^ reform is coming to Boston’s zoning process. Councillor Edwards’s proposals invite serious discussion even if the details merit adjustment

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Several proposals have come forward recently to change how the City of Boston makes its planning decisions. They’re drawing plenty of  attention, too, thanks to the coincidence of a zoning board scandal and an ongoing, almost city-wide unease with development projects and how they get approved.

All of us have read of the bribery scandal involving a former member of the Zoning board of Appeal (ZBA) and a developer who sought the extension of a development permit without undergoing ZBA review. A member of the Board resigned soon thereafter when it was revealed that he acted as broker for the sale of properties whose ZBA variances he voted for. His doing so was not illegal, but it wasn’t well received by Bostonians who feel that the ZBA approves zoning variances regardless of the law governing them.

Last week Councillor Lydia Edwards — who represents East Boston, Charlestown, and the North End — called for reforming the way ZBA members are appointed. I will discuss her proposal later in this column. Its ante has now been upped by Councillor at-Large Michelle Wu, who today called for abolishing the BPDA — Boston’s Planning and Development Agency, which oversees all development proposals from beginning to permit grant. I will discuss Wu’s proposal, too.

Before I talk assess the two proposals, Edwards’s and Wu’s, let’s talk about the ZBA. It is a seven-member body, appointed by the Mayor, which votes on whether or not to grant a “variance” from the requirements of the Zoning Code. Article 80 of the Boston Zoning Code sets forth the entire process as administered by the BPDA. ( You can read Article 80 here : http://www.nabbonline.com/files/A_Citizens_Guide_to_Article_80.pdf ) There is also the State zoning law, found in MGL c. 40A, which you can read here : https://malegislature.gov/laws/generallaws/parti/titlevii/chapter40a. The Massachusetts statute establishes zoning purposes and guidelines, and even though the City of Boston has its own zoning code, the law of variances is governed by c. 40A.

What are variances, and what is the law that regulates them ? ( 1 ) a “variance” is an exception to a particular zoning requirement ( 2 ) it is supposed to be granted SOLELY because it enhances the purposes of the law that it is an exception from. In other words, for example, an owner wants to build an extra bedroom onto his home, but that extra will extend into the side setback requirement of the “residential 2-family” district the property is in. The owner argues that granting him this exception, i.e., this variance, will strengthen his (and the property’s) commitment to maintain a two-family residence. Or, an owner may want to raise the height of his roof beyond the, say, 35 foot height restriction governing his zoning district. He proposes that his third floor apartment have a large picture window, say, that will require lifting his roof to 40 feet, five feet beyond the 35 foot height restriction. Abutters may object to this lift as impeding their view or their sunlight, and such objection will be entertained by the ZBA. Nonetheless, the ZBA may well grant the roof lift variance as improving and thus stabilizing the three family dwelling the owner wants to renovate.

In all such cases, the zoning law expressly states — and Massachusetts courts have repeatedly affirmed — that any such variance from the code must conform to the zoning law in force and even strengthen it.

Yet for the past several years, and especially during Mayor Walsh’s years in office, the ZBA has seemed to grant almost every variance request that comes before it, many of them appearing, at least to me, to defy flagrantly the applicable zoning restrictions. Properties are built to the street, or to the very lot line; or they propose 9 units where 3 are allowed and exist; or they offer half as much as parking — or less — as the code requires; or they propose five stories and even six, where the code envisions a limit of three. Or they propose many of these variances altogether. State zoning law makes clear that zoning restrictions are intended to safeguard a neighborhood’s character. Yet the ZBA constantly approves proposals that alter neighborhoods radically.

Little wonder that residents in the most developed zones of Boston — East Boston, South Boston, Roxbury, Dorchester, Mission Hill, the Seaport, South End — have had enough and are finally in a mood to take no prisoners. The neighborhoods I name face hundreds of current requests for zoning variance, few of which — so residents worry — will be denied.

Voters sense — correctly, I think — that the free-for-all on variance grants result from Mayor Walsh’s insistence on the City creating 69,000 new housing units by 2030.

Into this already angry situation comes the ZBA scandal. Is it any wonder that residents and their political voices want the whole avalanche of variance and building to take a serious time out ?

Now to Lydia Edwards’s proposal. The East Boston Times summarizes Edwards’s comprehensive proposal thus :

“…real estate interests would be removed from the board and no named organizations or interests would have a permanent seat. Members and alternate members (seven each) of the ZBA would represent perspectives from affordable housing, civil rights and fair housing, environmental protection and climate change, urban planning, homeowners, renters, and expertise in zoning and the general laws.

