv-13987, filed December 1, 2015

Board of Selectmen: hearing airs racial tensions, Brookline Beacon, January 6, 2016

Civil rights lawsuit: town and individuals accused, Brookline Beacon, December 14, 2015

Federal civil rights lawsuit: motions to dismiss

Lawyers representing the Town of Brookline and the Board of Selectmen have answered the federal civil rights lawsuit filed on behalf of firefighter Gerald Alston with a motion to dismiss charges. A separate motion to dismiss has been filed on behalf of some defendants sued as individuals: Neil Wishinsky, board chair, Nancy Daly, board member, Ken Goldstein, Betsy DeWitt and Jesse Mermell, former board members, Joslin Murphy, town counsel, and Sandra DeBow, human resources director.

Representing the Town of Brookline, the Board of Selectmen and those sued in official capacities are Patricia Correa, the first assistant town counsel, and Douglas I. Louison of Louison, Costello, Condon & Pfaff in Boston. Representing those moving to dismiss charges against them as individuals are Mr. Louison and Joseph A. Padolsky of the same firm. As of January 15, no representation and no response had been filed for defendants Stanley Spiegel, a Precinct 2 town meeting member, and Local 950, International Association of Firefighters.

Filed with the two motions to dismiss on behalf of defendants was an 82-page memorandum of assertions and arguments. It attacks Brooks Ames, the lawyer who filed the case for Mr. Alston, questioning whether he is eligible to represent Mr. Alston and indicating that the case relates to “a long-standing media campaign that has been waged against the Town and its officials” and it seeks to “revive long-standing policy debates.” [Memorandum, Alston v. Brookline, Federal case 1:15-cv-13987, Document 11, Sections II.C and D, pp. 22 and 25]

Brooks Ames controversy: The defendants’ memorandum suggests Brooks Ames may not be eligible to represent Gerald Alston, citing Chapter 268A of Massachusetts General Laws. That might be so if Mr. Ames were to qualify as a former “municipal employee” who “participated” in some “particular matter” involving Mr. Alston.

An exhibit included with the defendants’ memorandum shows that while Mr. Ames was a member of the former Human Relations–Youth Resources Commission he chaired a meeting in September, 2013. The meeting heard a report about a racial discrimination lawsuit that had been filed on behalf of Mr. Alston in Norfolk Superior Court–not by Mr. Ames. [Memorandum, Alston v. Brookline, Federal case 1:15-cv-13987, Document 11, Exhibit 11, pp. 3-6]

According to meeting minutes, a discussion developed around Mr. Alston’s situation that also considered racial incidents involving other town employees. Actions taken at the meeting were to invite the chiefs of the police and fire departments to a future meeting and to send a letter to the Board of Selectmen seeking information about Mr. Alston’s complaint.

In Section 18, Chapter 268A of Massachusetts General Laws makes it illegal for a former “municipal employee” to act “as agent or attorney for or receive compensation” in connection with a “particular matter” in which “the city or town is a party or has a direct and substantial interest and in which he participated as a municipal employee.” In Section 1(g), Chapter 268A defines “municipal employee” broadly: “a person performing services for or holding an office, position, employment or membership in a municipal agency, whether by election, appointment, contract of hire or engagement, whether serving with or without compensation, on a full, regular, part-time, intermittent or consultant basis.”

However, neither the motions to dismiss Alston v. Brookline nor the supporting materials appear to show whether Mr. Ames “participated” in investigating Mr. Alston’s complaint on behalf of the Town of Brookline. Events from the period suggest that the Board of Selectmen did not support his involvement. Lack of participation in such matters was instead a factor alluded to by Mr. Ames when resigning from the former commission in 2014.

Claims of wrongdoing: The motions to dismiss respond to only parts of the original complaint in Alston v. Brookline, highlighting relief sought under federal law in 42 USC 1981, originally from the Civil Rights Act of 1866 and most recently the Civil Rights Act of 1991. However, Mr. Alston’s complaint also cites equal protection and due process violations under the Fourteenth Amendment, free speech violations under the First Amendment and issues under 42 USC 1983, originally from the Civil Rights Act of 1871, and under 42 USC 1988, from the Civil Rights Attorney’s Fees Award Act of 1976. [Complaint, Alston v. Brookline, Federal case 1:15-cv-13987, paragraph 29]

The memorandum in support of motions to dismiss objects to only some of the allegations of unlawful harm in the original complaint filed for Alston v. Brookline. It says, for example, “allegations regarding the promotions of [Mr. Alston's supervisor, accused of a racial insult]…did not amount to constitutional misconduct against [Mr. Alston] and…do not state a claim.” [Memorandum, Alston v. Brookline, Federal case 1:15-cv-13987, Document 11, Section II.C, p. 23]

The original complaint filed for Alston v. Brookline said, in part, that the Board of Selectmen “did not investigate [the supervisor's] intimidating and retaliatory conduct towards Mr. Alston after learning of Mr. Alston’s complaint [about the racial insult]…it “promoted [the supervisor]…just months after he [made the insult].” [Complaint, Alston v. Brookline, Federal case 1:15-cv-13987, paragraphs 6 and 7]

A related claim filed for Alston v. Brookline said, in part, “The Town Defendants violated the Fourteenth Amendment guarantee of equal protection and freedom from racial discrimination by…engaging in…favoritism towards white…employees…The…unconstitutional…practice…caused Mr. Alston to suffer damages compensable pursuant to 42 USC 1981 and 1983.” [Complaint, Alston v. Brookline, Federal case 1:15-cv-13987, paragraphs 149 and 151]

The memorandum in support of the motions to dismiss also objects to relitigating previous rulings. [Memorandum, Alston v. Brookline, Federal case 1:15-cv-13987, Document 11, Section II.D, p. 24] However, the memorandum does not include evidence of relitigation. For example, the action that Mr. Alston filed in 2012 with the state Commission Against Discrimination complained about behavior within the Fire Department and the Human Resources Office. It did not allege wider discrimination tolerated or practiced by the Board of Selectmen. [Memorandum, Alston v. Brookline, Federal case 1:15-cv-13987, Document 11, Exhibit 5, p. 2]

Although the motions to dismiss might be partly successful, they do not appear to resolve key elements of the lawsuit, including alleged involvement in discrimination by current and former members of the Board of Selectmen.

– Beacon staff, Brookline, MA, January 15, 2016


Memorandum in support of partial motion to dismiss, Alston v. Brookline, Federal case 1:15-cv-13987, filed January 12, 2016

Complaint and jury demand, Alston v. Brookline, Federal case 1:15-cv-13987, filed December 1, 2015

Civil rights lawsuit: town and individuals accused, Brookline Beacon, December 14, 2015

Human Relations: harassment complaints and resignations, Brookline Beacon, June 12, 2014

Greenhouse gases: passing the buck

For several years, the General Court and the Patrick administration made an intramural sport out of passing the buck over greenhouse-gas emission limits: extremely ambitious goals set for dates long after terms of the legislators, bureaucrats and governor had expired. The fit is finally hitting the Shan over one episode, the so-called Global Warming Solutions Act (GWSA) of 2008.

Our Children’s Trust, an Oregon-based nonprofit, organized a challenge on behalf of four Massachusetts high-school students, claiming that the state Department of Environmental Protection had failed to satisfy a GWSA requirement. In August, 2014, lawyers from the Boston firm of Sugarman, Rogers, Barshak & Cohen filed suit, joined by the Conservation Law Foundation in Boston and by the Energy Consumers Alliance of New England. [Kane v. Massachusetts]

Bad law makes hard cases: The terms of state legislation have made the Kane case an uphill struggle. The GWSA provision at issue requires: “The [Department of Environmental Protection] shall promulgate regulations establishing a desired level of declining annual aggregate emission limits for sources or categories of sources that emit greenhouse gas emissions [sic].” [Massachusetts General Laws C. 21N, S. 3(d), as enacted by Acts and Resolves of 2008, C. 298, S. 6]

What plaintiffs in the Kane case clearly want is some form of overall state limit on Massachusetts greenhouse gas emissions, declining year-by-year. For better or worse, that was not required by GWSA. Instead, the state was directed to establish declining goals for some sources, and it did more than that. Its defense to the lawsuit cited three state regulations with declining, mandatory limits, adopted after GWSA.

In 2012, the state updated regulations for the Ultra-low-emission Vehicle Program. [310 CMR 7.40(2)(a)] In 2013, it amended regulations for the CO2 Budget Trading Program. [310 CMR 7.70(5)] In 2014, it issued new regulations for sulfur hexafluoride emissions from gas-insulated switchgear. [310 CMR 7.72] Each of those had declining, mandatory limits–not just goals–for years from 2015 through 2020.

Judge Robert Gordon of Suffolk Superior Court made swift work of the original case. He wrote, “The regulatory initiatives implemented by DEP may or may not prove effective…it will not be because the Department flouted the statutory directives…It is not…for this Court to rewrite the statute that the plaintiffs wish the General Court had enacted…the Massachusetts Department of Environmental Protection has substantially satisfied the requirements of Mass. G.L. C. 20N, S. 3(d).”

Newspapers make mischief: In their typical, hackneyed “he said…she said” style, newspapers have spun a straightforward decision into a moral crisis. Writing in the Boston Globe, David Abel quoted lawyers who argued for the plaintiffs in the Kane case, saying, “…the state has failed to take sufficient action to comply with the state’s 2008 Global Warming Solutions Act.”

The Supreme Judicial Court allowed the case an expedited appeal, soliciting briefs from “friends of the court” and hearing arguments on Friday, January 8. However, even an activist court would need to perform gymnastics to find that the Massachusetts Department of Environmental Protection did less than GWSA asked. So far, newspapers and lawyers let off the hook the legislators who drafted a poorly planned and badly written law.

– Craig Bolon, Brookline, MA, January 11, 2016


An act establishing the Global Warming Solutions Act, Massachusetts Acts and Resolves of 2008, Chapter 298

Complaint, Kane, et al. v. Massachusetts DEP, Suffolk Superior Court Case No. 14-02551, filed August 11, 2014

Judgment, Kane, et al. v. Massachusetts DEP, Suffolk Superior Court Case No. 14-02551, issued March 23, 2015

Reducing sulfur hexafluoride emissions from gas-insulated switchgear, Massachusetts regulation 310 CMR 7.72, April 25, 2014

CO2 budget trading program, CO2 allowance allocations, Massachusetts regulation 310 CMR 7.70(5), revised December 6, 2013

Ultra-low-emission vehicle program, Emissions requirements and prohibitions, Massachusetts regulation 310 CMR 7.40(2)(a), most recently revised January 1, 2016

David Abel, Suit faults Massachusetts record in cutting emissions, Boston Globe, January 3, 2016

Board of Selectmen: hearing airs racial tensions

A regular meeting of the Board of Selectmen on Tuesday, January 5, started at 7:05 pm in the sixth-floor meeting room at Town Hall. While North Korea was testing its first thermonuclear bomb, the board conducted a public hearing about what it called “diversity issues involving the town”–also an explosive catastrophe, at least on a local scale.

A standing-room-only audience of around 200 gathered in a hearing room with only about 100 seats. For many Brookline residents it was an evening of despair–airing incident after incident of racial discrimination, targeting and harassment–lasting more than two hours.

Commission statement: At its meeting the previous evening, the Diversity, Inclusion and Community Relations Commission had reviewed testimony and reports it received about racial issues affecting the Brookline work force. Alex Coleman, chair of the commission, read a statement to the Board of Selectmen that the commission had authorized.

Dr. Coleman said the commission, which began in January, 2015, “spent the last year trying to move forward.” Hopes for progress had been dashed at a December 16 meeting, when two Brookline police officers testified in open session that their department was afflicted with racial tensions, from which they personally suffered. Town government, according to the commission statement, has “a culture of institutional racism” that “the Board of Selectmen…allowed.”

The statement read by Dr. Coleman called on the Board of Selectmen, “as the elected leaders of the town, to exercise your responsibilities and duties, as commissioners of the Police and Fire Departments…to stamp out this culture. This is a matter of extreme urgency, which the Board of Selectmen needs to address with actions, not words, now.” Members of the board listened but did not comment.

Police testimony: Prentice Pilot, one of the two African-American police officers who spoke out on December 16, told the Board of Selectmen he had worked on the force for 17 years. He recalled another minority police officer who “went to the chief about racial incidents” a year ago, apparently joining Officers Pilot and Zerai-Misgun then, but got no action. In response to his recent complaint about a racial insult, he said, “the chief had a preliminary investigation” but called it “inconclusive.”

After his recent testimony to the Diversity, Inclusion and Community Relations Commission, Officer Pilot said, the commission “asked Selectman Greene to get more of the story…I haven’t heard anything from him.” Mr. Greene, the first African-American ever elected to the Board of Selectmen, became the board’s delegate to the commission and was present when Mr. Pilot testified on December 16.

Officer Pilot said a recent report on the racial climate in the Police and Fire Departments, sent to commission members, offers “insights from the Police Department leadership: no major incidents” in the department. “The chief,” he said, “had a free diversity report when the three of us went to him in December of 2014.” Applause from the audience lasted most of a minute.

Estifanos Zerai-Misgun, the other African-American police officer who spoke out on December 16, described “the chief’s assurance” of respect in the department. “He gave me his assurance a year ago,” said Officer Zerai-Misgun. “Nothing has changed…All you say is that you’re waiting…Nobody has contacted me.” He told the Board of Selectmen, “It is not a safe environment there. The chief failed me last year…Now you’re failing me today.”

Lee Smith, an African-American former police officer in Brookline, told the board about experiences starting in April, 1998. He also left a much longer version of his remarks in writing. As a beginning Brookline officer, he said, after he wrote a parking ticket a superior officer “chewed me up,” telling Mr. Smith, “That ticket belongs to a friend of mine.” Mr. Smith explained that there was a covert system of marking tickets to indicate they were supposed to be discarded and ignored, which he had not followed.

At a “diversity meeting” held more than 15 years ago, Mr. Smith said, fellow officers ridiculed the training, “complaining, ‘why do we have to be here for this?’” Written materials were distributed at the training, according to Mr. Smith. “I saw guys ripping it up, tossing it in the trash.”

Harassment complaints: Leslie Epps, who operates Finesse Florist on Washington St., told about experiences as an African-American living in Brookline and running a retail business. “I’ve experienced such racism,” said Ms. Epps. “I have filed complaints. These complaints have disappeared. There has been intimidation: ticketing my vehicle falsely, targeting my shop.”

Ms. Epps described herself as “keynote speaker” at the most recent Martin Luther King Day event in Brookline. Now, she said, “I have stress disorder…at the hands of Brookline police.” Not one to give up. Ms. Epps told the Board of Selectmen, “This is my country. I will not be moved…I am looking for restorative justice.”

Cruz Sanabria of Rice Street, a Marine veteran and a public school teacher in Boston, who was a member of the former Human Relations Commission, described harassment from neighbors and antagonism from Brookline police officers. In one incident, he said, he was falsely cited for a crime.

According to Mr. Sanabria, he was charged with “assault with a dangerous weapon…It was dismissed.” Mr. Sanabria told the Board of Selectmen, “The horror I went through is worse than anything else I have had in my life…You put me in a position that I shouldn’t have been in. Why? Because I’m Puerto Rican.”

Reactions: Brookline residents who are not members of a minority had strong reactions. Bob Miller of Copley St., a Precinct 8 town meeting member and a teacher at Heath School, told the Board of Selectmen, “I’ve heard talk about racism in Brookline,” calling it “an issue that can destroy the town that I love.” He urged “the strongest possible actions to let it be known that this will not be tolerated.”

Pat Bartels of Wolcott Rd. said her family “moved to Brookline because we believed it was going to be a caring and liberal community.” Her two children, she said, are graduates of Brookline High School. “Their friends were from Bulgaria, Cape Verde, Korea…from all over the world…Those are the values they shared.”

Shifra-Lilith Freewoman of Longwood Ave. was less forgiving. In Leslie Epps’s shop, she said, “She treated me like gold…It breaks my heart. Everybody black that I know has encounters with police in this town.” The problem, according to Ms. Freewoman, has been that “words don’t translate into clear action.” She told the Board of Selectmen, “If this board can’t do it, then let’s elect another board.”

Years ago: Andrew Leong of Marion Terrace described his experiences inside the Brookline Police Department many years ago. He is a professor of law at the University of Massachusetts in Boston. “We are sick and tired of more studies, more training,” said Prof. Leong. “I did that training 27 years ago.”

At the time, he said, “a black officer told me, ‘I’m so glad you came and spoke…All those racist things [are] happening to me on this police force.’” Referring to Officers Pilot and Zerai-Misgun, Prof. Leong said, “They are risking their jobs. What do we want? We want them to be on paid administrative leave.” Applause from the audience again lasted for most of a minute.

– Beacon staff, Brookline, MA, January 6, 2016


James Pearson and Tony Munroe, North Korea says successfully conducts first H-bomb test, Reuters (UK), January 6, 2016

Statement to the Board of Selectmen on institutional racism in the Brookline work force, Commission for Diversity, Inclusion and Community Relations, Town of Brookline, MA, January 4, 2016

Lee Smith, Statement at Brookline Board of Selectmen hearing, January 5, 2016

Diversity Commission: police and fire department report, Brookline Beacon, December 20, 2015

Net metering for electricity: fair practices

Among climate activists, so-called “net metering” has become a popular cause. Allowing operators of small, nonpolluting generators to export surplus power into local power networks and earn credits at the same rates as the usual electricity prices will help promote those generators, they contend. However, such a practice will also help enrich the owners of those generators.

Costs of service: If retail electricity were priced in the same way Brookline prices water, there might be few problems with net metering. Brookline’s water rates apply combinations of demand charges and usage charges. Demand charges vary with the capacities of connections to the water network and pay costs to maintain the network. Usage charges vary with the metered uses of water and wholesale water prices.

If retail electricity were priced similarly, operators of small, nonpolluting generators would pay demand charges based on capacities of their connections and could use the connections either to import or to export power. When they import power, they would accrue charges that depend on amounts used and on wholesale costs of power at points of use. When they export power, they would accrue credits at the same rates.

Such a practice could allocate costs of service fairly. Customers would pay to maintain local power networks in proportion to capacities of their connections, whether used for import or export. Customers who operate small, nonpolluting generators and export electricity to other customers would earn credits at the same rates as prices of conventionally generated power they displace, as figured at the points of use.

Retail billing: Many industrial and some commercial electricity customers are already covered by billing divided into demand and usage charges, but most residential customers are not. Instead, residential electricity rates usually lump costs of maintaining local power networks together with costs of wholesale electricity and long-distance electricity transport.

A residential electricity customer typically sees a single, composite billing rate applied to amounts of electricity used. If residential customers are allowed to export electricity at the same composite billing rate, credits they receive offset not only costs of electricity but also costs to maintain local power networks. Over time, such an approach to billing means that their shares of costs to maintain local networks will be paid by other customers attached to the networks.

Fair practices: Most subsidies to small, nonpolluting generators flow from the general economy through tax collections, which distribute the burdens partly on the basis of ability to pay. Burdens produced by net metering flow against those principles and tend to benefit people with higher incomes at the expense of people with lower incomes. The small, nonpolluting generators are largely owned by people with higher incomes, who can better afford major investments that they require.

As long as amounts of electricity generated by small, nonpolluting generators remain relatively minor, burdens of unfair billing from net metering also remain minor. As these generators become more common, unfair burdens grow apace. The more fortunate few, with higher incomes, tax the many less fortunate, with lower incomes, forcing them to pay excess shares of maintaining local power networks.

If net metering of electricity is to be expanded–while defending a just society–then fair practices need to be applied in retail billing for electricity. Residential electricity bills need to be separated into accurately assessed demand charges and usage charges, as Brookline water billing now does. Net metering needs to apply the rates for usage charges. Climate action can support social justice.

– Craig Bolon, Brookline, MA, December 21, 2015


Eddie Ahn, ed., Social justice groups advocate expansion of solar through net metering, Brightline Defense Project (San Francisco, CA), March 9, 2015

Matthew C. Whitaker (professor of history, Arizona State University), Net metering and its potential impact on low-income consumers, Atlanta Blackstar (Atlanta, GA), July 2, 2014

Diversity Commission: police and fire department report

A regular meeting of the Diversity, Inclusion and Community Relations Commission on Wednesday, December 16, started at 6:30 pm in the Denny Room at the Brookline Health Center. The agenda, mostly a series of reports from working committees, gave little hint of fireworks to be set off.

Consultant report: A consultant engaged by the Board of Selectmen has submitted a report on workforce diversity and related issues in Brookline’s police and fire departments, and the report has been distributed to the commissioners. Under agenda item 9, Bernard Greene, a member of the Board of Selectmen who regularly attends commission meetings, was to lead a discussion.

A major impetus to the report has been the dispute involving a Brookline firefighter who has been on extended leave, following a racially charged incident starting with an alleged insult by a supervisor. That was also an influence for organizing the commission.

Town management and members of the Board of Selectmen opted to abolish the former Human Relations Commission and set up a new group that would be excluded from most issues involving town workers. After a long series of reviews, they accomplished the goal under Article 10 at the annual town meeting of 2014.

Complaints: The commission’s review of the police and fire report was punctuated by comments from the public–notably from two police officers. According to them, the department has been afflicted with racial tensions. Unlike the departments of forty and fifty years ago, today’s Brookline Police Department includes several minority and women officers, although senior leadership are white men.

One officer, who was recorded on video later distributed to the public, said he had worked in the Police Department “for about three years now, and as a black man I don’t feel safe working in this town. I’ve had racial comments said to me from the supervisor, from fellow patrolmen–and I just don’t feel safe here.”

Another officer, also recorded on video later distributed to the public, said, “I’ve been a police officer in Brookline for [over 16 years]. On December 4, I was in a marked cruiser in uniform and pulled up to a member of the Brookline Police command staff to speak with him. What he said to me when I rolled the window down was basically, ‘Pull your car up on the sidewalk or on the corner, go up on the sidewalk and do some ni***r jumping jacks for me, and I’ll put in a good word for you.’”

The Brookline Police Department has attracted sharp criticism from both residents and visitors to the town, receiving a poor Internet rating. Brief excerpts from recent comments indicate some typical complaints:

From a visitor: “I know someone who was arrested for an unpaid speeding ticket…In the squad car, he overheard two officers making inappropriate racial & linguistic comments about people who had immigrated to the US.”

From a resident: “The cops are racist, I’ve been followed plenty of times, stared at like I’m committing a crime, and harassed. I love being followed while I drive down the street to my house by a cop car so they can check and see if I’m driving a stolen car….”

From a visitor: “The Brookline Police function primarily as an extortion racket. They are claiming that I have an unpaid parking ticket from *ten years* ago, and my license has now expired because I couldn’t renew it. Trying to pay this ticket has been a Kafkaesque nightmare….”

Commission duties: The Diversity, Inclusion and Community Relations Commission looks to have plenty of work ahead. Although left without a major role in labor issues of the town’s workforce, it has responsibilities to investigate and report discrimination and bias incidents in Brookline. According to Article 3.14 of the general bylaws of Brookline, revised as of June 2, 2014:

3.14.1 …The Purpose of the Commission and the goal of the Town shall be to strive for a community characterized by the values of inclusion…justice in a community requires, at a minimum, monitoring and enforcing civil rights laws as they apply to all persons who come in contact with the Town…regardless of their race, color, ethnicity, gender, sexual orientation, gender identity or expression, disability, age, religion, creed, ancestry, national origin, military or veteran status, genetic information, marital status, receipt of public benefits (including housing subsidies), or family status…herein, “Brookline Protected Classes”….

3.14.3(A)(viii)(3) …the Commission…shall have the following responsibilities:…Receive complaints, according to procedures developed by the Commission and as approved by the [Board of Selectmen], and initiate preliminary review of the facts, without drawing any legal conclusions, from any person who comes in contact with the Town, concerning allegations of discrimination or bias against a member of a Brookline Protected Class. The Commission shall also have the authority, in its discretion, to…Present any results of preliminary review of the alleged facts to the Town Administrator and/or the Board of Selectmen, in an appropriate case, for action….

– Beacon staff, Brookline, MA, December 20, 2015


Diversity, Inclusion and Community Relations Commission, Agenda for December 16, 2015

Brooks Ames, Brookline Justice League filed class action lawsuit to put an end to racial subordination in Brookline, plus other posts, Twitter, December 2-20, 2015

General bylaws, Town of Brookline, MA, as of May 26, 2015

Civil rights lawsuit: town and individuals accused, Brookline Beacon, December 14, 2015

Board of Selectmen: firefighter Gerald Alston, Jr., speaking, Brookline Beacon, December 6, 2014

Annual town meeting: human relations, regulations and zoning, Brookline Beacon, May 31, 2014

Human Relations Youth Resources Commission: Coping with changes, Brookline Beacon, April 24, 2014

Civil rights lawsuit: town and individuals accused

The Board of Selectmen scheduled a special, closed session to start at 5:00 pm on Tuesday, December 15, well in advance of a regular meeting starting a 7:30 pm. The purpose, generally lawful for a closed session, is litigation strategy. In a departure from usual practice, the board’s agenda specifies the focus: a civil rights lawsuit recently filed against the Town of Brookline and others, including individuals.

Gerald Alston, a Brookline firefighter who has been on extended leave, began disputes with the Town of Brookline more than five years ago, after his supervisor allegedly made an insulting comment that was recorded in a telephone message. The case has gone from an internal report to a complaint filed with a state agency, to a suit filed in a state superior court and most recently to a federal civil rights suit.

Parties: Mr. Alston’s civil right lawsuit was filed Tuesday, December 1 by Brooks A. Ames, a Brookline lawyer whose wife, Mariela Ames, is a Precinct 15 town meeting member. It is directed at the town, at the Board of Selectmen, at an employee union, at two town employees and at six Brookline residents who are or have been involved with town government–as follows (from official court records):
• Defendant, Town of Brookline
• Defendant, Board of Selectmen of the Town of Brookline
• Defendant, Betsy DeWitt, In her Individual and Official Capacities
• Defendant, Ken Goldstein, In her [sic] Individual and Official Capacities
• Defendant, Nancy Daly, In her Individual and Official Capacities
• Defendant, Jesse Mermell, In her Individual and Official Capacities
• Defendant, Stanley Spiegel
• Defendant, Sandra DeBow, In her Individual and Official Capacities
• Defendant, Joslin Murphy, In her Individual and Official Capacities
• Defendant, Local 950, International Association of Firefighters
• Defendant, Neil Wishinsky, In his Individual and Official Capacities
• Assigned to: Judge George A. OToole, Jr.
• Cause: 42: 1983 Civil Rights Act

Ms. DeWitt, Mr. Goldstein and Ms. Mermell were members of the Board of Selectmen during some of the events alleged in the complaint filed in federal district court. Ms. Daly and Mr. Wishinsky are current members of the Board of Selectmen. Dr. Spiegel is a Precinct 2 town meeting member and a member of the Advisory Committee. Ms. Murphy is the town counsel. Ms. DeBow, now Ms. DeBow-Huang, is director of the town’s Human Resources office. Local 950 represents Brookline’s firefighters in collective bargaining and labor disputes.

Court filing and allegations: Mr. Alston’s court filing alleges that the Town of Brookline has a longstanding pattern of racial injustice in labor practices. [Court filing, paragraph 1]

“He brings this case on behalf of himself and all others who have been damaged by Brookline’s longstanding and well-established policy, custom and practice of opposing racial equality, enforcing racial subordination, engaging in affirmative action and favoritism towards white residents and employees, and retaliating against persons who protest racial discrimination.” [Court filing, paragraph 1]

Mr. Alston’s court filing alleges the insult that it says began a sequence of disputes occurred when his supervisor in 2010 “was upset that Mr. Alston had gone out on an injury leave.” It says that the former supervisor had believed, “without any evidence or basis in fact, that Mr. Alston had faked an injury.” The injury in 2010 was confirmed by medical records, it claims. [Court filing, paragraphs 2 and 77]

After Mr. Alston wrote a report about the incident, the court filing says, “Brookline took no action except to inform [the former supervisor] that Mr. Alston had made a complaint.” Afterward, the court filing claims, “Brookline’s Board of Selectmen protected [the former supervisor] from any adverse consequences, pursuant to policy.” [Court filing, paragraph 5]

The remainder of the 55-page court filing recounts a perverse litany of protests and rebuffs that it says illustrates a longstanding pattern of racial injustice in labor practices. For example, it claims that “Brookline fought to prevent the civil rights commission charged with enforcing the Town’s bylaw against racial discrimination from fulfilling its charge to investigate and resolve complaints.” [Court filing, paragraph 12]

“The Town of Brookline’s policy of disregarding the Fourteenth Amendment [due process and equal protection] is enforced by the Brookline Board of Selectmen through their agents in the Town administration, including but not limited to the office of town counsel, the town administrator, the department of human resources and other town department heads. The Town of Brookline’s policy is also enforced by the town moderator, town meeting, the school committee and the superintendent.” [Court filing, paragraph 32]

The former Human Relations/Youth Resources Commission was disbanded through actions at the 2014 annual town meeting under Article 10. A replacement group created under that article is called the Diversity, Inclusion and Community Relations Commission. There is a correspondingly named town department. Unlike the former commission, the current commission lacks authority to investigate labor complaints such as Mr. Alston’s.

In the course of working through administrative channels, the court filing alleges that Mr. Alston met with resistance, saying, “While the investigation was ongoing, the Town pressured Mr. Alston to agree to drop his complaint…Mr. Alston told the director that he wanted the Town to follow its policies. The human resources director called Mr. Alston an ‘asshole’ and hung up on him.” [Court filing, paragraph 87]

“Several years later…based on public pressure, the Town relented and placed Mr. Alston on a paid administrative leave. That paid leave has now extended for nine months and constitutes an acknowledgment by the Town that the Town’s racially hostile environment is the fundamental obstacle to his safe return to work. [Court filing, paragraph 100]

In the court filing, Mr. Alston is seeking from the U.S. District Court for Massachusetts a declaration “that the Defendants violated the First and Fourteenth Amendments to the United States Constitution.” He also seeks “damages sufficient to compensate Plaintiff, in an amount to be proven at trial” and punitive damages. The filing seeks class action certification and “a reparations fund for persons harmed by the Town’s policy.” [Court filing, Relief Requested]

– Beacon staff, Brookline, MA, December 14, 2015


Complaint and jury demand, Gerald Alston v. Town of Brookline, et al., case 1:15-cv-13987, U.S. District Court for Massachusetts, filed December 1, 2015 (1 MB, as obtained from court records)

Agenda, Board of Selectmen, Town of Brookline, MA, for December 15, 2015

Cases of interest, U.S. District Court for Massachusetts (PACER registration needed for docket access)

Public Access to Court Electronic Records (PACER), United States Courts

Brock Parker, Brookline firefighter sues town over alleged racial slur, Boston Globe, August 30, 2013

Human Relations Youth Resources Commission: Coping with changes, Brookline Beacon, April 24, 2014

Board of Selectmen: firefighter Gerald Alston, Jr., speaking, Brookline Beacon, December 6, 2014

Board of Selectmen: marijuana dispensary license

A regular meeting of the Board of Selectmen on Tuesday, December 8, started at 6:00 pm in the sixth-floor meeting room at Town Hall. The early start left ample time for a final hearing on the registered medical marijuana dispensary being proposed at 160 Washington St. in Brookline Village–the intersection with Boylston St. (Route 9).

Minutes: Neil Wishinsky, the board’s chair, announced that minutes of closed sessions that were held this year on January 20, May 12, June 9 and September 8 will be released. They all concerned “real property,” a lawful topic for a closed session. The session on January 20 was described as reviewing a “lease agreement.” The ones on June 9 and September 8 were held jointly with the School Committee.

The four sets of minutes were not online as of December 12 but are available on request. Under the state’s open meeting law and regulations, the board must release minutes of closed sessions when the matters are finished and the reasons for confidentiality no longer apply. In practice, the board has reviewed and released minutes of closed sessions only on request. There are hundreds of closed meetings with unreleased minutes.

Marijuana dispensary: A long review of a registered dispensary for medical marijuana is nearing an end. Voters approved medical marijuana in the fall of 2012. A town meeting authorized zoning and local licensing in the fall of 2013. The next year, New England Treatment Access (NETA) filed for a zoning permit, reviewed by the Zoning Board of Appeals, and a local license, reviewed by the Board of Selectmen.

After exploring a potential site near the corner of Beacon St. and Summit Ave., NETA negotiated an agreement for the currently proposed site in Brookline Village. In December, 2014, the town’s Licensing Review Committee began a series of five public meetings and one public hearing. The Zoning Board of Appeals held a hearing April 23 of this year and granted a zoning permit.

The NETA proposal to use the former Brookline Savings Bank building at 160 Washington St. attracted strong neighborhood protest. Opponents filed an article for the fall town meeting last year, seeking zoning changes that would have struck out the former Savings Bank building as a potential site. They lost 60-146, in an electronically recorded vote.

The Licensing Review Committee developed a fairly stringent set of recommended license conditions, completed last April. On April 25, the Board of Selectmen adopted general regulations for registered marijuana dispensaries, based on those committee recommendations.

Until May, the committee was headed by Betsy DeWitt and Kenneth Goldstein, former members of the Board of Selectmen. They did not run for new terms and were replaced by Nancy Heller and Bernard Greene. The Licensing Review Committee’s findings are advisory; the Board of Selectmen is not obliged to follow them.

Headwinds: Signs of dissent emerged last month. As a regular meeting Tuesday, November 3, the Board of Selectmen was to discuss “the process for reviewing the application” from NETA for a local license. As minutes of the meeting show, the discussion soon veered from process into substance. Mr. Wishinsky suggested that any license be for a “trial period.” Board member Ben Franco questioned sales of edible products containing marijuana.

Nancy Daly, now in her tenth year on the board, called for monitoring “excessive prescriptions.” She did not say how that might be achieved but did propose several added conditions on a license for the proposed medical marijuana dispensary. They included:
• No walk-in business, service by appointment only
• A maximum number of appointments per hour
• On-site dispensing limited to 20 percent of state limits
• Home deliveries for balances of sales above local limits
• Hours of operation 10 am to 7 pm except noon to 5 pm Sunday

So far, the board is not known to have proposed similar limits on local businesses that sell other medical products. Although medical marijuana has not been identified as a significant cause of death in the United States, most pharmacies stock prescription drugs involved in a long, horrible trend of U.S. drug deaths.

U.S. drug deaths, 1999 through 2014

CdcDrugDeathDate1999to2014
Source: U.S. Centers for Disease Control and Prevention

Contrary to many, uninformed news reports, rapidly rising deaths from drug use are not a recent trend. Data from the federal government that span 15 years show major growth in drug deaths of U.S. residents over that entire period. Prescription drugs–not black-market drugs–caused an average of about two-thirds of those drug deaths. Currently, the U.S. rate of drug deaths exceeds the U.S. rate of deaths from motor vehicles. Prescription drugs are responsible for about 60 percent of current U.S. drug deaths.

Public hearing: The board’s public hearing on a local license continued for over two hours but produced little that had not previously emerged from several related hearings held this year and last year. Those occurred at the Licensing Review Committee, the Advisory Committee on Public Health, the Planning Board, the Zoning Board of Appeals, the Zoning Bylaw Committee and the Advisory Committee and its subcommittees.

Following its November 3 meeting, the Board of Selectmen released an unsigned document titled “Proposed conditions for a registered marijuana dispensary license (2015-11-20 Draft)”. Footnotes tell who on the board proposed some of the conditions but give no explanations. At the hearing, Amanda Rossitano, who has been named manager of NETA’s Brookline dispensary, objected.

The NETA dispensary now operating in Northampton, Ms. Rossitano contended, has had no problems that might justify added license restrictions. She objected to proposals for business by appointment only, for an on-site sales limit lower than the state limit and for home delivery requirements applied to larger sales.

Mr. Wishinsky, the board’s chair, asked for a police report. Mark Morgan, a deputy superintendent, responded: “No traffic or police issues experienced in Salem, Brockton or Northampton”–three of the four communities with dispensaries now operating. The board spent substantial time questioning pharmaceutical properties and testing of products, although it lacks jurisdiction in those areas.

Frank Smizik, state representative for Precincts 2-4 and 6-13, testified in support of a local license. “NETA is a competent company,” he said. “Amanda Rossitano helped lead my office for several years.” Mr. Smizik stated he “does not support additional purchase limits” as license conditions.

Several other Brookline residents and former residents supported a license for NETA, with some objecting to added license restrictions. They included Anne Braudy of Linden Ct., Richard Brauley of Pond Ave., Fred Levitan of Beacon St., Linda Olson Pehlke of Browne St., Ronna Benjamin of Newton, Dr. Peter Moyer of Walnut St., Dr. Jordan Tishler of Loveland Rd. and Dr. Mark Eisenberg of Monmouth St.

Brookline opponents included Gordon Bennett of Davis Ave., Andrew Olins of Walnut St., George Vien of Davis Ave. and Dr. Elizabeth Childs of Walnut St. Some supported added restrictions, and all opposed the proposed site on Washington St. However, Dr. Cornelia “Kea” van der Ziel of Wolcott Rd. said the location is “as good a site as we can get in the town” and pointed out that “home delivery is not an option for some people.” The Board of Selectmen will review the hearing and reach a decision at a later meeting.

– Beacon staff, Brookline, MA, December 12, 2015


Causes of drug deaths, U.S. Centers for Disease Control and Prevention, February, 2015

Tracey Michienzi, Draft conditions from Licensing Review Committee, April 8, 2015

Regulations, registered marijuana dispensary, Town of Brookline, MA, April 24, 2015

Minutes, Board of Selectmen, Town of Brookline, MA, November 3, 2015

Unsigned, Draft conditions, from current Board of Selectmen, November 20, 2015

Zoning Board of Appeals: zoning permit for a registered marijuana dispensary, Brookline Beacon, April 25, 2015

Licensing Review Committee: registered marijuana dispensary, Brookline Beacon, January 29, 2015

Fall town meeting: bylaw changes, no new limits on marijuana dispensaries, Brookline Beacon, November 18, 2014

2014 fall town meeting: electronic voting, Brookline Beacon, November 27, 2014

Craig Bolon, Medical marijuana in Brookline: will there be a site?, Brookline, Beacon, December 7, 2014

Craig Bolon, Open meetings in government: groping toward transparency, Brookline Beacon, August 10, 2014

Craig Bolon, Override Study Committee: Open Meeting Law problems, Brookline Beacon, August 7, 2014

Town meeting: parks and schools

Warm controversies at this year’s fall town meeting cooled quickly in a flurry of surprises and compromises. In the afternoon before the first session on Tuesday, November 17, town staff learned that Brookline was no longer in line for a major state grant to assist with Larz Anderson Park. We are too rich a town to qualify.

Article 6: Rejection of the state grant application quashed a dispute over Article 6 on the town meeting warrant, seeking matching funds to improve Larz Anderson Park. To qualify for up to $400,000 in additional state aid, the town meeting would have to restrict Larz Anderson to recreation and conservation uses only, invoking Article 97 of the Massachusetts constitution.

A few weeks earlier, consultants hired by the Board of Selectmen had named Larz Anderson as a potential site for a new elementary school. The 1949 will of Isabella Weld Anderson, leaving the land to the town, required that it be used for educational, recreational or charitable purposes. Agreeing to the state’s conditions would abandon potential uses involving two of those three categories. The town meeting took no action.

Political chatter also started to call out Larz Anderson as a potential site for high-school expansion. Never mind that the park is remote from centers of population and not well served by streets and transit. Park, recreation and conservation enthusiasts sounded flustered, to say the least.

Open space: Over the past 150 years, since the Civil War, the town acquired about 475 acres of usable open space–not counting the traffic islands and cemeteries. The 53 major sites, totaling about three-quarters of a square mile, represent about 11 percent of the town. Only about a tenth of that space is part of school sites. The rest provides recreation facilities, pedestrian parks and conservation areas.

The distribution of usable, public open space became grossly unequal. Each precinct in the town has nearly the same population. However, Precinct 15 has 257 acres of usable, public open space–over half the total. The average amount of usable, public open space is only about 30 acres per precinct. Precincts 2, 6, 7, 8, 9, 10, 11, 12 and 13 have less than 10 acres each. Precinct 13, snaking along the Brighton line, has none.

 

Brookline’s usable, public open space

Year Acres Precinct Source Site name
2011 10.0 14 purchase Fisher Hill Reservoir Park
1977 1.6 1 taking Amory Woods Conservation Area
1975 3.5 1 taking Halls Pond Conservation Area
1972 0.5 4 purchase Billy Ward Playground
1970 4.2 5 purchase Lincoln School Playground
1967 0.4 5 taking Juniper Street Playground
1961 25.0 16 bequest Blakely Hoar Conservation Area
1961 1.1 9 purchase Lawton Playground
1960 9.5 15 purchase Soule Center
1953 17.2 15 purchase Dane Park
1951 2.4 7 purchase Pierce School Playground
1948 61.1 15 bequest Larz Anderson Park
1946 1.1 12 purchase Schick Park
1945 30.2 15 purchase Lost Pond Conservation Area
1945 15.2 15 purchase Skyline Park
1944 11.1 14 purchase Warren Field
1941 1.3 15 purchase Baldwin School Playground
1939 2.4 5 donation Robinson Playground
1935 11.3 16 donation Baker School Playground
1915 0.5 4 purchase Murphy Playground
1914 8.7 5 purchase Downes Field
1913 0.8 14 purchase Eliot Little Field Park
1913 1.7 5 purchase Clark Playground
1910 4.0 11 purchase Driscoll School Playground
1907 2.1 6 purchase Emerson Garden
1907 119.9 15 purchase Putterham Meadows Golf Course
1905 1.7 9 purchase Coolidge Playground
1903 8.3 1 purchase Amory Playground
1903 3.1 12 purchase Runkle School Playground
1902 32.2 14 donation Brookline Reservoir Park
1902 2.6 1 donation Longwood Mall
1902 2.8 1 donation Knyvet Square
1902 1.1 1 donation Mason Square
1902 1.9 2 purchase Winthrop Square
1902 6.5 14 purchase Heath School Playground
1901 5.6 14 purchase Waldstein Playground
1901 0.3 5 purchase Philbrick Square
1901 3.3 10 donation Griggs Park
1900 13.8 1,3 purchase Riverway Park
1900 4.2 11 purchase Corey Hill Park
1899 0.3 4 donation Linden Park
1897 0.4 10 donation Saint Mark’s Square
1895 0.2 4 donation Linden Square
1894 12.9 4,5 purchase Olmsted Park
1891 6.7 8 purchase Devotion School Playground
1891 5.0 3 purchase Longwood Playground
1890 2.8 15 purchase Singletree Hill Reservoir
1871 4.1 4 purchase Brookline Avenue Playground
1871 5.2 6 purchase Cypress Street Playground
1871 2.0 4 purchase Town Hall Square
1868 1.2 6 purchase Boylston Street Playground
1864 0.2 1 purchase Monmouth Street Park
1827 0.2 5 donation Town Green

Source: Open space plan, Town of Brookline, MA, January, 2011

 

Social justice: Surely Precinct 15–with its giant legacy of usable, public open space–can spare a little for a school site. There are at least three obvious, well qualified candidates:

• Putterham Meadows Golf Course, at 120 acres–a conspicuous luxury. Five acres carved from a corner of this cradle of riches would capably house a three-section elementary school.

• Soule Recreation Center, at 10 acres, a site perennially looking for a gainful occupation. Its rapid churn of personnel has become a community scandal.

• Dane Park, at 17 acres, by far the least used of Brookline’s major parks.

The town has not commissioned a new school site since Baker in 1935. The new Lincoln School, opened in 1994, took over the old, private Park School site–after that school moved away to Goddard Ave. It would take a coldly rigid, greedy set of park, recreation and conservation enthusiasts to find that there is no adequate space they could possibly spare from Precinct 15.

– Craig Bolon, Brookline, MA, December 4, 2015


Open Space Plan, Town of Brookline, MA, January, 2011 (8 MB, uses obsolete precinct numbers)

Precinct Map, Town of Brookline, MA, February, 2012 (1 MB)

Craig Bolon, School building wonder: mishegoss from moxie, Brookline Beacon, October 25, 2015

Advisory Committee: don’t lock up town land, Brookline Beacon, October 3, 2015

Hancock Village 40B: parties try further appeal

Private parties to the original lawsuit over the proposed Chapter 40B housing project at Hancock Village have filed for an appeal at the Massachusetts Supreme Judicial Court (SJC). That lawsuit challenged the “project eligibility letter” that the Massachusetts Development Finance Agency issued, allowing the project to be considered by Brookline’s Zoning Board of Appeals.

Further appeal: At superior court for Norfolk County and recently at the Massachusetts Court of Appeals, the Town of Brookline and the allied homeowner group lost. The appeals court issued an abbreviated “rule 1:28″ decision, indicating it saw “no substantial question of law.” That could make the task of obtaining SJC review problematic.

The SJC has discretion over “further appellate review” and does not routinely accept an application unless there is disagreement at the Court of Appeals or what the SJC sees as significant unresolved issues. The Brookline parties might see the appeals court’s summary approach to its case as cause to claim that issues they have are significant and unresolved.

Unresolved issues: When explaining its ruling, the appeals court took a formalist view of a prior case, citing procedures but not substance of events that the Brookline parties had relied on. A key element of their case was an agreement on conditions for how Hancock Village would be developed. It was presented to the 1946 annual town meeting as part of the text of Article 23. After reviewing it, the town meeting voted to change land now called Hancock Village from single-family zoning to apartment zoning.

As a key argument, the Brookline parties had cited a recent appeals court ruling saying that conditions on a subdivision in the town of Orleans were permanent. According to the appeals court, because the Orleans conditions were part of a “discretionary grant of regulatory approval” they did not expire after 30 years, like restrictions in a deed. [Samuelson v. Planning Board of Orleans, 2014]

Surely Brookline’s 1946 rezoning to allow apartments in Hancock Village also was a “discretionary grant of regulatory approval,” and its conditions for development also would not expire in 30 years. According to the Court of Appeals in 2015, that was not enough. The exact procedures had not been followed in Brookline. To make conditions permanent, it was necessary that “land use restrictions” be “imposed” as in Orleans.

That’s actually what Brookline does today, with its specialized and overlay zoning districts of the past 20 years–like ones for Cleveland Circle, Commonwealth Avenue and Brookline Place. These are heavily customized types of zoning, designed around specific development projects. In 1946, however, such concepts were decades away. With its innovative 1946 plan for Hancock Village, the town did what looked reasonable at the time.

Instead of conditions “imposed” by a zoning district or a Zoning Board of Appeals decision, the 1946 town meeting reviewed conditions agreed to by the developer, who stated that the conditions would apply to “itself, its successors and assigns.” The agreement did not specify any particular process through which the conditions would be carried forward, leaving that to the developer.

