40B: A Primer

 

On Thursday, December 16, the Arlington Redevelopment Board discussed the draft Arlington Housing Plan, a required update to our Housing Production Plan of 2016.  At the end of the evening they requested a “refined” draft from Barrett Planning Group, the consultant, which they expect to discuss at their January 24 meeting.  The draft leans heavily on 40B projects as a means to increase our supply of affordable housing, despite the fact that after over 50 years of 40B legislation, Massachusetts remains one of the least affordable housing markets in the country. 

The 40B statute, aka the Comprehensive Permit Law, was enacted in 1969 by the state of Massachusetts in the hope of increasing the supply of affordable housing.  In communities with little affordable housing—less than 10% of year-round housing or 1.5% of land area—it allows developers to bypass local zoning and environmental bylaws if 20-25% of a project’s units are designated as “affordable.”  That is usually defined as affordable for those making up to 80% Area Median Income (AMI).

40B was originally well intentioned, and was successful when used by churches and charities to provide housing for those with extremely low incomes.  In the late 1980s, the development industry lobbied to convince the Law's regulating agency, Department of Housing and Community Development, to allow 40B to also provide for ownership units.  This was accomplished without any formal Legislation, or debate, or recorded votes.  Even more concerning was the impact on the numbers of affordable rental units, which experienced a steady decline.  40B has been allowed to become a construction juggernaut masquerading as an “affordable” housing program. 
 
The Law requires 40B developers to return profits above the 20% allowed to the community for its own affordable housing programs.  But the Office of the Inspector General has produced reports describing lack of enforcement of this part of the Law, as well as detailing means by which developers extract profits beyond those allowed.  Audits showed that as much as $110 million of excess profits has never been returned.  Most municipalities lack the means to audit and enforce return of these profits, and Arlington is no exception.  Former State Inspector General Gregory Sullivan revealed that the developer for the Minuteman Village 40B project on Brattle Street has not paid to Arlington $500,000 of excess profits as required by law, well over a decade since it was completed.  Sullivan discusses other instances of 40B fraud in this article. 

Minuteman Village

40B PROS

• One of every four units in 40B projects must be “affordable” for moderate income residents (approximately $100,000 annual income for a family of 4).  
• The pros are terrific for developers.  40B developers reap handsome profits, and so do their consultants, lawyers, architects, planners, complicit “non-profits,” and the politicians whom they support.   

40B CONS

• 40B does nothing to provide housing for those of very low income, or those in danger of homelessness. 
• 40B allows builders to ignore zoning laws and demolish existing homes, businesses, and historic buildings.
• 40B builders can violate environmental safeguards.
• They can increase teardowns, with the accompanying release of embodied energy and other negative environmental consequences.
• They can build on existing open space needed for hazard mitigation and for recreation.
• Their increased density puts pressure on parks, playgrounds, and infrastructure. 
• It leads to increased residential taxes and overrides of tens of millions of dollars, causing displacement of existing residents who cannot keep up with these increases.
• The statute does not require perpetuity deed restrictions, resulting in affordability expiration and demand for more 40Bs.
• If unlimited 40B projects are allowed here, Arlington will become even more dense, congested, traffic-plagued, and urbanized.  New elementary schools, each costing between $50-$100 million, will have to be built.  (For every 10 households, there are approximately 3 Arlington public school students. So 80 new households would likely result in 24 new students, enough to fill one classroom. The 2015 McKibbon forecast, upon which we base our enrollment planning, does not account for a large growth in population.  The Census Bureau reports that our population has grown to 46,308.  The McKibbon study predicted that we would not reach that level until the 2030’s.)
• 40B ignores and distracts from the major advantages of the ideal Section 8 housing voucher affordability program, administered by the Arlington Housing Authority, with tremendous benefits for those of very low income.
• The success of AHA and Housing Corporation of Arlington in acquiring existing scattered-site properties and apartment buildings for renovation and use as affordable units would be threatened by competition from 40B developers.

The draft Arlington Housing Plan recommends increasing the residential density of Arlington, relying on an embrace of 40B housing to do so.  This, even though corruption endemic in the Massachusetts 40B industry is a leading cause of Massachusetts’s abysmal ranking in affordability, and its increasing numbers of homeless residents. 

 
Fortunately, the draft Plan also acknowledges that if we have reached 1.5% land area affordability we do not need a Housing Plan.  And with the approval of the Mirak and Mugar 40B projects, Arlington is now very close to the 1.5% land area requirement, giving it statutory safe harbor status from future 40B projects.

The Town’s Department of Planning and Community Development must now quickly work to certify the 1.5% General Land Area, as recommended in our Master Plan implementation goals.   The Select Board should require that the recommendation for more Arlington 40B projects be removed from the draft Arlington Housing Plan.

 

The New Housing Production Plan: Treat ... or Trick?

 

As required by MA state law, our Housing Plan Implementation Committee (HPIC) is in the process of updating our 2016 Housing Production Plan, and has hired two consultants, Barrett Planning Group and Horsley Witten Group, for this work.  However, despite frequent references to community outreach, the draft Plan has not been made available to the public, so that feedback from residents has been completely avoided.  Even Committee members had barely enough time to read this Plan – sent out only one day prior to the September 2, 2021 presentation by Barrett Planning Group at the HPIC’s regularly scheduled meeting.

 

See the Draft Plan here

The draft Plan contains many errors, and omits what should be a significant part of all planning, which is any suggestions for addressing the grave climate crisis facing us, and the loss of our tree canopy and creation of heat islands due to the clear cutting of lots that accompanies residential construction.  But the major flaw in the report is that it scarcely addresses affordability issues and completely avoids the needs of very low-income residents most in danger of homelessness, and the role of Arlington Housing Authority in combatting these problems.

