Let’s boycott the BRA’s Great Magic Show

The skill of a good magician is to set the trick in motion before the audience arrives, and distract the viewers with unrelated activities while it appears to be happening before their eyes.

The Boston Redevelopment Authority (BRA) runs a great magic show. It conjures out of thin air approvals of projects not even faintly resembling the zoning laws, all before the neighborhood audience is even notified that the show’s in town. We’ve seen the performance. Thick proposal documents are presented, residents sit through meetings about “impacts studies,” special advisory groups are appointed to represent the “community voice,” there are detailed comment letters and impassioned testimony. Then, shazzam! A tower pops out of a tiny site! The audience is amazed! Wait, didn’t we all say no? How could they do that? And look at the zoning code; isn’t this ... illegal?

More amazing, the audience members keep returning, project after project, year after year, and are astounded every time the act ends the same way. How can the BRA get away with this? Well, the heart of the trick is actually the audience participation. We let them get away with it, not by agreeing, but by just being there.

Developers want to build tall; that’s where the big money is. The BRA doesn’t want to do a legitimate rezoning of the city at the heights it plans to allow, in part because they fear (possibly wrongly) that the public wouldn’t accept them, but more importantly because that would let developers build by-right, vastly diminishing the political power of the mayor and the BRA to direct development. And asking the Zoning Board of Appeal (ZBA) for a variance is risky. A denial will stop or diminish the project, and a ZBA approval that doesn’t qualify under the legal “hardship” criterion can be challenged in court; most huge projects won’t qualify.

So the BRA has created an assortment of regulatory wands to wave, to tailor the code to the project. But how can it do that legally? Isn’t that “spot zoning?” Not if it’s called “planning.”

The courts, as the judicial branch, avoid interfering with legislative functions, including planning and zoning law-making. So when the BRA wraps its customized zoning within its mantle of planning, it protects the developer, the City and itself by depriving the public of legal recourse. Legal means what the BRA says it means.

And-here’s where the magic happens: The public process, our audience participation, constitutes the “planning” needed to legitimize the tailored zoning. Can we have a volunteer up on the stage? Yes, many, and, of course, the more egregious the proposed zoning violation, the more active the audience participation. Bogus as it is, it’s banked for future use, should anyone try a court challenge. There, on the record, are enough studies, public meetings, and comment letters to prove that there has indeed been “planning,” and the resulting rezoning is not arbitrary and capricious.

So all of us who participate in these project reviews, who attend meetings and submit comments, are enablers of the BRA’s hocus pocus. We consent to being distracted by its made-up review requirement, and thus we legitimize the outcome. Without the “community planning process,” and the “public benefits” that the BRA decides will outweigh the burdens of the project, the BRA’s zoning finagles would stand starkly exposed as “spot zoning,” and often also “contract zoning,” i.e., zoning sold in trade for public goods and services (also unlawful).

We should boycott. We need a citizens’ strike. If we want the rule of law, with the protections that brings, we should not let ourselves be used as participants, but be active as protesters. Carry signs at meetings. Submit letters saying simply that this is not legitimate planning and zoning, and declare this so-called community process null and void. (Do, however, write substantive comments to state agencies if they have jurisdiction.)

Wake up. Stop wasting your time at the BRA’s magic show. Stand up and say, “This violates our zoning laws, and you don’t qualify for a variance. Come back when you have a project that respects the law.”

Shirley Kressel is a landscape architect and urban designer, and one of the founders of the Alliance of Boston Neighborhoods. She can be reached at Shirley.Kressel@verizon.net.