BOSTON COLLEGE
Environmental Affairs

Student
Publications

Volume 28 2001 Number 4

[Pages 533-534]
INTRODUCTION
Kenneth Forton Editor in Chief

[Pages 535-536]

-Alfred Brophy*

[Pages 537-546]
RANDOM COMMENTS
Jane Jacobs

Abstract:  To commemorate the fortieth anniversary of the publication of The Death and Life of Great American Cities, the Boston College Environmental Affairs Law Review and the Carroll School of Management invited Jane Jacobs to a symposium in her honor. To accommodate Ms. Jacobs, the symposium participants were divided into two panels. After each panel’s presentations, Ms. Jacobs offered her comments, and she and the panel members responded to audience questions. This essay, in part, reflects some of the comments Ms. Jacobs made both after the panel presentations and in response to audience questions. Her candor at the symposium was as refreshing as it is in her writing.

[Pages 547-564]
JANE JACOBS'S CRITIQUE OF ZONING: FROM EUCLID TO PORTLAND AND BEYOND
Jay Wickersham*

Abstract:  Jane Jacobs’s 1961 classic, The Death and Life of Great American Cities, identifies four preconditions for the creation and preservation of vibrant, diverse cities: (1) high densities of population and activities; (2) mixtures of primary uses; (3) small-scale, pedestrian-friendly blocks and streets; and (4) retaining old buildings mixed in with new. These principles are directly at odds with the underlying presumptions of Euclidean zoning. Euclidean zoning and related subdivision regulations restrain density, separate primary uses, favor roadway designs based solely on traffic needs, and ignore the preservation of older buildings.

Since 1961, we have erected a ramshackle superstructure of project-specific review procedures, while leaving untouched the underlying presumptions of Euclidean zoning. A rethinking of Euclidean zoning, consistent with Jacobs’s principles, requires regulatory strategies that work at different scales. At the scale of the street, zoning should focus on how private buildings help create and activate the public space of the street. At the scale of the urban district, codes should offer strong incentives for mixtures of primary uses and reuse of older buildings. At the scale of the metropolitan region, state oversight of local and regional planning should favor the coordination of denser, compact developments with public investments in transit.

[Pages 565-582]
"A RIVER (AND $5 BILLION OF TRANSPORTATION INFRASTRUCTURE) RUNS THROUGH IT": SUSTAINABILITY SLOUCHES TOWARD SOMERVILLE'S WATERFRONT
William A. Shutkin*

Abstract:  Jane Jacobs’s vision of urban life and community development can be understood as a foundation of sustainability discourse and practice at the beginning of the twenty-first century. Urban residents across the country are organizing themselves around the vision of mixed-use, vibrant, walkable neighborhoods that Jacobs pioneered. With little support from environmental laws, government agencies, or private developers, community groups are taking on the challenge of redeveloping urban areas to help restore blighted ecosystems while attracting high-quality economic development. The efforts of the Mystic View Task Force in Somerville, Massachusetts to create an urban village along the Mystic River is an example of this “Jacobean” movement and the challenges inherent in this work. As goes Somerville, so go other cities trying to build better, more sustainable places to live, work and play.

[Pages 583-608]
CARRYING CAPACITY AND THE COMPREHENSIVE PLAN: ESTABLISHING AND DEFENDING LIMITS TO GROWTH
Jonathan Douglas Witten*

Abstract:  Natural and built resources have finite capacities for assimilating growth and associated impacts. The use of analytical tools such as carrying capacity analyses is recommended to assess the cumulative impact of land development upon these resources. Once carrying capacity thresholds have been established, local governments should apply appropriate regulatory controls to ensure that capacities are not exceeded. The application of carrying capacity tools is suggested in all jurisdictions, including states that do not mandate the preparation of comprehensive plans. The adoption of carrying capacity regulations may trigger a regulatory takings analysis. Adoption of legislative actions to preserve carrying capacity limitations, however, are generally entitled to a presumption of validity. This is contrasted with the use of adjudicative permits to assess assimilative capacity thresholds. While adjudicative permits allow for aggressive review of development in relation to cumulative impacts, their ad hoc nature demands precise application by local governments.

