January 25, 2002
Heidi Burbidge, Project Manager
Boston Redevelopment Authority
Via e-mail
Re: The Residences at Kensington Place: PNF comment
The Alliance of Boston Neighborhoods, a confederation of neighborhood associations across Boston, submits the following comments on this project. Our concerns are focused on the proponent's strategies to obtain relief from zoning. Specific project impacts recommended for scoping are addressed in our request for an alternative proposal that conforms with legal requirements.
Dimensional Requirements and PDA designation
The proposed project is located in the Park Plaza Urban Renewal Plan Area, in the PDA-IV area of the Midtown Cultural District, and in a Restricted Parking Overlay District.
The as-of-right zoning for this project, with Large Project Review, is 155' height and 10 FAR. The project is proposing a building of 275' height, 13.8 FAR. The project site is within an area that is eligible for a PDA project allowing up to 275' height and 14 FAR. However, any proposed PDA in such a PDA-eligible area must still meet the Boston Zoning Code's PDA requirements of one-acre size. This project, even after it is assembled by BRA land transfers, and proposed purchases and/or BRA takings of private property, does not meet this size threshold. The proponent proposes to "create" a 1-acre site by extending the boundary line of the project around a BRA-owned existing building, the China Trade Center. This strategy for qualifying the site as a one-acre site is not lawful: There would be no legal ownership of the Trade Center by the proponent; the Trade Center would not be part of the project to be constructed; and, most important, the Trade Center is not within the PDA-eligible area. Notwithstanding discussions with the BRA about improvements in the alley called Boylston Square to an "upgraded pedestrian mews" between Boylston and Washington Streets, and proposed glass canopies between the buildings, the China Trade Building does not qualify as part of this project, and the project cannot be a PDA, and therefore, this project must be reviewed under ordinary Large Project Review, and comply with underlying zoning or seek a ZBA variance based on legal standards of hardship. The maximum dimensions allowed by PDA-IV do not apply to this project -- regardless of Public Benefit Criteria. Nor do PDA-IV parking requirements apply, for the same reason.
It should be noted that PDA areas, like other zoning, may allow a maximum height, but this is not a required height. The maximum is expressed as a range in PDA-IV, 155' to 275', and FAR 10-14. Thus, even if this were a legitimate PDA project in this area, it would not be guaranteed a by-right 275'/FAR 14; the proponent is only eligible to apply for review of such height.
The proponent has presented the project at public meetings; however, these regulatory constraints have not been correctly explained to the community. Residents have been left with the mis-understanding, for example, that the site requires 275' height by zoning, and that the China Trade Building is in the PDA-eligible area. Citizens who have heard the public presentations have not been provided with an accurate understanding of the proponent's legal strategy, and have been encouraged by the proponent and the BRA to focus on the impacts of the project as if the proposed size were to be assumed as a given. It is essential that all the legal issues be explained correctly in detail in all future meetings, hearings, and reports. It is our position that the proponent cannot lawfully receive a PDA designation, and must seek zoning relief through the Zoning Board of Appeal, where legal recourse for violation of legal hardship standards is available.
Attempts to create a PDA-sized site by boundary-gerrymandering have previously failed at two projects: the Loews Hotel and Two Financial Center projects, each of which then tried other strategies to avoid the ZBA variance process. Loews received U-District Zoning, and Two Financial received Chapter 121A designation. Neither of these designations was legitimate, either. The Loews' U designation was eventually approved by the BZC but was recognized as an abuse of the U designation and has led the BZC to request a narrowing of the Code language to restrict U-District zoning to its original purposes of promoting affordable housing. The 121A project, challenged by abutters, is still in court.
Eminent Domain Takings
The BRA is offering to execute takings of two parcels per Chapter 79A, under its urban renewal powers, should the proponent have difficulty with the private purchase negotiations. Eminent domain is a power of the government to be exercised only for public purpose. The BRA was given eminent domain taking power to accomplish a particular public purpose -- to facilitate development as a necessary remedy of blight -- not to confiscate private property from one owner to give to another to force a transaction on the buyer's terms (as the BRA has attempted, with a resulting lawsuit, in the Ames Building hotel project).
If the proponent can negotiate a fair-market sale, he is free to do so. Eminent domain was not intended to substitute for a functioning free market in property, nor to establish a governmental agency as a confiscatory agent for the benefit of private developers desiring the property of others.
The Park Plaza Urban Renewal Plan, under which the BRA has eminent domain takings in this area, was written in l971, a very different time in Boston's economic history, compared to today's rising property values and robust private development environment. The proponent justifies the proposed size by stating that past planning "recognized the need for large-scale development on the Hinge Block to provide the critical mass necessary to attract private investment and stimulate the revitalization of surrounding properties." However, the area has experienced a real estate boom, with $7 million Ritz condominiums recently built near-by. Clearly, Boston is not suffering from under-stimulation of the real estate market; on the contrary, it is more likely that the BRA's dubious regulatory practices have encouraged over-speculation and inflated the investment bubble to unsustainable levels.
It should not go unmentioned that the BRA destroyed the area's property values, investment potential, and quality of life for the district and nearby neighborhoods by its own l974 zoning of the area as the city's Adult Entertainment District. If we want to stimulate private investment here, the rational answer is to un-zone it as a sex-business center, rather than to circumvent the laws to lure investors with approvals for over-sized buildings. More development, of reasonable size, would likely be initiated, and the neighborhoods would be protected from both degradation and gentrification. The current strategy is costly and impermanent: an Adult Entertainment Zone that meets the letter of the constitutional law, but one where adult businesses (and low-income residents) are priced out by huge towers. This solution may suit the City administration and the private developers, but has serious impacts on the community fabric.
