Moving the Finish Line

 

Moving the Finish Line:

Why reaching 10% affordable units through inclusionary zoning won’t work

 

By Aram Hollman

Of Arlington’s approximately 20,000 housing units, roughly 1,100 (5.5%) are affordable, a term with precise legal meaning.  This varies by locality, and sets percentages of Area Media Income as qualifiers for affordable housing eligibility.  As long as less than 10% of Arlington’s housing stock is affordable, developers can build “40B” projects (named after a Massachusetts state law). 40B presumes that a community is engaged in “snob” zoning, is attempting to keep housing prices high, and allows the developer to ignore a great many zoning restrictions.  Once 10% of a town’s units meet the affordable definition, developers cannot do this, and towns can exercise control over what is built.

Arlington’s inclusionary Zoning Bylaw requires that in projects of 6 or more units, at least 15% of the units be affordable.  For 40B projects, developers must make 25% of the units affordable. 

However, not only is our Bylaw failing to work, it cannot work.  The math precludes it. 

Here’s a visual explanation of why this is so:

 

 

For those of you who’d like the figures behind the pictures:

Right now, if 10% of Arlington’s 20,000 units were affordable, that would mean 2,000 affordable units.  We have only 1,100 affordable.  So, we need another 900 affordable units to reach 10%.  But for-profit developers don’t want to build affordable units, and will build only the minimum number required by the bylaw, approximately 1 unit in 6.  (Not only that, but they increase the price of the other 5 of 6 units to meet their profit targets.)

At 15% affordable, building 900 affordable units requires building a total of 6,000 units, of which 900 are affordable and 5,100 are at market rate.  For reference, Arlington is almost fully built out, according to both our Master Plan and the former chair of our Finance Committee, and construction is slow: only between 1,000 and 2,000 total units have been built in the last 20 years.

But, suppose we found the room and built these units?  Would that solve our problem?  No.

In building 6,000 more units, Arlington’s housing stock has now increased from 20,000 units to 26,000.  Yes, we have increased the number of affordable units from 1,100 to 2,000, as we planned.  However, with 26,000 units, we now need to have 2,600 of them be affordable, not 2,000!  We still need another 600 affordable units!

At 15% affordable, to build 600 affordable units requires building another 4,000 units total.  After building these, we now have 30,000 units in town (26,000 plus 4,000), of which 2,600 (the original 1,100, plus 900, plus 600) are affordable.

We have now increased the town’s housing stock by 50%, from 20,000 to 30,000.  But again, with more units, we need more affordable units: 3,000, not the 2,600 we have.

This goes on for several iterations, with the number of additional affordable units required decreasing each time.  By the time we’re done, meaning we have 10% affordable units, we will have built another 18,000 units of housing, almost doubling the town’s total housing stock, in order to build the required 2,700 affordable units.  Now, 3,800 (10%) of Arlington’s 38,000 housing units are affordable.

This is clearly absurd.  Arlington is not going to double its housing stock.  We lack the space for the housing, the space for the additional schools required, and other necessary infrastructure. 

What if we required a higher percentage?  If you do the math with a spreadsheet, here are the results for requiring that 1 in 5 (20%) and higher proportions of what’s built be affordable.  Conveniently ignore the fact that we will not find developers to build under these conditions unless they made the price of housing so high that it would defeat the purpose - affordability.

If we required this many new units to be affordable:	We would have to build a total of this many additional units	Of which this many are affordable	Arlington’s current housing stock of 20,000 would increase to:	Of which 10%, (1,100 plus newly-built affordable units) would total:
15%	18,000	2,700	38,000	3,800
1 unit in 5 (20%)	9,000	1,800	29,000	2,900
1 unit in 4 (25%)  40B minimum	6,000	1,500	26,000	2,600
1 unit in 2 (50%)	2,250	1,125	22,250	2,225
1 unit in 1 (100%)	1,000	1,000	21,000	2,100

Clearly, building more housing which is primarily market rate is not a feasible way to achieve 10% affordability, even if all the projects meet the 40B minimum of 25% affordable units.  Even the 1,000 units that we’d have to build if all units were affordable are about how many units Arlington has built over the last 20 years.  And that still would not be enough.  The inclusionary bylaw applies only to projects of 6 or more units.  Thus, the vast majority of Arlington’s housing structures, of anywhere from 1 to 5 units, would be entirely exempt.  And again, all of this ignores the simple fact that Arlington is already built out.  Unless we are going to build lots of skyscrapers, schools, utilities infrastructure, and wider streets, all of which have their own limits, this won’t happen.

