A street of Boston three-deckers. (Photo by Jennifer Smith)

THIRTY LOW-INCOME seniors recently lost potential housing, but 10 mature trees will survive.

Those are among the outcomes so far of the neighborhood process and design review for a desperately needed affordable housing project in Jamaica Plain. They are emblematic of Boston’s broken land use process, through which neighbors assert parochial interests to stymie needed housing development or impose additional costs and delays. Even when that development advances the city’s purported goals – goals that city leaders appear unwilling to expend political capital to advance.

Founded in 1860, Rogerson Communities provides assisted living, memory care services, and independent living opportunities to older adults in the Commonwealth. In the summer of 2024, Rogerson began meeting with neighbors near its 3.2-acre site on the Jamaicaway and in August it filed a Letter of Intent with the Boston Planning Department, announcing plans to redevelop a surface parking lot and a vacant single-family home.

The first phase of the initial proposal sought to replace the lot with below-grade parking and construct a new building that would replace existing memory care and day programs, and add 71 units of affordable senior housing. The building would be seven stories tall, exceeding the three-story maximum under the zoning code, but still one story less than the eight-story building next door. As initially presented, the project offered outdoor space for community use, used passive housing construction, and collected and reused rainwater for landscaping.

Although there was some support from neighbors, opposition coalesced early last year around the three-legged stool of NIMBYism — traffic, parking and “neighborhood character” — as well as height and shadows.

A few insisted they weren’t against affordable housing, just this project. The one near, if not quite in, their backyard. Predictably, the result was a revised and smaller project, reduced first to 67 and then to 41 units of affordable housing. Fewer people housed. Higher per-unit costs. A neighborhood’s physical character preserved at the expense of the additional housing needed to preserve its social fabric.

The reduction in the number of units at the Rogerson-Beaufort project is not an anomaly. It is the order of business in Boston — where excessive public processes, an outdated and outsized zoning code, and the influence of an unrepresentative set of residents combine to choke the supply of housing at every turn.

Thirty units may seem inconsequential, but cumulatively such reductions, which happen over and over when development projects are reviewed, exacerbate our desperate housing shortage. The result is a city that talks about solving its housing crisis but whose actions – collectively and individually – ensure the problem persists.

Rogerson Communities’ proposal would seem to check all the boxes that city officials purport to care about. It replaced a surface parking lot with new community space, trees, and much-needed housing. It added a significant number of new parking spaces via a garage. The design was thoughtful, the building attractive, and the traffic impacts minimal. Most importantly, the project promised homes for low-income seniors in a city where older residents face escalating housing costs.

The neighbors who oppose this and other projects reflect the natural tendency of what Dartmouth economist William Fischel famously termed “homevoters” – the homeowners who dominate local politics and discourage higher density development they perceive as a threat to their property values. This phenomenon can be found not just in smaller suburban communities, but also in urban areas.

Our zoning system should not pit neighborhoods against one another in a desire to resist new development. In a functioning system, a city would plan and zone in a manner that permits as-of-right future development in response to growth and changes in demand.

A recent study found that 58 percent of parcels in Boston are nonconforming with respect to floor-area ratio. In other words, most buildings that exist would not be legal to build today.

We are not simply failing to zone in a manner that permits needs development. We are zoning in a manner so restrictive that our current city, the one so many are so eager to preserve in amber, would be impossible to build today.

Boston’s development review process, while perhaps intended to advance thoughtful, democratic decision-making, in practice reflects an ad hoc system of neighborhood vetoes. Those who attend meetings and submit comments are overwhelmingly older and more likely to own homes, consistent with the experience in other communities. Allowing informal neighborhood groups and the unrepresentative collection of individuals with time and flexibility to show up on a Tuesday night to shape or halt projects undermines the rule of law.

Rather than reflecting some sort of democratic ideal of local control, Boston’s process empowers those who already have housing to block housing for those who do not.

Maintaining the status quo benefits those who already own property and possess the resources to wield political power. As Mayor Wu herself wrote in her 2019 report Fixing Boston’s Broken Development Process, “A system of special approvals driven by influence disadvantages those without resources.” Yet the mayor has, after one full term, done little to move the city away from this system.

Modest attempts to upzone neighborhoods have moved slowly. Development still depends upon a system of discretionary relief. So Boston approves more than 1,000 variance applications each year, compared with single- and double-digit numbers in far larger cities. We patch together a city through ad hoc determinations in which local interests dictate the outcome. Efforts to modernize the process focus on maintaining this community review of individual projects.

Fixing Boston’s land use system requires more than tinkering at the margins. It demands a wholesale rethinking of how the city regulates land and how it decides what gets built and where. Zoning should, as its earliest proponents recognized, allow for development in response to present and future needs. Only then will it serve the general welfare that provides the legal basis for its existence.

The city must limit the ability of individual residents and neighborhood groups to delay or downsize projects, as a Boston Globe editorial recently recognized. Public participation is valuable at the level of crafting policy and developing zoning; it should not govern case-by-case determinations regarding individual projects. Elected officials responsive to their constituents should set the course of development rather than self-appointed neighborhood representatives.

Perhaps the plot of land across the street from my home in Jamaica Plain was not the best place in the city for 30 additional units of affordable housing. However, in a system where discretionary review determines what can be built, rather than as-of-right zoning implemented through a citywide process, no one is considering the broader context and adequately weighing the general welfare.

The housing crisis is not inevitable. It is the direct result of choices—choices made in hearing rooms and zoning meetings, choices to privilege trees over people and process over progress. If Boston wants to live up to its ideals, it must choose differently.

John Infranca is a professor of law at Suffolk University Law School and Florence Rogatz Visiting Professor of Law at Yale Law School. He is writing a book on the early legal history of single-family zoning.