To the Editor,
Next week, Manchester voters will consider a town meeting article to approve state mandated changes to local zoning, namely a transit-oriented development program that removes local permitting control over zoning and enables the state to dictate how certain facets of local zoning must comply to accomplish a state priority…. providing more housing. This program does not address local concerns of affordable housing but would streamline a permitting process and might reduce potential for affordable housing by appropriating physical resources. Any leverage local zoning boards must require affordable housing as part of a special permit process necessarily disappear if a by-right amendment is adopted.
The state, through the office of the Attorney General, has been quite strident in telling communities that they must comply, threatening legal actions and withholding of certain grants if communities resist.
As a party to a lawsuit challenging the constitutionality of this state law, I have been involved in researching the history of zoning in the commonwealth. Amendment LX (sixty) was the response of the state to the shift of the American landscape from that of a rural, agricultural society to urban, commercial and industrial uses. Zoning actually lagged behind those developments, however and was a response to conflicting uses of land. (Zoning actually started in New York City when the owners of the high-end stores, that replaced the mansions of the super upper elite and catered to the tastes of the of the state’s newer wealth, objected to to the emergence of the garment makers, and clothing factories in the area. They wanted to preserve the shopping experience for the clientele. Their success in creating zones led to similar efforts across the United States.)
Massachusetts first sought to establish controls over land use by a constitutional convention. This was an elected body of 320 members. That convention was held from 1917 to 1919. On November 5, 1918, the people of Massachusetts ratified the constitutional convention resolution and amended the state constitution. Specifically, they voted to ratify the following passage.
“ARTICLE OF AMENDMENT - The general court shall have power to limit buildings according to their use or construction to specified districts of cities and towns.”
I believe it is important to note this amendment gave power to the general court to limit uses, not prescribe them.
It isn’t easy to find documentation about the actual debates that took place over a hundred years ago at the constitutional convention. When I went to the state archives a few weeks ago the only readily available packet directly connected to the specific zoning amendment concerned a slight change to the wording of the amendment. On August 2, 1918 the Committee on Form and Phraseology, to which was referred the Resolution relative to the Power of the General Court to Limit Buildings according to their Use or Construction to Specified Districts of Cities and Town reported making the following change….” For the words “to enact laws limiting” substitute the words “to limit”. Thus, the original wording of the proposed amendment changed from “The General Court shall have power to enact laws limiting buildings according to their use or construction to specified districts of cities and towns” to “The General Court shall have power to limit buildings according to their use or construction to specified districts or cities and towns”. The committee on Form and Phraseology stated they changed this “for the sake of conciseness.” The sheer paucity of documentation as compared to other amendments the convention considered leads one to believe the issue was not controversial at the time.
More enlightening commentary comes from “The American Political Science Review, May 1921 pp 214-232. In an article “The Constitutional Convention of Massachusetts” author Lawrence B. Evans, the technical advisor to the constitutional convention, summarized the work of the convention and wrote a few paragraph concerning the adoption of the zoning amendment:
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“Three of the amendments adopted in 1918 are such innovations that they may become landmarks in American constitutional history. The first authorizes the regulation of advertising in places within the public view. Whether or not the control of billboards falls within police power has long been a vexed question in law. In Brazil high taxation affords sufficient protection against unsightly advertising. In England, France, Germany, Italy, and several other countries, regulation is frankly based on esthetic considerations, but in the United States the decisions of the courts indicated that legislation for the regulation of billboards must be based upon such well-recognized heads of the police power as the protection of the public health, morals or safety, and it was only when it was incidental to these objects legislation having esthetic considerations in view could be sustained. So far as it is possible for the state to authorize regulation from esthetic considerations alone, Massachusetts has done so. Whether the new amendment is offensive to the due-process clause of the Federal Constitution yet remains to be determined.
Allied in some respects with the amendment for the regulation of advertising in public places is the amendment authorizing the legislature “to limit buildings according to their use or construction to specified districts of cities and towns,” - in other words, to establish building zones. The reasons for this amendment are obvious. One has only to observe the condition of any city in the United States to perceive the need for placing some restrictions on the freedom of landowners as to the character of the buildings which they may erect or the uses to which buildings may be put.”
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With no local zoning, it’s easy enough to see why the amendment giving the state some constitutional power over zoning came into existence via a statewide vote. What small community might have the resources to prevail against the Rockefellers, Carnegies or Henry Fords of the day if they deemed to locate in some Massachusetts town or city.
For more than 100 years, the role of federal and state governments has been to enable local governments with local power to craft local zoning. If the state wishes to retract that sensible approach, expand a power with no constitutional justification, and in so doing itself become the modern-day counterpart of the entities it once sought to restrain … the state should call for a comprehensive public discussion and referendum by statewide ballot. And, unlike the approval process unwinding in 2023-24 such a referendum question and vote should come with no intimidating penalties attached.
Zenas Seppala
Rockport
