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Who Decides?

by keith mcmanus '06

Central Artery

The Central Artery/Tunnel Project is creating about forty acres of parks along the Charles River Basin. From the roof of the Spaulding Rehabilitation Hospital, this aerial view shows the Nashua Street Park. (Photo courtesy of Massachusetts Turnpike Authority)

Given the highly developed nature of the country’s landscape, it is not very often that a major American city is confronted with the emergence of large tracts of open space. Yet, that is what’s confronting Boston, as the massive “Big Dig” highway construction project approaches completion.

After thirteen years of construction and nearly fifteen billion dollars in expenses, I-93, Boston’s downtown Central Artery, has gone underground into a newly constructed tunnel system, leaving behind twenty-seven acres of new open space. But such abundant downtown acreage brings with it complicated management, planning, and legal issues, perhaps the largest of which concerns who gets the decision-making power over how the land should be used.

With an eye on this issue, the Boston College Environmental Affairs Law Review hosted its annual symposium, “The Law and Planning of Public Open Spaces: Boston’s Big Dig and Beyond,” in October. The event featured two panels of experts drawn from the fields of environmental law, urban design, and land-use planning.

When a community is presented with new open space, the most obvious and difficult question to answer is: what do we do with it? The more intriguing and thorny legal question, however, is: who decides?

“It’s like trying to perform open-heart surgery on a patient while the patient is playing tennis, and the tennis player must win the match,” said panelist Robert Tuchmann, an attorney who chairs the Central Artery Environmental Oversight Committee. He found the metaphor to be an apt description of the task of juggling 1,400 environmental covenants and designing parks to please neighborhood organizations, while maintaining access to the downtown area for residents, employees, and businesses.

For the Big Dig’s open space, the web of conflicting levels of government has complicated the land-use planning considerably. Of the nearly $15 billion spent on the project, $9 billion came from the federal government, though it exercised virtually no role in the public land-use planning. The Commonwealth of Massachusetts picked up the rest of the tab and stayed involved through two state agencies. The city of Boston, whose boundaries contain the entire project, does not own the acreage associated with the Central Artery, but has significant regulatory involvement in the Big Dig lands. In addition, there are innumerable neighborhood associations, businesses, and abutting landowners whose daily activities will be intimately affected by how it is planned.

Who makes land-use decisions, of course, is not a question unique to the Big Dig. Symposium panelists offered a decision-making model that might help those grappling with the issue in Boston. The “subsidiarity principle,” a staple of European Union law, was offered by several panelists as a land-use policy that should be applied in the United States. Derived from Roman Catholic canon law, the subsidiarity model suggests that decisions be made at the lowest level of political power that is capable of making rational, balanced, informed decisions and has the resources to monitor and enforce them.

As defined by Pope Pius XI in Quadragesimo Anno, the subsidiarity principle states that “it is an injustice, a grave evil, and a disturbance of right order for a larger and higher organization to arrogate to itself functions which can be performed efficiently by smaller and lower bodies.” Leaving decisions to smaller groups, the encyclical continues, places power in the hands of those most affected by the decisions and with the most ability to effect their implementation, who “then will perform with greater freedom, power, and success the tasks belonging to [them], because [they] alone can effectively accomplish these directing, watching, stimulating, and restraining [functions], as circumstances suggest or necessity demands.”

For land-use planning, the subsidiarity model suggests that where impacts and benefits are primarily local, neighborhood groups and local citizens should make the decisions. Yet while the model exhibits a preference for decisions occurring at local levels, it does not preclude involvement by higher levels of government if that is necessary to achieve an appropriately inclusive rational perspective. Where, as in the Big Dig, issues are raised at the state and regional, if not national, levels, government agencies with broader perspectives often will be more appropriate decision makers. The trick is to define the subsidiarity considerations and forge a combination of inputs that incorporates necessary overviews while not losing the immediacy of local and neighborhood knowledge and concerns.

The panelists identified some flaws in the subsidiarity model, however, that can affect its application to planning public land uses. One such flaw is that the model may fail to account for the input of those who supply the majority of the funding; another is the fact that putting strong decision-making tools, such as a veto power, in the hands of local neighborhood organizations undercuts any regional influence.

In the case of the Big Dig, the Commonwealth supplied about 40 percent of the money for the project, yet a great many state taxpayers—citizens from western regions of the state—are unlikely to enjoy the space and might argue that a park system is too local a use. A counterargument is that because the current development plans include the FleetCenter and waterfront, they present regional as well as local benefits.

The land-use concerns of the Big Dig are particularly complex because of the project’s size and technological challenges. But other projects, no matter what their proportions, must consider similar issues. “This is not just a local story,” said Professor Zygmunt J.B. Plater. “It’s a common dilemma when you have complex projects in heterogeneous political settings.”

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