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

They're Baaaack... - Hotel Lexington (VII) and the Toraya Block Tear Down

This past Wednesday evening there was a data dump of about three dozen documents relating to the Monday, July 6 Redevelopment Board hearings for the Hotel Lexington and also the redevelopment of the Toraya commercial block. 

You will have to drill down a few levels in the Novusagenda pages on the Town website to find these documents.  Alternatively, Shane Cucuru, a long-time Arlington resident has been working on a website, Menotomy Matters, to make it easier to find such materials.  Here is his link: https://menotomymatters.com/meetings/arb/#2020-07-06

Hotel Lexington is up first, and will include the first new material since the January hearing.  In May the developers had excused the lack of a traffic study by their reluctance to spend the money until assured that the Board would approve other aspects of their proposal.  There was comment at that meeting that a traffic study was not doable in the foreseeable future because of disruption of normal traffic patterns and school attendance due to the pandemic.  But the developer has miraculously come up with a study anyway, based upon data taken last February.

There is finally some actual topographic information in the plans.  It confirms that all of the fine drawings showing a level front facade are incorrect.  The east end of the lot, where the DAV building is, sits four feet lower than the high point at the corner of Clark and Mass Ave.  Some new terracing is shown on the new plans, but not in sufficient detail to see exactly how this four foot drop is being accommodated.  One detail that is in the drawings for the circular driveway suggests that it will have a 15% grade at the very end where it crosses the Mass Ave sidewalk and meets the street.

Grading issues also exist with the ramp leading down from Clark St to the parking area in back.  Back in January the applicant was questioned on this and insisted that it was no more than a 5% grade.  The new elevation data show that one part of the driveway ramp is indeed a 5% grade, but at the other side of the driveway entrance it is a dangerous 15% where it meets the sidewalk.  It is also interesting to note that the single handicap space on the lot is placed on this entrance ramp, where it slopes 5% from left to right and also 5% from front to back.

The latest rear elevation drawing continues to hide what is actually happening with the parking garage underneath.  Back in January it was pointed out that the garage entrances were very low, perhaps between eight and nine feet. 

That estimate was wrong; the latest information provided suggests that they are between seven and eight feet.  We can't know for sure until the architects provide a drawing that doesn't hide this area behind the privacy fence.

Finally we can determine from these drawings that the height of the building at the two rear corners is 53' 5".

Another part of the submission is a letter from the attorney in which she makes various semantic arguments regarding residential usage, corner lots, and frontage.  The first argument starts with the claim that 'residential use' is not defined anywhere in our bylaw. It then conflates 'residential use' with a 'dwelling', and then follows a tortuous logical argument to prove that a hotel is not a residential use.

To the contrary, 'Residential Use' is clearly defined in our bylaw.  Table 5.5.3 defines residential uses for businesses districts.  Hotel or Motel is one of them.

Amusingly, in the same letter a claim is made for an exception to the yard setback requirements.  It is amusing because this exception only applies to residential lots.

Another semantic argument tries to claim that the hotel will have no frontage along Clark St.  I would try to refute it but I cannot make heads nor tails of just what the argument is.

Next on the agenda for Monday is the Toraya Block teardown and redevelopment as an apartment building in a B2 neighborhood business district.  At the last hearing there was a strong turnout of residents who deplored the loss of more of our commercial base under the provisions of the 2016 Mixed Use bylaw. The bylaw was supposed to strengthen our local businesses by supplementing them with housing on the upper floors as an accessory use.  Instead the law is being used to destroy the business base by making the primary use residential rather than retail.  A token office space to qualify as Mixed Use is clearly not what was intended by Town Meeting.

The applicant's response to the community has been to eliminate one of the ground floor apartments to make more office space and to bump up the  height from 39' to 46'.  The required upper story stepbacks have strangely disappeared. The building simply goes straight up four stories on all sides, in violation of the bylaws.  Other violations noted in the first hearing remain unaddressed.

