The early part of Tuesday’s Lowell City Council meeting was dominated by a discussion of a memo from the City Solicitor’s office in response to an earlier motion from Councilors Erik Gitschier and Corey Robinson that the city consider adopting a “construction employment” ordinance like that in place in the town of Billerica.

The Billerica rule, which may be found in Article XX of the 2023 version of the town by-laws,  requires that on any construction project funded by the town or administered by the town (i.e., funding comes from the state or federal government), the developer, contractor, and subcontractor shall allocated a minimum of 25 percent of the “total construction employee work hours in each craft” to Billerica residents. The town has created a “Billerica Residents Employment Monitoring Committee” to oversee the requirement. There is a procedure whereby the developer can request a waiver if they are unable to find sufficient worker-residents to meet their needs, however, there is also a fine of $300 per day for any violation.

The City Solicitor’s memo in response to the motion unequivocally stated that such a requirement would be unconstitutional, concluding the memo with this paragraph:

In sum, the Law Department strongly advises against enacting an ordinance containing a residency requirement for public construction projects. The Courts have repeatedly struck down municipal ordinance’s that attempt to do so as unconstitutional. Most notably, and as mentioned above, the City of Lowell went through this exact same situation back in 2001. While some communities continue to have ordinances mandating residency requirements for public construction, these ordinances do not appear to have been legally challenged. If the City were to again adopt such an ordinance, it would likely subject the City to costly litigation regarding the ordinance’s compliance with the Privileges and Immunities Clause.

Councilors thanked the solicitor for his advice and then promptly ignored it, voting unanimously that the solicitor should draft the requested ordinance and bring it back to the council for further action.

The basis of the solicitor’s opinion was that the proposed ordinance would violate a little-known and seldom invoked portion of the United States Constitution called the Privileges and Immunities Clause which states, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several states.” A 1985 US Supreme Court decision, Supreme Court of New Hampshire v. Piper, helps explain its purpose.

Kathryn Piper lived in Vermont, just across the border from New Hampshire. When Piper graduated from law school, she took and passed the New Hampshire bar exam, however, she was denied admission to the bar because a New Hampshire Supreme Court rule required all applicants for admission to the New Hampshire bar to be residents of the state. Piper sued on the grounds that the residence requirement violated the Constitution’s Privileges and Immunities Clause.

The case reached the U.S. Supreme Court which decided in favor of Piper, holding that the practice of law was a “privilege” protected by the Privileges and Immunities Clause. This clause prevents a state from discriminating against citizens of other states in favor of its own citizens with respect to certain fundamental rights and essential activities. The Court considered the ability to earn a livelihood to be such a fundamental right. The court further held that New Hampshire’s justifications for the rule were inadequate and that the state’s objectives could be achieved through less discriminatory means.

For a couple of reasons, the Piper case was of particular interest to me. First, it was decided in 1985, midway through my time in law school. It was understood that newly decided Supreme Court cases often found their way into bar exam questions, so we studied this case closely. Second, people from Lowell often got in trouble in New Hampshire and needed lawyers who could represent them there. This caused Lowell lawyers to lose clients and business. But thanks to Kathryn Piper, when I graduated from law school in the summer of 1986, the path was clear to be admitted to practice in New Hampshire while maintaining residency in Lowell. I and many of my fellow graduates that year and thereafter did just that.

Getting back to the city council, it is understandable that its members want Lowell residents in the building trades to benefit from city of Lowell projects. Furthermore, councilors are not obligated to follow the advice of the solicitor, however, unwise ignoring the solicitor’s advice may be.

If councilors do choose to enact whatever ordinance the solicitor drafts in accordance with their mandate, councilors should be more strategic than simply saying, we don’t like the solicitor’s answer so we’ll ignore it. Perhaps a follow up request to the solicitor to identify the factors a court would consider in deciding if an ordinance violated the Privileges and Immunities Clause would allow councilors to put that kind of information on the record to support their vote. That way, when trying to defend the city in any subsequent lawsuit, the solicitor’s office would at least have something to use to fight for the city rather than just trying to keep the amount damages low, which seems the likely trajectory of this matter should the council continue down this path.

While it seems that the Billerica ordinance has not yet been challenged in court, that does not mean a similar ordinance in Lowell would  escape legal scrutiny.

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The council also received a presentation from the Department of Development Services. I found two items to be particularly important:

The City Manager’s Neighborhood Impact Team Walks which are conducted from mid April through September at 5 pm on Tuesday nights in denser neighborhoods where trash, parking issues, and building safety issues often arise. There were 18 walks conducted in 2024.

Saturday building and health inspections are conducted to assist landlords who might not be available on weekdays to participate in inspections but also to discover work being done without permits. In 2024, these staffing was done on 43 Saturdays. Among other things, 108 properties were identified as working without permits. This is important because the city derives much-needed revenue from permits, but more importantly that the permitting process ensures that work is done safely and in accordance with the building code. No one likes the added cost of permits and inspections until there is a fire or some other tragedy that could have been prevented if work had been done in accordance with the building code.

