Planning boards throughout the United States conduct public meetings to adjudicate land use applications. These boards, though understudied in legal scholarship, have a significant impact on local development, and thus on local and regional social equity, environmental impacts, and economic power. Meetings for land use planning are obstacles to building the housing necessary to mitigate the American housing crisis.
Public participation laws allocate power. Participation mandates disempower elected local governments, while failing to live up to democratic ideals. The disempowerment is based on erroneous justifications, and takes away most municipal residents’ voice. In an unusual turn for a state law about local governments, participation laws also disempower the state itself. They allow the privileged to thwart state and regional interests, along with local governments.
This article studies two different legal structures to demonstrate how participation laws shift power. The Massachusetts system is similar to those throughout the United States: planning boards hold meetings to solicit comments on individual projects. In the English system of Neighbourhood Planning, community groups create their own legally binding land use plans. Both systems are built on an unwarranted, pernicious distrust of local government. And neither system adequately accounts for the disparity of power between local residents, who have the ability to participate, and others in the region, who do not have that opportunity despite the interconnectedness of housing throughout a region.
However, the English system offers a potential model for democratic public participation in land use planning: With some changes, it would allow for state interests to be adequately represented in a participation scheme. The article also explores other ways that participation can account for state interests. To address the housing crisis, reformers must design a system that accounts for existing inequities while giving a voice to all whom land use planning affects. Analyzing power shows what such a system could look like.
On any given weeknight across the United States, local planning boards and commissions meet to decide the fate of proposed housing and commercial development. Developers frequently need approval from these commissions to build, particularly in the high-density coastal areas where land use regulations tend to proliferate. In the aggregate, these bodies effectively control much of the country’s housing stock. As a result, board members, who are typically nonexpert and often unelected, significantly influence the country’s racial and economic integration, environmental sustainability, economic vitality, and social connectivity.
A central feature of a typical planning board meeting is public participation. In the wake of urban renewal in the mid-twentieth century, reformers sought to check the perceived excesses of city planners, who were seen as destroying neighborhoods and displacing residents. Critics traced the failures of urban renewal in part to a conflict between planners’ ostensible expertise and residents’ actual lived experiences. Public participation was meant to empower residents to control future development. Planning commissions had existed since 1907, but in the mid-to-late twentieth century they grew in importance and became the means for the “community” to block planners’ excesses.
The reformers were too successful. In the midst of a housing crisis that now requires large amounts of new development to solve, public meetings have become a bulwark against building. Critics argue that public participation schemes ensure that “not-in-my-backyard [NIMBY] stakeholders can reject even projects of great public benefit.” Housing advocates complain about the endless delay that public meetings enable: “It’s like playing Whack-a-Mole. . . . No matter what you propose, they’ll tell you that if it was just a little bit different, they could support it. But then you come back with the changes they asked for and they find a new reason to fight it.” Further, these meetings divide communities into predictable factions, pitting older homeowners against younger renters in generational warfare as the two sides lob harangues at government officials and each other. Contentious meetings are not hard to find. The image of the frustrating, futile public meeting is now so ingrained in popular culture that a major network television show satirized it multiple times.
Public participation has attracted renewed critical attention from political scientists. In a 2018 article and a 2019 book, Professors Katherine Einstein, Maxwell Palmer, and David Glick demonstrated how “neighborhood defenders”—local residents, generally homeowners—use public meetings to stop development. Using unusually detailed records of planning board meetings in Massachusetts, they showed that participants in public meetings are not a representative cross section of the general public; rather, commenters are disproportionately likely to be white, male, older, homeowners, longtime residents, frequent voters, and opposed to the project at issue. They also demonstrated how public meetings are opportunities for project opponents to stop or delay development. Building on long-standing scholarly critiques of public meetings, Professor Einstein and her coauthors brought a new, powerful empirical lens that validated critics’ fears.
Public meetings are not just a bane for developers and planners; they are also a form of local governance. This article examines public meetings through that lens. A law mandating public meetings sends a message that representative democracy is insufficient. Public participation laws exist largely because state or national governments distrust elected local government to exercise power responsibly (for simplicity, I will use “local government” to refer to elected local officials). State or national legislatures use public participation mandates to check local government power. It is well-established that state governments are typically hostile to local power. But the public meeting is a unique type of restriction. In a typical conflict between local and state government, the state prevents local action outright in the name of state interests. Through public participation laws, the state empowers minorities of municipal residents to override local and state interests.
This atypical power structure has pernicious results. Providing a forum for a development’s neighbors to participate amplifies the preexisting power disparity between nearby residents—who bear most of the costs of development and are intensely motivated to stop it—and the widely dispersed regional population that usually reaps its benefits. Through public participation opportunities, residents lock in preexisting advantages. This is problematic for two reasons. First, it prevents the construction of sorely needed housing. Second, those who do not or cannot participate in meetings lose their democratic voice.
This article and its conclusions are based on two case studies. The first is Massachusetts, which Professors Einstein, Palmer, and Glick also studied. The second is England’s relatively new Neighbourhood Planning system. Since 2011, local community groups in England have been empowered to produce their own land use plans with legal force. The process is lengthy. Proposed plans must satisfy numerous criteria. But the result is powerful: a legally binding plan with substance driven entirely by local residents, at least in theory. Comparing these systems exposes the different choices that designers of a public participation system can make, and the goals these choices are meant to pursue. Massachusetts, for example, seeks to use public meetings to improve planning decisions by increasing the quantity of public input and forcing the government to hear from residents. England, meanwhile, has tried to build an institution of enhanced, participatory democracy where residents drive all substantive decisions. The crucial similarity is that both have created government by a minority. In Massachusetts, local residents overcome expert planners in the name of improving planning. In England, residents of a region affected by Neighbourhood Planning lose the voice they previously exercised in elections. Participatory democracy comes at the expense of representative democracy.
Despite the importance of public participation in planning, there is a dearth of legal scholarship analyzing public meetings. Such scholarship is warranted for several reasons, including the widespread use of public participation as a form of governance, the distinctive legal structures that undergird public participation systems, and the impact of public meetings on housing policy. Analyzing public meeting law sheds new light on the power structure created among local elected officials, local residents, and regional residents affected by local policy.
Part II of the article discusses the legal frameworks for public participation in Massachusetts and England. After reviewing each framework, I describe how they contribute to the housing crisis by empowering minorities opposed to development and preventing necessary development. Part III scrutinizes the aims of these systems, demonstrating that public participation schemes are designed to undermine local government authority. I identify five potential aims for public participation laws and explain why a system designer might choose to pursue each one and the pitfalls of doing so. Part IV turns from local power to state power, showing how the state (in Massachusetts) or country (in England) undermines its own interests through public participation laws that favor entrenched, privileged residents. Yet Part IV argues that England’s system suggests a way for the state to reassert its interests and meet regional housing needs. It also explores alternative ways to represent state interests. Part V concludes.
This part presents two case studies of public participation laws and demonstrates how they stymie development. Section A describes the Massachusetts system of planning commissions. Section B describes the English Neighbourhood Planning system. Each Section begins with a review of law and proceeds to a discussion of the results.
