Why Sunlight Preservation Should Trump Local Control

Massachusetts is considering a bill that would limit sky rises, despite charges that it violates Boston's right to develop freely

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Reuters

Boston markets itself as a “walking city,” but visitors shouldn’t expect to walk in the sun, a diminishing resource downtown and in Back Bay. Boston is no longer a low-rise city, and its high rise skyline comes at a cost.

“Downtown spaces are not just for buildings; they’re for buildings and people,” Massachusetts State Representative Byron Rushing stresses. Rushing, who lives in Boston, (as I do) is a co-sponsor of the “shadow bill," aimed at limiting new high-rises that would cast additional shadows on remaining open spaces. It was inspired partly by a Simon Property Group proposal for a residential tower atop the Neiman Marcus at Copley Place, a Simon Property mall near Copley Plaza, the landmark Boston Public Library, and Commonwealth Avenue boulevard. The shadow bill is an amendment to laws enacted in the early 1990s to preserve sunlight in the Boston Common and Public Garden.

It has sparked strong, predictable opposition from the city, the Boston Redevelopment Authority (which unanimously approved the Simon tower), Boston University, private developers, and the building trades. Concern about sunlight is "elitist,” an iron worker’s representative charged at a recent public hearing. "We need jobs." The rich seem poised get richer quicker if the bill fails; but in an economic crisis, preserving sunlight, among other environmental concerns, seems like a luxury to many.

Opponents of the bill claim additionally that it violates basic principles of local control. City officials should preside over city development projects, they charge; and, in fact, if the shadow bill only applied to Boston, the state legislature would be barred from considering it, in the absence of a home rule petition requesting state intervention. The state has no unilateral authority to enact a shadow law for a single city. But the pending bill applies to a park in Cambridge, as well as several parks and plazas in Boston; (its co-sponsor, State Representative Marty Walz, resides in a district that straddles both cities.)

Inclusion of a Cambridge park in a bill prompted by Boston development may seem like a bit of legislative legerdemain, but legerdemain is, after all, another word for the legislative process; and it was similarly employed by powerful, former Massachusetts House Speaker Billy Bulger 20 years ago when, at the urging of local residents, he crafted the original shadow bill that protected the Boston Common. The city opposed the bill, so, surveying the territories, Bulger found a common in the City of Lynn to protect along with the Boston Common, enabling state legislation. Development did not cease, the city did not decline after passage of the first shadow bill, and city officials soon reconsidered and asked the legislature to extend protections to the Public Garden.

Supporters of the pending shadow bill take some heart from this history, which they’d like to repeat. Local residents requested the expanded sunlight protections, appealing to Representative Walz when the city declined to act. Current zoning laws allow for 3 million square feet of additional development around the site of the proposed Simon tower, one supporter testified; (the bill would apply only to projects seeking variances.) This is not "an anti-density bill," Rushing insists. "For people to see and be in sunshine, that’s what this bill is about." The value of sunlight on open urban space is hard to quantify, but for neighborhood residents and visitors, it’s easy to appreciate.

If the Simon tower is built over the Copley Place mall it will be, quite literally, a castle in the air, erected on air rights owned by the state. Copley Place stands on pilings over the turnpike and railroad tracks, pursuant to a state lease. (Simon recently secured a 99-year lease extension.) Theoretically, the state could demand the demolition of any new tower, and all of Copley Place, when the lease expires, but few of us will live long enough to see that not happen. Meanwhile Simon is a formidable developer enjoying formidable official support for the Copley tower. But if prospects for altering it seem dim, they’re brighter still than the prospect of a walking city in its shadow.

About the Author

  • Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.