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?