Getting to yes

Plan ahead, people! That’s the mantra Greg Bialecki, the state’s secretary of housing and economic development, drums into his audiences when he goes on the road to talk about zoning reform. For nearly two years, he’s crisscrossed the state telling local officials that they’re not doing enough to plan where homes, schools, shops, and industrial plants get built — a lack of coordination that is hindering the state’s ability to attract jobs, build affordable homes, and keep residents from fleeing to more affordable climes.

“There hasn’t been a lot of thought and planning as to where things are going,” the secretary says. “So the experience of people all over Massachusetts has been [that] what gets built seems almost random to them.”

Bialecki wants to modernize the Bay State’s notoriously obtuse, decades-old planning and zoning statutes. He wants zoning and planning frameworks to be consistent from one town to the next, as opposed to the hodgepodge of rules that exists now.

His vision of smart growth across Massachusetts is what planners, housing advocates, and environmentalists have dreamed about for years. Doug Foy, the secretary of commonwealth development in the Romney administration, tried to accomplish it with a series of initiatives focused on both smart-growth districts and expedited permitting for large commercial projects. But those opt-in measures gained limited support at the local level even though financial incentives were offered to communities that signed up.

Bialecki is aiming higher by going after statewide zoning reform, but, like Foy, he’s using a carrot-and-stick approach with municipalities. His zoning and planning proposal would do away with zoning laws that municipalities dislike, but only if they adopt smart-growth goals like building new housing close to public transit, preserving open space, and curbing sprawl. His proposal would give developers a more transparent construction and permitting process, but they’d lose some of the zoning laws that they’ve used in the past to sidestep local permitting hurdles.

There’s something for everyone in Bialecki’s proposal, but no one has embraced it wholeheartedly. That’s what happens when the conversation turns to state interests versus local control. Many municipal officials see zoning reform as shorthand for Beacon Hill micromanagement in one of the few areas where they have the upper hand — controlling what gets built where in their communities. And most real estate developers are reluctant to give up zoning shortcuts they’ve come to rely on for a process they’re uncertain about.

Rarely does a cabinet secretary invest so much personal energy in any single issue, much less one that flies so far below the radar. Bialecki could have assigned one of his lieutenants to take up the zoning reform banner after he was named secretary of housing and economic development earlier this year. But instead he has soldiered on, reaching out to local officials and developers in what many observers say is a quixotic quest.

With more than 20 years of work on permitting and construction on large urban real estate projects, Bialecki is arguably the smartest person in the room when it comes down to the finer points of zoning. He’s banking on his personal involvement and understanding of the stakeholders’ concerns to move the needle forward. He says he’s convinced reshaping land use patterns through zoning is the way to change how Massachusetts residents live. Plus, he loves all the details. “I am a geek,” he says, “But I’m not doing planning and zoning for the fun of playing around with it.”

The art of the deal

Bialecki says that frequently what people want to know about him when they meet to talk about land use issues is whether he is pro-development or pro-environment. “I always hated that,” he says, calling it a “false choice.”

His background encompasses both. Bialecki rose to prominence among the movers and shakers in the complex, high-stakes world of urban real estate development by working on signature projects like Fan Pier on the South Boston waterfront and later NorthPoint, a controversial East Cambridge mixed-use project. (The NorthPoint project prompted the Legislature to exempt filled tidelands from certain environmental regulations — though Bialecki was not involved in crafting the bill.)

He also specialized in environmental law, working with land conservation groups like the Trustees of Reservations. After seeing one too many empty parks in new downtown developments, he thought a draw like farmers’ markets could attract more people. In 2001, he formally organized the Boston Public Market Association and helped it secure its Dewey Square venue near South Station, its nonprofit status, and its early funding. (Bialecki still sits on the board of directors.)

Born three months before John Kennedy became president, Bialecki and his younger sister Carolyn grew up in North Haven, Connecticut. When he moved to Massachusetts to attend Harvard University, he was impressed by the state’s “great open spaces” and struck by the contrasts between his home state’s urban areas like New Haven, Hartford, and Bridgeport and the Bay State’s “great cities,” singling out Boston, Worcester, and Lowell as places with “a lot” of character and energy.

He and his wife, Mary Herlihy, an obstetrician and gynecologist at the UMass Memorial Medical Center, have four children. The oldest ones, Andrew and Alison, are college graduates, Timothy is a college student, and the youngest, Lindsay, is a pre-schooler. He leans into the tape recorder. “Same wife,” he chuckles. “I want that in there!” The Newton couple recently celebrated their 26th wedding anniversary with a trip to Italy.

When he graduated from Harvard Law School in 1985, Bialecki joined Hill & Barlow. When Deval Patrick arrived at the now-defunct Boston law firm in the mid-1980s, Bialecki and a team of attorneys were representing a Louisiana death row inmate, Thomas Lee Ward. Convicted of the murder of his stepfather-in-law, Ward had been sentenced to die by lethal injection. Bialecki was “feeling his way through” the case, so he approached Patrick, who had worked on capital punishment cases for the NAACP Legal Defense Fund. Patrick joined the team for a period and the two men got to know each other on trips to Louisiana.