The results are discussed against a backdrop of certain assumed values and aspirations. Some of these are obvious: A participation system should allow sufficient housing to be constructed in a region to forestall severe homelessness, housing instability, and a widespread lack of affordable housing. Also, a public participation system should not exacerbate or help create a housing crisis, with its accompanying social, economic, and equity ills. Public participation can also be measured against certain democratic and governance values. While a full categorization of such values is outside the scope of this article, three are most at stake in the context of land use planning. First, does the empowered participation body adequately represent the public at large, in some form? Second, is there equity—does participation exacerbate existing power hierarchies? Third, does the system foster trust in the process? These questions are related. This Article assumes these values are worthwhile, and assesses how the Massachusetts and English systems meet, or fail to meet, them.
Massachusetts law is, at a general level, representative of much of U.S. public participation law. Massachusetts developed its most important land use law during a high-water mark for the ideology of neighborhood defense, when many states were developing participation requirements in response to the perceived excesses of urban renewal. The Zoning Law in its current form was the product of a 1975 overhaul, after what Governor Michael Dukakis described as “several years of work.” The overhaul for the first time forced a large number of development through public participation processes.
The key feature in Massachusetts is the public hearing. Such meetings are common across the United States. A 1997 “survey of city managers and chief administrative officers found that over 97 percent of cities use [public meetings] as a strategy for dealing with citizens.” Planning boards and zoning boards of appeals, both examples of a common American feature, operate these meetings. Planning commissions arose in the late 19th century to insulate planners from machine politics. They appeared in Massachusetts in 1913, when the legislature authorized the more populous towns and all cities to establish such boards “to make plans for the development of the municipality with special reference to the proper housing of its people.” As zoning became commonplace in the wake of the Supreme Court’s 1926 decision in Village of Euclid v. Ambler Realty Co., planning commissions took on an increasingly political role, as politicians sought to use them to temper planners’ expertise with “common sense.” This dynamic became an important one, as well as a source of tension: planning commissions are nonexpert bodies meant to check experts. This hesitancy surrounding the role of expertise in a democratic system is a longstanding one in planning, and in local government broadly. The tension intensified as new public participation innovations were also placed under planning commissions’ auspices. The 1975 overhaul, by extending participation to many more developers and private homeowners through the special permit and variance procedures, was the culmination of a historical trend.
Three statutes largely determine the format, contents, and impact of public meetings: the Open Meeting Law, the Zoning Law, and the Anti-Snob Zoning Law. Each sets out procedural requirements with which the relevant actors must strictly comply.
The Open Meeting Law enables participation by requiring transparency in decision-making. It requires planning board meetings be open to the public and publish minutes. Its detailed structure makes it prone to violations, giving meeting participants legal leverage. For example, as of January 30, 2021, there were 152 unresolved complaints under the Massachusetts open meeting law, most filed in the second half of 2020. Penalties, however, are not severe: there are many enforcement options available short of nullifying a meeting. Further, public bodies do not face financial penalties unless the violation was intentional, and penalties are capped at $1000.
The Zoning Law, Chapter 40A, is more central to the Massachusetts system. It gives planning commissions substantial land use power, including responsibility for most public engagement. Commissions are required to hold hearings in several circumstances, including the adopting or modification of a zoning ordinance and the adjudication of applications for special permits and variances.
Each type of hearing has specific requirements regarding notice and time limits. For changes to a zoning ordinance, the planning commission must publish notice of the meeting in a newspaper and provide notice to certain government agencies is required. For special permits and variances, the commission must publish notice in a local newspaper twice and mail notice of the meeting to “parties in interest”; those include abutters to the site at issue, abutters to those abutters within 300 feet of the site at issue, and owners of the land directly opposite a street. Failure to provide notice can render a decision at a meeting void. Significantly, the notice provision is targeted at neighboring property owners, rather than neighboring renters, who might favor increased development to increase housing supply and decrease rents. These provisions are typical of notice provisions in many states.
Meetings have few procedural restrictions to promote finality, advantaging opponents of development. Commissions must hold a second public hearing if the “substantial character of the original proposal” changes after the first. Many projects require multiple meetings due to such changes or opponents’ demands for new studies. Over the course of these meetings, there is no analogy to issue preclusion or law of the case—meeting participants at the first meeting may agree that a certain study is unnecessary, only to see project opponents and a planning board require that study months later. Thus, amendments to project applications intended to assuage local concerns will face project opponents once again, and those adversaries are free to make new arguments or claims contradicting their prior statements while demanding that the changes be undone. Project opponents can drag out the participation processes long enough for a building permit to expire. And only project opponents get multiple bites at the apple. After an application is denied, planning commissions cannot entertain a renewed application for two years following the denial, unless a supermajority of the commission votes otherwise.
Chapter 40A gives project opponents an easy route to the courthouse, providing them with more leverage at meetings. Any “person aggrieved” has standing to seek judicial review. The parties in interest—that is, “the petitioner, abutters, owners of land directly opposite on any public or private street or way, and abutters to the abutters within three hundred feet of the property line of the petitioner”—are granted a rebuttable presumption that they are aggrieved. The presumption does not extend to renters—property ownership is given more weight than residence. Other parties can also demonstrate they are aggrieved by showing that the grant of a “permit causes, or threatens with reasonable likelihood, a tangible and particularized injury to a private property or legal interest protected by zoning law.” Thus, any number of individuals can pursue judicial review of planning commission decisions, triggering the attendant delay of litigation. The state recently added an additional barrier by giving courts discretion to require plaintiffs to post a cash bond or surety of up to $50,000. However, its impact may be tempered by other limits in § 17.
Standing is, as usual, a prerequisite to jurisdiction, but opponents of development can usually establish it even if they are not presumed aggrieved. “[T]he right or interest asserted by a plaintiff claiming aggrievement must be one that the Zoning Act is intended to protect, either explicitly or implicitly.” The interests the Act protects tend to favor anti-development interests. Admittedly, generalized grievances cannot support standing. For example, the Massachusetts Appeals Court found a plaintiff had not established she was aggrieved when she claimed that a development “would be ‘detrimental to [the plaintiff] and the neighborhood by increasing the potential for overcrowding and undue concentration of population, discouraging housing for persons of all income levels, enhancing danger from fire, diminishing the value of surrounding properties, and adding to noise, light, traffic, loss of privacy, and trespass.’” Still, such rulings focus mostly on neighborhood harms and leave common complaints of project opponents, such as construction noise or diminished views, as available avenues to demonstrate injury.
Once standing is established, judicial review poses substantial risks to approved projects. Fact finding is de novo by the court. This gives judges substantial latitude to overturn planning commission approvals, which is worrisome if judges share an anti-development bias with homeowners. Judges are not entirely unbounded as they will give substantial deference to a planning board’s interpretation of its own zoning bylaws, provided its decision is supported by law and not “unreasonable, whimsical, capricious, or arbitrary.” But they are much more likely to defer on an ultimate issue when a variance or special permit was denied, compared to grants of variances or permits. If judges do not defer, their remedial power is broad, and they may annul any decision of a planning board “found to exceed the authority of such board,” or “make such other decree as justice and equity may require.”
Massachusetts does provide one avenue for affordable housing developers to bypass many public meetings: the Anti-Snob Zoning Law. A government or nonprofit group can apply to a local zoning board of appeals (“ZBA”) for a single permit to build a substantial amount of affordable housing, rather than applying for multiple permits. The ZBA will then hold a single hearing, subject to the same notice requirements as would apply to a special permit or variance application. This hearing may even include restrictions on who can speak. The ZBA must approve the project if a denial would not be “consistent with local needs” for affordable housing; if it denies the project, the applicant can appeal to the state Department of Housing and Community Development (“DHCD”), which can overturn the denial solely on this ground. “Consistent with local needs” has a broad, fact-intensive definition that considers “the regional need for low and moderate income housing[,] . . . the number of low income persons in the city or town affected . . . , site and building design in relation to the surroundings, [and the need] to preserve open spaces.”
