© Copyright 2001 The Boston Herald

Hub zoning code causes contention
by Paul Restuccia
Last in a three-part series on the impact of building and zoning codes.

When it comes to zoning in downtown Boston, critics are saying there effectively isn't any. If almost every major project uses instruments that suspend the underlying zoning code to obtain approval, they ask, then what is the point of zoning?

At the heart of the issue is whether zoning is perceived as the letter of the law or else as a point of departure. What rankles some involved in the community process of evaluating projects is that in the development process in Boston, zoning plays second string in a politically rigged game played by those who have cultivated good relations with Mayor Thomas M. Menino. They also feel the Boston Redevelopment Authority has too much latitude in applying special provisions of the code that have outlived their original intent.

These special provisions or tools are not new. U-districts and Planned Development Areas (PDAs) have been part of the city's zoning code since the late 1960s. U-district designations, a legacy from the days of urban renewal, can suspend underlying zoning if there's an agreement or a land disposition such as an eminent domain taking in any of the city's 13 urban renewal areas, such as Park Plaza, Government Center, the West End, two in the central business district and others in the South End, Fenway and East Boston.

Critics say that while urban renewal was long ago discredited as an effective zoning tool, with Boston's West End being the most notorious example, the BRA still has the power to condemn ``blighted'' areas to void long-term leases and take buildings by eminent domain.

``These tools are being abused beyond belief,'' says Bernie Borman, chairman of the Park Plaza Civic Advisory Committee, whose group has an advisory role in all projects within the Park Plaza Urban Renewal Area that runs along and behind Boylston Street from Arlington to Washington streets. ``It confirms the reality that zoning in Boston is only a problem for the little guys. The big-time players don't have to observe the zoning rules. They just have to negotiate with the city.''

Borman feels that U-district designations, originally intended for ``low-income and low-income elderly housing,'' have been undermined to allow projects like the proposed Loews Hotel on Stuart Street rise to 300 feet and to facilitate a project on Piano Row on Boylston Street originally slated to be developed as a hotel by close friends of the mayor.

He says the BRA took a parcel of land in the middle of the Piano Row site, voiding preconditions for its use set by the George White Fund when it was left to the city. The land was then conveyed to the politically connected developers, vastly increasing the value of the parcels they owned on either side. The original developers subsequently sold the parcel for $14 million to Emerson College, which plans to build a large dormitory and student center on the site.

The BRA is taking the Ames building on Court Street by eminent domain. BRA director Mark Maloney says the taking is justifiable because the building is ``blighted,'' is within the Government Center Urban Renewal area and needs its title cleared to void long-term leases that are holding up its conversion into a hotel.

But Shirley Kressel of the Alliance for Boston Neighborhoods says that owner/developer Intercontinental Developers - a firm that enjoys a strong relationship with the mayor - should not be able to take advantage of a law never meant to smooth the way for an upscale hotel on a prime piece of property.

``Zoning is used by the city as a default position only to stop things it doesn't want,'' Kressel says. ``If they want it built then zoning doesn't matter.''

Other zoning provisions are being twisted from their original intent or applied inconsistently depending on the project, critics say.

For example, there are five PDAs in the Midtown Cultural District, a designation that allows heights up to 275 feet in areas zoned for 155 feet if project area covers one acre. Critics question the logic of how some PDA sites, such as the recently completed Millennium Place, and the 33 Arch Street office tower now under construction, can well exceed even the 275-foot PDA height limit, while a PDA site like the city-owned Hayward Place parcel now out for bid to developers is being limited to 155 feet. They say that keeping building height on Hayward lower is a quid pro quo with Millennium's developers to preserve views from their towers.

A PDA for Kensington Place, a proposed apartment tower on Lower Washington Street, can only meet the minimum one-acre requirement by the inclusion of a BRA-owned building, the China Trade Center. Including this building as part of the project site will allow the proposed tower to rise to 275 feet, but has caused concern that a back-room deal was put in place even before the public review process has begun.

