Let towns have more power and regional planning may follow

In Massachusetts, the birthplace of town meeting, no civic value is more sacred than the idea of home rule. By the term “home rule,” people generally mean the right of every locality to control its own destiny. This appeal to local sovereignty is so strong that it is regularly invoked as the reason that solutions for problems that transcend municipal boundaries cannot be pursued. Why can’t more affordable housing be built, or water supplies regulated, or traffic congestion relieved? The answer always boils down to two words: home rule.

Yet here in the cradle of American democracy, self-determination is honored more in the breach than in the observance. After two years of examining the law–and the reality–of municipal control, we have concluded that home rule is more myth than fact in Massachusetts. What’s more, it’s a myth that hides where the true power lies, diverting attention from promising solutions to the region’s problems. Indeed, the true obstacle to regionalism in the Boston area, we have found, may not be too much home rule but too little.

Massachusetts got around to granting home rule to its cities and towns only in 1966. And it did so grudgingly. The Home Rule Amendment–Article 89 of the state Constitution–says that its purpose is to “grant and confirm to the people of every city and town the right of self-governance in local matters.” But it goes on to say that the right of self-governance does not extend to the power to regulate elections; to enact private or civil law; or to tax and borrow. In other words, home rule is alive and well–unless you think that holding an election, regulating local businesses, or determining the local budget are local matters.

Worse still, the Massachusetts Constitution empowers the Legislature to overrule any local decision on any matter at any time. As an official from Medfield put it: “[The] Legislature, by taking action, can preclude the local community from using the Home Rule Amendment to accomplish anything.” Many other states give their localities much more protection from state power than this. In some states localities are shielded from state legislative interference on local matters. California’s home rule provision, for example, enabled Los Angeles to establish public funding for local elections even though the state Legislature sought to prohibit it. It’s even more common for states to give their localities greater powers of initiative than Massachusetts does. Indeed, the exclusion of elections and revenue from home rule makes Massachusetts one of the most restrictive states in the nation in terms of home rule power.

Which is not to say that municipal officers have no powers. A Gloucester official pointed to one: pooper-scooper mandates. “That’s an area where municipalities have complete authority,” the official says. “But how important is that?” A Sherborn official suggests even dog regulation is not free of state interference. She says that the town could not address “dog complaints” without consulting with the state because it regulates penalties and hearings. In Topsfield, an official told us that the town did not change the fee for the local fair for fear it would be deemed an unauthorized tax. For many officials, the presumption is that a locality cannot act unless it has been expressly authorized to do so by the state.

Show them the money

Nowhere is the lack of local power more evident than in the area of municipal finance. Because of Proposition 2H, unfunded state mandates, and state limits on a locality’s ability to find alternative sources of income, most municipalities cannot decide how much to spend on services and then use that figure as the basis for tax rates.

This state control over local revenue and expenditures turns municipal budget calculations into an algebra equation that squeezes out local discretion. The only variables municipal authorities can use to adjust revenue and expenditures are the local services and programs that state regulations do not control. Much of a municipality’s actual fiscal power involves cutting locally initiated programs.

A town administrator from Reading discussed what he saw as a downward spiral. Without the ability to levy taxes or to find other ways to raise income, Reading raised property taxes up to the levy limit. Yet because the property tax rate is now higher than in areas around it, and because Reading lacks the authority to make rate adjustments, elderly residents, impacted by the property tax, have moved out, only to be replaced by families with kids. This increase in school-age children has led to an increase in educational services, which in turn has required more revenue to pay for these increased costs. The municipality can only react by cutting more services, trimming back on personnel, or, potentially, relying on its land use powers to limit new residents.

Land use planning–practically speaking, development control–is one area over which home rule is thought to be strongest. But even there, it’s not that strong. The American Planning Association recently listed Massachusetts as one of the states with the most outdated land use laws, and the Zoning Reform Working Group of its local chapter concluded: “Although technically a ‘home-rule’ state, the statutes that govern planning and land use regulation are so restrictive to local authority as to make home rule more an illusion than a reality in Massachusetts.”

The ways that state mandates inhibit local growth control are legion. The state prohibits localities from establishing maximum floor areas for houses (which might outlaw so-called McMansions); the state exempts its own use of land from local zoning, thereby inhibiting the planning process; the state grants developers vested rights to build under old zoning laws while new ones are being considered; and the state inhibits modification of existing zoning codes except on a two-thirds vote of the city council or town meeting. In all of these ways, state law threatens to prevent suburbs from acquiring the look and feel of the traditional New England towns, one of the region’s greatest assets.

Many people think that local control over education is an exception to this pattern. But, although it’s true that state law gives local residents control over education, it does so by fragmenting local power over schools. The reputation of their schools affects how municipalities develop. Yet while city and town governments are generally responsible for managing growth and economic development, state law gives school committees, rather than municipal officials, responsibility for management of the schools. Except in the city of Boston, these committees are not under the control of town or city government, which only have the ability to determine overall school department spending. It is important to recognize that, unlike municipal governments, school committees lack home rule as a constitutional matter. Quite the contrary: They are increasingly beholden to the state Board and Department of Education. We all know about MCAS, but that’s just the tip of the iceberg.