The system on the whole provides ample opportunity for all interested parties to be heard. Project proponents and opponents have numerous opportunities to attend meetings and appeal results based on both substantive and procedural defects. The law is solicitous of neighboring property owners, ensuring they have notice of meetings and standing to sue. Renters and people who do not yetlive in an area are afforded less protection.
The system has produced alarming results. Most notably, public participation has contributed to a housing crisis in Massachusetts. There is a vast shortage of affordable housing in the Boston region. This is due in part to a legal framework that provides for extensive, delay-inducing public participation processes. While zoning regulation has become much stricter since the 1970s, substantive regulation is not the sole culprit behind the lack of housing. Procedural frameworks have provided project opponents with new opportunities to stop the construction of new housing, or at least delay it and increase its cost. It takes very few people, and a small number of regulations, to stop a project in its tracks. Procedural requirements allow opponents to use substantive regulations—even ones that few people actually care about—to block projects. By focusing on variances and special permits, procedural regulations also force mundane projects through lengthy public meeting processes.
The costs of insufficient housing are severe. Housing prices increased 53% between 2009 and early 2020. Residential segregation is endemic across the region, keeping “some of the highest-performing public schools in the country” predominantly white and wealthy. A lack of housing likely exacerbates inequality by forcing lower-income individuals to spend proportionally more of their income on housing. Nearly four in five low-income renter households in Massachusetts were rent burdened in 2016, meaning they spent over a third of household income on rent and utilities. Stricter zoning has also harmed the national economy by creating misallocations of population across the country. It has prevented colocation, leading to higher transportation costs, worsening labor markets, and reduced possibility for information spillovers. The housing crisis creates housing instability, exacerbates racial inequities in education and job access, and spurs gentrification.
This is not to say that public participation has no value in Massachusetts or elsewhere. Both wealthy, white communities (such as those in some Boston suburbs) and less advantaged communities of color can use the same participation structures to stop proposed development. But each group’s motivation may be different, and the historical and social context of each situation may call for a different policy response. Pro-development advocates tend to see themselves as natural allies of tenant rights’ groups in marginalized communities; they often argue that only allowing new housing everywhere can prevent gentrification. Indeed, empirical evidence tends to confirm that building new housing is essential to maintaining housing affordability in low-income neighborhoods. But reconciling the need for more housing with redevelopment’s historical role as a force of displacement is fraught; marginalized communities may feel that they have borne more than their fair share of new development. These concerns are important. This article does not attempt to address this problem, because at a regional level the picture is clear: housing is needed, public meetings allow anti-development sentiment to contribute to a housing crisis, and wealthier towns in Massachusetts could help mitigate this crisis by building more housing.
The housing crisis in Massachusetts is due in part to problems of democracy that public meetings produce. First, public meetings do not equitably empower the public. A recent study examined speakers at planning board meetings in the Greater Boston area, using data from voter files and elsewhere. It found that speakers at planning board meetings are, as compared to the towns in which they live, disproportionately white, male, elderly, homeowners, longtime residents, and frequent voters. And based on their comments as captured in meeting minutes, they were overwhelmingly opposed to the project at issue. Practitioners perceive this unrepresentativeness, as do activists and media, particularly with regards to age. The unrepresentativeness is unsurprising given that participation in political processes is predicated on access to resources, engagement, and recruitment, all of which benefit wealthy homeowners who have been in an area long enough to learn the political landscape and meet other anti-development residents. These neighbors are hyper-vigilant—likely needlessly so—about their home property values, a concern often influenced by race- and class-based fears. The availability of judicial review also favors wealthier parties. This unrepresentativeness distorts the inputs to the democratic system, as a critic in popular media observed: “Public input processes are a part of our democracy, so when in-person meetings are the primary method of gathering input, and those meetings are inaccessible or traumatizing, people who are kept out are excluded from the public square.”
This problem of democracy—unrepresentativeness—translates into obstacles to new housing because local government law reinforces neighbors’ anti-development preferences. Multiple features of local government law, thoroughly reviewed in scholarship, encourage homeowners to fragment themselves into homogenous enclaves and oppose nearby development. Legal structures permit de facto municipal segregation by race and class. Participation law helps maintain the segregated status quo. There may be some value to a well-designed participation system, especially since local elections, as currently designed, have their own flaws. However, as it stands, the Massachusetts system of public participation is a crucial support for an unjust, economically harmful, and environmentally destructive system.
There is still room for improvement under existing law. Non-legal reformers have identified several potential best practices for planners seeking to make meetings more democratic. They include convenient meeting locations and times, proactive outreach with a larger budget, active facilitation that prevents loud voices from dominating, notice to a broader array of affected groups, true acknowledgement to participants’ concerns, and a more structured dialog between local officials and participatory groups. Indeed, law is often silent as to many crucial choices planners must make. But improvements of this sort inevitably run up against barriers that dilute their impact. No matter how convenient or well run a meeting is, attendance requires people to have free time in the first place. Further, the seriatim nature of zoning decisions make trade-offs difficult. And disparities in intensity of preference between project opponents and beneficiaries remain. The participation system as currently structured inevitably perpetuates hierarchies—and those at the top benefit when development stalls.
The Massachusetts system of public participation helped create a housing crisis; the English framework was built to help solve one. The Localism Act 2011 introduced a lengthy, complex planning process, with a seemingly tantalizing result: local residents must accept some new development, but they receive binding control over precisely where it goes. Unfortunately, the initial results of the Neighbourhood Planning system have failed to live up to its designers’ lofty ambitions.
There were two key contextual backdrops to the enactment of the Localism Act—one legal and one practical. First, prior to 2011, opportunities for public participation in land-use planning in England were limited. This was due in part to the centralization of English government, and, correspondingly, the relative disempowerment of local government. In England’s three-tier system of local government the main site of public participation for a century had been the lowest tier: parish councils. Parish councils represent small areas, seem to be well-entwined in communities, and have connections to higher levels of local government. However, they failed to be an effective community voice. Not all areas are parished, so many people had no access to a parish council. Where they existed, parish councils had small budgets that limited their efficacy. Elections for parish councils were (and still are) often uncontested or nonexistent, leading upper tiers representatives (and scholars) to question whether they truly spoke for the areas they represented. Ultimately, parish councils failed to provide an effective space for public participation.
The middle tier of the system had somewhat more power, but limited participation opportunities. This tier is made up of “local authorities,” including district councils, London borough councils, and unitary authorities. Local authorities faced some public participation requirements, such as preparing statements of community involvement and consulting with certain local groups when creating a development plan. However, these requirements failed to foster any sense of empowerment. Commenters often felt their participation was “stage managed by planning professionals.” Moreover, public meetings left little room for public participation. Local authorities had discretion over how to structure planning committee meetings, and they generally exercised this discretion strictly to limit the number of speakers and the time they had to speak, sometimes giving only one supporter and one opponent three minutes apiece.