State law requires all properties with three or more units to register with the city and obtain a Certificate of Inspection which is conducted by the Building Department and the Fire Department to ensure that all safety measures are in place and that there are no hazards. Once a building gets such a certificate, it is good for five years. This report indicates a high level of compliance although about 5 percent of applicable buildings in the city have failed to comply. They are a priority for the department.

In the late 1990s during one of the city’s recurring housing booms, I was teaching a course at Middlesex Community College. The course was criminal law, but many other law-related topics arose. At the end of class one day, one of the students – she was in her early 30s and was always actively engaged in discussions – approached and proudly reported that she and her husband had just bought their first house. After I congratulated her, she added, “It’s legally a two-family but we created another apartment since the rent from it will help us make the mortgage payments.”  She quickly added, “I have to get to my next class” and headed off.

I confess to being left speechless, not because someone had created an illegal apartment – I had a sense that was happening all over the city – but that someone who did it was comfortable in telling someone who was not a confidential associate about it without any recognition that there was something wrong about it. To me, that suggested a culture of lax enforcement in the city. People will always try to cut corners with most rules, but consistent, fair and visible enforcement of those rules by the authorities keeps the rule-breaking to a minimum.

My sense from the Developmental Services presentation is that the department has struck the proper balance between enforcing the rules and being helpful to residents. There were several other items covered in the report which is available online.

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On Wednesday, the Lowell Sun published a story from the State House News Service about efforts by the MBTA to make more bus routes fare-free. (“MBTA: Fare-free buses more viable systemwide than select routes”). As the title of the story indicates, MBTA officials argue that ridership would increase substantially if all buses were free to ride rather than just on select routes. The T submitted its findings to the State Legislature as justification for an appropriation to offset the loss of fare revenue.

Lowell is fortunate to already be the beneficiary of a fare-free program. Thanks to the governor and state legislature, the Lowell Regional Transit Authority back in December 2024, was given funding to run a system wide fare-free pilot program. As it now stands, this program will continue through the end of this September. This means that anyone can ride the LRTA’s red, white and blue colored buses anywhere in the city or the region at no charge.

It’s unfortunate that the city council, for all the time it spends trying to address problems with traffic and parking, hardly ever mentions LRTA buses as an alternative means of transportation. If more people rode the bus, there would be less traffic which would benefit everyone. Being able to jump on a bus without having to pay anything is a great way to introduce people to the service.

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Also in the Sun this week was an obituary of Herbert Zarkin, who died in Florida at age 86. Zarkin was born in Haverhill but grew up in Lowell, graduating from Lowell High in 1956. Zarkin then attended the University of Pennsylvania’s Wharton School of Business. His first job after graduation was as a stock boy at Zayre Department Store (the Zayres in Lowell was at Central Plaza on Church Street). Zarkin rose to be store manager and then chairman of the Zayre Stores Division. Then, in 1990, he became president of BJ’s Wholesale Club.

In 2006, Zarkin was inducted into the Lowell High Distinguished Alumni Hall of Fame. Besides coming to Lowell to accept that honor and to speak with students, Zarkin made a substantial donation to the school to be used half for the benefit of students and half for the benefit of teachers. Each year thereafter, student groups and teachers would submit funding proposals to a committee formed to administer the grant. As a result, the educational and professional experiences of many students and teachers were significantly enriched by Zarkin’s generosity.

Coincidentally, one of the other distinguished alumni inducted alongside Zarkin in 2006 was Tom Sexton, LHS class of 1958. Tom found his way to Alaska where he became a distinguished teacher of English and Creative Writing at the University of Alaska and the Poet Laureate of that state. Tom died in Alaska six weeks ago. Paul Marion wrote a moving tribute to Sexton, who published many poems about his hometown of Lowell. Paul’s remembrance was posted here on March 25.

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Richardhowe.com welcomed a new contributor this week. Steve Edington, past president of Lowell Celebrates Kerouac, shared an essay comparing Lowell to West Virginia, where he grew up.

Another essay, “Growing up in Lowell in the 1950s and 60s” by Leo Racicot will stimulate nostalgic memories for longtime residents and will provide valuable historic context for those new to the city.

Louise Peloquin continues supplying translations of relevant articles that appeared 100 years ago in L’Etoile, Lowell’s French language newspaper. This week’s article shows the city council struggling with budget cuts.

For those interested in poetry, there’s a group of new poems from Chath pierSath; and Terry Downes has the May installment of his first-Friday-of-the-month baseball poems, “Early Season.”

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Lowell Cemetery tours this spring:

On Sunday, May 18, 2025, at 10 am, I’ll lead a Memorial Day themed tour that highlights some of the military veterans buried in the cemetery.

On Saturday June 7, 2025, and again on Sunday June 8, 2025, both at 10 am, I’ll lead the traditional Lowell Cemetery spring tour (same tour on both days).

All three tours will begin inside the Lawrence Street Gate (1020 Lawrence Street, Lowell, for your GPS). Plenty of parking is available within the cemetery. The tours are free and require no advance registration. They last 90 minutes and include a moderate amount of walking. The tours will be held rain or shine (but not in thunderstorms or severe downpours). Further information is available on the Lowell Cemetery website.