Demystifying Zoning: Q&A with the BRA

Jul 27, 2016 | Discussion Topics | 5 comments

Zoning has come up repeatedly over the course of our learning. We heard that many parts of the zoning code in Boston have not been updated for some time, which means that nearly every proposed development project requires an exception (known as a “zoning variance”).

As with most systems, there are pluses and minuses to this approach. A request for a zoning variance can help leverage benefits from the developer for the broader community, such as funding to support a local park or neighborhood program. The BRA facilitates discussions between developers and residents to consider these requests, with the goal of building consensus around projects that are consistent with the neighborhood’s vision for the future.

However, zoning variances can often be a point of confusion and contention. We heard from some citizens that said variances can be perceived as an example of the BRA “moving the goalposts” to benefit developers at the expense of the community.

To gain perspective on these issues, we had a conversation with three people at the BRA: Jeff Hampton (Director of Zoning), Bryan Glascock (Sr. Advisor for Regulatory Reform), and Sara Myerson (Director of Planning). For clarity, we blended their voices but preserved the language they used in response to our questions.

Q: Let’s start with the basics—what is zoning?

Zoning tells you what you can build, how big it can be, and where you can build it. When you break it down to the simplest terms, it’s what governs what can be built in an area.

The origins of zoning in the US date all the way back to the Constitutional Convention, when the founding fathers delegated the so-called “police powers” over health, safety, welfare, and morals to representative governments at the state and municipal levels. Modern zoning in American cities was born in the 1920s to regulate land use, delineating where residential, commercial, and industrial buildings were allowed in an effort to protect the health and safety of citizens.

In Boston, zoning first came into being in 1924 after neighborhood boundaries had been established. Boston was largely developed before zoning existed, and as a result, we have a mix of uses in nearly every neighborhood. Over time, we’ve slowly tried to confine certain uses to certain areas, but we’ve also realized that we want to mix commercial and light industrial uses in other areas because they provide jobs. Our responsibility is to make sure different things can safely coexist.

Q: We’ve heard that Boston zoning hasn’t been updated in quite some time. Is that true, and if so how come?  

It’s true that the zoning code as a whole hasn’t been overhauled in one fell swoop. What different administrations started to do back in the 1980s and ‘90s was to re-zone at the neighborhood level. So the idea was that the zoning in West Roxbury would be different from the zoning in Jamaica Plain, for example. This created a zoning code that is 3,500 pages long, and much of it is duplicative. It’s not exactly user-friendly.

Much of the language for different neighborhoods is actually the same, with variation in things like the dimensional requirements or sign regulations. Rezoning individual neighborhoods can be a lengthy process; for example, it took us five years to re-zone Dorchester (Boston’s largest neighborhood).

In many respects, the issue comes down to one question: do we want one code for the entire city, or different codes for each neighborhood? There are pros and cons for each. On the one hand, similarly situated items should be treated similarly; a brick brownstone is a brick brownstone. At the same time, each neighborhood is unique, and citizens have often invested their time and energy into a multi-year zoning process. It’s understandable then that any changes to zoning are sensitive.

Q: Over the course of our learning we’ve come across a really interesting paradox. There is a perception among citizens that the BRA and the City (meaning municipal regulators) favor developers by making exceptions to the rules when a variance is granted. Yet, we’ve also realized that zoning variances can unlock things like affordable housing creation from developers. So what’s the deal with variances?

The reality is that, in some cases, the decisions that led to a zoning variance being granted were a long time in the making – and they’re evidence of a broader dynamic at play. Zoning was historically focused on the protection of neighborhoods more than it was on fostering a business-friendly environment or focusing on the future needs of residents. These protections wouldn’t allow coffee shops to open before 6 a.m. or yoga studios to be located in places where other fitness facilities exist, for example. Just think of all the different land uses that would have never been contemplated when zoning was originally written. Hindsight is 20/20.

Revisions to zoning require us all to unpack tough questions, and we feel for folks in the neighborhood that express concerns. Change is difficult, but you can’t blame one individual or group. The evolution of zoning is a reality of economic cycles and the growth of cities.

Q: Over the course of our learning, such as studying the PLAN: JP/ROX process, we’ve heard that some people associate development with displacement because development can mean higher rents. What’s the role of zoning in that conversation? Should zoning help preserve affordability, for example?

It’s a delicate balance. People want to see their communities thrive; they want to take pride in their community and all the things going on there, and yet they want to protect the people that live there currently. Everyone would love to see the economic benefits of development shared broadly. While zoning can’t solve all of our challenges around inequality, it can (and should) be part of the solution.

Zoning inherently affects land value because it dictates what land can be used for. As a way of sharing the returns associated with zoning changes more widely, we’re testing new approaches such as density bonuses, which we’ve proposed as part of PLAN: JP/Rox and PLAN: South Boston Dot Ave. The density bonus would require a developer to produce more affordable housing in return for allowing them to build a larger project. We proposed this tool in response to the community’s desire to see greater affordability in new projects.

Q: What is the ideal state of Boston’s zoning in the future? 