Second, in the run-up to the Localism Act, parts of the country, particularly Greater London and South East England, were undergoing a housing crisis. Over the 2000s, the pace of new housing construction dropped, in part due to local resistance. In 2012, only half as many new units were completed as were needed. This, in turn, led to rising rents with the same economic harm and burgeoning inequality observed in Massachusetts. The Localism Act aimed to change local attitudes, in the hope that residents would be more amenable to development in their neighborhood if they had more control over it. The Act sought to “giv[e] local people real influence over the scale and shape of development and at the same time enabl[e] the volume house-building corporations that dominate the industry in England to access land and gain planning approval more easily.” A key metric for measuring the Act’s success would be a drop in the number of rejected planning applications.
The Localism Act intended to decentralize power past—rather than to—local governments. The Act had three goals: encouraging local residents to be more accepting of new development, empowering neighborhood groups, and disempowering local government. The governing Conservative/Liberal Democrat coalition sought to shrink the state, replacing it with communities and neighborhoods in “the space of public responsibility.” The Neighbourhood Planning process embodied this intention, theoretically furthering all three of the Localism Act’s aims. The process incorporates several steps: the designation of a Neighbourhood Area, the designation of a Neighbourhood Forum, the preparation of a draft plan, review by the local authority and an independent examiner, and a referendum. The end result is a Neighbourhood Development Plan (“NDP”).
The first step in the process is the designation of a Neighbourhood Area. The Localism Act sets out a process under which anyone can apply to the local authority—the middle tier of English local government—for the designation an Area. Upon receiving an application, the local authority provides an opportunity for anyone to submit written comment, and then, within a set time limit, decides whether to designate the Area. The local authority has broad discretion to reject or modify applications. For example, the application for the Old Oak Neighbourhood Area proposed a 280 hectare (1.1 square mile) Area; the local authority designated a 22 hectare (0.1 square miles) Area. The local authority must provide reasons for outright denying an application, but there are numerous grounds that justify the denial of an application.
The next step offers the local authority its main opportunity to ensure the process reflects democratic ideals. Subsequently or simultaneously to the designation of a Neighbourhood Area, the local authority may designate a Neighbourhood Forum for the Area. While a parish council in the Area can act as a Forum, a key innovation of the Localism Act is to allow for a forum regardless of whether the area is parished. A Neighbourhood Forum must have a written constitution, a minimum of twenty-one members, and an open membership policy for residents, workers, and elected officials within the Neighbourhood Area. The group must be “established for the express purpose of promoting or improving the social, economic and environmental well-being of an area.” Finally, and most vaguely, when a group applies for Forum status, the local authority must “have regard” to whether “membership is drawn from different places in the neighbourhood area concerned and from different sections of the community in that area,” and to whether the group’s “purpose reflects the character of that area.” My own observations of an aspiring Forum suggest that at least some local authorities require that Forums demographically resemble the Area, but there is no guidance or case law on this vague provision.
Although a Neighbourhood Forum can serve as a generalized site of public participation, the main reason to establish a Neighbourhood Forum is to create a NDP. Once approved in a local referendum (“made”), a NDP has “the same legal status” as a Local Plan (that is, the Plan the elected local authority promulgates). Applications for planning permission must generally follow the relevant Plan, whether the NDP or the Local Plan, “unless material considerations indicate otherwise.” In certain cases, the NDP can trump a Local Plan. The NDP’s power is not unlimited, however. The national Ministry for Housing, Communities and Local Government (“MHCLG”) retains significant power to intervene in planning applications. Also, Plans lose weight in the planning process as they age, and certain development—such as nationally significant infrastructure projects—cannot be touched by a NDP. The “material considerations” limit also prevents NDPs from governing every possible situation. Still, NDPs are afforded significant legal status.
The Localism Act’s authors offered an idealized version of a planning process for the creation of NDPs. Forums must conduct extensive outreach to the public when making their plans, including publicizing certain information “in a manner that is likely to bring it to the attention of people who live, work or carry on business in the neighbourhood area.” Forums must consult any entity identified on a long list “whose interests the [forum] considers may be affected by the proposals for a [NDP].” The list includes national government agencies, the local authority, certain infrastructure organizations (such as Network Rail), volunteer groups, and community groups that “represent the interests” of racial, ethnic, national, religious, or business groups, or of the disabled. Guidance directs Forums to be “inclusive and open in the preparation of” a NDP. Once submitted the proposed NDP must be accompanied by documents that demonstrate “consultation with and participation by the public.” However, “[w]hile there are prescribed documents that must be submitted with a neighbourhood plan . . . there is no ‘tick box’ list of evidence required for neighbourhood planning.” Instead, “[p]roportionate, robust evidence should support the choices made and the approach taken.”
The Forum’s relationship with the local authority is similarly idealized. Local authorities have a duty to cooperate with and assist Forums. Neighbourhood Forums do not have a reciprocal duty to cooperate with the local authority, but are encouraged to maintain “positive and constructive dialog,” with the incentive that doing so makes future approvals more likely. The duty to cooperate does not mean that the local authority and Neighbourhood Forum must agree on all points: conflicts are possible. Indeed, some Forums are motivated to create a NDP to oppose a single proposed development. At one forum I observed, the local planning authority and Neighbourhood Forum were effectively racing to finish their plans first, so that the winner could govern a pending application. The duty to cooperate is limited to procedural cooperation and does not mandate any substantive agreement.
NDPs are required to provide for new housing under a mandate that they comply with the “basic conditions.” The Localism Act defines the basic conditions. They include national policies, the desirability of preserving special buildings and conservation areas, the need for sustainable development, retained European Union obligations, other items prescribed in MHCLG regulations, and local strategic policies as set out in the Local Plan. The latter element is key because Local Plans include expected housing contributions—the number of new houses that the planned area is expected to build, based on ostensibly objective criteria and approved by MHCLG. This was a late innovation; the Localism Act initially seemed to allow NDPs to permit less housing than existing Local Plans would require, but the government reversed itself and forbade that practice. Guidance provides that “[n]eighbourhood planning bodies are encouraged to plan to meet their housing requirement, and where possible to exceed it.” Through such policies and guidance, the Localism Act seeks to force the construction of new housing.
Meeting these requirements is difficult unless consultants are involved throughout the process. The statutory requirements can be complicated. In addition to the basic conditions, Plans should comply with the National Planning Policy Framework, which sets out over 200 general principles. Consultants help Forums meet these requirements, especially those that are confusing or contradictory. Consultants can also conduct parts of the process, such as outreach events. Although empirical data is lacking, all of the Forums I observed made use of some outside help. They hired consultants to run public engagement events, prepare supporting reports, or draft certain policies or parts of the NDP. The Forums made use of grants to hire the consultants, but securing the grants and keeping track of finances added labor to the process.
Once the NDP is prepared, three rounds of theoretically relaxed examination follow. First, a Forum submits a completed NDP to the local authority. There are a limited number of prescribed criteria on which the authority can judge the NDP, such as noncompliance with the basic conditions, and rejections require a statement of reasons. If the local authority approves the NDP, it submits it to the second step: review by an independent examiner. The examiner, who may come from the public or private sectors, conducts a “light touch” examination of all documents submitted, including comments from other bodies, and recommends a course of action. This round, like the first, considers only statutory and regulatory criteria, and also whether the Neighbourhood Area is appropriately sized—but nothing else. Still, despite the small scope of their review, the examiner can propose substantial modifications; in one case, the modifications were so extreme that the group submitting the NDP sought to withdraw it. Finally, in the third round of review, the local authority again considers whether the NDP complies with statutory criteria, including the basic conditions; it can modify the NDP, but only to ensure compliance. The simplest—and most common—option for the local authority is to follow the examiner’s recommendations, either passing the recommended NDP on to a referendum of the Neighbourhood Area or rejecting the application. The local authority can, however, choose to extend the referendum area beyond the Neighbourhood Area, or not to take the examiner’s recommendations. It must provide reasons for refusing a NDP application, declining to consider it, making modifications to it, extending the referendum area, or finding a plan proposal unsatisfactory. The proffered reasons can form the basis of a lawsuit.
