Section Review

Kiernan v. City of Salem and zoning revision: Striking a new imbalance between planning controls and property rights

Joel Z. Eigerman has practiced in Boston, primarily as a litigator, for 35 years. Since 1991, he has been a solo practitioner engaged in a wide range of litigation. He represented the Salem Redevelopment Authority in Kiernan v. City of Salem.
Kiernan v. City of Salem, et al, 58 Mass. App. Ct. 181 (2003), represents but the latest diminuendo whimper in a half-century of unsuccessful resistance to the sweep of the urban renewal laws. Given that old-fashioned clear-and-build urban redevelopment is a dead-letter, both in Massachusetts and nationwide, it is perhaps a final whimper, and is of little intrinsic interest except insofar as similar fact situations may recur before all of the existing urban renewal plans terminate. The history of which it is the latest chapter, however, has wider implications for a variety of land use techniques, and at a time when the legislature is considering a radical rewriting of the zoning enabling act (General Laws chapter 40A), it may bear some analysis.

Urban renewal law grew out of the original national housing acts of the 1930s. There was then some question whether the "nine old men" would consider the provision of housing a valid public purpose supporting both the appropriation of tax money and the exercise of eminent domain. To avoid the question, Congress relied on the police power: it was not housing that was being undertaken, but slum clearance. It was legislatively declared that slums bred a welter of social ills - crime, disease, immorality - and that eliminating slums was a valid exercise of government's most fundamental functions. Incidentally, new housing would be provided for those displaced, but this was, of course, only a by-product of the clearance program.

After World War II, the same method was applied to the redevelopment of commercial or mixed districts. In a pattern made uniform by the interplay of federal law and regulation with uniformly prescribed state and local statutes, all passed by governments anxious to ride the gravy train, large areas of American cities were duly declared, again in legislative findings, to be blighted, sub-standard, obsolete and an obstacle to growth and progress. Billions (90 percent or more federally funded) were spent expropriating private property, demolishing existing structures, rebuilding infrastructure and then reselling the land at necessarily bargain prices to other private owners, who had agreed to develop it in accordance with articulated plans under the supervision of archetypal "mission" agencies - that is, local urban renewal authorities.

Unsurprisingly, numerous challenges to this process were made by those whose property was being taken and who had not been invited to participate in the New Jerusalem. Attacks were made on the findings of "blight"; but the courts uniformly held these to be legislative determinations insulated from judicial review. Objections were raised to the transfer of property from one private owner to another, but the courts dependably ruled that the intervening acts of land assembly, re-laying out of streets and utilities and resale for use according to an overall plan, washed away any original sin and rendered the reuse a public purpose.

In Massachusetts, the seminal case was Moskow v. Boston Redevelopment Authority, 349 Mass. 553 (1965), the so-called "Parcel 8" case. There, the SJC waved away a series of challenges to the taking of an office building in what is now Government Center and the resale of the land to the New England Merchants National Bank for the construction of 28 State Street. Beyond its opaque and unsatisfying reasoning, the decision is a monument to the court's unwillingness to intervene in what it plainly saw as a political process. It was followed by later cases in which the court would not review the procedure by which the determination of "blight" was made, saying that the hearing mandated by statute was legislative and not adjudicatory, Reid v. Acting Commissioner of the Department of Community Affairs, 362 Mass. 136 (1972); where the court deferred to the redevelopment authority's judgment as to what was a major plan change, requiring state agency review, Commissioner of Department of Community Affairs v. Boston Redevelopment Authority, 362 Mass. 602 (1972); and where the Appeals Court concluded that mere citizens and abutters had no standing to challenge substantive determinations of an urban renewal agency since these are quintessentially political, legislative decisions. St. Botolph Citizens Committee, Inc. v. Boston Redevelopment Authority, 429 Mass. 1 (1999).

