The forces of change whose emblem is the bulldozer, and the forces of preservation whose totem is the tree, are everywhere at war in this country. The raging debate over what we have lost and what we have gained, as we flee the old urban patterns of the nineteenth century for the new ones of the twenty-first, is constant.
With particular reference to apartment houses, it is pointed out that the development of detached house sections is greatly retarded by the coming of apartment houses, which has sometimes resulted in destroying the entire section for private house purposes; that in such sections very often the apartment house is a mere parasite . . . .
Id.; Editorial, Snob Zoning Alert, Boston Globe, May 18, 2001, at A22 (If we went by current zoning and bowed to the neighbors every time, we would have no affordable housing outside major cities.(quoting Aaron Gornstein, Director, Citizens Housing & Planning Association)).
[I]n the 1940s in San Diego, the federal Public Housing Authority (PHA) adopted a segregated pattern for its federally managed projects, while many areas of the city were integrated . . . . An example of the role that race could play in the politics of location is the city of Chicago in the later 1940s and early 1950s. During this period, the majority of the citys aldermen favored the principle of public housing; however, the aldermen did not want public housing in their own wards. They wanted no low-income neighbors, and no Blacks of any kind.
Stocker-Edwards, supra, at 58. Other commentators provide additional examples of the effects of overt racism in housing:
The historic and continuing practices of officially sanctioned zoning and land use discrimination are perhaps most pervasive and well-documented as they pertain to African-American communities . . . . Nevertheless, other communities of colorin particular, Puerto Rican and Mexican-American communities (hereinafter Hispanics)have similarly experienced substantial governmental discrimination . . . . Public housing site and tenant selection and urban renewal policy have also served to confine hispanics to segregated and inferior housing.
Dubin, supra, at 77374. Overt racism was also substantive part of the marketing employed by one of the nations largest housing developers, William Levitt, the designer and builder of Levittown on Long Island, New York. The original Levittown contract read, No dwelling shall be used or occupied except by members of the Caucasian race, but the employment and maintenance of other than Caucasian domestic servants shall be permitted. Jay B. Itkowitz, Levittown at 25: Prototype of Suburban Housing, at http://www.itkowitz.com/ mam1965text.php?aid=259 (last visited Mar. 16, 2003).
The world is still deceived with ornament./ In law, what plea so tainted and corrupt,/ But being seasoned with a gracious voice,/ Obscures the show of evil?/ In religion, What damned error, but some sober brow/ Will bless it and approve it with a text,/ Hiding the grossness with fair ornament?/ . . . . The seeming truth which cunning times put on to entrap the wisest.
Id. act 3, sc. 2, 7480, 100.
Having determined that master plans are to be accorded substantial compliance under Nevadas statutory scheme, and recognizing anew the general reluctance to judicially intervene in zoning determinations absent clear necessity . . . . It is clear on the record that no evidentiary basis exists for the Councils denial of appellants zone change request.
Nova Horizon, 769 P.2d at 724.
Zoning has always been treated as a local matter. The creation and modification of zones are matters of municipal legislation. The board of appeals is a local board familiar with local conditions . . . . A judge of a State wide court, perhaps spending only a few days or weeks in a particular locality, is hardly a suitable tribunal for such purposes.
Proof that the decision was motivated in part by a racially discriminatory purpose would not necessarily have required the invalidation of the challenged decision. Such proof would, however, have shifted to the Village the burden of establishing that the same decision would have resulted even had the impermissible purpose not been considered.
Id. at 27071 n.21.
The first step toward removing the regulatory barriers that limit the production of affordable housing is found in a communitys long term strategic planning process. A local comprehensive land use plan is a product of this longterm vision . . . . The housing element of this Comprehensive Plan can address residential locations, policies regarding subsidies for affordable housing, and general design guidance. It is the adoption of affordable housing policies as an outgrowth of the Comprehensive Plan that prepares a community to increase its affordable housing supply.
Municipal corporations are political subdivisions of the state, created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them . . . . The state, therefore, at its pleasure, may modify or withdraw all such powers, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation . . . . In all these respects the state is supreme.
Under the circumstances it seems reasonable to ask if the integration of all these various functions is not relevant? To give a partial list: housing, slum clearance, location of industries, transportation, adequate schools and teachers, clean streets, traffic control, social work, racial harmony, master planning, recreation . . . . Apart from such a unified view, the apparent solution of this or that isolated problem inevitably leads to disruption elsewhere. Slum-clearance as an isolated policy must aggravate class stratification . . . . No Master Plan guarantees foolishness like the Lincoln Square project. These consequent evils then produce new evils among them. Isolated planning cannot make sense.