The final step of the process is deceptively simple. The NDP is put to a vote of at least all residents in the Neighbourhood Area. Precise requirements are set out in regulations, but the work of the Forum is largely complete because the referendum is organized by the local authority. There is a cap on referendum expenses, broadly defined to include gifts-in-kind, so that only minimal outreach by the Forum is possible. But even without effort by the Forum, referenda almost always succeed. Across all 839 referenda as of July 31, 2019, 87% of voters had voted yes. The referendum’s importance is thus diminished. Once the referendum passes, the NDP is a binding document with the same legal force as the Local Plan. Its existence precludes any other NDPs from covering the same area.
Judicial review provides an incentive for approvals. If at any point the local authority declines an application, the applicant can seek judicial review. As is typical under the “English Rule,” the loser of the suit pays both sides’ legal fees. The risk of substantial court costs is a significant disincentive for local authorities to refuse planning applications. Conversely, the Localism Act does not provide a right of action for the approval of a Forum’s application.
The Localism Act has been in effect for a decade; its results so far are mixed. The housing crisis persists, and local residents have not developed a newfound appreciation for development. The system has exposed a tension between two government goals: empowering anti-development communities and producing housing. The former has generally won out. Case studies show that NDPs generally aim to curb development, often openly; my own observations support this finding. At the Forums I observed, anti-development sentiment was rampant, with participants fighting individual projects perceived as too large or too dense rather than engaging in the broader scale planning process that the Localism Act envisioned. One Forum celebrated cutting down a proposed London apartment building from thirteen stories to nine, a scene familiar to participants in the United States. Another Forum weighed policies limiting density, student housing, and multiple-occupant housing—the latter specifically to avoid construction workers living in the area. As in the United States, English public participants have stressed the defense of local character: “The most common policy in [NDPs] was the promotion of local distinctiveness and place identity.” The idea of “local distinctiveness” in NPDs is of dubious value, given that England’s towns generally fit into one of several broadly similar types, and consultants often use template plans in NDP processes. Still, the national government has claimed some success, arguing that NDPs plan for on average approximately 10% more homes than the Local Plan set out, totaling over 18,000 additional dwellings between mid-2015 and 2017. However, there is a broad consensus that more legislation is needed to address the housing crisis, potentially including the nationwide legalization of adding height to existing buildings.
Like its Massachusetts counterpart, the English system is unrepresentative, which dampens its potential as a force for housing. Forums are not representative on any dimension identified by political scientists. They are unelected and lack broad legitimacy. Initial case studies found that Forum members do not mirror their Neighbourhood Areas. Rather, they tend to attract small groups who are already “active members of local communities who may have experience of community participation from previous initiatives,” and who have “time and access to middle-class professional skills.” Forum participants are thus disproportionately homeowners, older, wealthier, and opposed to development. One group I observed was worried that their elderly skew would prevent the group from being designated as a Forum. Members’ response was to redouble their efforts to conduct social media outreach for their public-facing initiatives, rather than seeking new, younger Forum members. This disparity may skew Forums’ priorities. Older residents are more likely to be securely housed and opposed to new development, while younger residents or would-be residents are often rent burdened and in favor of new construction, especially of affordable housing. The problem of representativeness is difficult to solve. Outreach demands substantial time and effort. The failure of parish councils, already established in their local communities, to become true community voices demonstrates the challenge of spurring community involvement in local politics beyond voting. As with Massachusetts, the Localism Act transferred power from elected local authorities to less representative factions who have the inclination and resources to participate in Neighbourhood Forums specifically to oppose development.
In addition to inequities among Forum participants, there are inequities in geographic areas that use Neighbourhood planning, such that the areas most invested in the status quo employ NDPs the most. Most NDPs have come from wealthier areas, despite government support packages, training programs, and other strategies aimed at less affluent areas. The wealthy South East of England contains a disproportionate number of active Neighbourhood Forums and parish councils preparing NDPs. Conversely, initial analyses of applications for Neighbourhood Forum status found that only 10% of applications were in the 20% “most deprived local authorities,” and those had lesser success rates than applications from wealthier areas. Rural parishes, which enjoy a head start over Neighbourhood Forums since they previously existed as community groups, have accounted for the vast majority of neighbourhood planning bodies. Some observers have called for more resources from the national government to overcome the disparity. Indeed, a planning practitioner noted that “neighbourhood planning is quite an expensive process . . . . If you are in a very wealthy parish, you can employ people to assist you in drawing up a neighbourhood plan,” but that option is not available in less well-resourced areas. A neighbourhood planning participant also noted the usefulness of having architects, web designers, and sustainability experts as Forum members, an advantage only available in certain communities. Scholars suggest that Neighbourhood Forums “are supply-driven rather than demand-driven, in the sense that they are created by those with capacity rather than the need to participate.”
Thus, though it takes a different approach from the Massachusetts framework, the English Neighbourhood Planning system suffers from similar flaws. A housing crisis persists despite expected housing contributions. NIMBY sentiment has not been converted to acceptance of development, as proponents of the Localism Act envisioned.
This part juxtaposes the English and Massachusetts systems to explore why legislators made the choices they did. The central question is who wields power, and how. Section A identifies the aims of public participation laws, their justifications, and their failings. Section B then applies that framework to the English and Massachusetts case studies. Legislators in England were focused on enhancing democracy, while those in Massachusetts sought to improve planning. But there is a troubling similarity. Legislators in both places seemed skeptical of local government authority, and they sought to disempower it. Doing so was misguided and pernicious.
This Section identifies five potential goals of public participation laws and explores the justifications for pursuing each one. Scholars, legislators, planners, activists, and residents each have their own goals in mind when they speak about public participation. Their aims are not necessarily mutually exclusive, but different goals may lead to different policy choices. Analyzing the goals creates a framework to apply to the specific case studies. It also reveals a common theme among them: participation laws shift power to those who participate. Though this may sound obvious, it is essential to understanding the problems in the case studies and the reforms that are needed.
First, public participation laws can be a form of democracy enhancement. There are two common forms of democracy enhancement: direct democracy (referenda) and “strong” democracy. Strong democracy is a concept involving extensive talk and involvement in self-governance. Benjamin Barber, who developed the concept, argued that “it is the only form [of democracy] that is genuinely and completely democratic.” He envisioned strong democracy as a participatory technique to “transform[] conflict . . . into an occasion for mutualism.” Similarly, Ken Thomson argued that “participatory democracy”—a related concept involving “direct participation in consequential deliberations”—provides more numerous and more prolonged opportunities for public rule than representative democracy offers. To Thomson, small neighborhood organizations are vital because they allow anyone who wants to be involved to have a substantial say in how they are governed. Although strong democracy may be rare in practice, it is an aspirational ideal for some American planners.