Bialecki and his colleagues worked with the death row inmate for nine years until Ward was put to death in 1995 after 12 stays of execution. “If you try to figure out who is condemned to death and who is not, it’s very difficult to come up with any rational, consistent explanations,” he says. “It depends on the quality of your lawyer that day [and] whether the jury connected with you as a human being.”

After Patrick left to join the Clinton administration, the two kept in touch. When Patrick launched his campaign for governor, Bialecki served as co-chairman of his urban development policy committee. At the invitation of Daniel O’Connell, Patrick’s first secretary of housing and economic development, Bialecki signed on as the state permitting ombudsman and general counsel. He was quickly promoted to undersecretary of business development and, when O’Connell resigned earlier this year, Bialecki took over the top post. Patrick declined a request for an interview for this article. In a brief statement, he called Bialecki the “most qualified person” to lead the development office.

Asked how his management style differs from his predecessor, Bialecki is stumped. “Dan O’Connell,” he finally says, “along with 99 percent of the rest of the human race, would not have spent nearly as much time as I did on zoning.”

Planning makes perfect

In Massachusetts, 351 quirky sets of regulations allow cities and towns to do their own thing, project by project, with little regard to their neighbors, the state, or even their own future interests. “We don’t have respect for rules in Massachusetts,” Bialecki said at one public forum. “Sometimes the answer is, ‘Come in Tuesday night and we’ll see what we can do.’”

The deal-making mentality stems largely from budgetary concerns. Some communities shun multi-family housing and starter homes in favor of expensive single-family homes on large lots, a trade-off that nets the community more property tax revenue and fewer families using local schools and consuming municipal services. Yet the push for bigger homes on bigger lots tends to fuel high housing prices and prevent the construction of middle-class homes that would keep young professionals and families from leaving the state.

The failure to plan ahead and zone accordingly can also push longtime residents of modest means out of communities. Salem Mayor Kimberley Driscoll, a former municipal planner and real estate and commercial development attorney, says that when a condominium conversion boom hit Salem in the late 1980s, tenants in multi-family homes were pushed out. The city has not updated its zoning regulations to protect tenants by preserving affordable units in condo conversions.

The lack of long-range planning contributes to sprawl in a state that isn’t experiencing much population growth. The Worcester-Fitchburg-Leominister area has the ninth lowest residential housing density of 83 metropolitan regions in the country, according to Smart Growth America, a national nonprofit coalition that advocates for better community planning.

But most important, there are provisions in the zoning statute adopted in 1954 that are so arcane that they provoke laughter outside Massachusetts. For example, the “approval not required” provision (known as ANR), which is hated by municipalities, streamlines the local approval process for developers seeking to build on parcels along existing roads. Projects on these types of parcels are not considered subdivisions under Bay State zoning law — even though such parcels are considered subdivisions everywhere else in the country and are, therefore, subject to stricter zoning standards.

Another provision allows a community’s existing zoning regulations to be frozen in place on a particular parcel for eight years once a developer files an initial plan. It’s the longest hold time in the country. Developers say they need to protect their financial investment from fluctuations in the economy and the housing market; communities argue that it hampers their ability to plan out future zoning changes.

Under the proposed Land Use Partnership Act, supported by the Patrick administration, ANR and the grandfathering regulations would be eliminated in those communities that develop a land use plan and pass zoning regulations that conform to it. A community’s regional planning authority would have to evaluate local plans and certify that they mesh with the state’s smart-growth targets in areas like housing and open space protection. But most important, a community would have to commit to “prompt and predictable” permitting of residential

districts zoned for higher levels of density. The administration forecasts that about 35 additional communities would opt in every year.

(The proposal would not apply to Boston. The Legislature exempted Boston from the state’s zoning laws in 1956 and created a process specific to the city.)

Only a handful of zoning changes would apply to all municipalities statewide under the administration’s proposal. Communities would be able to regulate the maximum floor area of houses, which they cannot do now. That change would allow officials to control teardowns and the construction of McMansions, a concern for the older, more affluent Boston suburbs, the Berkshires, Cape Cod, Nantucket, and Martha’s Vineyard. Other provisions would allow municipalities to adopt zoning regulations by a majority vote of the city or town council or town meeting instead of the current two-thirds vote. Cities and towns could also charge impact fees to developers to defray the cost of public services, like water and sewer connections, for new projects.

The administration’s land use plan was developed by the Zoning Reform Task Force, a group that Bialecki personally assembled and has chaired since the fall of 2007. There are nearly 40 groups represented on the task force, everyone from real estate developers and state and regional government officials to environmental and housing advocates.

Benjamin Fierro III, the attorney for the Home Builders Association of Massachusetts, gives a thumbs-up to Bialecki for getting people who usually don’t talk to each other together in the same room. “I think he sat up nights and weekends going beyond the call of duty drafting documents for the group to consider,” Fierro says.