Park Plaza Urban Renewal Plan
As Boston has no planning agency independent of the redevelopment authority, projects in Boston are generally made to conform to the BRA's plans by changing the plans rather than the projects. The Kensington PNF, true to pattern, states: "To be in conformity with the Park Plaza Plan, a modification must be made to the Park Plaza Plan's description of properties to be taken and the vehicular access provisions regarding the project site..." However, any proposed modification to the Urban Renewal Plan must, by law, be submitted to the Department of Housing and Community Development for review and approval. To date, the BRA has submitted for review only 4 of over 280 Urban Renewal Plan modifications. DHCD has advised ABN that changes made without DHCD review are not effective; therefore, any development action undertaken on the basis of unapproved Plan modifications is unlawful, and subject to lawsuit. The DHCD is not listed in the PNF as one of the State agencies from which action will be sought by the proponent. The BRA must submit the proposed modification, and comply with all related DHCD requirements. If the DHCD review determines that the modifications proposed are "major," the Boston City Council must also review and approve them.
Midtown Cultural District Plan
Although the MCDP does, laudably, call for more downtown housing ("one-quarter of them affordable" and "75% ... set aside for Chinatown residents"), the primary focus of the Plan is to "create a new center of culture ... " and to "protect the area's more than 150 historic buildings by ... limiting new development in areas with large concentrations of historic buildings." The construction of housing by tearing down historic theaters in the heart of the District goes directly against the central purpose of the Cultural District Plan. Further, the size of the proposed project violates the Plan's directive to "protect the district's historic scale and character through land use and urban design guidelines that ensure that new development is in character with the district." Once these historic theaters are gone, our irreplaceable cultural and architectural legacy, which inspired the enormous effort to produce this Plan, will be preserved only in photographs. And, like suburban subdivisions appealingly named to evoke the natural landscapes they destroyed, the new residential district will be named for the historic fabric it replaced. Development of urban housing is a worthy goal; but it can and should be achieved without destruction of our unique and rapidly vanishing historic resources.
Restricted Parking Overlay District / Air Pollution Control Commission
The project proposes 327 spaces for 300 units. Article 38 of the Zoning Code does not require a minimum parking ratio. The project is in a Restricted Parking Overlay District per Sec 3-1A.c of Code; therefore, all parking spaces are conditional, and must meet the standards for parking set in the Zoning code. The proponent should state these standards in the DPIR, and state how the proposed project meets the standards. In addition, the DPIR should state the most recent Boston Transportation Department Transit-Oriented-Development recommendations for parking in the downtown near transit stations, and explain any proposed variation.
It should be noted that the garage has been deliberately located above grade to, as the proponent has publicly explained, "raise the housing units to the suitable exposure." This implies that a four-story garage (which reverses the current street-use pattern and turns LaGrange Street into a service alley while turning the narrow Boylston Square alley into a "mews") is being designed as a bolster simply to raise the height, and therefore the price, of the housing units.
Proposed project parking that is subject to APCC permitting criteria should be specified in the DPIR, and the project's compliance with those criteria should be demonstrated.
Affordable housing
Per the Mayor's Executive Order, 10% of the housing units in this project would be affordable -- to moderate and middle income households. According to the proponent at a recent public meeting, these would be rentals in the $1,200 to $1,800 price range, affordable to people with salaries up to $70,000. The proponent should describe in the DPIR the incomes for which any "affordable" units would be affordable, and how this income range compares with that of the nearby Chinatown community, whose land and housing costs would be most affected.
The DPIR should also analyze more broadly the impact of the project on the city's housing situation:
- to what percent of the city's population would the project units be affordable;
- how this building would, by its impacts on land and housing prices, affect the future cost of housing in the city.
The BRA should add this housing-related scoping item to all project review, so the public can judge, as it now does with traffic, how the proposed project fits into the larger context.
Alternative analysis:
The proponent should be required to present in the DPIR an alternative project design that
- conforms with the underlying applicable zoning;
- furthers the historic and cultural goals of the Midtown Cultural District Plan
- provides the minimum number of parking spaces per City policy, located so as to least disrupt the streetscape around the project;
- addresses the City's expressed policy of providing housing that will be financially accessible to the Boston community at current income ranges.
Thank you for considering our comments.
Daniel Cushing, President
Shirley Kressel, Vice President
Alliance of Boston Neighborhoods
Cc:
Mark Maloney, Director, BRA
Rebecca Barnes, Chief Planner for the City of Boston, BRA
Richard Shaklik, Deputy Director of Zoning, BRA
Boston Zoning Commission c/o Jeffrey Hampton, BRA
Sheila Dillon, Department of Neighborhood Development
Ellen Lipsey, Boston Landmarks Commission
Joan Goody, Chair, and David Carlson, BRA staff, Boston
Civic Design Commission
Albert Rex, Boston Preservation Alliance
Sherry Hao, Campaign to Protect Chinatown
Lydia Lowe, Chinese Progressive Association
Alexander Whiteside, Senior Attorney, and Carol Wolfe,
Urban Renewal Program Coordinator, DHCD
Steve Bailey, The Boston Globe
Paul Restuccia, The Boston Herald
James Stergios, The Pioneer Institute