Prospects: Under the U.S. Constitution, Congress–and by extension other legislatures–are not able to make “ex post facto laws,” applying after events happen. Courts are not so restricted, and that is what the Court of Appeals seems to be trying to do. No doubt, had the Town of Brookline known in 1946 that in 2015 the Court of Appeals would insist that it “impose” conditions, it would have found a way to do that–consistent with understandings that Hancock Village conditions were meant to be permanent.

Now the Brookline parties need to persuade the SJC that the Court of Appeals made a mistake, insisting on procedures that the appeals court prescribed decades after the facts of 1946, rather than considering the substance of what happened in Brookline then.

– Craig Bolon, Brookline, MA, November 13, 2015


Docket, Town of Brookline and others v. Massachusetts Development Finance Agency and another, case number FAR-23838, Massachusetts Supreme Judicial Court, filed October 16, 2015

Memorandum and order, Town of Brookline and others v. Massachusetts Development Finance Agency and others, case number 2014-P-1817, Massachusetts Court of Appeals, September 25, 2015

Martha Samuelson and another v. Planning Board of Orleans and others, 86 Mass. App. Ct. 901, Massachusetts Court of Appeals, July 2, 2014

Hancock Village 1946 Agreement, Article 23, Annual Town Meeting, March 19, 1946, from Brookline, MA, 1946 Annual Town Report, pp. 32-34

Rule 1:28, summary disposition, Massachusetts Court of Appeals, 2009

Stephanie J. Mandell, The history of rule 1:28, Massachusetts Bar Association, 2008

Hancock Village lawsuit: Brookline’s appeal dismissed, Brookline Beacon, September 29, 2015

Craig Bolon, Hancock Village: development pressures, Brookline Beacon, February 22, 2015

State transportation project: Carlton St. footbridge

On Wednesday evening, November 4, state transportation staff held a hearing on plans to renovate the Carlton St. footbridge, starting at 7 pm in the sixth-floor meeting room at Town Hall. The state is now managing a project that Brookline began in 1998.

Tracks and bridges: The footbridge was built in the 1890s over rail tracks–then part of the Boston & Albany Rail Road–running beside the Muddy River in Brookline, near the Longwood neighborhoods. From there, the river flows into the Back Bay Fens, one of the “public grounds” designed by Frederick Law Olmsted for the Boston park department. In an 1883 report, Olmsted resisted calling the facilities “parks.” He wrote that instead they were landscaped “drainage works.”

Site of the Carlton St. footbridge, 1887

MuddyRiverFensFootbridgeSite
Source: National Park Service

The arrow in the figure points to the site of the Carlton St. footbridge–near the intersection of Carlton St., coming south from Beacon St., with Colchester St. On the 1887 map from the Boston park department, the rail tracks are crossed by bridges at Longwood Ave. and at Park Dr., as the latter is now known. A footpath appears to connect a “flag stop” along the rail tracks with one of the circulation paths.

The tracks were originally built for the Boston & Worcester Railroad and Charles River Branch Railroad between Boston and Newton. From the 1850s through the 1870s, the railroad–through extensions, mergers and name changes–carried millions of tons of gravel from Newton and Needham into Boston to fill the Back Bay salt marsh, creating dry land for neighborhoods that continue to use the Back Bay name today.

In the 1870s, as the Back Bay landfill project wound down, the Boston & Albany (B&A) Rail Road took over the tracks running through Brookline and Allston into Boston, transporting both passengers and freight. There was a B&A terminal on Station St. in Brookline. Over tracks near the intersection of Carlton and Colchester Sts. the town built a pedestrian bridge–giving access from Longwood neighborhoods to the B&A “flag stop.”

Carlton St. footbridge, c. 1896

CarltonStreetBridge1896Mono
Source: Public Library of Brookline

Alexis H. French. Brookline’s first town engineer, oversaw construction of the bridge, built in the summer of 1894. It is a utilitarian steel “pony truss” design, with riveted beams and cross members. The main span is about 75 ft, and the overall length including staircases at each end is about 110 ft. Originally there were steel circles mounted along the sides, the only ornamentation.

Records now known show no involvement by Olmsted or his firm in building the Carlton St. footbridge. According to Prof. Charles Beveridge of American University, unpublished archives from 1892 showed it as a late addition to Riverway plans. For over 80 years, the bridge provided an alternate entrance to the Riverway segment that Olmsted and his firm designed–giving it historical context and significance.

Changes and decline: In 1958, the B&A notified the state that it was going to discontinue passenger service on the rail line. Massachusetts acquired interests in the route and contracted with Perini Corp. of Framingham to install electrical wiring and redirect the Boston end underground, to connect with trolley services at Kenmore Square. Perini completed the work in about a year.

Electrically powered service started in 1959 on what became the MTA Highland line–now known as the D branch of the MBTA Green Line. That introduced a new hazard for the Carlton St. footbridge: proximity to 600 volt, high current wires. Its 1894 state permit had called for a 15 ft height. The span was barely above the trolley wires, and the structure was in decline.

Indifferent maintenance, including use of road salt in the winter, led to weakening of stair treads, cross members and braces. By the 1970s, corrosion had become severe, and the bridge was a safety hazard. In the fall of 1975, both ends were blocked with chain-link fencing. Brookline looked into removing the structure but delayed doing anything because of costs and dangers from working around an active transit line.

By the 1990s, deterioration of the fenced-off, rusting structure had become so advanced that ordinary repairs had become impractical. The wood decking and smaller metal elements were stripped away, so they would not fall onto the trolley tracks. Only the original main steel columns and beams were sturdy enough to stay in place near the tracks.

Controversy and revival: Some neighbors hoped that the footbridge would be reopened. For example, the late Henry Kohn, a former Precinct 1 town meeting member, had used it almost every day. Dr. Kohn walked between his home on Monmouth Ct. and his office at Shields Warren Laboratory in the medical area. Others neighbors were wary of vagabonds known to collect in secluded parts of the Riverway, and they opposed reopening the bridge.

For several years, neighborhood opposition gained the upper hand, ousting many of the conservation-oriented Precinct 1 town meeting members who had supported efforts to reopen the footbridge. Starting in 2006, trends changed, and over the next few years the opposition contingent gave way to a new generation in Precinct 1 that supported efforts to reopen the footbridge.

Cathleen Cavell, a Precinct 1 town meeting member and Hugh Mattison, a Precinct 5 town meeting member, began organizing to restore the footbridge in the late 1980s and formed Friends of the Carlton St. Footbridge in the late 1990s. They attracted support from the Brookline GreenSpace Alliance, a membership group founded in 1987 to advocate and educate around open space issues. However, interest remained low and progress slow.

A lingering storm in October, 1996 helped the fortunes of the footbridge. About 8 to 12 inches of rain fell over three days. The Muddy River quickly flooded, and floodwaters flowed down Green Line tracks into the Kenmore Square station. From there, the flood spread into the trolley tunnel toward downtown Boston, under Boylston St. Damages to property and to the transit system ran to around $100 million, in current value. The Green Line repairs took about two years, with frequent interruptions and breakdowns.

In the aftermath, Boston and Brookline began closer cooperation on planning flood control for the Riverway and Fenway. A four-party plan developed, seeking assistance from the state and from the U.S. Army Corps of Engineers. During the Swift administration in 2002, Ellen Herzfelder, who was then the state secretary of environmental affairs, made restoring the Carlton St. footbridge a component of the Muddy River flood control project, pressuring Brookline to provide funds and coordinate efforts to renovate the footbridge.

After years of planning and disputes, the fall town meeting of 2009 finally provided project funds. Article 5 allocated $1.4 million for design and restoration, passed by a 194-24 roll-call vote. By that time, political changes in Precinct 1 had developed and settled. Every town meeting member from the precinct voted in favor of funds to restore the footbridge.

Project underway: At the November 4 hearing, Margaret Walsh and William Chi of the state highway department described the current $2.7 million project to renovate the Carlton St. footbridge. The largest amount of the cost is expected to be paid from federal Congestion Mitigation and Air Quality funds. If realized, Brookline and the state would each pay about $270,000 of the total. Brookline would be able to reclaim nearly $1 million from its 2009 appropriation, to use for other purposes.

Andre Martecchini of Kleinfelder SEA in Cambridge described the current design, for which Brookline paid the initial costs. It is intended to satisfy handicapped access requirements by attaching ramps at both ends of the span, just inside the staircases. Each ramp extends eastward toward Kenmore Sq. and loops back to the foot of its staircase. Original materials for the main steel beams are to be reused; most other parts will be new materials. Decking for the span is be Ipe hardwood, with an estimated 75-year service life.

Construction plans are to detach the staircases, lift the span and station it in a tent nearby. It will be renovated on-site, while ramps are built and staircases are rebuilt off-site. New foundations will raise the span about a foot and shift its location about a yard into the park, avoiding existing trees. When the structures are all ready, the span will be lifted back into place and the bridge reassembled, adding the new ramps and installing security screening along the span.

The current design is rated about 25 percent complete. It does not include any bridge or park lighting. The next part of the project is to produce working specifications and advertise for bids. The remaining project duration is estimated at around two years. Green Line service will be replaced with bus service for two weekends when the span is being lifted out and back, a significant part of project costs.

Comments and questions: Six town meeting members from Precinct 1 spoke in support of the project: Cathleen Cavell, James Franco, Neil Gordon, Sean Lynn-Jones, Robert Schram and Robert Sloane. None were opposed. Ms. Cavell, who started efforts that led to the project, said she had been “longing to see the bridge renovated and reopened.” Benjamin Franco, a former Precinct 1 resident and current member of the Board of Selectmen, said the project will “restore the Olmsted vision.”

Mr. Lynn-Jones, who chairs the Advisory Committee, asked about colors. Like the original, the renovated bridge will be mostly painted steel. Mr. Martecchini of Kleinfelder said the security screening will be black but “the rest will have some color,” not yet chosen. The original bridge was painted black, although what remains is heavily rusted.

Precinct 5 town meeting members Robert Daves, Betsy Shure Gross and Hugh Mattison and Precinct 6 town meeting member Thomas Vitolo spoke in favor of project plans. Mr. Mattison said they were the result of a “town-wide effort.” Arlene Mattison of Pond Ave, president of the Brookline GreenSpace Alliance, and Frances Shedd-Fisher of Walnut St., a former Precinct 5 town meeting member, echoed those sentiments.

Starting in 2006, Dr. Vitolo–a recent transplant from Precinct 1–became a figure in replacing a former Precinct 1 contingent that opposed reopening the bridge. He said he looked forward to bicycle crossings using the new ramps, expecting them to relieve congestion at the Longwood MBTA stop. New bicycle ramps on the Riverway, at the Route 9 intersection, will open at about the same time, he said, and should also help.

Others favoring the plans included Gilbert Hoy of Reservoir Rd., a former member of the Board of Selectmen who chaired Brookline’s project committee for the footbridge, Frances Gershwin of Glenoe Rd., who chairs the Oversight Committee for the Muddy River flood control project, Elton Elperin of Monmouth St., a member of the Preservation Commission, and John Dempsey of Brington Rd., a member of the Bicycle Advisory Committee.

Three former Precinct 1 town meeting members continued to oppose the project: Pamela Zelnick of Carlton St., a member of the Transportation Board, Frederick Lebow of Colchester St., chair of the Naming Committee, and Melvin Clouse of Monmouth St. Ms. Zelnick called the project “a total waste of taxpayer money.” Mr. Lebow recalled hearing “when that bridge was open, there was a higher crime rate.”

Anthony Raynes of Carlton St. echoed the opposition, saying the new “design is excellent” but claiming that the “bridge was closed because of crime.” With more bicycle traffic encouraged by a renovated bridge with ramps, Dr. Raynes said Carlton St. will become “total mayhem…the accident rate will be terrible.” Dr. Clouse said very few Brookline pedestrians would likely use the bridge, calling it a “bridge to nowhere.”

Opponents of renovating the Carlton St. footbridge, by now heavily outnumbered by supporters of the bridge, sounded unlikely to derail the project. Mr. Elperin of the Preservation Commission, an architect, said he “never expected the project would take this long or cost this much.” He commended the designers for “great care taken to make the ramps as light as possible” and observed that over time a steel bridge would be seen as “more valuable by being a rare feature of an Olmsted park.”

– Beacon staff, Brookline, MA, November 9, 2015

– Updated November 11, 2015, with letter from Prof. Charles Beveridge


Design public hearing for project 606316, proposal B-27-016, Highway Division, Massachusetts Department of Transportation, November 4, 2015

Transportation project funding, Massachusetts Department of Transportation, 2015

Priority evaluations, highway projects FY2016, Massachusetts Department of Transportaton, 2015

FY2013 Capital improvement program, Town of Brookline, MA, 2012, See $1,254,000 bond fund for 10 years for Carlton St. footbridge.

Minutes, Brookline Preservation Commission, April 12, 2011

Roll-call vote, Article 5, November 17, 2009, town meeting, Town of Brookline, MA

Warrant report for November 17, 2009, town meeting, Town of Brookline, MA

Hugh Mattison, The Muddy River restoration project, Brookline GreenSpace Alliance, 2009

William A. Newman and Wilfred F. Holton, Back Bay: The Story of America’s Greatest Nineteenth-Century Landfill Project, Northeastern University Press, 2006

David O. Mendelsohn, Muddy River project facilitation, in Robert L. France, ed., Facilitating Watershed Management, Rowman & Littlefield, 2005, pp. 55-58

Bridge to nowhere, Carlton Street Footbridge, 2003

Letter to Gilbert Hoy, Board of Selectmen, from Charles E. Beveridge, American University, re Carlton St. footbridge plans, September 25, 2001 (obtained from Cathleen Cavell)

Report of the town engineer, in Annual Report of Town Officers, Town of Brookline, MA, 1906, p. 157

Bridge over Boston & Albany Railroad at Carlton Street in Brookline, May 4, 1894, in Annual Report, Massachusetts Board of Railway Commissioners, 1895, p. 193

Report of the landscape architect, 1883, and Map for the Back Bay Fens, 1887, in Papers of Frederick Law Olmsted, Vol. 8: The Early Boston Years, reprinted by National Association for Olmsted Parks, 2010

Conservation Commission: will Muddy River flooding be controlled?, Brookline Beacon, July 16, 2014

Craig Bolon, Hazards of rail transport, Brookline Beacon, May 1, 2014

New England gas pipelines: attorney general weighs in

In New England, there are now six natural gas pipeline projects active, in review or announced. They would increase total pipeline capacity into the region by about 75 percent. There is no foreseeable market in the region for that amount of new gas. Instead, pipeline companies appear to be speculating on exporting U.S. natural gas through New England into international markets. However, they want New England utility customers to pay for their pipelines, and they have been working to sign up utility companies as business partners.

Northern route: The biggest project remains Northeast Direct, proposed by the Tennessee Gas division of Kinder Morgan, headquartered in Houston, TX. It is intended to connect between a major pipeline hub in Schoharie County, NY, just south of the Adirondacks, and a major hub in Dracut, MA. Most of it was originally routed across northern Massachusetts, carrying hydrofractured shale gas from eastern Pennsylvania into east central New England, with a design capacity of 2.2 billion cubic feet per day (Bcf/d).

The original Tennessee Gas proposal would have increased total gas pipeline capacity into New England by more than half, passing through conservation lands and close to many homes. It has been in state reviews and is in “pre-filing” status at the Federal Energy Regulatory Commission (FERC). It sparked intense protests in Massachusetts, with hundreds of residents turning out at each of several public hearings.

Tennessee Gas recently scaled back capacity to 1.3 Bcf/d, after rerouting much of the line through southern New Hampshire. The “pre-filing” comment period ended October 16. That day, Maura Healey–elected last year as Massachusetts attorney general–sent “scoping comments” to FERC about the Tennessee Gas proposal. The comments recommended measures to organize federal reviews:

• Rather than analyze isolated projects, FERC should prepare an Environmental Impact Statement (EIS) that forecasts regional needs for new natural gas pipeline capacity in New England and considers the combined impacts of all six current pipeline projects.

• The EIS should review potential impacts on both the region’s environment and the global environment. In particular, it should consider protected conservation lands, global warming and human health and safety.

Arguments: The attorney general clearly saw that piecemeal reviews were likely to lead to excess pipeline capacity, costs and environmental risks. However, in order to prevail, the attorney general needs to prepare for federal lawsuits, challenging a hidebound federal agency, and will need to break a logjam of legal barriers.

The attorney general cited Kleppe v. Sierra Club. [427 U.S. 390, 1976] In that case, early in the development of Powder River Basin coal in the Mountain West, the Supreme Court found that a regional review of proposals for coal mines was not required under federal law, but its opinion said regional reviews would be necessary in other circumstances.

The 1976 opinion held, “…when several proposals…that will have cumulative or synergistic environmental impact upon a region are pending concurrently before an agency, their environmental consequences must be considered together.” The Kleppe case has rarely been useful. Its range of conditions is so narrow that few practical circumstances qualify. As typically happens, New England gas pipeline projects that the attorney general cited are not now “pending concurrently before an agency.” Instead, they are at different stages:

Spectra, Algonquin Incremental Markets 0.342 Bcf/d under construction
Tennessee Gas, Connecticut Expansion 0.072 Bcf/d final FERC review
Tennessee Gas, Northeast Energy Direct 1.3 Bcf/d FERC pre-filing
Spectra, Atlantic Bridge 0.13 Bcf/d FERC pre-filing
Spectra, Access Northeast to 1.0 Bcf/d open season ended
Portland Natural Gas, Continent to Coast to 0.13 Bcf/d open season ended

As tallied by the attorney general, the projects total up to 2.974 billion cubic feet per day (Bcf/d) of new gas pipeline capacity, compared with 3.951 Bcf/d of current gas pipeline capacity.

The attorney general also cited some marginal cases and statutes: Massachusetts v. Environmental Protection Agency [549 U.S. 497], decided by the U.S. Supreme Court in 2007, and the Massachusetts Endangered Species Act and Global Warming Solutions Act. [St. 1990, C. 408, and St. 2008, C. 298] The Supreme Court case required new regulations from the U.S. Environmental Protection Agency for greenhouse gas emissions but said nothing about FERC projects. State laws might apply to state reviews of pipeline projects, but they do not govern FERC.

Regulations: Potentially stronger arguments from the attorney general are based on federal regulations implementing the National Environmental Policy Act of 1970. Under rules for scope of review [40 CFR 1508.25], federal agencies must consider “cumulative actions, which when viewed with other proposed actions have cumulatively significant impacts,” as well as “similar actions, which when viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis for evaluating their environmental consequences.”

Gas pipeline projects in New England certainly “have similarities.” They are all “reasonably foreseeable,” and they look likely to have “cumulatively significant impacts.” Beyond those strong suits, environmental objections from the attorney general might be overstated. They cite provisions of “guidance” documents, construing them as “requirements.” Section IV.B, third paragraph, asks for compliance with a draft document, “2014 CEQ Climate Impact Guidance,” which is also mentioned in Section IV.D of the comments.

Need versus greed: The attorney general’s comments said FERC is brushing off analyzing needs for more gas pipeline capacity as part of an environmental review. “FERC has indicated that this inquiry will not be part of the EIS.” [Detailed comments, first paragraph] Moving proactively, the attorney general arranged a professional review of those issues, described as follows:

“The Attorney General’s Office will soon release a study it commissioned…that examines the extent of New England’s need for additional energy supplies to ensure electric system reliability through the year 2030 and analyzes alternative solutions to meeting any such need, including costs to ratepayers and effects on greenhouse gas emissions.” [Introduction and summary of comments, sixth paragraph]

When first announced in early July, the study by Analysis Group of Boston was to be “completed by October, 2015.” Since then, its release has been postponed at least twice and was most recently promised for some time in November. It is to consider, in particular, the ocean import terminals for liquefied natural gas (LNG) now serving New England, specifically: “whether [needed] gas can by supplied by LNG or additional pipeline capacity is needed.”

New England is served by four ocean import terminals for LNG, with total capacity about 3.2 Bcf/d. However, because of high prices in overseas markets, during 2011 through 2014 only the Distrigas terminal in Everett, adjacent to Boston Harbor, received deliveries. The operator, GDF Suez, had long-term contracts at favorable prices. This past winter, price spikes in New England gas and electricity appear to have been trimmed by reactivation of the Northeast Gateway terminal off Gloucester.

Nearly doubling gas pipeline capacity into New England, as originally proposed, never made financial sense, if it were intended to meet needs of New England. The motive behind the giant proposals from the pipeline companies always looked like speculation on shipping hydrofractured shale gas coming from the Appalachians, particularly Pennsylvania, into Canada.

From Canada, the pipeline companies would export gas as LNG, coupling U.S. natural gas into international markets and expecting to raise prices. There are now permits for two Canadian terminals to export a total of about 1.5 BCf/d. From the viewpoints of the pipeline companies, New England has become a shipping route.

– Craig Bolon, Brookline, MA, November 1, 2015


Attorney General Healey calls on FERC to weigh gas needs and pending projects as part of review of Kinder Morgan pipeline, Office of the Massachusetts Attorney General, October 19, 2015

Scoping comments for the Northeast Energy Direct project, Office of the Massachusetts Attorney General, October 16, 2015 (edited for internal consistency)

Office to lead regional gas capacity study, Office of the Massachusetts Attorney General, July 6, 2015

Tux Turkel, Deliveries of liquefied natural gas, Portland (ME) Press Herald, February 1, 2015

Mary Serreze, Gas pipeline foes form three-state coalition, Springfield (MA) Republican, January 30, 2015

Joe Mahoney, Pipeline plan crosses archaeological site, sparks feud with FERC, Oneonta (NY) Daily Star, September 21, 2015

Alvin L. Alm, National Environmental Policy Act: past, present and future, U.S. Environmental Protection Agency, 1988

Scope of environmental review, Federal Regulations 40 CFR 1508.25, Cornell University Law School, 2015

Craig Bolon, New England gas pipelines: need versus greed, Brookline Beacon, August 29, 2015

School building wonder: mishegoss from moxie

Contractors on sites for a ninth elementary school reported at a joint meeting of the School Committee and the Board of Selectmen, starting at 7:30 pm October 22 in the fifth-floor meeting room at Town Hall. Fees for an outfit called Civic Moxie, addressed in Brookline, are approaching $100,000. So far, the town got little for such lavish spending. The new concepts aren’t that useful, and the useful concepts aren’t that new.

Shlock tactics: Contractors say they found 3-acre school sites. Brookline has not accepted postage-stamp sites for elementary schools since early years of the Great Depression. Old Lincoln School–less than two acres on Route 9, built in 1932–was the last of the postage-stamp sites. Social injustice in cramming old Lincoln School onto a squat of land on a busy highway sparked the 20 years of protests, between the 1970s and 1990s, that brought new Lincoln School on Kennard Rd.

Brookline school sites, counting adjacent parks

BrooklineSchoolSites
Source: School outdoors comparison, 2013

Site models illustrated by the contractors reuse old factories and warehouses found in depressed parts of Newark, NJ, and Baltimore, MD. Few of today’s Brookline parents probably look forward to housing their children in old factories and warehouses. Brookline never had much of either, anyway. Most of the ones remaining can be found in Brookline Village, between Station St. and Andem Pl. Contractors did not propose to reuse them.

Elementary school sites, from Newark and Baltimore

ShlockSchoolSites
Source: School site presentation, 2015

Search and research: In 2013, a committee organized by the Board of Selectmen produced a school site plan of sorts. Caught up in strong controversy, after proposing to use parks and playgrounds as sites, that committee backed away, recommending an approach it called “expand in place”–meaning enlarging current schools. As some members knew, such an approach could prove extremely costly. The Devotion School project now underway will cost around $120 million, yet it adds only about nine classrooms.

Neither the 2013 nor the recent 2015 study provides a geographical analysis, showing densities of increased school populations. Lack of this basic tool indicates that neither group sought professional guidance, and neither made constructive use of data and expertise already available in Brookline agencies. Instead, both engaged in speculation about specifics, without creating a knowledge base to guide the choices. The Moxie report describes six potential new school sites with some detail, five of them in urban Brookline.

New school sites in urban Brookline

NewBrooklineSchoolSites
Source: Ninth elementary school study, 2015

The sixth location, in suburban Brookline at the southeast corner of Larz Anderson Park, can probably be neglected as an elementary school site, since very few students would be within reasonable walking distance. Of the five urban sites, the one shown as no. 5 is old Lincoln School–firmly rejected as a suitable for a permanent elementary school. Instead, that site has become a land bank, Brookline’s relocation center during major town projects.

The three shown as nos. 2-4 are postage-stamp sites strung along Harvard St. All three are too close to either Pierce School or Devotion School to create a credible locus for a new school district. Only the site on Amory St., shown as no. 1, has some potential. However, this site would need to draw students from the low-density Cottage Farm and Longwood neighborhoods to make sense. Lack of geographical analysis for growth trends in Brookline’s student population makes it impossible to know whether the Amory St. site would solve more problems than it might create.

Moxie study files in their original form are probably outside most people’s price range: all but unreadable on much less than giant UHD 2160p displays costing around $2,000 and up. The study’s failure to explore the northeast side of Addington Hill–off Washington St. at Gardner Rd. and about equally spaced from Driscoll, Pierce, Lincoln and Runkle Schools–leaves a major gap in knowledge. The appendix files from the study show no attention at all to a critical part of Brookline.

–Craig Bolon, Brookline, MA, October 25, 2015


School site presentation, Brookline Department of Planning and Community Development, October 22, 2015 (9 MB)

Ninth elementary school study, Brookline Department of Planning and Community Development, October, 2015 (in 12 files, 92 MB)

Final report, School Population and Capacity Exploration Committee, Town of Brookline, MA, September, 2013 (3 MB)

Perry Stoll, Ninth school site presentation, Driscoll Action, October 22, 2015

Ulrich Mok, Brookline school outdoors comparison, Driscoll Action, November 15, 2013 (4 MB)

Recommendation, Edward Devotion School, Massachusetts School Building Authority, November 12, 2014

Trevor Jones, Brookline dedicates two newly renovated K-8 schools, Brookline Tab, December 13, 2012

Property listing, 194 Boylston St, Brookline, MA, RealtyTrac, 2008

Community Facilities, Comprehensive Plan for 2005-2015, Town of Brookline, MA, November, 2005 (7 MB)

Richard Feynman, Surely You’re Joking, Mr. Feynman!, W W Norton, 1985

Advisory Committee: don’t lock up town land, Brookline Beacon, October 3, 2015

School news: new superintendent, Devotion plans, Brookline Beacon, October 1, 2015

School enrollment: no room in the inn, Brookline Beacon, December 26, 2014

Education news: Advisory thinks, Chester blinks

The large, first-floor south meeting room at Town Hall, home to the Advisory Committee during town meeting seasons, witnessed another episode in the long-running struggles over regimented testing in public schools, starting at 7:30 pm Tuesday, October 20.

Earlier that day, Mitchell Chester, the state’s current education commissioner, had set off a policy bomb. It blew up a campaign to replace the testing used in Massachusetts public schools for the past 18 years–a campaign that had been led by Dr. Chester himself.

Tarnished icons: The mystique of regimented testing has been burnished and tarnished so often that it was surprising to hear a usually sophisticated Advisory Committee weave around the topics. However, it has been about fifteen years since a town meeting campaign that most recently introduced them into Brookline politics. Only a few current Advisory members have been involved long enough to remember.

Although precursors can be found in ancient China, medieval Europe and mid-nineteenth century Massachusetts, regimented testing is largely a twentieth-century phenomenon. A quantitative approach helped give standard tests a claim to objectivity, shrouding heavy cultural bias. The tests reward informally acquired language skills and penalize lack of those skills, tending to make them tests of home and community backgrounds.

When anyone thought to look, a secret emerged: test scores strongly tracking home and community incomes. Trends were discovered with IQ tests in the 1920s, Iowa tests in the 1930s and SAT tests in the 1940s. The more recent tests do likewise, including state-sponsored regimes. Scores from the early years of the Massachusetts MCAS tests showed strong associations with community incomes.

MCAS test scores versus community incomes

BostonMetroMcasPlotAbs01
Source: Significance of test-based ratings, EPAA, 2001

Dumping PARCC: Dr. Chester, of the state education department, has been serving as national board chair of Partnership for Assessment of Readiness for College and Careers (PARCC). Despite a glorified title, PARCC is a commercial test series produced by a division of Pearson PLC, a London-based publishing company. Its cachet has been fully computerized test administration and scoring.

Many observers have described the superficially clever construction of PARCC tests, seemingly designed to confuse and mislead. To people familiar with The Times of London or The Nation magazine, they suggest the prompts for British-style crossword puzzles.

In the United States, supposed merits of PARCC were quickly unmasked. As one experienced teacher put it, “Test manufacturers…tell us…their tests require critical thinking. They are lying. They prove [it with] relentless emphasis on test security.” Pearson will not allow teachers to see the questions that students were asked. If their tricks were to become known, they might easily be foiled.

In his day job as education commissioner, Dr. Chester had been in deep and obvious conflict of interest with his night job as chair of the PARCC board. When finally dumping PARCC on October 20, he arrived late to the party at a national trend. Over two-thirds of the state-level jurisdictions that tried PARCC have dumped it. Even by the obtuse standards of educational testing, PARCC was flagged as a loser.

Dr. Chester’s loyalists sententiously claim “there was no ultimatum given [by] Peyser and Baker”–meaning the new governor and his education secretary. Such pre-emptive denials tend to say the opposite. Politicians may not be great at higher math, but they can count.

Thinking about testing: At the fall town meeting scheduled for November 17, Article 16 seeks support for H. 340, pending in the General Court. Filed by Rep. Marjorie Decker of Cambridge, it would forbid, for three years, the use of “MCAS or another standardized test” as a “condition for high school graduation.” That is what many call “high-stakes uses” of test scores. Rep. Frank Smizik, who represents Brookline Precincts 2-4 and 6-13, is a cosponsor of H. 340 and also a co-petitioner for Article 16.

At Advisory Committee on October 20, Brookline resident Lisa Guisbond spoke for Article 16. She is executive director of Citizens for Public Schools, a Boston-based nonprofit founded to support progressive, public education. “With high-stakes uses of test scores,” she said, “the teaching focus is narrowed to the subjects tested…you lose access to a broad curriculum.”

In Brookline schools, that probably tends to happen with students who are identified as at risk of not graduating because they have trouble with one or more of the tests. Many of those students benefit from programs that try to strengthen their abilities in the areas tested. Inevitably, however, teaching to the test crowds out other areas of knowledge, as well as aspects of a topic that are not going to be tested.

Committee member Amy Hummel sounded eager to “put a moratorium on it.” Since 1993, she said, when a law authorizing MCAS was passed, “there are so many things that are different…MCAS is one vegetable in the pot…In my family, it’s converse to learning.” Few other committee members seemed to have such clear perspectives on regimented testing.

Some committee members tried to extrapolate from personal experience but found it difficult. Committee member Janet Gelbart remembered “studying for (New York state) Regents Exams…taking courses to learn how to take exams” but said her daughter was graduated from Brookline High School “long before MCAS.”

Many committee members seemed to discount educational experiences with testing regimes and instead resort to their hunches about policy. Committee member Fred Levitan said he failed “to see how stopping testing allows people to study it.” Clifford Brown saw “no reason to stop the use of testing.” Lee Selwyn said he couldn’t understand “shutting it down for three years.”

Advisory Committee members seemed confused when voting on the topics. When Sean Lynn-Jones first counted votes on a motion to approve Article 16, he found 9 in favor and 9 opposed, but some committee members said they did not understand what was proposed. After more explanation, a recount found 9 in favor, 10 opposed and 2 abstaining–putting the committee on record as narrowly opposing Article 16.

– Beacon staff, Brookline, MA, October 21, 2015


Warrant for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Article explanations for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Michael Jonas, Chester abandons PARCC, Commonwealth Magazine, October 20, 2015

Andy Hargreaves, Mary Bridget Burns and Shanee Wangia, The success of schools in Massachusetts cannot be explained by testing, Diane Ravitch on Education, June 18, 2015

An act relative to a moratorium on high stakes testing and PARCC, H. 340, Massachusetts General Court, 2015

David A. Goslin: The Search for Ability, Russell Sage Foundation, 1963

Craig Bolon: School-based standard testing, Educational Policy Analysis Archives 8(23), 2000

Craig Bolon: Significance of test-based ratings for metropolitan Boston schools, Educational Policy Analysis Archives 9(42), 2001

Lisa Guisbond, Testing reform victories, the first wave, National Center for Fair and Open Testing, 2014

Forum: regimented testing in Brookline public schools, Brookline Beacon, October 27, 2014

Craig Bolon, Dr. Lupini moves to Brookline, Brookline Beacon, June 21, 2014

School Committee: Driscoll plans, policies, technology and testing, Brookline Beacon, May 27, 2014

School Committee: celebrations, programs, policies and test scores, Brookline Beacon, May 12, 2014

Advisory subcommittee: new crews needed to right ships

Gathering in the large, first-floor south meeting room at Town Hall starting at 7:30 pm Wednesday, October 14, the Advisory subcommittee on planning and regulation heard two articles for the fall town meeting, scheduled for November 17.

Subcommittee members found that Article 12, offered by member Lee Selwyn to revise the meaning of “habitable space” under zoning, needed substantial review. They proposed referring the article to a committee to be appointed by Edward “Sandy” Gadsby, the moderator of town meeting, and Mr. Selwyn agreed.

Park land for Putterham neighborhoods: The subcommittee took a similar approach to Article 15, from petitioners led by Regina Frawley, a Precinct 16 town meeting member. However, circumstances are different. Convening a special review committee is actually what Article 15 asks for. It represents a long detour, starting from an article approved at the May 26, 2015, annual town meeting.

In Putterham neighborhoods–the southernmost parts of Brookline–as Ms. Frawley argued last spring, there is little public open space. During years of the Great Depression, when much development in those neighborhoods was underway, Brookline did not acquire park and playground land, as it had done earlier in other parts of town. The only sizable areas remaining as potential recreation space are the so-called “buffers” on the north side of Hancock Village.

Following development concepts worked out with the Brookline Planning Board during 1945 and 1946, when the John Hancock Mutual Life Insurance Co. developed Hancock Village, it left unbuilt land adjacent to single-family houses along Beverly and Russett Rds. Since then, that land has often served informally as recreation space for residents of Hancock Village, as well as those of nearby streets.

The Hancock Village buffers soon came under attack. First the Hancock Co., in the 1950s, and then the next owner–the Niles Co.–in the 1960s, applied to turn the buffers into parking lots. The apartment zoning approved at the 1946 annual town meeting had left the buffers part of the large single-family zone to the north, which does not allow parking lots. The Zoning Board of Appeals turned down the applications.

Recent perils: More recently, the current owner–a subsidiary of Chestnut Hill Realty–has proposed to build both parking lots and more apartments on the buffers. The proposal, approved by the Zoning Board of Appeals last February, draws on provisions of Chapter 40B of the General Laws to override zoning in return for partly subsidized housing.

The current Board of Selectmen and its predecessor opposed the Hancock Village 40B project, although neither has been successful so far. The predecessor board–including Kenneth Goldstein and Betsy DeWitt–sued the Massachusetts Development Financing Agency for issuing a “project eligibility letter,” allowing the project application to proceed. That lawsuit has been dismissed at both superior court and the Court of Appeals.

While considering further appeal of the first case, the Board of Selectmen–now including Nancy Heller and Bernard Greene–is suing members of the Brookline zoning board in Land Court for approving the Hancock Village 40B project. A hostile motion to dismiss is pending in that case, building on the loss by the Board of Selectmen at the Court of Appeals.

The Board of Selectmen now looks mired in conflicts around a proposal to use land at Hancock Village for recreation. Besides the two lawsuits, at this year’s annual town meeting, recently elected board member Nancy Heller filed Article 17, promoting changes to the 40B law that would authorize “local elected officials” to make “binding recommendations” on 40B projects.

Reviewing recreation land: When this year’s annual town meeting approved Article 18, asking the Board of Selectmen to “study and consider in good faith” taking the Hancock Village buffers as permanent recreation land, almost everyone assumed the board would appoint an independent, expert review committee. However, nothing like that has happened so far.

Instead, about a month later, the board sent the Advisory Committee a $15 thousand reserve fund request to hire a consultant, who would work with town staff reporting to the board. The Advisory Committee took note of Massachusetts cases involving conflicts between 40B projects and land takings for other purposes, when refusing to fund a consultant interacting with the Board of Selectmen.

While land taking for community uses is possible, even though a 40B project has claims, it must occur in “good faith” and not mainly to block a project. Involvement by the Board of Selectmen in a proposal for Hancock Village land, given their conflicts, looks to risk poisoning the well and defeating an attempt to acquire land for recreation.

Seeing a Board of Selectmen seemingly frozen on recreation land issues, doing nothing constructive, Ms. Frawley and co-petitioners filed Article 15 for the November town meeting. It calls for a special review committee, to be appointed by the Advisory Committee and the moderator of town meeting. That could separate the recreation land issues from the Board of Selectmen and allow them to be reviewed in “good faith.”

Recommendation: For the subcommittee, Ms. Frawley briefly reviewed activities related to recreation land at Hancock Village since May. According to her, Melvin Kleckner, the town administrator, opposed an independent committee to review the issues–at first claiming to be “too busy” to meet with her and then, two weeks later, saying he intended to hire a consultant.

Mr. Kleckner is a town employee who lives elsewhere, not an elected official of Brookline. Since he was apparently involved in withholding information about a $200 thousand cost overrun during the May town meeting, his relations with the Advisory Committee have become rocky at best. One long-term committee member, reportedly fed up with disrespectful treatment, has resigned from the committee.

According to Ms. Frawley, Mr. Kleckner said the issues of recreation land are “too challenging” for mere citizens. Somehow though, over the years, Brookline citizens managed acquisitions of Hall’s Pond, Amory Woods and the Blakely Hoar Sanctuary, plus more than 100 park and playground parcels, without need for Mr. Kleckner’s consultants.

Subcommittee member Lee Selwyn recalled the $15 thousand reserve fund request for a consultant that had been rejected, suggesting that a committee may need “paid expertise.” Ms. Frawley said the committee could assess its needs. Stanley Spiegel, the subcommittee chair, said nine messages in support of Article 15 and one opposing it were on record so far. The subcommittee favored Article 15 and recommended approval, in a unanimous vote.

– Beacon staff, Brookline, MA, October 16, 2015


Warrant for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Article explanations for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Comprehensive permit for The Residences of South Brookline, LLC, on the site of Hancock Village, Zoning Board of Appeals, Town of Brookline, MA, February 20, 2015 (4 MB)

Board of Selectmen to Land Court: you win, Brookline Beacon, October 5, 2015

Hancock Village lawsuit: Brookline’s appeal dismissed, Brookline Beacon, September 29, 2015

Advisory Committee: probing a disconnect, Brookline Beacon, July 29, 2015

Craig Bolon, Advisory Committee: reach for the reset button, Brookline Beacon, July 8, 2015

Craig Bolon, Board of Selectmen: poisoning the well, Brookline Beacon, July 2, 2015

Advisory Committee: new park land for Putterham neighborhoods, Brookline Beacon, April 10, 2015

Craig Bolon, Hancock Village: development pressures, Brookline Beacon, February 22, 2015

Earthquake risks: raised for Brookline and New England

Although earthquakes in New England have been rare, risks in the region are greater than previously known. Our main sponsor of earthquake investigations has been the U.S. Geological Survey (USGS), an agency in the Department of the Interior. The agency issued revised estimates of U.S. earthquake risks in 2014, explained in a scientific journal article published in 2015.

Earthquake history: The most recent major earthquake in the region occurred 260 years ago: the Cape Ann earthquake of November, 1755. Its energy has been estimated at Richter magnitude 6.2, only a little less than the Northridge earthquake of 1994 that collapsed Interstate 5 through Santa Monica, CA. Hundreds of Boston chimneys shattered in 1755, church steeples toppled and walls of more than a dozen brick buildings collapsed.

Cape Ann earthquake of 1755, in Boston

CapeAnn1755EarthquakeUsgs
Source: antique woodcut, U.S. Geological Survey

Damage from a similar earthquake today could be widespread and severe, given the area’s large inventory of unreinforced solid brick buildings from the 1920s and before on soft, waterlogged soils–found in much of the urban parts of Boston, Brookline and nearby communities. A strong earthquake could liquefy soft soils and jolt foundations. The main MIT campus, built over garbage and landfill, might be at major risk.

Revised risk estimates: According to seismologist William Leith of USGS, “The [2014] exposure estimate [of 143 million U.S. residents at risk from earthquakes] is nearly double the [2006] estimate of 75 million….” Dr. Leith omitted to mention that an “at risk” criterion had been changed by the agency, a kind of mission creep.

However, some of the 2014 risk estimates, as compared with previous estimates in 2006, represent real increases in recognized risks. Much of the recent evidence comes from monitoring and reanalysis of small earthquakes, frequently occurring in New England. The U.S. northeast shows five main clusters of increased risk recognition, the greatest south of the White Mountains of New Hampshire.

Earthquake risk changes, northeastern U.S.

EarthquakeRiskChanges2006to2014EastCentralUs
Source: U.S. Geological Survey, 2014 vs. 2006

Despite improvements, distance intervals used with USGS earthquake risk estimation remain too coarse to reflect New England soils. Subsoil structure can change greatly in a mile or less. So far, New England governments have not tried to address those challenges of estimation. According to 2014 USGS analytical maps, risks in metropolitan Boston rapidly rise toward the north and fall toward the south.

For urban Brookline and Boston, a 2014 USGS risk contour map shows a 2 percent risk in 50 years of an earthquake with about 0.15 g peak ground acceleration. That would be between 6 and 7 on the Mercalli scale of local intensity. By comparison, effects in Boston from the 1755 Cape Ann earthquake have been estimated at about Mercalli 8, an intensity currently predicted to occur around once per 700 years (that is, a more frequent event).

Earthquake risk contours, northeastern U.S.

NortheastGroundAccelerationContours2014
Source: U.S. Geological Survey, 2014

An apparent discrepancy in Boston-area risk estimates could come from local amplification of earthquake effects, owing to soil conditions and building techniques. Urban areas around Boston have risk factors that might be compared with Mexico City. Effects there of a September, 1985, earthquake were severe, although the magnitude 8 epicenter was about 250 miles west, near the Pacific coast.

Risks in New England are significant but notably less than those near New Madrid, MO, and Charleston, SC–the eastern U.S. areas at highest risk. Three major earthquakes between December, 1811, and February, 1812–up to near magnitude 8 and centered in southeast Missouri, northeast Arkansas and westernmost Kentucky–were the strongest series in recorded U.S. history.

New Madrid, MO, was largely destroyed in 1812. Ground shaking was noted in Boston, about 1,100 miles away. Seismic activity in the New Madrid area remains high. Investigations found similar, disastrous earthquakes had previously occurred nearby over recent millennia.

Consequences: Potential consequences of 2014 USGS risk revisions in the Boston area, over several years, are changes to earthquake resistance codes for buildings and infrastructure. Unreinforced solid brick buildings could require total replacement after a strong earthquake. While most homeowner insurance policies exclude earthquake coverage, riders are usually available, but premiums may rise.

The Earthquake Hazards Program at USGS has become a child of neglect. It has been funded at about the same amount for 2015, in dollars of the year, as for 1975–while general inflation eroded over three-quarters of the former purchasing power. Spending in the wake of a disaster does not help to prevent or reduce it.

– Craig Bolon, Brookline, MA, October 14, 2015


Michael Casey, Nearly half of Americans at risk of an earthquake, CBS News, August 10, 2015

Matt Rocheleau, Major quake expected in New England once every 1,000 years, Boston Globe, July 23, 2015

Jeremy Miller, Boston’s earthquake problem, Boston Globe, May 28, 2006

Carl W. Stover and Jerry L. Coffman, The Cape Ann (MA) earthquake of 1755, U.S. Geological Survey, 1993

Kishor S. Jaiswal, et al., Earthquake shaking hazard estimates and exposure changes in the conterminous United States, Earthquake Spectra 31(3), 2015 (forthcoming, online 10.1193/111814EQS195M)

Mark D. Petersen, et al,, Documentation for the 2014 update of the United States national seismic hazard maps, U.S. Geological Survey, 2014 (113 MB)

Mark D. Petersen, et al,, Seismic-hazard maps for the conterminous United States, U.S. Geological Survey, 2014 (Sheet 2, map of peak horizontal acceleration with 2% probability of exceedance in 50 years, 10 MB)

Tony Schinella, Another NH earthquake hits the capital region, Nashua (NH) Patch, August 1, 2015

Earthquakes of 1811-1812, City of New Madrid, MO, c. 2014

John E. Ebel, Report on the New England Seismic Network, U.S. Geological Survey, 2012

Robert A. Williams, Earthquake hazard in the New Madrid seismic zone remains a concern, U.S. Geological Survey, 2009

John E. Ebel, Earthquakes in New England, Cape Naturalist 13(4):63-66, spring 1985

Advisory Committee: return of the leafblowers

On Thursday, October 8, the Advisory Committee got off to an uncertain start at 7:30 pm in the first-floor south meeting room at Town Hall. With Sean Lynn-Jones away, Carla Benka, the vice chair, led a session that focused mainly on leafblowers.

Beginning in 2000 with a petition article from Jerome Sadow, unsuccessful on first try, this is the fourth visit by leafblowers to town meeting. Article 10 for the fall town meeting, starting November 17, calls for a total ban on the machines–however powered and however used. Article 11 calls, on the other hand, for extensions to seasons of allowed use. Noise remains the most common complaint.

Sound and noise levels: Ordinary conversations typically involve sound levels around 60 decibels A-weighted (dBA), at a distance of 3 ft. Perceived loudness doubles with each 6 dBA increase. Federal noise exposure limits, intended to prevent hearing damage, have long been 85 dBA for an 8-hour workday. At that intensity, conversation is almost impossible. The noise would sound around 20 times louder than ordinary conversation.

Introduced in the 1970s, small leafblowers have long been loathed because of noise, although performance has gradually become more tolerable. Some of the earliest machines emitted literally earsplitting noise: as loud as 95 dBA, measured at a distance of 50 ft. Unprotected operators, who work much closer to machines, experienced up to 115 dBA, comparable to peak noise from a 737 jet on takeoff, measured about 200 ft from a runway.

Demographic shifts: As Brookline’s populations changed, more people tended to be working longer hours. They tended to have less free time and more surplus income. Rather than do their own lawn care and gardening, they turned increasingly to landscapers, who brought increasing amounts of power equipment, including leafblowers.