Bialecki admits that the opt-in framework of the administration’s proposal is a political compromise, but he says it’s a necessary one. He says a mandated statewide regime, especially one that requires increased housing density, won’t fly.

“I would bet you my house that there are communities that wouldn’t do it in five years,” he told the zoning task force in June. “If compelled to do density, there will be outright civil disobedience.”

Choice objections

A rainy May afternoon found Bialecki in Needham making his pitch for zoning reform at a forum arranged by the Metropolitan Area Planning Council, the Greater Boston regional planning agency. As he talked about his plans, Mary Pratt, a former Hopkinton selectman, started whispering and fidgeting in her front row seat. Finally, she could take it no more.

“Now you are poking the communities in the eye,” she said, loud enough to turn heads in the large, wood-paneled room.

Later, she is emphatic. “Maybe I’m a true New Englander,” she says. “I personally think that towns should have a right to do what they want to do.”

Opposition to what is shaping up to be a smart-growth-by-zoning approach is pouring in from all sides. Fierro has called the legislation “a victim of too grand an ambition.” He says too many of the state’s goals have overwhelmed the process. Reading from the preamble of the Land Use Partnership Act, he ticks off the revitalization of city and town centers, the construction and rehabilitation of homes near jobs and transportation, and the reduction of greenhouse gases and consumption of fossil fuels, to name a few. “I don’t believe zoning can solve all the ills of our society,” he says.

Donna Jacobs, former director of the MetroWest Growth Management Committee who now manages her own planning firm, Cornerstone Community Planning, says Bialecki “really aggravated people” with his presumption that communities don’t plan ahead. She says most MetroWest communities have full-time planners. About 200 communities have some type of planning position, most of them full-time, according to the Executive Office of Housing and Economic Development. But smaller communities rely largely on volunteers.

Joel Russell, a Northampton land use attorney and planning consultant, calls the land use proposal clever but unworkable. “Just finding a middle ground between satisfying development interests and giving municipalities slightly more control over their future, which appears to be Greg’s strategy, is not really going to solve the problems,” he says.

Chapter 40B, the anti-snob zoning law, is also nipping at the edges of zoning reform. In communities where less than 10 percent of housing units are affordable, Chapter 40B allows developers to bypass local zoning regulations as long as they set aside a percentage of affordable units in a housing development for residents earning less than 80 percent of the area median income. Bialecki knows that lingering tensions over the affordable housing law could hijack this last best chance for zoning reform anytime soon. “I told the task force early on that I wasn’t prepared to consider [changes to 40B],” he says. “Once we open that door, that’s all anyone would talk about.”

But Sen. James Eldridge, the Acton Democrat who co-chairs the Joint Committee on Municipalities and Regional Government, where the administration’s bill is pending, says he is open to including revisions to 40B in any zoning reform proposal. “All options are on the table,” he says. His counterpart in the House, Rep. Paul Donato, a Medford Democrat, however, wouldn’t go that far, instead saying that he would refer any 40B revisions to another committee.

If Bialecki has a shadow on zoning reform, it’s Susan Bernstein. Bernstein, a longtime Framingham Planning Board member, has worked on zoning reform for over a decade and helped craft an alternative legislative proposal, called the Community Planning Act II, or CPA II. The act is a more top-down approach which would apply to all communities across the state. It would eliminate ANR and other zoning provisions considered onerous by communities. CPA II would require communities to come up with land use plans and zoning regulations that are “not inconsistent” with each other. Developers oppose the bill, and it has never made it out of any legislative committee.

At a June meeting of the secretary’s task force in Boston, Bernstein urged Bialecki to think about working on a third bill that would plot a course between the opt-in scenario he favors and a broader statewide regime. “Is it better to have 35 communities doing a high standard [of zoning and planning] and others not?” she asked. Bialecki said no. If communities can build “only single family homes on two-acre lots and still get [ANR], that is unacceptable to me,” he said.

Bernstein tried again. “Can we do something less draconian?”

Bialecki throws up his hands. “Make me an offer! Many of the people in this room don’t want to make a deal; they want to go to the Legislature to see if they can get a better deal.” He added, “I’m not going to negotiate against myself.”

R.J. Lyman, an attorney at Goodwin Procter, says Bialecki is a brave man for trying to tackle such a mammoth task. “It’s one thing to stand at a cocktail party and spout out your ideas; it’s another thing to go out there and see if you can make them work,” he says.

Bialecki is matter-of-fact about the lack of consensus, realizing that there is no bill that would produce meaningful reform that everyone can agree on. The compromise developed by his hand-picked task force sent its proposal to Beacon Hill without an endorsement, an ominous sign. But even if the Legislature can see a third way through this impasse, the burning question is whether municipalities and developers will embrace it or go back to business-as-usual wheeling and dealing over development projects.

As the storm clouds gather, Bialecki remains optimistic that he can carry the day. “I think the fundamental reason that we have a good chance of success, that’s different from prior efforts, is that we’re thinking about balancing all of the interests and concerns in a genuine way.”