Columnists :: City Streets
Boycott that BRA magic by Shirley Kressel
contributing writerWednesday Jun 10, 2009 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 important, 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."
Zoning is a codification of local planning. Even site-specific zoning can be considered legitimate if it is shown to be consistent with the city’s plans. And the planning agency-here, the BRA, since it grabbed up the planning board in 1960-gets to say what is the plan.
The BRA can write into the zoning code (it staffs and advises the puppet Zoning Commission, which nominally approves the code) site-specific loopholes for almost every occasion (Planned Development Area, Chapter 121A, U-District, Institutional Master Plan, etc.), and, if that’s not enough, it simply amends the zoning to match the project. Then it can declare this custom zoning to be consistent, as the code itself requires, with its "general plan for the city as a whole" (which doesn’t exist) or bits thereof. Think "Alice in Wonderland": planning means what the BRA says it means.
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.)
Reach out to other neighborhood groups and stick together. Don’t let the developer or BRA meet with sub-groups or individual representatives, to divide and conquer; they will dub the first to be co-opted as the "community voice." Don’t accept those flattering appointments to IAGs (Impact Advisory Group) and CACs (Citizen or Civic Advisory Group) and other bogus community advisory groups, and don’t accept their recommendations and reports as meaningful. Don’t let the developer or BRA dangle benefits of any kind before you; they are a ruse. Don’t let the mayor send you off to negotiate for public services-schools, parks, libraries, etc.-from developers; public services are not their job, but his, and we can easily afford them if we don’t squander our money.
The tower projects now on the table would be among the tallest in the city: Government Center Garage, Harbor Garage, Simon Copley Mall, Christian Science Center, North Station, the thousand-foot (or whatever the Federal Aviation Administration will allow) Winthrop Square tower, all wildly beyond the zoning. Yet, we keep trooping into the theater, peering intently at shadow studies, lamenting the traffic projections, writing out our benefits wish-lists. We have been hypnotized.
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."
Don’t be distracted by irrelevant "process" while your hard-won zoning protections disappear and elephantine towers pop up out of nowhere. Let’s picket the theater, and replace the hocus-pocus with planning that’s real.
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.
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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