Enhancing democracy is a seemingly worthy goal. Although expertise is needed to make informed land use decisions and analyze their consequences, land use is inherently political. Having a voice in political decisions, either through referenda or strong democracy, is essential to self-governance. But there are notable drawbacks to the “enhanced” democracy that public participation offers. Direct democracy may threaten minority rights and have discriminatory impacts. It can lead to poorly drafted and poorly thought-out laws. It may erode legislators’ ability to accept trade-offs and forge compromises. Finally, an excess of elections burdens citizen time, leads to voter fatigue, and makes it impossible for voters to sufficiently comprehend all the issues at stake. Strong democracy institutions, meanwhile, are time-consuming for participants. They may thus prove unappealing to many potential participants. Even case studies that have hailed participation systems as solutions to democratic decline have concluded that “participatory democracy demands too much from citizens to be broadly appealing.” Time-consuming processes also exacerbate existing inequalities, giving increased power to those with spare time. Finally, empowering segregated neighborhoods may be dangerous: when a neighborhood founded on intolerance has an opportunity for greater public participation, reformers may not like the results.
A second possible goal is improvement of the planning process. Planners typically see public input as crucial, and public meetings may be an efficient way to solicit it. For legislators, public participation may provide a check on planners by forcing them to confront the people for whom they are planning, or, in some cases, by subjecting them to local residents’ veto power. Participatory frameworks that produce binding documents unchangeable by local officials disempower those local officials vis-à-vis their constituents. For reasons previously noted, participation frameworks do help improve planning in certain instances, particularly in planners’ connections to marginalized communities. Alternatively, state or national officials might seek to limit the influence of local officials if they distrust local government for some reason, perhaps because of the characteristics of local office holders or fears of local corruption. However, there are drawbacks as well. Implementing too many checks in the system and broadly dispersing power can slow projects and make building new housing and infrastructure difficult, if not impossible. The “improvement” of planning is also subject to manipulation to favor certain policy outcomes. Statutes force planners to defend pro-development choices at public meetings while accepting the status quo by default. If cities are meant to grow, such a system of planning improvement may prevent planners from doing their job. Further, disempowering planners ignores their expertise, while disempowering local officials sidelines a municipality’s elected representatives. Finally, as with other strategies, relying on public input to improve planning privileges the perspectives of the members of the public with the resources to participate.
Third, public participation can provide an alternate site for politics. Professor Brian Adams, for example, argued that public meetings have an important though misunderstood role:
While they may not be very good at accomplishing their primary goal of giving citizens the opportunity to directly influence decisions made by governing bodies, they can be used to achieve other ends, such as sending information to officials and setting the agenda. As a complement to deliberative political structures, public meetings have a role to play by offering a venue in which citizens can achieve their political goals, thereby enhancing governmental accountability and responsiveness.
Activists, too, can use public meetings as a chance to advocate for ideas outside of mainstream consensus, forcing officials to respond to them in the moment and winning the attention of the press and policy-makers. In this view, a meeting that breaks down into shouting is unpleasant in the moment but helpful overall, because it brings increased attention to the messages at the meeting. Once again, though, elected officials may hear only the thoughts of those with the time and resources to participate. Besides, shouting is not merely unpleasant; an adversarial process can communicate to participants that the gulfs in their communities as less bridgeable.
Fourth, public meetings can be sites of community building. As described by Professor Gerald Frug, local democracy serves as a vehicle for community members to better themselves and grow. Professor Frug envisioned spaces of local democracy that build trust between people divided by race, class, or other ways, overcoming divides. Professor Frug’s substantive goal of increased social trust and care is certainly worthwhile. But pursuing it through public participation may be a futile enterprise. Although the process through which policies are implemented can help build trust and ensure successful outcomes, peoples’ ability to actually participate in the lengthy processes needed to overcome barriers is limited by other demands on their time. Policies that reach for Professor Frug’s worthy goal may fail to build community, or may even build solidarity solely among those privileged with time to participate.
Finally, public participation can build support for specific substantive aims. Psychology research shows that people who view a process as fair and believe they had an opportunity to be heard are more likely to be satisfied with the outcome, even if it provides them with less value objectively. Similarly, a government official seeking to implement controversial plans, such as building new housing or bike lanes, may turn to public participation to increase their constituents’ buy-in. Deepening trust in government may lead to substantive benefits. This aim may best reflect what actually occurs at many public meetings. Still, as with other aims above, societal inequities may limit who participates, such that only the privileged are satisfied. A stronger objection is that starting public participation with a substantive result in mind is inimical to the democractic values participation is meant to encourage.
A theme emerges: There are rationales to pursue any of these various goals, along with certain aim-specific drawbacks, but a system built around any one of them is subject to capture by already-empowered groups. Participation takes time, while voting is comparatively simple. Thus, shifting a mechanism of power and expression from voting to participation empowers those with time and resources to participate. A participation scheme gives them a way to make their preferences policy, regardless of its aim.
This section compares the English and Massachusetts systems to explore the policy choices legislators made. Although examining legislators’ subjective motivations is fraught, scrutinizing their choices can reveal their goals. As such, this Section proceeds with a series of comparisons. Two distinctive but coherent pictures emerge. One system is premised on the ideal of strong democracy—people are empowered to make substantive choices. The other system seeks to improve planning by forcing a confrontation between planners and residents. Yet there is a commonality underlying both: distrust of local government. That distrust has unfortunate results.
The first difference is the role of government. The English system is “bottom-up”—residents organize their own participation, decide on its scope, and are responsible for meeting statutory criteria. Ultimately, the residents bind the local government as long as their work product is endorsed in a low-turnout referendum. The government’s role is mostly passive and limited to ensuring that participatory bodies comply with statutory criteria. In Massachusetts, local government, represented by the planning board, convenes the site of participation and spells out the structure, but has no duty to take into account the public comment it receives. The government is the convener of participation; appointees are the ultimate decider.
The different government roles reflect different aims. The English system tries to improve democracy and build community by giving local residents a direct say over substantive policies, first through a planning process and then through a referendum. England relies heavily on community groups, potentially deepening the ties of these groups and attracting more residents to them, thus building community. For example, at one parish council’s Neighbourhood Planning Committee, members of the Committee had forged new social ties by inviting people beyond the parish council to join the group and by having social events after meetings. The Massachusetts system reflects a desire to improve planning by holding government planners accountable. Appointees on the planning board, who may have limited expertise, hear proposals from the government’s planning staff and project applicants and make modifications based on public input. Unlike the English system, there is a direct interface between government planners and the public. Advisory meetings may provide more of an alternate form of political expression—they give the public a chance to speak directly to the government, rather than indirectly through a NDP and referendum.
The second key distinction is the timing of participation. England focuses almost all participation into the creation of a single, far-reaching plan. The plan then becomes one of the documents comprising the Local Plan, with which the local authority must generally comply when approving planning applications. There is next to no opportunity for input on individual projects in the English system. Massachusetts, on the other hand, asks for public input on special permits and variances in the same form it uses for the adoption of zoning ordinances. The English approach may encourage tradeoffs; residents may be more likely to allow some development if they know they can prevent it elsewhere. Participation at the plan-making stage may seek to advance the substantive aim of allowing increased development. A participation law that invites comments on individual projects, like Massachusetts’s, is more likely aimed at improving planning by providing more frequent opportunities for public comment. In Massachusetts, planners are seemingly not trusted to implement a broader plan without further public input.