 

 

Partial List Of Errors and Omissions In The Draft Plan

Under the heading of KEY FINDINGS

⧫  p. 2-3, third bullet point  

The statement that the “overall picture of Arlington is that of White, middle- and upper-income homeowners” belies the fact that Arlington, although gradually falling victim to gentrification under current leadership, is still predominantly middle class.  Also, as some of Barrett Planning Group consultants’ own economic data demonstrates, the chief obstacle to diversity in Arlington (economic and racial) is the cost of housing that is being constructed or rebuilt after teardown.  Arlington’s median household income is $108K per year.  The duplex homes being built to replace single-family teardowns sell for over $950K, and new single family homes near $1.5M.  These prices require households to make at least $200K per year.  Those residences will not increase diversity—either racial or socio-economic.  Arlington’s leadership has opposed efforts to decrease these teardowns and preserve affordability and diversity.

 

⧫  p. 2-3, fourth bullet point  

This statement is completely wrong.  There is no evidence for the existence of historically discriminatory policies of the past in Arlington’s government. 

 

⧫  p. 2-10, fig. 2.4.1  

This slide tries to show the degree of racial diversity in different neighborhoods.  Barrett Planning Group claims that several large tracts are 100% white.  It shows a large segment of precinct 10 as having zero minorities, whereas it is actually 15% minority.  The draft Plan also claims that a large land area around the Stratton School is 100% white, despite the fact that Stratton School has a 38% minority student enrollment.  This information is not accurate and must be corrected in accordance with the 2020 census.

Under the heading of MIXED USE

⧫  p. 2-21 

The Housing Plan should elaborate on the failed implementation of Mixed Use in Arlington, due largely to incomplete safeguards in the bylaw as designed by Department of Planning and Community Development (DPCD) and promoted by them and the Arlington Redevelopment Board (ARB).  The faulty bylaw has resulted in apartment buildings masquerading as mixed-use buildings, which allows developers to drastically reduce open space.   The Plan should suggest improvements in this failed Mixed Use Bylaw instead of ignoring its failings.  There is usually only a token business use in some tiny area of the new mixed-use buildings.  Existing cherished businesses serving our residents are being destroyed to create these false “mixed-use” buildings.  They are not mixed-use: See 483 Summer Street, where the ‘business” is an office for the owner—nothing to contribute to the hyped “vibrancy” of mixed-use for the streetscape.  They do not allow for sufficient open space for trees and plantings that make authentic apartment residences attractive and provide environmental and climate-control benefits and at least some play space for children. Developers can game the Inclusionary Zoning Bylaw in various ways so that very few “mixed use” apartments will be affordable.  Residential multi-unit developers can build 4- or 5-unit buildings to bypass the bylaw requiring the provision of affordable units if six units are being constructed.   The ARB has allowed a permit for a forbidden use in a “mixed use” building, and has awarded permits for some of these “mixed use” buildings resulting in much developer speculation; in holes in the ground (see 1500 Massachusetts Avenue where a handsome house formerly stood); in allowed violations of the zoning bylaw (see, for example, illegal permitting of open space/internal area and floor/area ratio violations granted by the ARB in the case of the former Toraya restaurant block, at 882-892 Massachusetts Avenue opposite the high school, for a hopelessly cramped “mixed-use” apartment building).  This is not what was promised when DPCD persuaded Town Meeting to approve their “mixed-use” bylaw.  It needs to be corrected.  The Housing Plan should spell out a remedy.

 

Under the heading of DEMOLITIONS & REPLACEMENT HOMES 

⧫  p. 2-27  

Town Meeting established the Residential Study Group (RSG) to investigate the teardown/mansionization problem.  RSG studied this along with DPCD.  Before the study was completed DPCD wrote its own flawed report (“Report on Demolition and Replacement Homes, 2019”).  During the same period the RSG attempted for many reasons to have a role in the Accessory Dwelling Unit (ADU) warrant article being planned by DPCD.  The RSG was immediately disbanded.  They were never allowed to meet again to complete the investigation authorized by Town Meeting and produce their own report. 

 

Under the heading of HOUSING SALE PRICES

⧫  p. 2-29

The draft Plan states the obvious: “There are remarkably few opportunities for young wage earners to choose Arlington or anywhere nearby.”  It further points out that the same is true for communities comparable to Arlington.  It fails, however, to point out that Arlington’s comparable neighboring towns all have significantly lower residential density.

Under the Heading of HOUSING AFFORDABILITY

⧫  p. 2-31 

This section correctly observes that affordable “units that have offered a pathway to owning a home in the past have been a key target of demolition/rebuild projects in Arlington’s older neighborhoods.”  However, there is no mention of the fact that RSG (see above) was authorized by Town Meeting to investigate this problem but was ghosted before it could complete its study.

 

Under the heading of POTENTIAL BARRIERS TO AFFORDABLE HOUSING DEVELOPMENT 

⧫  p. 2-37

This heading is extremely misleading.   The barriers discussed pertain to barriers for very dense and very expensive residential construction favored by DPCD.  They have little or nothing to do with affordability.  For example, there is no interest in the provision of affordable housing by purchase and renovation of existing residences, which has been a wonderful approach for affordability.