Beyond that, new housing is significantly more expensive to purchase than older housing.  So replacement of existing housing increases housing prices.  The current proposal to eliminate single-family zoning would be a boon to developers: buy a place for $800,000, knock it down and put up a duplex, with each unit going for $800,000 and up.  Revenue for developer: $1.6 million. Profit: substantial. 

Since we cannot build our way into affordability, we need alternatives.  Here are a few to consider:

• Buy and convert existing housing units to affordable units.  If we did this with 1,000 units, Arlington would achieve the 10% affordable goal.  To fund that would require significant additional money.  One possible source would be a transfer tax on housing sales in Arlington, paid by the seller.  At 200 house sales per year, a 1% transfer tax would buy 2 houses per year.  CPA money, an affordable housing trust, and other sources of money could increase that.  By no means a magic bullet, it would be a start. 

• Work with non-profit developers, some of whom already have a track record of creating substantial affordable housing in Arlington.

• Actively seek additional state and federal funds for affordable housing.

• Consider what legislation would be needed to allow Arlington to make a first bid on properties as they come on the market.

• Consider what legislation would be needed to allow Arlington to offer a tax break to property owners who sell their property to Arlington at below fair-market value for conversion into affordable housing.   A rough parallel would be the state tax breaks given to property owners who sign away the development rights to open space parcels.

Arlington is becoming a gated community, where the gate is high housing costs.  There’s no single solution to this affordability problem, but a combination of approaches will get us closer than our current inclusionary zoning pathway.

Hotel Lexington - Learning the Rest of the Story

 

 

The August 17 final hearing for Hotel Lexington was reported on last weekend by YourArlington.  It summarizes the main arguments of the hearing, quoting some of the speakers in detail while mentioning that others “provided detailed objections”.  I can understand why the article did not attempt to state what these detailed objections were, as such a listing would have been longer than the article itself.

For those who are curious and did not attend, here are some of those “detailed objections” and the rest of the story.

A Hotel is Not a Permitted Use in a B2 district
Might as well start off with the Biggie.  This should have been a showstopper on Day 1 last year.  It is crystal clear from the Zoning Bylaw Table of Uses that a Hotel is not allowed in a B2 Small Neighborhood Business district.  One third of the proposed lot is zoned B2.  It is perfectly ok to put the restaurant on that side and the hotel on the other two thirds, but not as implemented in the current plan.

Some Board members have been proceeding under the assumption that Town Counsel Doug Heim has issued a legal opinion on this matter, stating that Mixed Use opens the door to any two uses in a project without regard to what is actually allowed in a zoning district.  

That is not correct: Doug Heim has been asked about his role and has replied that the Board has never requested a legal finding from him and he has never issued one.

The Board's approval of a hotel in a B2 district is a direct repudiation of what two Board members promised at Town Meeting in 2016 when Mixed Use was adopted.  Repeatedly the public was assured that no use that was not already permitted in a district would be allowed under Mixed Use.  The promise was unequivocal and the Chairman pledged that the current and future Boards would honor that pledge.

Building Height
This issue was raised at the very first hearing in July 2019, yet it has remained quietly ignored by the applicant and the Board throughout the hearings.  The two lots are subject to the Reduced Height Buffer Zone restriction because they are adjacent to homes.  For the portion of the building located in the B4 zone the height limits are 50’ and four stories, with which the plans seem to comply.  But for the portion of the building located in the B2 zone, the reduced limits are 40’ and three stories.  The current plans exceed both, to the great detriment to the residential district just behind.  These neighbors bought their homes with the expectation that the zoning bylaw would be enforced to protect them from such oversized structures looming over their backyards.  Instead they will have the equivalent of two Trump border walls stacked on top of each other, towering over their backyards.