Staff for the ZBA would be prohibited from engaging in other permitting, planning, development or real estate functions, and prohibited from engaging in private business in these areas…”

This is stiff medicine. I do not support removing real estate interests from a board that regulates real estate interests. Nor does it make sense for the ZBA to include civil rights and environmental interests. The ZBA is not a Court, and it is not a planning agency. It is tasked with one duty only : enforcing the zoning code and the purposes a variance must adhere to.

That said, it is smart for the seven member ZBA to represent actual neighborhoods. Perhaps ZBA membership might be expanded, so that all the larger neighborhoods of Boston would have at least one member, regardless of whether said member be a real estate person, or an architect, or a planner.

Edwards’s desire to see civil rights advocates, environmental people, fair housing interests, owners and tenants involved in the development process makes more sense when we think about reforming the BPDA. The agency’s public comment hearings and design approval tests were devised to give all of Edwards’s interests a required voice in planning decisions. I support some means by which Edwards’s interests are regulated into the planning process. (I am being general here because this column is already long, and specifics might be the subject of a follow-up column.) One difficulty with BPDA public comment hearings is that, in general, only those opposed to a project show up at hearings. Because that is so, and the City knows that it is so, the BPDA seems to take the position that it is free to represent — and to favor — the proponents of a project, who are certainly there even if they do not attend and speak up at a public comment hearing.

Another difficulty with the BPDA’s public comment hearings is that notice is given only generally to the public, and few voters are aware of where to find these notices. Even when aware, it is hard for someone to find a particular notice. The best locus is on a neighborhood face book page, where activists usually post meeting notices. I think the City owes us at least that much diligence. Perhaps if the City made an extra effort to notify us, it might find a greater number of supporters of a project coming to the comment hearing ?

And proponents are indeed there. Density advocates say that the City’s prosperity requires greater residential density. Business es that depend on there being more customers want developments that will bring in new residents who will then patronize those businesses. Owners of buildings know that if developments are approved, the value of their own property likely goes up.

In any case, greater diversity of opinion at public comment hearings might satisfy Edwards’s desire to see all interests heard and spoken for.

Now to discuss the Michelle Wu proposal:

Wu asks that the BPDA be abolished and that City planning be entrusted to neighborhood-based citizen’s groups. I vigorously oppose such a proposal. It would be the triumph of NIMBY and the end of unified planning that adjusts for traffic, transportation, water and waterfront access. Boston before the BPDA and its predecessor the BRA was a hotch-potch of commercial, residential, and industrial parcels jumbled all together, a public health mess as well as a guarantee that people living in it would leave as soon as they could — as they did. Councillor Wu will have to do better than her blanket abolition of central planning before I’m likely to get aboard.

That said, I recall current Mayor Walsh saying, at candidate forums during his 2013 campaign, that he would abolish the then BRA. Thus Wu’s call isn’t something unheard-of. Walsh’s argument at the time was that the BRA’s planning process was too centralized and so too high-handed. This is the same argument that Wu and her supporters now make.

When Walsh took office, he soon found out that city planning had to have a central point of decision. The City’s neighborhoods are quite different, and they have separate histories, but if planning becomes localized, all kinds of disconnect can ensue. Streets cannot do one thing in neighborhood A and another thing in neighborhood B. The City’s housing policy can’t go in one direction in Neighborhood C and another in neighborhood D. At some point the neighborhoods have to have common practices with respect to public works, zoning codes, school location, and access in and out. Thus the BPDA cannot simply be done away with and planning ceded to un-elected neighborhood activists. All such activists claim to represent “the neighborhood,” but they don’t. They represent one point of view. Others exist, as I have shown. Why should planning for a neighborhood be limited only to its residents ? Neighborhoods contain businesses, and work places, and they attract visitors who spend money there. Don’t these businesses, work places, commuters, and pleasure visitors have a money interest in the neighborhood as well as the residents ? Only a central planning agency can represent these other interests.

Wu knows this very well but for political reasons has chosen to evade the facts. Everybody knows that she is planning a challenge to Mayor Walsh in 2021. That’s fine, that’s her right, but it is not her right to go un-responded to. I can well agree with her that residents of a neighborhood have a proprietary interest in maintaining the character thereof, and I agree that the ZBA must be reformed so that it doesn’t as a matter of course override the law of variances because the Mayor wants 69,000 units of new housing built pronto. But it is NOT BPDA public comment hearings that’s the problem. At those, neighborhood residents have, if anything, overwhelming control of the discussion because supporters of a proposed development barely show up. The problem is the ZBA. In which case Lydia Edwards’s proposals are to the point, and Michelle Wu’s miss the mark.

—- Mike Freedberg / Here and Sphere