 

The Plan should include a statement that DPCD and leadership of the Town opposed initiatives to increase affordable housing at the 2021Annual Town Meeting.  This included insistence that Arlington would have no requirement for affordability of ADUs (except for non-profits).  The DPCD/ARB never even offered any amendments or substitute motions for promising citizen warrant articles to render them suitable for their approval and recommendation for a positive vote at ATM.  The interest of Arlington’s leadership in housing affordability is apparently zero except insofar as it can enrich 40B developers. 

 

Under the heading of OPEN SPACE

Arlington has very limited Open Space about which residents are very concerned.  The final sentence of this section should be changed to:

“It is recommended that no designated open space, and conservation lands, will be made available for housing development.”

Under the heading of CHAPTER 40B SUBSDIZED HOUSING INVENTORY 

This is a remarkably obfuscatory section of the draft Plan.  Suffice to say that the section chooses to ignore the fact that Arlington is very close to the statutory “safe harbor” requirement of 1.5% land area devoted to affordable units, and instead expounds at length upon the alternative safe harbor yardstick of 10% of total housing units required to be affordable.  The latter yardstick is essentially unattainable for communities as land-poor as Arlington and would necessitate Arlington being on an everlasting construction treadmill gobbling up parks and open space.  Depending on whether Arlington were to use 40B construction or construction of apartments observing our Inclusionary Zoning bylaw, the additional 859 affordable units required to meet the 10% affordability yardstick would require Arlington to build between 5,000 and 15,000 additional units as is explained in this October 2020 blog post.  It is inappropriate for the consultants to suggest that we should do so.  It would overwhelm schools, and create an intolerable traffic situation.  Instead, the consultants should present a blueprint for finalizing our attainment of the 1.5% land area statutory requirement by such methods as redefining the cemetery districts as non-residential, and purchase and renovation of existing residences for use as affordable units, which has been successful in the past for both Arlington Housing Authority and Housing Corporation of Arlington.

Under the heading of REGULATORY CONSTRAINTS

The second paragraph misleadingly states that in 2021 the Town successfully adopted an ADU policy in the bylaw… “so long as the ADU or primary residence is occupied by the property owner or a family member of the property owner” (family member undefined).  This is not true if the owner or owner-developer, after initial ownership, then sells the property—there is no requirement that the new owner or family member resides there. It can simply be an investment property and could exacerbate teardowns.  There are almost no safeguards for the community in the ADU bylaw as promoted by DPCD, and now that it has been approved by the Attorney General it will be the most lenient ADU bylaw in Massachusetts.  The specter of short term rentals is not adequately dealt with.  The draft Housing Plan should be providing improved ADU concepts instead of endorsing flawed legislation.

 

In the third paragraph the draft Plan states that focus groups “suggested that local zoning does not allow for enough diversity of housing types.”  Who were these focus groups?  How were they chosen?  This information has not been made public.  It is not wise to ignore the opposite conclusion of the Master Plan approved by Town Meeting—after the documented input of hundreds of residents. The Master Plan emphasized the outstanding nature of the diversity of housing in Arlington, which is much superior to that of other local towns.  It also said that the housing that Arlington needs is affordable housing and senior housing, both of which are given short shrift in the draft Plan.

 

⧫  p. 2-44 

The final paragraph is an unsubstantiated statement for which there is no evidence: “regulatory barriers like those documented in Arlington … act as an impediment to creating affordable and equitable housing opportunities.”  What regulatory barriers?  Where is the evidence for this statement?  Arlington’s leadership opposed every attempt at Town Meeting in 2021 to create affordable units.  They are the major impediment – not imaginary “regulatory barriers.”

“The legacy of Arlington’s past exclusionary practices is embedded in the town’s urban form and in laws that remain on the books.”  What laws are the authors talking about?  There is no substantiation for this statement.  

“Addressing that legacy will require ongoing community conversation  and openness to disagreement, and reforming laws on the basis of inclusion.”  Actually, housing policy and affordable housing policy and related conversations require honesty, not distortions to increase profits for developers.  Arlington’s zoning bylaw was reformed years ago to include an exemplary Inclusionary Zoning Bylaw.  Recent attempts to expand the affordability provisions of that bylaw were opposed by DPCD and town leadership.  The Housing Plan should present a pathway for improved leadership in housing and affordable housing policy.

 

One of the ongoing allegations of DPCD relative to the false narrative of racism in Arlington’s housing history is their repeated accusations of redlining.  This is simply wrong and the draft Plan should make that clear.  The following communication from a precinct 10 constituent should bring accuracy to redlining history:

If these and other mistakes in the draft Housing Plan are corrected we can have a good Arlington Housing Plan.

⧫⧫⧫

Building for Whom?

Major changes to Arlington’s zoning are being proposed as our 2016 Housing Production Plan is updated, and in the recently released Fair Housing Action Plan, prepared for us by the Metropolitan Area Planning Council.  These changes are being framed as pathways to increase our supply of affordable housing and redress historically exclusionary zoning.  The latest proposal gaining traction is to allow multi-family units in all districts, including those currently zoned for single families.

However, the idea that multifamily housing drives affordability, and therefore greater inclusivity, is just mistaken.  All you have to do is look at the duplexes built in town, on the sites of former single-family houses, to see that more housing does not equal cheaper housing.  What it does do is maximize the developer's profit for a particular parcel.  Instead of fixing up and selling one house for $1 million, the developer demolishes the single family, builds two units, and sells each for $1 million.  In just one example, the Webcowet neighborhood has seen seven single-family homes, which listed for $700-$800K, demolished, with all trees lost.  They were replaced with luxury duplex townhouses that are now selling for well over $1 million each.

