Columnists :: City Streets
Living in ’The Matrix’ of the BRA by Shirley Kressel
contributing writerWednesday Mar 4, 2009 It’s so hard to describe the Boston Redevelopment Authority (BRA), because there is nothing like it in all of America. Nowhere else has a quasi-private urban renewal authority been given the municipality’s powers of planning, zoning and project approval; it’s effectively outsourcing your brain. In other cities with urban renewal authorities (not every city has one), the agency proposes specific projects in Urban Renewal Plan areas and seeks City Council approval. Here, City Councilors line up at BRA hearings to testify, express gratitude, and beg (oh, please, a little more affordable housing!).
I usually call the BRA "an imperial power of which Boston is the sole colony." But recently I found a better analogy. In the sci-fi movie, "The Matrix," humans create machinery that eventually takes them over. It programs them to see only an artificial, rosy world while their actual world decays, letting them think they are really making their own decisions for their lives in order to keep them docile while it steals their energy and resources (and wrecks their nice historic buildings).
That’s what the BRA does, keeping us plodding along in a simulated world of rules and procedures, thinking we are "participating" and "commenting" and contributing "input" on our city’s development while our energy is sapped and our real environment is transformed beyond recognition.
The "public process" surrounding the Prudential Center provides a stark illustration.
The BRA, created in 1957 to capture federal money for urban renewal (bad enough!), also grabbed up our planning board in 1960. It was done via a provision tucked into legislation giving the Prudential Insurance Company a 40-year tax exemption under Chapter 121A (meant to subsidize affordable housing in poor neighborhoods). The provision abolished the planning board and gave all its powers and properties to the BRA, elbowing the legislative body, the City Council, out of the way. The purpose was to preempt planning, to be sure real planning didn’t get in the way of redevelopment. Indeed, for over a half century, it hasn’t. And although urban renewal was intended as a temporary program to jump-start the post-war economy with 40-year plans, the BRA’s tentacles now curl around every important financial and regulatory activity in the city-with no public accountability.
Above all, the BRA has eliminated citizens’ rights in city planning and development. Under an elected City Council, zoning is a legislative act, and the courts rightly avoid intervening, leaving the remedy to the voting booth. Planning and zoning normally have this built-in political accountability. But in Boston, zoning is not a legislative act; it’s an executive operation, under the mayor and his appointed Zoning Commission, a puppet body stacked with real estate interests, staffed and advised by the BRA. We lost the legislative level of accountability, but the courts still defer to zoning decisions as political actions.
The constitutionality of this power shift was questioned by the legislature, and astoundingly, it was upheld by the state Supreme Judicial Court, on the grounds that different communities can be justifiably allowed by the state to structure their governance differently. The equal protection clause of the Fourteenth Amendment does not, the Court opined, prevent reasonable classification of subjects of legislation, nor preclude legislative action providing treatment of problems differently in different communities, in a manner having a reasonable relationship to the objects of the legislation. Different treatment is justified if the conditions in these communities differ sufficiently so as fairly to give rise to the legislative belief that such different treatment is desirable in the public interest, and if the legislation operates equally within each geographical area with respect to persons similarly situated.
Of course, the similarity of persons’ situations is rather subjective, but, circularly, the BRA gets to decide this within the city. So, here we are. For fifty years, Boston, the cradle of democracy, has been teetering on one (the executive) of the three legs of the stool of democratic government, with severely curtailed checks and balances from the legislative and judicial branches in shaping the city’s growth and development.
At the Prudential, changes in the zoning code, tailored to the developer’s proposals, have been approved by the BRA and the Zoning Commission. This is clearly a violation of the Zoning Enabling Act, which gives the power of zoning relief only to the Board of Appeal (a law-enforcement, not law-making, process that formally provides judicial recourse for aggrieved parties). It is spot zoning, which is illegal. Under the Act, the courts may "annul such action [zoning decision] if found to exceed the authority of such commission..." Yet, among several attorneys consulted, none would take the case. Some feared political retribution for challenging the BRA’s zoning-relief-by-zoning powers, but others-even more troublingly-concluded that, although the text of the law might support a suit, the practice of the courts in deferring to local planning and zoning (even project-tailored zoning, which the planning board can simply declare consistent with the city plan) makes success very unlikely.
This power to shield spot zoning from legal recourse is exactly why the BRA took over our planning board. This is why we must take it back.
Occasionally, I hear community folks rejoicing that they won on a development dispute; others hope to learn how they too can prevail in their protests. But it’s more likely that there was another reason for the change in developer’s plans, one that suited the BRA financially, or the mayor politically.
It’s naive to think that community resistance works if it’s sufficiently loud and prolonged. And even if it occasionally does, the David-and-Goliath method of deciding how the city develops is not a path to a coherent city vision. For that, we need the rule of law. It sounds simple. It’s the underpinnings of the democracy we fight and die to "give" to other countries. Yet, we apparently don’t believe in it here. Or don’t practice it, anyway. Maybe politicians, and even some residents, think they’ll do better if every project is a negotiation, and they can grab a few crumbs in the "community benefits" bazaar. It’s another illusion.
Community people make mistakes; they often disagree; they don’t always have the facts; they may be parochial at times. But decision-making should be transparent, part of accountable democratic government. If we don’t want to be "The Matrix," if we want to know what’s really happening and what we’re really doing, if we don’t want to find out one day that we’ve been laboring in a faux "reality" while Boston has been taken out from under us, let’s eliminate the rule of BRA and restore the rule of law. Election season is the time.
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.
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