When projects are proposed that will exceed the allowable zoning, critics say that developers' land use attorneys start the business of deciding which instrument works best, i.e., which will allow the most height and density, represents the highest and best use of a site to maximize return to building owners and investors and to determine what tax benefits may be accrued.

Observers say that this puts the city in a reactive mode because often not enough proactive planning, which translates into zoning, is put in place.

``There is some legitimacy to that argument,'' says Matt Kiefer, a land-use attorney at Goulston & Storrs, who represents developers of Kensington Place, the Midway housing and office complex proposed for Fort Point and Columbus Center, a hotel and housing proposal on air rights above the Mass. Turnpike and who also teaches a course in project approval at the Harvard School of Design. ``But the problem with zoning is that things change very quickly. What's good zoning today may not be good 10 years from now.

``Zoning as a bulletproof mandate doesn't work because in downtown there are no set of requirements that can deal with all situations. It needs to be flexible. I don't see zoning as law, but as a starting point for discussion, a set of default assumptions, a template. It's the lowest common denominator because large projects always need zoning relief because there are issues of economic feasibility and change of uses.

``Advocacy groups focus too much on zoning. The mechanisms we use for complex proposals are irrelevant. These are matters for lawyers to work out.''

Both Kiefer and Maloney defend the inclusion of the China Trade building in the Kensington Place development. Kiefer considers it ``enlightened self-interest'' for the developer to want to upgrade an adjacent city-owned alley to a public walkway lined with shops.

``I don't believe we're abusing our power,'' Maloney says. ``We try to use the tools we have judiciously for the benefit of the city as a whole. And just because we've been successful doesn't mean we have to stop using incentives without which the city would be at a disadvantage in attracting development.

``Some people who advocate just playing by the rules aren't advocating the zoning process but a no-growth process.''

The root of the problem, many say, is that the BRA is an economic development agency as well as a planning agency. Some say the agency cannot wear both hats well, because the city's need to generate development to provide more tax revenue will always outweigh its planning and zoning functions.

While no one disagrees that attracting development is one of the major jobs of the mayor and the BRA, they question the ad hoc case-by-case basis that often governs approval of large projects.

``It's not only detrimental to the public process, but it also hurts developers who are also put into the position of making false starts and then must go through a protracted bidding process,'' says Jon Seward, spokesman for the Seaport Alliance for Neighborhood Design, and an architect and planner who is working with the city to rezone the Fort Point area. ``Developers want consistency and predictability, to get an equal shake not based on who they are, or what their connections are or how slick their lawyers are.

``But they wouldn't make proposals that go well beyond the zoning in place if their efforts weren't repaid. It's come to be standard practice. That's why many have the impression that zoning in Boston doesn't have much force or effectiveness.''

``If the only process is the back-room deal, there should either be enough back rooms for everyone or else, and preferably, everyone should play by the same rules in the clear light of day. It would benefit the city as a whole.''

The BRA claims that it is attempting to complete a comprehensive rezoning of the entire city that has been ongoing since the late 1980s. Each neighborhood has been getting its own code, arrived at by a long process of community involvement with Dorchester's zoning near enacting and the Fenway's nearing completion. The BRA's deputy director of zoning, Rick Shaklik, says that these new neighborhood codes will make it easier to determine the rules in Boston's neighborhoods.

The BRA says it is being proactive by initiating a Fort Point Municipal Harbor Plan that will set zoning for a wide swath of land on the downtown side of the Fort Point Channel from the Moakley Bridge to the present site of the Post Office Annex, where buildings of significant height are expected be allowed with specific height limits set for developers to follow.

Seward is hopeful that the BRA's work with the Fort Point Working Group will craft meaningful new zoning in an area now zoned for manufacturing but seeing more proposals for housing and offices.

Those involved in the community process in neighborhoods that have already been rezoned, such as the Leather District, are more sanguine about the results. The area of 19th century commercial buildings near South Station was zoned to 100-foot maximum in 1991 and yet a few years later Rose Associates, owners of the 46-story One Financial Center, proposed a 277-foot building on an adjacent parking lot they owned.