By the middle 1990s, Brookline had a noise bylaw limiting lawn and garden equipment to a maximum noise level of 80 dBA at a distance of 50 ft. Many leafblowers then in use were noisier than permitted, but there was little enforcement. In 2000, that situation prompted Mr. Sadow to propose limiting leafblower noise to 72 dBA. However, only a few leafblowers then available could meet such a standard.

Leafblower limits: After a long review by a moderator’s committee, the fall town meeting of 2001 voted to limit leafblower noise to 72 dBA for units manufactured in 2002 or later and to limit hours of operation: 8 am to 6 pm on weekdays and 9 am to 6 pm on weekends. The Police Department got more sound level meters, and enforcement became somewhat more attentive.

The slow phase-out of older, noisier leafblowers and the continued increases in use left many residents unsatisfied. At the fall town meeting of 2008, a package of revisions to Brookline’s noise control bylaw, introduced by the Board of Selectmen, lowered the maximum allowed noise level for leafblowers manufactured in 2009 and later to 67 dBA, measured at 50 ft. However, hours of permitted use were extended: 7 am to 7 pm weekdays and 8:30 am to 6 pm weekends and holidays. Those standards remain in effect today.

After seeking stronger measures from the 2008 fall town meeting and leaving empty-handed, Andrew Fischer, a Precinct 13 town meeting member, returned at the 2011 fall town meeting proposing restrictions specific to leafblowers in a new bylaw. It set seasons of allowed use: between March 15 and May 15 and between September 15 and December 15, allowing emergency uses out-of-season by town workers. It also set penalties: from a warning on a first offense to a $200 fine on a third or later offense.

For his efforts, Mr. Fischer was rewarded by opposition from all members of the Board of Selectmen and from all but one member of the Advisory Committee. They tried to shoo him away with a resolution, merely asking residents and contractors to be “considerate…sensitive…[and] reasonable.” Mr. Fischer argued that lapses from those fine sentiments had been at the heart of continuing problems with leafblowers. He won the day.

Another round of review: This fall, Richard Nangle, a Precinct 15 town meeting member, with other petitioners, is seeking a total ban on leafblower use in Brookline, under Article 10. At Advisory, Mr. Nangle argued that enforcement of Mr. Fisher’s leafblower law has not worked. Leafblowers continue in use out-of-season, landscapers sometimes claim they are “exempt” from laws and police are rarely able to catch violators. Only ten percent of complaints logged over three years resulted in citations.

Local landscapers led by Faith Michaels and Peter Gately, who are behind Article 11 seeking to extend the leafblower seasons, spent most of their efforts opposing Article 10. They claimed leafblowers have been key elements in making money as landscapers. Erin Gallentine, the director of Parks and Open Space, was equally emphatic, citing time and motion studies. Under Article 11, landscapers want to end the spring season on June 15, not May 15, and want to end the fall season on December 31, not December 15.

Leafblowers, they all said, do a better and more efficient job than rakes and brooms. However, Ms. Michaels and Ms. Gallentine were unable to explain why total clearance of leaves should be critical today, when 40 years ago and earlier–before leafblowers came to Brookline–it wasn’t. Somehow, previous generations had managed to live safely and happily despite some stray leaves.

After 20 minutes into a stem-winding report from the subcommittee on public safety, Janice Kahn, the chair, disclosed that it had no position on Article 10, seeking a ban–despite two sessions of public hearings. Charles “Chuck” Swartz, a Precinct 9 town meeting member, sought to send Article 10 to a committee, when it had already arrived at a committee: the Advisory Committee.

Subcommittee member David-Marc Goldstein described regulations in Cambridge and Arlington. Unlike Brookline, those communities limit numbers of leafblowers in simultaneous use, according to sizes of lots. It did not seem to occur to subcommittee members that anything between the status quo and a total ban might come within the scope of Article 10, and they did not propose such limits for Brookline.

Alan Balsam, the health director, undercut one argument against leafblowers: debris they blow into the air along with leaves. Dr. Balsam said the Advisory Council on Public Health had “found no compelling health threat.” Ms. Michaels dealt with another concern, worker exposure to noise. Units her company and others said they now use, rated for 65 dBA noise at 50 feet, expose workers to 83 dBA, below the federal limit for 8-hour industrial exposure.

Recommendations: Slogging through a total of six motions from Advisory Committee members, Ms. Benka organized recommendations. The committee opposed a leafblower ban under Article 10. That got only three votes. Under Article 11, the committee supported a minor change authorizing the public works commissioner to allow leafblower use in emergencies, but it opposed extending regular leafblower seasons.

– Beacon staff, Brookline, MA, October 11, 2015


Warrant for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Article explanations for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Records of town meetings since 2000, Town of Brookline, MA, 2015

Leaf blower information, Town of Brookline, MA, 2012

Leaf blower study group, Town of Lincoln, MA, 2015

Leaf blowing, Department of Public Works, City of Cambridge, MA, 2014

Craig Bolon, Recycling: from wartime campaigns to secular religions, Brookline Beacon, October 6, 2015

Public works: solid waste carts

In the next few months, the Brookline Department of Public Works is expected to propose changes to solid waste collection, the first since so-called “single stream” recycle carts were delivered to households five years ago. This time the department is expected to supply carts for general refuse. The word so far is that the cart capacity might be 35 gallons or less–far smaller than most cities and towns provide.

Standard waste containers: The past several years have seen a trend toward cities and towns in Massachusetts supplying waste bins or carts rather than expecting residents to provide them. In Brookline that began in 1990 with 12-gallon “blue bins” supplied by Laidlaw, Inc., when it began to collect and process Brookline’s second-generation, multiple stream recycle waste.

Twenty years later, Brookline switched to “single stream” recycling operated by Waste Management, Inc. Flatbed trucks distributed a 65-gallon cart with wheels to each participating household. Although little publicized, on request Public Works will supply a 35-gallon or a 95-gallon cart instead.

As of 2014, at least 56 of the 351 Massachusetts cities and towns were supplying waste carts to residents, according to municipal solid waste survey reports available from the state’s Department of Environmental Protection. The 1.1 million households in those communities are nearly half the state population of 2.4 million households.

For recycle waste, 49 communities provided carts. For general refuse, 37 communities provided carts. Seven communities provided only carts for general refuse, while 19 communities, including Brookline, provided only carts for recycle waste. All data are from the state survey report for 2014 except for Newton and Bedford, which did not report that year; their data from 2013 were used instead.

Cart sizes: Capacities of most solid waste carts are rated at about 65 or 95 gallons. A few towns use other sizes, including about 25, 35 or 50 gallons. Weighted by the numbers of participating households, the statewide average capacity of a cart for general refuse was 69 gallons. The average capacity of a cart for recycle waste was 75 gallons.

Numbers of households using waste carts, by capacities

HouseholdsUsingRefuseCartSizes
 
 
HouseholdsUsingRecycleCartSizes
Source of data: Massachusetts Department of Environmental Protection

A solid waste cart size of 35 gallons or less would put Brookline far outside the mainstream practices of Massachusetts cities and towns. Only the two small towns of Hamilton and Wenham provide carts for general refuse in that range of capacity. They represent less than one percent of households participating in Massachusetts programs with municipally supplied carts.

– Beacon staff, Brookline, MA, October 9, 2015


Waste reduction and recycling, Massachusetts Department of Environmental Protection, 2015

Capacities of waste carts by Massachusetts communities for 2014, with numbers of participating households, data from Massachusetts Department of Environmental Protection, 2015

Craig Bolon, Recycling: from wartime campaigns to secular religions, Brookline Beacon, October 6, 2015

Public Works: question time and complaints, Brookline Beacon, May 15, 2014


Editor’s note –

Advisory Committee member Stanley Spiegel wrote, stating that Hamilton and Wenham operate food waste collections for composting, separate from general refuse. So far, Brookline is not known to be planning any similar program.

Recycling: from wartime campaigns to secular religions

As John Tierney recently wrote in the NY Times, today recycling is being “promoted as a goal in and of itself”–turning away from traditional grounding in environmental and financial concerns. No local activists involved with solid waste are known to have career experience in process management, industry economics, mechanical engineering or manufacturing. While goals might sound civic-minded, backgrounds do not suggest skills to develop policies for waste handling.

Recycling generations: Municipal recycling emerged in the 1940s with “paper drives” to support World War II efforts, collecting telephone books and newspapers. Those could often be converted into low-strength containers and excelsior, or “wood wool”–with financial gains realized mainly through unpaid, volunteer labor.

A wider scope of efforts took off in the 1960s–involving multiple materials and paid curbside pickup. While they made inspiring news copy, within a few years financial and environmental inventories showed efforts to be counterproductive. More petroleum and other nonrenewable resources were being consumed than saved.

Third-generation efforts, taking off in the 1990s, tended to evade criticism. Sponsors announced internal rather than external goals: simply aiming to divert tonnages in waste streams rather than trying to justify programs through either environmental or financial benefits. Somewhat like bake sales: “just because.”

Modern times: So-called “single-stream”–a recycling poster-child for the past several years–involves less effort for households and for collection crews. Otherwise, it has become a financial and environmental disaster. Once-plentiful streams of old newspapers and telephone books are largely gone, thanks to an Internet age when few people want information on paper.

Mixing rather than separating materials causes everything to be smeared with food waste, mashed and broken. Retrieving anything useful from the rubble takes more effort and yields materials that are either ruined by soilage, including paper, or that need expensive washing, including plastics and metals. Net returns from recycled materials have plummeted. However, some ordinary recycling has survived.

Take leaves–for example–or rather, “rake leaves.” That’s what we’ve been doing for over 40 years. A small plot in back holds most of a year’s leaf-fall. By the next year, rain has packed it into a dense layer, and we can add another year’s harvest. After about 20 years, there was enough well-digested leaf compost to start enriching gardens and flowerbeds.

Besides providing fall exercise, the habits save town labor and fuel. They slow, but they do not eliminate, air pollution. Decomposing leaves release some methane, a greenhouse gas. Commercial composters have started trapping methane and using it to generate electricity. Burning leaves, as people used to do, would release large amounts of carbon dioxide and pollute the air with smoke, including partly burned compounds.

We, the town and the state all fail to inventory recycling and publish results on environmental life cycles and overall finances. While we are aware of general directions in which some efforts are leading, we know little about amounts or balances.

– Craig Bolon, Brookline, MA, October 6, 2015


John Tierney, The reign of recycling, New York Times, October 4, 2015

Peter Thorsheim, Waste into Weapons: Recycling in Britain during the Second World War, Cambridge University Press, 2015

Craig Bolon, Recycling makes more progress without trash metering, Brookline Beacon, April 11, 2014

Board of Selectmen to Land Court: you win

On Tuesday, September 29, three members of the Zoning Board of Appeals who are being sued for awarding a permit allowing a Chapter 40B development at Hancock Village met in a rare closed session. The judge hearing the Land Court lawsuit against them had threatened to remove Joslin Murphy, Brookline’s town counsel, from representing the Board of Selectmen if no legal representation were provided for the appeals board members. Appearances to represent the three were filed the following day, just before the deadline.

Eye on the money: There have been no agenda items for the Board of Selectmen to allocate money for such a purpose from the contingency fund or make a request from the reserve fund. That leaves the outside services budget for the Office of Town Counsel as a likely source of funds. The costs could put substantial pressure on a budget account that already seems overstressed.

The new appearances at the Land Court for zoning appeals members were from Kathryn Murphy and Jill Meixel of Krokidas & Bluestein in Boston. Ms. Murphy of the Krokidas firm was one of two lawyers from that firm hired to advise the zoning appeals board during hearings on the Hancock Village Chapter 40B application. Spending on outside services during that episode averaged around $25,000 a month.

The Office of Town Counsel is also bearing costs of representing the Board of Selectmen in the Land Court case. During the Hancock Village episode, outside legal bills totaled $295,121, far more than the outside services budgets for the Office of Town Counsel. The Advisory Committee was approached multiple times to tap the reserve fund. A double burden of costs had been observed last April by committee member Lee Selwyn, who said the town was “turning the heat and the air conditioning on at the same time.”

Next events: While the Board of Selectmen apparently did not participate in funding recent legal services, it is nearly inconceivable they would not have been informed. The board can probably dodge bullets for a while, but as costs mount either they will have to abandon their Land Court lawsuit or else they will need to go back to a skeptical Advisory Committee for more money.

At Land Court, Judge Gordon Piper has scheduled a status hearing as part of a court session starting at 10 am on Friday, October 16. He also took official notice of the Court of Appeals rulings issued September 25, undercutting at least one key element of the Land Court case.

– Beacon staff, Brookline, MA, October 5, 2015


Town of Brookline and others v. Jesse Geller, Member of the Brookline Zoning Board of Appeals, and others, Massachusetts Land Court case 2015-MISC-000072, filed March 11, 2015 (click button to search public records, select Land Court Department and Case Number tab, enter case number “15 MISC 000072″ and click Search button, click any Case Number item for “15 MISC 000072″)

Memorandum and order, case number 2014-P-1817, Town of Brookline and others v. Massachusetts Development Finance Agency and others, Massachusetts Court of Appeals, September 25, 2015

Hancock Village lawsuit: Brookline’s appeal dismissed, Brookline Beacon, September 29, 2015

Land Court to Board of Selectmen: put up or shut up, Brookline Beacon, September 20, 2015

Land Court: Dueling boards, Selectmen v. Zoning Appeals, Brookline Beacon, September 5, 2015

Craig Bolon, Advisory Committee: reach for the reset button, Brookline Beacon, July 8, 2015

Advisory Committee: missing records, more skeptical outlooks, Brookline Beacon, April 2, 2015

Advisory Committee: don’t lock up town land

The first Advisory Committee warrant review for the fall, 2015, town meeting got underway at 7:30 pm on Thursday, October 1, in the first-floor south meeting room at Town Hall. The committee tackled Article 6, likely to be one of the most contentious. It recommended against adding more restrictions on use of town land–specifically, Larz Anderson Park–until community needs for school expansion are better understood.

Lakeside view at Larz Anderson Park

LarzAndersonLake
Source: Brookline Recreation Department

Larz Anderson Park: The land now known as Larz Anderson Park was conveyed to the Town of Brookline through the will of Isabel Weld Perkins Anderson, wife of Larz Anderson, III (1866-1937), after she died in 1948. The Weld family, from whom she was descended, had owned the former Windy Top estate since the 1840s. It also owned the site of today’s Hancock Village, using it for a private golf course until 1945.

Although it might seem odd now, Brookline’s 1949 annual town meeting struggled over whether to accept the gift of land. Some said Brookline could not afford to maintain it. The large parcel was then occupied by a mansion, by Italianate gardens at the hilltop and by several support buildings–including a handsome garage for classic automobiles that had interested Mr. Anderson.

Eventually doubts were overcome, and the town meeting voted to accept the bequest. That said the land must be used for park, educational or charitable purposes. A location at the edge of town–64 acres bordering Jamaica Plain, far from the town’s population centers–led to use for what has become Brookline’s best known public park. It includes a small lake, picnic and grill facilities, baseball fields and an outdoor skating rink.

Unfortunately, the Brookline DPW description of Larz Anderson Park on the municipal Web site omits nearly all the rich historical context of the site. The DPW map display offers text that will be unreadable with most browsers and monitors. The map information is not page-linkable, does not name, locate or describe the park features and does not outline the park boundaries–a disgrace.

Parkland protection: For many years, most involved in Brookline’s government had thought the major town parks were protected under Article 97 of the Massachusetts state constitution. However, several may not be, including most of Larz Anderson Park. Parkland protection under Article 97 requires a declaration by a town meeting.

At a public hearing held September 30 by the Advisory subcommittee on capital, Joslin Murphy, the town counsel, testified that the status of protection for several Brookline parks is uncertain. Recent cases from state appellate courts say protection is not active simply because of ways land has been acquired or used.

Restrictions in wills, deeds and trusts are not generally permanent, under Massachusetts law. Brookline was sharply reminded of that by the recent Court of Appeals decision affecting Hancock Village. In many circumstances, those restrictions expire after 30 years. Massachusetts General Laws, Chapter 184 (Real Property), Section 23, provides (in part):

“Conditions or restrictions, unlimited as to time, by which the title or use of real property is affected, shall be limited to the term of thirty years after the date of the deed or other instrument or the date of the probate of the will creating them, except in cases of gifts or devises for public, charitable or religious purposes.”

There are other exceptions to the 30-year rule. Conditions of wills and deeds involved with Brookline parks will need review. Brookline also needs to review which parks or parts of them are covered by town meeting declarations protecting land under Article 97. Such protection can be altered, but according to Ms. Murphy that takes a unanimous vote of the supervising board and two-thirds votes of both a town meeting and the General Court. Only votes in the General Court are required by Article 97. Ms. Murphy did not cite any sources for other requirements.

Proposal and background: In Article 6 for the November town meeting, the Park and Recreation Commission is proposing to declare about 55 of the 64 acres at Larz Anderson Park protected under Article 97. That would be needed to satisfy requirements for a state grant, reimbursing parts of planned improvements. The hilltop, now occupied by the town’s skating rink, was protected in 1998. According to Ms. Murphy, most of the remaining park area is probably not similarly protected.

In 2013, under item B.15 of Article 8, the annual town meeting appropriated $0.66 million for a program of improvements at Larz Anderson Park. However, the DPW Division of Parks and Open Space had developed a plan needing more than $1 million. For the balance, the division expected to seek state support. The division has prepared an application for a $0.4 million grant, not yet acted on.

Brookline’s continuing surge in school enrollment became a wild card in the deck. In December, 2014, the town hired a consultant to review needs and possibilities to build new schools. After a surge of school building during the middle and late nineteenth century, school sites have become a foreign topic. During the twentieth century, the only new school site was for Baker School on Beverly Rd., opened in 1939. The new Lincoln School opened in 1994 at the former, private Park School site on Kennard Rd.

It has been more than 75 years since Brookline had to search for a wholly new school site, one that was not in similar use before. Over that time, the town has become fully built-out, and land prices have escalated. If Brookline tried to buy land equivalent to Larz Anderson Park today, $50 million might not be enough. Most of that parkland area apparently remains eligible for use as a school site.

Advisory review: The Advisory subcommittee on capital brought in a recommendation against Article 6, by a vote of 1-4. Amy Hummel took more than ten minutes to present it, mentioning only at the end that all the other subcommittee members opposed Article 6. A prospect of locking up $50 million or more in permanent land value in return for $0.4 million or less in one-time state aid had not convinced them.

Erin Gallentine, the director of parks and open space, tried to sway the committee with arguments about a 1989 “master plan.” She said park improvements were “the next big vision for the community.” The 1989 document has not been available on the municipal Web site–a plan that few committee members had even heard about. The recently prepared grant application has not been available on the municipal Web site either.

Strangely, Ms. Gallentine did not distribute details of the grant application to Advisory Committee members, who were left to imagine what it proposed. Committee member David-Marc Goldstein asked how likely Brookline stood to get $0.4 million. Ms. Gallentine offered a rambling reply that sounded uncertain. An amendment was offered to restrict spending to any amount awarded. John Doggett asked about protecting a smaller part of the park. Ms. Gallentine complained she would have to change the grant application.

Exploring an activity that seemed contrary to restrictions of the Anderson bequest, Leonard Weiss asked how DPW equipment garages came to be built on Larz Anderson land. Ms. Gallentine claimed not to know, saying that had happened “before my time…done by the Park Department.” The former independent department was made into a DPW division through a 1981 town meeting article, after long-time director Daniel Warren retired.

Carla Benka, chair of the subcommittee on capital, described her work years ago to get Larz Anderson Park listed on the National Register of Historic Places. That insures a process of review for most proposed changes. She questioned the relevance of a 1989 plan, comparing school versus open-space priorities and saying, “It’s not right to play favorites…a whole lot has changed in 26 years.”

Several committee members defended Article 6 against detractors, including Mariah Nobrega, Michael Sandman and Stanley Spiegel. However, few votes were there for those views. Ms. Benka joined a majority of more than two to one, recommending that town meeting turn down Article 6.

– Beacon staff, Brookline, MA, October 3, 2015


Larz Anderson Park information and reservations, Recreation Department, Town of Brookline, MA, 2012

Memorandum and order, case number 2014-P-1817, Town of Brookline and others v. Massachusetts Development Finance Agency and others, Massachusetts Court of Appeals, September 25, 2015

Sanjoy Mahajan v. Department of Environmental Protection, Massachusetts Supreme Judicial Court, 464 Mass. 604, 2013

Board of Selectmen of Hanson v. Melody Lindsay, Massachusetts Supreme Judicial Court, 444 Mass. 502, 2005

Adele Toro v. Mayor of Revere, Massachusetts Court of Appeals, 9 Mass. App. Ct. 87, 1980

Massachusetts Constitution, as amended through 1990, see Article XCVII (97, approved 1972) and Article XLIX (49, superseded)

Warrant for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Article explanations for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Advisory Committee: new park land for Putterham neighborhoods, Brookline Beacon, April 10, 2015

Craig Bolon, School enrollment: no room in the inn, Brookline Beacon, December 26, 2014

School news: new superintendent, Devotion plans

News spread Wednesday, September 30, that William Lupini, the school superintendent since 2004, will be leaving Brookline schools soon. Dr. Lupini is expected to head Essex North Shore, a county-based district founded in 1913 serving several communities–including Beverly, Boxford, Danvers, Essex, Gloucester, Hamilton, Lynnfield, Manchester, Marblehead, Middleton, Nahant, Rockport, Salem, Swampscott, Topsfield and Wenham. That might involve less time commuting from the North Shore town where he lives.

Interim superintendent: The near-term replacement, pending final negotiations, is expected to be Joseph Connolly, since 2014 the interim principal of Devotion School–as he confirmed to the Beacon on Wednesday. Dr. Connolly enjoyed a long career in public-school teaching and leadership before retiring as superintendent of the Stoneham public schools in 2007. His would-be “retirement” was soon interrupted by several interim leadership positions, most lasting about a year.

Before heading the Devotion School administration, Dr. Connolly served during 2009 and 2010 as the interim principal of Runkle School, following another sudden resignation. At both Runkle and Devotion, he has been involved in major renovations of Brookline school buildings, now in advanced planning for Devotion. He has also served as interim superintendent of the Gloucester and the Harvard public schools and as both interim school superintendent and interim town administrator in Boylston.

Dr. Connolly had been a strong favorite for the interim position among parents and teachers. He is widely respected and much liked. Four years ago, after signing up as interim superintendent in Harvard, MA, he described his management approach as “open door”–saying, “I can’t help people if I don’t know that they have a problem.”

Devotion School plans: The 20-member Devotion School Building Committee provided a public presentation and hearing on its plans to rebuild and renovate the school during the 2016-2017 and the 2017-2018 school years. It began at 7 pm Wednesday evening, September 30, in the Devotion School auditorium.

The main architecture has been stable for about the past year, since a low-rise, community-oriented option was chosen over somewhat less costly but much less friendly alternatives. It fully preserves the historic center building, opened in 1915, and it preserves the historic, community-oriented site plan, with east-west wings aligned to Stedman St. toward the north and to Babcock St. toward the south.

Since the fall of 2014, the new north wing has moved nearer to Harvard St. and away from the playground in back. The new south wing, toward Babcock St., has been stepped away from nearby houses and apartments. Those revisions appeared at the Planning Board review in January, 2015. At that point, a visually appealing tilt to the front of the new north wing also appeared, parallel to sides of the 1686 Devotion House and designed to maintain an open appearance for the Devotion House lawn and the Harvard St. frontage.

HMFH, our Cambridge-based architects, are clearly unfamiliar with neighborhood senses of direction and history. They persist in calling the new wings “east” and “west”–much as they persist in calling the historic center structure the “1913 building,” although it opened to the public in 1915. To long-term residents of North Brookline neighborhoods, who typically navigate without compasses, one travels “north” on Harvard St. from Coolidge Corner to the Allston town line.

Relocation plan: A major new element in plans calls for Devotion School to be rebuilt and renovated in a single stage of work, with all the students relocated offsite. Upper grades, fifth through eighth, are already at the old Lincoln School on Boylston St. and will stay there two more school years. No other suitable, vacant school property could be found either in Brookline or in neighboring communities.

An approach that now seems workable is leasing the building at 30 Webster St., a block from Coolidge Corner and now the Coolidge House nursing care center–renovating it for school uses. The center is slated to close by the end of 2015. The building might serve for at least one more school building project beyond the Devotion School project. A disadvantage is limited outdoor space in the back, not more than around 2,000 sq ft. However, there is parking already available to the public at the Courtyard Hotel next door.

School plans and reactions: Few of about 80 parents and neighborhood residents at the September 30 event had attended previous meetings of the Devotion School Building Committee. Those occurred mostly at 8 o’clock weekday mornings. Except for illustrations published in the Beacon, many were viewing plans to build a new Devotion School for the first time.

There were sounds of surprise on seeing a front vista, showing the Devotion House nestled among the historic center structure and new north and south wings. The new wings look lively and contemporary. Because of the choice of a low-rise approach a year ago, they don’t loom over the historic structures, but they do present some contrasts that are not so modest as those from the 1955 south wing and the 1976 north wing.

New Devotion School, from above Harvard St.

DevotionPlanFrontOverhead20150909
Source: Devotion School Building Committee

Since last January, the architects toned down initial and highly assertive designs–now showing less glass, more brick, softer colors, more shrubs and trees, and some friendly, community-oriented spaces directly along Harvard St. Philip “Pip” Lewis, chief architect for the project, Deborah Kahn, project manager, and Kathy Ottenberg, landscape designer, described design development and responded to questions.

New Devotion School, along Stedman St. toward Harvard St.

DevotionPlanStedmanStreet20150909
Source: Devotion School Building Committee

The usual, everyday entrance will move from a back corner of the current north wing to the side of the new north wing along Stedman St., where now there is just a plain brick wall at street level. On the east end, toward the playground at street level and just off the new main entrance, will be rooms for pre-kindergarten and perhaps after-school care. Those will also have doors to the playground.

New Devotion School, along the side toward Babcock St.

DevotionPlanBabcockSide20150909
Source: Devotion School Building Committee

Landscaping along the Babcock St. side has changed considerably since the first plans from September, 2014. Gardening space, intended to support classroom programs, increases from about 200 sq ft now to about 400 sq ft, meeting ADA requirements for handicapped access. Tiers of cedar boxes are intended to support management of different micro-environments. A public walkway between Harvard St. and Devotion St. will feature gently graded ramps instead of steps.

Interior plans were previously more developed, even a year ago. Changes have been fewer and less dramatic. Grade clustering of classrooms has been maintained, with kindergarten through second grade on the lower main floor of the new north, Stedman St. wing, with third through fifth grades on the corresponding floor of the new south wing, toward Babcock St., and with sixth through eighth grades on the upper main floor of that wing.

Special facilities for science, art and music are on the upper main floor of the new north wing. Core facilities–cafeteria, library, auditorium (now a “multipurpose room”), technology labs and gymnasiums–are behind the historic center structure and mostly between the two new wings. Mezzanine space between the ground floor along Stedman St. and the lower main floors of the new wings houses ventilating equipment and has the utility and storage rooms. Nearly all the new roof space is left available for solar panels.

There was one, fairly predictable audience reaction to the exterior design, calling it “boxy, modern and incongruous.” Most reactions, however, focused on open spaces around the new school. Many were concerned about the limited amount of play spaces.

Mr. Lewis of HMFH explained that architects had tried to maximize the usability of open spaces, in the face of safety requirements and a larger building area. He said that the usable parts of the playground will actually be larger in total area than they are now. Dr. Connolly, leading the meeting in one his last events as Devotion School principal before he takes over as Brookline’s superintendent, explained how play spaces had been consolidated behind the buildings, “the safest area” of the historic school site.

– Beacon staff, Brookline, MA, October 1, 2015


Planning Board: review of Devotion School plans, Brookline Beacon, January 18, 2015

Devotion School Building Committee: opting for a community school, Brookline Beacon, September 26, 2014

Hancock Village lawsuit: Brookline’s appeal dismissed

Brookline’s first lawsuit over a Chapter 40B housing development Hancock Village has lost, in what looks tantamount to a final outcome. Following a hearing on September 14, 2015, the Massachusetts Court of Appeals issued a speedy decision with a written memorandum, dated September 25. Earlier, adverse superior court rulings were upheld on both their major points: the effects of a 1946 agreement with the John Hancock Life Insurance Company and the effects of 2008 changes to state regulations for Chapter 40B developments.

Arguments and rulings: The Appeals Court wrote that the 1946 agreement had expired in 30 years, under state law. In finding that the agreement was not currently recognizable under Massachusetts law, its memorandum cited procedures that had been followed. Quoting from a recent case, the court said that a recognizable agreement would have to be “land use restrictions imposed as a condition to the discretionary grant of regulatory approval.” [Samuelson v. Planning Board of Orleans, Court of Appeals, 2014]

Instead of restrictions imposed during regulatory approval, the 1946 procedures had involved a voluntary agreement by the original developer, the John Hancock Company, offered as an inducement to allow apartment zoning. The Court of Appeals found those procedures similar to ones of a will or trust, saying that the agreement had therefore expired in 30 years.

The main issue in the original superior court case brought by Brookline had been a challenge to a “project eligibility letter” for the Chapter 40B development, issued by the Massachusetts Development Finance Agency. The town contended that the agency had not followed state regulations, saying that a lawsuit was its only recourse, since 2008 changes in state regulations had eliminated administrative remedies.

The Appeals Court disagreed–writing, without explanation, that it was “unpersuaded by the plaintiffs’ argument.” According to the memorandum, “The issuance of a project eligibility letter is a necessary precondition to consideration of a comprehensive permit application, but it is not final action on the permit.” The Appeals Court cited the case relied on by the superior court. [Town of Marion v. Massachusetts Housing Finance Authority, Court of Appeals, 2007]

Prospects: Like its ruling on the 1946 agreement, the Appeals Court’s ruling on the 2008 regulations turns on a balance of factors and could conceivably have gone the other way. However, both are plainly stated interpretations of state law, citing recent cases at the Appeals Court. A further appeal to the Supreme Judicial Court is surely possible but would look to be a steep, uphill struggle.

The recent ruling appears to collapse a case that the Board of Selectmen filed later in the Land Court, challenging the comprehensive permit granted by Brookline’s Zoning Board of Appeals. A key argument in that case invoked the 1946 agreement, which the Appeals Court ruled has lapsed.

Other arguments, concerning suitability of the development plan for the Hancock Village site, have typically been difficult to sustain in legal challenges against Chapter 40B projects. The Board of Appeals heard over a year of testimony, received major concessions from the Hancock Village developers and imposed over 60 conditions–reducing the scale of the project.

An alternative: Pursuing an alternate vision for Hancock Village, Regina Frawley, a Precinct 16 town meeting member, filed Article 18 for annual town meeting of May, 2015. It sought a study of acquiring the Hancock Village “buffers” for permanent recreation and open space. Those are unbuilt strips of land near Russett and Beverly Roads that had been set aside, separating Hancock Village from the nearby single-family houses, following 1940s agreements with the Town of Brookline.

So far, no such study has been published. To surprise of many in the community, the Board of Selectmen has failed to appoint an independent, objective study committee–as generally expected when the May, 2015, town meeting approved Article 18. Seeing the lack of progress, Ms. Frawley filed Article 15 for the upcoming November, 2015, town meeting. It seeks an independent, objective study committee to be appointed by the moderator of town meeting and by the Advisory Committee.

Ms. Frawley found the recent Appeals Court decision on the Web and distributed it to people who have been concerned about the proposed Hancock Village development. However, she has not become involved with the Hancock Village lawsuits. She continues to pursue her original vision: to provide Brookline’s southernmost neighborhoods with permanent recreation and open space that, so far, they have never enjoyed.

– Beacon staff, Brookline, MA, September 29, 2015


Memorandum and order, case number 2014-P-1817, Town of Brookline and others v. Massachusetts Development Finance Agency and others, Massachusetts Court of Appeals, September 25, 2015

Martha Samuelson and another v. Planning Board of Orleans and others, 86 Mass. App. Ct. 901, July 2, 2014

Town of Marion v. Massachusetts Housing Finance Authority, 68 Mass. App. Ct. 208, February 12, 2007

Warrant for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Article explanations for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Appeals Court: Brookline v. MassDevelopment, Brookline Beacon, September 15, 2015

Craig Bolon, Court of Appeals: Brookline’s first lawsuit over Hancock Village, Brookline Beacon, September 12, 2015

Land Court: Dueling boards, Selectmen v. Zoning Appeals, Brookline Beacon, September 5, 2015

Craig Bolon, Advisory Committee: reach for the reset button, Brookline Beacon, July 8, 2015

Craig Bolon, Board of Selectmen: poisoning the well, Brookline Beacon, July 2, 2015

Losing steam: U.S. nuclear power-plants

The Pilgrim nuclear power-plant in Plymouth may be the next casualty from the Fukushima, Japan disaster in 2011. Safety director David Noyes has warned that Entergy may close the plant if it can’t see a way to make money. Many South Shore neighbors would say, “Good riddance.”

Nuclear shutdowns: At the end of 2014, Entergy closed the Vermont Yankee nuclear power-plant in Vernon, near Brattleboro. Both the Plymouth and the Vernon reactors are close relatives of the wrecked nuclear reactors in Japan. All use BWR-3 and BWR-4 “Mark I” designs by General Electric, dating from the middle and late 1960s.

Those so-called “boiling water” reactors were cheaper to build than the “pressurized water” reactors from Westinghouse, Babcock & Wilcox and Combustion Engineering. They send steam directly from reactor cores into power turbines, rather than through heat exchangers that isolate radioactively contaminated core water.

For decades, the industry-dominated U.S. Nuclear Regulatory Commission (NRC) dismissed potential problems with “boiling water” reactors as unlikely. Then came the simultaneous collapse of three of those reactors at the Fukushima Dai-ichi plant, challenged by an earthquake and a tsunami. The three reactor enclosures failed, along with the spent-fuel enclosure of a fourth reactor, releasing clouds and streams of enormously radioactive materials into the countryside and the ocean.

Despite major alarms from the 1979 accident at the Three Mile Island plant in Pennsylvania, its “pressurized water” reactor resisted a partial collapse. Unlike gross failures of the “boiling water” reactors in Japan, nearly all the damage at Three Mile Island was contained inside a reactor enclosure.

Compared with their initially more costly relatives, “boiling water” reactors have narrower ranges of stability, making them more likely to overheat and collapse when challenged by problems. Among their problems, extra monitoring and maintenance has tended to make them more costly to operate. Quoting an unpublished report from UBS (formerly Union Bank of Switzerland), David Abel and Beth Healy of the Boston Globe claim the nuclear plant in Plymouth is losing more than $2 million a month.

Closing barn doors: NRC trundled out a set of “safety enhancements” that require costly retrofits. In traditional nuke-speak, institutional NRC flacks call those “lessons learned”–making themselves sound like sleazebags. Many lessons about hazards of boiling-water reactors were taught 40 years ago, after a near-disaster at the Browns Ferry nuclear power-plant in Alabama, but those lessons were not really learned.

A March, 1975, fire under the unit 1 control room at the Browns Ferry plant, ignited by careless workers, disabled safety systems and came within about an hour of collapsing the “boiling water” reactor. After that incident, General Electric assigned three senior engineering managers to investigate the safety of the plant’s three reactors. They reported that the reactors could not survive a major challenge.

The company largely disregarded their analysis. In February, 1976, Dale G. Bridenbaugh, manager of product service for the nuclear division of General Electric, and two other GE nuclear engineers, Richard Hubbard and Gregory Minor, resigned and tried to publicize the hazards. NRC commissioned a safety review, sometimes known as the Rasmussen Report (WASH-1400).

In a 1986 conference with industry executives, held at Brookhaven National Laboratory, Harold Denton, then director of the NRC Office of Nuclear Reactor Regulation, referred to the Rasmussen Report, saying it showed “something like a 90 percent probability of a containment failing” in a “boiling water” reactor using the General Electric “Mark I” designs.

Pilgrim’s progress: During the 1980s, Boston Edison, then the owner and operator of the Pilgrim plant, was plagued by safety citations. In 1982, NRC imposed its largest fine ever, $550,000, for safety failures. Boston Edison spent about $300 million on upgrades, but the failures continued. From 1986 to 1989, NRC closed Pilgrim, mainly for extensive worker retraining.

Trying to curry favor with NRC, in 1987 Boston Edison proposed a “direct torus vent system” intended to reduce hazards, also known as a “hard vent” system. NRC did not certify the system but allowed it to be installed. Although the “hard vent” system at Pilgrim was never given realistic testing, eventually most reactors of its type were retrofitted with similar “hard vents,” including ones in Japan.

The “hard vents” of the three Japanese reactors that collapsed all failed, and then the enclosures of those reactors exploded. NRC staff responded to the unreliability of “hard vents,” first designed for Pilgrim, in their highest-priority recommendations for new regulations in 2011. The required retrofits are very expensive, and they may not prevent disasters, because they do not address basic instabilities of the “Mark I” designs.

Nuclear losers: This year, Pilgrim is back in the federal doghouse. In March, it was downgraded to the lowest NRC safety rating short of impending closure. Entergy and Exelon are apparently pulling out. Exelon announced that it will close the Oyster Creek nuclear plant in New Jersey by the end of 2019. That was built with an even earlier version of the “Mark I” reactor designs.

A parade of nuclear losers continues to lengthen. They are being ousted from business by poor operating economics of “boiling water” reactors, by high costs to recover from maintenance blunders and by high costs to retrofit unsafe designs. Those already ousted, over the past three years, have been:
* Crystal River 3, one reactor, Crystal Rver, FL, closed in 2013
* Kewaunee, one reactor, Carlton, WI, closed in 2013
* San Onofre, two reactors, San Diego County, CA, closed in 2013
* Vermont Yankee, one reactor, Vernon, VT, closed in 2014
* Oyster Creek, one reactor, Lacey Township, NJ, closing in 2019

– Craig Bolon, Brookline, MA, September 27, 2015


Evan Allen, Pilgrim nuclear plant safety rating downgraded, Boston Globe, September 2, 2015

David Abel, Pilgrim nuclear plant says it may shut down, Boston Globe, September 17, 2015

David Abel and Beth Healy, No easy answers for Pilgrim nuclear power plant, Boston Globe, September 26, 2015

Market-driven reactor shutdowns threaten local economies, Nuclear Energy Institute, 2015

Jeff McMahon, Six nuclear plants that could be next to shut down, Forbes, November 7, 2013

Japan: lessons learned, U.S. Nuclear Regulatory Commission, 2015

Prioritization of recommended actions, U.S. Nuclear Regulatory Commission, SECY-11-0137, October 3, 2011

Craig Bolon (as AppDev), Will Japan’s nuclear disaster help make Pilgrim in Plymouth safer?, Boston Globe, October 31, 2011

Tom Zeller, Jr., Experts had long criticized potential weakness in reactor design, New York Times, March 15, 2011

Matthew Mosk, Nuclear reactor design caused GE scientist to quit in protest, ABC News, March 15, 2011

Pilgrim reactor restarted after 3-year shutdown, Associated Press, January 1, 1989

David Dinsmore Comey, Fire at the Browns Ferry nuclear power station, Friends of the Earth, 1976

Human Resources: resisting the Earned Sick Time law

At a meeting Thursday, September 17, the Board of Selectmen heard a proposal from Sandra DeBow-Huang, the director of the Human Resources Office, to allow a version of what she called “sick leave” for some of Brookline’s nonunion employees. It looked designed to resist Article 7 at the town meeting on November 17.

Earned Sick Time: At the state election of November, 2014, three out of four Brookline voters said Yes to Question 4. They joined other voters statewide to enact the Earned Sick Time law, which went into effect July 1. The new law governs most private companies in Massachusetts with 11 or more employees. However, it does not apply automatically to cities and towns.

Massachusetts towns can adopt the Earned Sick Time law and follow its state regulations through votes of town meetings. That is what Patricia Connors, a Precinct 3 town meeting member, and Cornelia “Kea” van der Ziel, a Precinct 15 town meeting member, propose in Article 7. Their explanation is straightforward.

“This law allows employees to use Earned Sick Time to look after their own medical needs or the needs of family members, or to address issues related to domestic violence. It requires an employer of eleven or more employees to provide a minimum of one hour of earned paid sick time for every thirty hours worked by an employee, up to 40 hours of earned paid sick time in a calendar year.”

Proposed benefits: An effort to resist Article 7 began this summer. Apparently seeing that outright opposition could easily be overcome at town meeting, Ms. DeBow-Huang proposed some concessions. The document that emerged on September 17 showed signs of haste. Obvious mistakes included grammatical errors, dangling phrases and duplicated paragraphs. Instead of “Earned Sick Time” it used several different terms, without defining them clearly.

The focus of the proposal was a favored set of nonunion employees who currently lack Earned Sick Time benefits–specified under Brookline’s Classification and Pay Plan, a policy document Ms. DeBow-Huang does not publish on the municipal Web site. Rather than hour-by-hour accruals of Earned Sick Time, Ms. DeBow-Huang proposed periodic “lump sum” accruals, which are also recognized under the new state regulations.

An item-by-item examination of the September 17 proposal found over a dozen items for which it was more restrictive than the new state law and regulations: reducing benefits or denying benefits to some employees. There looked to be no item that expanded on those state standards. On September 17, Ms. DeBow-Huang claimed the proposal was “generous,” but the examination showed the opposite. A subtext hinted by the September 17 proposal was trying to set a model for negotiations over union contract renewals.

Union employees: Most Town of Brookline employees belong to unions. Some of the “regular” employees–working more than half-time–have gotten Earned Sick Time benefits through union contracts for years. However, there can be different benefit policies, since there are different union locals representing employees. The contracts are public records, but Ms. DeBow-Huang does not publish them on the municipal Web site, making it tedious and costly for anyone outside her office to compare them.

The November town meeting will consider whether the September 17 proposal corresponds with what Brookline voters expected when endorsing the Earned Sick Time law. It looks likely that the Board of Selectmen will oppose adopting the new law and instead will support the September 17 proposal or some variant.

– Craig Bolon, Brookline, MA, September 25, 2015


Sandra DeBow-Huang, Paid sick leave, Brookline Office of Human Resources, September 17, 2015 (reformatted for readability and annotated, items examined highlighted in red)

Craig Bolon, Issues with proposed policy in lieu of Earned Sick Time, September 25, 2015

Earned Sick Time law, Office of the Massachusetts Secretary of State, 2015

Earned Sick Time regulations, Office of the Massachusetts Attorney General, 2015

Warrant for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Article explanations for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Release of a song: Happy Birthday to You

On Tuesday, September 22, the Happy Birthday song was released from commercial prison. A chain of disputes over rights to the song, now stretching back more than 80 years, ended with a ruling in a federal case being heard in California. Judge George H. King, the chief judge for the Central District of California at Los Angeles, found that the company now claiming to own the song lacks a valid copyright.

The lawsuit was brought by Jenn Nelson, a video producer in New York who has been assembling a documentary about the song. A key, unresolved issue throughout long controversy has been lack of a clearly established author of the song’s lyrics. To careful observers, the outcome of the case had seemed likely. Without an author, there is no copyright interest. [See note, below.]

Copyright background and finding: Judge King found he did not need to resolve issues of authorship. Instead, he found no credible evidence that a potential author of the Happy Birthday lyrics had ever transferred rights to them to any publisher involved in current claims of ownership.

The song may have been created as early as 1890 by Mildred Jane Hill and Patty Smith Hill, two sisters who were writing songs for young children while Patty Hill worked as principal of the Louisville Experimental Kindergarten School. In 1893 the melody appeared with a different song, Good Morning to You, authored by the sisters and published and copyrighted by the Clayton F. Summy Co., then at 220 Wabash Ave. in Chicago.

The melody appeared with the Happy Birthday lyrics in unauthorized commercial publications at least as early as 1912. In his opinion, Judge King cited a 1911 church publication. Despite those sheet music publications, plus sound recordings and appearances in early sound films, no claims of authorship or copyright disputes emerged until more than 20 years later. What was then disputed was use of the melody in a Broadway play.

Warner/Chappell Music of Los Angeles and subsidiaries acquired purported rights to the Happy Birthday song, plus many other musical works, by purchasing a successor to the Clayton F. Summy Co. in 1988. According to news reports, since that time they could have collected as much as $50 million in royalties for use of the song in movies, recordings and commercial performances.

Ms. Nelson, later joined by co-plaintiffs in California, paid royalties to Warner/Chappell to use the Happy Birthday song in performances. They sued to recover payments plus legal costs and sought a judgment that Warner/Chappell lacked a valid copyright to the Happy Birthday lyrics. Copyright interests in the melody had expired in 1949, at the end of a copyright renewal for the original songbook published by the Summy Co.

Consequences: Legal consequences may take a few more years to conclude. At federal district court, hearings and rulings are expected on motions to certify class action status and to award damages and costs. The number of years for which royalties might have to be disgorged could be increased by precedents in the ninth federal circuit that are favorable to the plaintiffs. After that, appeals seem likely.

Circumstances of the Happy Birthday song are so unusual that rulings might never apply to another copyright case. Until this case, for more than 80 years all disputes over the song had been settled privately. People who want to use the song in commercial performances, recordings, videos and movies may start to feel free to do that, now that a federal court has finally ruled on the key element.

– Craig Bolon, Brookline, MA, September 23, 2015


Note: “Without an author, there is no copyright interest.” Authorship and originality have been ingredients of copyrights since they were authorized by the U.S. Constitution in Article 1, Section 8. In Section 4, the Copyright Act of 1909 provided, “works for which copyright may be secured under this act shall include all the writings of an author.” Section 102 of the Copyright Act of 1976 narrowed the range somewhat, saying, “copyright protection subsists in original works of authorship.” A requirement of originality, expressed in case law, was made explicit under that statute.

Memorandum and order for cross-motions, Good Morning to You Productions Corp., et al., v. Warner Chappell Music, Inc., et al., case 2:13-cv-4460 in the Central District of California (Los Angeles), filed June 20, 2013 (originally filed as Rupa Marya v. Warner Chappell Music, Inc.), September 22, 2015

Christine Mai-Duc, All the ‘Happy Birthday’ song copyright claims are invalid, federal judge rules, Los Angeles Times, September 22, 2015

The Worker and His Work, eight volumes, Board of Sunday Schools, Methodist Episcopal Church (Washington, DC), 1911

Craig Bolon, Saga of a song: Happy Birthday to You, Brookline Beacon, August 8, 2015

Land Court to Board of Selectmen: put up or shut up

In a case of dueling boards–Selectmen versus Zoning Appeals–the Massachusetts Land Court filed a written ruling on the motion of another defendant, Chestnut Hill Realty. It seeks to disqualify Town Counsel Joslin Murphy and her staff from participating in the main challenge to a proposed Chapter 40B housing development at Hancock Village.