Many people have the mistaken idea that the housing market works like a commodity market, where pure supply and demand economics drive prices.  Housing prices are in part driven by overall supply and demand, but they have a lot more to do with location, perceived desirability, nearby amenities, and other factors.  Why else would real estate ads tout “desirable Dallin neighborhood” or “steps from Capitol Square?”  What people fail to consider is that we live in a regional housing market.  Supply and demand influencing housing prices is not limited to just one town.  Real estate economists will tell you the regional housing market for the Boston area is very large, extending to New Hampshire, Framingham, and Quincy. 

 

Adding housing has not lowered prices in nearby communities, such as Cambridge, where the construction of large condo buildings and widespread gentrification have driven people out of neighborhoods that were deemed undesirable not so many years ago.  Million-dollar condos in Somerville would have been unthinkable fifteen or twenty years ago, but now Somerville is trendy and increasingly unaffordable, despite all the new condo construction and the conversion of industrial sites to housing.  With tech jobs increasing in Cambridge and the Seaport district, neighborhoods near the Red Line with amenities for young populations have been in tremendous demand and prices have soared.

 

To create affordable housing, we have to build affordable housing.  Otherwise, we will simply add primarily market-rate housing and continue to look like we currently look, with little increase in affordability or diversity. 

 

There is a growing consensus among housing researchers that adding housing does not create affordability except under very specific circumstances, which do not exist in Arlington and are not created by any of the proposals we’ve seen thus far.  

 

We need better plans, not the same old plans.  

Town Meeting Members' Guide to the Zoning Articles - 2021

Arlington Residents For Responsible Redevelopment, a grassroots group of neighbors, first created our Zoning Resource and Comment Guide for 2019 Town Meeting, when the Town proposed sweeping density Articles.  Our goal, then as now, is to provide Town Meeting Members and all Arlington residents with information on the substantive issues that will be discussed during Town Meeting, as well as our comments.  We hope the information below is useful to you.  

For a condensed guide, see our Open Letter on the 2021 Zoning Articles, which we sent in April to Town Meeting Members.

Please let us know your thoughts on it at: askarfrr@outlook.com

OVERVIEW:

Town Meeting begins April 26, 2021, in virtual-only session.  The public may attend.  Click here to watch live: https://acmi.tv/2021-annual-town-meeting

Town Meeting receives proposed Articles inserted either by a resident with 10 supporting resident signatures, or by Town officials or boards.  Each Article is reviewed by the Town Board relevant to the scope of language.  All proposed zoning changes are subject to approval by the Arlington Redevelopment Board (ARB) following a public hearing on each zoning article.  If the Board votes in favor, it develops a recommended vote to Town Meeting, which constitutes the main motion on the article.  A Town Meeting Member acting on behalf of the proponent, another interested party, or TMMs themselves may move an Amendment (change) to the recommended vote of the ARB, or they may move to replace it in its entirety with a Substitute Motion.  If the Board disapproves of the article, it votes “No Action” as its recommended vote for Town Meeting, which essentially removes the Article from likely passage by Town Meeting without much, if any, debate.  In that case, the proponent or other interested party may make a Substitute Motion, in order for Town Meeting to be able to have a zoning change to debate and vote on.  The deadline for Substitute Motions video presentations this year was April 19.  Substitute Motions may be presented no later than 48 hours before an Article is discussed. 

Where to find Zoning Articles:
Zoning Articles are listed by number, in the full TM warrant: 
https://www.arlingtonma.gov/home/showpublisheddocument?id=54842 

and online version of the warrant (with proponent materials):

https://www.arlingtonma.gov/town-governance/town-meeting/2021-town-meeting-warrant

and in detail in the ARB Report to Town Meeting:
https://www.arlingtonma.gov/home/showpublisheddocument?id=55790

We have selected some of the more consequential zoning Articles, and present them along with background and recommended vote.  This Guide covers the following Zoning Bylaw Articles, and 2 Town Bylaw Articles (see below):

ARTICLE 21  RESERVE AFFORDABLE HOUSING FOR PEOPLE EARNING AT OR UNDER 60% AMI (newly added to our review)

ARTICLE 25  REAL ESTATE TRANSFER (newly added to our review)

ARTICLE 35  ZONING BYLAW AMENDMENT/INDUSTRIAL USES

ARTICLE 39 ZONING BYLAW AMENDMENT/CLARIFICATION OF DEFINITION OF MIXED USE

ARTICLE 40  ZONING BYLAW AMENDMENT/CONVERSION OF COMMERCIAL TO RESIDENTIAL

ARTICLE 41  ZONING BYLAW AMENDMENT/DEFINITION OF FOUNDATION

ARTICLE 43 ZONING BYLAW/ADOPTION OF ACCESSORY DWELLING UNITS

ARTICLE 46  ZONING BYLAW/TEARDOWN MORATORIUM

ARTICLE 48  ZONING BYLAW AMENDMENT/ADA/MAAB STANDARDS IN ADMINISTRATION AND ENFORCEMENT

ARTICLE 49  ZONING BYLAW AMENDMENT/SIDEYARD SKY EXPOSURE PLANES

___________________________________________________________________________________

ARTICLE 21 

VOTE/RESERVE AFFORDABLE HOUSING FOR PEOPLE EARNING AT OR UNDER 60% AMI 

To see if the Town will vote a warrant seeking to earmark a majority percentage of municipal funds allocated for affordable housing for those households/individuals making at or under 60% AMI; or take any action related thereto.

