With Zoning Redesign and a request to rezone Riverside Station in the news, a false rumor is once again making the rounds. Specifically, the word on the street is that if the City Council amends the Zoning Code or rezones a particular parcel, voters can override the City Council through a referendum placed on the municipal ballot, pursuant to the City Charter.
So, is this true? In a word, “no.”
This particular canard seems to come back like a bad penny every few years in one form or another, usually when a controversial special permit application, accompanied by a rezoning request, is under consideration by the City Council. It is promoted by opponents to a project or an amendment to the Zoning Code–who sometimes include a few city councilors–who know a little something about the City Charter, but don’t know jack about the zoning laws. So, please allow me to nip this one in the bud.
This popular misconception is based on a lax reading of the text of Section 10-9 of the City Charter, which states in part that “any measure passed by the city council or the school committee, including a measure proposed by initiative procedures and passed by the city council or the school committee, may be protested and referred to the voters in accordance with this article.”Now, if you don’t read the preceding text of this provision, you could be easily misled to believe that anything the City Council does can be undone through a referendum. Because the preceding text contains the following qualification: “[e]xcept as otherwise provided by law….”
As Newton’s Law Department has consistently affirmed, local zoning can only be adopted or amended by a vote of the City Council, and that the City’s zoning authority cannot be delegated to private citizens. Chapter 40A, Section 5 of the Massachusetts General Laws, which states that “[n]o zoning ordinance or by-law or amendment thereto shall be adopted or changed except by a two-thirds vote of all the members of the … city council,” rests the authority to adopt or amend local zoning solely and unequivocally in the City Council. Moreover, over 90 years ago, the U.S. Supreme Court struck down an ordinance delegating municipal zoning authority to neighboring landowners, as “repugnant to the due process clause of the Fourteenth Amendment” to the U.S. Constitution. By the same token, allowing private citizens to adopt or amend zoning, whether by a citizens’ initiative or referendum, would be in direct conflict with Massachusetts zoning laws as well as the Due Process Clause.
Okay. What’s next?
The full paragraph !
No zoning ordinance or by-law or amendment thereto shall be adopted or changed except by a two-thirds vote of all the members of the town council, or of the city council where there is a commission form of government or a single branch, or of each branch where there are two branches, or by a two-thirds vote of a town meeting; provided, however, that if in a city or town with a council of fewer than twenty-five members there is filed with the clerk prior to final action by the council a written protest against such change, stating the reasons duly signed by owners of twenty per cent or more of the area of the land proposed to be included in such change or of the area of the land immediately adjacent extending three hundred feet therefrom, no such change of any such ordinance shall be adopted except by a three-fourths vote of all members.
In particular for 3/4 vote :-)
@Simon, the so-called “protest” provision in MGL ch. 40A, sec. 5 sort of reinforces the point that only the City Council can adopt or amend zoning. Rather than giving abutting landowners veto authority over a rezoning request, it increases the majority required for approval three-quarters of the City Council instead of two-thirds.
Coincidentally, neighbors of Riverside Center (formerly known as the Jordan Marsh Warehouse) also submitted a written protest to the rezoning of that parcel.
@Ted
I agree with you, only the City Council can adopt or amend zoning.
When the city gets around to implementing zoning reform, I have been wondering how this provision may play out.
Occasionally, I mess up. This is one of those times.
In Labranche v. AJ Lane & Co., Inc., the Massachusetts Supreme Judicial Court did, in fact, hold that voters could veto a zoning amendment by a referendum.
I thought Village14 should hear it from me first.
Please pass the crow.
Ted,
What revolutionary event led you to change your mind on this issue?