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 showâ€™s in town. Weâ€™ve seen the performance. Thick proposal documents are presented, residents sit through meetings about â€œimpacts studies,â€ special advisory groups are appointed to represent the â€œcommunity voice,â€ there are detailed comment letters and impassioned testimony. Then, shazzam! A tower pops out of a tiny site! The audience is amazed! Wait, didnâ€™t we all say no? How could they do that? And look at the zoning code; isnâ€™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; thatâ€™s where the big money is. The BRA doesnâ€™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 wouldnâ€™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 doesnâ€™t qualify under the legal â€œhardshipâ€ criterion can be challenged in court; most huge projects wonâ€™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? Isnâ€™t that â€œspot zoning?â€ Not if itâ€™s called â€œplanning.â€
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-hereâ€™s where the magic happens: The public process, our audience participation, constitutes the â€œplanningâ€ 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, itâ€™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 â€œplanning,â€ 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 BRAâ€™s hocus pocus. We consent to being distracted by its made-up review requirement, and thus we legitimize the outcome. Without the â€œcommunity planning process,â€ and the â€œpublic benefitsâ€ that the BRA decides will outweigh the burdens of the project, the BRAâ€™s zoning finagles would stand starkly exposed as â€œspot zoning,â€ and often also â€œcontract zoning,â€ i.e., zoning sold in trade for public goods and services (also unlawful).
We should boycott. We need a citizensâ€™ 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 BRAâ€™s magic show. Stand up and say, â€œThis violates our zoning laws, and you donâ€™t qualify for a variance. Come back when you have a project that respects the law.â€
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.