(Inserted by J. Sanbonmatsu, L. Kiesel, and ten registered voters)

RECOMMENDED VOTE: 
Please vote to SUPPORT Judith Garber's substitute motion, which would earmark a majority percentage of the affordable housing funds available in the Affordable Housing Trust for those in lower or moderate income categories.  The Town’s current AMI requirement is set at “up to” 100%, which is $83,300 for a single-person household, and $119,000 for a 4-person household.  60% of Area Median Income is $50,000 for a single-person household, up to $71,400 for a 4-person household.

View the text of the Substitute Motion 

__________________________________________________________________________ 

ARTICLE 25 

HOME RULE LEGISLATION/REAL ESTATE TRANSFER

To see if the Town will vote to authorize and request the Select Board to file Home Rule Legislation or other Special Legislation which would permit the Town to impose a real estate transfer fee or tax for the purposes of acquiring, creating, preserving, rehabilitating, restoring and supporting affordable housing in the Town; said fee or tax to be levied on the buyer, seller, or both on the purchase price of qualifying real estate, the proceeds of which are to be deposited in an Arlington Affordable Housing Trust Fund established pursuant to Section 55C of Chapter 44 of the General Laws; to set forth the rate, the qualifications for applicable transfers, and exemptions of and to such a tax or fee; and to authorize the procedures and requirements necessary for the collection of such fee; or take any action related thereto.
(Inserted by the Select Board at the request of the Housing Plan Implementation Committee)

RECOMMENDED VOTE: 
Please vote to SUPPORT the Select Board’s recommended vote in support of Article 25, 
which would establish a transfer fee to fund the creation, preservation, and restoration of affordable housing.  The details are to be determined, but the overall impact will be to provide a funding source for affordable housing.

View the Ben Bradlow video presentation to be shown at Town Meeting

Gordon Jamieson Amendment Materials:

View the text of the Amendment

___________________________________________________________________________

ARTICLE 35  
ZONING BYLAW AMENDMENT/INDUSTRIAL USES

To see if the Town will vote to amend the Zoning Bylaw to update and modernize the Industrial  Zoning Districts by amending SECTION 2 DEFINITIONS to define new uses; SECTION 5  DISTRICT REGULATIONS to clarify the applicability of the upper story building step back, to  redefine the Industrial Zoning District, to clarify amenity requirements in the Table of Maximum  Height and Floor Area Ratio and to add development standards, to include new uses and amend  existing uses in the Table of Uses,  and to provide additional standards for uses; and SECTION 6 SITE DEVELOPMENT STANDARDS to adjust the parking requirement for light manufacturing, to include standards for the Industrial Zoning Districts, to include standards for the Industrial Zoning Districts;  and to adjust the bicycle parking standards for light manufacturing and office, medical or clinic uses; or take any action related thereto.
(Inserted at the request of the Redevelopment Board)

RECOMMENDED VOTE: 
Please vote to REJECT the ARB’s recommended vote on Article 35, which allows residential uses in Industrial Zones, and vote NO on the Pete Gast Amendment. Please vote to SUPPORT Kristin Anderson’s Amendment that removes residential uses from the original Article. The ARB’s  Industrial Zoning Article offers no support for businesses, and will accelerate the erosion of these districts by allowing  residential use.  This curtails any hope of adding jobs here in town.  Please consider speaking up on the importance of this issue so that other TMMs understand it.

Kristin Anderson Amendment Materials:

View the text of the Amendment

Pete Gast Amendment Materials:

View the text of the Amendment

View resident Don Seltzer's Video video presentation to be shown at Town Meeting

View resident Aram Hollman's video comments on the Article here

BACKGROUND:

The "new uses" include residential mixed-use in the industrial districts, sneaked into the final version of the Economic Analysis of Industrial Zoning Districts.  Nothing else in the Article is of much importance.  It is all about aspirational hopes and what, short of design standards, we should have if suddenly we were flooded with proposals to build all sorts of growth-industry office buildings on the Mirak tract and Gold’s Gym site.  Only the introduction of residential development matters.

___________________________________________________________________________________

ARTICLE 39 

ZONING BYLAW AMENDMENT/CLARIFICATION OF DEFINITION OF MIXED USE 
To see if the Town will vote to amend the definition of Mixed Use in the Zoning Bylaw to clarify that as enacted by Town Meeting, land uses individually prohibited in any particular zoning district are also prohibited as part of Mixed Use developments in the same zoning district; or take any action related thereto.
(Inserted at the request of Christopher Loreti and 10 registered voters) 

RECOMMENDED VOTE:  

Please vote to SUPPORT Jon Gersh’s Substitute Motion that will return the definition of “mixed use” to the way the 2016 Annual Town Meeting voted for it, so that only the land uses individually allowed in a particular district are the ones that can be permitted in a mixed-use in that district.  In passing Article 31 of the Consent Agenda, Town Meeting agreed to an administrative correction to the Zoning Bylaw clarifying that when land uses are not allowed by right or special permit, they are prohibited.  Article 39 clarifies the definition of mixed use to ensure that that is also true for mixed-use projects.  Please consider speaking up on the importance of this issue so that other TMMs understand that when Town Meeting designates a land use as prohibited in a particular zoning district, the ARB shouldn’t allow it to be snuck into a mixed use. 

Jon Gersh Substitute Motion Materials:

View the text of the Substitute Motion

View the Gersh Substitute Motion video presentation to be shown at Town Meeting 

BACKGROUND:
At 2016 Annual Town Meeting, Members voted on the Mixed-use Zoning Bylaw.  Two members of the previous Redevelopment Board made the presentation and answered questions from Town Meeting Members.  The concern of Town Meeting Members regarding what uses would be allowed was evident.  Over and over the Redevelopment Board members explained that “only the uses that are permitted in a particular district are the ones that can happen in a mixed-use in that district.”  Here is a video clip which clearly shows what Town Meeting thought it was voting on in 2016.

