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

----

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:

Thousands Of Lamborghinis: Notes On The Housing Choice Bill

What’s the status of the Housing Choice Bill?  It’s in limbo, having been passed by both the House (H4887) and the Senate (S2842), and now in conference committee to reconcile their differing versions of the Bill. 

Limbo is an appropriate place for this Bill, a bad idea that refuses to die.  It was put forth in 2016, revised in 2018, and has arisen again in 2020.

 

This Bill proposes to overturn decades of authority and responsibility vested in the governing bodies of local communities, by removing the 2/3 vote requirement to enact zoning bylaws and replacing it with a simple majority vote.  It would open the door to by-right development of multi-unit projects and remove current requirements for public review.  (By-right is defined as "without the need for a special permit, variance, zoning amendment, waiver or other discretionary zoning approval.")  It would also allow projects that formerly required a special permit review to be built by-right if they are within ½ mile of commuter rail lines, and have a meagre 10% of their units designated “affordable”—at 80% of AMI.  This equates to almost $80,000 per year in income per household, far above the annual incomes of most low- and middle-income people.

 

In other words, it gives enormous incentives to developers to build market rate projects, which have been shown to lower prices at the top only, cause a decrease in the number of affordable units, and increase the ratio of market rate to affordable housing.

Representative Denise Provost of Somerville has offered this analysis of some of the flaws in the 2018 version, which remain today:

As far as what we might predict about likely outcomes, Rep. Provost says this:

And as representative Mike Connolly of Cambridge has pointed out: 

§  Affordability requirements are extremely limited

§  Boston is exempt

§  This is one-size fits all legislation

§  Zoning changes are one way—that is, they can be passed by a simple majority but only reversed by a 2/3 super majority.

He notes that House Speaker Robert DeLeo, after meeting with members of the MMA (Massachusetts Municipal Association), NAIOP (Commercial Real Estate Development Association, formerly the National Association for Industrial and Office Parks), builders, and other pro-development interests, said, “I've had some initial meetings with the folks at MMA, NAIOP, and some of the other building contractors, and I can tell you with NAIOP and the MMA in particular, they've made an agreement that the bill that was filed by the Governor is the bill that they are supporting, and that they will not support on either side any idea about any amendments to that legislation, so that really severely limits us in terms of those folks who want to file something further."

Connolly’s reaction?

  

Interestingly, Geoffrey C. Beckwith, MMA Executive Director & CEO, in reference to the 2016 version of this bill, wrote this in his open letter to our state senators on behalf of MMA:

The MMA has since become a supporter of the Bill, even though the problematic issues with it they identified have not been changed. One can only speculate as to why this change of heart.

In summary, the Housing Choice Bill allows top-down ideas about development to be applied to all communities, indiscriminately, making the gross assumption that Arlington is like Braintree is like Revere.

 

The bill is buried in a huge economic bill, the Partnerships for Growth Bill, which contains over 120 sections, and has now had almost 500 amendments appended to it. If the Housing Choice Bill is such a good idea, it deserves to be debated on its own merits. 

 

Further, if it’s such a good idea, perhaps Governor Baker will allow the currently required 2/3 vote to overturn his vetoes to be replaced by a simple majority vote.

 

About as likely as finding a Lamborghini at Camry prices.    

 

  

Tossing out the Rule Book

The New Normal and the Arlington Redevelopment Board:  When Zoning Bylaws become Optional

Market Square Architects Visualization

There was little reason to think that the hearings on the Toraya Block redevelopment would be wrapped up and voted on last week. Only thirty minutes were scheduled on the agenda. Chairman Bunnell, who has become a stickler for enforcing time limits (particularly when applied to the public), had allotted just five minutes to the applicants to present their latest revision. The Planning Director was to be given just three minutes to discuss her department’s review memo on the project, although no memo materialized. Of the public materials and plans that were posted belatedly for residents to review, it was clear that none of the serious zoning violations that had been raised in previous hearings had been addressed. In fact, two of the zoning problems had been made even worse in the revised submission.

What the public did not know of was the extent of the behind the scenes, behind closed doors actions that had preceded the public hearing. None of it made it into the public package of documents that had been released. So when Chairman Bunnell recognized the applicant’s attorney for their "five minute" presentation, it turned into nearly twenty minutes. Half of it was the attorney instructing the Board on a novel interpretation of our Zoning Code: They were not really rules at all, just some guidelines which the Board was free to ignore or modify as it chose.

None of this came as a surprise to some of the Board members, nor the Planning Director. They had been advised well in advance of what was afoot, and some had even consulted the Town Counsel on the legality of this new interpretation of Board authority. No legal opinions were actually issued by Town Counsel. Not even the particulars of these confidential discussions were revealed. We only heard the reassurances of the Chairman and Planning Director that they were content with proceeding along this new path and the rest of us should simply accept this on faith.

