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