[Pages 609-614]
JANE JACOBS'S MORAL EXPLORATIONS
Sam Bass Warner, Jr.*

Abstract:  This essay reviews Jane Jacobs’s three major books: The Death and Life of Great American Cities, Cities and the Wealth of Nations, and The Nature of Economies. It traces her development of a hierarchy of places from neighborhoods to city regions to nations and the earth. All her places are defined by their predominant social activities, not by geographical boundaries. The themes of diversity, experimentation, adaptability, and democracy inform all her writings and form the basis of her moral analysis. Jacobs’s methods are contrasted to those of Lewis Mumford and the similarities of their moral concerns noted. Her latest book, a review of the basic hypotheses of ecology, successfully presents the idea that through self-correction, differentiation, and diversification, humans and their fellow organisms can best find sustainability.

[Pages 615-636]
BEYOND AND BELOW THE NEW URBANISM: CITIZEN PARTICIPATION AND RESPONSIVE SPATIAL RECONSTRUCTION
Archon Fung*

Abstract:  This article examines a strategy called responsive participatory redesign (RPR): in it, ordinary citizens attempt to pro-actively correct defects in existing spatial arrangements that contribute to problems such as neighborhood crime. This approach offers important advantages over more top-down strategies of community-friendly design such as those of the “New Urbanism” such as its capacity to manage unintended consequences, draw direct citizen engagement, and economize on the resources available for public problem solving. Recent developments under the rubric of Chicago’s Alternative Policing Strategy (CAPS) have unintentionally created some of the building blocks of RPR, and several early experiences illustrate the modest contributions to the quality of neighborhood life that this public policy approach can yield.

[Pages 651-682]
EXPANDING THE EFFECTIVENESS OF THE MASSACHUSETTS COMPREHENSIVE PERMIT LAW BY ELIMINATING ITS SUBSIDY REQUIREMENT
Kenneth Forton*

Abstract:  The United States is in an affordable housing crisis; the problem is particularly acute in Massachusetts. Local zoning—especially in the form of density controls—is probably the most significant cause of the crisis. To mitigate the power of local zoning Massachusetts passed the Comprehensive Permit Law, which allows local zoning boards of appeals to override local zoning if certain requirements are met. One of those requirements, a government subsidy to the developer, has in some instances hindered the construction of affordable housing. Typically, a subsidy is required as an incentive to builders; otherwise their projects would not be profitable enough for them. In localities where real estate values are high, however, a density bonus (being able to develop more units on the same piece of land) may be enough to incentivize builders. In areas where subsidies are not necessary, project oversight, now largely performed by subsidizing agencies, should be performed by the Department of Housing and Community Development or local housing authorities.

[Pages 683-718]
POLICE POWER AND THE PUBLIC TRUST: PRESCRIPTIVE ZONING THROUGH THE CONFLATION OF TWO ANCIENT DOCTRINES
Donna Jalbert Patalano*

Abstract:  The close historical affinity between the Public Trust doctrine and police power supports a more expansive view of zoning. The doctrines’ kindred public interest spirit can empower localities to adopt dynamic, proactive, prescriptive zoning ordinances that promote community character. To do so, municipalities must self-define their unique community assets and ambiance through an openly developed comprehensive plan that honestly memorializes development patterns and sets forth community goals. If public interest is at the heart of the comprehensive plan, localities may consider an expansion of the police power as justified in order to zone and nurture communtiy character more justified than zoning which relies on the classic Euclidean general welfare criteria. A combination of the police power, infused with the Public Trust, and a candid comprehensive plan, could allow localities to adopt zoning ordinances that preserve and promote the unique set of intangibles that attract people to a community in the first place.

[Pages 719-755]
DEVELOPMENT AGREEMENTS: CONTRACTING FOR VESTED RIGHTS
Brad K. Schwartz*

Abstract:  The development process is risky for developers. They spend large sums of money on various development activities prior to receiving a municipality’s approval to proceed with the project. Uncertainty exists because a municipality may enact a subsequent zoning regulation which renders the proposed use impermissible. A vested right protects developer investments from subsequent zoning change. This Note examines one method by which a developer can obtain a vested right: the development agreement. A development agreement is a contract between a municipality and a property owner/developer, through which the municipality agrees to freeze the existing zoning regulations in exchange for public benefits. This Note concludes that development agreements are readily enforceable, and are attractive tools in both early and late vesting states.