Corner Lot Yard Setback
The Board is quite familiar with this provision.  It was only last year that a warrant article was proposed to alter the required setback on a side street.  The Board deliberated this change and rejected it unanimously.  Town Meeting supported this rejection.

A few weeks ago the developer of the Toraya block complained about this zoning bylaw and told the ARB that they have the authority to disregard it. The ARB agreed to waive it for that project.

It comes as no surprise that the attorney for the hotel project seized upon this decision as a precedent and demanded the same treatment.
“If the Board does not do so, the failure to do so will be viewed as arbitrary and capricious”.

The minimum yard setback from Clark St that is required by the zoning bylaw reviewed last year by this same Board is 20 feet.  For this project the Board is instead allowing 1.8 feet. The impact of this waiver is very real for those families who live directly behind the project.  It is even quantifiable; in terms of winter sunlight it knocks off one third of their light for several weeks in mid-winter.

Allowable Floor Area
The numbers provided by the applicant’s lawyer were incorrect and contradicted even the numbers provided by the architects on the drawings.  There were errors of fact, of basic arithmetic, and incorrect interpretation of the zoning bylaw definitions.  Even with all of these inaccuracies, the applicant needed to resort to a highly dubious claim of deeded ‘Public Use Access’ for bonus footage.  No resident of the neighborhood has expressed any desire for this frivolous public performance/art display area tucked away in a corner of the property.

Rear Parking Lot
The rear parking lot is simply a poorly designed disaster.  The applicant has never even submitted a proper rear elevation drawing that shows the garage under the building, possibly because the ceiling height does not meet the usual standards.  Every rear elevation drawing that has been submitted to the Board has included a privacy fence to hide any details.
The width of the lot is woefully short of what is needed for any delivery truck to turn around.  Any truck that makes the mistake of entering front end first will be forced to back out blindly onto Clark St when exiting.  The Board is requiring that all vehicles leaving the lot turn left towards Mass Ave. But this will be impossible for most trucks that back out of the lot.  Their only practical route is through the neighborhood from Clark to Peirce to Forest St.

Clark St Driveway
The latest plans show a six foot high retaining wall, topped with bushes, coming right up to the Clark St sidewalk.  This is a clear violation of both zoning bylaw and common sense.  That sidewalk is used by many pedestrians, particularly children.  As they walk, bike, or skateboard down Clark St they will be completely invisible to any truck or valet driver exiting the lot.  It is a tragedy waiting to happen, and such a wall right up to the sidewalk is explicitly prohibited by our zoning bylaw.

A Board member tried to bring up this safety issue, asking about the sight lines from the driveway.  A member of the developer’s team began talking about the wonderful sights lines along Mass Ave.  Asked again about the Clark St driveway, the expert talked about the excellent sight lines of the road way and that the building did not interfere.  A third attempt to focus on the blocking of visibility of the sidewalk due to the high retaining wall led to more verbiage about the 9% grade of the driveway and how a driver could easily see anything on the sidewalk directly in front of him, even a small cat.  At that point, the Board member, either confused or exasperated, gave up trying to get an answer about that retaining wall.

 

Front Driveway
The semi-circular driveway in front of the hotel is a terrible, terrible design.
It didn’t start out that way, in fact in the original design it wasn’t there at all. Instead there was a shallow curb and sidewalk cutout on Mass Ave to be used as a passenger drop-off area and loading zone.  The Board disapproved of that, and last January the developer presented a new design with a semi-circular driveway.  But inexplicably, the development team had not conducted a basic survey of the site and had failed to notice that the frontage on Mass Ave is not level but sloped, falling off by about four feet from west to east.  The original ‘flat earth’ design was then poorly adapted to the terrain and the now contorted front driveway is impassable for typical passenger sedans as currently dimensioned in the drawings. From these dimensions it can be determined that the steep uphill grade followed by a steep downhill grade will result in many cars bottoming out, causing underbody damage or even stranding the vehicle with a front wheel spinning in the breeze.