In an odd sort of process, that ruling has been posted to the online Docket Information page for the Land Court case, making it available to anyone without a trip to see the clerk of the court. As apparent before and at the Land Court hearing, the Board of Selectman and the town counsel look to be in a pickle.

In effect, the court wrote to that board: Put up (a lawyer for the Zoning Board of Appeals) or (we shall) shut up (the town counsel as your representative). Judge Piper’s docket entry reads a bit like George Ade on steroids, for those who remember the notable Chicago Record journalist (1866-1944). Text follows.

“09/03/2015, Event: Motion scheduled for 09/03/2015 10:00 AM

“Result: Hearing Held on Private Defendant’s Motion to Disqualify Brookline Town Counsel. Attorney Murphy Appeared for Municipal Plaintiffs. Attorney Talerman Appeared for Individual Plaintiffs. Attorney O’Flaherty Appeared for Private Defendant. No Counsel Appeared for Defendant Members of the Board of Appeals. Following Argument, Court Made its Ruling[s] from the Bench, Which Are Summarized Generally Below.

“Subscribing to the View That Courts Should Be Reluctant to Disqualify Counsel, That Clients Are Entitled to the Counsel of Their Choice, and Relying Greatly on the Ethical Awareness of Lawyers, Court Is Nonetheless Troubled by the Posture of this Litigation. Here, the Board and its Defendant Members Remain Unrepresented, the Court Is Unable to Know Their Level of Satisfaction (Or Not) with That Situation, and it Is Evident that those Who Control Municipal Plaintiff’s Prosecution of this Action Have Taken No Effective Steps to Provide These Defendant Board Members with Counsel. They Thus Are Left Unable to Defend, to Participate in, and to Be Heard in this Litigation.

“This Is Not the Common Situation Where a Municipal Board Stands down During Litigation to Allow the Private Defendant (The Permit Recipient) to the Mount a Defense of the Challenged Permit. Here, the Permit Has Been Challenged by the Town Itself, Acting Through its Board or Selectmen, Claiming an Injury to the Town’s Interest as an Abutting Landowner. All Parties Agree, as They Must, That If a Law Firm Represented the Applicant During the Permitting Process, and Then, Once a Permit Had Issued, Attempted to Represent an Abutting Landowner in Challenging the Same Permit, the Court Would Be Obligated to Disqualify that Law Firm Under Mass. R. Prof. C. 1.7 [because there is a concurrent conflict of interest under 1.7(a), coupled with a claim by one client against another under 1.7(b)(3)].

“Here, Counsel for Plaintiffs Attempts to Distinguish the Instant Case by Arguing, First, That Town Counsel Commonly Represents Multiple Municipal Interests Simultaneously, Which Interests Do Not Always Perfectly Align, and Second, That Notwithstanding this Broader View of the Role and Obligations of Government Lawyers, That Here the Defendant Board of Appeals Was Afforded Special Counsel During the Permitting Process So There Is No Conflict in Fact.

“Even Recognizing the Broader Latitude Given Government Lawyers When Analyzing Their Possible Conflicts, the Court Concludes That this Is One of Those Troubling Cases Where it Might Be Obligated to Disqualify Municipal Counsel. While There Has Been No Hard Showing That Town Counsel Possesses Some Confidential Information Gained Giving Earlier Advice to the Board, the Existence of Any Such Confidences Is Very Hard to Learn Because the Party That Would Normally Object (The Former Client) Is the Board of Appeals, Which Has No Ability or Opportunity to Make Such a Concern Known to the Court; the Private Defendant, Who Brings the Motion to Disqualify, Has No Way of Knowing Whether Confidences Have Been Exchanged or Not.

“The Record Does Make Clear That the Office of Town Counsel Previously Rendered Advice, Shared with the Zoning Board, about Two Important Legal Issues in Connection with the Comprehensive Permit: the Effect of the 1946 Agreements Between the Town and the Prior Owners of the Site, and the Validity of Site Eligibility Determinations for the Project. Those Issues Are Central to the Attack the Town, Now Represented as Plaintiff by Town Counsel, Makes Against the Comprehensive Permit in Both this Litigation and in the Superior Court Case Now Before the Appeals Court.

‘Without Diminishing the Court’s Concern That this Is a Case Where a Conflict May Exist, the Court Nonetheless Defers Ruling on the Motion to Disqualify at this Time, in the Hope That Some Attention Will Be Paid to Obtaining Separate Counsel for the Board of Appeals. If Separate Counsel Appears and Assures the Court That the Board of Appeals Does Not Object to the Ongoing Representation of the Plaintiff by Town Counsel, That Would Go a Long Way to Satisfy the Court That the Motion to Disqualify Ought to Be Denied.

“If, on the Other Hand, There Is a Continuing Inability to Hear from the Board, Court Would Be Inclined to Allow the Motion to Disqualify. Parties Are to File No Later than September 30, 2015 a Report on the Status of Representation of the Board of Appeals; If by That Date No Appearance on Behalf of the Board of Appeals Has Been Filed, the Court Will Proceed Either to Rule on the Motion to Disqualify Without Further Hearing, to Schedule Further Hearing, or to Make Other Appropriate Orders.”

So far, no funding to support legal counsel for the Zoning Board of Appeals has shown up on agendas for the Board of Selectmen. September 30 is a Wednesday. Before then, the Board of Selectmen scheduled two more meetings: on Thursday, September 24, and on Tuesday, September 29. Funding for a town board would clearly be public business. Trying to hide it in closed session, perhaps under a rubric of “litigation,” would not appear consistent with the state’s open meeting law.

– Beacon staff, Brookline, MA, September 20, 2015


Town of Brookline and others v. Jesse Geller, Member of the Brookline Zoning Board of Appeals, and others, Massachusetts Land Court case 2015-MISC-000072, filed March 11, 2015 (click button to search public records, select Land Court Department and Case Number tab, enter case number “15 MISC 000072″ and click Search button, click any Case Number item for “15 MISC 000072″)

Massachusetts Rules of Professional Conduct, Massachusetts Supreme Judicial Court, 2015 (2 MB)

Massachusetts Rules of Civil Procedure, Massachusetts Trial Court Law Libraries, 2015 (2 MB)

Land Court: Dueling boards, Selectmen v. Zoning Appeals, Brookline Beacon, September 5, 2015

Craig Bolon, Hancock Village: development pressures, Brookline Beacon, February 22, 2015

Craig Bolon, Open meetings in government: groping toward transparency, Brookline Beacon, August 10, 2014

Cable services: renewing Comcast in Brookline

On Wednesday, September 16, starting at 7 pm in Town Hall, members of the Board of Selectmen and its cable television committee conducted a public hearing on renewal of the Comcast license to operate in Brookline. What they heard was dominated by insiders, trying to extract more money for local programming efforts, now called Brookline Interactive, and for subsidies to low-income residents. Attendance was about 15 people.

Technology dreams: Boosters for Brookline Interactive seemed divided into two camps. One was looking mainly for better distribution of content, the other looking mainly for better technology to deliver it. Karen Katz of Pleasant St., president of Brookline Interactive, complained about “no delivery” of her organization’s content by Comcast, recently rebranded as Xfinity. Comcast does not display a schedule of Brookline Interactive programs. She wanted more Comcast money to support local programming efforts.

Albert Davis of James St., who described himself as a media producer, does productions at Brookline Interactive. He complained that Comcast “does not support an everyday medium”–meaning high-definition, wide-screen television–calling that “a huge mistake.” He wanted Comcast to “get involved” with Brookline Interactive, a “partnering opportunity.”

Kathy Bisbee of Gorham Ave., recently hired as Brookline Interactive director, mentioned “over the top” fees as a way to boost her organization’s take of Comcast revenue. Although she did not explain, that would be techno-speak for fee-based, Internet-distributed services such as Showtime, currently about $11 a month.

Limited incomes: At an opposite pole from Ms. Bisbee and Brookline Interactive technophiles was David Trietsch of Linden Pl., board chair of the Brookline Housing Authority. He complained that few public housing residents could afford any type of Internet service–and probably not $11 a month “over the top.” Recently, he said, RCN has offered “favorable terms” for service to the new Dummer St. project.

Frank Caro of Beacon St., a member of the cable television committee and a Precinct 10 town meeting member, spoke for retired residents. He said he found almost no “senior discounts” for telecommunication services in Brookline. He was “deeply disappointed” that Comcast offered only $2 a month off, only on “basic” service.

The sole Brookline residents to complain about the quality of Comcast services were Cathy Corman of Pleasant St. and her husband Mark Penzel. Their house had apparently been built after the neighborhood was wired and has no cable service. Comcast initially wanted over $20,000 to install a cable but then offered to do that for $2,300 if it could dig a trench beside a tree in a neighbor’s lawn.

High costs: What none of the earnest speakers mentioned but would surely be uppermost for a network operator are high costs of new technology. At an average cost per person estimated by Goldman Sachs, Comcast would need to invest around $30 million to replace its Brookline network. That looks unlikely for a business with annual revenue potential around $10 million: possibly a 10-year payback or worse.

Comcast is stuck with early 1980s cable technology: good for its day but well into old age. It was built for 1953 NTSC broadcast television, about 6 MHz per channel. HDTV in 1080p24 format–the newer “wide screen” broadcast standard since 1998–needs about three times the bandwidth, despite digital techniques. However, it can be fit into 6 MHz channels through digital compression, at loss of optical and temporal definition.

With its dated cable infrastructure, Comcast cannot achieve the level of services fiber-optic systems can provide, such as those installed by RCN and promised–some day–by FIOS technology from Verizon. However, by replacing its complex of signal-transmission electronics and requiring subscribers to install new set-top boxes and modems, Comcast could augment services.

Providing a degraded, 720i24 format of HDTV, while maintaining its repertoire of channels and continuing to use its 1980-era cables above and below the streets could be realistic. Even such a limited project might cost several million dollars to retrofit Comcast’s infrastructure in Brookline. The company would still retain a trouble-prone network of aging cables that has been irritating customers for years.

Silent voices: At the Wednesday hearing, no one spoke up for ordinary customers, surely the vast majority of those concerned about Comcast services in Brookline. The Board of Selectmen did not make any more than minimal, legally required efforts to publicize the hearing. Had they done so, the sixth-floor meeting room might have overflowed.

– Beacon staff, Brookline, MA, September 17, 2015


Mark Biegert, High-definition television bandwidth, Math Encounters (Maple Grove, MN), 2012

Karl Bode, Google fiber build estimate: $140 billion, DSL Reports (New York, NY), 2012

Heather Bellini, et al., Clash of the titans, Goldman Sachs Group, December 7, 2012

Craig Bolon, Broadband telecommunications: Brookline-based services, Brookline Beacon, August 22, 2015

Housing Authority: renovations, programs and project development, Brookline Beacon, August 11, 2014

Appeals Court: Brookline v. MassDevelopment

This Monday, September 14, at the Massachusetts Court of Appeals, Brookline presented arguments contesting a state-issued “project eligibility letter” for a proposed Chapter 40B housing development at Hancock Village. The case had begun at superior court in November, 2013. It was on appeal from an adverse ruling issued in September, 2014, allowing motions for summary judgment.

Twenty judges now serve on the Appeals Court. The panel for case number 2014-P-1817 consisted of Elspeth B. Cypher, appointed in 2000, Mark V. Green, appointed in 2001, and Sydney Hanlon, appointed in 2009. The case and court hearing attracted considerable interest, with five amicus briefs filed. Half a dozen Brookline town meeting members came to the hearing, held at the 1893 John Adams Courthouse in Boston on a sunny, mild day.

Town Counsel Joslin Murphy argued for the Town of Brookline. Benjamin Tymann argued for the Massachusetts Development Finance Agency (MDFA) and its chief, Martha “Marty” Jones of Winchester. Jason Talerman argued for other plaintiffs, several homeowners whose properties abut Hancock Village. Kevin O’Flaherty argued for the subsidiary of Chestnut Hill Realty (CHR), owner of Hancock Village, that applied for the 40B development.

Issues and arguments: Issues that were argued Monday emerged in briefs submitted early this year. With the procedure the Appeals Court follows, each lawyer got seven or eight minutes of presentation plus questions and answers–a brisk pace. The underlying contested issues were well known:
(1) Whether MDFA followed regulations when issuing a “project eligibility letter,” and
(2) Whether a 1946 agreement with the Town of Brookline still regulates Hancock Village.

Ms. Murphy and Mr. Tymann argued about the “project eligibility letter.” Mr. Talerman and Mr. O’Flaherty argued about the 1946 agreement. The basic issue about whether MDFA followed regulations for a “project eligibility letter” had been confounded by MDFA and CHR lawyers at superior court, contending that Brookline had not exhausted administrative remedies, citing a 2007 case. That side-issue dominated the Appeals discussions. [Town of Marion v. Massachusetts Housing Finance Authority, Court of Appeals, 2007]

Initial questions from judges showed some unfamiliarity with Chapter 40B law and regulations, particularly those from Judge Green, who seemed to confuse the role of a local zoning appeals board with that of the state Housing Appeals Committee. Both plaintiff and defendant lawyers tried to fill gaps. Judges seemed to grasp circumstances somewhat better as the hearing went on.

Project eligibility: In arguing about the “project eligibility letter,” Ms. Murphy stressed a point made in the Town of Brookline brief: that MDFA failed to follow state regulations. Judge Green tried to steer toward MDFA and CHR viewpoints, but Ms. Murphy would not go there. After Judge Hanlon asked for clarification, she taught a short course: Chapter 40B in half a minute.

State regulations in 760 CMR 56.04(4)(b) require an agency reviewing a 40B project to consider whether a site is “generally appropriate for residential development” and whether a “conceptual project design is generally appropriate for the site.” For both elements, they require a “finding, with supporting reasoning, to be set forth in reasonable detail.” According to regulations as revised in 2008, if a state agency fails to follow the rules, there is no administrative remedy. Only developers now have any administrative appeal rights.

As in the MDFA defense brief, Mr. Tymann tried to string a tripwire, arguing that a “project eligibility letter” reflected only a “preliminary review.” Judge Green, perhaps having absorbed some instruction, queried, “The town can’t appeal to HAC?”–meaning the state’s Housing Appeals Committee.

“The town,” responded Mr. Tymann, “has opportunities…at ZBA hearings”–meaning at its local zoning board. “The project eligibility letter is a ticket to the dance contest. It does not mean you win.” Judge Hanlon sounded unconvinced. She asked, “Then anything else is off the table? Appropriateness of the site?” Mr. Tymann tried to skirt the issue. “The Land Court,” he said, “is reviewing all those issues.”

The Brookline case in Land Court, challenging a “comprehensive permit” issued by the Brookline Zoning Board of Appeals, did not begin for more than a year after its case against MDFA in superior court, challenging the “project eligibility letter.” If Brookline had been able to obtain prompt and thorough consideration in superior court, the Appeals Court and Land Court cases might not have happened.

Contract zoning: Mr. Talerman sketched background of the 1946 agreement between the Town of Brookline and the John Hancock Life Insurance Company, which convinced town meeting to rezone the property now called Hancock Village for apartments. As in the Town of Brookline brief, he cited two prior Appeals Court cases finding that public agreements over use of land were permanent.

Judge Green asked how the 1946 agreement differed from deed restrictions that expire after 30 years. Mr. Talerman responded that the distinction was made on the basis of public participation, involving a discretionary grant of regulatory authority. It has been a developing area of law, he said.

Mr. O’Flaherty called the 1946 agreement a “private agreement,” claiming it had lapsed after 30 years. Judge Hanlon asked how the circumstances differed from prior cases Mr. Talerman cited, in which towns allowed some zoning privileges in return for some restrictions. Mr. O’Flaherty said the 1946 agreement had “preceded a change in zoning.” Indeed it had, but only by a few days before Brookline’s town meeting voted on zoning.

Moreover, said Mr. O’Flaherty, by its terms the 1946 agreement lapsed if Brookline did not maintain the zoning enacted at the 1946 town meeting. Later, he said, Brookline had changed the Hancock Village zoning, claiming that “abrogated the agreement.” What happened was that in 1962 Brookline changed to a new zoning system. Within the new system, it created a special type of zone designed to be equivalent to the older type of apartment zoning assigned to Hancock Village in 1946.

After the hearing, Mr. Talerman explained that the Town of Brookline brief for the case had covered that issue. It was expected to be addressed during trial in superior court. So far, the trial has not occurred, because the superior court judge allowed a motion for summary judgment without considering such arguments.

Awaiting justice: Decisions in Court of Appeals cases are often accompanied by published opinions when they involve new directions in law, as this one seems to. However, those decisions are not particularly speedy. A survey of recent civil cases suggests Brookline might expect an Appeals Court decision in early 2016, probably well before the annual town meeting.

– Beacon staff, Brookline, MA, September 15, 2015


Docket for case number 2014-P-1817, Town of Brookline and others v. Massachusetts Development Finance Agency and others, Massachusetts Court of Appeals, filed November 14, 2014

Plaintiff’s initial brief, Case 2014-P-1817, Massachusetts Court of Appeals, January 12, 2015

Town of Marion v. Massachusetts Housing Finance Authority, 68 Mass. App. Ct. 208, February 12, 2007

Craig Bolon, Court of Appeals: Brookline’s first lawsuit over Hancock Village, Brookline Beacon, September 12, 2015

Land Court: Dueling boards, Selectmen v. Zoning Appeals, Brookline Beacon, September 5, 2015

Court of Appeals: Brookline’s first lawsuit over Hancock Village

Proposed development at Hancock Village in south Brookline has led to two lawsuits filed in state courts on behalf of the Town of Brookline. News reports so far don’t explain much about the differences between them. The first case, begun in 2013, challenges actions of a state agency. The second case, begun in 2015, challenges actions of the Brookline Zoning Board of Appeals. The first case is at the Massachusetts Court of Appeals in Boston on Monday, September 14 for a hearing on the merits.

Development plans: Between 2008 and 2011, executives at Chestnut Hill Realty (CHR) promoted plans for major development at Hancock Village, proposing up to 466 new housing units. Responses from nearby neighborhoods and Brookline government varied from concern to alarm. In November, 2011, Brookline enacted a neighborhood conservation law, making Hancock Village the first regulated district.

In 2012, CHR abandoned plans for conventional development under zoning, turning instead to Chapter 40B of the General Laws, Sections 20-23 and aiming to force through development in return for partly subsidized housing. To start such an approach, CHR needed sponsorship from a state agency. Rather than look to agencies mainly oriented to housing, CHR approached the Massachusetts Development Finance Agency (MDFA). Proposals were made through a CHR subsidiary called Residences of South Brookline, LLC.

In late 2012 and early 2013, MDFA reviewed a CHR proposal to add 271 housing units in 12 new buildings. This plan was similar to other CHR plans in its overall approach. There would be a high-rise structure over a rock outcrop, previously considered unbuildable: five stories of apartments above two stories of parking. There would also be 11 low-rise structures on unbuilt land near Russett and Beverly Roads that had been reserved as “buffers” following 1940s agreements with the Town of Brookline.

MDFA sought comments from Brookline and visited the site in December, 2012. In February, 2013, MDFA drafted a response, rejecting the CHR proposal because it was “not generally appropriate for the site.” The agency cited “complete elimination of the greenbelt buffer” and “massing of the…five-story building.” Possibly tipped off to impending rejection, CHR withdrew its proposal just before the response was to be sent.

The following June, CHR proposed to MDFA a revised project with 192 new housing units in 13 new buildings. Now, over the rock outcrop, there would be four stories of apartments above two stories of parking. Although the project still eliminated the greenbelt buffer and it still included a high-rise looming over the neighborhood, built over a rock outcrop, this time MDFA approved, sending a “project eligibility letter” in October, 2013.

Reversing its previously pending rejection, MDFA offered a sentence of justification. That said the project “is generally appropriate for the site taking into account factors such as proposed use, conceptual site plan and building massing, topography, environmental resources and integration into existing development patterns.”

Court of Appeals case: Within a few weeks, the Town of Brookline filed a case against MDFA in superior court, challenging validity of the project eligibility letter. As part of this first lawsuit over Hancock Village, the Town of Brookline also asserted rights under a 1946 agreement with the John Hancock Life Insurance Company, providing enduring restrictions on Hancock Village in return for the 1946 rezoning to allow construction of apartments.

In superior court, lawyers for CHR filed motions for summary judgment, arguing that claims by the Town of Brookline were inconsistent with prior cases and with state law. The circumstances are complex, but after a brief hearing on the motions, without considering circumstances in detail, Judge Patrick F. Brady of Norfolk Superior Court allowed the motions. Brookline appealed. On Monday, September 14, the circumstances will be reviewed in detail for the first time by a full panel at the Court of Appeals.

There are two main issues in the appeal:
(1) Did Judge Brady at Norfolk Superior Court make an error in dismissing claims by the Town of Brookline that the project eligibility letter was issued without adequate justification?
(2) Did Judge Brady make an error in dismissing Brookline claims about rights under a 1946 agreement with the John Hancock Life Insurance Company that led to rezoning Hancock Village for apartments?

Issue (2) might be of more interest to the second Brookline lawsuit–against the Zoning Board of Appeals, seeking to overturn the “comprehensive permit” the zoning appeals board granted this year. However, it was also cited in the first lawsuit–against MDFA. There it was opposed by CHR lawyers, through one of the summary judgment motions Judge Brady allowed–boosting the 1946 agreement into an early appellate orbit.

Project eligibility letter: Issue (1) arguments pressed by the Town of Brookline against MDFA claim the agency failed to follow state regulations. Under 760 CMR 56.04(4)(b), those require an agency reviewing a 40B project to consider whether a site is “generally appropriate for residential development” and whether a “conceptual project design is generally appropriate for the site.”

In both instances, state regulations require a “finding, with supporting reasoning, to be set forth in reasonable detail.” The Town of Brookline asserted that the agency merely recited, like cookbook exercises, the types of 760 CMR 56 findings it would need to make but did not explain them with “supporting reasoning” of any kind, much less with “reasonable detail.” [Plaintiff's initial brief, pp. 25-27]

The Town of Brookline asserted it has no useful remedy other than a lawsuit, because a change to state regulations in 2008–apparently made for the convenience of the state Housing Appeals Committee–relabeled agency findings for project eligibility letters “conclusive” and eliminated administrative reviews. [Plaintiff's initial brief, pp. 27-29]

For issue (1) MDFA owns the heavy lifting. Its response was bulked up with dozens of pages of regulations, case memoranda and official announcements. However, the gist of the defense came down to a bald assertion that a project eligibility letter is “merely an interim step” in project approval, quoting a Massachusetts case made obsolete by 2008 changes to state regulations. [Defendant's brief from MDFA, p. 1, quoting Town of Marion v. Massachusetts Housing Finance Authority, Court of Appeals, 2007]

The brief filed for MDFA danced around Brookline’s arguments about lack of justification for a project eligibility letter. It tried to treat a summary judgment allowed in superior court, after a brief hearing during a motion session, as though it were a settled matter of law. Instead, the purpose of an appeals case is to examine reasoning applied by a lower court. [Defendant's brief from MDFA, p. 7] [Standard of review, in Plaintiff's initial brief, p. 13]

For this case, there is little reasoning from a lower court to be examined. At Norfolk Superior Court, Judge Brady merely stated that he “remain[ed] of the view that [the Marion case] applies,” without explaining why it should–over arguments from the Town of Brookline that changes in state regulations made it obsolete. [Plaintiff's initial brief, pp. 23, 27-29 and 31-33]

The brief filed for MDFA also claimed that the state provides for a “post-permit review”–apparently meaning administrative procedures after a “comprehensive permit” has been granted. However, post-permit procedures do not include comments, and they focus on “cost examination.” There is no process for an appellant to challenge whether a site is “appropriate for residential development” or whether a “conceptual project design” is “appropriate for the site.” [Massachusetts regulations 760 CMR 56.04(7), final approval]

As the Town of Brookline observed, without a court review “of project eligibility, abutters [including the Town of Brookline] are left without any meaningful recourse.” They might have a further opportunity for administrative review only if the developer were dissatisfied with Brookline zoning appeals board actions and sought relief from the state Housing Appeals Committee. However, CHR representatives stated at a public hearing that they were satisfied with outcomes from the zoning appeals board. [Plaintiff's reply brief, p. 6]

The brief filed for CHR also opposed court review of a project eligibility letter, ignoring 2008 revisions to state regulations that closed off administrative appeals and claiming project eligibility is not a “final agency action.” CHR accused the Town of Brookline of trying to subvert purposes of Chapter 40B, Sections 20-23 with “lengthy and expensive delays occasioned by court battles.” [Defendant's brief from CHR, p. 19]

In response, the Town of Brookline quoted the court opinion in the same case CHR referenced, “…interest in…affordable housing must be balanced against…protection of health and safety…and preservation of open space.” [Plaintiff's reply brief, p. 8, quoting Standerwick v. Zoning Board of Appeals of Andover, Supreme Judicial Court, 2006]

Like MDFA, CHR did not respond to the Town of Brookline’s argument that “post-permit review” leaves no process for an appellant to challenge whether a site is “appropriate for residential development” and whether a “conceptual project design” is “appropriate for the site.” [Defendant's brief from CHR, pp. 23-25] [Massachusetts regulations 760 CMR 56.04(7), final approval]

Contract zoning restrictions: Issue (2) arguments pressed by the Town of Brookline against MDFA and CHR claim the proposed project would violate terms of a 1946 agreement with the Town of Brookline by the John Hancock Life Insurance Company. For this issue CHR owns the heavy lifting, since its financial interests are at stake.

At Norfolk Superior Court, MDFA and CHR claimed that any requirements from the 1946 agreement had been extinguished after 30 years by Chapter 184, Section 23 of the General Laws. However, that law governs recorded deed restrictions. Previous Massachusetts cases held that it does not limit public agreements, including ones sometimes called “contract zoning.” [Plaintiff's initial brief, pp. 3-4 and 14-19, quoting Killorin v. Zoning Board of Appeals of Andover, Court of Appeals, 2011]

The Appeals Court may regard the Killorin case as particularly relevant, since two of the three judges who heard that case have been assigned to the current Brookline case: Elspeth B. Cypher and Sydney Hanlon. The Town of Brookline asserts that it has a continuing interest in the 1946 agreement, that the proposed project would violate the agreement and that at Norfolk Superior Court Judge Brady conducted a “myopic review,” finding the Killorin decision applied only to a special zoning permit. [Plaintiff's initial brief, p. 21]

The brief filed for CHR did not respond forthrightly to arguments from the Town of Brookline. Instead, CHR asserted, “It is settled…restrictions which burden land such as those contained in the 1946 agreement can only be enforced for a period of 30 years.” However, whether or not that may be true is a main dispute in the current Appeals Court case. Wishing won’t make it so. [Defendant's brief from CHR, p. 28]

The CHR brief repeated arguments offered at Norfolk Superior Court, saying that the Killorin case “involved conditions imposed on a property by a special zoning permit.” However, the court’s summary of its decision shows it regarded special permits as examples, writing that the law at issue “did not apply to conditions or restrictions set by a government agency such as a local zoning board of appeals as part of the process of granting a special permit. [Defendant's brief from CHR, p. 28] [Killorin v. Zoning Board of Appeals of Andover, Court of Appeals, 2011, emphasis added]

CHR based its brief on selected quotations from court opinions, trying to argue that exceptions to the law limiting deed restrictions to 30 years applied only to special zoning permits or subdivision control, topics under which cases arose. A recent Appeals Court decision expressed a broader view, as the Town of Brookline argued in its response. [Plaintiff's reply brief, pp. 10-11]

The recent decision said, “The holding of Killorin does not turn on the identify of the local board or on the particular nature of the regulatory decision at issue.” It explained that “the key distinction was…the discretionary grant…under the police power”–that is, the general regulatory powers of a municipality. [Samuelson v. Planning Board of Orleans, Court of Appeals, 2014]

Analysis: In its fairly aggressive reaction to the project eligibility letter issued by MDFA, the Town of Brookline appears to be pursuing a strong remedy, seeking early intervention by a superior court rather than waiting for a “comprehensive permit” and then asking for intervention from the Land Court, as Brookline now has also done.

The main argument for early intervention by a superior court has been a claim that 2008 revisions of state regulations closed off avenues for administrative appeals. MDFA and CHR objected that no right to early intervention is provided by state law, but they did not address an equity argument that administrative remedies formerly available have been withdrawn.

In bidding to sustain a 1946 contract zoning agreement, the Town of Brookline is also treading on unusual territory. So far, no one has cited another such agreement by a Massachusetts town that was brought to a town meeting rather than negotiated through a planning board or zoning appeals board. The extensions from circumstances of prior cases may seem obvious, but they are hardly foregone conclusions.

– Craig Bolon, Brookline, MA, September 12, 2015


Docket for case number 2014-P-1817, Town of Brookline and others v. Massachusetts Development Finance Agency and others, Massachusetts Court of Appeals, filed November 14, 2014

Plaintiff’s initial brief, Case 2014-P-1817, Massachusetts Court of Appeals, January 12, 2015 (missing the preamble and table indexes)

Defendant’s brief from MDFA, Case 2014-P-1817, Massachusetts Court of Appeals, February 11, 2015 (11 MB, too large for the Brookline Beacon site, obtainable at Brookline Office of Town Counsel)

Defendant’s brief from CHR, Case 2014-P-1817, Massachusetts Court of Appeals, February 11, 2015 (10 MB, too large for the Brookline Beacon site, obtainable at Brookline Office of Town Counsel)

Plaintiff’s reply brief, Case 2014-P-1817, Massachusetts Court of Appeals, March 13, 2015 (4 MB)

Project eligibility letter, issued to Residences of South Brookline c/o Chestnut Hill Realty, Massachusetts Development Finance Agency, October 8, 2013

Draft denial of project eligibility, addressed to Residences of South Brookline c/o Chestnut Hill Realty, Massachusetts Development Finance Agency, February 13, 2013 (obtained by Town of Brookline via discovery)

Comprehensive permits [under Chapter 40B], Massachusetts regulations 760 CMR 56, Executive Office of Housing and Economic Development, 2015 (current version)

Martha Samuelson and another v. Planning Board of Orleans and others, 86 Mass. App. Ct. 901, July 2, 2014

Eric H. Killorin and others v. Zoning Board of Appeals of Andover and another, 80 Mass.App.Ct. 665, October 14, 2011

Town of Marion v. Massachusetts Housing Finance Authority, 68 Mass. App. Ct. 208, February 12, 2007

Eileen Standerwick and others v. Zoning Board of Appeals of Andover and another, 447 Mass. 20, June 16, 2006

Land Court: Dueling boards, Selectmen v. Zoning Appeals, Brookline Beacon, September 5, 2015

Craig Bolon, Hancock Village: development pressures, Brookline Beacon, February 22, 2015

Zoning Board of Appeals: Hancock Village 40B conditions, Brookline Beacon, January 6, 2015

Town boards: special tokes for “special” folks

Members of town boards, commissions, committees and councils may become “special municipal employees” when they are not performing paid duties as regular municipal employees. Such a classification is not automatic in most cases but must be established by a vote of a board of selectmen in a Massachusetts town. Such a vote will apply to all who hold a specified type of position and not to particular individuals.

The “special” people: A “special” designation allows lawyers on a regulatory board to hear and decide cases that are presented by other lawyers in the firm where they work, as long as they did not participate in those particular cases. The “special” people can work and be paid in arrangements for town business as long as their duties for town boards or agencies do not involve the particular arrangements. Those remain dubious practices–more understandable in a small rural town with few lawyers, professionals and businesses than in an large urban town with many of each.

Members of a board of selectmen in a large town are not eligible for “special” designation, whether or not they are paid for serving. Others who receive pay for municipal work are generally not eligible unless they perform 800 or fewer hours of paid municipal work a year.

The Brookline Board of Selectmen is known to have awarded the “special” designation to members of the Zoning Board of Appeals and the Housing Advisory Board. Participation in various matters that could be viewed as conflicts of interest suggest that Planning Board, Transportation Board and Building Commission members might also enjoy “special” status.

A list of organizations with “special” status is supposed to be “on file” in the town clerk’s office. During former years that some have come to regard as flirting with corruption, members of many town boards, commissions, committees and councils are said to have been designated as “special.” However, no list of Brookline’s “special” designations could be found on the municipal Web site.

Training on the laws: At this year’s fall town meeting, scheduled for November 17, Article 8 seeks to require training about laws on conflicts of interest for town meeting members. Some will have already received training because they are also members of town boards, commissions, committees and councils or because they volunteered for it.

Section 3.20.1 of Brookline’s general bylaws–enacted under Article 18 at the May 23, 2006, annual town meeting–applies to members of town boards, commissions, committees and councils. It requires attending training sessions about laws on conflicts of interest and open meeting requirements, organized by the Office of Town Counsel in Brookline.

Article 8 at this fall’s town meeting would allow watching an online lecture about laws on conflicts of interest and requires no training on open meeting requirements. Practical experience has shown that training sessions organized by the Office of Town Counsel proved more effective than lectures, because of questions and answers reflecting specific, local situations.

A list of members of town boards, commissions, committees and councils who have received required training is supposed to be “on file” in the town clerk’s office. However, no such list could be found on the municipal Web site.

– Craig Bolon, Brookline, MA, September 10, 2015


Warrant for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Article explanations for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Special town employees, in Minutes, Brookline, MA, Board of Selectmen, June 2, 2009, see pp. 6-7

Special municipal employees, Massachusetts State Ethics Commission, 1992

General bylaws, Town of Brookline, MA, November 18, 2014 (3 MB)

Special municipal employee, defined in Massachusetts General Laws, Chapter 268A, Section 1, paragraph (n)

Craig Bolon, Open meetings in government: groping toward transparency, Brookline Beacon, August 10, 2014

Craig Bolon, Override Study Committee: Open Meeting Law problems, Brookline Beacon, August 7, 2014

Land Court: Dueling boards, Selectmen v. Zoning Appeals

At the Massachusetts Land Court, the Brookline Board of Selectmen faced a motion to remove Town Counsel Joslin Murphy and members of her staff as their representatives in a lawsuit they had filed against members of Brookline Zoning Board of Appeals. It’s a strange case, essentially one town board suing another.

After hearing arguments starting at 10:30 am Thursday, September 3, Judge Gordon Piper indicated he would allow the motion unless the Town of Brookline provides its zoning appeals board legal representation in the case before the end of September.

Hancock Village controversy: Chestnut Hill Realty of West Roxbury, through subsidiaries, originally proposed building 466 new apartments on parts of Hancock Village in south Brookline. After false starts, they reduced the scope of the project and proposed using powers under Chapter 40B of the General Laws, Sections 20-23, to override Brookline zoning in return for building partly subsidized housing.

On February 4, 2015, after more than a year of hearings, Brookline’s zoning appeals board voted unanimously to grant a so-called “comprehensive permit” to build 161 apartments plus 292 parking spaces. There would be a high-rise structure over a rock outcrop, previously considered unbuildable, plus low-rise structures on unbuilt land that had been reserved as “buffers” following 1940s agreements with the Town of Brookline.

In a closed session at a meeting March 3, as confirmed by participants, the Brookline Board of Selectmen voted to sue the Brookline Zoning Board of Appeals. A complaint was filed in the Massachusetts Land Court on March 11, seeking to annul and revoke the permit: Town of Brookline and others v. Jesse Geller, Member of the Brookline Zoning Board of Appeals, and others. That became Land Court case 2015-MISC-000072.

The Town of Brookline stands directly affected by the permit partly because it owns two abutting properties: Baker School land and D. Blakeley Hoar conservation land. Other plaintiffs in the case are residents who own abutting private property. Main defendants are the zoning appeals board members who voted to grant the permit: Jesse Geller, Christopher Hussey and Jonathan Book–named in their roles as town officials. Other defendants are the Chestnut Hill Realty subsidiary awarded the permit: Residences of South Brookline, LLC.

Legal representation: The Board of Selectmen opposed the Hancock Village project throughout 2014 and, so far, 2015. However, that board assisted the zoning appeals board with services of outside counsel, who attended hearing sessions and offered advice. The Board of Selectmen approved several requests to the Advisory Committee for reserve fund transfers to pay for outside counsel. Funds went through both the Legal Services department and the Planning and Community Development department.

According to online town records, during fiscal 2014 and fiscal 2015 Brookline paid two firms who advised the zoning appeals board a total of $295,121 for services: Krokidas and Bluestein, of Boston, and Edith M. Netter and Associates, of Waltham. The lawyers who attended the appeals board sessions were Samuel Nagler and Kathryn Murphy from the Boston firm and Edith Netter from the Waltham firm. All testimony and advice was in public sessions recorded by Brookline Interactive Group.

At Land Court this week, Judge Piper appeared familiar with the background of the Brookline case. Before arguments, he expressed concern that no legal appearances had been filed for the Brookline Zoning Board of Appeals members and that no counsel attended the hearing to represent their interests.

According to communications, Judge Piper said, legal appearances were supposed to have been filed in June. Brookline Town Counsel Joslin Murphy responded that there was “no funding in place.” Judge Piper asked, “Was it requested?” Ms. Murphy said, “Selectmen were asked for support…they did not authorize any.”

Kevin O’Flaherty, representing Chestnut Hill Realty interests, maintained that Ms. Murphy and her staff had “unwaivable conflict,” responsible to represent two boards with opposing outlooks. The judge asked where there had been practical problems. Mr. O’Flaherty contended there might be problems such as obtaining documents, noting there was no counsel to contact for the zoning appeals board members.

Ms. Murphy countered that “the town has responded to discovery requests.” She noted that all sessions and records of the zoning appeals board were public and that Brookline’s Department of Planning and Community Development had provided staff support to retrieve records. She said that “the chairman of the ZBA [Zoning Board of Appeals] did correspond with the court.”

Zoning agreement: Jason Talerman, representing other plaintiffs in the case, opposed removing Ms. Murphy and her staff from the Land Court case and noted a related case now pending in the Court of Appeals. A key issue in the Appeals Court case has been a 1946 zoning agreement between the Town of Brookline and the John Hancock Life Insurance Company, specifying enduring restrictions on Hancock Village development.

Mr. Talerman had previously raised the issue in a memorandum sent on December 31, 2014, to the Brookline Zoning Board of Appeals. As in that memorandum, under the 1946 agreement, he told Judge Piper, “The project as proposed would be impossible.” In its comprehensive permit, however, the zoning appeals board took no notice of the 1946 agreement.

Threat: After more than an hour of argument, Judge Piper seemed unmoved by the particulars and returned to his initial concern over lack of legal representation for Brookline’s zoning appeals board members, saying he found it “deeply troubling.” Board members, he said, were left “entirely speechless, unable to be heard.” Since the members are being sued in their official capacities, they are apparently ineligible to present arguments pro se as plaintiff or defendant individuals might.

According to Judge Piper, “The developer,” apparently meaning the subsidiary of Chestnut Hill Realty, “is limited in its ability to gain access to the minds of the [appeals] board…I will not rule at the moment, [but]…if there is continued inability to hear from the board…I will be strongly inclined to allow the motion.” If that threat were carried out, however, it would instead leave both the main plaintiff and the main defendants in the case unrepresented.

As acknowledged to the Beacon by Ms. Murphy, Brookline has several sources of funds, including her office’s budget for outside legal services, the contingency fund and “in the worst case” a request to the Advisory Committee for a transfer from the reserve fund. Ms. Murphy did not succeed with her most recent reserve fund request.

Mysteries: Partly owing to statements in open court from Ms. Murphy, mysteries remain. There is no docket entry in the case for a communication from Jesse Geller, who chairs the zoning appeals board. If he is ineligible to represent himself in the case yet did “communicate with the court,” then how, when and what did he communicate?

Records should say whom the Board of Selectmen asked for advice about a request to provide funds for outside counsel to represent members of the zoning appeals board in the Land Court case, also what advice was offered and what members of the Board of Selectmen had to say. How and why did members of the Board of Selectmen “not authorize any” funds to represent members of another town board with whom they disagreed on a key issue?

– Beacon staff, Brookline, MA, September 5, 2015


Town of Brookline and others v. Jesse Geller, Member of the Brookline Zoning Board of Appeals, and others, Massachusetts Land Court case 2015-MISC-000072, filed March 11, 2015 (click button to search public records, select Land Court Department and Case Number tab, enter case number “15 MISC 000072″ and click Search button, click any Case Number item for “15 MISC 000072″)

Complaint, Town of Brookline and others v. Jesse Geller, Member of the Brookline Zoning Board of Appeals, and others, Massachusetts Land Court, March 11, 2015

Town of Brookline, MA, FY2015 accounts, Vendor payments for KROKIDAS and BLUESTEIN LLP, August, 2015

Town of Brookline, MA, FY2015 accounts, Vendor payments for EDITH M NETTER and ASSOCIATES PC, August, 2015

Comprehensive permit for The Residences of South Brookline, LLC, on the site of Hancock Village, Zoning Board of Appeals, Town of Brookline, MA, February 20, 2015 (4 MB)

Town of Brookline and others v. Mass. Development Finance Agency and others, Massachusetts Court of Appeals case 2014-P-1817, filed November 14, 2014

Jason Talerman to Brookline Zoning Board of Appeals, Re: Chestnut Hill Realty, Chapter 40B application, Brookline Department of Planning and Community Development, December 31, 2014

Irene Scharf and Jason Talerman, Testimony at Brookline Zoning Board of Appeals, February 24, 2014, see pp. 13 and 45-48

Advisory Committee: probing a disconnect, Brookline Beacon, July 29, 2015

Board of Selectmen: new members and leadership, Brookline Beacon, May 13, 2015

Board of Selectmen: Hancock Village, budget reviews, Brookline Beacon, March 4, 2015

Craig Bolon, Hancock Village: development pressures, Brookline Beacon, February 22, 2015

Board of Selectmen: Hancock Village, financial plan, Brookline Beacon, February 21, 2015

Zoning Board of Appeals: Hancock Village 40B conditions, Brookline Beacon, January 6, 2015

Zoning Board of Appeals: Hancock Village 40B, getting to Yes, Brookline Beacon, November 4, 2014

Board of Selectmen: opposing Hancock Village 40B, defending METCO, Brookline Beacon, September 17, 2014

Zoning Board of Appeals: architecture for Hancock Village Chapter 40B, Brookline Beacon, September 9, 2014

Judith Leichtner, Comments to Brookline Zoning Board of Appeals on proposed chapter 40B development at Hancock Village, September 8, 2014

Zoning Board of Appeals: Chapter 40B project at Hancock Village, Brookline Beacon, June 20, 2014

Brock Parker, Developer gets green light to pursue a 40B project in Brookline, Boston Globe, October 24, 2013

New England gas pipelines: need versus greed

Brookline residents may have heard about protests over a natural gas pipeline in a rural area or found a diatribe on the needs for or the evils of pipelines. As with many energy issues, information from state governments, industry sources and advocacy groups may be compromised: patronizing, frozen into agendas or blind to practical affairs.

New England gas pipelines: New England has no natural gas resources, and until 1953 it had no natural gas distribution. In Brookline and other urban areas, fuel gas was manufactured by heating coal with water, producing a flammable but poisonous mix of carbon monoxide, hydrogen and hydrocarbons–leaving toxic coal ash. The current New England land-based supply of natural gas, up to 3.6 billion cubic feet per day (Bcf/d), is provided by five long-distance pipelines (listed with delivery capacity to New England):

Name of line Bcf/d Start Sources
Tennessee 1.26 1953 Gulf, Southwest
Algonquin 1.09 1953 Gulf, Southwest
Maritime & NE 0.83 1999 Canada east
Iroquois 0.22 1993 Canada west
Portland 0.15 1999 Canada west

 

Major New England gas pipelines

NewEnglandPipelines2000
Source: U.S. Department of Energy

In addition, New England is served by four ocean import terminals for liquefied natural gas (LNG), with total capacity about 3.2 Bcf/d. However, because of high prices in overseas markets, during 2011 through 2014 only the Distrigas terminal in Everett, adjacent to Boston Harbor, received deliveries. The operator, GDF Suez, had long-term contracts at favorable prices.

A west-to-east pipeline entering through Connecticut was built by Algonquin Gas Transmission Co. of Boston, a partner with Texas Eastern Transmission Co., operating lines from the Gulf and Southwest. A west-to-east pipeline entering through Massachusetts was built by Northeastern Gas Transmission Co. of Springfield, MA, a partner with Tennessee Gas Pipeline Co., also operating lines from the Gulf and Southwest.

Fierce competition over rights to New England territories was resolved in 1953. The former Federal Power Commission (since 1977 FERC, the Federal Energy Regulatory Commission) allowed both companies to operate in separate territories. By that point, they had substantially completed the two pipelines.

The Northeastern line was later acquired by Tennessee Gas Pipeline, now a division of Kinder Morgan of Houston, TX. It is currently designated as part of the Tennessee pipeline system. The Algonquin line now operates as a division of Spectra Energy of Houston, TX. Since 1954, the two lines have been interconnected at Southington, CT, where they cross, tending to limit monopoly power of either company.

New gas pipeline capacity: In recent years, owners of the two largest New England pipelines began new competition, proposing major expansions. As Prof. Christopher Castaneda of California State at Sacramento described in his 1993 book, Regulated Enterprise, during the early 1950s Tennessee Gas Pipeline aimed not only to dominate New England markets but also to export natural gas to Canada.

Under Kinder Morgan management, the Tennessee pipeline company appears to have begun playing the same games again. Its current play, up to 2.2 Bcf/d, most recently called Northeast Direct, has been promoted for over three years to state and local governments and modified at least twice but still not formally proposed to FERC.

Northeast Direct needs major new rights of way. It was first proposed across northern Massachusetts. After strong protests, it was rerouted early this year, partly through southern New Hampshire. As of April, 2015, according to Northeast Gas Association, Northeast Direct had customers for only about 23 percent of the proposed capacity. Excess capacity appears useful mainly to reverse flows along the Maritime & Northeast line, sending U.S. gas northward into eastern Canada, where there are few current, underserved customers.

Proposed and current New England gas pipelines

NewEnglandPipelinesProposed2015
Source: U.S. Federal Energy Regulatory Commission

Instead of one big play, Spectra developed three smaller ones, mostly using existing rights of way for the Algonquin line. Its Algonquin Incremental Market (AIM) was approved by FERC in March, 2015, and is now underway. AIM will provide 0.34 Bcf/day increase in capacity, adding about 37 miles of pipeline and raising compressor power at stations in New York, Connecticut and Rhode Island.