It is to be remembered that we are dealing with one of the most essential powers of government, one that is the least limitable. It may, indeed, seem harsh in its exercise, usually is on some individual, but the imperative necessity for its existence precludes any limitation upon it when not exerted arbitrarily. A vested interest cannot be asserted against it because of conditions once obtaining.
Id. at 410.
While we have recognized the presumption of constitutionality and the rather easily accommodated rational-basis test, we should not blindly rubber stamp legislation enacted under the guise of the citys police power when careful review has revealed no logical link between the legislation and the objective it was enacted to effect.
Local control over use of private land has withstood with incredible resilience the centripetal political forces of the last generation. In an era of concentration of power, each blind man may offer a different explanation for the remarkable continuing strength of local control over land use. I believe this condition is explained in part by the conviction of the local decision-maker that he is more competent to decide these questions than is his professional counterpart in Albany, Columbus or Sacramento.
Babcock, supra note 7, at 19.
The lessons of history are clear, even if rarely learned. One of those lessons is that unplanned growth has a price: natural resources are destroyed, open spaces are despoiled, agricultural land is rendered forever unproductive, and people settle without regard to the enormous cost of the public facilities needed to support them. Cities decay; established infrastructures deteriorate for lack of funds; and taxpayers shudder under a financial burden of public expenditures resulting in part from uncontrolled migration to anywhere anyone wants to settle, roads leading to places they should never be . . . . More than money is involved, for natural and man-made physical resources are irreversibly damaged. Statewide comprehensive planning is no longer simply desirable, it is a necessity recognized by both federal and state governments.
Mount Laurel II, 456 A.2d at 429. The SJC, bowing in deference to the legislature, have not taken a similar position:
The Legislatures zoning power may be used where the interests of the public require such action and where the means employed are reasonably necessary for the accomplishment of the purpose. Within these broad limits, the General Court is the sole judge as to how and when the power is to be exercised as long as it acts in accordance with the powers reserved to it by s. 8 of the Home Rule Amendment.
The problem with this anti-suburban view is that these citiesand they are citiesare not really the bland, faceless, non-communities described in social studies textbooks. People live here. People choose to live here, and they chose not to move out. In fact, suburban residents are less likely to move than their central city counterparts.
Clint Bolick, Subverting the American Dream: Government Dictated Smart Growth is Unwise and Unconstitutional, 148 U. Pa. L. Rev. 859, 867 (2000) (citing Sam Staley, Urban Sprawl: A Grassroots Defense (Dec. 1997), at http://www.urbanfutures.org/opedstaley.html). The above-noted articles are decidedly opposed to governmental regulation of land use and they are cited here with caution. It is suspected, however, that individuals who perceive governmental regulation of land use as paternalistic would likewise rebel against the notion that using government as its agent, a speculator can cram-down an unlimited number of dwelling units on any parcel of land unconstrained by some rules.
The cost to municipalities of conducting urban-renewal programs is considerable, especially when the local public agency must acquire and clear an entire area . . . . In order to encourage urban renewal, the federal government is authorized to pay up to two-thirds of the net project cost if certain requirements are met by the city, including the submission of an acceptable workable program.
Id. at 511.
[F]or though the money that built them was supposedly private money, the tax abatement that Moses arranged for them would, when totaled over the years, insure that the public investment in them would dwarf the private, and the powers that Moses utilized to make possible not only their construction but the assemblage of their siteeminent domain, street closings, utility easementswere all public.
Id. at 968; see Urban Renewal, supra note 84, at 53536. The authors discussed the relationship between tax credits on the economic viability of building affordable housing:
A project which does not produce a satisfactory cash return on the invested cash equity may nevertheless prove advantageous if the impact of its tax consequences on the taxpayers business as a whole is considered. A project is desirable from an investment standpoint only if the annual cash throw-off is such as to return the initial investment within a relatively short-time . . . . Since a project which would produce little or no cash throw-off before federal income tax may thus produce a substantial loss for tax purposes in the early years, and since such a loss may be deductible from other income of the taxpayer, the tax savings produced thereby may make the project more desirable from an investment standpoint.
Urban Renewal, supra note 84, at 53536.
Since the statute speaks of a legislative finding, not of the general plan itself, a court asked to review for conformity to the provision plausibly could refuse to look behind the legislative determination to ascertain whether a general plan actually existed . . . . Now planning for individual projects could begin before the general plan was even adopted. By deferring the completion of the general plan until the submission of the final project plan, the federal agency allowed the content of the general plan to be influenced by ad hoc redevelopment decisions.
