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…”
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