Against this background, in the Kiernan case a landowner within the urban renewal area challenged the closing of a side street lying between his property and that of the Peabody Essex Museum, and the subsequent conveyance of the land under the street to the museum for its recent major expansion. He argued that he had a right to insist that the street remain open because the urban renewal plan, upon which he presumptively relied when he purchased and developed his property, showed it as a street. He also claimed that the street closing had been procedurally defective, that he had been damaged by the closing and that the sale of the land to the museum was a private reuse and not a valid public purpose. Predictably, and deservedly, he failed on all counts.

In the typical urban renewal plan, land is conveyed for private redevelopment subject to numerous controls, chief among which is the obligation to devote the property to the purposes set forth in the plan and agreed upon between the redeveloper and the authority. In Massachusetts, at least, these controls are imposed the old-fashioned way: as express covenants, running with the land and coupled with an ongoing interest. In the usual format, the conveying redevelopment authority retains the right, by covenant, to make the purchasing developer toe the line, at least for the duration of the plan (usually 40 years). Except insofar as any changes to the plan may directly affect its individual parcel, the redeveloper is without power to enforce the covenants governing other parcels in the renewal area. To give each developer such power, manifestly, would freeze the urban renewal plan and deprive the renewal authority, and the public it serves, of the opportunity to adapt a redevelopment scheme to inevitably (but unpredictably) changing conditions over a period of decades.

In Salem, the redevelopment plan and the operative deeds hewed to this archetype. The plaintiff asserted a right to enforce the renewal plan's designation of the side street as a street, relying on the case of Gulf Oil Corp. v. Fall River Housing Authority, 364 Mass. 492 (1974). In that case, however, the deeds out to the various redevelopers in fact did carry mutual covenants, and each owner had the iron-clad right to enforce the original plan controls for every other parcel in the redevelopment area. (One wonders how the Fall River plan functioned under such a handicap, but that is for another day.) Kiernan was not helped by the incidental fact that the redevelopment authority had deeded all of the streets in the project area to the city without reserving any rights even in itself to control their future use, and had done so two years before the plaintiff purchased his parcel. He was also not helped by language in his land disposition agreement (the purchase and sale between a redeveloper and the renewal authority) granting him power to object only to changes in the controls specifically applicable to his parcel.

The plaintiff fared no better on his other claims. Both the Superior and Appeals courts rejected the notion that he had suffered any damage from the street closing different from that of the public at large, since he retained substantial frontage on the main street (Essex Street) running in front of both his building and the museum. His claims of an ownership interest in the street and of an easement by necessity were plainly ill-founded and went nowhere; and Judge Kaplan was moved to remark that as the beneficiary of a public taking of some other private owner's land (which the redevelopment authority had then sold to him), Kiernan was ill-positioned to object to the devotion of the street to the "private" purposes of the museum.

In itself, the Kiernan case is only notable for the tenacity with which it was pursued. Despite the heavy weight of precedent against his claim, the plaintiff weathered the denial of a preliminary injunction (in which Judge Haggerty wrote a detailed opinion that surely put the writing on the wall) to contest, unsuccessfully, the defendants' motions for summary judgment (in which Judge Merrick wrote an equally devastating memorandum and order). After the claim of appeal was filed, the plaintiff sought direct appellate review from the Supreme Judicial Court, which was denied; and after the Appeals Court, by Judge Kaplan (when was the last time the SJC reversed him?), denied the appeal, the plaintiff then sought further appellate review, which, again, was denied.1 But beyond its own limited impact, the case is illustrative of certain judicial attitudes that should be borne in mind.

First and foremost is a wide pendulum swing, in the early- and mid-20th century, away from the strict enforcement of private property rights and in favor of "planning," even when that severely limits the freedom of owners while broadening the categories of "public purpose" supporting the taking power. While at the federal level there has been some backlash against this trend, and a greater readiness to see excessive regulation as itself a compensable taking, no such trend is apparent in our state law. Moreover, at neither level does there seem to be any retreat from the corollary deference to the "political" decisions of local approval authorities.