Another Spectra play called Atlantic Bridge, not yet formally proposed to FERC, would add compressor power at two stations in Connecticut and at Weymouth, MA. The latter connects to Beverly, MA, and to the Maritime & Northeast line via the Hubline–completed under Boston Harbor in 2003. Apparently unable to attract enough customers, this spring Spectra reduced proposed capacity from 0.22 to 0.13 Bcf/d. The Hubline was built for north-to-south flow, supplied from Canada, but Atlantic Bridge appears intended to reverse the direction, sending U.S. gas northward, potentially into Canada.

The largest Spectra play is called Access Northeast, also not yet formally proposed to FERC. It would add up to 1.0 Bcf/d through changes along current Algonquin rights of way. New England’s largest two electricity distributors, Eversource (formerly NStar) and National Grid, recently proposed to invest in 60 percent of that project.

Involvement in a long-distance gas pipeline is outside the charters of Eversource and National Grid. They are local electricity distributors, not generation companies, transmission companies or long-distance pipeline operators. It would tend to put them into gross conflicts of interest, selling wholesale gas delivery to generating plants from which they buy wholesale electricity.

More natural gas capacity?: Does New England need more natural-gas pipeline capacity? The most prominent evidence from pipeline companies and their business allies has been electricity price spikes in mid-winter–strong during early 2013, 2014 and 2015.

Monthly electricity prices, Jan. 2010 through Jul. 2015

IsoNeMonthlyHubDayAhead2010to2015
Source: ISO New England data, August, 2015

Long-term contracts caused natural gas to be allocated to heating customers, limiting supplies at combined cycle, natural gas-fired plants that generate the largest share of New England electricity. During 2013 and 2014, ISO New England coordinated “winter reliability programs”–installing burners and filling tanks with refined fuel oil and liquefied petroleum gas at some generating plants.

The ISO New England pilot program in early 2014 was ineffective, but the next one in early 2015 appeared to moderate price spikes. That program was helped by a milder winter and by prices of crude oil falling since July, 2014, which lowered worldwide prices of natural gas and led to renewed ocean imports. The annual average wholesale electricity prices through March 31, from April 1 of the previous year, show the sway of the ISO New England price bulge in early 2014 and the more moderate average prices before and since.
Through March 31, 2011……..$0.051 per kWh
Through March 31, 2012……..$0.040 per kWh
Through March 31, 2013……..$0.050 per kWh
Through March 31, 2014……..$0.071 per kWh
Through March 31, 2015……..$0.050 per kWh

Pipeline promoters claim New England suffers from a shortage in natural gas delivery capacity of 2 Bcf/d or more. However, their estimates are for worst cases, they apply to only 5 to 7 weeks in deep winter and they assume no added ocean imports. Operators of natural-gas ocean import terminals say they have more than enough capacity to supply winter needs and say lower worldwide gas prices make that financially reasonable.

Since spring, Maura Healey, elected last year as attorney general of Massachusetts, has urged caution on gas pipeline projects. Assistant Attorney General Christina Belew of the Energy and Telecommunications Division called the proposed projects “an inefficient expense…units added would be minimally utilized.” Ms. Healey’s office contracted with Analysis Group of Boston for a comprehensive study of “energy resource options to meet [electrical] reliability needs” through 2030, now underway and to be completed by October.

Industry greed: For about 60 years, starting around 1950, New England natural gas prices remained higher than prices elsewhere in the U.S. In the 1970s and 1980s, imports of natural gas to Boston Harbor from Algeria and later from Jamaica proved favorable. Starting around 2010, gas from Appalachian shale began to reduce prices in the Northeast. Recent natural gas prices in New England and New York have often been lower than U.S. averages.

U.S. natural gas prices, September, 2014

NaturalGasSpotPricesFerc20140930
Source: U.S. Federal Energy Regulatory Commission

As oversupply emerged in Appalachian shale gas and prices started to fall, pipeline companies began to see opportunities. In 2013, FERC allowed Millenium Pipeline Co. a capacity enhancement for the Empire line into the New York City area. In December, 2014, FERC approved an application from the Williams Co. of Tulsa, OK, to build a new Constitution pipeline from the eastern Pennsylvania gas fields to Wright Township, Schoharie County, NY–a major pipeline interconnection junction.

In February of this year, Repsol, which has operated the Canaport ocean import terminal for LNG in New Brunswick since 2008, applied for a permit to build an export terminal, at 0.75 Bcf/d. The terminal is connected via the Brunswick pipeline to the Maritime & Northeast pipeline. Declining gas production in eastern Canada could not sustain Canaport exports. Instead, the recent proposal appears to be a year-round opportunity for the Spectra and Kinder Morgan projects to ship gas for international export.

In August of this year, the National Energy Board of Canada awarded a license to Pieridae Energy to export LNG from Goldboro, Nova Scotia. Like Canaport, Pieridae would lack a reliable supply of Canadian gas and need to draw on U.S. pipelines. The U.S. Department of Energy previously approved a permit allowing Pieridae to export 0.80 Bcf/d of U.S. natural gas through its Nova Scotia facility.

Traditionally, pipeline promoters tend to wrap themselves in patriotic garb and promise prosperity, but history indicates they have only been interested in profit. Low prices for Appalachian shale gas and high overseas prices obviously point toward setting up ocean exports from the East Coast. Such a process would couple Appalachian gas into international markets–likely raising prices for New England.

New England is unlikely to be well served by encouraging new natural gas pipelines, when it can probably manage demands for electricity through conservation, increased efficiency, added renewable sources, short-term fuel substitution and ocean imports of natural gas. Utility sponsorship of a pipeline project could be disastrous, loading ratepayers with year-long costs in exchange for only month-long benefits and enriching pipeline promoters through public subsidies–feeding industry greed instead of meeting public need.

– Craig Bolon, Brookline, MA, August 29, 2015


Natural gas in New England, New Hampshire Public Utilities Commission, 2015

Thomas Dukes, The expanding role of natural gas imports in meeting increased gas demand in New England, U.S. Department of Energy, 2000

Paul L. Joskow, Natural gas: from shortages to abundance in the U.S., American Economic Review, 103(3):338-343, 2013

Tux Turkel, Deliveries of liquefied natural gas, Portland (ME) Press Herald, February 1, 2015

New England spoils, in Christopher James Castaneda, Regulated Enterprise: Natural Gas Pipelines and Northeastern Markets, 1938-1954, Ohio State University Press, 1993, pp. 144-166

Tennessee Gas Pipeline div., Kinder Morgan, Natural gas delivery capacity, Massachusetts Department of Public Utilities, June, 2015

Tom Kiley, Regional gas market update, Northeast Gas Association, April 22, 2015

Order issuing certificate (Spectra AIM project), U.S. Federal Energy Regulatory Commission, March 3, 2015

Kinder Morgan confirms anchor shippers for Northeast Energy Direct project, Kinder Morgan (Houston, TX), March 5, 2015

Atlantic Bridge project, Spectra Energy (Houston, TX), 2015

Access Northeast project, Spectra Energy (Houston, TX), 2015

2014 Annual Markets Report, ISO New England, May 20, 2015

Planned pipeline enhancements, Northeast Gas Association, July, 2015

Jon Chesto, Report disputes need for more gas pipelines, Boston Globe, August 23, 2015

Analysis of alternative winter reliability solutions for New England energy markets, Energyzt Advisors (Boston, MA), August, 2015

Winter reliability analysis of New England energy markets, Energyzt Advisors (Boston, MA), October, 2014

Andy Metzger, Attorney General Maura Healey urges caution on building new natural gas pipelines, Springfield (MA) Republican, June 17, 2015

Jay Fitzgerald, Distrigas says fuel deals should prevent future gas shortages, Boston Globe, May 10, 2015

Office to lead regional gas capacity study, Office of the Massachusetts Attorney General, July 6, 2015

Christina H. Belew to Mark D. Marini, Investigation by the Department of Public Utilities into the means by which new natural gas delivery capacity may be added to the New England market, Office of the Massachusetts Attorney General, July 6, 2015

Winter 2014-2015 energy market prediction, U.S. Federal Energy Regulatory Commission, October 16, 2014

Repsol subsidiary files application to import U.S. gas supplies for export as LNG from Canaport terminal, Sutherland, Asbill & Brennan (Washington, DC), February 13, 2015

U.S. DOE export decision moves Nova Scotia LNG project ahead, Platt’s Oilgram, May 26, 2015

J. Craig Anderson, Maine’s plan to lower energy costs too expensive, says consultant, Portland (ME) Press Herald, July 15, 2015

Craig Altemose, Emerging reality of gas infrastructure: destination export, Huffington Post, July 10, 2015

Craig Bolon, New England energy: wobbly progress, Brookline Beacon, January 12, 2015

Craig Bolon, Fall town meeting: pipe dreams, Brookline Beacon, December 4, 2014

Craig Bolon, New pipeline across Massachsetts: gas produces hot air, Brookline Beacon, July 11, 2014

Craig Bolon, Brookline legacies: Olmsted and coal ash, Brookline Beacon, June 6, 2014

Broadband telecommunications: Brookline-based services

Brookline has had multiple telecommunications services for over 30 years, but they are so different in structure and focus that there has been far less competition than an outsider might expect. Once established, companies tend to march in place.

Resident companies: Resident telecommunications companies in Brookline–newest to oldest–are RCN beginning 1993, Comcast beginning 2006 (originally Times Mirror 1981, then Cox 1995) and Verizon beginning 2000 (originally New England Telephone 1883, then NYNEX 1984, then Bell Atlantic 1997). These companies all have cables under or above streets serving nearly all Brookline businesses and residences.

Each of the companies has a different base of technology and a different service focus. Verizon and its predecessors offered only analog telephones to the general public for more than 70 years. Eventually, the telephone services could be used for digital data by connecting them through modems, starting in the 1950s.

Comcast and its predecessors focused on cable television. The frequencies and bandwidth were much too great to be carried over Verizon’s copper wire pairs, or so it was thought at first, giving this succession of companies another type of natural monopoly for a time.

RCN focused on Internet services at first but also provided cable television. The bandwidth needed for thousands of broadband Internet channels was a step beyond that needed for tens of television channels, giving this company a natural monopoly for a time.

Technologies: Founding eras of the original companies led to different bases of technology. Verizon has a network of copper wire pairs, some over 100 years old, installed for analog telephone service. Comcast has foil-over-foam coaxial cables, a technology advance of the 1960s for video signals. RCN has fiber-optic cables, a fully digital technology practical on a municipal scale by the late 1980s.

For more than a decade, all three resident companies have offered a mix of similar services. All promote so-called “bundles” of telephone, television and Internet services but also sell separate services. A key element for Verizon is so-called DSL (digital subscriber line) technology, transmitting broadband signals over copper wire pairs for up to about 3 miles–thought impossible or impractical before the middle 1990s.

Since the middle 1990s, Comcast and its predecessors have encountered an increasing frequency of signal quality problems, according to Stephen Bressler, who was for many years telecommunications coordinator for Brookline. Their cable technologies are usually regarded as reliable for around 20 years, and cables are now well beyond that nominal service life.

Except in small patches, Comcast, recently rebranded as Xfinity, does not seem willing to renew its main infrastructure. Customer service personnel are described often as unresponsive and sometimes as worse. Of about 180 Yelp reviews for the Boston area as of August, 2015, all but three rated the Comcast (Xfinity) service at “one star,” the lowest rating–an astonishingly negative set of reviews.

RCN fares better with online reviews but hardly well. Many complaints concern erratic Internet and poor response to outages. Remember that with cable Internet one is sharing bandwidth with neighbors, predictably causing slower response at popular times of day. RCN will not install premise wiring. One will need to provide coaxial cable between the service connection and the point of use.

If trying RCN for Internet, it’s probably best to buy one’s own cable modem rather than rent from RCN. Complaints suggest that RCN tends to shrug off problems with cable modems, including those the company supplies. The cost will typically be recovered in about a year. Check with RCN to see that a prospective unit has been approved for use with their cable service.

Verizon experiences increasing problems maintaining broadband Internet over its aging copper wires. Every August, temporary installation crews come in to help with changes when large numbers of tenants typically move. Most are not familiar with Brookline wiring and equipment. They predictably create large numbers of problems that can sometimes take weeks to resolve. Paper-ribbon, 19 AWG wire-pairs from the 1920s and paper-pulp, 22 AWG improvements from the 1930s are fragile and suffer from humidity.

DSL can be a tricky service to use and maintain. Technologically skilled people can get considerable help from DSL Reports online. Verizon may have sold more DSL service in Brookline than it can reliably provide. The company cannot readily expand capacity, owing to decades of shortsighted practices. Newer cable segments jammed alongside older ones, without reorganizing wire pairs, have clogged the space in underground ducts. Some technicians say long-term records of wire-pair assignments by cable segment have become haphazard.

Competition: Obviously knowing that it operates the most capable technology, RCN resists offering price competition, although it now sells unbundled services. As of summer, 2015, its lowest performance Internet service is priced on a par with Verizon’s highest priced DSL but delivers about three times the bandwidth that Verizon usually provides, when Verizon DSL services are working well.

However, after the first year, RCN hikes the price of its lowest performance Internet service in steps until it costs about twice as much as Verizon’s highest priced DSL service. Comcast (Xfinity) does not look as though it intends to compete. Reliability of its service has been reported as so dim for so long that only unwitting prospects, who have not learned about problems, and those who find themselves locked in because of apartment wiring seem particularly likely to become new customers.

During leadership by Brookline resident Ivan Seidenberg, from 2000 through the end of 2011, Verizon promoted a fiber optic Internet service called FIOS. Verizon accepted billions of dollars in federal subsidies when committing to install that service. FIOS remains unavailable to nearly all locations in Brookline, and it might never become available. Equipment was reportedly installed in Brookline, but it has reached few if any homes and businesses. Nationwide, FIOS availability is very spotty, as shown in a coverage map prepared by an independent organization.

U.S. availability, Verizon and Frontier FIOS, 2014

FiosMap2014Techdirt
Source: adapted from Techdirt (Mike Masnick)

Unlike the original map, which tries to show “percentage” of coverage with shading, the above, reduced scale map has been altered to a uniform color where at least some coverage was reported. The “percentage” map was clearly missing actual conditions in areas of metropolitan Boston. The original, full scale map and information about how it was assembled are available from Fiber for All of Sarasota, FL.

AT&T claims to be developing a competitive fiber optic network to be called U-Verse, but no such Internet service has been reported as available anywhere in Massachusetts, only telephone and television services that may or may not be distributed by fiber optics.

Regulation: Brookline is now unable to monitor or investigate telecommunications services. After the retirement of Mr. Bressler last year, Brookline has effectively had no regulation. No one on town staff and no member of a standing board or committee has the needed combination of technical knowledge and business experience. Anyone able to perform such work competently would make an unlikely candidate to tolerate the political committee appointments and domineering practices of the current, technologically challenged Board of Selectmen.

– Craig Bolon, Brookline, MA, August 22, 2015


Raymond Bartnikas, Cables: a chronological perspective, in Bartnikas and Srivastava, eds., Power and Communication Cables: Theory and Applications, Wiley, 2003, pp. 1-75 (12 MB)

Sean Buckley, Frontier will expand FIOS in markets it purchased from Verizon, Fierce Telecom (Washington, DC), May 22, 2015

Phillip Dampier, In Massachusetts, Verizon FIOS arrives for some but not others, Stop the Cap (Rochester, NY), 2013

Hiawatha Bray, Cable provider RCN banks on better service to drive growth, Boston Globe, August 11, 2012

Compare Comcast in Brookline, DirecTV (El Segundo, CA), 2015

Renewable energy: New England experience

Budding environmentalists in urban New England mostly have yet to meet counterparts in the mountain areas of Maine, New Hampshire and Vermont. They have related concerns, but they also have far different outlooks. Some urbanites are lathered up over renewable energy, although few have practical experience producing any. Many northerners have come to regard urban energy campaigns as attacks on their living environments.

Costs of energy: For several years, the U.S. Department of Energy has published annual estimates of levelized costs for electricity from new plants of different types. They are independent of state subsidies, and they break out federal subsidies, making it possible to compare full, social costs of electrical energy–whether they are paid by private or public funding. The 2015 U.S. national estimates for unsubsidized wholesale electricity costs from the major types of new generation include:

National electricity source per kWh CF
Land-based wind farms $0.074 36%
Natural gas, combined cycle $0.075 87%
Third-generation nuclear $0.095 90%
Solar photovoltaic farms $0.125 25%
Petroleum peaking plants $0.142 30%
Ocean-based wind farms $0.197 38%

For wind and solar, a critical element that varies with location is capacity factor, CF: the actual average output divided by the peak rated output. National assumptions proved optimistic for wind and solar in New England, where the typical long-term average capacity factors have been documented at about 24% for land-based wind farms (in Maine) and at about 13% for solar farms (by DC ratings). Keep in mind that retail electricity rates add transmission and distribution charges, averaging about $0.12 per kWh for New England residential customers last year.

Major New England sources: Since costs of wind and solar power are dominated by capital, national costs per kWh need adjustment for New England. The region currently benefits from average natural gas prices lower than national averages, and experience with wholesale gas-fired electricity prices across New England has been more favorable than U.S. averages. As adjusted, unsubsidized wholesale electricity costs for the major types of new generation sources in New England become:

New England electricity source per kWh
Natural gas, combined cycle $0.06
Land-based wind farms $0.11
Solar photovoltaic farms $0.24

The full, social cost of wholesale electricity from land-based wind farms in New England, including public subsidies, is about twice the cost of wholesale electricity from the combined-cycle, natural gas-fired plants that produce the largest share of the region’s power. So far, there has been no New England experience with ocean-based wind farms.

Alternatives have not yet proven successful. New England generates much more energy burning wood and waste than it gets from wind and solar, but pollution around wood and waste plants is causing health hazards. The region is unlikely to accept more environmental burdens from wood and waste. Attempts to extract energy from ocean waves and geothermal sources have stalled because of equipment failures and high costs.

When we do commit to spend money in New England for renewable energy in order to provide environmental benefits, for the amount we spend we get about twice the benefits buying energy from land-based wind farms as we get buying energy from solar farms. However, state and federal subsidies have distorted finances, as seen by nearly all the public, tending to promote socially unsound investments.

Obstacles: In Massachusetts, former Gov. Patrick began service in 2007 with enthusiasm for building wind farms. However, most projects were small. During his two terms, 36 wind projects opened, but their total average output is only about 27 MW–about one part in 230 of the state’s average 6,310 MW electricity draw in 2013. Protests gathered over dangers, health hazards and conservation issues. Massachusetts offers few wind turbine locations that are a mile or more from homes and worksites.

Former Gov. Patrick’s second term pulled away from wind and began promoting solar projects with major subsidies. A large but hidden subsidy involves so-called “net metering.” That allows many projects to send electricity into the grid and get full credit at retail prices. The effect is to exempt owners of those projects from paying a fair share of costs to maintain the distribution network. All the other customers wind up paying those costs for them.

Starting in 2011, the Shumlin administration in Vermont soon copied the Patrick administration. After an early courtship of wind power, it backed away and began promoting solar farms. Vermont was left with three fairly large wind projects–Sheffield, Lowell Mountain and Georgia Mountain. Despite a far smaller population, it hosts more installed wind capacity than Massachusetts.

The major wind-power state in New England has long been Maine. It hosts about 52 percent of the region’s installed capacity. However, current Gov. LePage opposes expansion, saying wind is too expensive. Now that he has replaced nearly all appointees of his predecessor, former Gov. Baldacci, disapprovals of wind projects have multiplied. Boston-based First Wind, once the state’s leading developer, gave up and sold out to TerraForm of Maryland.

Comparisons: Contrary to some impressions, New England made a late start and achieved only slow growth in wind generation of electricity. The region’s track record in solar electricity has been even later and slower. Each of the leading wind states–Texas, California and Iowa–vastly outperformed all the New England states combined.

Installed wind capacities of states

StateWindCapacity1999to2014
Source: U.S. Department of Energy

Scaled by measures of state size, discrepancies between high-achieving states and New England states remain large. Measured by state populations, the installed wind capacities in peak watts per person for 2014:
Iowa………. 1831
Texas………. 523
California….. 152
New England….. 58
Installed wind capacity in New England is also well behind the national average of 132 peak watts per person.

New England’s largest untapped source of land-based wind power is among the Longfellow Mountains–as known since 1959–in the far northwest of Maine. Aside from strong winds, key advantages and key limitations are the same: remoteness and very sparse population. There are no major transmission lines. Nearly all the infrastructure would have to be built from scratch. For wind power, that is very costly.

Transmission lines have to be scaled by peak loads they service. A line serving large wind farms, running at only 25 percent capacity factor, costs much more than a line carrying the same average load serving a large gas-fired generator, running at 75 percent capacity factor. So far, no company has been willing to propose a transmission network for the Longfellow Mountains, so of course no wind farms are being built there.

By national standards, New England wind and solar power are rounding errors, only about one part in 50 of the region’s electricity. However, because they are so small they can be carried at nearly negligible costs by current infrastructure: transmission lines and natural gas-fired and nuclear generators. Were they more successful, costs of integration into the power grid would become far more than are currently included in the levelized cost estimates from the U.S. Department of Energy.

Imagination: Every New England state now has a “renewable portfolio” law. For 2015, these require that 8 to 19 percent of electricity be obtained from “renewable” sources. Averaged by electricity use, they set a combined requirement for 2015 of 12 percent “renewable” electricity. So far, the New England laws amount to a political joke. For 2014, New England obtained only 2.1 percent of electricity from wind and solar sources. So-called “requirements” of New England laws are met only through creative relabeling, exceptions, excuses and outright scams.

Some enthusiasts and political operators continue to imagine that people can somehow increase the supply of renewable energy merely by adding to the demand. They promote a variety of top-heavy schemes, including arbitrary escalators on “renewable portfolios” and community power-purchase programs. They ignore markets, which do what they will with supplies and demands. Demand for wind and solar power in New England already outpaces supply by about 6 to 1. When people run up demand without increasing supply, prices rise. Adam Smith told about that.

– Craig Bolon, Brookline, MA, August 15, 2015


Levelized cost of new generation, U.S. Energy Information Administration, April, 2015

U.S. wind capacity factors, National Wind Watch, March, 2013

Winter 2014-2015 energy market assessment, U.S. Federal Energy Regulatory Commission, October, 2014

Installed wind capacity, U.S. Department of Energy, 2015

Jon Black, Photovoltaic energy forecast update, ISO New England, September, 2014

Marley Jay, Maine governor: wind power is too expensive, Portsmouth (ME) Herald, April 4, 2015

Jon Chesto, Here’s why First Wind’s backers decided to sell, Boston Business Journal, November 19, 2014

State renewable portfolio standards and goals, National Conference of State Legislatures, July, 2015

Donald Bryson and Jeff Glendening, States are unplugging their renewable-energy mandates, Wall Street Journal, July 10, 2015

John Herrick, Electricity supplier won’t buy Vermont renewable energy credits, Vermont Digger, May 19, 2014

Ivy Main, Dominion Power’s wind and solar facade, Washington Post, December 29, 2011

George Taylor and Thomas Tanton, Hidden costs of wind electricity, American Tradition Institute, 2012

Craig Bolon, Rhode Island: offshore wind-power, winning and losing, Brookline Beacon, July 26, 2015

Craig Bolon, New England energy: wobbly progress, Brookline Beacon, January 12, 2015

Saga of a song: Happy Birthday to You

A chain of disputes over rights to the Happy Birthday song–a controversy now stretching over more than 80 years–recently enjoyed a revival with a federal lawsuit being heard in California. It was brought by Jenn Nelson, a video producer in New York who has been assembling a documentary about the saga. A key, unresolved issue throughout long controversy has been lack of a clearly established author of the song.

Disputes: Ms. Nelson reluctantly paid a subsidiary of Warner/Chappell Music of Los Angeles, who claim to own interest in a copyright, a royalty of $1,500–so that her video could use the song without wrangling over an infringement lawsuit. After a slow burn, she found a New York lawyer, Randall S. Newman, who was willing to challenge the copyright claim. Mr. Newman filed suit in New York on June 13, 2013, joined by Mark C. Rifkin of Wolf, Haldenstein, Adler, Freeman and Herz. The venue proved questionable, and a new complaint was filed in California later that month.

Circumstances of the Happy Birthday song have been contentious. Disputes began in 1934 with a charge against producer Sam Harris and composer Irving Berlin, who included the song in a Broadway musical without an agreement. Robert Brauneis, a professor at George Washington University Law School, explored origins of the song and legal issues about it in a 92-page journal article published in 2009, plus supplements available from the law school.

Origins: While working at the Louisville Experimental Kindergarten School in the early 1890s, Mildred Jane Hill and Patty Smith Hill composed a song with the same melody and different lyrics. Mildred Hill was a professional pianist and organist who taught at the school. Her sister Patty Hill had trained as a teacher at the school and then become principal. A pioneer in early childhood education, she later became a professor at Columbia University. The sisters collaborated on songs to appeal to and be easily learned by young children.

In 1893, the two sisters submitted a manuscript for publication to the Clayton F. Summy Co., then at 220 Wabash Ave. in Chicago. Mr. Summy published the work in 1893, 1894 and 1896 as editions of Song Stories for the Kindergarten. The first song on the first page of music was titled Good-Morning to All. It had the melody of the Happy Birthday song, but the lyrics said “good morning” instead of “happy birthday.”

Subsequently, the Clayton F. Summy Co. republished Good-Morning to All in 1899 as part of Song Stories for the Sunday School and in 1907 as a free-standing composition. In each case of publication, according the original complaint in the recent lawsuit, Mr. Summy or the Summy company applied for copyright registration and asserted that Mr. Summy or the company was “proprietor” of the work. No Summy publication included the “happy birthday” lyrics, only the “good morning” lyrics.

Changes and infringement: The trail diverged in 1912, after a large, Chicago-area piano manufacturer, The Cable Company, published and began to sell The Beginners’ Book of Songs. For a song titled Good-Morning to You, alternatives to “good morning” were shown in subtitles as “good bye” and “happy birthday.” Key, melody, main lyrics and piano arrangement were the same as Good-Morning to All in Song Stories for the Kindergarten from the Clayton F. Summy Co., still under copyright.

The Beginners’ Book of Songs, cover

BeginnersBookOfSongs1912CableCover
Source: The Cable Company, Chicago, IL, 1912

As published in The Beginners’ Book of Songs, no authorship, permission or copyright was cited for Good-Morning to You. That looks like infringement. However, this 1912 publication also introduced into commercial circulation the “happy birthday” lyrics in combination with the “good morning” melody.

Any later attempt to claim original authorship of the “happy birthday” lyrics, alone or in combination with the “good morning” melody, could suggest plagiarism. So far as can be seen in records from the recent lawsuit, neither Mildred Hill nor Patty Hill claimed authorship or left unpublished manuscripts for the “happy birthday” lyrics or for their combination with the “good morning” melody.

According to Prof. Brauneis and as recited in the original complaint for the recent lawsuit, the Clayton F. Summy Co. did not seek copyright extension for the publication of the Good-Morning to All song occurring in 1893. Later publications notwithstanding, melody and lyrics of that song could have entered the public domain when their 1893 copyright term ended in 1921 without renewal action by the “proprietor,” Clayton F. Summy or the Summy company.

From 1922 to 1927, The Cable Company published the fourth to sixteenth editions of The Everyday Song Book. Song 16 in those editions was titled Good Morning and Birthday Song. It has the melody of Good-Morning to All, transcribed from G to A-flat, with no piano arrangement and with three sets of lyrics: two with “good morning” and one with “happy birthday.” No authorship or copyright was cited. However, a note below the title said, “Special permission through courtesy of the Clayton F. Summy Co.”

Lawsuits and arguments: That situation is now presented to a federal court in the Central District of California. Judge George H. King, the chief judge of the district, has something of a mess to clear, mainly because of lapse of time but also because of several actions during the previous 81 years to prosecute a claimed but vaguely justified copyright.

Supposed rights to the Happy Birthday song may never have been enforceable. No authorship for the “happy birthday” lyrics or for their combination with the “good morning” melody appears to have been claimed at or before publication in 1912. Without an author, there is no copyright interest. [See note, below.] However, arguments in the recent case became tangled–tending to obscure some elements of copyrights.

Judge King does not have a particularly strong record when dealing with intellectual property. In Alfred Mann Foundation v. Cochlear, a patent lawsuit beginning as Central California case no. 07-cv-8108, he was overruled by the Court of Appeals for the Federal Circuit in 2010 [case no. 2009-1447], which found faulty justification from Judge King for holding that plaintiffs in the district court case lacked standing to sue.

The Clayton F. Summy Co. was sold in 1930, into what became a succession of organizations. When lawsuits began in the mid-1930s, the Happy Birthday song had been published several times before, essentially in the form it is currently performed, without claims of authorship or copyright and without prior challenges for infringement. By at least 1922 it was a known work, published in full and combining the “happy birthday” lyrics with the “good morning” melody.

Aggressive copyright prosecutions look to have begun with efforts by Jessica Hill, youngest sister of Mildred and Patty Hill, after Mildred Hill died in 1916 and Jessica Hill, who played no role in creation of their songbook, inherited a potential interest in the songs. In a brief filed July 28, 2015, Warner/Chappell argued that Jessica Hill renewed the copyright to the songbook in 1921.

In an appendix to his journal article, Prof. Brauneis argued that, as a successor in interest, Jessica Hill was entitled to obtain and hold a renewal of copyright and would have held it in trust for other family members. As renewed in 1921, the 1893 copyright for Song Stories for the Kindergarten would have expired in 1949, and the enforceable copyright to the Happy Birthday melody would have expired with it.

After 1921, Mr. Summy and the original Clayton F. Summy Co. would no longer have been the “proprietors” of copyright for Good Morning to All. Instead, Jessica Hill would have become “proprietor.” According to that logic, the Happy Birthday melody, as published by The Cable Company in 1922 and later, would have been yet another pirate edition. Its “permission” was bogus. The “happy birthday” lyrics are a different story.

Neither the 1893 songbook nor later editions of it contained the “happy birthday” lyrics, alone or in combination with the “good morning” melody. So far, briefs for Warner/Chappell have apparently failed to acknowledge lack of documented authorship and copyright coverage for the “happy birthday” lyrics, alone or in combination with the “good morning” melody, between at least 1893 and 1933.

In the 1930s, successor management of the Clayton F. Summy Co. filed for copyrights involving the Happy Birthday song. However, they were for similar works with varying piano arrangements and additional lyrics. They did not address issues arising from combining the “happy birthday” lyrics with the “good morning” melody. At those times and since, there have been allegations of copyright infringement. So far, disputes over the Happy Birthday song have been settled privately, leaving legal issues of copyright unadjudicated.

Potential outcomes: It is possible Judge King will find there have been no enforceable rights to the “happy birthday” lyrics or their combination of with the “good morning” melody, because there has been no clear evidence of authorship for the lyrics or the combination. It is also possible the judge will find potential rights connected with the melody of the Happy Birthday song were abandoned or had expired by 1922 or by 1950, either through acts or through neglect.

If the judge somehow reaches the far side of those legal chasms, he will need to decide whether the 1930s copyright filings reflect rights of original authorship to the combination of the “happy birthday” lyrics with the “good morning” melody or whether instead they concern only rights to derivative works with different piano arrangements and additional lyrics. If inclined toward finding original authorship, the judge would also need to consider potential plagiarism in the filings.

The money involved makes at least a trip to the Court of Appeals and a try at the Supreme Court likely, no matter what Judge King finds. However, pitfalls ahead for Warner/Chappell Music suggest a fair chance that in a few years the Happy Birthday song may be recognized as public-domain. Warner/Chappell Music might have to disgorge years of unearned royalties, depending on findings of culpability.

Ms. Nelson’s lawsuit already has class action recognition. It seeks to restrict copyrights currently claimed for the Happy Birthday song from covering more than specific piano arrangements and additional lyrics, and in addition it seeks injunctive relief, royalty reimbursements with interest and costs. A victory by the plaintiffs would likely draw attention to other older copyright claims, including Sherlock Holmes stories, already public-domain in the UK.

– Craig Bolon, Brookline, MA, August 8, 2015


Note: “Without an author, there is no copyright interest.” Authorship and originality have been ingredients of copyrights since they were authorized by the U.S. Constitution in Article 1, Section 8. In Section 4, the Copyright Act of 1909 provided, “works for which copyright may be secured under this act shall include all the writings of an author.” Section 102 of the Copyright Act of 1976 narrowed the range somewhat, saying, “copyright protection subsists in original works of authorship.” A requirement of originality, expressed in case law, was made explicit under that statute.

Susanna Kim, Why Happy Birthday to You should be copyright-free, lawyers say, ABC News, July 29, 2015

Zachary Crockett, Who owns the copyright to Happy Birthday?, Priceonomics, April 14, 2015

“Until there is a work of authorship, there is no copyright interest,” U.S. Copyright Office, 2014

Good Morning to You Productions Corp., et al., v. Warner Chappell Music, Inc., et al., case 2:13-cv-4460 in the Central District of California (Los Angeles), filed June 20, 2013
(originally filed as Rupa Marya v. Warner Chappell Music, Inc., first filed as case 1:13-cv-4040 in the Southern District of New York)

Class-action complaint, case 1:13-cv-4040 in the Southern District of New York, filed June 13, 2013

Robert Brauneis, Copyright and the world’s most popular song, Journal of the Copyright Society of the U.S.A. 59:335-426, 2009
Links to text and supplements, George Washington University
Formatted text of the article, George Washington University

Jason Mazzone, Copyfraud, New York University Law Review 81(3):1026-1100, 2006

Russ Versteeg, Defining “author” for purposes of copyright, American University Law Review 45(5):1323-1366, 1996

First Publications v. Rural Telephone Service Company, U.S. Supreme Court, case no. 89-1909, 499 U.S. 340, 1991

Geraldine Fabrikant, Sound of a $25 million deal: ‘Happy Birthday’ to Warner, New York Times, December 20, 1988

The Cable Co. (Chicago, IL), Everyday Song Book, 101 Best Songs and 101 Famous Poems (advertisement), Normal Instructor and Primary Plans 31(4):4, F.A. Owen Publishing Co. (Dansville, NY), February, 1922

Clayton Frick Summy, in John W. Leonard, ed., The Book of Chicagoans, A.N. Marquis & Company, Chicago, 1905, p. 558

Board of Selectmen: new saloon and funding gap

A regular meeting of the Board of Selectmen on Tuesday, August 4, started at 5:40 pm in the sixth-floor meeting room at Town Hall. The board has gone into semi-hibernation and probably won’t meet again in August. This rambling, sometimes cornball board often pushes the biggest problems far out into the night; maybe observers might give up and sign off. The last agenda item on this particular night was a zinger.

$4 million funding gap: The town looks to be around $4 million short of money to rebuild Devotion School. To town administration, that was obviously stale news. The state had sent a funding letter on June 10. The Board of Selectmen did not put the matter on their agenda and let the public know about the problem until almost two months later.

Last May 26, town meeting voted $118.4 million for the project, told by the board and the Advisory Committee to expect $27.8 million in state aid. Six weeks later, the state came back with only $25.9 million. Adding to a $1.9 million problem, the public schools still have no place for kindergarten through fourth grade students during the project. Old Lincoln School will be full with fifth through eighth grade students.

At a morning meeting on August 4, according to board member Nancy Daly, Suffolk Construction of Boston, the general contractor, proposed to install temporary classrooms over the asphalt basketball courts behind the school along Stedman Street. That would cost another, unplanned and unfunded $1.8 million. Where can it all come from? Neil Wishinsky, the board’s chair, thought it could not come from the debt exclusion approved at the May 5 town election, saying voters had been “promised” some particular amount. He was mistaken.

Mr. Wishinsky apparently forgot that voters approved a project–not an amount of funds. According to state law, that is how debt exclusion questions have to be worded. Up to the times of the town election and town meeting, Brookline had only estimates of total costs and of state funding. It was in no position to make promises to anybody about amounts of funds.

The May town meeting was advised differently by the Board of Selectmen and the Advisory Committee. The board estimated debt exclusion would apply to $49.6 million in bond funding. [on page 8-25 of the warrant report] The committee estimated debt exclusion would apply to $44.6 million. [on page 8-69 if the warrant report] The town meeting endorsed neither estimate, and it appeared not to have authorized bond funding either.

Instead, the town meeting approved a project total of $118.4 million, by a vote recorded as 222-1. Prior to the vote, Edward “Sandy” Gadsby, the moderator, did not say the motion included bonding, although the margin was more than required by law for bonding. So far, no one knows how much of the approved total might come from current revenue, how much if any from bonding and how much of the latter via debt exclusion. What looks nearly certain is that the total funds approved won’t cover the total costs.

Irish saloon: In another roundabout of the evening, the board approved a large Irish saloon amid lower Beacon Street neighborhoods. Known elsewhere as Waxy O’Connor’s, the Brookline site is to be only a Waxy’s–without beer pitchers and self-serve beer taps. Brookline is getting management from Woburn, at least for a while. In Woburn, according to an online review last month, “The people at the bar were screaming, swearing and running in and out of smoking cigarettes.”

Waxy’s put on a better show than three weeks ago. Frank Spillane, the Foxborough lawyer representing the chain seeking to open at 1032 Beacon St., had reviewed Brookline regulations. Ashok Patel, the Woburn site manager, was slated to manage the Brookline site–no more questions about who the manager would be. Mr. Spillane and Mr. Patel had settled potential problems with some neighborhood representatives.

Board members still proved wary. Although they approved licenses for a restaurant, full liquor service, entertainment and outdoor seating, they limited closing hours to 1 am and attached conditions, including outdoor service to end at 10:30 pm with clean-up completed by 11 pm, limits on noise, deliveries and smoking, little or no paper on the patio and multiple security cameras. Restrictions are still lighter than some at Chipotle on Commonwealth Avenue, where no alcoholic beverages can be served outside. As board member Nancy Heller observed, the ban on pitchers did not extend to sangria or margaritas.

Personnel, contracts and finances: In a little over half an hour, the board reviewed and approved hiring for 25 vacant positions, and it approved six miscellaneous contracts ranging from $3,000 to $25,000. It is unclear why, in a community that employs an expensive town administrator with a staff of six, the Board of Selectmen would not delegate such matters, which it always approves.

David Geanakais, the chief procurement officer, presented a contract to lease space on the third floor at 62 Harvard St. for classroom space. The contract distributed by the board was abridged to leave out the amount and cost of the space. Members of the board did not seem to think that important to tell the public about, but afterward Mr. Geanakakis said the first-year cost would be $129,000.

Peter Ditto, the engineering director, won approval for two contracts with Susi and Sons of Dorchester for a total of $1.23 million, the main yearly contracts for street and sidewalk repairs. Susi was low bidder on the $0.95 million street repair contract but won the sidewalk contract only when another bidder failed to submit complete documents.

– Beacon staff, Brookline, MA, August 5, 2015


Annual town meeting, first session, Brookline Interactive Group, May 26, 2015 (video recording, vote on appropriation for Devotion School at about 01:40:10)

Warrant report with supplements, May 26, 2015, town meeting, Town of Brookline, MA

Board of Selectmen: two boards, changing colors, Brookline Beacon, July 18, 2015

Board of Selectmen: water fees, snubbing the public, Brookline Beacon, June 24, 2015

Craig Bolon, How we voted, costs of business, Brookline Beacon, May 10, 2015

Internal Revenue Service call: 202-657-4430 phone scam

The would-be IRS agent identified herself as “Kelly Johnson,” ID no. IRM0156, and said there was a payment for back taxes pending from 2009 through 2013. A suit would be filed in federal court if not settled today, Monday, July 27. The amount claimed was several thousand dollars. Ms. “Johnson” said the particulars would not be available until after papers had been filed, but someone from “the high ministry” could help.

Thickening the plot: The Brookline Police Department has been warning for more than a year about telephone scams targeted at local residents. Since the U.S. IRS does not ask for quick payment over the phone, this sounded like one. The game would be to get some positive identification, if possible. Since we in the U.S. have agencies, offices, services and departments–not ministries–it sounded like a call from some parliamentary jurisdiction, although the potentially fake phone number had the Washington, DC, area code.

A would-be “Don Fort,” claiming to be the IRS deputy chief of criminal investigation, had an Indian accent, more likely to be a person named something like Suresh Patel than something like Don Fort. Clipped vowels suggested an urban origin, maybe Maharashtra. When asked how a caller might know that he really worked for the U.S. IRS, Mr. “Fort” suggested checking his name with Google. Although that checked out, he didn’t.

Mr. “Fort” seemed anxious for fast payment but said he could not accept a bank account or a credit card, as the U.S. IRS will do. Cash payment would have to be wired to an account, but he would not give the account number unless the cash were on hand and ready to wire. When asked, on an ordinary business day, for an IRS case identifier to check on the “claim,” Mr. “Fort” said he did not have one at hand. He was demurred with an excuse that we were responding from out-of-town and would have to call back.

Following up: The next call, of course, was to the Brookline Police Department, lodging a complaint about an apparent attempt at interstate telephone fraud. Checked out with Google, the phone number used by the would-be fraudsters turned out to be a well known scam-element:
“Contact Information–Jerk Call.
Stated to call IRS for lawsuit.
IRS does not call to warn about taking money.”

Officer Hunter at the Brookline Police front desk took down basic information and said someone else from the department would come by to check. About a half hour later, Patrol Officer Dana Inchierca rang the bell, and we spoke for a few minutes. He was not familiar with the signature of this particular scam but said similar activities had been occurring frequently.

Brookline Police lacked jurisdiction when no actual fraud or unwarranted disclosure of information occurred. Officer Inchierca said the FBI and the IRS might intervene. A call to the FBI Boston office got a referral to an IRS “hot line” number for telephone scams–impersonating an IRS agent–800-366-4484. That led, in turn, to a Web site for filing complaints. The site at http://www.tigta.gov offered a short form to list contact information and particulars. We filed a complaint. After five days, there had been no response.

Catching crooks: Without more timely actions, the federal government stands unlikely to catch crooks practicing this scam and similar ones. According to Officer Inchierca, would-be perpetrators might easily be at locations other than telephone numbers suggest and even in other countries. If warned of exposure, they would likely decamp.

As a result of Mr. Snowden’s recent disclosures, some federal officials are known to have real-time access to telephone traces. However, they will not catch many such crooks unless they are prepared to deploy tools promptly and unless they coordinate closely with local enforcement who can immediately visit premises, seize evidence and arrest suspects.

We have published our names, address and Brookline land-line telephone number for over 40 years, so anyone at all interested in reaching us could easily accomplish the task. While that is some amount of public exposure, we are not inclined to hide. If you are targeted by a potential scam, you might do as we did–which Officer Inchierca confirmed to be a useful approach.

Do not supply, verify or acknowledge any identifying information other than what you can be sure you already made public–including names, addresses, phone numbers, e-mail addresses, bank, account or ID numbers, social security numbers, legal counsel, employment data, business data or identifications of relatives, friends or neighbors. Do not worry over asking blunt questions or over making challenging comments. If you are puzzled or scared, simply hang up. Start a complaint by calling the Brookline Police Department, 617-730-2222.

– Craig Bolon, Brookline, MA, August 1, 2015


IRS reiterates warning of pervasive telephone scams, U.S. Internal Revenue Service, April 14, 2014

Edward Snowden: leaks that exposed U.S. spy program, BBC (UK), January 17, 2014

Scam alerts, Brookline, MA, Police Department, December 20, 2013

Advisory Committee: probing a disconnect

The Advisory Committee met Tuesday, July 28, starting at 7:30 pm in the first-floor south meeting room at Town Hall–mainly to understand a disconnect in budgeting before and during the May town meeting. Details had been reviewed by the Capital subcommittee at a meeting the previous Tuesday, July 21. While some events had become known, understandings of them remained murky.

Structural deficit: As adopted at the 2015 annual town meeting, the fiscal 2016 budget had a structural deficit, around $200,000, known to some Brookline employees but withheld from most or all members of boards and committees and from town meeting. At the point of the Advisory Committee’s review July 28, a timeline for some events of the disconnect had become clear:

Late April: Public Works gets only three bids for recycling
Late May: Public Works settles on best bid, $200,000 over budget
May 26: Annual town meeting adopts fiscal 2016 budget
May 28: Annual town meeting completes work and dissolves
June 23: Board of Selectmen approves $1.22 million FY2016 contract
June 23: Board of Selectmen applies for $200,000 from reserve fund
July 7: Advisory Committee approves $200,000 and starts investigation
July 14: Advisory Committee members lodge protest with Board of Selectmen
July 21: Advisory subcomittee conducts special hearing and drafts report
July 28: Advisory Committee holds special review meeting

By late April, at least Andrew Pappastergion, the commissioner of public works, Mel Kleckner, the town administrator, and Melissa Goff, the deputy town administrator, knew that a structural deficit in the fiscal 2016 budget was likely. Before the end of the annual town meeting, they knew the budget deficit was certain and would be about $200,000.

None of them told any member of the Advisory Committee, which has a legal duty to propose budgets to annual town meetings. Had they done that, the committee could have amended the budget proposed to town meeting, to bring it into balance, or it could have proposed to reconsider the budget, if notified after the budget had already been voted.

It has not been clear whether members of the Board of Selectmen had timely information. No member of the board told any member of the Advisory Committee or told town meeting about it before June. Treatment of protesting committee members at the board’s meeting July 14 looked and sounded disrespectful. However, on July 28 the committee skirted those issues, focusing on information received from town employees.

Explanations: As described in a subcommittee report prepared by Fred Levitan, a Precinct 14 town meeting member, during the May town meeting, Mr. Kleckner was also aware of about $190,000 in extra state aid for Brookline. He failed to inform Advisory Committee members and town meeting about those circumstances as well. Apparently he hoped to use the extra funds somehow to repair the structural deficit.

According to a 20-year “town-school partnership,” that would have been unrealistic. Revenues have to be reviewed by a standing committee and are typically divided between municipal and school accounts. So far, there has been no meeting of the partnership committee to consider changes in fiscal 2016 state aid.

According to Mr. Levitan, Mr. Klecker said not notifying the Advisory Committee was “a mistake.” To many observers, that might not appear likely. Mr. Klecker has about 20 years experience with work similar to his current position–serving four Massachusetts towns, most recently Winchester and Belmont. The same provisions of Massachusetts General Laws have applied to all the towns.

The committee discussed whether to reconsider the contentious $200,000 reserve fund transfer it had approved July 7. That had been an evening when the committee rejected a reserve fund request, the only rejection any member could recall in about ten years. The request approved came on a vote of 12 to 10 and one abstention. With just a single vote cast as No instead of Yes, the $200,000 request would have been rejected on a tie vote.

Following Advisory customs, reconsideration needed a motion from a member who had voted Yes on the $200,000 transfer. If the transfer were reconsidered, it might be voted down and withdrawn. When Sean Lynn-Jones, the committee chair, called for such a motion, there was no response. Most members seemed satisfied such a disconnect would not happen again.