The underlying procedural law also shapes the incentives of government actors and evinces different goals. Who pays court costs, the speed of review, and possible outcomes all influence government actors. In Massachusetts, judicial review is widely available and there is little disincentive for those who can afford it to bring suit, as there is little risk of bearing the other side’s court costs. Planning boards are at a disadvantage to any well-resourced, litigious opponent. This leads to delay, preserving the status quo and essentially advancing a substantive policy against development. In England, however, only those denied applications can bring a lawsuit, and the loser pays court costs. Again, local government is disempowered, as it is strongly incentivized to approve both NDP and planning applications to avoid potential court costs. The substantive policy advanced, however, depends on the polices in an NDP.
Table 1 summarizes these comparisons and shows how each system coheres around a certain aim. The Massachusetts system has chosen policies aimed at improving planning, partially by giving planners more inputs for their analyses but mostly by holding planners accountable to the public. A secondary and related aim is to provide a space for political expression, especially anti-development political expression. The English system, meanwhile, is based around an ideal of strong democracy. The designers of the English system hoped to encourage communities to participate more directly in local self-governance.
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Despite having different aims, both systems share a critical similarity: they are built around a perceived need to disempower local government. Massachusetts’s system reflects a suspicion that planners with free reign will approve too much housing, contrary to the wishes of the communities they serve. In England, the coalition that enacted the Localism Act was openly hostile to local government. As the Secretary of State for the MHCLG at the time, Eric Pickles, stressed his commitment to localism, he also said he “enjoyed bashing local government.” The Localism Act reflected this hostility by giving residents a new institution through which to control their communities—and one that local government can barely touch, despite its clearer representation and accountability. Further, although the Localism Act provided local governments a “general power of competence,” it was limited, and it also allowed local residents to take over public services and veto local tax increases.
These fears of local government have led to pernicious results. Local governments, even when aware of the need new housing, face legal and political challenges before approving it. A more broadly representative form of democracy—voting—has lost its force, in favor of a form of government that caters to the privileged, and an already weak level of government is disempowered further. Massachusetts municipalities ostensibly have home rule initiative to act, but their power is limited by a state with “virtually unlimited power to overrule local action.” As a result, local officials exercise extreme caution, believing their home rule power is nonexistent and unimportant. Similarly, English municipalities lacked a general power of competence until the Localism Act, and even the Localism Act restricts key municipal financial powers. Certainly, local government as currently constructed may not be able to address the housing crisis by itself. But it has never been the sole culprit in planning’s failures.
The larger problem with disempowering local government, though, is that it means disempowering the people who vote for it. Voters in a Massachusetts town might support a pro-development selectman, but the power of their vote is negated by an unelected planning board deferring to vocal opponents of development. If voters are not directly affected—or notified—about development outside their immediate neighborhood, they are unlikely to show up at a meeting to advocate for development based on an abstract conviction. That said, at least they can show up—English Neighbourhood Forums are expressly restricted to residents of the Neighbourhood Area. Forum meetings can be restricted to Forum members, and the Forum must only be open to residents and those who work in the area. People who live outside the Neighbourhood Area but would benefit from more housing in it are disempowered. Consider someone living in the London Borough of Camden but just outside of the Hampstead Neighbourhood Area, which is also within the borough. The Camden resident has no right to participate in the Hampstead Neighbourhood Forum to support more housing in Hampstead, even though what happens in Hampstead will almost certainly affect rental prices in other parts of Camden. And while the Camden resident could vote for pro-development councilors to represent them in the Camden Borough Council, the Council’s power over planning in Hampstead will be curtailed if a NDP is made. Disempowering the Borough Council means disempowering all Camden residents outside of Hampstead.
Worse still, there is broad dissatisfaction with a system that purports to provide a meaningful opportunity to engage with government. In Massachusetts, residents often complain that results are preordained and that the entire process is a charade. Activists for change view unelected boards as illegitimate barriers that elevate project opponents beyond their deserved power. Planners find that comment quality at meetings is often too poor to be usable because it is based in simple NIMBY sentiment, overly broad, or reliant on whitewashed memories of a mythical past. Meetings are commonly derailed when they become proxies for larger fights, and public comments are often unrelated to the issue at hand. Meanwhile, in England, initial analyses of participant satisfaction suggest a mixed bag, with one scholar finding that NDP processes increased feelings of empowerment and satisfaction, but others reporting unrealistic expectations and continued frustration with the national government’s remaining avenues for top-down action. A steady rate of litigation also suggests dissatisfaction persists.
Little good can come of a system that everyone dislikes. Dissatisfaction with the system delegitimizes it and increases distrust. It also may inhibit the successful dissemination of information about what government is doing. Further, public meetings may degrade community ties: “[P]ublic meetings across the country have become ugly spectacles, events where neighbors yell insults (and worse) at local elected and unelected officials, homebuilders, principals, teachers, and their own neighbors for the temerity to advocate for healthier, more sustainable, and more inclusive cities.” Examples of rancorous meetings are easy to find, and popular and trade media suggest that all sides expect meetings to be contentious and unpleasant. These meetings suggest that the disempowerment of local government, and the shift of power from elections to public meetings, will corrode democracy, not improve it.
Public participation creates another problem in England: an overuse of consultants. One aim of the Localism Act was to enable local residents to articulate their values and thereby enhance the social benefit of plans, but residents’ ability to do so is limited by their inexperience, which makes them reliant on experts. Neighbourhood Forums frequently hire planning consultants for key parts of the process. For example, the Maidenhead Neighbourhood Forum hired a consultant before it had even been designated as such to ensure it would conduct sufficient outreach and be sufficiently demographically representative to be recognized. The Writtle Neighbourhood Forum relied heavily on outreach events and surveys planned and analyzed by a consultant group. It did so despite having several members, including the chair, who had worked in planning or real estate. The national government has not defined the parameters of these relationships or specified the role consultants are meant to play, leaving each Forum to figure out the appropriate relationship itself. This may threaten to thwart the Localism Act’s aim of community empowerment while diminishing the democratic potential of these groups. Local government is replaced by private actors.
England and Massachusetts designed public participation schemes with different aims. But they chose those aims for a similar reason: skepticism of local government’s power over the the people it governs. The result, in both cases, has been to bolster a system of democracy that exacerbates inequality and strengthens the position of the privileged. Wealthy people at local public meetings sometimes cloak parochialism in the language of social justice. In Massachusetts and England, ideals of grassroots action and accountable government, as expressed in law, help protect entrenched homeowners.
The previous part demonstrated how legislators in England and Massachusetts used public participation to disempower local government. This part demonstrates how the same system works against broader interests, which those legislators are theoretically supposed to protect. States—this part uses that term to refer to both the U.K. national government and the Massachusetts state government—care about regional issues, including the production of sufficient housing. Unlike a parochial locality, states must consider the interests of existing homeowners and renters alongside the potential for a municipality to attract future homeowners and renters. It is difficult for a system of public participation to serve the interests of potential future residents because their interests are too diffuse. Thus, participation systems often ignore the external effects of local land use actions. States have, intentionally or not, disempowered themselves. Some sort of counterweight is needed so that statewide interests are given weight. Massachusetts largely ignores this problem; English law acknowledges it and offers one possible response. England demonstrates that diffuse interests can be represented in a legal framework for participation.
Any system of public participation must confront the basic asymmetries between insiders and outsiders. Both England and Massachusetts, like many other countries and states, have given power over land use decisions to local governments. However, only residents (the “insiders”) generally get a vote in local elections for the leadership of these governments, despite the substantial externalities that land use decisions can have on other municipalities in the region (the “outsiders”). Moreover, participation systems may be open to all, regardless of residence, but there is another asymmetry: the costs of development are generally borne solely by a small subset of insiders, while the benefits of development are widely dispersed. Because of this, it may seem impossible to organize a pro-development coalition; notably, grassroots pro-development groups emerged only after the Internet sparked a massive increase in national connectivity. The result is that public participation around land use planning is likely to be used mostly by anti-development factions rather than capture a truly representative cross-section of the public.
