Monday, October 08, 2007

The Monster We Have Created

Back in 1989 when the leaders of the Cape's towns were gathering in support of the establishment of the Cape Cod Commission, one of the few reservations expressed was the fear that the Commission would expand its regulatory authority into individual town affairs, thereby invading their autonomy. This fear has come to pass.
A story in Friday’s Boston Globe begins as

After listening to impassioned pleas from a handful of Truro residents and preservationists, the Cape Cod Commission took the unusual step last night of voting to examine a controversial plan to build a 6,500-square-foot mansion in the hills of South Truro.

That sentence alone is worth pausing over. When a “handful” of Truro residents plea impassionately, a regional land use agency votes to involve itself in the construction of one single family home.

How does this happen?

The house to be built is on a portion of what is known as “the Hopper landscape” – a swath of Truro’s seacoast that Hopper had the benefit of contemplating during the twilight of his career. Does this fact alone justify that it be treated differently than another 9 acre parcel of property (and we must pause here again – the proposal is for one single family home on a 9 acre parcel of land, 6 of which the owners have offered to put into conservation).

How does this regional planning commission assert jurisdiction over one single family house?

It’s called bureaucratic sprawl.

The commission, which rarely reviews proposals for developing single-family houses, voted seven to four to review Kline's proposed house, which they said could have "a development of regional impact" designation and deserves closer scrutiny.

How the commission could possibly have come to that conclusion requires several boundless leaps of – well, certainly not logic.

enabling legislation from which the Commission derives its jurisdiction and powers provides that the Commission may regulate a “development of regional impact,” and defines that term as “a development which, because of its magnitude or the magnitude of its impact on the natural or built environment, is likely to present development issues significant to or affecting more than one municipality, and which conforms to the criteria established in the applicable standards and criteria for developments of regional impact pursuant to section twelve.” (emphasis added.) That is the principal factor involved – the development is likely to have an impact in more than one town. This was a very wise nod to municipal autonomy -- the commission would not become involved in issues that affected the interests of a single town.

Furthermore, the Commission’s own
regulations provide that a municipality has no authority to make a “discretionary referral” of such a project to the Commission:

“One single-family dwelling shall not be considered to have significant impacts on the values and purposes protected by the Act outside the Municipality in which it is located and may not be referred to the Commission pursuant to Section 2(b)(i) above unless that dwelling has been determined by the Massachusetts Historical Commission to be eligible for listing on the National Register of Historic Places. This provision shall apply to all new construction, repair, change, alteration or extension of a single-family dwelling or an accessory structure, septic system or water well relative thereto.” Enabling Regulations Governing Review of Developments of Regional Impact, Barnstable County Ordinance 90-12, Section 2(b)(ii).

Finally, there is nothing in the Commission’s own regulations which suggest that it has the discretionary authority to deem something a DRI on an ad hoc basis (when one considers the possibility, such a limitless grant of power approaches sheer lunacy).

So, if the municipality lacks the authority to make a “discretionary referral” to the Commission and the Commission lacks the jurisdiction to do so on its own, how does the Commission now vote to review the project?

It would appear possible that the Commission has determined that the “Hopper landscape” has some historical significance, in which case they would purport to shoehorn the notion of a “historical landscape” into the statutory language that applies to historical structures and districts (which is otherwise not relevant here). Lacking anything specific upon which to hang its hat,
here is the explanation from the Commission’s staff person:

“Agency staff recommended that the commission review the Kline home as a development of regional impact because of the cultural, historic and natural significance of the area.”

One would hope that regulatory authority would be based upon something less ephemeral, like a regulation.

It is a breathtaking notion that, upon the recommendation of a staff member, any portion of the Cape’s landscape could be deemed an “historical landscape” and therefore subject to some new regulatory rubric where none currently exists. It is one thing for the Commission to have jurisdiction over alteration of dwellings within historical districts – this authority was written into the Act originally. But what exactly is an “historical landscape” or a “cultural landscape?” If one includes the landscapes described in vivid detail in hundreds of novels published during the past century (Joseph Lincoln’s forty novels come to mind), one surmises that virtually every corner of Cape Cod might qualify. Why would Edward Hopper’s personal choice be the limit?

If the commission desires to extend its jurisdiction to cover the building of one home under any circumstances, then it should draft amendments to the Barnstable County Ordinances and amend the Commission Act. In that fashion, the communities and their representatives can all become involved in the debate over what is, and isn’t, an appropriate exercise in regional planning.

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