Friday, May 27, 2005
Doctor, can you save the patient?
All the folks who attended Town Meeting deserve our thanks, but another very important meeting is coming up on Thursday, June 16, the date of the public hearing on the draft of Carlisle's affordable housing plan. Since the state does not require a Town Meeting approval of this plan, the primary opportunity for public scrutiny will be at the hearing.
We need a state-approved plan in place quickly, because without one, Carlisle is unable to receive any protection against 40B developments as new affordable housing is built (see Dave Ives' article in last week's Mosquito for more details).
The ten-year housing plan will influence how our tax dollars are spent, how our public lands are used, and how our town will grow in the coming decade. The plan directs the town to modify by-laws and regulations to encourage the development of affordable housing. It also directs the town to build housing on public lands, including about 60 units on land purchased for conservation and about 40 housing units on other town-owned lands.
The Affordable Housing Plan Task Force has worked extremely hard to draft the plan. But before the plan is sent to the state, it should be thoroughly reviewed and some questions double-checked:
• What is the process to amend the plan? What if a few years down the road we decide that building 30 units of housing in the Greenough pine forest is a bad idea (e.g. it may be illegal, since state and federal conservation funds were used to purchase the land)?
• Is all the Cranberry Bog land needed for farming? The 18-acre "service" parcel targeted for conversion to housing lies across the street from the bog. At least a portion of the parcel has been used as a source of sand, spread periodically on the bog to control weeds.
• What are the ethical considerations of converting conservation areas to housing? The taxpayers who spent decades paying to permanently preserve the lands may have opinions. It may be more appropriate to use municipal property, or part of the Town Forest or Gage Woodlot, lands not originally acquired for their conservation values.
It is imperative that Carlisle quickly send a housing plan to the state. However, converting Carlisle's conservation lands into housing projects seems a bit like cutting off a leg to save a patient's life. If there are no alternatives, go for it. But first, check for other remedies. If not, avoid cutting off any more than necessary, and try not to kill the patient in the process.
From Russia with love
In the wake of Town Meeting, we are awash in democracy. We take for granted not simply the right, but the essential role, of citizen participation in our governance. Whether our vote counts toward the majority or the minority—or even if we choose not to vote—we know that we are entitled to participate in the result. Beyond that, we assume the stability of the underlying system supporting our vote.
Last month, I was part of a three-person delegation to the Russian city of Tomsk, in Siberia. We were part of an ongoing effort, sponsored by USAID and begun in 1991, to foster establishment of the rule of law in post-Soviet Russia. Last month's visit focused on resolution of property disputes and disputes arising from land-use regulation in a country that has begun only in the last several years to recognize private property rights.
Over five days, we met with Russian judges, lawyers and municipal officials. We compared our experiences, finding areas of similarity and contrast. At the end, I thought that I had learned from the comparison far more than I could have contributed to my new friends. But that was not their perspective.
Through our conversations, I learned that my instinctive approach to certain basic problems assumed factors entirely absent from Russian experience. For example, the Russian judges questioned whether they had the authority to prohibit industrial use of property designated by law for agricultural use but permitted by municipal officials for industrial use in apparent violation of law. There is no tradition of an independent judiciary empowered to ensure that laws will be observed.
Other observations were less shocking, but nonetheless illuminating. Without a tradition of private ownership, it is no surprise that the judges were at the very earliest stages of learning how to resolve property disputes. Institutional investors, including lending banks, apparently still lack confidence in the stability and reliability of property ownership and use regulation. Consequently, construction of residential apartment buildings is funded largely by installment payments by individual apartment purchasers over the course of construction; if there are cost overruns, the purchasers are expected to fund the increase. Residential mortgage financing, as we know it, is unheard of.
Despite the obvious challenges, I suggested to our hosts that they enjoyed certain advantages. There, land released from state to private ownership is described by reference to a survey tied to GPS (global positioning satellite) coordinates. That technology virtually eliminates the potential for boundary disputes such as those that arise here from 19th-century property descriptions such as "running from the stone wall by Snow's field to a marked chestnut tree." They also may build on the collective experience of planning and land use regulation in other countries as they attempt to find their own balance.
In our meetings, I found that the greatest interest was in matters of procedure, rather than substantive law. Gradually, I came to realize that the people charged with managing the transition from public to private ownership of Russian property were less concerned with comparing the substantive property laws of more developed systems with their own than with developing the procedural infrastructure to implement and administer those laws. We often hear that our American system is the envy of the world. To many, that means envy of economic opportunity. But it is our system of checks and balances, our opportunities for citizen participation, and our acceptance of the rule of law, that represent the true genius of the American Way.
Ed note: Mark Green is an associate judge of the Massachusetts Appeals Court.
© 2005 The