Arriving home from my own meeting sometime after 9 last night, I glanced at my Twitter feed and was surprised to learn that the Lowell Planning Board was still debating the merits of the proposed charter school on outer Middlesex Street just past the Rourke Bridge. I turned on my TV in time to catch the board members explaining their rationale for their impending votes in favor of the proposal in the face of stiff opposition by neighbors, opposition rooted in the additional traffic the school would bring to an area already choked by too many vehicles.
Not surprisingly, the proposal passed unanimously. I say “not surprisingly” because when it comes to controversial proposals before unelected boards, the neighbors rarely prevail. This is not meant as a criticism of the individuals who serve on the planning board. I know all members of the planning board, most for many years, and consider several of them friends. They collectively have a long history of selfless service to the city and have stepped up to do a job few others are willing to do.
That said, I have still come to believe – based on several of my own experiences at diverse times and on my observation of other matters before such boards – that the deck is stacked against neighbors who oppose development. The developer has the deep pockets and donates to candidates and causes, perhaps out of generosity but also for the accumulation of good will intended to subtly tip the scales in the decision making process on specific proposals (and sometimes not so subtly as when a proponent’s presentation turns into a “good guy of the year” testimonial for the developer). The developer also uses those deep pockets to employ professionals who make a living pitching proposals, conducting “independent” studies, and interacting with not only board members, but the staff and administrators who wield considerable behind-the-scenes influence on the decision making process.
It is this latter contact which though neither illegal nor unethical and which is seen as necessary to the process, that most tips the scales against the neighbors. The constant contact between the developer’s team and city officials gradually creates a subconscious buy-in by those officials. All concerned would deny any such phenomenon exists, but that’s just because they either don’t recognize it or won’t acknowledge it. It is the very reason that judicial proceedings have such strict prohibitions against ex parte (only by one side) contact with the judge. It’s not because something overtly illegal is going on; it’s because impartiality in the hands of humans is such a delicate thing that even the slightest contact between one party and the decision maker can tip the scales.
Am I suggesting that all communications between the development team and city officials be banned (or between neighbors and city officials, for that matter)? No, that would be unrealistic. But I do advocate a requirement that board members and city employees advising or assisting that board be required to disclose any communications received from anyone related to a pending proposal before voting on such proposal. Such disclosure would create only a minimal burden and would make everyone aware of the lobbying, both direct and indirect, that was taking place in advance of an otherwise impartial hearing on a proposal. To the extent such a rule would serve as a deterrent against ex parte communications with board members, I suspect those same board members would welcome it. I’m guessing they would much prefer deciding a matter based solely on the information presented to them at the public hearing rather than being subjected to the intense, behind-the-scenes, pre-hearing lobbying that has long been a part of Lowell’s political culture.
I do have one mild criticism of last night’s process. After it became clear from their pre-vote comments that the board would vote unanimously for the project, an epidemic of condition setting broke out much to the dismay of the planning board administrator and the attorney for the proponent. There were too many conditions rattled off too quickly to be cataloged here, but it was as if, after voting for the project, the board attempted to assuage every concern raised by the opponents of the project. Sidewalks, access to playing fields, bus schedules – I half expected to hear “The rain may never fall till after sundown.” and “By eight, the morning fog must disappear.” but I did not. As well meaning as the imposition of such conditions may be, I suspect they are enforced loosely if at all and so don’t count for much long term. (And for anyone doubtful of that, look up the conditions imposed on the gas station at the corner of Gorham and Elm Street and see how quickly they faded away).
So that’s my proposal – impose on city board members and support staff the requirement that any ex parte communication with anyone, pro or con, regarding a matter to be decided by the board, be publicly disclosed at the start of the public hearing on that matter. Given Lowell’s political culture, it might make for much longer meetings but it would make for fascinating TV.