– Beacon staff, Brookline, MA, July 29, 2015


Report from Fred Levitan for Capital subcomittee to Advisory Committee, $200,000 DPW transfer request, Town of Brookline, MA, July 28, 2015

Memorandum from Melvin A. Kleckner, Town Administrator, to Sean Lynn-Jones, Chair, Advisory Committee, Town of Brookline, MA, July 13, 2015

Richard Kelliher and James Walsh, Memorandum of understanding: town/school budget partnership, Town of Brookline, MA, May 16, 1995

Board of Selectmen: two boards, changing colors, Brookline Beacon, July 18, 2015

Craig Bolon, Advisory Committee: reach for the reset button, Brookline Beacon, July 8, 2015

Board of Selectmen: water fees, snubbing the public, Brookline Beacon, June 24, 2015

Advisory Committee: budgets and reconsiderations, Brookline Beacon, May 1, 2015

Rhode Island: offshore wind-power, winning and losing

Upon lapse of the Patrick administration, the major electric utilities in Massachusetts quickly bailed out of contracts to buy costly offshore wind-power from Cape Wind, citing lack of agreed progress on the project. Barnstable, the largest town on the Cape, had joined with others, suing to quash agreements they said the Patrick administration coerced utilities into signing. That lawsuit may be moot, but only lawyers stood to profit. Last January, Cape Wind became a legal zombie.

Racing the wind: A national race for offshore wind-power is being won by Deepwater Wind in Rhode Island. This spring, Deepwater began building foundations three miles offshore from Mohegan Bluffs, on the south side of Block Island. Next summer, the company aims to install five turbines. Ironically, the state with the least wind-power capacity in New England looks to become the U.S. pioneer of offshore wind-power.

Wind turbines seen from Barlows Point, Block Island, simulated view

BlockIslandSimulatedViewBarlowsPoint
Source: U.S. Army Corps of Engineers, 2013

Writing this spring in the Boston Globe, Derrick Jackson claimed that the apparent success of Deepwater Wind versus Cape Wind had sprung from “thinking smaller,” but he was not looking far beyond the end of his nose. From an initial base of five turbines, Deepwater has plans to install at least five more off Block Island and then to move out into Rhode Island Sound, where it holds federal leases on areas large enough for more than 200 similar turbines. Total power generation could be around three times recent estimates for Cape Wind.

The turbines being manufactured by Alstom of France also mean thinking big. They are nearly twice the size Cape Wind had planned, by peak power ratings, and about three times the size of any land-based turbine in Massachusetts. Rather than use the speed-increasing gearboxes needed with induction generators, they use direct-drive generators, removing a common source of high maintenance costs and turbine disasters. So far, however, offshore wind power has failed to demonstrate any useful economy of scale.

Politics, jobs and prices: Like Cape Wind, Deepwater carefully surveyed wind profiles before bidding on leases and building turbines. Unlike Cape Wind, Deepwater paid good attention to political as well as ocean winds. In contrast to Cape Cod, Block Island lacks a powerful corps of rich people inclined to hire expensive lawyers. Instead, Deepwater was able to appeal to lingering senses of inferiority, promising a leap into high technology.

The appeal that seized former Rhode Island Gov. Carcieri, however, was jobs–good-paying technology jobs in an economy savaged by the 2008 recession. Carcieri helped Deepwater with a land base for operations at Quonset Point, working to haul in over $23 million in federal money for the facility, and he helped to enlist state regulators, ushering Deepwater into the state’s wholesale electricity market.

His successor, former Gov. Chafee, helped to clear a path to permits for Deepwater through state and federal bureaucracies, making it advantageous for the company to build first in state-chartered waters off Block Island and to start the clock running on company operations. Unlike Cape Wind, which never produced any power, by the end of next year Deepwater will be delivering electricity, starting to satisfy contracts.

Deepwater claimed it would employ hundreds of workers from Rhode Island while building the Block Island wind farm. The fine print said something else. According to sworn testimony by a Deepwater representative, after the facility now in progress opened, there would be only six permanent jobs. The price for that employment was huge: nearly four times the average wholesale price for electricity in New England.

Deepwater’s agreement with National Grid calls for an initial wholesale price of $0.244 per kWh. Cape Wind had not been quite so greedy, settling on an initial wholesale price from National Grid of $0.188 per kWh. According to power-pool regulator ISO New England, the region’s average wholesale electricity price, at the busbars of power plants, was $0.0633 per kWh during calendar 2014–considered a fairly high-priced year.

Ripping off customers: Retail customers are paying transmission and distribution charges, too. The U.S. Energy Information Administration found that the average total price paid by New England residential customers during calendar 2014 was $0.179 per kWh. Transmission and distribution combined cost them on average $0.116 per kWh.

If New England residential customers had to buy all their wholesale electricity at Deepwater prices, they would have paid a total of $0.36 per kWh on average during 2014, more than twice the actual average total that year. All the New England states are requiring utilities to get increasing amounts of electricity from renewable sources, but so far utilities have been able to find much lower prices from land-based wind farms and hydroelectric generators.

Luckily for Brookline residents, Deepwater never extracted contracts from Eversource or its predecessors, NStar and Northeast Utilities. National Grid serves nearly all of Rhode Island, tending to make that company far more susceptible to political factors there. As Deepwater grows, its dead weight on Rhode Island customers and on other National Grid customers in northeast, central and southeast Massachusetts will grow apace.

– Craig Bolon, Brookline, MA, July 26, 2015


Diane Cardwell, Offshore wind farm raises hopes of U.S. clean-energy backers, New York Times, July 24, 2015

U.S. regional electricity prices, U.S. Energy Information Administration, July, 2015

Beth Winegarner, Cape Wind deadline halted while Massachusetts mulls extension, Law360 (New York, NY), May 28, 2015

New England’s wholesale electricity and capacity markets were competitive in 2014, ISO New England, May 20, 2015

Derrick Jackson, Wind power’s future depends on thinking smaller, Boston Globe, March 28, 2015

Craig Bolon, New England energy: wobbly progress, Brookline Beacon, January 12, 2015

Alex Elvin, NStar and National Grid sever contracts with Cape Wind, Vineyard Gazette, January 7, 2015

Deepwater Wind (Block Island Wind Farm) summary, U.S. Army Corps of Engineers, New England District, 2014

Block Island wind farm permit, Deepwater Wind, U.S. Army Corps of Engineers, September 4, 2014

Deepwater Wind project, Rhode Island Coastal Resources Management Council staff report, January 24, 2014

Memorandum for record, Block Island wind farm, U.S. Army Corps of Engineers, October, 2013

Mark Drajem and Andrew Herndon, Deepwater wins first auction for U.S. offshore wind lease, Bloomberg News, July 31, 2013

Visual impact assessment, Block Island wind farm, Deepwater Wind, submitted to U.S. Army Corps of Engineers, May, 2012

RI Supreme Count hears anti-Deepwater Wind arguments, Wind Power, May, 2011

National Grid, Power-purchase agreement with Deepwater Wind, June 30, 2010

Government records: continuing barriers to access

Government records are once again a focus of concerns in Massachusetts, notably problems getting access to records enforced. A bill pending in the General Court’s committees might have a chance to pass in the next two weeks. Otherwise, it is likely to remain shelved for another year or more.

Sunlight: In the memorable words of former Justice Brandeis, “Sunlight is…the best of disinfectants.” House 3665, now up for review in Ways and Means, would let more sunlight into some dim corners of state and local governments. However, this bill–from Rep. Kocot of Northampton and Sen. Lewis of Winchester–offers only limited progress toward lifting a chronic, statewide curtain of secrecy.

A few years ago, during Martha Coakley’s terms as state attorney general, her office said public records access was “not a top priority.” The public records supervisor in the secretary of state’s office soon said he was no longer referring violations to the attorney general. According to the Boston Globe, Secretary of State “Galvin’s office leaves it up to citizens to go to court to force agencies to comply with…rulings, something that can cost tens of thousands of dollars in legal fees.”

In parts of the state, access to information became a luxury. Even the winner of a successful lawsuit could not be sure of cost reimbursement. Not all situations proved hostile. For example, during the past year the Brookline town government responded promptly to six public records requests–three to the Office of Town Clerk and three to other agencies–for the benefit of Brookline Beacon readers. Those agencies did not charge fees for copies of their records.

Proposed reforms: As reported out of the joint committee on state administration, H. 3665 recognizes electronic data and in Section 2 tries to regularize formats, a quest probably better left to regulations. Section 3 requires naming “records access officers.” The Massachusetts Municipal Association has tried to paint this as a cost burden, but government agencies are tasked to provide access to records anyway. They would simply have to say who handles requests.

Section 4 tries to improve enforcement. The supervisor of public records “shall” rather than “may” notify the attorney general of violations, and the attorney general “shall” rather than “may” pursue remedies. It would also rein in cost and legal barriers. A “reasonable fee” for a copy of a record must not “exceed the actual cost of reproducing the record…provided that no fee shall be charged unless at least two hours of employee time is needed.” When administrative remedies fail and a lawsuit follows, “the court shall award reasonable attorney’s fees and costs to the party seeking public records if that party has substantially prevailed.”

The proposed reforms leave untouched the worst barriers to public information. In Chapter 4 of the General Laws, Section 7(26) specifically excludes 20 categories of information from “public records.” Those include information about personnel rules and practices (item b), policies under development (item d) and contracts for medical services (item m). None of these exclusions contribute to “transparency” in government.

Origins, secrecy and arrogance: Records requirements began in Massachusetts law with Chapter 161 of the Acts of 1851: An act for the better preservation of municipal and other records. That and later laws required records “open for public inspection.” Public records laws were bound into the General Statutes of 1860 and reached their current organization in the General Laws as published in 1921.

In Chapter 4, Section 7(26) defining “public records” had no exclusions in 1921. Today’s curtain of secrecy is a web of devices largely unknown during the previous seven decades and mostly invented over the following five decades. Few of those have ever received open discussion and withstood scrutiny. In 1921, the sign of a black hand emerged in Section 18 of Chapter 66, “This chapter shall not apply to the records of the general court….” also excluding state assistance and pension information from “public records.”

The arrogance of the Massachusetts legislature in 1920, excluding its own records from public inspection, later extended to ethical and financial disclosures and to open meeting laws, when those began to be developed in the 1950s. It may take an initiative enacted by voters to extract the black hand from the General Court, long a corrupt body unwilling to inform the public because of being unable to reform itself.

– Craig Bolon, Brookline, MA, July 23, 2015


Dan Crowley, Massachusetts public records reform bill nears vote amid intense lobbying, Hampshire (MA) Gazette, July 22, 2015

An act to improve public records, House bill no. 3665 of the 189th Massachusetts General Court, 2015

Todd Wallack, Lobbying picks up on proposed public records law, Boston Globe, July 20, 2015

Allison Manning, Here’s how bad public records laws are in Massachusetts, Boston Globe, May 14, 2015

Editorial Board, With Mass. public records law in tatters, it’s time for reform, Boston Globe, March 13, 2015

Todd Wallack, Secretary of State regularly keeps government records secret, Boston Globe, September 13, 2014

An act for the better preservation of municipal and other records, Chapter 161 of the Acts of 1851

General Laws of Massachusetts, Vol. 1, 1921 (96 MB)

Craig Bolon, Override Study Committee: Open Meeting Law problems, Brookline Beacon, August 7, 2014

Board of Selectmen: two boards, changing colors

A regular meeting of the Board of Selectmen on Tuesday, July 14, started at 6:45 pm in the sixth-floor meeting room at Town Hall. The board has gone into semi-hibernation for the summer. However, the extra rest and vacations did not seem to help with what is striking some as crabby behavior, at least when dealing in public affairs. Like a chameleon, the board can seem to change colors when dealing with licenses, at least as seen by the general public, if not always as seen by the license applicants.

Discord: Nine Advisory Committee members gathered to witness a protest: vice chair Carla Benka, Janice S. Kahn, chair of the Public Safety subcommittee, Stanley Spiegel, chair of the Planning and Regulation subcommittee, Leonard Weiss, chair of the Administration and Finance subcommittee, Clifford M. Brown, Janet Gelbart, Fred Levitan, Neil R. Gordon and Steve Kanes.

Mr. Weiss spoke about lack of communication shortly before the annual town meeting this May. Not more than a day or two earlier, Andrew Pappastergion, the public works commissioner, had concluded negotiations starting in April for a new recycling collection and processing contract. He had settled a price about $200,000 per year above the budget the Advisory Committee published, which it was about to propose at the town meeting.

Since 1910, the Advisory Committee and its predecessor, the Warrant Committee, appointed by the moderator of town meeting, have served as Brookline’s finance committee. Under Section 16 of Chapter 39 of Massachusetts General Laws, the committee proposes budgets to annual town meetings. In between, it regulates use of the reserve fund. In Brookline, the same committee and its subcommittees also review, hold hearings on and make recommendations about all warrant articles for all town meetings.

Although Mel Kleckner, the town administrator, knew that the budget would go out of balance, he withheld information from the Advisory Committee and might have withheld it from the Board of Selectmen. As a result, the town meeting passed a budget with a major, structural deficit that likely could have been prevented. Mr. Kleckner admitted as much in a later exchange with Sean Lynn-Jones, chair of the Advisory Committee.

According to Mr. Weiss of the committee, that was a breach of trust. The committee, he said, “places great reliance on management representations…Some folks thought withholding information was a good idea…This experience has severely damaged my trust and respect in management.” Fallout included a hotly controversial reserve fund transfer, narrowly approved July 7, when another reserve fund request was denied.

Two members of the Board of Selectmen rushed to defend Mr. Kleckner, and none questioned him, even though all five current board members are Advisory graduates. Nancy Daly, the only board member not serving a first term in office, claimed, “This was not an attempt to hide information…A suggestion that we were trying to sweep something under the rug…was quite offensive.” She did not explain what that referred to.

Neil Wishinsky, chair of the board, made a long statement, concluding, “We try to act in good faith…use our best judgment…There was no bad faith.” In the message exchange, committee chair Lynn-Jones had asked Mr. Kleckner, “…did you consider letting the Advisory Committee know [in April]…budget recommendations might have to be revised?” Mr. Kleckner had responded, “Not at that time….”

Public affairs: Deborah Rivers of the Brookline GreenSpace Alliance described to the board proposed changes in the town’s “climate action plan.” However, from her descriptions alone, it was not clear what differed from the previous plan of December, 2012. An interactive form of the 2012 plan has vanished from the municipal Web site, but the conventional document for that plan remains available.

Comparing proposed actions in Appendix F from the 2012 plan with a new Appendix A of proposed changes showed a reduction in actions being considered. Gone, for example, was a 2012 proposal to “develop a program for replacement of…refrigerators, dishwashers, clothes washers” and a dozen other types of equipment. There are still no comparisons of costs with benefits, and there are no estimates for amounts of efforts involved.

Linda Hamlin and Steve Heikin from the Planning Board and Roger Blood from the Housing Advisory Board asked for authorization to file an application for a $15,000 state grant. Grant applications are routinely filed by town staff without authorization, and approval is sought only to accept grants. It was not clear why any such authorization was needed and why those members of other town boards had become involved.

Their presentation was mostly a replay from a recent meeting of the Housing Advisory Board. Without any explanation, however, the ante had gone up. Instead of less than $35,000–an amount intended to avoid public bidding requirements under state law–Ms. Hamlin, Mr. Heikin and Mr. Blood were now talking about a total of $50,000 or more–not saying why more money was needed or where a missing $35,000 or more might come from.

Although they used oblique language, the main strategy from Ms. Hamlin, Mr. Heikin and Mr. Blood was clearly to target Brookline neighborhoods for major development and to invite Chapter 40B developers whom they might prefer into Brookline to take over properties. Mr. Wishinsky, the board’s chair, seemed to catch on partly, saying such an approach would be “difficult”–involving “identifying specific sites” and “public processs.” However, he seemed to think the strategy involved zoning, when the intent of Chapter 40B is to override zoning, along with all other local permits.

Other board members were circumspect. Nancy Daly spoke about “a huge need in town for affordable senior housing.” Alison Steinfeld, the planning director, claimed Brookline could not focus on senior housing, apparently unaware such plans are authorized under federal law and had been recently announced for development at the Kehillath Israel site on Harvard St. With board member Bernard Greene not participating, the other four voted to approve filing a grant application.

Personnel, contracts and finances: Melissa Goff, the deputy town administrator, got approval to accept a $0.24 million state energy resources grant, intended to offset costs of energy-efficient lighting. Brookline is in the second year of street lighting improvements. In response to a question, Peter Ditto, the engineering director, said changes to street lighting are about 40 percent complete. The new grant, however, is to be used for other public facilities: the high school, the Tappan St. gym, the swimming pool and several parks.

Mr. Ditto got approval to accept $0.144 million in state funds for repairing winter storm damage to streets. He said all the work had been completed by June 30. At his request, the board also approved a $0.024 million contract with Superior Sealcoating of Andover for summer street maintenance.

Lisa Paradis, the recreation director, sought hiring approval for two lead teacher positions at the Soule Recreation Center. As board member Nancy Daly observed, there has been high turnover among the seven teaching jobs at the center. From participants, there have been some notes of morale issues. Responding to a question from board member Nancy Heller, Ms. Paradis said the average length of employment was 3 to 4 years. The board approved, with Mr. Wishinsky asking Ms. Paradis to “seek a diverse pool of candidates.”

Licenses and permits: After the board turned its attention to license applications, Mel Kleckner, the town administrator, left the hall. First up was Richard Nasr of Westwood, who operates the Ontrack Cafe there, seeking a food vendor license at 1633 Beacon St, to be called Square Deli. Such a license for prepared foods does not include restaurant seating or service.

Ms. Daly questioned the application for 2 am closing, calling that “pretty strange” for a sandwich and salad shop. However, as the application noted, the previous business at the site, a 7/11 market, had operated with 2 am closing hours. The board approved the new license with 2 am closing hours.

Adam Barnosky, a member of the law firm headed by Robert L. “Bobby” Allen, Jr., represented Peet’s, seeking approval for three outside tables and service for nine seats at 1154 Boylston St., formerly Starbuck’s. The board has become quite liberal about outside seating, even allowing it on some sidewalks. At this site, outdoor seating was planned on private space in a narrow strip adjacent to a sidewalk. The board approved, subject to another review of seating area dimensions by the Building Department.

A prime candidate for board attention this evening was a proposal for Waxy’s, a regional chain of restaurants with an Irish theme, to open at 1032 Beacon St. That had most recently been the site of a sometimes troubled Mission Cantina. Waxy’s submitted an ambitious proposal, asking for 122 indoor seats, 48 outdoor seats, up to 60 employees, full liquor service including a bar, 2 am closing hours all 7 days a week and recorded entertainment. It would become one of Brookline’s largest restaurants.

The chain was represented by Frank Spillane, a Foxborough lawyer. There turned out to be disconnects. The people named as managers on papers distributed for the license hearing were not actually expected to be the managers once the restaurant was open. The chain was still looking for someone. A main spokesperson at the hearing was a manager recently hired at another location who mumbled his name, although clearly it was not one of those names appearing on the license papers.

Members of the board had read a Brookline Police Department report calling attention to multiple problems at one of the chain’s current locations, in Foxborough. There had been a sale to a minor, drunken behavior by patrons and repeated license suspensions–at least one while that location was managed by one of the people named on license papers as a Brookline manager.

Lt. Hayes of the Brookline Police Department, who had investigated, recommended 1 am closing hours, security cameras and other license restrictions. Board members Nancy Daly and Ben Franco stated they would vote against the application as it stood. With Bernard Greene not participating, the application could not get a majority vote of approval. Mr. Wishinsky, the chair, called for public comment.

Steve Kanes of Carlton St., an Advisory Committee member, described widespread neighborhood concerns. They included noise, litter and smoking. A license, he said, should not allow outdoor entertainment. He mentioned late-night noise after closing, around the outdoor trash receptacle, asking for restrictions.

Joel Feingold of Beacon St., a next-door neighbor, said the former Mission Cantina had caused much more trouble for nearby residents than other business at the site: “a rude awakening” and “a difficult neighbor.” They ran until 2 am outdoors, he said, although licensed only until 11 pm. Outdoor litter and late-night noise had been chronic problems. He asked for no deliveries before 8 am if a license were granted.

James Franco of Amory St., a Precinct 1 town meeting member, asked for no outdoor service after 10 pm if a license were granted, intending that use of outdoor seating should end before 11 pm. Neil Gordon of Ivy St., also a Precinct 1 town meeting member, had similar concerns. Other neighbors recounted past problems and joined in asking for restrictions on any new license. The board was going nowhere with this application. Mr. Wishinsky announced the hearing would be continued to a future date.

Chickens: Brookline is not always so difficult for applicants. Illustrating the point, two evenings later the Zoning Board of Appeals considered an application at a location not far away, on Amory Street, asking for a permit to install a small chicken coop. There may not have been a similar application north of Route 9 during at least the past half century.

The applicants were the Gurock family, who opened the popular Magic Beans children’s store on Harvard St. in 2003, at the former site of Imaginarium. They now have five other locations in Massachusetts and Connecticut. The parents are seeking educational experiences for their children, said Sheri Gurock, describing measures the family plans to prevent odors and neighborhood disturbances (no roosters). Neighbors sent in letters of support, and there was no opposition. The board approved.

Located in the Cottage Farm historic district, the proposal also needed Preservation approval, which it had previously received. The district name was an 1850s invention of Amos Adams Lawrence (1814-1886), sponsor of the unusual development. It did not reflect any known historic farm that might also have raised chickens.

– Beacon staff, Brookline, MA, July 18, 2015


Memorandum from Melvin A. Kleckner, Town Administrator, to Sean Lynn-Jones, Chair, Advisory Committee, Town of Brookline, MA, July 13, 2015

Climate action plan, Town of Brookline, MA, December, 2012

Revisions to climate action plan, Town of Brookline, MA, July, 2015

Planning assistance toward housing (PATH), Massachusetts Department of Housing and Community Development, 2015

Kehillath Israel: renovation and Chapter 40B development, Brookline Beacon, July 9, 2015

Craig Bolon, Advisory Committee: reach for the reset button, Brookline Beacon, July 8, 2015

Housing Advisory Board: “smart growth,” $35,000 consultant, Brookline Beacon, June 25, 2015

Public Works: question time and complaints, Brookline Beacon, May 15, 2014

Brookline finances: big promises, little performance

Often flush with self-promotion about its civic virtues, Brookline’s modern government remains about as laggard in civic performance, measured against other communities, as nineteenth-century predecessors. A recent example of claims versus realities comes from a meager source of online fiscal data found on the recently revised municipal Web site.

Tools for data: With conversion of its municipal site in early summer, 2014, to hosting by CivicPlus of Manhattan, KS, Brookline also provided an online component of Munis management software, from Tyler Technologies of Plano, TX.

A blurb on the Brookline site about “Open Checkbook” claims that the underlying software, Tyler Citizen Transparency, “…provides financial transparency to the public with easy access to the Town of Brookline’s expenditure information….” It you find both Brookline’s claims and its data pass a smell test, you might also regard unfiltered muck from the Charles River basin as “transparent.”

PIRG ratings: A little over two years ago, Governing States and Localities, a trade journal published in Washington, DC, called attention to a trend of junk data. Data editor Mike Maciag described a survey of online data portals performed by U.S. PIRG, the Public Interest Research Group founded by Ralph Nader. Governing Magazine reproduced the PIRG service rankings and grades for 30 large U.S. cities. The closest and most relevant to Brookline was Boston.

PIRG awarded grades of A to New York City and Chicago for transparency. In contrast, Boston got a grade of D- from PIRG and placed seventh from the bottom in ratings. Boston provides a wrapper, “Checkbook Explorer,” linking to data retrieval similar to what Brookline offers. Lacking the wrapper, Brookline’s service rating would probably be worse; its portal is harder to use.

In terms of software technology, Brookline’s data access suggests a dinosaur. PIRG classifies similar levels of service, in general, as “Transparency 1.0–Incomplete.” It offers the following description of such unhelpful municipal data portals that its staff surveyed:

“Residents have access to only limited information about public expenditures. Information about contracts, subsidies or tax expenditures is not disclosed online and often not collected at all. Determined residents who visit numerous agency Web sites or make public record requests may be able to gather information on government expenditures.”

Vendors: One of the ways in which mostly unhelpful financial data retrieval can sometimes be useful is searching by “vendor.” In the arcane language of municipal finance, that word does not have an ordinary meaning. Instead it means, “Who got paid?” One of the better paid people at Town Hall is the town administrator, Mel Kleckner. Searching fiscal 2015 by vendor for “kleckner” gets a span of items, including:

MELISSA LO…$1,695
MELVIN A KLECKNER…$1,427
MERCHANT CONSULTING GROUP LLC…$1,849

Expanding the MELVIN A KLECKNER item displays a table with three payments:

Payment Date…Account…Category
…Department…Fund…Vendor Payments

10/15/2014…EDUCATION/TRAINING/CONFERENCES…Other Expenses
…SELECTMEN…GENERAL FUND…$828

05/13/2015…SELECTMEN’S CONTINGENCY……Other Expenses
…UNCLASSIFIED…GENERAL FUND…$489

06/10/2015…SELECTMEN’S CONTINGENCY……Other Expenses
…UNCLASSIFIED…GENERAL FUND…$110

There is no more information underneath any data. In particular, one cannot find out what the “education, training or conferences” were about or when and where that took place. There is no explanation about what “other expenses” might actually have paid for.

The huge gap in junk data here is total omission of all major payments to MELVIN A KLECKNER. Brookline’s FY2015 municipal budget shows, on page IV-4, a budget for account 510101, “Permanent Full Time Salaries,” that includes an item for “Town Administrator…$179,099″ in the fiscal year just ended June 30. The town’s confusing budget omits most employee benefits from such displays.

Mr. Kleckner was also supposed to have an employment contract. If he did, it was not shown anywhere in the online municipal finance information. This information has a separate Payroll page, but that did not help either. As of July 11, it showed payments to KLECKNER, MELVIN A of only $3,500 during fiscal 2015, which ended June 30.

Big bucks: In Brookline’s financial picture, the big bucks are often going to contractors on town projects. A long-running one, just about to end, has been renovation of Warren Field. A major contractor has been New England Landscape and Masonry (NELM) of Massachusetts. This company did not turn up when searching by vendors under either “nelm” or “new england.”

A common issue with junk data is use of variant and cute names, known to local staff perhaps but not known to the public. NELM has its business office in Carver, MA, but the Brookline municipal Web site does not provide any way to search by a vendor other by name. There is also no way to search among the contractors that have been working on some specific project.

An obscure feature of the Vendors search page is the ability to sort vendors by total recorded payments. Click on the Vendor Payments heading at the top of the tabular display. Let the display settle, and click again. Vendors will be sorted in declining order of total payments. As of July 11, 2015, there were eight so-called “vendors” with total fiscal 2015 payments shown at more than $1 million, as follows:

BROOKLINE RETIREMENT SYSTEM…$21,740,098
COMMONWEALTH OF MASSACHUSETTS…$12,616,236
US BANK…$9,389,800
TRANSCANADA POWER MARKETING LTD…$1,339,493
D’ALLESSANDRO CORP…$1,337,420
EVERSOURCE…$1,186,978
YCN TRANSPORTATION, INC…$1,076,504
WASTE MANAGEMENT OF MASSACHUSETTS INC…$1,049,912

Some of the so-called “vendors” such as U.S. Bank don’t even match the convention of “Who got paid?” The bank likely got cash deposits and not what most people would call “payments.” The biggest conventional vendors selling ordinary services to Brookline were D’Allessandro of Avon, the main contractor for snow clearance last winter, and two electricity suppliers, Eversource and TransCanada.

There are likely to have been service contracts with these large vendors. No contract information of any kind could be found on the fiscal data pages of Brookline’s municipal Web site.

– Craig Bolon, Brookline, MA, July 11, 2015


Benjamin Davis, Phineas Baxandall and Ryan Pierannunzi, Transparency in municipal spending, U.S. Public Interest Research Group (U.S. PIRG), 2013 (2 MB)

Mike Maciag, Report grades cities’ spending transparency Web sites, Governing States and Localities (Washington, DC), January 25, 2013

Departmental budgets, FY2015 Financial Plan, Town of Brookline, MA, February, 2014 (5 MB)

Board of Selectmen: Village Street Fair, trash metering, Brookline Beacon, June 12, 2015

Craig Bolon, Public Works: snow removal, Brookline Beacon, March 9, 2015

Kehillath Israel: renovation and Chapter 40B development

On Wednesday evening, July 8, representatives of the Kehillath Israel congregation announced at a public meeting held at the site that they were starting real estate development, in two parts. Part 1 renovates the synagogue building, dedicated in 1925, and adds about 10,000 square feet of support space on the north side. Part 2 builds an undisclosed amount of partly subsidized new housing, replacing the community center opened in 1948 and using Chapter 40B of the General Laws to override Brookline zoning.

Rabbi William Hamilton opened the meeting, saying the congregation was planning for a next century. The membership has shrunk from a peak of around 1,200 families in the 1950s to around 400 now. He introduced Joseph Geller, a landscape architect and developer, member of the congregation, Precinct 9 town meeting member and former member of the Board of Selectmen, who led most of the discussions.

Mr. Geller introduced Robert L. “Bobby” Allen, Jr., a local real estate lawyer, Precinct 16 town meeting member and former member of the Board of Selectmen with whom Mr. Geller served. Mr. Allen is representing the congregation’s legal interests in development plans. Asked about potential disruptions from pursuing development while nearby Devotion School is being rebuilt, Mr. Allen merely said it could be “a problem.”

According to Alison Steinfeld, Brookline’s director of community planning and development, about a year ago Mr. Allen met with members of the department for an initial discussion. Ms. Steinfeld said she did not know the amounts of housing Kehillath Israel might have in mind. Such a discussion, as well as such a meeting as happened July 8, are among steps in Brookline’s design review process for any development on Harvard St.

Location, location: Stories about a potential large housing development have circulated around nearby neighborhoods for many months, with a wide range of speculation about locations, amounts, sizes and heights. The presentation on July 8 settled only location: space now occupied by the community center, which representatives of the congregation called the “Epstein building.”

The current community center’s building outline is about 120 by 65 feet, plus a depth of about 30 feet for front entry and steps. If there were to be no further incursions past those perimeters, that could provide a gross area near 10,000 square feet per floor. A modern 4-story building, similar in overall height to the community center, might house around 40 medium-size apartments.

North Brookline neighborhoods have had two previous experiences with 40B developments. A private developer near the synagogue substantially scaled back initial plans and built a double wood-frame quadruplex at 107A through 113B Centre St. in the late 1990s, replacing a large house. Occupancy of these condominium units has proven fairly transient, with turnovers every several years.

After about seven years of disputes and negotiations, the development arm of the Roman Catholic Archdiocese of Boston scaled back initial plans for the former St. Aidan’s Church by about 60 percent and put up mostly modern, fireproof new construction around 2008. However, adaptive reuse, unprecedented for the Archdiocese, placed several apartments inside the historic church structure and preserved the large courtyard at the corner of Pleasant and Freeman Sts. and its huge copper beech tree.

Senior housing: Mr. Geller said Kehillath Israel was planning “senior housing”–favorable for a community in which escalating costs of public schools have been driving up budgets, leading to tax overrides passed this year and in 2008. While age-restricted housing is clearly a form of discrimination, under some conditions it is allowed by laws and regulations.

Massachusetts has had antidiscrimination housing laws for many years. They were partly subsumed by the federal Fair Housing Act, Title 8 of the Civil Rights Act of 1968 (PL 90-284). The original version of the law prohibited discrimination based on race, color, religion, sex or national origin in the sale and rental of dwellings. Other protected categories have been added.

Section 4 of Massachusetts General Laws Chapter 151B, “Unlawful Discrimination,” prohibits discrimination because of race, color, religious creed, national origin, sex, age, ancestry, veteran status, sexual orientation, marital status, children, handicap and receipt of public assistance or housing subsidy in the selling, renting or leasing of housing accommodations, commercial space or land intended for those uses. Fines are up to $50,000 per violation. Massachusetts regulations in 804 CMR 02 implement the law.

One of the few general exceptions in housing discrimination laws has allowed, after 1988, qualified “senior housing” developments, as modified under the federal Housing for Older Persons Act of 1995 (PL 104–76). Such a qualification requires 80 percent of dwellings to be occupied by at least one person who is 55 years of age or older. The federal qualification can be lost if that operating status is not maintained.

The Kehillath Israel congregation would almost surely be able to qualify a development as “senior housing.” Asked how the congregation might guarantee that “senior housing” will continue to qualify and operate that way, Mr. Geller said he expected there would be a continuing agreement with the Town of Brookline. By contrast, the management at Hancock Village in south Brookline has been moving away from “senior housing,” actively marketing to mostly foreign families with children. They are not planning “senior housing” as a part of their current Chapter 40B housing project in Brookline.

When a religious organization sponsors housing, some assume members and affiliates of the organization will become occupants or may be favored. Occupants of new housing at the Kehillath Israel site need not be Jewish or otherwise share some background that might tend to exclude people protected against discrimination. During controversy over redevelopment of the former St. Aidan’s Church, at least some former parishioners seemed convinced they would be favored to occupy new apartments there. Since that did not agree with housing laws and regulations, it did not happen.

– Beacon staff, Brookline, MA, July 9, 2015


Fair housing regulation, Massachusetts Office of Consumer Affairs and Business Regulation, 2015

Town elections: tax override for schools passes, Brookline Beacon, May 5, 2015

Craig Bolon, Hancock Village: development pressures, Brookline Beacon, February 22, 2015

Advisory Committee: reach for the reset button

Meeting on Tuesday, July 7, at Town Hall, starting at 6:15 pm, the Advisory Committee and its subcommittee on planning and regulation rejected a reserve fund transfer request from the Board of Selectmen and from Mel Kleckner, the town administrator, voting by 2 to 1 margins and more. Such outright rejections have been rare. This one seemed to surprise Joslin Murphy, the town counsel, and Melissa Goff, the deputy town administrator, who were on hand to make the case for the reserve fund transfer.

The request was for legal support related to potential taking of Hancock Village buffers in south Brookline as recreation land, proposed for study by a resolution from the annual town meeting this May under Article 18. The Board of Selectmen had been widely expected to set up an independent “blue ribbon panel” to consider the issue, since they are entangled in two lawsuits involving a Chapter 40B project at Hancock Village, overriding Brookline zoning, which they strongly oppose.

To nearly everyone’s surprise, Mr. Kleckner and members of the Brookline Board of Selectmen recently seemed to ignore conflicts in those matters, angling toward involvement in the recreation land issues, including their recent request for a transfer from the reserve fund. In effect as well as in words from some of its members, the Advisory Committee called on the Board of Selectmen to reach for the reset button and recast a potentially troubled approach.

Conflicts and bad faith: A land taking under powers of eminent domain can be held valid in Massachusetts when the land is part of a proposed Chapter 40B housing development. However, Brookline would need to be able to show that such a taking was in “good faith”–that is, mainly for a claimed and legitimate public purpose and not mainly to restrict a Chapter 40B development.

Such a case began about 44 years ago in Chelmsford. Its town meeting voted to take a parcel of land for conservation that was also the site of a Chapter 40B project for partly subsidized housing. The Supreme Judicial Court reviewed the case in Chelmsford v. DiBiase [370 Mass. 90, 1976]. It found, in part:

“A taking of land by eminent domain by a town in good faith and for a public purpose was valid notwithstanding a pending application to the board of appeals for a comprehensive permit to build low and moderate income housing on the land pursuant to General Laws Chapter 40B, Sections 20-23….”

According to the opinion in Chelmsford v. DiBiase, there were no material disputes over whether the town had acted in good faith–that is, mainly to take land for conservation purposes and not mainly to restrict a Chapter 40B development. In a later case, Pheasant Ridge v. Burlington [399 Mass. 771, 1987], disputes over “good faith” arose and led to a different outcome.

The Burlington Board of Selectmen apparently concocted a hasty justification for taking land by eminent domain at the site of a proposed Chapter 40B development. Massachusetts courts were not convinced by claims that the public purpose was legitimate but also considered circumstances under which the justification for a taking had been asserted, The Supreme Judicial Court opinion held, in part:

“…a municipal land taking, proper on its face, may be invalid because undertaken in bad faith…the record in this case…required the inference that the town, acting through its town meeting, was concerned only with blocking the plaintiffs’ development….”

Recreation land: The Brookline proposal for recreation land stands in the balance. Two situations are almost never identical. A Chelmsford case showed that a taking for recreation could succeed, while a Burlington case showed that conflicts of purposes might undermine it. Just after the recent town meeting, the town administrator and members of the Board of Selectmen set out in a sensible direction, along lines of past precedents in Brookline, keeping some distance from a study of recreation land.

More recently, ignoring the request of town meeting to act “in good faith,” they swerved toward wrecking the potential for a significant project. Some observers are already tending toward an interpretation of the changes as sabotage. Maybe, they say, the town administrator and members of the Board of Selectmen mean to block the recreation land proposal by linking it with their lawsuits and making it impossible to defend.

Regina Frawley, a Precinct 16 town meeting member and the principal petitioner for Article 18, told the full Advisory Committee, “The goal hasn’t changed…active recreation space in perpetuity.” The petitioners, she said, had been “very mindful to separate the fact the town had two law cases involving the property…the issue of bad faith versus good faith.” At town meeting, she recalled, “selectmen abstained from Article 18 so they would not contaminate the case…They had the power to create a ‘blue ribbon panel.’ After town meeting, they chose not to do that.”

According to Lee Selwyn, a member of the Advisory subcommittee, “The issues now are mainly factual…a citizen panel to develop a factual record is what the proponents of Article 18 had in mind.” At the recent town meeting, he said, “a clear majority” supported the article about recreation land. “It wasn’t close…a factual record supporting its legitimate use…would help to overcome a ‘bad faith’ claim.”

Len Weiss, an Advisory Committee member, contended, “We should vote against the reserve fund transfer. There’s money to be spent in the budget right now [and] no need to transfer money from the reserve fund.” Committee member Fred Levitan said that “in my tenth year [on the committee], I don’t recall reserve fund transfers in advance,” only seven days into a fiscal year.

In the end, the Advisory Committee denied the request for a reserve fund transfer by a vote of 16 to 7, with Alisa Jonas of Precinct 16 abstaining. Ms. Jonas has been described as a participant in a lawsuit brought by a group of south Brookline residents and linked with one of the lawsuits brought by the Board of Selectmen, opposing the Chapter 40B project at Hancock Village.

– Craig Bolon, Brookline, MA, July 8, 2015


Chelmsford v. DiBiase, 370 Mass. 90, 1976

Pheasant Ridge v. Burlington, 399 Mass. 771, 1987

Warrant report with supplements, May 26, 2015, town meeting, Town of Brookline, MA

Article 18, Brookline, MA, 2015 Annual Town Meeting, acted on May 28, 2015

Craig Bolon, Board of Selectmen: poisoning the well, Brookline Beacon, July 2, 2015

Craig Bolon, Hancock Village: development pressures, Brookline Beacon, February 22, 2015

Board of Selectmen: poisoning the well

On Tuesday, June 30, as recommended by Mel Kleckner, the town administrator, the Board of Selectmen voted to ask the Advisory Committee for $15,000 from the reserve fund on July 7, “for expertise in the study of eminent domain,” to be expended by the Office of Town Counsel. The request was prompted by approval at the annual town meeting of a resolution under Article 18, calling for the following main activity:

“…Town Meeting asks the Board of Selectmen to study and consider in good faith the taking under the powers of eminent domain [of] the two buffer zones presently zoned S-7 within the Hancock Village property, abutting Russett and Beverly Roads, for a permanently publicly-accessible active recreational space….”

Entanglements: A key problem with this request has been that members of the Board of Selectmen are plaintiffs in two lawsuits involving the Hancock Village property. They are suing a state agency that authorized the owner to propose a project under Chapter 40B of the General Laws, overriding Brookline zoning and other permits. They are also suing the Brookline Zoning Board of Appeals, for approving the project and granting a comprehensive permit.

If that were not enough, Nancy Heller, a newly elected member of the board, submitted Article 17 to the 2015 annual town meeting and argued it. It’s entitled, “Resolution in support of changes to the affordable housing law, Massachusetts General Laws Chapter 40B.” She and other petitioners explained, “…[We] have worded the resolution in a broad manner. The purpose is to give our legislators as much latitude as they need to work with other legislators to amend 40B….”

Thus members of the Board of Selectmen are entangled in attacks against both a controversial 40B project at Hancock Village and the key Massachusetts law enabling the project. This leaves high risks for any involvement they might have in proposals arising from Article 18, under which Brookline would consider taking currently vacant parts of Hancock Village by eminent domain, to be used as recreation land.

One of the common challenges against eminent domain is acting in “bad faith”–that is, for covert purposes other than those claimed. With the Hancock Village situation, the property owner could be expected to claim that members of the Board of Selectmen considered eminent domain in “bad faith”—mainly to restrict an unwelcome Chapter 40B development rather than mainly to acquire recreation land.

Anticipation and defenses: After the recent town meeting, many participants and observers anticipated the Board of Selectmen would appoint a study committee for Article 18, as they often do for other issues, and would then keep their distance from it.

It would need to become an independent “blue ribbon panel,” with no further involvement by members of the Board of Selectmen. Putting the issues in the hands of an independent panel could provide defenses against acting in “bad faith,” should a recreation land effort proceed and should eminent domain be used to acquire Hancock Village land.

For quite a few years, several iterations of the Board of Selectmen have swung the other way. Coached by ambitious town administrators, they have politicized almost every new board, commission, committee and council by installing one of their members on it, often naming that member as chair. Article 18 presented a situation where such a domineering brand of machine politics cannot work. It could obviously encourage claims of “bad faith” and could well destroy a project to acquire recreation land.

Precedents: After idling on Article 18 for a month and making a false start, Mr. Kleckner, who seems to know very little about Brookline history, tried to claim a committee was unlikely because the town no longer has a redevelopment authority to call on. The former Brookline Redevelopment Authority was indeed active in takings during the Farm Project and Marsh Project, but the Town of Brookline did similar work, too. Disputes focused on policies and costs; mechanics were not thought to be much of a stretch.

Under Article 25, the 1974 annual town meeting authorized taking land off Amory St. by eminent domain for conservation. The relatively new Conservation Commission had proposed the Hall’s Pond project and presented all the key evaluations and arguments to boards, committees and town meeting. Not long afterward, the commission did similar work for the conservation area now known as Amory Woods.

Like the Hancock Village buffers, the Hall’s Pond parcel was seen as threatened by development, yet it was intact and had never been built on. North of Route 9, Brookline had no conservation land then, and very little suitable land remained. At 3-1/2 acres, the site to the east of Amory Playground was about half the size of the Hancock Village buffers combined.

The Conservation Commission obtained advice from local lawyers, contracted for a land survey, commissioned independent appraisals, and prepared and submitted the 1974 town meeting article. Commissioners persuaded only two members of the Board of Selectmen, but they got help from the Planning Board and a unanimous endorsement from the Advisory Committee. Town meeting gave strong support, and a counted vote was not needed.

Poisoning the well: On June 30, Mr. Kleckner led members of the Board of Selectmen in an odd direction–at high risk of poisoning the well, though coupling them into “bad faith” maneuvers. They did not hold matters at arms length by appointing an independent committee. Instead, they voted to submit a reserve fund request for funds to be spent by the town counsel, who reports to them.

They expect to entertain discussions of the issues among the board–potentially some closed to the public, at which they may also be considering “litigation,” as their agendas often call out. According to Mr. Kleckner, they expect to couple investigations pertinent to recreation areas with those pertinent to potential school sites and possibly other town projects.

By failing to maintain a bright line of separation between recreation land proposed at Hancock Village and other town business, including lawsuits against Hancock Village development, recent actions by Mr. Kleckner and members of the Board of Selectmen stand at grave risk of poisoning the well. Ignoring the request of the town meeting to act “in good faith,” they are proceeding headlong toward wrecking the potential for a significant project. At least some will say that is what they meant to do.

– Craig Bolon, Brookline, MA, July 2, 2015


Warrant report with supplements, May 26, 2015, town meeting, Town of Brookline, MA

Article 18, Brookline, MA, 2015 Annual Town Meeting, heard and acted on May 28, 2015

Board of Selectmen: back to the drawing board

A regular meeting of the Board of Selectmen on Tuesday, June 30, rambled into unfamiliar territory, hearing an appeal from a decision of the Brookline Transportation Board. Arguments and discussions about the case took nearly half of a 4-1/2 hour meeting.

Last May 21, the Transportation Board had approved building a giant peninsula near the corner where Clinton Rd. branches away from Buckminster Rd. west of the High School. It would bloom out the sidewalk from the northeast sides of Clinton and Buckminster Rds. at the junction, pushing edges of those streets up to 35 feet away from their current alignments.

Peninsula at intersection of Clinton and Buckminster Rds.

BuckminsterClintonProposal20150630
Source: Transportation Division of Brookline DPW

The advertised purpose was to slow cars going westbound on Buckminster Rd. and bending onto Clinton Rd. Past the intersection, Clinton Rd. goes downhill, and cars sometimes reach 40 mph or higher. With the peninsula in place, cars would have to slow at the intersection and then turn right. However, no “traffic calming” had been planned for Clinton Rd., so speeds could rise quickly once past the intersection.

Most of the giant peninsula would sit in front of a house at 79 Buckminster Rd., obliterating its streetscape. Owners Michael and Tania Gray are less than pleased. On May 31, they called on the Transportation Board to cancel or radically shrink plans for the peninsula. When that board failed to act, they circulated a petition appealing the case to the Board of Selectmen.

Arguments: Although provided for in Brookline’s state enabling law since 1974, appeals from Transportation Board decisions to the Board of Selectmen have been rare. Neil Wishinsky, chair of the latter board, remarked, “We don’t have traditions for how these things are done.” He had decided to hear from the Transportation chair, then the house owners who brought the appeal, then more than 30 residents who came.

Joshua Safer, the Transportation chair, scoffed at the appeal, saying “I’m a little surprised to be here.” Perhaps he shouldn’t have been. Lack of concern for neighborhood impacts from Transportation initiatives has been raising hackles in other parts of town, too–a pattern for at least a few years. Dr. Safer made himself seem tone deaf, saying the dispute was only about “loss of a parking space or two.”

Mr. Gray painted a different picture, contending that a supposed safety benefit would become a safety hazard in winter, “a place for plows to deposit snow.” Blocked lines of sight could turn a difficult intersection into a dangerous one. On-street parking spaces that are “currently the safest parking on the street” would be replaced by “dangerous parking spaces” along the border of the proposed peninsula.