 

 

 

 

 
There is also no level ADA compliant passenger loading/drop-off area in front of the hotel entrance as  required by state law.  The attorney for the developer claimed that because it was an all valet facility, no compliance was required.  This is false; state law explicitly states that valet facilities are required to provide an accessible drop off zone.

As the plans stand now, there is no place on the hotel property where a disabled person wishing to stay at the hotel, dine at the restaurant, or attend a performance at the “public access” area can be safely dropped off or picked up near the front door.  The only means of arrival is by foot or wheelchair from the public Mass Ave. sidewalk.

ADA Compliance
The Arlington Disabilities Commission did not become involved earlier in these hearings because only with the release of the latest plans just four days before the hearing did it become apparent how serious the accessible access issues are. This led to the astonishing revelation that the proposed hotel does not even have any accessible rooms, as required by state law.  There is a perverse, symbolic irony in this. The project begins with the demolition of the Disabled American Veterans building. Two of the Commission members spoke of these concerns at the hearing.  They made a perfectly reasonable request to meet with the developer as soon as possible to discuss ADA issues.

Only a single Board member seemed responsive to this modest request, asking,
“I'd like to add a sentence that the owner meet with representatives of the town's disability committee or commission whatsoever it's called to discuss ADA issues.”

The developer and his attorney were adamantly opposed to holding any such meeting until the very end of the process. They dismissed these as minor issues to be worked out after the designs were 90% complete and approved by the building inspector.  Only then were they willing to hear the suggestions of the Disability Commission.

The Board agreed that these were minor issues of interior design and not subject to their consideration, perhaps forgetting all of the attention that they have lavished on past projects to the details of inside bicycle storage rooms, proper access to those rooms by cyclists, and even the type of hanging hooks provided.  

The suggestion of requiring a meeting between the developer and the ADC was withdrawn. 

What happens next?  The official decision was filed with the Town Clerk on August 26, starting a thirty day clock for the developer to close on the two year old Purchase & Sale agreement for the town-owned lot at 1207 Mass Ave.  What is not clear is what path of approval lies ahead for the deeded easement of a “Public Access Area in the front corner of the hotel.  Curiously, this deeded easement is not even mentioned in the decision, yet is critical to satisfying the maximum floor area requirements.  It almost certainly needs to be approved by the Select Board.  It may have to go before Town Meeting.  Even more messy is the waiving of all building permit fees, which for a project of this magnitude could top $100,000.  These fees are set down in our bylaws, enacted by Town Meeting.  Do the Town Manager and Town Counsel have the authority to make such exceptions?

And don’t expect the residents of the neighborhood to sit quietly by.  There are plenty of valid legal reasons to challenge the Board decision and it may end up in Land Court.  

And then there is Arlington’s own Disabilities Commission.  They have a role to play in this little drama.  It is a serious mistake to make them wait until the final act, when the design is complete and Inspectional Services has stamped the permit.  The Redevelopment Board may believe it has the authority to disregard local zoning bylaws, but they cannot overrule State law.

Stay tuned for the rest of the story…

 

By Don Seltzer

Q & A on the Mugar Wetlands / Thorndike Place 40B Project In East Arlington

Thorndike Place (The Mugar '40B' large development near Thorndike Field in East Arlington) will be discussed at the upcoming Zoning Board of Appeals meeting on Tuesday, Aug. 25 at 7:30pm.  You can find the meeting info also on our ARFRR Meetings and Contacts Page or follow the Zoom/phone links below.
Please click the link below to join the webinar:
https://town-arlington-ma-us.zoom.us/j/94599281468

Or iPhone one-tap : 
    US: +13126266799,,94599281468#  or +16468769923,,94599281468# 
Or Telephone:
    Dial(for higher quality, dial a number based on your current location):
        US: +1 312 626 6799  

Rendering of a 100-year flood at the new Vox housing project across Rt. 2 in Cambridge.  By Mike Nakagawa

The Mugar site today

The Mugar site,1951

Q: Why is it that Cambridge is able to build a small satellite city on its side of Rt. 2, but Arlington continues to oppose anything on its side, even though they're part of the same floodplain?

