Guest columnist Michael Seward: Using ‘health, safety and welfare’ to block real progress

By MICHAEL SEWARD

Published: 07-06-2023 12:35 PM

‘To protect the public health, safety, and welfare” is an abused phrase. It is used against the public health, safety, and welfare of those who need homes, and it is used against the public health, safety, and welfare of everyone on the planet under the threat of climate change.

In Massachusetts and other New England states, the language is particularly insidious due to the powers of towns that employ it, thereby preventing the dire need for solutions to the housing and environmental crises. Elsewhere in the country, zoning regulations are governed at the county level, except within cities.

The language has been used to justify discriminatory and unjust zoning regulations since the U.S. Supreme Court ruling deemed them constitutional in The Village of Euclid vs. Ambler Realty Company in 1926, as long as it’s for the “public health, safety, and welfare.”

Communities have since employed that language to justify discriminatory purposes by prohibiting the construction of multi-unit homes, establishing minimum lot sizes, and establishing other restrictions. Thus those privileged enough to employ zoning measures benefit themselves while keeping down others. It’s easy to imagine the smirks among planners every time they say, “public health, safety, and welfare.”

The lack of zoning reform among most towns of the commonwealth demonstrate that such discrimination continues to be a choice, because of a myopic interpretation of “public health, safety, and welfare.” The greater good is not considered among the tiny percentage of voters who participate in local elections and the annual Town Meetings where zoning rules are decided — assuming those elected by a tiny percentage of voters put that choice before the even smaller percentage of voters attending those meetings.

As a result, the housing crisis continues to get worse for too many of our fellow citizens.

In a recent column, an organizer for Smart Solar Shutesbury seeks support to keep control of viable solutions to the climate crisis in the hands of the few at the expense of everyone else by making misleading assertions. [“Trying to muscle big solar into Shutesbury forestland,” Recorder, June 12].

The first misleading assertion seeks to stoke fear by claiming the loss of any group of trees within a forest for a solar array defeats the purpose of combating climate change. The fact is we need alternative energy sources to save the forests, because climate change is destroying them. Recent headlines about how the public health, safety, and welfare of the region was recently threatened by wildfires in Canada should come to mind.

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The second misleading assertion implied overwhelming support by the town by describing attendance at Shutesbury’s January special Town Meeting, as “packed.” According to the town’s website, only 133 voters attended that meeting out of what was then 1,492 total registered voters, according to the town clerk’s office. So just under 9% of registered voters attended this so-called packed meeting.

The third misleading assertion was that the Dover Amendment was, “originally intended to encourage rooftop and small scale projects.” The clause in question reads as follows: “No zoning ordinance or by-law shall prohibit or unreasonably regulate the installation of solar energy systems or the building of structures that facilitate the collection of solar energy, except where necessary to protect the public health, safety or welfare.”

Further, the Supreme Judicial Court, the highest court in Massachusetts, ruled on the Dover Amendment’s application to solar arrays for the first time just last year. The author omitted the fact that Tracer Lane II Realty LLC V. City of Waltham was the motivation for Shutesbury’s new solar restrictions.

The SJC ruled that towns can’t unreasonably regulate ancillary components of solar arrays, except to address public health, safety, and welfare. The case involved an access road with a commercial purpose in a residential zone. The SJC ruled in favor of the Tracer Lane II Realty, because the access road was a necessary ancillary component for the solar array.

Shutesbury’s amendment seeks to further restrict solar arrays by piling on a list of “areas of concern” to support a public health, safety, and welfare justification, some of which are already covered by state law, such as aquifer, wetland, and cultural resource protection. The town is just trying to create more roadblocks for town officials to employ.

We need to stop using “the public health, safety, and welfare” justification as perceived by those few with economic, personal, and aesthetic self-interests to prevent solutions that promote the public health, safety, and welfare of everyone else.

If the abuse of zoning in Massachusetts cities and towns has taught us anything, it is that we need a comprehensive plan to address the housing and climate crises. A patchwork of different plans among the 351 cities and towns of the commonwealth decided by a small fraction of their respective electorate is the least efficient and least democratic path forward. And we’re out of time.

Michael Seward of Sunderland is a licensed real estate broker and owner of Michael Seward Real Estate.

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