The house at 79 Buckminster Rd. shares a driveway with its neighbor at 3 Clinton Rd., including a sharp turn and a steep slope at the back. According to Mr. Gray, “The problems are now compensated by parking in front.” Those arrangements would be disrupted by the proposed peninsula. Mr. Gray, whose family has lived in the house for over 20 years, commented, “We would not have purchased the home with the Transportation plan in place.”

Since the May 21 Transportation meeting, Mr. Gray had examined conditions and regulations said to justify the Transportation proposal. He said they did not stand scrutiny. Fewer than half the federal standard of 20 peak pedestrians per hour, justifying a new crosswalk, had been tallied. Crash records showed less than a tenth the frequency of five or more per year needed to identify a “dangerous intersection.”

Comments: Roberta Winitzer of Beacon St., a former Library trustee, described herself as an aunt of Mr. Gray and a frequent visitor at 79 Buckminster Rd., calling the Transportation proposal “overkill.” Judy Meyers, a Precinct 12 town meeting member and former School Committee member, said it was “not fair to approve a plan that has such an adverse impact on the Grays.”

In a preview of comments to come, Ms. Meyers claimed, “The Transportation Board has a strong bias in favor of [altering] streetscapes, as opposed to [using] signs and paint.” The board “should have a comprehensive plan,” she said. Their current plan would not stop Clinton Rd. from being used as “a speedway.”

Not all neighbors sounded convinced. Andrea Bleichmar of 3 Clinton Rd., whose house shares a driveway with 79 Buckminster Rd., said she had “listened to the engineers.” Conditions near the intersection were “an accident looking for a place to happen,” she claimed. George Tolis, who lives two houses away, agreed. Dr. Tolis, a heart surgeon, said he had rearranged his operating schedule to be present. “Maybe,” he asserted, Brookline “should make Clinton Rd. one-way uphill.”

Residents farther down the hill on Clinton Rd. proved less supportive. Most remarks suggested that a pause in speeds at the intersection with Buckminster Rd. would not prevent their part of Clinton Rd. from continuing to be used as “a speedway.” Even Todd Kirrane, Brookline’s transportation administrator, seemed to back those views. He estimated the average speed entering Clinton Rd. at the intersection would be reduced from 23 to 15 mph by the proposed peninsula, not much of a difference.

Beth Epstein of 111 Clinton Rd. protested faulty public notice. She described herself as a resident for 20 years, bringing up five children on the street, saying “I was kind of appalled.” A notice came on a Saturday for a hearing the next week, she said. It provided “no drawings or plans.” For occupants of the many “houses beyond this intersection,” [the proposal] “will not solve their problems.”

Review and decision: During their review, members the Board of Selectmen sounded sympathetic to concerns of the Grays. Nancy Heller said the proposed peninsula was “harmful to a family.” Nancy Daly said, “I don’t know of any place in town where we’ve stuck something like this in front of somebody’s home.” She was also “convinced that there needs to be traffic calming” downhill along Clinton Rd.

Ben Franco called for Public Works to “delay the Buckminster [repaving] project,” which had started a process leading to the peninsula proposal. Peter Ditto, the engineering director, said, “We’ll do Buckminster this year but not the intersection.” Ms. Daly turned adamant, saying, “I’m not approving a [roadwork] contract unless we know that the current proposal is not part of it.”

In the end, members of the Board of Selectmen voted to “remand” the peninsula proposal to the Transportation Board, with instructions to “examine another solution for the intersection.”

– Beacon staff, Brookline, MA, July 1, 2015


Craig Bolon, Transportation Board: tone deaf, Brookline Beacon, June 19, 2015

Craig Bolon, Transportation: good intents, cloudy results and taxi rules, Brookline Beacon, May 23. 2015

2015 annual town meeting: how town meeting members voted

The 2015 annual town meeting held eleven electronically recorded votes, the same as the annual town meeting last year, even though this year’s town meeting considered only about half as many articles. As happened last year, there were discrepancies between votes reported by the town clerk, three days after the town meeting ended, and votes declared by the moderator when they were taken. This year there were no “straw” votes–supposedly just to get a count–and the biggest discrepancy was a difference of two votes–not enough to change any result.

Frank Caro, a Precinct 10 town meeting member, stepped out as captain of recorded votes. He would leap to a microphone and ask for a recorded vote. Edward “Sandy” Gadsby, the moderator, would call on supporters to stand, and he would count to see if there were at least 35. There always were. Soon Dr. Caro needed only to approach a microphone and didn’t have to say why. Perhaps because it needed less than two minutes, town meeting members took to the process.

With the table of recorded votes, two indices have been calculated for each town meeting member. One is an index of voting, measuring participation: 100% for voting Yes, No or Present at every opportunity, 0% for being absent or not voting at every opportunity. The other is an index of concurrence, measuring agreement with the town meeting results: 100% when voting Yes or No the same way as every result at town meeting, -100% when voting the opposite way as every result. Votes of Present (or Abstain), records of being absent and records of not voting were counted as neutral for an index of concurrence.

There were, in total, 266 records with no vote being cast by town meeting members who had checked in with tellers and taken out their assigned keypad transmitters. That was far more than the 75 vote records of Present (or Abstain). An average of 32 out of 248 town meeting members were absent at the two sessions–that is, they did not check in and take out their assigned keypad transmitters. There are no records of whether town meeting members stayed at the town meeting sessions after checking in.

The voting records designated as Precinct AL (at large) are those for the moderator, the town clerk, members of the Board of Selectmen and the single state representative who lives in Brookline. High indices of both voting and concurrence were recorded for Benjamin Franco and Nancy Heller, members of the Board of Selectmen, at 100% voting and 82% concurrence. Three town meeting members were recorded with both 100% voting and 100% concurrence: Virginia LaPlante of Precinct 6, Craig Bolon of Precinct 8 and Lee Cooke-Childs of Precinct 12.

– Craig Bolon, Brookline, MA, June 28, 2015


2015 annual town meeting: budgets, bylaws and resolutions, Brookline Beacon, May 30, 2015


Brookline 2015 annual town meeting, electronic votes as of May 31, 2015
Source: Town Clerk’s on-line records

No. Day Article Result Question voted
1 5/26 10 N Changes to Living Wage bylaw, motion to terminate debate
2 5/26 10 Y Changes to Living Wage bylaw, opposing changes to seasonal and temporary
3 5/26 10 Y Changes to Living Wage bylaw, main motion as amended
4 5/28 13 N New bylaw requiring tap water in restaurants, motion to refer
5 5/28 13 Y New bylaw requiring tap water in restaurants, main motion
6 5/28 14 N New bylaw for bottled water ban, motion to terminate debate
7 5/28 14 N New bylaw for bottled water ban, motion to refer
8 5/28 12 N Changes to snow shoveling bylaw, limit discretionary delay in enforcement
9 5/28 12 Y Changes to snow shoveling bylaw, fine on first violation rather than warning
10 5/28 18 N Resolution for study of eminent domain, motion to terminate debate
11 5/28 19 Y Resolution opposing Boston Olympics in 2024, main motion

Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
1 Cathleen Cavell N Y Y N Y N N Q Q Q Q 64% 64%
1 Jonathan Cutler N Y Y N N N Y Y Y Y Y 100% 27%
1 Elijah Ercolino N Q Y Y Q Y Y Y Y Q Q 64% -9%
1 James Franco Y N N Q Y Y N N Y Y N 91% -18%
1 Richard Garver Y Y N N N N Y P Y Y N 100% -18%
1 Neil Gordon N Y Y N Y Y N Y Y Y Y 100% 45%
1 Helen Herman N Y Y A A A A A A A A 27% 27%
1 Carol Hillman N Y N A A A A A A A A 27% 9%
1 Sean Lynn-Jones N Y Y N Y N N N Y N P 100% 91%
1 Alexandra Metral Y Y Q Y Y N N Y Y N N 91% 18%
1 Paul Moghtader Y N Y N Y Y N Y Y Y Q 91% 0%
1 Bettina Neuefeind Q Q Q N Y N N Y Y Q Q 55% 36%
1 Robert Schram Y Y Y N Y Y N N Y Y Y 100% 45%
1 Kate Silbaugh N Y N N Y N N Y Y Q Q 82% 45%
1 Robert Sloane Y Y Y N Y N N Y Y Y N 100% 27%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
2 Judith Kidd Y Y N N Y Y N N Y P Q 91% 27%
2 Lisa Liss Y Y Q N Y Y N Y N Y Q 82% -9%
2 Rita McNally A A A A A A A A A A A 0% 0%
2 Adam Mitchell Y Y Y N N Y N Y Y Y N 100% -9%
2 Barbara O’Brien Y Y N Y N Y Y Y Y N N 100% -45%
2 Gwen Ossenfort Y Y Y N Y Y N Y Y Y N 100% 9%
2 Linda Pehlke A A A A A A A A A A A 0% 0%
2 Susan Roberts Y N Y Y Y Q Y N N Q N 82% -27%
2 Livia Schachter-Kahl Q Y Y Y Y Y Y Y Y Y Q 82% -9%
2 Diana Spiegel N Y Y Y N Y Y N N N Q 91% 0%
2 Stanley Spiegel A A A A A A A A A A A 0% 0%
2 Eunice White A A A A A A A A A A A 0% 0%
2 Bruce Wolff A A A Q Q Q Q Q Q Q Q 0% 0%
2 Ana Vera Wynne Y Y Y Y Y Q Y Y Y Y Y 91% 0%
2 Richard Wynne Y N Y A A A A A A A A 27% -9%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
3 David Aronson Y N Y Y N Y Y N N Y N 100% -64%
3 Harry Bohrs N Y Y N Y Q Q N Q P P 73% 55%
3 Patricia Connors Q Y Y Q Y N N Y Y N Q 73% 55%
3 Mary Dewart Y Y Y N Y Y N Y Y N Y 100% 45%
3 Murray Dewart Y Y Y N Y Y N Y Y N P 100% 36%
3 Dennis Doughty N N Q Y N N Y N Y N N 91% 0%
3 Jane Gilman Y Y Y N Y N N Y Y N Y 100% 64%
3 Heather Hamilton Y Y Y Y Y Y Y Y Y P Y 100% 0%
3 Gary Jones Y Y Y Q Q Y Y N N Y Y 82% -9%
3 Laurence Koff Y N Y A A A A A A A A 27% -9%
3 Donald Leka Y Y Y N Y N N Y Y N Y 100% 64%
3 Kathleen Scanlon N Y Y Q Q N N Y Y N Y 82% 64%
3 Frank Steinfield N Y Y Y N Y N N Y N N 100% 27%
3 Rebecca Stone N N Y Y Y Y N Y Y P Y 100% 18%
3 Jean Stringham Y Y Y N Y Y N N N N Y 100% 45%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
4 Sarah Axelrod N Y Y Y Y N N N Y P N 100% 55%
4 Eric Berke N Y Y Y N Y Y Y Y Y N 100% -27%
4 Sarah Boehs N Y N N Y N N N Y Y Y 100% 64%
4 Alan Christ N Y N N Y Y N N Y P N 100% 36%
4 Ingrid Cooper N Y Y N Y N Y Y Y N N 100% 45%
4 Anne Covert N Y Y Y Y N N N N N Y 100% 64%
4 Frank Farlow N Y Y N Y N N Q Y N Y 91% 91%
4 Martha Farlow N Y Y N Y Y N Y Y N Y 100% 64%
4 Nadine Gerdts A A A N Y N N Q Y Y Q 55% 36%
4 John Mulhane Y Y Y Y N N Y N Y Y N 100% -9%
4 Mariah Nobrega N Y Y Y Y N Y N Y N Y 100% 64%
4 Joseph Robinson Y Q Q Y Y Y Q Y N Q Q 55% -36%
4 Marjorie Siegel Y Y Y Q Q Q Q Y Y N Y 64% 27%
4 Virginia Smith N Y Y A A A A A A A A 27% 27%
4 Robert Volk Y Y Y N Y Y Y N N Y N 100% -9%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
5 Richard Allen N N Y Y N Y Y N Y Y Q 91% -18%
5 Robert Daves N Y Y N N Y Y N Y Y N 100% 9%
5 Dennis DeWitt A A A A A A A A A A A 0% 0%
5 Betsy Gross Y Y Y Y N Y Y Y Y Y Y 100% -27%
5 Michael Gunnuscio Y Y Y Q Q Y N Y Y Y N 82% -9%
5 Angela Hyatt Y N Y Y N Y Y N Y Y Y 100% -27%
5 David Knight Q Q Q A A A A A A A A 0% 0%
5 Hugh Mattison Y Y Y N Y Y N N Y N Y 100% 64%
5 Puja Mehta Q Q Q N Y N Y Q Q Q Q 36% 18%
5 Randolph Meiklejohn N Y Y N Y Y N N Y Y Y 100% 64%
5 Phyllis O’Leary Q Q Q N Y Y N Y N Q Q 55% 0%
5 Andrew Olins Y N Y N Y Y N N N Y Q 91% 0%
5 William Reyelt N Y Y N Y N N Y Y Y N 100% 45%
5 Claire Stampfer Y Y Y A A A A A A A A 27% 9%
5 Lenore von Krusenstiern P Y N Y N Y Y N Y Y Y 100% -18%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
6 Catherine Anderson N Y Y Q Q N Y Y Y N N 82% 27%
6 John Bassett N N N N Y Y N N N Y Y 100% 9%
6 Jocina Becker N Y Y Q Y Y Y N Q Y Y 82% 27%
6 Christopher Dempsey N N Y N Y Y N Y Y Y Y 100% 27%
6 Brian Hochleutner Y N Y Y Y N N N Y N N 100% 27%
6 Sytske Humphrey Y Y Y N N Y Y N Y N Y 100% 27%
6 Virginia LaPlante N Y Y N Y N N N Y N Y 100% 100%
6 Merelice N Y N N Y N N Y Y N Y 100% 64%
6 Clinton Richmond Y Y Y N N N N Q Q Y Y 82% 27%
6 Ian Roffman N Y Y N Y N Y Y Y N P 100% 55%
6 Daniel Saltzman N Y Y Q Y N Y Y Y N N 91% 36%
6 Kim Smith N Y Q N Y N N Y Y N Y 91% 73%
6 Ruthann Sneider N Y N N Y N N Q Y N Y 91% 73%
6 Robert Sperber N N N A A A A A A A A 27% -9%
6 Thomas Vitolo N Y N N Y N N Y Y N Y 100% 64%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
7 Ellen Ball Y Y Y Q Q Y N Y Y Y N 82% -9%
7 Susan Cohen Y Y Y Y N Y Y N N N N 100% -27%
7 Keith Duclos Y Q Q N Y N Q Y Y N Y 73% 36%
7 Susan Ellis N Y Y N Y N N Y Y N Y 100% 82%
7 Ernest Frey N Y Y Y Y N Y N N N N 100% 27%
7 Phyllis Giller Y Y Y Q Q Y Y N N N N 82% -9%
7 Susan Granoff N Y Y Y Y Y Y N Y Y N 100% 9%
7 Mark Gray Y Y Y Y Y Y Y N Y N Y 100% 27%
7 Kelly Hardebeck Y N N Y Y Y Y Q Q Q Q 64% -45%
7 Jonathan Lewis Y Y Y A A A A A A A A 27% 9%
7 Jonathan Margolis A A A A A A A A A A A 0% 0%
7 Christopher Oates N Y Y Y N Y Y N Y N Y 100% 27%
7 Stacey Provost P P P P Q Y Y P P Y Y 91% -18%
7 Rita Shon-Baker Y Y Y Y N Y Y Y N Y Y 100% -45%
7 James Slayton Y Y Y N Y Y N N Y Y Q 91% 36%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
8 (vacancy) (vacancy) A A A A A A A A A A A 0% 0%
8 Lauren Bernard N Y Y Y P Y Y Y Y N Y 100% 18%
8 Craig Bolon N Y Y N Y N N N Y N Y 100% 100%
8 Abigail Cox N Y Y Y Y Q N Y Y P Y 91% 45%
8 Gina Crandell Q Q Q A A A A A A A A 0% 0%
8 Franklin Friedman Y N Y N Y Y N Y Y Y Q 91% 0%
8 David-Marc Goldstein P P Y Y N Y Y N N N Y 100% -9%
8 John Harris N Y Y Y Y Y Y P Y N Y 100% 36%
8 Anita Johnson N Q Y Y N Y Y P Y Y Y 91% -9%
8 Edward Loechler Y Y Y N Y N N N Y Y Y 100% 64%
8 Robert Miller Y Y Y N Y Y N Y Y P Q 91% 27%
8 Barbara Scotto N Y Y A A A A A A A A 27% 27%
8 Lisamarie Sears A A A Q Q N N N N Q Q 36% 18%
8 Sara Stock A A A A A A A A A A A 0% 0%
8 Maura Toomey Y Y Y N Y Y N Y Y Y Q 91% 18%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
9 Liza Brooks Y Q Q Y Y Y Y Y Y Y Q 73% -36%
9 Joseph Geller N N Y Q Q Y N N Q P Q 64% 18%
9 Paul Harris P Y N N Y Y N N Y P Y 100% 45%
9 Nathaniel Hinchey P Y Y N Y Y N N N Q Q 82% 36%
9 Barr Jozwicki A A A Y Y Y Y N N Y Y 73% -18%
9 Joyce Jozwicki Q Y Y Y Y Y Y Y Y Y Y 91% 0%
9 Pamela Katz Y Y Y N Y Y N Y Y Y Q 91% 18%
9 Julius Levine A A A A A A A A A A A 0% 0%
9 Stanley Rabinovitz A A A A A A A A A A A 0% 0%
9 Harriet Rosenstein Y Y Y N Y Y Y Y Q Q Q 73% 0%
9 Martin Rosenthal N Y Y N Y N N N N N Y 100% 82%
9 Charles Swartz N Y Y Y N N Y N N N N 100% 9%
9 Dwaign Tyndal A A A Q Q Y Q Q Q Q Q 9% -9%
9 Judith Vanderkay Y Y N N Y Y N N N Y Q 91% 0%
9 George White Y Y N Q Y Y Q Y Y Y Y 82% -9%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
10 Clifford Ananian N Y N N Y N N N Y Y N 100% 45%
10 Carol Caro N Y Y Y N N Y Y Y N Y 100% 27%
10 Francis Caro N Y N Y N N Y N Y N Y 100% 27%
10 Sumner Chertok A A A A A A A A A A A 0% 0%
10 Jonathan Davis N Y Y Y N Y Y N N Y Y 100% -9%
10 Linda Davis A A A Q Q Y Y N N Y Y 55% -18%
10 Holly Deak Y Y Y N Y Y N Y Y Y Q 91% 18%
10 Stephan Gaehde Y Y Y N Y N N Y Y Y Y 100% 45%
10 Daniel La Y Y Y N Y Y N Y Y Y Q 91% 18%
10 Paul Lipson Y P Y Y Y Y N Y Y Y N 100% -18%
10 Sharon Sandalow A A A A A A A A A A A 0% 0%
10 Theodore Scholnick Y N Y Y Y Y N N P Y N 100% -18%
10 Stanley Shuman Q Q Q N Q Q Y Q N N Y 45% 9%
10 Alexandra Spingarn Q Q Q Y N Y Y N Y Y Q 64% -27%
10 Naomi Sweitzer Y Y Q N Y N N Y Y Y Y 91% 36%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
11 Carrie Benedon Y Y Y N Q Y N Y Y Y N 91% 0%
11 Joseph Ditkoff N Y Y N Y N N Y Y N N 100% 64%
11 Shira Fischer Y Y Y Y Y N N N Y N Y 100% 64%
11 Shanna Giora-Gorfajn N Y Y Y Y N N N Y N Y 100% 82%
11 Jennifer Goldsmith N Y Y Y Y Y N Q Q Q Q 64% 27%
11 Martha Gray N Y Q N Y N N Y Y N Y 91% 73%
11 Bobbie Knable N N P Y Y N Y N Y N N 100% 18%
11 David Lescohier Y Y Y N Y Y N Y Y Y Y 100% 27%
11 Kenneth Lewis Y N N Y N Y Y Y Y Y Y 100% -64%
11 David Lowe N Y Y N Y N N Y Y N Y 100% 82%
11 Rebecca Mautner Q Y Y Q Y N N N Y Y Y 82% 64%
11 Maryellen Moran Q Q Q A A A A A A A A 0% 0%
11 Carol Oldham Y Y Y N Y N N N Y N Y 100% 82%
11 Brian Sheehan N Y Y Y N N Y Y Y N N 100% 9%
11 Karen Wenc N N N Y N Y Y Y N N Y 100% -45%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
12 Michael Burstein Y Y Y N Y Y N N Y Y Y 100% 45%
12 Bruce Cohen Y P N A A A A A A A A 27% -18%
12 Lee Cooke-Childs N Y Y N Y N N N Y N Y 100% 100%
12 Chad Ellis Y N N N N Y Y N N Y Y 100% -45%
12 Harry Friedman Y N N N N Y Y N N Y Y 100% -45%
12 Jonathan Grand Y Y Y Y N Y Y N N Y Y 100% -27%
12 Stefanie Greenfield Y N N N Y N N Q Q Q Q 64% 9%
12 Casey Hatchett Q Q Y Q Q N Y N N Q Q 45% 9%
12 Amy Hummel P N N N N Y Y N N P Y 100% -27%
12 Jonathan Karon Y Y Y N Y Y Y N Y Y Y 100% 27%
12 David Klafter N Y N Q Q N N Y Y N Y 82% 45%
12 Mark Lowenstein N Y Y N Y Y N N Y Y N 100% 45%
12 Judy Meyers N N N N Y Y N N N P Y 100% 18%
12 William Slotnick N N N N Y N N N Y Y Y 100% 45%
12 Donald Weitzman N Y Y N Y N N N N Y Y 100% 64%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
13 Joanna Baker N Y Y N Y N N Y Y N Y 100% 82%
13 Carla Benka Y N N N N Y Y N N N Y 100% -27%
13 Roger Blood A A A A A A A A A A A 0% 0%
13 Chris Chanyasulkit Y Y Y N Y N N N N N Y 100% 64%
13 John Doggett Y N Y N N Y Y N N Y N 100% -45%
13 Jonathan Fine Y N Y Y N Y Y N N P Y 100% -36%
13 Andrew Fischer N Y N N Y N N Y Y N Y 100% 64%
13 John Freeman Y N Q P Y Y Y N Y N Y 91% 9%
13 Francis Hoy A A A A A A A A A A A 0% 0%
13 Ruth Kaplan A A A A A A A A A A A 0% 0%
13 Werner Lohe Y Y Y N Y N N Y Y P Y 100% 55%
13 Paul Saner Y N N Q Q Q Q Y Y Y Y 64% -27%
13 Lee Selwyn Y N N Y N Y Y N N N Y 100% -45%
13 Barbara Senecal Y Q Q Y N Y Y N N Q Q 64% -45%
13 John VanScoyoc Y Y Y Q Q Y Y N N Y N 82% -27%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
14 Robert Basile Y N Y Y N Y Y Q Q Q Q 64% -45%
14 Clifford Brown Y N Q Y P Y Y Q Q Q Q 55% -45%
14 Gill Fishman Q Q Q Y N Y Y Q Q Q Q 36% -36%
14 Paula Friedman Y N N Y N Y Y N N N Y 100% -45%
14 Kenneth Goldstein N P P N Y Y Y N N Y N 100% -9%
14 Jeffrey Kushner Y N N N N Y Q N Y Y Y 91% -18%
14 Fred Levitan A A A Y N Y Y N N Q Q 55% -36%
14 Roger Lipson Y Y Y N Y Y Q N N Y Y 91% 18%
14 Pamela Lodish N N N Y N Y Y Y Y N Y 100% -27%
14 Shaari Mittel Y N Y Y N Y Y N N Y Y 100% -45%
14 Kathleen O’Connell Y Y Y N Y Y N N Y Y Q 91% 36%
14 Benjamin Rich A A A A A A A A A A A 0% 0%
14 Lynda Roseman N P Y Y N Y Y N Y Y Y 100% 0%
14 Sharon Schoffmann Y Y Y N N Y Y Y Y Y Y 100% -9%
14 Jennifer Segel Y Y N Y Y Y N N Y Y Y 100% 9%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
15 Mariela Ames A A A Q N Q Q Q Q Q Q 9% -9%
15 Eileen Berger Y Q Q N Y Y N N N Q Q 64% 9%
15 Michael Berger A A A A A A A A A A A 0% 0%
15 Abby Coffin A A A A A A A A A A A 0% 0%
15 Jane Flanagan A A A Q Q Y Y Y Y Y Y 55% -18%
15 John Hall A A A A A A A A A A A 0% 0%
15 Benedicte Hallowell Q Q Q N N N Y Y Y Q Q 55% 0%
15 Janice Kahn Y Y Y Y N Q Y N N N Y 91% 0%
15 Ira Krepchin Y Y Y Y N Y Y N N N N 100% -27%
15 Robert Liao Y Y Y Y N Y Y N Y Y Y 100% -9%
15 Richard Nangle A A A Q Q Y Q Y Y Y Y 45% -9%
15 David Pearlman Y N Y N Y N Y N N N N 100% 9%
15 James Rourke A A A A A A A A A A A 0% 0%
15 Ab Sadeghi-Nejad Q Q Q Y Y Q N Q Q Q Q 27% 9%
15 Cornelia van der Ziel N Y N N Y N N N N N Y 100% 64%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
16 Saralynn Allaire Y N Y N Y Y N N Y N Y 100% 45%
16 Robert Allen N N Y Y N Y Y N Y Y Q 91% -18%
16 Beverly Basile Y N Y N Y Y Y N N P Q 91% -9%
16 John Basile Y N Q Y N Y Y Q Q Q Q 55% -55%
16 Stephen Chiumenti P P Y Y P Y Y N Y Y Y 100% 0%
16 Regina Frawley N Y Y Y N Y Y Q Q N Y 82% 9%
16 Thomas Gallitano N Y Y A A A A A A A A 27% 27%
16 Scott Gladstone N Y N Y P N Y N Y Y Y 100% 18%
16 Alisa Jonas N P N Q Q Q Q Q Q N N 45% 0%
16 Judith Leichtner P Y Y Y Y Y Y N P N Y 100% 27%
16 William Pu Y N N Y Q Y Y Y Y N Y 91% -36%
16 Joshua Safer Y Y Y N Y Y N N Y N N 100% 45%
16 Irene Scharf Y Y Y Q Q Q Q Q Q N Y 45% 27%
16 Arthur Sneider N Y Y Q Q Y N Q Q Q Q 45% 27%
16 Joyce Stavis-Zak Y Y Y N Y Y Y N Y N N 100% 27%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
AL Nancy Daly N N Y N Y Y N N Y Y Y 100% 45%
AL Benjamin Franco N Y Y N Y Y N N Y N Y 100% 82%
AL Edward Gadsby P P P P P P P P P P P 100% 0%
AL Bernard Greene N Y Y P P N Y N Y N Y 100% 64%
AL Nancy Heller N Y Y N Y N N Y Y N Y 100% 82%
AL Frank Smizik Q Y Y Q Q Y N N Y Y N 73% 18%
AL Patrick Ward P P P P P P P P P P P 100% 0%
AL Neil Wishinsky Y Y Y Y Y Y Y N Y Y Y 100% 9%

Housing Advisory Board: “smart growth,” $35,000 consultant

A meeting of Brookline’s Housing Advisory Board on Wednesday, June 24, started at 7:30 pm in the first-floor south meeting room at Town Hall. All the current members except Kathy Spiegelman were on hand. Board members heard a presentation on Chapter 40R “smart growth” development and joined with Planning Board members in a continued review of Chapter 40B regulations, as asked at the town meeting in May. They are considering a consultant study estimated to cost $35,000.

Smart growth: Chapter 40R of Massachusetts General Laws and companion Chapter 40S are legacies from waning years of the Romney administration, trying to promote so-called “smart growth.” The catch-phrase mainly means development near public transit, reducing needs for automobiles. In the classic Massachusetts traditions, our hydra of state government grew a new tendril. It is currently headed by William E. “Bill” Reyelt, who is a Precinct 5 town meeting member in Brookline.

Mr. Reyelt illustrated his description of Chapter 40R to the housing board with computerized slides. The state is offering tiny incentives to communities that set up special “smart growth” zoning districts and approve housing development permits. They mainly amount to one-time payments of $1,000 to $3,000 per housing unit for each unit built beyond standard zoning.

Sergio Modigliani, a Planning Board member, observed that the cost of educating a student in Brookline schools averages around $18,000 a year. At that rate, state payments would be eaten up in at most a few months, while Brookline taxpayers would be exposed to uncompensated costs for at least a century. Maybe not so “smart.”

All Mr. Reyelt could offer was that Brookline might become “eligible” for partial compensation under a Chapter 40S program, but there is “no guarantee” of state funding. All the communities participating in Chapter 40R turned out to be smaller cities, far suburbs and rural towns. None are among the towns Brookline typically regards as peers, including Arlington, Belmont, Lexington and Winchester.

Chapter 40B regulations: As proposed by the Advisory Committee, last May’s annual town meeting referred a proposal to change Chapter 40B law and regulations to the Housing Advisory Board and the Planning Board, asking for a “plan for Brookline to work with other mature, built-out communities…to achieve a temporary ‘safe harbor’ status” from disruptive development, such as one proposed at Hancock Village. As the Advisory Committee wrote in its recommendation, that will take changes to state regulations.

Despite town meeting’s directions, the Housing Advisory Board looks to have taken off on a tangent. Instead of working on changing state regulations, members are considering a consultant study for a “housing production plan” to counter 40B development under current regulations.

Brookline already has such a plan, produced in 2005. Little of significance has changed since then. To satisfy current regulations, Brookline would have to develop more than 250 housing units a year that are subsidized to Chapter 40B levels. For the past 15 years, Brookline has averaged less than 10 such units a year.

Housing Advisory Board members estimated spending about $35,000 on a consultant study for a new housing production plan. However, they had not contacted any potential consultants. Instead, board member Karen Kepler, a lawyer, noted that a contract under $35,000 would be exempt from state public bidding requirements.

Virginia Bullock, one of the town’s housing project planners, said Brookline had a good chance of getting $15,000 from a new state grant called “planning assistance toward housing.” Board members speculated about how to wheedle money out of the Advisory Committee or how to bleed Housing Trust funds. Those are set aside to support subsidized housing units, not to stuff the pockets of consultants.

– Beacon staff, Brookline, MA, June 25, 2015


Matthew J. Lawlor, Chapter 40R: a good law made better finally starts showing results, Congress of the New Urbanism, October, 2006

Planning assistance toward housing (PATH), Massachusetts Department of Housing and Community Development, 2015

Craig Bolon, Hancock Village: development pressures, Brookline Beacon, February 22, 2015

Zoning Board of Appeals: Hancock Village 40B conditions, Brookline Beacon, January 6, 2015

Zoning Board of Appeals: Hancock Village 40B, getting to Yes, Brookline Beacon, November 4, 2014

Board of Selectmen: water fees, snubbing the public

A regular meeting of the Board of Selectmen on Tuesday, June 23, started at 6:50 pm in the sixth-floor meeting room at Town Hall. The board had invited Frederick Russell, the director of the Public Works water and sewer division, to present a proposal for revising fees. Unlike practices of years ago, the board did not announce or conduct a hearing.

Public affairs: Stephen Cirillo, the finance director, announced another agreement with a nonprofit organization for payment in lieu of taxes (PILOT). It is with Soka Gakkai, a Buddhist organization at 303 Boylston St. Mr. Cirillo noted that it is the twentieth PILOT agreement he has negotiated, starting in 2006. The board approved.

Water and sewer fees: Mr. Russell’s proposal was presented with a computer display that, as of noon the following day, had not been made available to the public on the municipal Web site. According to him, the average bill will increase 4.6 percent, starting in July–far in excess of general inflation. Compared with other eastern Massachusetts communities, Brookline’s water and sewer fees are already high.

It was obvious to many that some of Mr. Russell’s data could not stand scrutiny. Board member Nancy Daly said that a back calculation indicated an average residential bill of over $9,000. The claim for average increase in dollars, divided by the claim for average increase in percent, shown on Mr. Russell’s displays, indicated an average quarterly bill of about $2,200. Mr. Russell could not explain clearly.

A severe problem with Brookline’s water and sewer fees has long been known. It stems from failure to adjust for the number of dwelling units served by a water line and meter. Brookline has mostly multifamily housing. Fewer than 20 percent of households are found in single-family houses.

Brookline has had information about numbers of dwelling units for decades. It has been available from computer databases for over 20 years. Mr. Russell said his division’s failure to bill on a fair and equitable basis was lessened by a scheme of base rates and block rates, but data he displayed showed substantial inequity.

Members of the public led by Ernest Frey, a Precinct 7 town meeting member, and David Lescohier, a Precinct 11 town meeting member, came with information showing that Brookline was practicing unfair billing. Although the Board of Selectmen often accepts comments on public affairs topics at ordinary meetings, not just hearings, Neil Wishinsky, the board’s chair and a former Advisory Committee member, pointedly snubbed Mr. Lescohier and his allies. The board approved the proposed fee changes after only brief discussion.

Personnel, contracts and finances: Ray Masak, a building project administrator, asked for approval of a $2.61 million contract with Contractors Network of East Providence, RI. It will rebuild and repair large parts of the 16-year-old municipal service center at 870 Hammond St. Design errors have led to expensive corrections, rivalled only by the Pierce School disasters of the early 1970s. Most members of the board seemed oblivious to Brookline’s costly history of mistakes. They approved the contract.

Anthony Guigli, a building project administrator, won approval for two major contracts that begin a project to enlarge and renovate Devotion School. HMFH Architects of Cambridge gets $8.13 million for final plans, specifications and design coordination. Shawmut Design and Construction of Boston gets $10.55 million for its services as general contractor. The entire project has been costed at about $120 million–by far the most expensive in Brookline’s history.

Mr. Guigli also won approval for two much smaller contracts to complete school repairs. GWV of East Boston gets a $0.04 million change order, most of it to replace the main sewer connection at Lawrence School. Lambrian of Westwood gets $0.02 million more to complete work at old Lincoln School. Ms. Daly asked about science room casework removed by mistake. Mr. Guigli said that the change order included an adjustment for damages.

Andrew Pappastergion, the public works commissioner, won approval of $1.22 milllion for the first year of a five-year contract with Casella Waste Systems of Peabody, to collect and process recycled materials. A five-year contract with Waste Management of Houston, TX, which began Brookline’s single-stream recycling, is ending. Casella submitted a more favorable bid. The cost is significantly higher than the current contract. Mr. Pappastergion won approval for a $0.2 million reserve fund request, to be heard by Advisory on July 7.

Casella already operates solid waste transfer from the Brookline transfer station off Newton St. It takes town refuse collections, street sweepings and catch basin cleanings to a sanitary landfill in Southbridge that recovers methane and uses it to generate electricity. The company will take recycle collections to a largely automated separation plant in Charlestown. Unlike Waste Management, Casella does not plan to incinerate any materials but will bundle and sell them for reuse.

Licenses and permits: A representative for Teleport Communications applied for a permit to install an in-street conduit on Hammond St. Traffic in the area has been disturbed recently by work on gas mains. Teleport estimated five days for its job, committed to all-hours access for residents and promised to notify residents a week before commencing work. The board approved.

Two liquor license holders were brought in for revocation hearings. Vernissage, a restaurant in Washington Square, and GPS Wines and Spirits, across Boylston St. from the Chestnut Hill Shopping Center, have closed. Both were given about five more months to reactivate businesses or transfer licenses.

– Beacon staff, Brookline, MA, June 24, 2015


Devotion School Building Committee: opting for a community school, Brookline Beacon, September 26, 2014

Climate Action: planning a home invasion

At its meeting Monday, June 22, our sometimes torpid Climate Action Committee started a new, invasive approach that, if carried through, promises to impact every Brookline household, business and institution. The name of the game is “community choice aggregation.” What’s that?

Utility restructuring: During the mid-1990s, ambitious state administrations–mostly run by Republicans–began to promote deregulation, particularly for energy. They were apparently taking cues from the deregulation of airline fares during the Carter administration. The federal Public Utility Regulatory Policies Act of 1978 had proven mostly aspirational. State rather than federal government had most sway over utilities.

The United States has a cultural background of enthusiasms for apparently simple solutions to genuinely complex problems–for example, punitive public-school testing claimed as a solution to gaps in educational achievement, a poster child of the Reagan administration. That outlook has strongly influenced so-called “restructuring” of electric power and other utilities.

California conducted the first major experiment, starting in 1994 and descending into chaos in 2001, a year of blackouts and corruption–the Enron price manipulation crimes. Massachusetts started in 1996, during the troubled Cellucci administration. The following year, before the real Big Dig costs had been divulged to the public, the General Court was maneuvered into passing the Utility Restructuring Act of 1997.

Community choice aggregation: The main act of Massachusetts restructuring was to squeeze big electric companies, Boston Edison and New England Power, into selling their generating plants and focusing on local power distribution. A sleeper in the law was a provision for municipal cooperatives: not the traditional sort that own wires, transformers and meters–instead an offspring that engages in financial manipulation.

A widely advertised feature of the Restructuring Act allowed electricity customers to designate generating companies, from whom they would buy wholesale electricity carried to their locations and billed to them by distributing companies. A lengthy section of the act forbids distributing companies from switching customers’ generating companies. Only a voluntary action initiated by a customer can make a switch.

Another sleeper in the schizophrenic Restructuring Act, authorizing so-called “community choice aggregation,” stood those protections on their heads. For ten years, it remained little known and little used. By 2007, there were only five community choice aggregators–all but one a small town. Under the act, a town meeting can approve a program, and a board of selectmen can then contract with a distributing company.

A board of selectmen can also designate a combination of generating sources. Once that is done, local customers are automatically switched–without voluntary actions and without their permissions. They will get notices. They have a month to “opt out”–returning to generating sources of their own choosing. If they fail to act in a timely way, their suppliers are switched without permissions, in whatever way some board of selectmen chose, supposedly on their behalf.

Motives and side effects: For some communities, the main motive has been trying to lower the price of electricity, by combining purchasing and by bargaining for many customers. Success has been spotty at best. Stung by price reverses, in 2012 Ashland and Marlborough suspended their community choice aggregation (CCA), returning local customers either to “standard rate” plans or to generating companies they chose.

A 2013 report by researchers at Tufts University found that “savings reached through a CCA are modest and unpredictable.” In their conclusion, the researchers observe, “A purpose of [state] deregulation was to lower electricity rates through competition, but rates in deregulated states have increased more significantly than rates in regulated states.”

To long-term observers, that comes as no news. In 2006, David Cay Johnson had reported in the New York Times, “A decade after competition was introduced…the market has produced no [overall price] decline. Instead, more rate increase requests are pending now than ever before…Electric customers…are facing rude surprises….”

– Craig Bolon, Brookline, MA, June 23, 2015


Joshua Laufer, Betsy McDonald, Brenda Pike and Mengmeng Zhou, Community choice aggregation: municipal bulk buying of electricity in Massachusetts, Tufts University, May 6, 2013 (36 MB)

Joe O’Connell, Ashland halts electric power program, MetroWest Daily News (Framingham, MA), December 27, 2012

David Cay Johnson, Competitive era fails to shrink electric bills, New York Times, October 15, 2006

An act relative to restructuring the electric utility industry in the Commonwealth, regulating the provision of electricity and other services, and promoting enhanced consumer protections therein, Massachusetts General Court, Chapter 164 of the Acts of 1997

Transportation Board: tone deaf

When the Transportation Board held a public review of a recent proposal to rip out all 66 of the public parking spaces on the east side of Babcock Street, between Fire Station No. 5 and Commonwealth Avenue, on Thursday, June 18, it held back. No action was taken, but the proposal from the Bicycle Advisory Committee, appointed by this board, remains on the books and could still be implemented.

Over 60 Brookline residents came to the meeting, despite the onset of summer vacations and the competing Devotion School “Carnivale”–the former spring fair on steroids–drawing hundreds from the school district plus many others town-wide. About 30 residents spoke at the Transportation meeting, even after board chair Joshua Safer tried to shoo them away–saying the board “got it.”

Threat and insult: So far, the board did not “get it.” Most of its members live in suburban settings. They obviously fail to understand the urban settings of North Brookline and Brookline Center, where nearly half the town’s population lives, and some apparently don’t care. They said nothing.

The board’s Bicycle Advisory Committee threatened and insulted the Babcock Street neighborhoods. On June 1, without consulting any neighborhood people or visiting the neighborhoods, they proposed a plan to remove all 66 public parking spaces on the east side of Babcock Street, between Fire Station No. 5 and Commonwealth Avenue, plus 16 potential spaces currently marked “no parking,” to install a bicycle lane.

One committee member, Tommy Vitolo, a Precinct 6 town meeting member, dissented. Dr. Vitolo argued against disruption of the Babcock Street neighborhoods. However, he was unable to persuade any other member of this neighborhood-hostile committee. The other members opted to invade Babcock Street neighborhoods with bulldozers, ordering people around and destroying key parts of the Babcock Street social and physical environments.

Remedies: Well in advance of the Transportation Board Meeting, Andrew Pappastergion, the commissioner of public works, agreed with Precinct 8 town meeting members to defer work on Babcock Street to next summer. However, no public participation is guaranteed, and so far none has been arranged. A Precinct 8 town meeting member has asked the Board of Selectmen to appoint a project review and monitoring committee.

The only long-term remedy likely to prevent a recurrence of this abuse is to dissolve the narrowly focused and irresponsible Bicycle Advisory Committee. Instead of a single-interest group, the community needs a Pedestrian and Bicycle Safety Committee. It would represent the main, human-powered transportation alternatives that need protection from operators of motor vehicles.

On June 18, it was not clear that Transportation Board members heard the cadence or the melody. Instead, they appointed a person who came across as yet another bicycle “groupie” to the Bicycle Advisory Committee. The neighborhoods have been patient. They will wait months but not years. They are looking for clear and positive, decisive action. If that does not happen, people will likely say other adjustments are needed.

– Craig Bolon, Brookline, MA, June 19, 2015


Craig Bolon, Conflicts of interest: state treasurer and transportation board member, Brookline Beacon, June 10, 2015

Board of Selectmen: Village Street Fair, trash metering

A regular meeting of the Board of Selectmen on Tuesday, June 9, started at 7:10 pm in the sixth-floor meeting room at Town Hall. The board had invited Andrew Pappastergion, the public works commissioner, to present plans for a trash metering system, replacing Brookline’s partly unstructured, fixed-fee approach to collecting solid waste from households and businesses.

Some board members had attended a “visioning” session conducted at Town Hall the previous evening for the Economic Development Advisory Committee. According to Neil Wishinsky, the chair, it focused on “medium-scale commercial parcels.” Board member Nancy Daly commented that “most projects would require rezoning.” Zoning changes take two-thirds votes at town meetings and have become difficult to achieve. Ms. Daly said there would need to be “neighborhood involvement and dialog.” So far there has been none of either.

Public affairs: Andy Martineau, an economic development planner, reported on the Brookline Village Street Fair, a new event to occur on Harvard St. from noon to 4 pm Sunday, June 14 (not June 15 as in the meeting agenda). Best known among similar events nearby may be the annual Allston Village Street Fair, usually held on a September Sunday. Mr. Martineau’s plans sounded somewhat more commercial, with about 40 merchants involved. Performances are planned by Vanessa Trien and the Jumping Monkeys, a favorite of young children, Ten Tumbao, Afro-Latin-Caribbean music, and the Muddy River Ramblers, bluegrass.

Richard Segan, from the Brookline Sister City Project, asked the board to approve a proclamation for Brookline Sister City Week, to be October 18-24. Cornelia “Kea” van der Ziel, a Precinct 15 town meeting member, and Peter Moyer, a Brookline resident, had visited Quezalguaque, Nicaragua, the third week in May. Drs. van der Ziel and Moyer described their visit and future plans. The board approved the proclamation.

The two Brookline physicians have mainly been concerned with atypical chronic kidney disease, a longstanding and severe problem in Quezalguaque–also common in Costa Rica and El Salvador. Unlike similar maladies in the United States, mainly found in older people, in Central America the disease strikes people as early as their twenties. Every year thousands die. Although environmental and occupational factors are suspected, no cause is known. Those working with the Sister City Project plan to extend epidemiological efforts, hoping to associate the disease with locations, occupations, water supplies, agricultural chemicals and other potential influences.

Trash metering: Andrew Pappastergion, Brookline’s commissioner of public works, presented the first detailed plans for trash metering. Programs known by that trademarked term–coined by WasteZero of Raleigh, NC, a contractor for Brookline–aim to improve on antiquated and simplistic “pay as you throw” efforts through automation, public education and convenience.

The City of Gloucester achieved a 30 percent reduction in waste disposal costs during the first full year of such a program, according to the Gloucester Times of March 7, 2010. However, Gloucester previously had a poor recycling record, while Brookline began curbside recycling in 1973 and has operated an increasingly advanced program since 1990.

Six Massachusetts towns with populations above 30,000 have some form of solid waste limit: Plymouth, Taunton, Amherst, Shrewsbury, Dartmouth and Natick. None of them are among the more urbanized and sophisticated towns Brookline typically regards as peer communities–including Arlington, Belmont, Lexington and Winchester. There is strong evidence that in urbanized and sophisticated communities public education has been more effective than trash metering at reducing solid waste. Although Brookline has a Solid Waste Advisory Committee, so far its members have been passive, performing no public outreach. Those are hurdles for Mr. Pappastergion’s plans.

Mr. Pappastergion presented a slide show to the board. It included a review of Massachusetts information organized by the Office of Energy and Environmental Affairs. State officials remain focused on antiquated and simplistic “pay as you throw” efforts, so far found mostly in smaller rural or suburban towns.

Mr. Pappastergion presented data unavailable to the public: recycling rates for communities using municipally supplied bins. The Massachusetts Department of Environmental Protection has collected recycling rate data since 1997, but after 2008 state officials stopped releasing them to the public. It appeared that no Massachusetts town with a population above 30,000 operates a program comparable to the one Mr. Pappastergion proposes.

Mr. Pappastergion proposes that Brookline supply to each of about 13,000 customers now using municipal refuse services a 35-gallon bin with wheels, similar in construction to the 64-gallon bins already supplied for recycling. Brookline would reduce the number of collection trucks from six to four and equip those trucks with automated bin-handlers like the ones now used for recycling bins.

Households would continue to pay the current $200 per year fee to have one 35-gallon refuse bin and one 64-gallon recycling bin collected each week. Extra refuse bags would be available at stores and town offices. They would have 30-gallon capacity and cost $2.00 each. For fees yet to be stated, Brookline would supply extra bins collected each week. Mr. Pappastergion estimated that 35-gallon bins would hold, on average, 40 lb of refuse, while 30-gallon bags would hold 25 lb.