As problematic as this particular project is, it is also a troubling harbinger of a dangerous trend that threatens the vibrancy, livability and fiscal future of Arlington.  Earlier this week the Mirak family announced their plans to convert two acres of Industrial zoned property to purely residential use.  Presented as a 40B project, it is not subject to local zoning laws or many other regulations.  The Miraks own much commercial property in town which may be headed for similar redevelopment.

The applicants for the redevelopment of the Toraya Block seem to be on the same course. They are also the owners of other significant commercial lots in Arlington.  Currently they are trying to convert a B1 property at 400 Mass Ave in Arlington Center from three offices and two accessory apartments to a principal use of four apartments with a token office space to make it Mixed Use.  Last week they tried a bit of venue shopping by attempting to pass it by the Zoning Board of Appeals.  The ZBA would not go along with the proposed change of use and we can expect to see it presented instead before the Redevelopment Board alongside their concurrent proposal for the Toraya Block.

What will come next?  How about the Leader Bank building in Arlington Center, at the corner of Mass Ave and Medford St.  All of those businesses on that side of Medford St and a half dozen or so store fronts along Mass Ave are part of the same family holdings.  What if they decide to redevelop the Arlington Center business district in the same manner as the Toraya Block and 400 Mass Ave?

If that were not enough to worry about, guess who owns the business block in east Arlington, on the southeast corner of Lake St and Mass Ave, just past the much-loved Capitol Square block?

By Don Seltzer

How To Keep Up With Town Zoning Issues During COVID 19

We hope that you are healthy and staying safe during this unprecedented time.

ZONING-RELATED MEETING ARCHIVE ON ARFRR.ORG WEBSITE

COVID-19 safety protocols have suspended in-person Town meetings, and ACMi coverage, in favor of Zoom meetings. As a service to residents, we are recording certain "Zoom" and other online meetings having to do with zoning issues, and making them available on the ARFRR website. 

Visit this page to catch up on recent meetings: https://sites.google.com/view/arfrr/calendar-contacts

Recent meeting agendas include:

• the current status of  "Hotel Lexington", planned for 1207-1211 Massachusetts Avenue, and 

• the proposed demolition of the 882-892 Mass Ave block, home to Toraya and Thana Thai restaurants, and ACMI studios, to build a 22 unit residential structure with one small commercial space. 

click image to visit the Recordings archive

HOW YOU CAN ATTEND TOWN ZOOM MEETINGS

To participate in a Town Zoom meeting by computer, tablet or phone, first make sure you've downloaded Zoom from www.zoom.us

Prior to the Zoom meeting, the Town will publish a web link URL for each meeting for you to click on. You’ll also see a telephone number, which will allow you to dial in and participate as an audio-only conference caller. This information can be found on the home page of the Town website, by clicking on the meeting name displayed there. 

Here are further instructions and videos from Zoom

Once inside the Zoom app, you may have to allow Zoom to access your microphone and camera. You may have to click/touch the Zoom screen to unmute your microphone and start your video camera if you wish to make a comment or be seen during the meeting. 

HOW YOU CAN REQUEST RECORDING FUNCTIONALITY AT THE START OF A MEETING
To make a recording of the zoom meeting, you must alert the meeting Chairperson of your wish to do so (there is a "raise hand' icon on the Zoom screen or in the menu of options) or you may unmute your microphone before the meeting begins and ask for recording privileges. After the chair has acknowledged you, he/she will enable an icon on your Zoom screen, often in a lower corner, which you must press to begin recording.

The Heights Hotel Part III - The Waiting Game UPDATED with new meeting date

The Heights Hotel Part III - The Waiting Game

UPDATE - Once again the next hearing has been cancelled.  Attorney Mary Winstanley O'Conner has written to the Redevelopment Board asking that it be continued to January 27th, without explanation of reason of the delay or why the developer waited so long to make this last minute request.

