A family housing program for parents in recovery proposed for a former nursing home in a residential neighborhood; a drug store proposed for a restaurant site on a busy commercial road; a psychiatric facility for treating eating disorders proposed for a 30-acre former religious retreat center.
Such projects have historically drawn opposition from abutters and other community members, often vigorous. But in recent years the nature of opposition has changed. In a culture gripped by social media and talk radio, each of these construction projects was awash in controversy and generated hostile public sentiment marked by incivility targeting both applicants and board members considering the projects. This growing influence of negative public discourse poses new challenges for developers and their counsel, and elected officials as well.
The proliferation of blogs, easily constructed websites, anonymous comments posted to online media sources and the near universal access to such media have both accelerated and heated the public opposition to any project. The family housing program was the focus of an intense blog fueled campaign attempting to stop the project. When the local planning board became enmeshed in this emotional battle, it lost sight of its jurisdictional limits, resulting in a lengthy federal law suit against the town and elected officials sued personally. In the end the program was permitted and the town paid a substantial financial settlement to the applicant.
Technology’s Profound Impact
Some welcome this expansion of public engagement as the natural evolution of the New England Town Meeting. Instead of hearing the voices of the usual six residents who tirelessly attend each and every public hearing in most communities, projects are now subject to a public microphone open to anyone with access to a computer or smartphone. The local crank who makes the same irrelevant, often inaccurate point, at meeting after meeting can be dismissed as an eccentric, leaving room for boards to consider the thoughtful comments of the five other public speakers.
When the crank is multiplied by 100, often with the protection of anonymity, it becomes much more challenging for both proponents and public officials to sort the facts from the noise, the emotions from the rule of law. Meetings become unmanageable. The drug store project, which was widely covered by social media, was ultimately approved, but not before multiple allegations of bribery attempts and rumors of undue influence by a rival developer were spread throughout the community. Public hearings ended with a spirited attack on the rumor mongering by several members of the Planning Board. For all involved it was a bruising process.
The impact of web technology on both developers and public officials has been profound. The speed and universal access to social media make it much easier to bring out hundreds of opponents to a public hearing. Every aspect of the hearing is scrutinized and reposted instantly with little time given for thoughtful reflection. Fact-checking is nonexistent, and unfortunately, web-based comment often leans toward personal attacks and the basest form of "gotcha" journalism. The pressure on public officials can be intense. While most of this occurs outside of public hearings, the effects of such unfiltered mass communication become evident when certain catch phrases or statistical "facts" are repeated at hearings, having gained some legitimacy from being posted on a blog or web site. Board members can feel that they are under a microscope of public scrutiny.
At the public hearing on the psychiatric facility, a board member was accused of impropriety, based on that board member having asked the applicant’s lawyer, "How are your babies?" She had remembered that the attorney was pregnant the last time she appeared before the board. This simple act of civility was cited as evidence of bias, a charge repeated by multiple speakers using catchphrases remarkably similar to those that had appeared on a local blog. It did not matter that a personal relationship did not exist, the "babies" were now 5 and 8, or that there was no other basis for the accusation. In the end this scurrilous tactic left a strong suggestion of scandal in the hearing room, however fleeting. It caused delay, distracted from the legal presentation and added nothing to the facts or arguments properly before the board.
Combating The Tide
Elected or appointed officials, generally volunteers struggling to resolve complicated legal issues, are now subject to such personal attacks and the awareness that their every move is potentially available for review on the web, including something as basic as a polite greeting.
While balancing free speech and due process owed to all applicants is difficult, there are things we can do beginning with better training for citizens who serve on public boards. Chairing a public meeting is a difficult task that does not come naturally to most people, particularly when asked to manage a meeting of friends and neighbors. Boards should adopt presentation time limits for both applicants and public speakers.
The wild speculations fueled by web postings can be curtailed if speakers are required to limit their comments to the specifics of the pending application. Boards must also reject anonymous submissions and require documentation to support allegations and speculations related to any proposal. Speakers should not be allowed to repeat the same point multiple times. Board chairs should insist on civility and challenge speakers who make inflammatory comments.
The Internet poses more difficult challenges. Over time we must develop checks and balances similar to those that evolved for traditional media outlets over their long history. One basic improvement would be to eliminate anonymous postings on local on-line newspapers. Free speech does not require anonymity. Both advocates and public officials must develop the discipline to modify the hearing process to reflect this new reality and to find ways to focus on the rule of law without restraining the enhanced level of free speech allowed by our emerging technology.
James Hanrahan is the managing partner of Bowditch & Dewey LLP. His practice includes land use planning, permitting, conveyancing and commercial and retail leasing matters. His expertise includes an emphasis on retail shopping center developments, residential and multifamily development and development of nonprofit educational facilities. Hanrahan has represented many local and national companies before Planning Boards, Zoning Boards of Appeal and Conservation Commissions throughout the commonwealth.
