February 20, 2002
David Hanifin, Project Manager
Boston Redevelopment Authority
Via e-mail
Re: Liberty Place DPIR comment
To the reviewers:
The Alliance of Boston Neighborhoods is a federation of civic associations across Boston. Our primary concerns involve proper public process in planning and development issues in the city. We comment on this project because the proponent is grossly exceeding the dimensional limits of both the Boston Zoning Code and the governing neighborhood plan (the Chinatown Master Plan).
Per Article 43, Chinatown District Zoning, the project is in two Chinatown Districts:
- Liberty Tree Protected Area: height 65', FAR 6; with Large Project Review, height 80', FAR 7
- Commercial Chinatown Subdistrict: height 80', FAR 6; with Large Project Review, height 100', FAR 7
The project proposed height is over 290', the FAR over 11. The proponent plans to request a variance from the Zoning Board of Appeal. However, a variance must meet legal standards of hardship.
Boston's zoning code supplements the variance provisions of the Enabling Act, principally in Article 7 (Variances). Section 7.3 sets forth the conditions required for a variance.
The Board of Appeal shall grant a variance only if it finds that all of the following conditions are met [emphasis added]:
a) That there are special circumstances or conditions, fully described in the findings, applying to the land or structure for which the variance is sought (such as, but not limited to, the exceptional narrowness, shallowness, or shape of the lot, or exceptional topographical conditions thereof) which circumstances or conditions are peculiar to such land or structure but not the neighborhood, and that said circumstances or conditions are such that the application of the provisions of this code would deprive the appellant of the reasonable use of such land or structure;
b) That, for reasons of practical difficulty and demonstrable and substantial hardship fully described in the findings, the granting of the variance is necessary for the reasonable use of the land or structure and that the variance as granted by the Board is the minimum variance that will accomplish this purpose;
c) That the granting of the variance will be in harmony with the general purpose and intent of this code and will not be injurious to the neighborhood or otherwise detrimental to the public welfare.
The proponent described the hardship to consist of: a change in topographic grade across the site; an irregularly shaped mid-block site; and an abutting garage that "forces" the proponent to build his own garage above grade to the same level and all the residential uses to almost 300' above that.
These claims do not justify a variance by the legal standards:
- The topographic grade does not preclude development, as the site was occupied by the proponent's own buildings until he demolished them a few years ago.
- The irregular mid-block site was obviously going to result from this demolition, and the proponent cannot claim hardship for a condition he created. Court cases have ruled that hardship must originate from circumstances beyond the control of the property owner, and that variances cannot be granted for "self-induced hardships."
- As to the Beach Street garage, the proponent may purchase it to open more design options for the project, or may leave an alley between the garage and the proposed project, in the typical Boston street-and-alley pattern, to allow light and air, and perhaps even leave room for a planted margin.
The proponent's claim of hardship is not substantiated; nor is there evidence that the relief requested -- almost quadrupling the zoned height -- is the minimum that would allow reasonable use of the land, or that the proposed project would be in conformance with the applicable City plan (the Chinatown Master Plan). Finally, public testimony has overwhelmingly judged that the project would be injurious to the neighborhood -- and this neighborhood has ample experience in being injured by development.
Indeed, the proponent has publicly summarized the need for a variance in economic terms. This is the height that yields the desired financial results. But economic considerations are specifically excluded from hardship criteria; obviously, the only purpose for zoning relief is to maximize real estate profits, and all projects would qualify by definition if that were a hardship standard, making the variance process pointless. The proper time to consider economic feasibility is during the planning and zoning process, when all parties have an opportunity to contribute to the consensual formulation of the regulations, not during project review. The citizenry, and other property owners and developers, have the right to assume that certain protections are in place when zoning is codified. Project-by-project relief for non-qualifying reasons constitutes "spot zoning," which is readily subject to legal challenge.
No alternatives that conform to the zoning and the applicable Chinatown Master Plan have been presented for public view, either in the DPIR or in the public meetings. The BRA should require in all scoping documents for projects that do not conform with plans and zoning that alternatives conforming with such plans and regulations be shown.
In the DPIR, the proponent attempts to justify the project's massing by explaining that it will be consistent with other new and planned developments in the area. However, except for the Hayward Parcel, whose zoning is likely to be respected only because of a private BRA agreement with the developers of the new Millennium Place to preserve the views of their expensive condominiums, most of the examples do not conform to zoning regulations. The proposed Kensington Place across the street is attempting to pass as a PDA although it does not qualify by site size, and the Loews Hotel, which did not qualify as a PDA project within the PDA-III Area, used an unjustified BRA land-taking and U-District zoning designation to evade the underlying zoning. These examples do not reinforce public confidence in the City's development oversight process.
The DPIR also attempts to justify the proposed height by citing Boston's shortage of both market and price-controlled housing, and by invoking the principles of "smart growth," which include urban density, especially of housing. These are indeed legitimate issues, and worthy goals for urban planning. But they must be implemented through comprehensive planning in which the public participates and which is achieved by zoning that is transparent, predictable and fair to all developers and community stakeholders, not by individual project proponents who apply them as convenient in maximizing their development profits. If Boston is to meet its housing needs, a much broader planning effort must be undertaken, including distribution of land uses, transit and other infrastructure, and equitable community-based economic development. It is disingenuous and self-serving to claim purely altruistic city-building motivations for what is clearly a maximization of real estate value.
We request that the proponent provide (an) alternative proposal(s) for the site, conforming to the existing plans and zoning derived with, and legitimized by, widespread public participation. Absent such alternatives, the community is left with the poor choices of accepting an unlawful and harmful project or opposing development even where it would welcome an appropriate project. It is the responsibility of the BRA, as our planning agency, to demand that developers provide such alternatives, so that the public has reasonable choices, and so that the private development market is organized and stabilized by the rule of law.
Finally, the proponent appears to assume that commercial public spaces can be grandfathered in; this is not the case. The spaces must be returned to the Freeze Bank and application to the Air Pollution Control Commission (APCC) must be made for them afresh. The project must show that it meets the legal standards for allocation of such spaces. As the existing parking lot was granted its spaces despite the failure to qualify, special care must be taken not to repeat this violation of the State Implementation Plan.
We look forward to seeing one or more alternative proposals that conform to zoning and APCC regulations.
Thank you for considering our comments.
Sincerely,
Daniel Cushing, President
Shirley Kressel, Vice President
Alliance of Boston Neighborhoods
Cc:
Mark Maloney, Director, BRA
Rebecca Barnes, Chief Planner, City of Boston, BRA
City Council
Sherry Hao, Campaign to Protect Chinatown
Lydia Lowe, Chinese Progressive Association
Jeremy Liu, Asian CDC
Bernard Borman, Park Plaza CAC
Jackie McBride, Park Plaza CAC
Steve Bailey, The Boston Globe
Paul Restuccia, The Boston Herald