So, what’s up with the "Hotel Lexington" project?  The last real news goes way back to July 22 when residents gathered in the Lyons Room to hear the proposal and provide their concerns.   The developer left with a long list of potential problems and zoning issues to resolve.  The Redevelopment Board was left with the thorny legal issue of an estimated $100,000 in building permit fees that were being waived.  These are fees that are set down in our bylaws by Town Meeting but were somehow negotiated away by the Town Manager and the Planning Department.

Since then, hardly a peep.  There was a continuance to September, and then another to October.  At that time the developer postponed it again, this time for another two months until the  JANUARY 27th December 16 meeting of the Redevelopment Board.  Nothing more has been released for the public.

There has been some activity behind the scenes, though.  Back on August 12th, the developer did meet with some members of the Redevelopment Board to discuss the project.  Not at the public meeting that same evening, but just beforehand behind closed doors.  It was another of those unannounced, closed to the public, very private get togethers that leave the public in the dark about what is going on.  No minutes kept and not even a brief announcement of what went on or who attended.

Meanwhile, there has been a new development next door at 1215 Mass Ave.  The building that formerly housed Nicola’s is being converted into a liquor store.  The owner has already been before the Select Board and next will seek approval of the Redevelopment Board.  Whatever traffic studies the hotel developer has conducted need to be amended to account for the new use next door.

To refresh your memory of the history of this drawn out process, it was four and a half years ago that Town Meeting voted to approve the sale of 1207 Mass Ave. The Town budget actually included an expected $1,000,000 from the sale to help pay for the Stratton School project. The RFP bid that was accepted in late 2016 was for only $750,000.  The actual Purchase and Sale Agreement was signed just about a year ago, but the transaction has yet to be completed and it seems that the developer can back out of the deal if he does not get what he wants from the Redevelopment Board.

There is every reason for the developer to stall.  His purchase price for the town property remains fixed at the 2016 level even as real estate prices in Arlington have rocketed in the last three years.  More ominously, the Planning Dept is again pushing zoning changes for the Heights business district which conveniently has been defined as extending all the way to Forest St, thus including the hotel.  The proposed changes were authored by our old friends, the Metropolitan Area Planning Council, and go even further than the zoning changes that failed at Town Meeting last spring.  The new version would have that entire block of B2 (small businesses serving the neighborhood) rezoned to a super B3 district.  What does that mean for the abutting homes on Clark, Peirce, Forest, and Locke?  Think about higher and denser buildings, four or five stories in your backyard.

And for the developer, it means that many of those pesky zoning limitations that restrict him will go away.

Stay tuned.  Or better still, come to the hearing on JANUARY 27th December 16 in the Town Hall auditorium location TBA.

Our First Blog Post: Responsible Redevelopment for Arlington residents - and businesses!

Welcome to our blog about redevelopment news in Arlington, Massachusetts!

Zoning bylaws and redevelopment are not the things that people usually get excited about.  We like to think that our elected and un-elected officials in the Town Hall have our best interests at heart - and often they do.

However, Arlington Residents For Responsible Redevelopment recently formed because of concern that we, the businesses and residents of Arlington, did not always have our interests protected and represented when zoning and redevelopment issues arise in our town.  A recent experience with the 2019 Town Meeting density Articles is a good example.   Town officials proposed these in a rushed, troubling process. For many of us this changed the sleepy, boring nature of zoning and redevelopment.  Indeed the Articles made Arlington sit up and take notice and Town officials were forced to withdraw them, after hearing much criticism from TM members.

Arlington Residents For Responsible Redevelopment is not a large, shiny organization of strangers.  We are not paid, or connected to shadowy interests.  We are neighbors and business people who reside or work in Arlington.

We came together as a grass-roots coalition of residents and business people from all over town who found that the Articles proposed were terrible for the town -- and the zoning bodies that should have been gate-keepers seem to have been confused into thinking that we residents, business people and tax payers would be pleased-- although we were not significantly involved in their efforts to craft the bylaw changes.
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As we learn about important meetings, information, threats, proposals that could impact our lives here in our town, we'll put them on our website and in this blog so that you're informed and so that our Town makes responsible, sensible redevelopment choices.

Carl Wagner
ARFRR