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It’s Cromwell’s Birthday, Cry If You Want To

cromwell statue

Oliver Cromwell: Advocate of Plain English

On April 25, I note without celebration the anniversary of the birth of Oliver Cromwell: squire, soldier-statesman, and slayer of civilians. During the wars of the 1640s Cromwell ordered the slaughter of innocents in Ireland, an abomination that not even the most ardent of Roundheads (of which I am one) should attempt to rationalize or excuse.

So, mindful of the aphorism attributed to Fritz Perls regarding the fimetic quality of everything that precedes the word “but,” I now have to explain why the birthday of this bloody man is worthy of note in the relatively pancytopenic field of legislative drafting.  My reason has to do with Cromwell’s belief that writing should be simple, a principle I flouted in the preceding sentence by using “fimetic” and “pancytopenic,” words that are not exactly in everyday parlance.  My word choice would have annoyed Old Noll, as his adoring public called him.

As Lord Protector, Cromwell appointed a law-reform committee and charged it with making the laws “plain, short, and easy.” This was one of the achievements he announced in his speech to Parliament on September 12, 1654, in which he urged the honorable members to adopt the Instrument of Government, which would make him life-long Lord Protector.  Standing in a room full of politicians and referring to the establishment of a committee as an accomplishment deserving of reward is evidence that Cromwell knew his audience.

After listing his other successes, (e.g. peace with the Dutch, Swedes, and Danes) Cromwell told his listeners to think of him not so much as a “lord over them” but more as a “fellow servant.” Then he cautioned that before making him dictator for life they should look for evidence that the Almighty considered him up to the job:

[F]or men to entitle themselves to be the only men to govern nations and rule kingdoms and give laws to the world, to determine of property and liberty and everything else, needs a great manifestation of God’s presence before wise men will submit to it.

The Members of Parliament took Cromwell at his word and debated the proposal. However, when their search for a great manifestation of God’s presence took rather longer than he had anticipated, fellow-servant Cromwell sent four companies of the Scots Guards to summon them into his presence in the Painted Chamber at Westminster Palace. There he explained to the representatives of the people that their unanimous endorsement of the Instrument of Government in the “spirit of union and concord” really was the “best expedient and pilot to conduct them to the Haven of Happiness.” Surrounded by men bearing muskets, swords, and pikestaffs, a majority of the parliamentarians suddenly discovered the elusive manifestation of Divine approval they had been looking for, and voted aye.

Just to be on the safe side, the following morning Cromwell locked the doors to Parliament and took possession of the ceremonial mace, so as to put an end to what the official report of the speech and its aftermath called “these distractions.” Historians differ as to whether it is reasonable to describe the ensuing period (which entailed carving the country into military districts to facilitate the rule of the major-generals, a vigorous campaign against immorality, the ejection of dissident preachers, and the imposition of a decimation tax on Cromwell’s royalist opponents) as a Haven of Happiness.

What lesson does this episode offer to aspiring legislative drafters? Simply this: If promises of plain, short, and easy statutes do not prove persuasive, send in the army. But students thinking of enrolling in my one-credit Legislative Drafting course next semester should note that due to time constraints and lack of resources (the ROTC commandant has not returned my calls) we will not be exploring said option in much depth. Instead we shall look at less controversial approaches to lawmaking, such as this.

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Delusionary Zoning, Cont’d.

My previous post about Amherst’s inclusionary-zoning bylaw opened with a quote about the appropriate direction in which to move when standing at the edge of a precipice.  As if to compensate for its potentially Brian-Williamsical quality, a Facebook commenter provided a substitute, which I must remember to use from now on. After impugning my motives (stage two in the Kuebler-Ross model of online discourse) and asking who I am really working for (answer: Koch Brothers, obviously) he asked:

“[A]re you just interested in stampeding the herd with you at the front?”

In the unlikely event that I ever attempt to stampede a herd, I assure you that the front will be the very last place to find me. But I appreciate the image, and shall cherish the quote forever. You can read the whole, jolly FB exchange here.

Yesterday evening I joined the discussion off-line, a term not synonymous with “real world.” The Select Board was discussing the Planning Board’s proposal to replace the current inclusionary-zoning bylaw, Article 15, with a new version. Readers will recall that the purpose of Article 15, which Amherst adopted in 2005, is to increase the number of affordable units. Although fundamentally flawed, the current version at least has the advantage of being simple and, at about 400 words, relatively short. Moreover, it is constitutionally sound, applying only to projects that would require a Special Permit, as opposed to by-right projects.

How well has it worked so far, asked the chair?

At that point I heard the snarky little voice inside my head mutter, “We haven’t gotten any affordable units out of it. It’s been a deterrent.” Only it was not the snarky little voice inside my head. It was Rob Crowner speaking on behalf of the Planning Board, the proponent of the new Article 15.

“We haven’t gotten any affordable units out of it,” he said.  “It’s been a deterrent.”

Inclusionary zoning, whose sole raison d’être is the production of affordable homes in Amherst, has produced absolutely none. Not one. In ten years.

Repeal the bylaw before it does any more damage, send it the way of the Corn Laws; that would be my advice. Unlike my advice, however, the Planning Board’s observes the immutable law of zoning physics, which decrees that bylaws can only ever expand, never contract, let alone disappear.

Therefore, because the short, straightforward bylaw has proved an execrable failure, we must replace it with a bylaw that is not only long and complicated but also extends its reach to by-right developments, i.e. home-building projects that would not require a Special Permit.

Inclusionary zoning has produced no affordable housing, said Mr. Crowner. Rather, it has been a deterrent (as in, something that deters). It has discouraged, not encouraged, affordable housing. If the herd was ever going to stampede away from inclusionary zoning, you would think this announcement would have provided sufficient spooking. But the floors did not vibrate with thundering hooves, and nobody got trampled. That said, there was an odor in the air redolent of the ranch.

Switching metaphors to matters nautical, picture this: His vessel holed below the Plimsoll line and sinking fast, the captain says to his crew, “Lads, we are taking on water. We need to let it out. Larry, you go below-decks and make holes, big ones and lots of ’em.  Take the sledgehammer and a stick or two of dynamite. Curly, you swim ashore and fetch a rock. Something about the size of an Easter Island statute should do.”

That is what the new Article 15 represents. More — much more — of the same.

The current Article 15 consists of about 400 words; the new version weighs in at around 2,000. The current version applies only to Special Permit developments; the new version covers by-right as well. Because of its potential to infringe on property-owners’ Fifth Amendment rights it contains a “nexus statement,” which claims the policy is necessary because affordable housing in Amherst is diminishing, even though it is not. In 2005 the stock of affordable housing stood at just over 10% and ten years later it still stands at just over 10%, which is not a diminution no matter what dictionary you use.

The Planning Board report described this dodgy nexus statement as “legally necessary.” I had emailed my doubts to the Select Board the day before the meeting, and the Town Manager had called counsel for clarity. Yesterday evening the Town Manager stated that the latest legal opinion describes the nexus statement as something that “would be helpful.” The thing went from absolutely necessary to just potentially helpful in next to no time. In a couple of days it will be, “Meh, probably couldn’t hurt.”

So the new Article 15 – all 2,400 words of it, legally indeterminate nexus statement and all – is what the Select Board voted in favor of, unanimously. Onward to Town Meeting, where I am sure it will engender much reasoned, thoughtful debate.

On the subject of reasoned, thoughtful debate, my coming out in opposition to inclusionary zoning led to a robust Facebook exchange that culminated in the quote about my stampeding the herd from the front. It thereby produced something of value, which is more than you can say for inclusionary zoning.

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