On its face, Massachusetts law largely ignores these tensions, but as a practical matter it exacerbates them. Public meetings are open to everyone, regardless of residence. Practically, however, residence matters. People who live nearby have an easier time learning about and attending meetings. Their comments may be given greater weight. Even if state law is neutral, municipal law may mandate that Planning Board give special attention to the concerns of abutters and neighbors. It is unsurprising that the stereotypical anti-development comment at a public meeting begins with some variation of “I have lived here for twenty-five years” as a way to establish legitimacy and imply to policymakers that longtime residents have a right to stop change. Moreover, state law provides some slight reinforcement of this dynamic: Massachusetts requires that notice of a meeting be posted in local newspapers and mailed to abutters of a project (and some abutters of abutters), but does not mandate any outreach to more broadly dispersed groups.
The result of Massachusetts law is that the state itself is disempowered. The state should theoretically care about regional housing needs more than any individual municipality. Indeed, Massachusetts has tried various approaches to encourage homebuilding since instituting its current participation framework. However, it is unable to free itself from the confines of public participation laws. Both the Anti-Snob Zoning Law and the recently enacted mandates for increased housing density near transit stations rely on public participation, slowing the process. There appears to be little appetite to reform public participation. The state delegated power and though legally capable of taking it back, is unlikely to do so for political reasons. The Legislature of 1975 gave something away that the Legislature of 2021 needs back: the power to place regional concerns over parochial ones.
This complicates the typical relationships between the state and local government. To generalize, local governments can act only when granted the authority to do so by either a state statute or state constitution. Authorizations may be narrow. Even when the stars align and the municipality can act as it wants, the state legislature can preempt that action, and possibly even impose penalties for individual local officials who defy the state. States do not like to give up their control over local affairs. But through the Zoning Law, Massachusetts—and states like it—have ceded power not to local elected officials but to local appointed boards and the vocal minorities who can sway them. This is not typical preemption—this is the delegation of the preemptive power to groups that have no reason to hold it.
English law also limits state authority, but it offers a solution too. As can be seen in the Hampstead/Camden example above, Neighbourhood Forum touches on and exacerbates the insider/outsider tension. The national government’s response to this problem, however, is to take on the role of outsider advocate. The framework tacitly accepts that Neighbourhood Forums will be generally opposed to development, and in response requires NDPs to meet expected housing contributions set by higher levels of government in conformance with national policies. It also encourages NDPs to exceed prescribed housing requirements “where possible.” The prescribed housing need is determined using a nationally standardized approach “unless exceptional circumstances justify an alternative approach which also reflects current and future demographic trends and market signals,” with regard to needs in both the area at issue and adjacent areas. This approach provides a counterweight to local inclinations, and demonstrates the government’s recognition of both the need for new housing and the difficulty of building it. The results, as described above, are mixed: NDPs thus far have not provided England with the housing it needs—possibly because the government, knowing many of its supporters resist density, has not proceeded forcefully enough—but, at least according to the government, they are having some measurable impact.
Even if England has not succeeded, its approach suggests that it is possible for state interests to be adequately represented in a participation system. A stronger version of the English system, with more demanding housing targets, could make a measurable impact. Other structures are possible too. One possible model is found in energy law. State utility commissions often include consumer advocates to represent consumer interests in rate and other proceedings. There is at least some evidence that these advocates are associated with lower residential electricity rates. States could appoint “housing advocates” to local commissions and require the commission to hear from them at each meeting. Their voice could be backed by added powers, such as the power to issue reports or to sue to challenge decisions blocking development. Such a model could provide representation to residents outside of a municipality. The goal would be to vest a housing advocate with the motivation and power of an abutter to represent diffuse state interests.
Notably, this intervention may be happening without any state action. A new sort of organization is appearing across both the United States and United Kingdom: “Yes in My Backyard,” or YIMBY, groups. YIMBY groups can provide the organizational structure and communal ties needed for housing advocates to make their presence felt at public meetings. However, there are reasons to prefer a state advocate to a nonprofit one, including the state’s greater resources, concerns about diversity in YIMBY groups, and past nonprofits’ failures to mobilize communities. However it is achieved, England demonstrates that participation and state interests can coexist.
States could also redesign the incentives around participation. John Myers and Professor David Schleicher, for example, propose making development more attractive by allowing small areas—Myers would start at the level of an individual street—to capture some of its benefits, such as higher tax revenue. Myers would couple this with block-by-block zoning that would allow small-scale Coasean bargaining between neighbors on a single block to allow development. The result would be neighbors who are motivated and positioned to support development. Myers is optimistic that this process will spur development because at least some homeowners will want to build more housing and reap economic rewards. Indeed, there is some evidence this could work, although another observer cautions that homeowners’ incentives would still generally point against development. We may also worry that homeowners in the most privileged municipalities will choose racism, classism, and exclusion over potential economic benefit, because white homeowners have for decades been “willing[] to pay a premium for homogeneous neighborhoods,” leading to persistent segregation.
If these counterweights fail, the most conceptually straightforward approach would be to limit participation. Background state law could change to include much greater by-right zoning, in which development cannot be blocked by local participatory bodies. This would be simple but politically difficult without outside intervention or changes to legislative procedures, leading to potential legitimacy problems. Hopefully, then, the above solutions demonstrate that participation that respects state interests is possible.
U.S. public meeting law has emerged as a major barrier to constructing direly needed housing. What began as a backlash to urban renewal now threatens progress towards economic, equity, and environmental aims. The system needs legal reform. The English system of Neighbourhood Planning provides one potential model. Comparing the Massachusetts and English systems, however, reveals that both proceed from a distrust of local government, and their aims and approaches are often in tension with the substantive goal of adding more housing. This problem is that both public participation systems enhance the advantages of privileged groups and accentuate the gap in preference intensity between a small group of strongly anti-development neighbors and a larger public that would marginally benefit from the development.
There are, however, promising signs that the motivation for reform is meeting the need to generate a more democratic system of public participation. Public participation is receiving increased scrutiny as the housing crisis becomes ever more pressing and activists question the late twentieth century consensus. Further, the COVID-19 pandemic has provided an opportunity to rethink assumptions about public participation; Massachusetts suspended certain provisions of the Open Meeting Law in March 2020. Increasingly, observers are frustrated by the delay the Massachusetts system allows and creates, and are asking how many checks on government are too many. This year, the Legislature enacted the most substantive changes to background zoning law since the 1970s. The time is ripe for reform. As this Article demonstrates, such reform should confront the insider/outsider distinction head-on. It should clearly identify the purpose of a public participation system, and seek to orient statutory changes around furthering it.
Most people do not like taking an evening—let alone a morning or weekend—out of their lives to show up and speak in front of a hostile audience. Somewhere along the way, U.S. reformers decided that this was what democracy demanded. This choice has contributed to a housing crisis, while empowering privileged defenders of the status quo. In 2011, England removed the hostile audience from the equation, but shifted hefty, time-intensive tasks from government groups to citizens and citizens groups who are only theoretically ordinary. The English housing crisis persists too, and future legislation can do better. “Better,” though, is within reach. A state or national government must simply decide that better is worth action.