Based on his estimates, Mr. Pappastergion might be proposing that Brookline violate state law by charging more than the cost of service for refuse bags. He estimated a cost of container and disposal at $1.15, as compared with a $2.00 fee. However, he did not include costs of collection and transfer. He provided no estimates for likely quantities of bags or extra bins.

In the proposed program, current practices for collecting bulky items, yard waste and metals would not change. Combining personnel, supplies, contractual services and capital equipment, Mr. Pappastergion estimated savings of about $0.1 million for fiscal 2017, the first full operating year, rising to about $0.4 million per year for fiscal 2022 and later years–including allowances for inflation.

Members of the board reacted with a diffuse scatter of comments. Mr. Wishinsky said the refuse bin on display looked “awful small” and asked about 48-gallon bins. Mr. Pappastergion said 35-gallon bins were important “to achieve goals of this program.” Board member Bernard Greene, in contrast, said he was “surprised at how large” the 35-gallon bin was. “We’d have room to rent out space.” Ms. Daly asked whether people would use compactors to overstuff the bins. Mr. Pappastergion doubted that would occur.

There were several questions about storage space and handling, to which Mr. Pappastergion responded by citing four years’ experience with the larger, single-stream recycling bins. The introduction of those elements led to increasing Brookline’s recycling rate from 30 to 37 percent, he said, but during the past two years progress has stalled. The department has yet to stimulate recycling through public outreach. It is not clear whether the department has the talent or the willingness to try.

Personnel, contracts and finances: Sara Slymon, the library director, won approval to hire three librarians, turning current interim positions into permanent ones, thanks in part to the tax override passed by voters in May. Mr. Greene and board member Ben Franco asked how the positions would be advertised. Ms. Slymon replied that union contracts restricted the library to internal posting unless a qualified candidate could not be found. She said all the current employees were well qualified for their positions.

Linda Golburgh, the assistant town clerk, asked for approval to hire an administrative assistant. The position is becoming vacant because of a retirement. It marks the third recent change in personnel at a small agency. Ms. Daly remembered that the current employee previously worked in the office of the Board of Selectmen. The board approved, with Mr. Wishinsky asking Ms. Golburgh to seek help from Lloyd Gellineau, the chief diversity officer, and Sandra DeBow, the human resources director, to insure a diverse candidate pool.

Peter Ditto, the engineering director, asked for approval of a $0.07 million increase in the contract to renovate Warren Field. The contractor is New England Landscape and Masonry (NELM) of Carver, MA. The board asked whether the project was staying within budget limits. Mr. Ditto said that it was and that the project was about to conclude. The board approved the change order.

Mr. Ditto also asked for approval of a $1.07 million contract with Newport Construction of Nashua, NH, to reconstruct Fisher Ave. It is this year’s largest street project. The other bidder, Mario Susi & Son of Dorchester, which is working on other Brookline projects, proposed a substantially higher price. The board approved the contract.

The board also approved several smaller financial transactions. Among them was accepting a $0.06 million state grant, using federal funds, to hire a transportation coordinator based at the Senior Center on Winchester St. Ruthann Dobek, director for the Council on Aging, described an innovative program aimed at helping older people adjust to living without automobiles. Board members asked how the program would operate in future years.

Frank Caro, a Precinct 10 town meeting member and a member of the Age-Friendly Cities Committee, responded that such a program had already begun with volunteers and would continue that way if necessary. However, Dr. Caro said, the program needed planning and coordination. Even a year of staffing, he contended, would move the program to better levels of service.

– Beacon staff, Brookline, MA, June 12, 2015


Celebrate Brookline Village, The Village Fair, 2015

Cause of CKD epidemic in Sister City remains a mystery, Brookline Sister City Project, 2010

Miguel Almaguer, Raúl Herrera and Carlos M. Orantes, Chronic kidney disease of unknown etiology in agricultural communities, MEDICC Review 16(2):9-15, Medical Education Cooperation with Cuba, 2014

Board of Selectmen: new members and leadership, Brookline Beacon, May 13, 2015

Town elections: tax override for schools passes, Brookline Beacon, May 5, 2015

Trash metering, WasteZero (Raleigh, NC), 2010

Solid Waste Advisory Committee: recycling and trash metering, Brookline Beacon, September 3, 2014

Craig Bolon, Recycling makes more progress without trash metering, Brookline Beacon, April 11, 2014

Conflicts of interest: state treasurer and transportation board member

Conflicts of interest abound in government: duties to represent citizens, as opposed to private interests. Few political officeholders are immune. Locally and recently, we have seen Brookline residents involved.

Deborah Goldberg, a former chair of the Brookline Board of Selectmen who is now the Massachusetts state treasurer, recently disclosed a potential conflict involving her husband, Michael Winter, a J.P. Morgan executive. His firm was awarded contracts to market $100 million in state bonds. Mr. Winter, however, does not work in the company division responsible for government bond marketing.

In a local context, Christopher Dempsey of 43 Brington Rd., a Transportation Board member, has an apparent personal interest in a proposal submitted to his board by the Bicycle Advisory Committee, on which his father, John P. Dempsey of 43 Brington Rd., now serves. At an evening meeting on Monday, July 1, the elder Mr. Dempsey argued and voted in favor of a proposal to remove all parking from the east side of Babcock St., from Fire Station No. 5 at 49 Babcock St. to the town line at 1010 Commonwealth Ave., in order to install a lane marked exclusively for bicycle use.

That part of Babcock St. now has a total of 66 available parking spaces along a street with many apartment buildings that have no parking. The Bicycle Advisory Committee proposal is scheduled to be reviewed by the Transportation Board at a June 18 meeting. On Monday, June 8, town meeting members from Precinct 8 agreed with Andrew Pappastergion, the public works commissioner, that work on Babcock St. would be deferred until 2016, avoiding near-term confrontations on the issue.

– Craig Bolon, Brookline, MA, June 10, 2015


Matt Stout, Treasurer hubby’s firm got $100M in bonds, Boston Herald, June 10, 2015

Brookline Transportation Board, Agenda for June 18, 2015, See item 7

2015 annual town meeting: budgets, bylaws and resolutions

Unlike last year, Brookline’s 2015 annual town meeting rolled along at a brisk pace and needed only two sessions–Tuesday, May 26, and Thursday, May 28–both starting at 7 pm in the High School auditorium. The generally progressive tones of Brookline civic engagement remained clear, and some of the musical theatre of years past returned for an encore. This is the one-hundredth year for Brookline’s elected town meeting.

Budgets: Disputes over budgets that roiled the winter workups to town meeting had evaporated after voter approval of a major tax override at the Tuesday, May 5, town election. Edward “Sandy” Gadsby, the moderator of town meeting, mentioned “controversy” over a three-word amendment to one special appropriation. The Advisory Committee proposed two changes to the “override” financial plan as proposed by Mel Kleckner, the town administrator.

In the traditional presentation of an annual budget, Sean Lynn-Jones, newly elected as chair of the Advisory Committee last winter, called 2015 “an interesting year.” He noted that new revenues were going to be involved in maintaining a stable budget, singling out parking meter and refuse fees. Mr. Lynn-Jones said he expects “fiscal challenges…another general override in three to five years…possibly a ninth elementary school…high school [expansion] at over $100 million, not $35 million,” as most recently estimated.

In the traditional response from the Board of Selectmen, Neil Wishinshy, recently elected as the new chair, said strongly contested elections, like those this year, “make our town and democracy stronger.” He spoke of new efficiencies contributing to a stable budget, singling out trash metering, which has been mentioned at official meetings but so far not detailed. Mr. Wishinsky called on town meeting members to “put aside narrow self-interest,” saying, “We live in the real world.”

Staff for preservation planning will increase from 1.8 to 2.0 full-time-equivalent positions, a budget hike of $14,119. It is expected to provide a full-time position for preservationist Greer Hardwicke. The Public Works budget for pavement markings got $2,673 more, to cope with after-effects from a harsh winter. Those had been wrapped into Advisory Committee motions. A $264 million spending plan sailed through, mostly on voice votes.

A three-word amendment to a $100,000 special appropriation had been proposed by Craig Bolon, a Precinct 8 town meeting member who edits the Brookline Beacon. Offered on behalf of Brookline PAX, it asked that a study of Coolidge Corner parking be done “with neighborhood input.” Town meeting agreed in a unanimous voice vote.

Instead of parochial concerns with Public Works, this year’s town meeting focused more on the Police budget. Lynda Roseman, a Precinct 14 town meeting member, asked about progress coping with mental health issues. Daniel O’Leary, the police chief, compared last year–when three members of the force were involved–to this year, when two grant-funded programs are underway. By the end of the year, he said, about a quarter of the force will have completed 40 hours of training.

A large municipal solar-power array, in effect a budget item, was approved out-of-line under Articles 15 and 16. Brookline is contracting with Blue Wave Capital, a company endorsed by the Metropolitan Area Planning Council, which is to build and operate it, using part of the former landfill site near the waste transfer station off Newton St. Rated capacity is to be 1.4 MW, peak. Expected income is about $0.08 million per year.

Bylaw, Living Wage: Under Article 10, the Recreation Department proposed to gut much of the Living Wage bylaw enacted several years ago, by exempting from coverage several employee groups and by eliminating the Brookline minimum wage: a one-dollar premium over the state minimum. Patricia Connors, a Precinct 3 town meeting member who was the chief sponsor of the bylaw, had resisted the effort strongly.

Scott Gladstone, a Precinct 16 town meeting member, was entirely opposed to Article 10. “The bylaw is already a compromise,” he claimed. “Junior lifeguards,” whom it would remove from coverage, “are lifeguards…with the same Red Cross certifications as anybody else…What we’re trying to teach here…is work values…Should we teach them that they should not be demanding a living wage?”

Ms. Connors was supported by Brookline PAX. Co-chair Frank Farlow, a Precinct 4 town meeting member, stated, “PAX supports working people and fair wages.” Board member Andrew Fischer, a Precinct 13 town meeting member, called Article 10 “an assault on working people,” saying, “I wonder how many [town-funded] cars it would take to cover the wages of students with first-time jobs.”

Robert L. “Bobby” Allen, Jr., a Precinct 16 town meeting member and former member of the Board of Selectmen, tried to deflect those arguments. saying that when the now-disbanded Living Wage Committee proposed the bylaw, “We were way out front.” He favored some compromises being sponsored by the Advisory Committee. Pamela Lodish, a Precinct 14 town meeting member who lost this year when running for the Board of Selectmen, agreed with Mr. Allen. “If we pass the [Connors] amendment,” she said, “we’ll be hiring college students instead of high-school students.”

Ms. Connors was proposing to maintain the current bylaw’s definitions of seasonal and temporary employment. It was not certain whether Mr. Allen or Ms. Lodish understood, but Merelice, a Precinct 6 town meeting member, clearly did. The current bylaw’s approach is not supported by the HR module of Munis, recently adopted for maintaining employment records by the Human Resources (HR) office. According to Merelice, the attitude of HR is “an example of being concerned about the dirt when we hold the broom.” She contended, “We can certainly find the technology.”

Town meeting members sided strongly with Ms. Connors, Merelice and Brookline PAX. In an electronically recorded vote, the Connors amendment passed 141 to 48, with 10 abstentions. The amended main motion on Article 10 passed 144 to 42, with 5 abstentions. Although the Brookline minimum wage premium is maintained, so-called “junior” employees in the Recreation Department will no longer be covered by the Living Wage, reverting to the Brookline minimum wage–currently $10.00 versus $13.19 per hour. Recreation claims to be able to support more positions.

Bylaw, snow clearance from sidewalks: Town meeting grappled with the latest edition of a snow-clearance bylaw under Article 12. For about 30 years a bylaw initially proposed by Stanley Spiegel, a Precinct 2 town meeting member, has required property owners to clear adjacent sidewalks of snow. However, until a push last year from Frank Caro, a Precinct 10 town meeting member who filed a resolution article, and from the Age-Friendly Cities Committee, enforcement proved erratic.

During the 1970s and before, Brookline plowed most of the sidewalks, but after budget trims in the aftermath of Proposition 2-1/2 it cut back to only a few, including ones near schools. Article 12 was proposed by a Sidewalk Snow Removal Task Force, appointed in the summer of 2014 by the Board of Selectmen to strengthen the town’s law and its enforcement. The group–including staff from Public Works, Health, Building and Police–acknowledged that a complaint-driven approach had worked poorly.

Last winter, the four departments contributing to the task force divided Brookline’s streets into four sectors and began proactive enforcement during weekdays, with Police assuming most duties at other times. Despite the unusually harsh winter, enforcement generally improved, as described to town meeting by Nancy Daly, speaking for the Board of Selectmen. However, Martin Rosenthal, a Precinct 9 town meeting member, pointed out the lack of coordination in the current form of enforcement.

In its town-meeting article, the task force proposed to discontinue automatic warnings for first violations at residential properties, to raise fines and to institute a $250 fine for placing snow into a street–forbidden by Brookline’s general bylaws since the nineteenth century.

Compromises made as outcomes of several reviews had gutted most of the original proposal, leaving relatively weak enforcement, modest fines and no administrative appeals. Tommy Vitolo, a Precinct 6 town meeting member, offered two amendments intended to address some compromises. One would have limited a period of enforcement delay, at discretion of the public works commissioner, to no more than 30 hours after the end of a snowfall.

Amy Hummel of Precinct 12, speaking for the Advisory Committee, objected to an arbitrary time limit for the commissioner’s discretion. During the Blizzard of 1978, many streets remained impassible for several days, because Brookline then lacked much equipment capable of clearing them. That amendment was rejected through an electronically recorded vote, 78 to 108, with 6 abstentions.

Dr. Vitolo’s other amendment sought to restore the schedule of fines that the task force had proposed. Those called for a $50 fine on a first violation at a residential property, rather than an automatic warning, and a $100 fine for subsequent violations.

Dennis Doughty, a Precinct 3 town meeting member who served on the task force, supported the amendment on fines. He compared hazards of sidewalk snow with other hazards now sanctioned by $50 fines and no warnings, including putting refuse out for collection earlier than 4 pm the previous day. Town meeting members approved the amendment on fines through an electronically recorded vote, 135 to 52, with 5 abstentions.

Unfortunately, Dr. Vitolo’s amendment on fines for failure to clear sidewalk snow seems to leave the Brookline bylaws inconsistent. According to the main motion before town meeting, proposed by the Advisory committee on p. 5 of its supplemental report section and amended per Dr. Vitolo, the snow clearance bylaw was changed by town meeting to read, in part:

“The violation of any part of Section 7.7.3 [that is, the requirement to clear sidewalk snow at residential properties]…shall be noted with a $50 fine for the first violation and subject to a fine of $100.00 for the second and subsequent violations….”

However, according to the main motion, revised penalties are stated again in Article 10.3 of the bylaws, Table of Specific Penalties. What Dr. Vitolo’s amendment did was to revise penalties stated in the bylaw on snow clearance but not those stated in the Table of Specific Penalties. There will likely be no more snow before a fall town meeting, which might make the Brookline bylaws consistent.

Bylaws, tap water and bottled water: Articles 13 and 14, the two “water articles,” had been filed by Jane Gilman, a Precinct 3 town meeting member, Clinton Richmond, a Precinct 6 town meeting member, and several other petitioners. Both were “watered down” during reviews before the town meeting, yet significant parts of each survived and won approval.

Ms. Gilman and Mr. Richmond are co-chairs of the “green caucus” in town meeting, which counts over fifty town meeting members as participants and has been effective at marshaling votes for some recent, environmentally oriented initiatives. Brookline PAX, with a somewhat overlapping base of support, was recommending voting for motions offered by the Board of Selectmen in favor of parts of the two articles.

Article 13 sought a bylaw requiring Brookline restaurants to offer tap water. They already do, said Sytske Humphrey of Precinct 6, speaking for the Advisory Committee. She called the proposed bylaw “unnecessary and ineffective.” However, the petitioners had found some sinners. An Indian restaurant in Washington Square did not offer tap water on its take-out menu, and one pizza place did not seem to offer it at all.

Differing from the Advisory position, the Board of Selectmen saw little objection to such a law but added a phrase, “upon request,” and removed a sentence: “Establishments may charge for this service item.” That might give an impression, they wrote, that charging for water “was a requirement.”

Diana Spiegel, a Precinct 2 town meeting member, said the topic could be handled by conditions on restaurant licenses and moved to refer the article to the Board of Selectmen. In an electronically recorded vote, the referral motion failed 78 to 103, with 5 abstentions. The motion for a bylaw drafted by the Board of Selectmen passed 124 to 56, with 7 abstentions.

Article 14, seeking to ban sale and distribution of bottled water at town events and on town property, encountered stiffer headwinds at reviews before town meeting and quickly lost altitude. According to Mr. Richmond, the purpose was not banning water but banning the plastic bottles usually supplied. Hundreds of billions a year are sold. While they might be recycled, at least in part, they are mostly thrown away.

By town meeting, motions under the article had been trimmed back to a proposed ban on spending town funds to buy water in plastic bottles of one liter or less for use in offices. The Board of Selectmen proposed to refer the rest of the article to a study committee, to be appointed by the board. The Advisory Committee stuck with its original approach, recommending no action.

John Harris, a Precinct 8 town meeting member and a past participant in the “green caucus,” was not in line this time. The bylaw favored by the Board of Selectmen would have negligible impact, he claimed, and if widely emulated elsewhere, then companies selling bottled water would easily subvert it. Speaking for the Board of Selectmen, Nancy Daly disagreed, saying the debates over Article 14 had “succeeded at least in educating me.”

The Advisory Committee remained unmoved. Robert Liao of Precinct 15 recommended voting for the Harris motion to refer, consistent with the Advisory position. There will be “adverse unintended consequences” from a bylaw, he claimed, saying, “Reusable bottles require planning and changes in behavior.”

Robert Miller, a Precinct 8 town meeting member, asked whether the town was spending money on either bottled water or bottled soda. The answers were yes as to both, according to Mel Kleckner, the town administrator. Echoing a topic heard often during reviews, Jonathan Davis, a Precinct 10 town meeting member, asked whether vending machines on town property would be affected. Mr. Richmond conceded they would not be, since “the machines are put out to bid” and do not involve spending town funds.

Mr. Gadsby, the moderator, took a motion for the question–that is, a motion to terminate debate. Not enough town meeting members were ready to do that. On an electronically recorded vote the motion failed 129 to 71, with 2 abstentions. Such a motion takes a two-thirds margin but got only 65 percent.

Susan Helms Daley of Chatham Circle and her son Jackson, a fourth-grader at Lawrence School, told town meeting members about an alternative that is catching on. For the past few years, the school has had a “green team” and tried “to discourage use of bottled water.” Ms. Daley asserted, “Bottled water is the same as cigarettes.” Jackson Daley said after the school installed “water bottle refill stations”–a PTO project–”more people brought water bottles” to school. So far, he said, “We have saved 10,129 plastic bottles. How cool is that?”

After hearing similar opinions from a junior at Brookline High School, Mr. Gadsby again accepted a motion for the question. He declared it had passed, on a show of hands. The motion from Mr. Harris to refer all of Article 14 failed on an electronically recorded vote, 97 to 102, with 2 abstentions. The motion from the Board of Selectmen for a bylaw banning some uses of town funds passed by a substantial majority, on a show of hands.

Resolution, recreation land: Article 18 proposed a resolution seeking a study of acquiring land in the Putterham neighborhoods of south Brookline for park and recreation uses–specifically, so-called “buffer” areas of Hancock Village near Beverly and Russett Rds. Regina Frawley, a Precinct 16 town meeting member, and Hugh Mattison, a Precinct 5 town meeting member, prepared the article. Although not an abutter to Hancock Village, Ms. Frawley has lived nearby since 1968.

While it is possible that the current landowner, Chestnut Hill Realty, might agree to sell the land, a series of development plans, currently tapping powers under Chapter 40B of the General Laws, have left the company at loggerheads with the Board of Selectmen. A purchase-and-sale agreement now looks unlikely, so that Ms. Frawley suggested the land would probably have to be taken by eminent domain.

In the Putterham neighborhoods, Ms. Frawley showed, there is little public open space. She described the current open spaces and showed that the Hancock Village buffers look to be the largest undeveloped areas likely to be suitable. The only sizable public spaces now are around Baker School. They are laid out for specialized uses and are unavailable to the public during school days. For over 70 years, neighborhood residents have often used the buffer areas for recreation instead, as tolerated by a succession of landowners.

Moderator Gadsby immediately took comments from Rebecca Plaut Mautner, a Precinct 11 town meeting member, ahead of normal order and before hearing from the Advisory Committee and town boards. He did not explain the unusual conduct. Ms. Mautner operates RPM Consulting, according to the Web site of Citizens’ Housing and Planning Association in Boston–providing “affordable housing development services” in New England.

Ms. Mautner delivered a broadside against Article 18, saying it “will be perceived by the outside world as an effort to undermine creation of affordable housing…a message that Brookline will stop at nothing to prevent affordable housing.” That did not seem to resonate well, broached in the first town in Massachusetts to build public housing, where inclusionary zoning has been active for over 20 years.

Lee Selwyn of Precinct 13, speaking for the Advisory Committee, recalled that the proposed “Hancock Village project did not start out as 40B…there was no affordable housing in the original plan.” The owner, he said, is “using 40B as a means to pressure the town.” He said Article 18 proposed “a reasonable public use” of land, and he noted that a parcel adjacent to Hancock Village had been “taken by the state by eminent domain to prevent an inappropriate development.” The Hancock Woods area was taken as conservation land about 20 years ago.

Janice Kahn of Precinct 15, also an Advisory Committee member, supported the study. She said it could teach the town about using eminent domain. There has been no substantial taking since the Hall’s Pond and Amory Woods conservation projects in the 1970s. Given the ongoing disputes with Chestnut Hill Realty, the Board of Selectmen had declined to take a position on Article 18. Members had said they would abstain from voting on it.

Mr. Mattison of Precinct 5, a suppporter, said the buffer “space has served as informal recreation space.” Some 1940s correspondence with the town, he said, describes “how the commitment would be binding” to maintain it as open space. However, that was not part of an agreement presented to a 1946 town meeting, when the bulk of Hancock Village was rezoned to allow apartments.

Lauren Bernard, a Precinct 8 town meeting member, asked whether a “prescriptive easement” would be possible, given the long history of public use, and whether that would be “mutually exclusive with eminent domain.” Joslin Murphy, the town counsel, said easement issues were “not considered yet,” but easement and eminent domain would probably “be mutually exclusive.”

Even though the hour was getting late, at 10:30 pm, town meeting was willing to hear more arguments. A motion for the question failed on an electronically recorded vote, 88 to 78, with 17 abstentions. Julie Jette of Payson Rd. spoke. She said she had been “very surprised” when moving there “that really the only fully accessible playground is in West Roxbury.”

Crossing the rotary and the VFW Parkway with young children seemed too dangerous, Ms. Jette said, and she had never tried. However, she said, “yards are not a substitute for social and community opportunities. It’s time to create a true neighborhood park in south Brookline…Time is of the essence, given Chestnut Hill Realty development plans.” After a few other comments, town meeting approved Article 18 on a show of hands, looking like a ten-to-one majority at least.

Resolution, Boston Olympics: Article 19 proposed a resolution, objecting to plans for holding the Olympic Games in Boston during 2024. The plans never gained traction in Brookline, where many people see heavy costs and slender benefits. The Board of Selectmen had nevertheless postponed making a recommendation, reaching out to the pressure group pushing for the Olympics, but no one from that group responded.

At the town meeting, Martin Rosenthal, a Precinct 9 town meeting member, led off–speaking for Brookline PAX, of which he is co-chair. Unlike his fellow co-chair, Frank Farlow of Precinct 4, Mr. Rosenthal said he is a sports fan and “was excited at first.” However, he had realized “there might be some issues here…it was more for the benefit of non-Brookline people.” PAX opposes plans for 2024 Olympic Games in Boston.

Christopher Dempsey, a Precinct 6 town meeting member, was giving no quarter. He has co-founded a volunteer group, No Boston Olympics, and was on the warpath, armed with PowerPoint slides. The pressure group behind the Olympics plans, he said, is aiming to raid public funds. A long article published the previous day in the Boston Business Journal revealed much of that story to the public.

According to Business Journal staff, previously secret sections of the Olympics “bid book” said public money would be sought to “fund land acquisition and infrastructure costs.” The plans were also “relying on an expanded Boston Convention and Exhibition Center”–a deluxe Patrick administration venture that the Baker administration has canned.

Mr. Dempsey was having a field day, saying, “Boston 2024 is not going to fix the T…In London and Vancouver the Olympics Village financing was from public funds…Olympics budgets are guaranteed by taxpayers…The more you learn about 2024 Olympics, the less you like it.” Ben Franco spoke for the Board of Selectmen, simply stating that the board “urges favorable action” on Article 19.

Speaking for the Advisory Committee, Amy Hummel of Precinct 12 said that “the money and resources spent would benefit the Olympics shadow.” The current plans have “no real public accountability,” she contended, and “Brookline will be heavily impacted…The biggest concern [of the Advisory Committee] is the taxpayer guarantee…Lack of public process is unacceptable.”

Olympics boosters did have some friends. Charles “Chuck” Swartz, a Precinct 9 town meeting member, advised caution, saying, “Who knows what will happen in Boston? We don’t have to make this decision now.” Susan Granoff of Precinct 7, attending her first town meeting, said, “Let’s give Boston 2024 more time.” The Olympics, she contended, “would create thousands of jobs and bring billions of dollars…It’s private money being donated.”

Most town meeting members were not convinced by such claims. They approved the resolution in an electronically recorded vote, 111 to 46, with 7 abstentions. Katherine Seelye’s story in the New York Times on Saturday, May 30, may have deep-sixed the Olympics plans. She included the Business Journal disclosures and cited the Brookline town-meeting resolution.

Other actions: Under Article 9, town meeting voted no action on a proposal to make holders of state and federal offices living in Brookline automatic town meeting members. After encountering opposition, Ernest Frey, a Precinct 7 town meeting member, offered a “no action” motion on the article that he and other petitioners had submitted.

Article 17 proposed a resolution seeking changes to Sections 20-23 of Chapter 40B, the Comprehensive Permit Act of 1969 that was encouraged by the late Cardinal Cushing. Nancy Heller, the principal petitioner, now a member of the Board of Selectmen, had not seemed to recognize the complexity of the issues and soon agreed to refer the article to the Planning Board and Housing Advisory Board. That was the course taken by town meeting.

Under Article 11, town meeting voted to create a Crowninshield local historic district, on petition from the owners of about 85 percent of the houses on Crowninshield Rd., Adams St., Elba St. and Copley St. Speaking in favor were David King, chair of the Preservation Commission, Robert Miller, a Precinct 8 town meeting member, George White, a Precinct 9 town meeting member, John Sherman and Katherine Poverman, both residents of Adams St., Angela Hyatt of Precinct 5 for the Advisory Committee and Nancy Daly for the Board of Selectmen.

Dr. White recalled that the neighborhood had been home to well-known writers and artists. He mentioned novelist and short-story writer Edith Pearlman, an Elba St. resident for many years, and after a little prompting the novelist Saul Bellow, winner of a Nobel Prize in literature, who lived on Crowninshield Rd. in his later years. Only Clifford Ananian, a Precinct 10 town meeting member, took exception. He said preserving “single-family homes is a waste of a valuable resource,” although he lives in one of those homes. Despite the objection, the town meeting vote to create the district proved unanimous.

– Beacon staff, Brookline, MA, May 30, 2015


Katherine Q. Seelye, Details uncovered in Boston’s 2024 Olympic bid may put it in jeopardy, New York Times, May 30, 2015

BBJ staff, Boston 2024 report highlights need for public funding, expanded BCEC, Boston Business Journal, May 28, 2015

Matt Stout, Gov. Baker puts brakes on $1 billion convention center plan, Boston Herald, April 29, 2015

Warrant report with supplements, May 26, 2015, town meeting, Town of Brookline, MA

Age-Friendly Cities: health fair, outreach, snow and parks, Brookline Beacon, May 25, 2015

Board of Selectmen: police awards, paying for snow, Brookline Beacon, May 20, 2015

Board of Selectmen: new members and leadership, Brookline Beacon, May 13, 2015

Craig Bolon, How we voted, costs of business, Brookline Beacon, May 10, 2015

Craig Bolon, Field of dreams: a Coolidge Corner parking garage, Brookline Beacon, May 4, 2015

Board of Selectmen: landmarks, permits and town meeting controversy, Brookline Beacon, April 22, 2015

Board of Selectmen: farmers’ market, promotions, golf and town meeting, Brookline Beacon, April 29, 2015

Advisory Committee: budgets, bylaws and lectures, Brookline Beacon, April 14, 2015

Advisory subcommittee on human services: tap water and bottled water, Brookline Beacon, April 12, 2015

Advisory Committee: new park land for Putterham neighborhoods, Brookline Beacon, April 10, 2015

Advisory subcommittee on planning and regulation: new historic district, Brookline Beacon, March 31, 2015

Craig Bolon, Advisory Committee: in a generous mood, Brookline Beacon, March 19, 2015

Board of Selectmen: Hancock Village, budget reviews, Brookline Beacon, March 4, 2015

Solid Waste Advisory Committee: recycling and trash metering, Brookline Beacon, September 3, 2014

2014 annual town meeting recap: fine points, Brookline Beacon, June 7, 2014

Craig Bolon, Recycling makes more progress without trash metering, Brookline Beacon, April 11, 2014

Age-Friendly Cities: health fair, outreach, snow and parks

A regular meeting of the Age-Friendly Cities Committee on Wednesday, May 20, started at 10:00 am in the fourth-floor conference room at Town Hall, with just over half the members on hand, joined by a few visitors. There have been three recent resignations, leaving seats open for new volunteers. The committee made Brookline the first New England community to become part of a U.N. World Health Organization network, in 2012.

Health fair: Nancy Daly, a member of the Board of Selectmen who co-chairs the committee with sociologist Frank Caro, reviewed the recent Senior Expo Health Fair, conducted at the Brookline Senior Center Thursday, May 14. Dennis Selkoe, a neurologist practicing at Brigham and Women’s Hospital, spoke about warning signs for Alzheimer’s disease. Dr. Selkoe is the husband of Polly Selkoe, Brookline’s assistant director for regulatory planning.

Ms. Daly characterized the Alzheimer’s talk as a “down-to-earth style,” describing how to recognize signs of memory problems. A presentation on nutrition had been harder to follow, she said, with several descriptions of laboratory studies using mice. Members of the Police Department and Fire Department, who came to discuss emergency responses, “got stuck in the back,” according to Ms. Daly.

Outreach: Henry Winkelman, a committee member, described the panel discussion he recently helped to produce as a Brookline Interactive Group video. It features Ms. Daly, Dr. Caro and committee member Matthew Weiss, describing the committee’s missions. As Mr. Weiss put it, early in the panel discussion, “Why would an older person want to live in a retirement community, when a person can live in Brookline?”

The 28-minute video is available to the public at any time of day on the Web, from Brookline Interactive. It mentions recent Brookline efforts focused on health, safety, housing and transportation. Nearly all the discussion concerns needs of older adults, but on sidewalk snow clearance Mr. Weiss remarked, “What older adults want is what everybody needs and [doesn't] necessarily ask for.”

Dr. Caro observed, “When people get older, they’re willing to take a look at some very basic things we tend to take for granted…When we’re younger, we’re athletic enough so that we can compensate for…bumps in the road.” Participants seemed to see practical challenges. However, Dr. Caro mentioned one effort to begin soon, a senior transportation program “in collaboration with Newton.”

This video did not touch on any of the environmental issues that have gathered force in town meeting over the past several years, although Dr. Caro, formerly a Precinct 8 town meeting member and now a Precinct 10 town meeting member, has contributed to some of them. According to Mr. Weiss, the next video in the series, expected in early summer, will focus on Brookline’s parks and its recreation services.

Snow, sidewalks, streets and parks: As indicated in the recent video, snow clearance from sidewalks continues as a perennial concern for the committee. Members discussed Article 12 pending for the annual town meeting that starts Tuesday, May 26. Recently, the Board of Selectmen has backed away from some enforcement provisions of the bylaw changes they proposed, but Tommy Vitolo, a young Precinct 6 town meeting member, has offered amendments to revive those changes.

The discussion veered toward other street and sidewalk issues. Dr. Caro spoke about “some sidewalks that need repairs” and about “hazardous intersections.” Another committee member was concerned about involving the Transportation Board, saying it was an “invitation to alienation…Citizens…think that it’s hopeless to get something done there.”

Toward the close of the meeting, Dr. Caro described an “initiative with parks…a brochure on age-friendly features,” mentioning the Minot Rose Garden, Hall’s Pond, Freeman Square, the Brookline Reservoir, the Olmsted bicycle path and the new Fisher Hill Park. Saralynn Allaire, a Precinct 16 town meeting member, spoke about an effort to make the Putterham Library garden “ADA-compliant,” meaning accessible to people who use wheelchairs.

– Beacon staff, Brookline, MA, May 25, 2015


Board of Selectmen: police awards, paying for snow, Brookline Beacon, May 20, 2015

Board of Selectmen: new members and leadership, Brookline Beacon, May 13, 2015

Board of Selectmen: new 40B project, town meeting reviews, Brookline Beacon, March 30, 2015

Matthew Weiss, Frank Caro and Nancy Daly, Age-Friendly Cities Committee background and missions, Brookline Age-Friendly Cities Committee, April 23, 2015 (28-minute video)

Matthew Weiss, First annual progress report of Brookline Age-Friendly Cities initiative, Brookline Age-Friendly Cities Committee, February, 2014

Frank Caro, Nancy Daly and Ruthann Dobek, Narrative supporting Brookline’s application for participation in the World Health Organization’s Age-Friendly Cities Program, Brookline Age-Friendly Cities Committee, November, 2012 (1 MB)

Transportation: good intents, cloudy results and taxi rules

If you’re curious to see what suburban-oriented government looked like in the 1950s and before, visit the Transportation Board–where it can sometimes seem as though antique outlooks have been preserved in amber. Within the past week–at public meetings of two of the town’s many other boards, commissions, committees and councils–some members complained openly about unresponsive behavior. Complainers even included a member of the Board of Selectmen, which appoints members of the Transportation Board.

Launching a board: Oddly enough, the Transportation Board had been launched as a reform against arrogance, or so some people said at the time. Since the emergence of motor vehicles in the early twentieth century, Brookline struggled with regulation. Under Chapter 40, Section 22, of the General Laws, town meetings may enact bylaws and boards of selectmen may adopt “rules and orders” concerning traffic and parking.

The workload of regulating motor vehicles soon became too much for the Board of Selectmen in Brookline. During the 1920s, it delegated work to a Traffic Committee consisting of four department heads and the chairs of the Board of Selectmen and Planning Board. A surge in automobiles after World War II challenged that approach.

A 1968 town meeting scrapped the Traffic Committee and a later commission, seeking so-called “home rule” legislation to create a Department of Traffic and Parking, headed by a full-time director, and a volunteer Traffic Appeals Board. That approach also failed. A wave of neighborhood protests over traffic and parking grew stronger, fueled with accusations of arrogant behavior by the full-time “traffic czar.”

The fall town meeting of 1973 again petitioned for legislation: this time to create a Transportation Department–more recently the Transportation Division in the Department of Public Works–and a volunteer Transportation Board. So far, the arrangements under a 1974 law have held. Under that law, the Board of Selectmen acts as an appeals board, and appeals have been rare. One could be coming soon, though.

Building a peninsula: The intersection where Buckminster and Clinton Rds. join just west of the High School has often been seen as a safety issue. Drivers may careen through without seeming to look and sometimes without stopping at the single stop sign, found when coming into the intersection from Clinton Rd. Heading the other way, downhill on Clinton Rd., drivers can easily exceed the posted 30 mph speed limit.

One classic method to slow the speeds is a traffic island, making drivers dodge around. More modern, so-called “traffic calming” might use a raised intersection, “speed bumps” or “curb bulbs.” Apparently, none had looked to Brookline’s current engineers like the right approach. Instead, they had sold the Transportation Board a giant peninsula, blooming out the sidewalk from the northeast sides of Clinton and Buckminster Rds. at the junction. Daniel Martin, a Brookline engineer, called it a “curb extension”–clearly a highly extensible phrase.

Of course, any change to a residential street is also a change to someone’s home. The home nearest the giant peninsula is 79 Buckminster Rd. Its owners are not pleased, to say the least. From their viewpoint, the huge peninsula would leave their lot “landlocked” without street frontage. It might work technically only because they now have a garage beneath the back of the house, reached by a driveway shared with their neighbors at 3 Clinton Rd. Were they to install a conventional driveway, somehow it would have to invade the peninsula.

Good intents, cloudy results: As the rehearing on the peninsula plan Thursday, May 21, went on for more than an hour and a half, neighbors recalled street changes with bad side-effects. In a winter with heavy snow like the last one, parts of streets narrowed to calm traffic became dangerous or impassible. Judy Meyers, a Precinct 12 town meeting member who lives downhill at 75 Clinton Rd., said she was “very sympathetic” to the owners of 79 Buckminster. However, “Clinton Rd. has been a speedway…[and] I don’t love speed bumps.”

Compared with alternatives, the peninsula plan looks like costly efforts invested for cloudy results. Several years ago, similarly costly measures on Winchester St. slowed speeding only within around a hundred feet from obstacles. Unless something more is done, Ms. Meyers, who lives quite a bit farther than that from the intersection at issue, is not likely to see much improvement.

In the past, Transportation sometimes waxed less bureaucratic and became more effective. Instead of seeing roadblocks in its path–claiming you can’t do this and you can’t do that–it did the impossible anyway. In North Brookline, an alert observer can find 25 mph posted speed limits and intersections with stop signs on the wider street rather than the narrower one. Those were inexpensive, practical solutions to vexing problems.

On May 21, however, certifiable experts certified nothing more could be done, and the vote went 2 to 4 against reconsidering the peninsula plan. Only board members Ali Tali and Pamela Zelnick voted in favor. At other places and in other times, such events became subjects of land damage lawsuits, but Brookline offers a further course: administrative appeal.

If the owners of 79 Buckminster Rd. carry an appeal, they will be dealing with the Board of Selectmen. Its newly chosen chair, Neil Wishinsky, recently told another group, “My political thinking is to stay away from parking.” For much of the last 90 years, Mr. Wishinsky would have found kindred spirits on his board, but now such duties come with the job.

Taxi rules: After negotiations with taxi owners, Todd Kirrane, Brookline’s transportation administrator, brought in a substantially revised draft of new rules. The changes tend to lower the added costs to taxi companies but will also provide lower standards of service. A key point of dispute has been new requirements for vehicles with ramps for people who use wheelchairs.

The revised draft has vague and inconsistent language. In some places, it speaks of “ramped taxicabs,” saying they might also provide a “lift.” In others, it refers to “WAV taxicabs”–never defining that but apparently meaning “wheelchair-accessible vehicle.” It’s unclear whether a “ramped taxicab” will necessarily be a “WAV taxicab” or vice-versa. Possibly the regulations did not undergo legal reviews.

As first proposed, the rules required one “ramped taxicab” for every ten licensed vehicles. Operators objected to the extra costs, some saying they got no requests for such vehicles in as much as ten years and probably would never get any. Members of the Commission for the Disabled have called that a self-fulfilling prophecy, since word had gotten around that there were no such Brookline taxis.

Mr. Kirrane stated that Boston now has a standard of one “WAV taxicab” for every 18 licensed vehicles. In Brookline, the revised draft called for one “ramped taxicab” for every 25 licensed vehicles. Saralynn Allaire, a Precinct 16 town meeting member and a member of the Commission for the Disabled, asked how the rule would be implemented. Mr. Kirrane said the rule would come into effect July 1 of next year and would not apply to a company with fewer than 25 licensed vehicles.

The board reviewed a perennial controversy: a limit on the number of licensed taxis. At least two members of the board–Joshua Safer, the chair, and Ali Tali–seemed to favor what one called a “market system,” with no limit. The revised draft proposed a limit of two licensed taxis per 1,000 Brookline residents. Brookline’s population map, based on the 2010 federal census, shows 58,732 residents–indicating 117 taxi licenses.

Board member Christopher Dempsey criticized the limit, saying it was “picked out of the air” and that “a population metric is not a very effective one.” He offered no other approach. His motion to strike the metric failed on a 1-4-1 vote, with board member Scott Englander abstaining. The board adopted the revised taxi rules, effective July 1, by a unanimous vote. After the meeting, Joe Bethoney, owner of Bay State Taxi, Brookline’s largest company, confirmed that he planned to continue in business under the new rules.

– Craig Bolon, Brookline, MA, May 23, 2015


Complete Streets: seeking better sidewalks and bicycle paths, Brookline Beacon, May 12, 2015

Craig Bolon, Changing the rules: new taxi regulations, Brookline Beacon, April 6, 2015

Craig Bolon, Brookline government: public information and the committee forest, Brookline Beacon, August 1, 2014

David J. Barron, Gerald E. Frug and Rick T. Su, Dispelling the myth of home rule, Rappaport Institute (Cambridge, MA), 2003

Craig Bolon, Vehicle parking in Brookline, Brookline Town Meeting Members Association, 2000

Board of Selectmen: police awards, paying for snow

A regular meeting of the Board of Selectmen on Tuesday, May 19, started at 6:40 pm in the sixth-floor meeting room at Town Hall. Members of the police force came with families and friends for the annual presentation of awards. The board approved plans to cover large budget overruns for snow clearance from last winter.

Several board members had visited Public Works exhibits earlier in the day, at what has become the department’s annual “open house” mounted at the Municipal Service Center, 870 Hammond St. Among the more popular items was a giant “snow eater” machine that had marched around some of the most clogged streets last winter, tossing tall heaps of snow into dump trucks.

Police awards: Daniel O’Leary, the police chief, presented awards to several members of the force and introduced them to the board and the public. As he explained, those honored by Brookline had been nominated by fellow members of the department, following an approach Mr. O’Leary introduced several years ago.

Police Officer of the Year is David Wagner of the Detective Division. According to Mr. O’Leary, he has been a source of morale in the department–mentoring younger members of the force and taking on special patrol duties while maintaining the evidence archives as his main job. Detective Wagner and Sergeant Russell O’Neill received commendations for exceptional service, the fifth for each of them.

Andrew Lipson, recently promoted a deputy superintendent heading the Patrol Division, was awarded a medal of valor. According to the chief, while investigating a complaint he had been attacked by a suspect armed with a knife. He disabled the suspect with a shot from his service pistol–a rare instance of the use of arms in the Brookline department. The suspect was given first aid and was taken into custody. Mr. Lipson also received a commendation for another incident, his twentieth. According to the chief, that is the most received by a member of the force.

Mr. O’Leary introduced Julie McDonnell of the Detective Division. She had been honored on May 15 by the U.S. Attorney’s Office for Massachusetts. After starting an investigation in 2013, she broke a sex-trafficking racket based in the Boston area and in Rhode Island, freeing two juveniles who were being advertised for prostitution by a Boston street gang.

Personnel, contracts and finances: The board appointed Nathan Peck a member of the Building Commission and appointed David Pollack, Mary Ellen Dunn, Roberta Winitzer and Arden Reamer to the Devotion School Building Committee, filling vacancies. Mr. Pollack is a member of the School Committee and former member of the Building Commission. Ms. Dunn is the incoming Deputy Superintendent for Administration and Finance at Public Schools of Brookline. Ms. Winizer is a former member of the Board of Library Trustees.

Patrick Dober, director of the Brookline Housing Authority, asked for waivers of inspection fees. He said the authority expects to complete a new development at 86 Dummer St. by the end of the year. The authority wants to free up funds to support its service programs. The board agreed.

Stephen Cirillo, the town’s finance director, asked for approval of an agreement for payment in lieu of taxes (PILOT) for the Dummer St. project, which is partly owned by a private party. He said payments would start at about $0.012 million and rise to about $0.025 million in the second year. Mr. Cirillo also asked for approval of a PILOT agreement with Children’s Hospital for a house at 132 Carlton St., formerly owned by B.U., that is to become a family inn for patients. The board approved both agreements. Mr. Cirillo also got hiring approval to replace an office assistant who is retiring.

Melissa Goff, the deputy town administrator, presented a plan to pay large budget overruns for snow clearance from last winter. The board approved transfers totaling $0.34 million among Public Works accounts and requested a $1.4 million reserve fund transfer, approved by the Advisory Committee the same evening. Other funds are proposed under an article to be heard by the annual town meeting starting May 26.

Management and town meeting issues: The board had held open its position on Article 7, budget amendments, pending Ms. Goff’s reviews. They voted to recommend applying $1.1 million from overlay surplus against the snow removal deficit, leaving about $0.4 million to be made up. Ms. Goff anticipates that a grant from the Federal Emergency Management Agency will cover that difference.

For the fourth time, board members again considered a recommendation on the Article 9, filed by Ernest Frey, a Precinct 7 town meeting member, and other petitioners. It asked to make holders of state and federal offices living in Brookline automatic town meeting members. Mr. Frey has encountered widespread opposition and asked the board to join the opposition and recommend no action on his article. Board members agreed.

Board members also reconsidered a recommendation on Article 12, changes to the snow removal bylaw, which had been filed in their names. Again they backed away, supporting an Advisory Committee position that gutted most of the original proposal, leaving relatively weak enforcement, modest fines and no administrative appeals.

On Article 14, proposing bans on bottled water, petitioners Jane Gilman, a Precinct 3 town meeting member, and Clinton Richmond, a Precinct 6 town meeting member, asked for support of a bylaw much reduced in scope. Now it would ban only spending town funds on water in one liter or smaller plastic bottles for use in offices. The Board of Selectmen agreed to recommend that approach.

Licenses and permits: Owners of Trader Joe’s in Coolidge Corner got approval for a change in the alcoholic beverage manager, now to be Micah O’Malley. Three restaurants were allowed new outdoor seating: Giggling Rice at 1009A Beacon St., Starbucks at 473 Harvard St. and Sunny Boy at 1632 Beacon St. The Starbucks location and Lee’s Burger of 1331 Beacon St. were allowed increases in indoor seating.

A new restaurant license was approved for Steve Liu of Malden, to be called WOW Barbecue at 320 Washington St., across from Town Hall. Mr. Liu, originally from Beijing, has run a Malden restaurant under the same name since June, 2014, and runs a food truck under that name around Chinatown in Boston, B.U. and Northeastern. The best known dish is traditional Chinese lamb skewers with cumin.

At the hearing, Mr. Liu did not hire a lawyer but represented himself along with Yi Peng, to be an alterna