With little authority to take action on their own, localities must seek legislative permission for almost everything they want to do. More than half the state’s new statutes each year are responses to such “home rule petitions.” But that does not mean local officials always get what they ask for. Some speak of petitions that have been pending for more than five years. Others complain that their state representatives and senators, who shepherd these petitions through the Legislature, sometimes delay action for their own purposes or take the opportunity to extract favors. “It’s a God-awful process,” says one official, speaking for many.

Power to impede

Bereft of true authority over many matters, local officials have learned to make the most of the power they do have, especially to resist change and preserve the status quo. By making localities so subservient, the state has facilitated a kind of parochialism that frustrates cooperation between municipal neighbors.

Constraints on municipal revenue raising and expenditure make local officials averse to inter-local arrangements that might further diminish their power. They are equally reluctant to consider cooperative arrangements with other municipalities involving expenditures because of lingering fears that they may not come out ahead–or that voters will think a neighboring competitor has snookered them. So deep is this fear that some officials avoid cooperative efforts that would benefit their towns if the other municipality appears to get more out of the deal.

Or take the crisis in affordable housing. The statewide fair share housing mandate known as Chapter 40-B has certainly played an important role in overcoming local resistance to low- and moderate-income developments. And many localities have, in turn, done their best to undermine it. But, as designed, Chapter 40-B does little to give localities power to make their communities more socio-economically diverse.

For the first two decades of its life on the books, Chapter 40-B did not even count locally initiated affordable housing efforts toward the state mandate. Current provisions of state law erect legal obstacles to local efforts to preserve what affordable housing does exist within towns and cities. Others place significant limits on the ability of cities and towns to make developers set aside affordable units in new projects or pay into affordable housing trust funds. And, of course, the state limits on local fiscal control play a key role in making localities leery of young families likely to enroll their children in public schools.

So, if the lack of true home rule undermines the basis of trust and reciprocity necessary for crafting solutions to regional problems, granting local officials greater authority would not, by itself, give rise to regional cooperation. Indeed, more local autonomy might just generate more local parochialism.

Besides, the state has a legitimate and necessary role to play in regional issues. Many of the problems that communities face arise from actions taken by their neighbors. The state has to help resolve such conflicts. But now, the parochial mindset of many local actors often makes the state shy away from taking them on.

Still, rather than mandating regionalism from above, or coercing localities by tying funding to greater regional cooperation, the state could promote regionalism by responding to the widespread sentiment that the state has unduly limited home rule. The state can enhance local power–and relax existing limitations on it–as a carrot to induce greater regionalism.

The possibilities are numerous. Virtually every municipal official we interviewed emphasized the lack of local power over fiscal matters. In response, the state could grant a group of localities a limited power to impose a sales tax as long as they agree to share the new revenue. Alternatively, the state could reimburse localities for the lost revenue generated by state-owned, tax-exempt property as long as the municipalities collectively submitted to the state a plan detailing where such new state properties should be located.

The state could also increase municipal authority to offer tax abatements to encourage development on condition that the locality agrees to share a portion of the revenue generated with neighboring communities. The recent proposal by the state-appointed Chapter 40-B Task Force to provide communities increased state aid in return for making progress toward their Chapter 40-B housing requirements is very much in the spirit of what we have in mind.

Similar ideas could be used to enhance local land use power that would not involve fiddling with the revenue structure. One noteworthy example is the state’s insistence that developers be allowed to operate under existing zoning while the municipality considers changes. Since any move to alter its land use rules would presumably spur, in fire-sale fashion, just the kind of development local officials are hoping to discourage, this state requirement serves as a powerful disincentive against rethinking development guidelines. The state could encourage regional growth management by relaxing this rule for cities and towns that enter into regional land use planning agreements.

It would be easier still to foster collective action among the region’s towns and cities on issues such as transportation that, unlike revenue collection and land use planning, everyone agrees require regional solutions. Currently, localities have no authority to make the transportation decisions that affect their future development. That power now resides in the state Executive Office of Transportation and Construction, MassHighway, and other state-controlled agencies. Several towns noted that their own efforts to establish bus routes among neighboring suburbs were thwarted by the MBTA. Even the metropolitan planning organization for the Boston area, established to advise on the allocation of federal funding for highways and mass transit, has only seven of the region’s 101 cities and towns represented on the board, and they are outnumbered by state and federal officials. Giving all the region’s municipalities more influence on regional transportation policy could promote regionalism and increase home rule at the same time.

These proposals would not fully address the problems facing Boston and other regions, nor would they restore home rule in the sense of wide local autonomy. But the mythology of home rule–which blames localities for exercising power they don’t really have–is impeding progress toward regionalism more than the reality is.

We need a new way of thinking about home rule, one that would empower cities and towns to work together to solve regional problems, not just go to the state with hat in hand–or dig in their heels against changes they have little power to control. If we listen closely to what local officials themselves are saying, we might discover that such an idea is closer than people think.

David J. Barron and Gerald E. Frug are professors at Harvard Law School, where Rick T. Su is a third-year law student. The full study on which this article is based, Dispelling the Myth of Home Rule, is being published by the Rappaport Institute of Greater Boston at Harvard’s Kennedy School of Government.