Why are "special permits" so special?
All FBI investigators are “special agents.” So, the joke goes, criminal defense lawyers ask FBI witnesses at trial “what makes you so special?”
You can ask the same question about “special permits," which are commonly used to approve apartments and mixed-use developments in Massachusetts.
In most states, the norm is for cities and towns to zone “by right.” If a development proposal is an allowed use that meets the size and dimensional requirements, the developer is essentially assured of approval. The city or town then works with the developer on details (landscape, lighting, traffic circulation, etc). Therefore, special permits in most of the country are only required where the type or size of the project raises questions about whether it should be allowed at all. Indeed, many states call these “discretionary” permits because approval is up for debate.
In Massachusetts, almost every significant development is now by special permit. And not just significant developments. For example, in many cities and towns, accessory apartments in a single family home are by special permit.
For decades, we’ve been steadily moving away from "by right" zoning.
The standard is often very general and discretionary. Here is one example: The application shall be denied if the board decides that a “nuisance, hazard, or congestion will be created, or … there will be substantial harm to the neighborhood or a derogation from the general purpose and the intent of the By-Law, or [it is not] in the public interest.…”
Language like this creates unpredictability in the approval process. Whether it is a large or small development, each one is a separate case, going one way or the other depending on who is the decision-maker, who is the developer or property owner, who complains, and who turns out at the hearings. Emotions, opinions, unproven assertions and hard facts—everything is in play when the standard is as ambiguous as “in the public interest.”
This dysfunctional decision-making process is magnified by the requirement under state law that a “super-majority” of the special permitting authority say yes. On a board of 5, that’s 4 votes. On a board of 3, it is all 3. And sometimes it is not a citizen board at all, but a city council where 2/3 of the elected officials need to agree.
Massachusetts loves its special permits, so how can we improve permitting?
We’re not proposing to end special permits. But let’s use the “by right” approach more for the housing we need in good locations--multi-family and accessory apartments--and to cluster homes on small lots so we can preserve the remaining land. And let’s lower the voting majority for special permits, either across-the-board or when the application involves multifamily or mixed use developments with some affordable housing.