``They couldn't use the excuse that the zoning is outdated here because it's only 10 years old,'' says Larry Rosenblum, a Leather District business owner and resident property owner who's been involved in neighborhood issues, including rezoning, for more than 20 years. ``That the developer would dare do this says they had an implicit or explicit sense that this would be tolerated.''

The height of Two Financial Center has since been reduced, but the matter has ended up in court.

Critics also say the long-term use of what are called interim planning overlay districts (IPODs) allows projects that go higher than the prescribed zoning limits or are non-conforming uses to bypass the variance procedure of the Zoning Board of Appeals. The downtown IPOD, which covers most of the central business district and is renewed annually, has been in place for 14 years. Shaklik says permanent zoning for downtown is still being developed, but critics say the long lag time has been intentional because it gives the agency more power to control what gets built.

The BRA recently postponed an amendment to that IPOD that would have allowed buildings, now capped at 155 feet, to rise to 350 feet if half of the project is residential after a public outcry that such a major change, intended to promote residential housing downtown, was about to be enacted with little public input or build-out analysis.

Maloney of the BRA says that more public input will be sought before bringing the proposed change before the Zoning Commission for approval, but critics say that this and other groups charged with enacting code or advising on zoning relief during the public process are often stacked with mayor-friendly appointees.

``Despite all the talk about the public process, it's a closed system,'' says Kressel, of the Alliance for Boston Neighborhoods. ``The commission and board of appeals mostly do the mayor's bidding and the community groups they confer with are selective ones. The IAGs and CACs are institutionalized supplicants whose purpose is to attract goodies to offset the impact of projects that are larger than zoning allows and to buy off neighborhood support. It's become a big benefits bazaar.''

Kressel says the use of what she calls the ``five finagles'' - PDAs, U-districts, IPODs, another zoning tool called special study areas and the use of a 1945 state law called Chapter 121A that gives the BRA power to encourage development of ``blighted'' areas (outside of designated urban renewal areas) by providing tax subsidies to developers - are a collection of zoning loopholes.

``The name of the game is to avoid the Zoning Board of Appeals where a granted variance can be challenged in court,'' she says. ``And to get a variance you're supposed to meet certain legal criteria, one of which is to establish `hardship,' meaning that there has to be a fault on the site which makes it difficult to develop.''

Yet while hardship is one of the legal criteria, Kressel says that the ``hardship'' question is not even asked on the current variance application, an omission she is working to change. She also wants to know what the developers of Liberty Place, a proposed 400-foot tower for 468 apartments on the same block as the state registry building now zoned for 90 feet, is proposing to claim as a site hardship on the open parking lot where the tower will rise.

Kressel says that developer Charles E. Smith is clearing the way for a variance by offering the city 15 percent affordable units on the project, 5 percent more than the inclusionary zoning requirement of 10 percent.

Maloney disagrees that the extra 5 percent affordable housing is a buyoff, arguing that such mitigation to affected communities makes for better projects that have neighborhood input and support.

``We have a long-standing plan for a spine of height on Lower Washington Street,'' Maloney says. ``We are desperate for rental housing in the city and here we have two proposals to address that need.''

He also takes exception to the criticism that the entire process is a closed system.

``We have some very strong critics in some of these citizen groups,'' Maloney says. ``They are not hand-picked nor under control of the mayor.

``But if a very popular mayor just reelected by a large margin has control it's not a bad thing because he makes sure a wide range of people are represented.''

Larry Rosenblum, a longtime participant and observer of how zoning has been implemented in Boston, feels that things won't improve until a firewall is established between the economic development and planning functions of the BRA.

``The current system is costly to developers and to the community at large,'' Rosenblum says. ``It's corrosive to economic development because of the added costs and it's destructive of public confidence because average citizens feel powerless.,'' he adds.

``It's not how things should work. We have to change the way we apply zoning law.''

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