Commentary: The problem with our zoning code

Bill Walczak

Metropolitan Boston surely has a housing crisis. Our rents are second highest in the US and the cost of housing is a major reason why the state is now losing population despite thousands of unfilled jobs. The problem is that the haphazard, piecemeal approach for residential development in the city during the last three decades is not solving the housing crisis and has had negative impacts on our neighborhoods.

Parcel by parcel, projects are brought to civic associations for community input because they are in violation of zoning laws. I can’t remember the last time I participated in a civic association planning committee meeting that didn’t have Boston Zoning Board of Appeal (ZBA) requests to increase the number of units on a parcel of land. In some cases, it’s about adding units to an existing building; in others, it’s about demolishing the building and creating a multi-unit condo or apartment building in lots that are zoned for one, two, or three units.

That these requests are regularly approved by the ZBA creates dangerous precedents for Dorchester’s neighborhoods. In just a few blocks near the new Dot Block development in Glover’s Corner, we can see three examples:

The Scally and Trayer’s Funeral Home on Pleasant Street, formerly a single-family house on a parcel zoned for 2 units, was purchased for $1.6 million in 2016, with plans for a 21-unit building. The notion of returning the funeral home to a single-family house was never in the cards, because the ability to easily turn the lot into an apartment or condo project made the parcel a developable sit rather than a home for sale.

Huge profits can be made when the ZBA allows single family homes to be demolished to make way for multiple unit developments. Eventually, the ZBA allowed 17 units to be built on the Scally lot.

Afterwards came a proposal by the owners of a nearby three-decker on Pearl Street to tear it down for an eight-unit development. If this is granted, will all the three-deckers on Pearl Street be able to do the same? How about the next street?

The same thing is currently going on at a property a few blocks away on High Street on Meeting House Hill that is zoned for two-family houses. The former rectory of the First Parish Church, a historic Greek Revival house at 29 High St., sold for $1.75 million and was later demolished to accommodate a 23-unit project. This was followed by the purchase and demolition by South Boston’s Volnay Capital of another single-family house at 22 High Street to build 15 units.

You can also see this playing out in the project proposed by Trinity Financial on a site next to Shawmut Station, where the $3 million price insisted on by the Fitzpatrick Brothers auto repair business was set not by what zoning would allow, which is 8 units, but by what the ZBA would likely approve.
The result is a proposal for 74 units, a density that neighborhood residents oppose, but that is required because the value of the lot is set by the likely actions of the ZBA, not by market forces based on what the land is zoned for.

These piecemeal, parcel by parcel projects, done without any comprehensive planning or thought on how neighborhoods will accommodate the cumulation of them, fly in the face of what zoning is supposed to provide our city, and what the ZBA is supposed to do.

Let’s take a look at Boston’s zoning language and regulations. The current zoning code was established in 1965 to “promote the health, safety, convenience, morals and welfare of the inhabitants of the City; to encourage the most appropriate use of land throughout the City; to prevent overcrowding of land; to conserve the value of land and buildings; to lessen congestion in the streets; to avoid undue concentration of population; to provide adequate light and air; to secure safety from fire, panic, and other dangers; to facilitate adequate provision for transportation, water, sewerage, schools, parks and other public requirements; and to preserve and increase the amenities of the City.”

In practice, this zoning language has resulted in different sections of the city being zoned for commerce, industry, and residential housing. Most of the residential areas of Dorchester are designated for one to three units.

The zoning code allows for exceptions to zoning, called “variances” by a Board of Appeal (ZBA), based on the following rules:
“Article 7.3 The Board of Appeal shall grant a variance only if it finds that all of (my emphasis) the following conditions are met:
(a) That there are special circumstances or conditions, fully described in the findings, applying to the land or structure for which the variance is sought (such as, but not limited to, the exceptional narrowness, shallowness, or shape of the lot, or exceptional topographical conditions thereof) which circumstances or conditions are peculiar to such land or structure but not the neighborhood, and that said circumstances or conditions are such that the application of the provisions of this code would deprive the appellant of the reasonable use of such land or structure;
(b) That, for reasons of practical difficulty and demonstrable and substantial hardship fully described in the findings, the granting of the variance is necessary for the reasonable use of the land or structure and that the variance as granted by the Board is the minimum variance will accomplish this purpose;
(c) That the granting of the variance will be in harmony with the general purpose and intent of this code, and will not be injurious to the neighborhood or otherwise detrimental to the public welfare; and
(d) That, if the variance is for a Development Impact Project, as defined in Section 80B-7, the applicant shall have complied with the Development Impact Project Exaction Requirements set forth in Section 80B-7.3, except if such variance is for a deviation from said requirements.
In determining its findings, the Board of Appeal shall take into account: (1) the number of persons residing or working upon such land or in such structure; (2) the character and use of adjoining lots and those in the neighborhood; and (3) traffic conditions in the neighborhood.”

Note that nowhere is it stated that variances should be granted to allow for maximum profit by the landowner or by the purchaser of the land by maximizing the number of units on parcels.

These variances to allow for greater density on lots zoned for one, two, and three units are happening all around Dorchester. Whether it should be happening is not being debated, except by some residents expressing opposition or support for each individual proposed development. It’s the wrong debate. The real debate needs to be focused on Boston’s zoning code, how city government plans for the impacts of growth, and what the ZBA is allowed to consider in granting variances.

Giving the ZBA such broad authority skews the market values of parcels. As a result, we do not have a workable zoning code and the ZBA is our de facto zoning board. Nearly anything can be proposed for any lot, depending on the size of that lot, which results in houses on larger lots being seen as developable lots rather than homes with yards. It also means that the prices for those lots will be far greater than what would be if the zoning code were enforced, virtually ensuring that the house will be demolished or radically altered.

Before she became mayor, Michelle Wu produced a report on “Fixing Boston’s broken development process.” She noted that “we’re not planning for our best future,” citing “an onslaught of zoning variances and special approvals,” and that the “development process is making our problems worse.” The Boston Planning and Development Agency is under new leadership with plans for reforming this process. It needs to start with making zoning real in our neighborhoods. We have a housing crisis, but there are better ways of handling it than what we do currently, and the state has a role in ensuring that it’s not just Boston that has to deal with the crisis.

Until reforms are implemented, I suggest that Mayor Wu put a moratorium on the ZBA for appeals to increase the number of units of individual parcels, until an open and transparent public process has been undertaken to clarify what type of housing density is desired in each of Boston’s neighborhoods.

Pitting neighborhood volunteers and civic associations against developers in negotiating development projects is unfair to the neighborhoods. We need different rules for ZBA interactions. The financial interests of real estate developers should not be the effective driving force of Boston’s land use planning.

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