The limitation on uses couldn’t have been clearer, and that was what Town Meeting voted to approve.  Yet a few years later the Board became uncertain about this intent and it was suggested that the actual language of the bylaw was flawed and sufficiently ambiguous that any uses without restriction could be part of Mixed-Use in any business district.  

Last year the Board went rogue, choosing to grossly misinterpret the 2016 Bylaw on Mixed-Use as allowing any two uses in any business district.  The immediate consequence was their approval of the Hotel Lexington project located partially in a B2 district, which does not allow this type of use.  

Such an interpretation is diametrically opposite of what was promised to Town Meeting.  It is the duty of the Board to fix the problem, and to amend the language of the Bylaw to reflect what Town Meeting actually approved in 2016.  To shirk that duty and recommend No Action will cause great harm to the credibility of the Board when it speaks at future Town Meetings.

This Warrant Article clarifies the stated intent of 2016, preventing the Board from using the current ambiguity in wording to justify putting any use that it wants in residents’ backyards. 

___________________________________________________________________________________

ARTICLE 40 
ZONING BYLAW AMENDMENT/CONVERSION OF COMMERCIAL TO RESIDENTIAL 
To see if the Town will vote to amend the Zoning Bylaw in Section 5.2.4, by inserting in the last sentence of said section, after the word footprint, the words “if allowed by special permit” and by inserting, after the words residential use, the words “provided that the addition or expansion is for affordable housing” so that said sentence will read as follows: In the case of an existing commercial use, the addition or expansion of residential use within the building footprint if allowed by special permit shall not require adherence to setback regulations for residential uses, provided that the addition or expansion is for affordable housing, even if the residential use becomes the principal use of the building; or take any action related thereto.
(Inserted at the request of John L. Worden III and 10 registered voters) 

RECOMMENDED VOTE:

Please vote to SUPPORT John Worden’s  Substitute Motion that would require the conversion to be made by Special Permit only, and to be made to create lower-cost housing.  Otherwise, developers may be able to convert unrented retail space in mixed use structures back into market-rate residential space.  Please consider speaking up on the importance of this issue so that other TMMs understand it, even though a vote of “No Action” is proposed. 

John Worden Substitute Motion Materials:

View the text of the Substitute Motion

BACKGROUND:
This has become all the more urgent since the Redevelopment Board, contrary to their strong promises made at the 2016 Town Meeting when mixed use was approved, has seen fit to allow exactly what was warned about in support of an amendment (not approved by the Meeting) to establish some rules.  What was warned about proved, unhappily, be true – they will approve an apartment building with one little shop in the corner and call it mixed use.  That is exactly what happened with the oversized building they approved on Summer Street; opposite the high school; and the one that the Redevelopment Board approved at 1500 Massachusetts Avenue.  Where is the ground floor of vibrant commercial uses to serve the residents above and nearby? 
 

This amendment would at least allow some consideration of whether to preserve the token commercial use under these mixed-use developments which are essentially apartment buildings where they don’t belong, on lots that are too small, with few of the minimal setbacks and parking requirements that straightforward 100% apartment buildings would require.  If residential use is to be increased, at least it should serve a social purpose – affordable housing.

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ARTICLE 41  

ZONING BYLAW AMENDMENT/DEFINITION OF FOUNDATION

To see if the Town will vote to amend the Zoning Bylaw in Section 2, by adding a new definition as follows: Building Foundation: The masonry or concrete structure in the ground which supports the building. It does not include porches, decks, sheds, patios, one story attached garages, carports, or the like; or take any action related thereto.

(Inserted by the Redevelopment Board at the request of Patricia B. Worden and ten registered voters) 

RECOMMENDED VOTE:

Please vote to SUPPORT Patricia Worden’s Substitute Motion that would ensure that foundation means only foundation, not porch, garage, etc.  Without it, tear-down structures could be rebuilt to much larger sizes beyond the actual foundation. Please consider speaking up on the importance of this issue so that other TMMs understand it, even if a vote of “No Action” is proposed.

Patricia Worden Substitute Motion Materials:

View the text of the Substitute Motion

BACKGROUND:

The petitioner requested that the article be inserted in the 2021 Annual Town Meeting Warrant.  The amendment is embedded into the Warrant Article.  Since that time the petitioner has received advice for improvements from Christian Klein, Chair of the Zoning Board of Appeals, and become aware of various materials now being developed for foundations, and so now requests that the following language be submitted for Article 41 in place of the version filed in 2020:

 

Proposed vote under Article 21:

 

Voted to amend the Zoning Bylaw in Section2 by adding the following new definition:

BUILDING FOUNDATION: The entity supporting the building and constructed of masonry or concrete or other material of appropriate industry standards for such purpose, whether insulated or non-insulated.  It does not include porches, decks, attached storage facilities which are not part of the original structure, patios, one story attached private garages (except in the case of a single story building), carports, any accessory structure or the like.

 

Explanation:

The bylaw provision for large additions (Sec. 5-18 B (6)) requires a special permit unless the addition is entirely within the existing foundation. 

The foundation of a structure is very obvious and easily identified.  However, past practice in Arlington has shown that the identifiable foundation has often been ignored and redefined as something larger, enabling a much larger addition than would be allowed without a special permit.  