A: Because Cambridge paved over and built on its side long before the Wetlands Protection Act (WPA) was passed in 1972. The WPA prohibits exactly the kind of development you see there now.

 

Q: But much of that is brand new!

A: This land was first developed long before the WPA was passed in 1972. Thus, it can be redeveloped. Many WPA provisions still apply. In contrast, the Mugar site has -never- been developed, so WPA prohibitions against developing there are much more sweeping.

 

Q: But they built a new luxury housing project of 100 to 200 units in the Belmont portion of Alewife, just recently, on land that was never developed. How was that allowed?

A: The area is called the Belmont "Uplands," because that plot of land rises just enough above the floodplain to be exempt from some of the WPA's restrictions. The land was raised by dumping fill from the construction or expansion of Rt. 2 there, again long before the 1972 passage of the WPA, which would have prohibited it. The Town of Belmont opposed the development.

Q: So why is Mugar trying to develop his property if the WPA prohibits that?

A: Much like the Belmont Uplands, Mugar claims that some portions of his site are above a certain elevation, and therefore can be built on. Both Mugar and the Town of Arlington have surveyed the site, mapping its elevations. The two surveys differ on the elevations of certain areas. Not surprisingly, the Mugar survey claims higher elevations for certain areas than does the town survey.

 

Q: Why is it a bad idea to build in a floodplain?

A: When water hits the ground, it will sink in, unless the ground is paved over, built on, or already saturated with water, in which case it spreads out. Floodplains are the lowest points around. Surface water which can't sink in flows there first, then spreads outward from there. Building housing or parking in a floodplain causes the water on one landowner's property to spread out and damage the property of people nearby during heavy rains or spring thaws. The WPA recognizes the value of floodplains in preventing property damage.

Flooding in East Arlington (credit: Save the Mugar Wetlands Website - see link below)

 

Q: What does this mean for Arlington?

A: In 1996, 1998 and 2002, parts of Arlington (and parts of Belmont and Cambridge) near Alewife were badly flooded by 25- and 50-year storms, so-called because storms of their severity were statistically expected to occur only once every 25 or 50 years. Damage included flooding of basements up to several feet, ruining washers, dryers, heating systems, and anything else. The fire department had to wait several days, until the floodwaters subsided, before it could use firetrucks to pump out basements. Homes that were flooded were subject to mold. Residents have pictures of high water marks on the outsides of their houses that are 3 to 4 feet above the ground. 

The degree of damage from these storms would have been less, if less floodplain in Cambridge was developed. Similarly, the degree of damage from future storms (which, due to climate change, are increasing in frequency and severity) will be greater the more floodplain that is developed.

Q: Are there photos and video of what happens in area floods or could happen in the future?

A: Yes, click here to see a collection of photos, many by East Arlington residents, showing various floods:

https://www.dropbox.com/sh/xwvj6hl41jpx90q/AADAlPT-DYRkimSaJpTdZGKka?dl=0

Click here for video footage of the 1996, 1998, 2001, and 2010 floods (4 floods in 15 years, none of them 100-year floods). C2015, Glenn Koenig, Open Eyes Video. 

https://www.dropbox.com/sh/xwvj6hl41jpx90q/AAB-drtPUTWQjWGLfmvKi9FUa/TM2015Presentation%2BVideo?dl=0&preview=Alewife+Floods+TM+5.mov&subfolder_nav_tracking=1

By Aram Hollman

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You can read our earlier post on the Mugar Development on our blog: https://blog-arfrr.blogspot.com/2020/04/mugar-update.html

 
You can also read more about the situation on the Save Mugar Wetlands website: