The Planning Board and Neighborhood Opposition

Arriving home from my own meeting sometime after 9 last night, I glanced at my Twitter feed and was surprised to learn that the Lowell Planning Board was still debating the merits of the proposed charter school on outer Middlesex Street just past the Rourke Bridge. I turned on my TV in time to catch the board members explaining their rationale for their impending votes in favor of the proposal in the face of stiff opposition by neighbors, opposition rooted in the additional traffic the school would bring to an area already choked by too many vehicles.

Not surprisingly, the proposal passed unanimously. I say “not surprisingly” because when it comes to controversial proposals before unelected boards, the neighbors rarely prevail. This is not meant as a criticism of the individuals who serve on the planning board. I know all members of the planning board, most for many years, and consider several of them friends. They collectively have a long history of selfless service to the city and have stepped up to do a job few others are willing to do.

That said, I have still come to believe – based on several of my own experiences at diverse times and on my observation of other matters before such boards – that the deck is stacked against neighbors who oppose development. The developer has the deep pockets and donates to candidates and causes, perhaps out of generosity but also for the accumulation of good will intended to subtly tip the scales in the decision making process on specific proposals (and sometimes not so subtly as when a proponent’s presentation turns into a “good guy of the year” testimonial for the developer). The developer also uses those deep pockets to employ professionals who make a living pitching proposals, conducting “independent” studies, and interacting with not only board members, but the staff and administrators who wield considerable behind-the-scenes influence on the decision making process.

It is this latter contact which though neither illegal nor unethical and which is seen as necessary to the process, that most tips the scales against the neighbors. The constant contact between the developer’s team and city officials gradually creates a subconscious buy-in by those officials. All concerned would deny any such phenomenon exists, but that’s just because they either don’t recognize it or won’t acknowledge it. It is the very reason that judicial proceedings have such strict prohibitions against ex parte (only by one side) contact with the judge. It’s not because something overtly illegal is going on; it’s because impartiality in the hands of humans is such a delicate thing that even the slightest contact between one party and the decision maker can tip the scales.

Am I suggesting that all communications between the development team and city officials be banned (or between neighbors and city officials, for that matter)? No, that would be unrealistic. But I do advocate a requirement that board members and city employees advising or assisting that board be required to disclose any communications received from anyone related to a pending proposal before voting on such proposal. Such disclosure would create only a minimal burden and would make everyone aware of the lobbying, both direct and indirect, that was taking place in advance of an otherwise impartial hearing on a proposal. To the extent such a rule would serve as a deterrent against ex parte communications with board members, I suspect those same board members would welcome it. I’m guessing they would much prefer deciding a matter based solely on the information presented to them at the public hearing rather than being subjected to the intense, behind-the-scenes, pre-hearing lobbying that has long been a part of Lowell’s political culture.

I do have one mild criticism of last night’s process. After it became clear from their pre-vote comments that the board would vote unanimously for the project, an epidemic of condition setting broke out much to the dismay of the planning board administrator and the attorney for the proponent. There were too many conditions rattled off too quickly to be cataloged here, but it was as if, after voting for the project, the board attempted to assuage every concern raised by the opponents of the project. Sidewalks, access to playing fields, bus schedules – I half expected to hear “The rain may never fall till after sundown.” and “By eight, the morning fog must disappear.” but I did not. As well meaning as the imposition of such conditions may be, I suspect they are enforced loosely if at all and so don’t count for much long term. (And for anyone doubtful of that, look up the conditions imposed on the gas station at the corner of Gorham and Elm Street and see how quickly they faded away).

So that’s my proposal – impose on city board members and support staff the requirement that any ex parte communication with anyone, pro or con, regarding a matter to be decided by the board, be publicly disclosed at the start of the public hearing on that matter. Given Lowell’s political culture, it might make for much longer meetings but it would make for fascinating TV.

5 Responses to The Planning Board and Neighborhood Opposition

  1. Jim says:

    Neighbors always oppose development. The city needs to grow to maintain and improve quality of life. The real issue with that area is the bridge. It has needed to be widened for at least 30 years. Why have our elected officials been unable to do anything? Golden and Garry should be voted out.

  2. Linda Copp says:

    This is an excellent article! I agree with the suggestion Richard Howe makes regarding the need to share any and all concerns the neighborhoods residents may have raised with the entire board before they vote. This,may be the best way to address any disparity in the decision making process and is vital to the thoughtful consideration of the issues and a more positive outcome.