Daniel R. Mandelker, The Comprehensive Planning Requirement in Urban Renewal, 116 U. Pa. L. Rev. 25, 4143 (1967).
There are several good reasons for increasing protection [beyond the state act]. The Wetlands Protection Act [the state act] is limited to protecting only eight wetland values . . . . Communities may wish to regulate work over a broader geographic area including wetlands not linked to water bodies and also including adjacent upland areas, work on which may affect wetlands and floodplains.
It may be that a comprehensive permit is essential for the construction of some affordable housing projects because of local zoning restrictions, and it may be that, in those situations, the absence of an affordability restriction expiration operates as an economic disincentive to developers to build affordable housing. The solution to that problem, however, lies with the Legislature.
Id. at 59697. Furthermore, in Planning Board of Hingham v. Hingham Campus, L.L.C., the SJC ruled that 40B does not grant a municipal planning board standing to appeal the decision of a board of appeals. 780 N.E.2d 902, 908 (Mass. 2003). The SJC concluded that [i]f the law is to be changed, the change can only be made by the Legislature. Id. (quoting Commonwealth v. Jones, 632 N.E.2d 408, 410 (Mass. 1994)).
The unfortunate combination of overcrowded schools, high construction costs to provide more schools, and taxes already at the breaking point, is a sad fact of life that presently besets almost every municipality in the country . . . . Apparently, the legislature felt that existing needs for low and moderate income housing were so overriding as to have priority over the admittedly pressing problem of overcrowded schools.
But this cannot mean that any condition which insures adequate water supply is automatically consistent with local needs. If this were the case, any town wishing to block affordable housing could simply identify a legitimate local concern and then require that it be remedied in the most expensive way possible. Thus we believe that also implicit within the definition of consistency with local needs is that any condition be reasonable.
there is no evidence that foreclosure is a common occurrence. Second . . . the town has a right of first refusal that permits it to step in and purchase the unit if no affordable purchaser can be located . . . . And, even if the unit is lost, the town is compensated, since it receives the windfall generated by the sale, which can [then be] put that to use for other affordable housing purposes.
Id. The consequences of this decision are staggering. Imagine a scenario in which a qualified income buyer purchases a dwelling in a comprehensive permit project that is ten times more dense than the underlying zoning permits. The social benefit of ignoring local zoning is complete. Twenty-five percent of the dwelling units are sold to needy purchasers. Later, some of the dwelling units are repossessed by the lending institution, through bankruptcy proceedings and for a variety of possible reasons. According to the HAC, these dwelling units can now be sold free of any affordability restriction. The social benefit that trumped local zoning and the historic deference to local police powers has disappeared. Having lost some of the affordable dwellings that count toward its ten percent quota, the community must go through the process over and over again. Is it snob zoning to demand that a tradeoff of trumping all local zoning regulations should be the protection of affordable dwelling units in perpetuity? The HAC justified its decision on the statement that there is no evidence that foreclosure is a common occurrence. Id. Well before the decision was issued, however, the Boston Business Journal reported that while the Massachusetts foreclosure rate was far below the rates of the early 1990s, government loan defaults were increasing in Massachusetts and nationwide. Donna L. Goodison, Residential Foreclosures Creep Up in the Bay State, Boston Bus. J., June 17, 2002, available at http://boston.bizjournals.com/boston/stories/2002/06/17/story7.html (last visited Mar. 4, 2003). The Boston Globe reports that foreclosures are likely to rise. Thomas Grillo, Mass. Home Foreclosures Fall in 02 Low Interest Rates Cited; Bankruptcies Down 1.5 Percent, Boston Globe, Jan. 18, 2003, at E1 (Many homeowners are eating up the equity in their house and it wont be long before the value is gone and they find themselves in deep financial trouble.). As if the HACs justification for allowing a foreclosure to wipe out the affordability restriction is not bad enough, the HAC suggests that if there is a foreclosure, the host city or town will be the beneficiary of a windfall. Delphic Assocs., No. 02-11, slip op. at 8. Surely, local officials must be puzzled by the hypocrisy of the HACs decision. Isnt the point of the statute to develop affordable housing? Does the HAC really believe that the windfall will go to affordable housing creation when in fact, the money will be needed to compensate the city or town for the added cost burdens imposed by the destruction of local zoning and whatever plans and programs the city or town has in place?
The boards and the committees power to require full disclosure of the applicants present or planned property interest, and their power to grant conditional permits that do not become operative until the applicant has satisfied the funding agencys property interest requirements, provide ample protection against the unlikely possibility of frivolous applicants who have no present or potential property interest in the site.
