I initially posted this as a comment but I thought I’d make it its own thread instead.
The special permit process is very curious indeed and seems somewhat of an elaborate charade.
From a legal standpoint, the councilors come together and analyze the project in an impartial way, from the point of views of the applicable law, and render an objective legal judgement, without being swayed by their own or other’s personal preferences.
On the face of it, the reality is entirely different, and virtually everyone involved in the process is entirely aware of that.
On the face of it, the council only decides on the project presented to it. In reality, there is a lengthy process of horse trading before the final vote. All the various concessions listed for the Northland and/or virtually every other special permit project makes that clear.
The process involves lengthy public hearings. The majority of people speaking aren’t presenting factual testimony like in a trial. They are voicing their personal opinions on the project …. which officially, those on the committee aren’t supposed to be basing their decisions on.
From top to bottom the Special Permit process is a political process but dressed up as an objective legal process. I don’t say this as a criticism of anyone involved or their actions – it’s just the nature of the beast.
I was struck when the final Northland vote was taken for the Special Permit. A few councilors articulated the basis of their No vote on a very clear reading of the applicable law – exactly what you should expect of a legal process. I don’t have the exact wording in front of me but it was something like “the special permit should be denied if it would have a significant negative impact on the surrounding properties”.
While that sounds perfectly sensible, that same sentence could reasonably be used to justify a No vote on virtually any Special Permit that has ever come before the City Council. There isn’t any kind of construction project any where that doesn’t have various negative impacts on surrounding properties.
The downside of this charade aspect of the process, is at various points in what is clearly a normal political process (hearing from all parties, trying to reach a consensus, and then making a decision) the participants can fall back on these mostly mythical legal fictions – “I can’t voice an opinion” “I can’t advocate for a specific trade-off” because its a ‘quasi-judicial’ process.
Its all very curious indeed. I think it would be a far healthier process if the ‘quasi-judicial’ trappings were stripped away and it was treated like a normal political decision like all other matters that come before the Council.
Maybe that’s not possible because of State law, etc, but the current process, full of these somewhat imaginary elements, is exactly the kind of process that can strike cynicism in the public when they encounter it first hand – i.e. they can see with their eyes that it is inherently a political process, but at each step people tell them that things can or can’t be done because its a ‘quasi-judicial’ legal process.
Thus, at the end of a long, sad, painful process, the developers build what they can at that moment, rather than what should be built. I suppose change is incremental.
Sean,
Whatever you want to call the process, as I’ve repeatedly said, there ARE avenues for the two sides to get together now, even after the City Council vote — to see if they can work something out, rather than just let the referendum proceed to overturn the current project where BOTH sides will be losers in terms of an acceptable project.
So far, no takers. Apparently both processes (City Council Special Permit process and Referendum process) do now trump achieving the most desirable as possible project plan in terms of mutual acceptability. And speaking of “trump”, both sides might want to take a look at “The Art of the Deal” which deal, I say, can be achieved here. Unfortunately, the two sides in that deal have now morphed from pro- and con/Right Size- Northland to process vs substance. If nothing is done quickly, process will prevail over substance.
@Jim Epstein – Sean has nothing to do with this thread. You comment has nothing to do with this thread and I’m guessing this is the 10th or 15th time you’ve made the nearly identical comment on numerous threads.
We’ve all read what you’ve written many times already, please don’t keep repeating it in slightly different words over and over. Thanks
Jerry, so sorry, my mistake, the message should have been directed to you.
And while yes, I have repeated my point in a number of comments and I will cease, IMHO my point has everything to do with your thread (as at least as I read it).
@Jerry — The special permit criteria that the council is adjudicating in their quasi-judicial role are in 7.3.3 Grant of Permit of Chapter 30 of Zoning Ordinance: http://www.newtonma.gov/civicax/filebank/documents/69436
“The city public convenience and welfare will be served…and all following criteria are met.