We have plenty of small- or medium-size older or antique houses in Arlington which are reasonably affordable.  This is despite the unfortunate statement to the contrary made by the Planning Department in their report to the Select Board on behalf of the Residential Study Group, based on selective and erroneous sampling, and not approved by the Residential Study Group.  These hundreds of small homes have made wonderful naturally affordable homes for downsizing retiring seniors and starting couples who can raise the roof to expand for a growing family.  But these homes are now targeted and brokered just for developers of massive rebuilds and are rarely available on the open market.  It is a quick and easy windfall for a broker to keep a list of developers planning teardowns to arrange for a quick sale to the developer because the broker may then have the opportunity for not one but two or three commissions – the original house and the one or two much more expensive million dollar homes replacing the teardown. 

The Zoning Bylaw provides that raised structures on the foundation may be built without a special permit under the large addition provision.  The rationale for this is set forth above. However, since foundation is not defined, Inspectional Services have interpreted foundation in such a way that the tiny cape or ranch turns into the large McMansion. Some porches, decks, carports, and attached garages are commandeered to become part of the “foundation.”  This definition does not prevent owners from constructing large additions, but would just require a special permit in cases where the addition exceeds 750 square feet, which was the original intent of the large addition bylaw.  

The requirement for developers to apply for a permit if expanding beyond the foundation is of paramount importance to provide notice to abutters.  That is why the definition of foundation is so important.

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ARTICLE 43 

ZONING BYLAW/ADOPTION OF ACCESSORY DWELLING UNITS

To see if the Town will vote to amend the Zoning Bylaw to allow Accessory Dwelling Units (ADUs) on the property of single family, two-family, and duplex dwellings; or take any action related thereto.

(Inserted at the request of Barbara Thornton and ten registered voters) 

RECOMMENDED VOTE:

Please vote only to SUPPORT only as Amended, in order to reinstate and add to the various protections of the better 2019 ARB proposal.  This is a much worse version of the ADU Article that was rejected by Town Meeting in 2019 and rejected by the ARB in 2020. ADUs may work in our town, but we must start cautiously. Let the 2019 ADU Article be the starting point, with future refinements as appropriate. Please consider speaking up on the importance of this issue so that other TMMs understand it.

Wynelle Evans Amendment Materials:

View the text of the Amendment: 1  - Short Term Rentals

View the text of the Amendment: 2  - Owner Residence 

View the Evans video presentation to be shown at Town Meeting

Jon Gersh Amendment Materials:

View the text of the Amendment - Accessory Buildings

Christopher Heigham Amendment Materials:

View the text of the Amendment - Accessory Buildings 1 (withdrawn by proponent)

View the text of the Amendment - Accessory Buildings 2

Patricia Worden  Amendment Materials:

View the text of the Amendment - Affordability 

John Worden Amendment Materials:

View the text of the Amendment - Apartment Size Dimensions

View the text of the Amendment - Addressing Parking

View the text of the Amendment - Provision for Non-Profit with Affordable Unit

Lori Leahy Amendment Materials:

View the text of the Amendment - Owner Residence Renewal

View the text of the Amendment - One ADU per Lot

View the text of the Amendment - R0-1 Only

JoAnne Preston Amendment Materials:

View the text of the Amendment - Accessory Buildings

Beth Benedikt Updated Substitute Motion Materials:

View the Substitute Motion - Return to Committee

Allan Tosti Updated Amendment Materials:

https://www.arlingtonma.gov/home/showdocument?id=56610&t=637572014929871479

BACKGROUND:

This Article leans towards the laxest of restrictions, and offers no protections for abutters.  As many have noted, in the more-dense parts of town, such as East Arlington, adverse effects will be particularly noticeable.  

The current proposal is much worse than the 2019 version submitted by the ARB and rejected by Town Meeting.  For example, it would allow ADUs "by right" instead of only by special permit.  ADUs could be in garages and other accessory buildings, on lot lines, with additional levels, so that 2-families become 4 families, and many other changes not allowed in the 2019 proposal that Town Meeting rejected.  However, despite the inferiority of this Article, ADUs could work in Arlington, if properly set forth.  

A reasonable approach would require at least as good a proposal as what was rejected in 2019.  Ideally, Town Meeting would form an ADU study group to determine a better proposal, as the RSG was intended to function before being disbanded without being allowed to study this issue.  The Article should only be supported with the Amendments listed.

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ARTICLE 46  

ZONING BYLAW/TEARDOWN MORATORIUM

To see if the Town will vote to amend the Zoning Bylaw by adding to Section 8 a new provision substantially as follows: there is hereby established a temporary moratorium on the demolition, in whole or in part, of older small affordable houses, for a period of two years from the date of final adjournment of this Town Meeting, or when the Town establishes a method of protecting such houses in order to promote the Town’s goals of economic diversity and affordability, whichever first occurs. For Purposes of this provision, the term “older small affordable houses” shall mean houses built before 1950 with a footprint of less than 1,000 square feet; or take any action related thereto.

(Inserted at the request of Lynette Culverhouse and 10 registered voters)

RECOMMENDED VOTE:  

Please vote to SUPPORT Lynette Culverhouse’s Substitute Motion that will allow the sale but prohibit the demolition of these moderately affordable houses, particularly for lower and middle income buyers, and slow the increase in property taxes and housing costs that comes with teardown/mansion replacements in our neighborhoods   Please consider speaking up on the importance of this issue so that other TMMs understand it.