Id. One wonders what the court meant by the use of the word potential. See id. Any and all applicants have the potential of acquiring the necessary property interest in the site. See Mass. Regs. Code tit. 760, § 31.01(3) (specifying the extent of property interests).
Either a preliminary determination in writing by the subsidizing agency that the applicant has sufficient interest in the site, or a showing that the applicant or any entity 50% or more of which is owned by the applicant, owns a 50% or greater interest, legal or equitable, in the proposed site, or holds any option or contract to purchase the proposed site, shall be considered by the Board or the Committee to be conclusive evidence of the applicants interest in the site.
Id. The court in Board of Appeals of Hanover neglected to foresee how entrepreneurial applicants would satisfy this requirement. See 294 N.E.2d at 42021 (discussing eligibility without mention of entrepreneurs). The requirement is presumably satisfied if a purchase and sales agreement is executed with terms highly favorable to the offeror. For example, a speculator executes a purchase and sales agreement with the owner of developed, underdeveloped, or marginal land contingent upon the receipt of a comprehensive permit for a density eight or ten times what the underlying zoning allows. No deposit is made, no expiration date is included, and no penalties are imposed for breach by the offeror. This will satisfy the regulatory requirements. See Mass. Regs. Code tit. 760, § 31.01(3). In the alternative, a landowner executes a purchase and sales agreement or a deed to herself as trustee of a trust. The beneficiary of the trust is herself. This purchase and sales agreement and/or deed will also satisfy the regulatory requirements. See id.
Over this kind of men stands an immense, protective power which is alone responsible for securing their enjoyment and watching over their fate. That power is absolute, thoughtful of detail, orderly, provident and gentle. It would resemble parental authority if, father like, it tried to prepare its charges for a mans life, but on the contrary, it only tries to keep them in perpetual childhood . . . . Why should it not entirely relieve them from the trouble of thinking and all the cares of living?
. . . .
Having thus taken each citizen in turn in its powerful grasp and shaped him to its will, government then extends its embrace to include the whole of society. It covers the whole of social life with a network of petty, complicated rules that are both minute and uniform, through which even men of the greatest originality and the most vigorous temperament cannot force their heads above the crowd. It does not break mens will, but softens, bends, and guides it; it seldom enjoins, but often inhibits, action; it does not destroy anything, but prevents much being born; it is not tyrannical, but it hinders, restrains, enervates, stifles, and stultifies so much that in the end each nation is no more than a flock of timid and hardworking animals with the government as its shepherd.
. . . .
A great many people nowadays very easily fall in with this brand of compromise between administrative despotism and the sovereignty of the people.
Alexis DeTocqueville, Democracy in America 69293 (George Lawrence trans., J.P. Mayer ed., Harperperennial 1988).
Survival of the fittest may be a good working description of the process of evolution, but a government of humans should elevate itself to a higher order, one which tries to fill the cruel gaps left by chance or by wisdom we dont understand. I would rather have laws written by Rabbi Hillel or Pope John Paul II than by Darwin.
Mario Cuomo, First Inaugural Address, in More Than Words 7, 10 (1993).
Do programs impose a cost, and if so, who bears that costthe builder or the purchaser of the market rate homes? If there is a cost to the builder (even if only in more work or regulatory complications), is it fair for the builder to shoulder the cost of providing a needed social good?
Kent Conine, A Home Builders Policy View on Inclusionary Zoning, New Century Housing (Ctr. for Hous. Poly, Washington, D.C.), Oct. 2000, at 27. Of interest, is applying Mr. Conines comments to the Massachusetts comprehensive permit statute. In that case, there is no cost to the builder for building affordable dwellings. Rather, as discussed previously, there is an unearned and unpaid for gift. Mr. Conine, and presumably most land developers, would argue that the cost should be born by the community at large and not by a private developer alone. But it could reasonably be argued that the burden should not be born solely by those abutting a 40B development. In fact, that is the net result of the Massachusetts comprehensive permit statute. Those abutting the proposed project, individuals who could not have predicted the developments scale or impact, are left shouldering the burden of the legislatures mandate. In essence, the abutters to a 40B project are held accountable for their municipalitys failure to achieve the 40B mandate of affordable housing.
The applicant for development . . . may pay fees in lieu of the construction of affordable units. . . . [T]he fee in lieu of the construction or provision of affordable units is determined to be $200,000 per unit. For example, if the applicant is required to construct two affordable income units, they may opt to pay $400,000 in lieu of constructing or providing the units. Unless and until adjusted by Town Meeting, the fee in lieu of the construction of affordable units shall increase three (3%) percent every twelve months . . . .
Duxbury, Mass., Zoning Bylaws art. 560.12(1) (2003) (draft).