1. The specific site is an appropriate location for such use, structure;
2. The use as developed and operated will not adversely affect the neighborhood
3. The will be no nuisance or serious hazard for vehicles or pedestrians
4. Access to the site over streets is appropriate for the types and number of vehicles involved; and
5.[for big projects]…the site planning, building design, construction, maintenance or long term operation of the premises will contribute significantly to the efficient use and conservation of natural resources and energy. ”
I think the council is in agreement on 1, and 5. I think fair-minded folks disagree on #4, as to whether the site has the “access to the site over streets” appropriate for adding 3200 car trips a day on and off of Needham street if you assume each of the 1600 spaces turn over twice a day. That might qualify for a no on #2 and #3 as well in adverse effects and nuisance criteria.
“Quasi judicial“ is in part why we are where we are total.
Some hide behind it when the public challenges the project. Yet now that it’s passed, the same folks are taking credit for the “benefits” they negotiated.
If the process were truly “quasi-judicial”,.. ie to follow the law, Northland would not be approved.
But somehow it seems the city council is above the law instituting their political agendas, as Jerry O has indicated.
Seems a bit like what is happening in Washington these days.
Hmm. I’m guessing you’re talking about me. That’s not what I said … and I’m Jerry R
Jerry Reilly ( apologies I forgot it was without an O’ ), said,
“ I think it would be a far healthier process if the /quasi -judicial trappings were stripped away and it was treated like a normal political decision….”
To ‘strip away’a legal ‘trapping’, and act on a ‘normal political’ whim or agenda ,it would seem to me , would be entering / deciding on a purely partisan basis,..
Is this within or apart from the law .???
Isn’t this what you are suggesting/ saying?
@blueprintbill – I didnt say “on a whim” or “deciding on a purely partisan basis”. I said “hearing from all parties, trying to reach a consensus, and then making a decision”.
Politics isn’t a dirty word . It’s how we collectively make decisions when we all don’t have the same ideas or beliefs. Otherwise, what’s the alternative?
Jerry,
Instead of making this process more political, it would be “healthier” and less confusing to strip away the politics entirely and give the special permitting authority to a non-elected body.
According to the Secretary of State, Act 115 of 2003 gives towns flexibility in deciding the roles of some of the players by allowing towns to draft bylaws that designate which “appropriate municipal panel” will review particular permit applications. So it’s up to the municipality to determine which panel is most appropriate to conduct a particular type of review.
Many municipalities do not give the special permitting authority to their city council or other elected body so it will not turn into a political battle. Special permits must be obtained from the special permit granting authority (SPGA) for the municipality, typically the zoning board of appeals, or, for some uses, the planning board.
In Newton, we have discussed splitting the special permitting authority between the Planning Department or some other non elected body for small changes requiring a special permit, (since most of Newton is non-conforming, just about every change requires one) and leaving the large projects with the city council.
Our Planning Department urges developers to reach out to the surrounding community before filing an application. Northland and Mark Development have both done so.
After a special permit is filed, the council, land use, etc. can hold hearings to find out more about the project being considered, including listening to community members – deciding which are factual statements or just opinions is part of the job as they research, visit the site, conduct traffic studies, negotiate for changes they think are needed to be a good development for Newton, etc.
They are only legally required to not say how they are leaning on a vote whether asked or not. If individual councilors break those rules, there should be consequences particularly since the city fines residents for violating its many rules. (Trying to get the council to follow the rules was the bane of Ted Hess-Mahon’s existence on the city council.)
Individual councilors who use the following sentence as an excuse to vote no are acting as if none of the above work has been done and avoiding the meaning of “significant.” But then they could make up any excuse.
In addition,
In general, decisions of a quasi-judicial body require findings of facts to reach conclusions of law that justify the decision. They usually depend on a pre-determined set of guidelines or criteria to assess the nature and gravity of the permission or relief sought. Decisions of a quasi-judicial body are often legally enforceable under the laws of a jurisdiction; they can be challenged in a court of law, which is the final decisive authority.
* Quasi-judicial bodies need not follow strict judicial rules of evidence and procedure;
* Quasi-judicial bodies must hold formal hearings only if mandated to do so under their governing laws or regulations;
* Quasi-judicial bodies, unlike courts, may be a party in a matter and issue a decision thereon at the same time.