While many would applaud this trend as essential to the working of a host of modern land use regulation techniques, it has its downside; and this writer, for one, would question the wisdom of an evolution that makes virtually every development project the subject of the give-and-take of local politics.

This issue is brought to the fore by current proposals to amend Chapter 40A of the General Laws. One version, entitled "An Act to Promote Land Use Reform in Massachusetts," is embodied in Senate Bill No. 1174, introduced by several legislators with the backing of the local affiliate of the American Planning Association. The changes are, in a word, radical. Their provenance is not hard to determine, but whether the cure won't be far worse than the disease is unclear.

The proposed act broadens the definition of the local zoning power and purports to make it co-extensive with the "home rule powers conferred by…the constitution," and limits the commonwealth's power to supervise. The bill then adds a vastly increased set of purposes to be furthered by zoning, including considerations of aesthetics, social and economic policy, environmental protection in the broadest sense, and any "other purposes…as [the cities and towns] deem appropriate." The draft goes on to welcome every fashionable zoning tool - development impact fees, "contract" or negotiated zoning, transfers of development rights, and so on - without providing any meaningful check on or uniformity to their use. It authorizes site plan approval requirements for literally any use, including, presumably, a one-family house on a standard lot. It eliminates, as if by the way, the approval-not-required process under the subdivision law, and makes the division of any land, even into two plainly adequate lots with grade-level street frontage, subject to the full planning-board process.

The existing zoning and subdivision laws already arm cities and towns with a vast discretion over any serious development or change in use. As with the law in the field of urban renewal, the courts generally have declined to intrude on the substantive decisions that the statutes leave to local boards. If those decisions have been reached with minimally adequate foundation and after appropriate proceedings, the political judgments of the local authorities have generally been left undisturbed. It may be argued whether this deference has struck the right balance between the forces of progress and change and those of reaction and NIMBY-ism (or, depending on your point of view, between greed and rapacity on the one hand, and an embattled citizenry on the other); but there seems little doubt that the adoption of any measure closely resembling the present proposal would shift that balance immeasurably.

Under the proposed changes to Chapter 40A (and to Chapter 41), every routine permit application would become another episode of "Let's Make a Deal." The concept of land use controls as a limited intrusion on private property rights in order to safeguard the core public interests of health, safety and, perhaps, the separation of incompatible uses, would be at an end. The total politicization of the permitting process can only add to the already Byzantine complexity, cost and delay surrounding all of our land use decisions. It will further empower the "BANANA" faction,2 ensure the ability of wealthier towns to remain exclusive and invite even more corruption and cronyism. Moreover, everything is left to the locality. We may expect that modern planning techniques, which might be welcome advances in the hands of a centralized and expert administration, operating under uniform and explicit controls, will, under the proposed act, become just more empowerment to local amateurism and prejudice. In many towns, if you are not at peace with your neighbors, chummy with the selectmen and on drinking terms with the building inspector, you won't be able to build an outhouse.

And the lesson of the Kiernan case is that the courts will not intervene. One can see why they would not wish to; with every permit application subject to discretionary review, they could fill their docket with such cases. But is this a future we want? That every local board be entitled to veto an application because it does not meet "the need to balance the 'built' environment with the 'natural' environment?" So long as the board gives proper notice and records appropriate findings, the courts will not review whether this "standard" has been met. Eventually, perhaps, a case will so offend some moss-backed jurist that the property-owner will prevail on an inverse taking claim. But that, I suggest, is the antithesis of a system.

1. One is moved to wonder why the plaintiff, the proprietor of a long-established high-end gallery, selling, first and foremost, expensive 19th century marine paintings, should struggle so desperately against the revival and expansion of the foremost institution in that field outside of London, Boston or New York. Surely nothing else in downtown Salem would be likely to attract traffic useful to his establishment.[back]

2. "Build Absolutely Nothing Anywhere Near Anybody".[back]

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