  3. John McDonough says:

    Hi Dick, I am disappointed in the boards decision to put the school up there, par for the course same thing happened with the walgreens up there. Lowellians will just plain avoid that area like we do the downtown.
    As for the xtramart, I am happy for the extra recording video camera’s that help the police more than we know, they are good neighbors and no more drug sales thanks in part to the camera’s.

  4. Paul Belley says:

    I watched the entire Planning Board meeting. The neighborhood leaders voiced their opposition as well as Former Mayor and City Councilor Bud Cauilfield on the charter school.

    A lot of discussion was about the traffic and safety concerns for the children attending the school but as one board member pointed out there is no school in that part of the city.
    We cannot as a city stop growth and jobs from coming into the city. Will there be growing pains as we grow as a city…yes.

  5. Adam Baacke says:

    Hi Dick,

    As usual, I appreciate your thoughtful analysis. I agree with your conclusion that in general most projects that come before the Planning Board are either approved or approved with conditions. However, I would suggest that there are a couple of reasons that are for more significant than ex parte communication.

    First off, most projects that appear before the Planning Board do so under site plan review. Because site plan review is not strictly authorized in statute in Massachusetts, the courts have found that municipal boards have limited authority under site plan review. This authority extends only to the ability to condition project approvals. Under site plan review, if a project application is deemed complete enough to schedule a public hearing and the project in question is otherwise zoning compliant, municipal boards are prohibited by case law from denying site plan approval entirely.

    Second, developers rarely seek to permit sites in a manner that greatly deviates from what zoning and other land use regulations allow. As a result, in general the project proposals are introduced with a bias toward approval because the projects are usually mostly compliant (even if certain reviews are required to confirm that). The infrequent exceptions to this are generally those projects where the developer is proposing something that otherwise already enjoys municipal and or public support, or the municipality has actively sought the proposed development (the Ayer Lofts in 2000 was an example of a project that was strongly supported even though it required 14 variances; zoning was changed soon after so that projects like it would be compliant).

    Finally, despite often passionate appeals, many concerns raised by abutters are outside the jurisdiction of the board or the hearing, leaving the board with limited ability to be as responsive as the abutters may wish them to be (or the members themselves may prefer to be).

    I am not opposed to the idea of additional disclosure of communication, especially for the board members who will be ultimately making a decision. Transparency is an important part of ensuring fairness and consistency and ultimately building or maintaining trust in our processes. However, I do not believe such disclosure would likely have a significant impact on ultimate results.

    Communication by staff with both applicants and interested stakeholders or abutters is critical to helping all parties play informed roles in the process itself. Any effort to limit it would be detrimental to the goal of making sure every interested party has as much information as possible to shape their presentations to the boards. The desire for greater transparency and information dissemination is why DPD now posts all documents related to projects before the boards on our website for all to review even those who cannot come to City Hall during business hours.

    Because the project review process is biased in favor of approval for the reasons noted above, the most important lesson for everyone interested in the future development of their neighborhoods is to be involved in planning efforts that take place in advance of any specific development proposal. Master plans, neighborhood plans, urban renewal plans, and other similar documents are what define the policy that will guide the City’s land use regulations. These regulations, once adopted, become the rules of the game that developers who want to see their projects approved, will generally follow. So the most important time for public participation that can have a really meaningful impact is when the policy and vision that will inform the rules is being shaped through plans.

    This also tends to be a far more collaborative and constructive form of public participation than what occurs at project review hearings primarily because the planning process is rarely one where people must choose whether they are “in favor” or “opposed” as is the case in formal public hearings. The planning process for the Hamilton Canal District was an excellent example of how public involvement during planning can have a genuine and valuable impact on a project resulting in a better project where no one feels they have “lost.”

    The recent Master Plan process is another great example and many of the ideas that came from its public input process will take form in proposed zoning changes that will likely be brought forward in the coming months should the Council and Planning Board approve the final plan when it is presented to them soon. Although unlikely to be as dramatic in scope, these changes will likely help preserve what people appreciate in their neighborhoods and facilitate change that is generally viewed as positive in the same way that the 2004 zoning changes significantly changed the nature of infill development in Lowell’s neighborhoods.