Re Jim Epstein’s argument that ‘both sides get together to iron out a solution’, I believe he is missing the point.
Signatures are being gathered ( now in excess of the mandated minimum ), for the sole purpose of putting the Northland Special Permit up for a city wide vote. Once it’s denied then any ‘negotiations’ might be undertaken.
The signers are putting their names down for that purpose alone with the expectation that they will be having a voice. To change course and not pursue the referendum would be contrary to their expectations and fly in the face of the ‘quasi judicial’, expectation that a vote brings to the table. The people are speaking,.. let them be heard !
SIGN THE PETITION !!!
Blueprint,
I’m glad you do actually agree with my main point, for both sides to get together to iron out a solution. However, you actually prove my other point as well, you’re more concerned with process (the referendum) than with substance (an acceptable Northland plan). There’s no legal reason Right Size must wait for the referendum if both sides can successfully get together. In fact, waiting for the referendum to run its course rejecting the Northland project, will preclude just that. Just ask the developer.
@ Jim,
There may not be “a legal reason to wait for the referendum “, but there is an ethical obligation to the thousands of signers to put Northland up for a vote.
Your right, I am more concerned about process than substance at this point.
I and signers want and expect a referendum.
Blueprint,
Seems to me the ethical obligation is to get a result the signers essentially prefer over what was permitted. Not just to fulfill some process which will actually prevent what they would realistically prefer.
But OK have your process and forget endeavoring to work things out. The referendum process trumps all else.
I’m going to look back after the City goes through the costly referendum process and watch as all see that we’re ending up with something substantially worse for all sides.
For analogy, just look at the Newton Corner disaster going back 35 years, ending up with cold bleak neighborhood unfriendly much of the time vacant office building (formerly Cahners Bldg.) because there was no effort for the sides to work things out to achieve much more mutually desirable neighborhood friendly apartments/housing. Disagreement was merely over height of the bldgs., and so developer just said screw it, and now look what we have.
Yup,.. and look at what we have. A graphic example, frozen in brick and mortar of greed and political malfeasance.
Out of scale construction is what we are getting today as well, from McMansions to 8 story apartment blocks.
When the motive is money, quality goes down the drain.
The recent developers quote, “ there is meat on the bone in Newton”, is so true from the let’s build community. The development industry is intent on enjoying a delicious meal at the expense of the citizenry.
“Density Is the Problem”, and that’s the angry message I get from the signers I’ve encountered. Hopefully enough voters will become aware of the predicament that they will be / are facing, that they will demand radical change.
We’ve lost too many trees, gained too much traffic, too many cars, too little parking, poorly paved streets and sidewalks, too much debt, massive elementary schools that require bussing, poorly maintained public buildings,.. etc etc. Development is a cancer on the environment we had come to Newton to expect. It’s time for some surgery .
Blueprint,
My Newton Corner example can be averted at Northland if, as I said, both sides can now get together. Elsewise you’ll end up at Northland with a post-referendum developer not subject to special permit and EVEN MORE DENSITY in terms of housing as there is in the current plan.
Anyone read the Mayor’s letter? March 3 is a presidential primary. I hope the city does the obvious thing and has the referendum the same date. That should save some money. Poll workers have to be there anyway.
I’ll have to agree with Jim Epstein here – just having a referendum out of spite instead of seeking a compromise resolution is throwing out the baby with the bath water.
Yes Fig, I read the mayor’s newsletter. I too hope, if we end up with a referendum, it’s held on a previously scheduled election date. The signatures are not in yet and I wish there was a way for citizens to understand that their signing is based on the false information being told to them. I wonder how many signatures could be collected based on the truth?
Of course, if there’s a referendum, Northland, a Newton developer who reached out to neighbors, could just throw in the towel, sell off the parcels of land and be done with it. We could be left with the blight that’s there now or something worse and lose all of the benefits Northland brought to Newton. Or the referendum could lose and we could still get a great project just right for Newton.