Everyone has a different definition of ideal, but we think there are two important factors that should drive our thinking: 1) The zoning code doesn’t need to be 3,500 pages thick, so we should eliminate redundancies and do our best to make sure zoning reflects the future we want to see; and 2) We should aim to make zoning more predictable so that variances aren’t the norm.

We can accomplish a lot through good zoning, but we should be wary of trying to do too much (like predicting the future of the market). A key question is, what do we want to protect, and how do you build in the right flexibility so that zoning can adapt over time?

5 Comments

  1. This article is all from the viewpoint of the BRA. Would have been more comprehensive to include some neighborhood views of zoning.

    Reply
    • Hi John,

      We’d certainly like to hear a range of perspectives, so please chime in! This post was intended to be a conversation starter with thoughts from some key staff at the BRA.

      Thanks for your interest, and hope to hear more from you.

      Best,
      Nick Martin
      Director of Communications , BRA

      Reply
  2. Abuse of zoning is rampant in our neighborhood, in a way that is not defined by the above description. The impacts on our neighborhood extend far beyond gentrification.

    In numerous instances, speculators secure zoning variances for a proposed project from the BRA and instead of developing the approved project, they simply flip the approved development rights for profit. Windfall profits are often a multiple of land acquisition cost and in some case are zero risk because the speculator has optioned the land contingent on BRA approval.

    The profit taken in the sale of BRA variances becomes a cost to the final developer when acquiring the land and project, impacting margin available to invest in the project onsite. We hear developers claiming hardship on everything from fulfilling community objectives onsite; investing in below grade parking instead of an above-grade garage; to improving materials and architecture. By doing nothing, the BRA has sanctioned this secondary market in which windfalls are made selling vacant lots and mothballed buildings along with pre-approved development rights.

    The most egregious examples of BRA-sanctioned flipping of zoning variances results in an impact worse than gentrification. We’ve seen speculators purchase entire portfolios of buildings; roll existing tenants from the buildings by terminating leases; mothball the vacant buildings for 2-3 years while working with the BRA to secure lucrative development rights to rooftop additions and new infill; then flip entire portfolios of unbuilt BRA-approved projects for windfall profits without making any substantive investment in the neighborhood. Our friends and neighbors are rolled out and the developer acquiring the portfolio has paid a significant margin to the speculator, a margin that precludes any ability to re-lease to prior tenants.

    In some instances, after tenants have been rolled by speculators working the BRA to secure development rights, the speculators re-lease to new tenants at a market rate significantly higher than prior tenants. To make matters worse, the BRA celebrates the new tenants, hosting ribbon cuttings and counting “new jobs” while never acknowledging the tenants who were “rolled” from the buildings. These ribbon cuttings were frequent in the prior administration but (fortunately) have ceased.

    The final issue I’ll raise with respect to zoning is how the BRA is using PDAs either A) to spot zone projects far afield of existing zoning or B) to approve “Master Plans” for “Master Developers.” In the first instance, we see the Master Plans we’ve worked on with the BRA forgotten and PDAs used to approve a complete hodgepodge of new buildings. In the second instance, we see Master Developers conveniently securing all the net new height and density in PDA Master Plans while jettisoning community objectives through the use of PDA amendments. Since there is no memory at the BRA, in new Bostonians arriving in the neighborhood or in the media regarding the community objectives of the original “master plans,” there is little appetite for seeing them to fruition. The people who worked most closely with the BRA don’t feel they have a champion, or even anyone with an interest in the original planning. But the developers hold onto their lucrative height and density approvals in PDA Master Plans for years and years.

    Reply
  3. I think this is the key statement: “Zoning was historically focused on the protection of neighborhoods more than it was on fostering a business-friendly environment or focusing on the future needs of residents.” = We used to build cities and neighborhoods according to resident’s actual needs, now we focus on the (financial) needs of the developers. “Future needs of residents” do not align with current nor future needs. The worst-case scenario is the rampant development on the waterfront.
    We’ve just heard a proposal for a new tower doubling the height of the highest new building (which exceeded old zoning twofold). The developer seems quite sure they will get what they want. Not so the people who live in the neighborhood.

    Since our city is not allowed to grow organically according to people’s needs and wants the way the best cities did throughout the history, why can’t we at least learn from the many great – and bad – examples in city planning? What we get now (Waterfront and elsewhere) is branded “neighborhoods” (not in the real sense of the word), boring buildings nobody can be proud of and a missed opportunity for having an interesting, innovative, livable, workable, and lovable town with real-size live and work spaces and galleries and art spaces at the store-level, open to public.

    There are bright exceptions to the status quo; I believe the upcoming park by Children’s Museum will be one of them.

    Reply
  4. Steve and Hexe, thanks for putting into well-said words the feelings and frustrations many residents of Boston have in dealing with or just observing the BRA, and the ZBA. Excellent comments looking beyond the brick and mortar, codes and articles, into those truly affected by the mega-gentrification going on in Boston’s neighborhoods . Unfortunately, this justified criticism will most likely fall on deaf ears and blank stares, despite all the seminars, planning committees and outreach.

    Reply

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