Lynette Culverhouse Substitute Motion Materials:

View the text of the Substitute Motion

View the Culverhouse video presentation to be shown at Town Meeting

BACKGROUND:

Arlington has thousands of small, older homes that are moderately affordable to middle income families, valued at between $600K - $800K.  Dozens come on the market each year and a significant proportion are bought by developers with the intention of simply demolishing them to build larger luxury homes in their place.  Often these houses are never publicly listed, with Realtors brokering deals before reaching the open market.  Recent history shows developers buying these homes for an average of $650K and selling the replacements for about $1.5M.

This citizen proposed Article would implement a temporary moratorium on the teardown of homes built before 1950 and with a footprint of 1,000 sf or less.  It would not prohibit their sale, only their demolition.  During this moratorium, the town would conduct a study of the impact of teardowns on affordability, Net Zero energy goals, environmental aspects, and preservation of architectural history.  

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ARTICLE 48  

ZONING BYLAW AMENDMENT/ADA/MAAB STANDARDS IN ADMINISTRATION AND ENFORCEMENT

To see if the Town will vote to or take any action related thereto: To see if the town will vote to amend the Arlington Zoning Bylaws, Section 3.1 (“Administration and Enforcement”) to add a new clause inserting additional language asserting that all permits, including Special Permits, are conditioned upon compliance with all applicable Massachusetts Architectural Access Board and Americans with Disabilities Acts standards for accessibility, or take any action related thereto.

(Inserted by the Select Board at the request of the Disability Commission)

RECOMMENDED VOTE: 

Please vote to SUPPORT the ARB’s recommended vote in support of Article 48, to ensure ADA compliance in all projects. Recent zoning decisions appear to have been made with the assumption that enforcement and administration were not critical to project approval. Development projects that appear before the Redevelopment Board typically receive minimal scrutiny for ADA compliance. A recent example is the Hotel Lexington project in the Heights, where concerns of non-compliance were passed on to Inspectional Services for later review at the time of final plan submittal.

Disability Commission Article Materials:

View the DCA video presentation to be shown at Town Meeting

BACKGROUND:

A study of recently built public buildings in Arlington, particularly schools, found numerous deficiencies in compliance with Federal and State ADA requirements for accessible access.  The cost of fixing these problems would have been avoided if caught at an earlier design phase.

Private development projects that appear before the Redevelopment Board typically receive minimal scrutiny of ADA compliance.  A recent example is the Hotel Lexington project in the Heights.  The Board dismissed concerns of non-compliance, passing them on to Inspectional Services for later review at the time of final plan submittal.  It will be a costly deferral.  The kinds of revisions that will be required for the project to meet ADA standards will be so significant that they should trigger the reopening of the Special Permit hearings and another round of review and delay.

This is the second citizens' article proposed by Arlington’s Commission on Disabilities.  It does not add any new standards or requirements for any development.  It simply elevates consideration of these existing requirements to the level of Redevelopment Board or Zoning Board of Appeals hearings.

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ARTICLE 49  

ZONING BYLAW AMENDMENT/SIDEYARD SKY EXPOSURE PLANES

To see if the Town will vote to or take any action related thereto: To amend Section 5.3 of the Zoning Bylaw by inserting, at the end thereof, a new sub-section 5.3.23 which describes the Purpose & Intent, Applicability, Definitions, Standards by District, Dimensional and Density Regulations and Exceptions for Sideyard Sky Exposure Planes to accommodate new construction while protecting public health, safety and welfare in Residential Zoning Districts.

(Inserted at the request of Ted Fields and 10 registered voters)

RECOMMENDED VOTE: 

Please vote to SUPPORT Ted Fields’s Substitute Motion that will provide more precise ways of controlling building mass and height to minimize impacts on neighboring properties, including solar installations.  Sky Exposure Planes are widely used throughout the United States, including in Natick and Cambridge, which use them in residential and commercial zoning districts. Please consider speaking up on the importance of this issue so that other TMMs understand it.

Ted Fields Substitute Motion Materials:

View the text of the Substitute Motion

View the Fields video presentation to be shown at Town Meeting

BACKGROUND FROM PROPONENT TED FIELDS:

Sky Exposure Planes are more precise ways of controlling building mass and height to minimize impacts on neighboring properties.  They allow architects/builders to flexibly allocate building mass towards the center of lots rather than crudely limiting building size, as do current alternatives such as larger setbacks, reduced lot coverage standards or Floor Area Ratios (FAR).  Sky Exposure Planes are widely used throughout the United States, particularly in Western states.  Some communities in Massachusetts, including Natick and Cambridge, use them in residential and commercial zoning districts. 

Article 49 introduces Sky Plane standards to existing zoning requirements for Side Yard Setbacks in Single Family Residential 0, 1 & 2 zones.  Article 49 applies only to new single-family homes built after January 1, 2022; alterations or additions to existing single family homes in these zoning districts are exempt.  Sky planes are angles that start at a lot line and extend inward (toward the center of the property) and upward at defined intervals.  Buildings and structural components may not extend above/beyond Sky Exposure Planes in Article 49.  A 1:1 Side Yard Sky Plane rises one foot up for every foot of inward horizontal distance from the side lot lines.  In Article 49, minor roof overhangs, gable roof ends, small dormers and flush-mounted solar energy systems are exempt from Sky Plane thresholds.  Finally, new homes that meet Arlington's affordable housing standards are exempt from Article 49.

Sky Exposure Planes focus building height into the center of a lot, away from neighboring properties.  Article 49 updates Arlington’s zoning regulations with modern tools that: 

a) Protect older dwellings from oversize impacts from large homes, 

b) Allow construction of larger homes in response to current housing market conditions, and 

c) Permit homeowners to make repairs and build additions on their homes without dealing with Sky Plane regulations.