One of the Board members who had spoken privately with Town Counsel came away with a different interpretation of the law and the scope of the Board’s authority. A suggestion that this matter of law was important enough to deserve some further study was rejected by the Chairman. He wanted a vote taken immediately on the project. It was then approved by the Board, 4-1.

What are the zoning problems swept away by the Board? Foremost is the zoning requirement that new buildings of four or more stories have a 7.5 foot step back at the fourth floor. This is not some ancient, out of date Bylaw. It was enacted by Town Meeting just four years ago in response to concerns about the proposed Mixed Use Bylaw which would reduce or eliminate the required front line building set backs. As Chairman Bunnell said before the assembled Town Meeting in 2016,

“To alleviate some of your street pressure from these [increased building] heights we're also proposing that any building in excess of three stories in height has a step-back of 7 feet six inches above the third story above all elevations with street frontage. .… What this does is it reduces the massing impact on people utilizing the street, people utilizing the sidewalk it makes buildings feel smaller than they actually are. … it gives the people who live here in town security that what's going to be built isn't going to be some monolithic monstrosity…”

Promise of Upper Story Stepback

When the developers for the Toraya Block made their original proposal in May, they presented a four story building with the upper story stepped back only about three feet, in clear violation of the bylaw. Last week’s revision did not correct this problem. Rather, the architects stated that they were completely eliminating any step backs at all. Their justifications:

• It would cost too much.
  
• They had sufficiently compromised on the original design by moving the front of the building back two whole feet from the sidewalk and adding a bike rack in front.
  
• The Zoning Bylaws are just suggestions, and the Redevelopment Board could ignore any inconvenient requirements.
  

A member of the Board tried to persuade the developer team to eliminate one apartment on the fourth floor, to free up enough area for the required step back. The developer team stood firm; the reduction of a single apartment would sink the entire project and the owner would simply raze the block and leave an empty lot.

Next on the chopping block was Floor Area Ratio. Our Zoning Bylaw says that you can only build so much on a certain size lot. An applicant has to file documentation that shows just what the gross floor area of a building is, and the ratio to lot area. For the Toraya Block, the maximum allowed floor area would be 21,572 sf. The developer team has claimed that their building has only about 18,000 sf. These numbers have been called into question because the developer had forgotten to include the below grade spaces, which add more than 4000 sf to the total, putting it over the limit. The Bylaw is very specific on those special conditions for which the Board can grant some relief to this requirement, but the Toraya project fails to meet these special conditions.

Also swept under the rug were at least four issues with the parking lot that had previously been brought to the Board’s attention. To the great annoyance of some developers, our Zoning Code presumes to specify minimum dimensions for such matters as the size of a parking space, and the aisle between rows. The developer team was very pleased to announce that they had corrected one deficiency, the lack of a required five foot buffer strip between the parking lot and the house next door on Lockeland. What they did not say was that in order to make this change they had robbed Peter to pay Paul. On the other side of the parking lot, adjacent to the apartment building, they had eliminated the five foot wide buffer strip protecting the building. The parking spaces now come right up to the building walls and windows, which is clearly prohibited by the Zoning Bylaw. It simply comes down to the parking area being far too small to accommodate the two rows of parking spaces being planned, short by a good seven feet. One member of the Board dismissed these problems with the reasoning that “Cars aren't that big like the way it used to be, and I think our our zoning is a little antiquated and we haven't had a chance to update that”.

Some residents have the antiquated notion that it is Town Meeting that decides what needs to be updated, through a democratic vote.

Market Square Architects Visualization

Another “antiquated" idea to be axed by the Board is the requirement for open space. It seems that our Bylaws inconveniently require that apartment buildings be more than just a building and a parking lot taking up every square foot of the property. The Bylaw is very specific as to how to calculate the required open space, and the dimensional requirements for this space. It also includes some subjective standards, such as “Shall be so designed as to add to the visual amenities of the vicinity by maximizing its visibility for persons passing the site or overlooking it from nearby properties” and “The location and configuration of usable open space shall be so designed as to encourage social interaction.” The design team again bungled the required area calculations and completely misunderstood what qualified as Usable Open Space. Their proposal falls a couple of thousand square feet short of the requirement.

Several Board members expressed concern about these errors, but felt compelled to find a way around the Bylaw. In a judgement worthy of Solomon, they told the developer to stick a picnic table and grill behind the dumpster and they would sign off on it.

In narrow terms, what happened last week simply means that a grossly oversized apartment building will be built on an undersized lot. It will come at the cost of a B2 zoned Small Neighborhood Business district, the ACMi studio that served the high school, the eviction of several small neighborhood businesses, and the loss of jobs for those that worked in them. But far more alarming are the broader consequences of the precedent that was set last week. Every developer that comes before the Board in the future will demand the same treatment. Every requirement listed in the Zoning Bylaw will be treated as a mere design guideline rather than a rule, to be ignored with the simple claim of profitability. 


Every commercial block in our community is now in jeopardy. Look next on the Hit List for the East Arlington block at Lake and Mass Ave. The same owner, and likely the same plan. 


     

By Don Seltzer