Generations of scholarship on the political economy of land use have tried to
explain a world in which tony suburbs use zoningto keep out development but big cities allow
untrammeled growth because of the political influence of developers. But as demand to live in
them has increased, many of the nation’s biggestcities have substantially limited development.
Although developers remain important players in city politics, we have not seen enough growth
in the housing supply in many cities to keep prices from skyrocketing. This Article seeks to
explain this change with a story about big-city land use that places the legal regime governing
land-use decisions at its center. In the absence of strong local political parties, land-use laws that
set the voting procedure in local legislatures determine policy results between cycling
preferences. Specifically, the Standard Zoning Enabling Act (SZEA) creates a peculiar procedure
that privileges the intense preferences of localresidents opposed to new building. Amendments
to zoning maps are considered one-by-one, making deals across projects and neighborhoods
difficult. Legislators may prefer to allow some building rather to stopping it everywhere, but are
most concerned that their districts not bear the brunt of the negative externalities associated with
new development. Absent deals that link zoning changes in different neighborhoods, all
legislators will work to stop the zoning amendmentsthat effect their districts. Without a strong
party leadership to whip votes into line, the preferences of legislators about projects in their
districts dominate and building isrestricted everywhere. Further,the seriatim nature of local
land-use procedure results in frequent downzonings, as big developers do not have an incentive
to fight reductions in the ability of landowners to build incremental additions to the housing
stock as of right. The cost of moving amendments through the land-use process means that
small developers cannot overcome the burdens imposed by downzonings. The Article concludes
by considering several forms of legislative process reform that mimic procedural changes
Congress adopted in order to pass international trade treaties.
In Coalition to Preserve Belmont, the Appeals Court acknowledged that Massachusetts law generally allows citizen groups to intervene in administrative hearings without difficulty. However, this does not automatically confer aggrieved status on the group when it appeals an adverse decision in court. A developer can ask the court to dismiss the appeal, by claiming that the citizen group is not truly aggrieved. After reviewing the administrative record in Coalition to Preserve Belmont, the Appeals Court found no evidence that the coalition was actually aggrieved, and ordered that the coalition’s complaint be dismissed.
One can draw two lessons here. First, citizen groups do not have automatic access to Massachusetts courts when seeking to block developments. Developers should vigorously contest their opponents’ standing in such cases. Second, unless citizen groups carefully assemble a record during the administrative process, showing how the development will harm their members, the courts will reject their appeals.
To hinder a development in Massachusetts courts, it is better to be aggrieved than not.
Come November, residents of Boulder, Colorado, will decide what kind of city they want to be. Voters there are mulling a measure that would change how local government works when it comes to zoning. Under the proposed rule, Boulder’s neighborhoods could get the opportunity to vote on any zoning change within that neighborhood before it goes into effect.
At present, when the city council approves a zoning change, it triggers a 30-day cooling-off period during which voters can take action. If 10 percent of Boulder’s voting population sign a petition against a zoning change, then the council is required to reconsider it.
Just saying Hubman it will never be 200 Clarendon St. It will always be the Hancock Tower!!