Overlay Overload: Where Are We Now? (8/11/19) (7 Responses)

August 2019 may be remembered as the month that set a City Council record for the length of a single continued hearing, just as 2019 will be remembered as the year “The Overlay” dominated the Council’s agenda and became the wedge issue for the fall municipal election. The Ordinance Committee meeting on the 100% Affordable Housing Overlay zoning that began on August 1st and lasted for four hours was continued to August 8th, when it ran for another seven hours, and then was continued again to August 13th. In anticipation of third long meeting and to avoid another late night, we set a 12 noon start time for the next hearing; since it is a continued hearing there will not be a public comment period. And following the technical difficulties of live-streaming from the School Committee Room where we met on August 8th, we are returning to City Hall for the August 13th hearing, which will be televised and live streamed as usual on the Open Meeting Portal

So where does the petition stand at this point? Are we any closer to making the language and details of this zoning experiment worthy of ordination before its effective expiration date of September 23rd? (Technically it expires on September 30, but we will not meet that night because of the Rosh Hashanah holiday.)

Honestly, I still don’t think the petition is “ready for prime time,” and judging by the way some of the key votes on amendments split 5-4 at our last meeting, I think the odds of its passing are diminishing the longer we debate it and the more its possible unintended consequences are brought to light. A super majority of six is needed to change zoning; some assert the requirement for a two-thirds majority perpetuates exclusionary zoning and that may be the case in suburbs and towns with elected officials that represent neighborhood districts. But in Cambridge the nine of us all serve at-large and a citywide zoning change demands more unanimity than a 5-4 vote would convey. 

I’ve said it before and I’ll say it again: we owe it to all the residents of this city to take the time needed to think through the full range of impacts that a very complex and untested (anywhere in the US) zoning change, which could re-value every lot in the city, may have beyond the creation of an unknown number of affordable units on an unknown number of parcels. Supporters insist the impact will be limited by the available public funding. But it is troubling that no one can predict whether the AHO’s by-right up-zoning bonuses might be used by developers other than those who rely on funding from the Affordable Housing Trust, which the AHO zoning sets up as the backstop to ensure excellent design, high-quality construction, community responsiveness and public accountability. With the AHO’s elimination of both a binding design review and permitting process and the right of appeal, residents are being asked to place a very high level of trust in the nine-member Housing Trust, which is appointed by the city manager and is staffed by the Community Development Department. (One AHT seat is vacant following the death last spring of tenant advocate Cheryl-Anne Pizza-Zeoli; this fall the city manager will put out a call for applications and nominate a new member who must be approved by a vote of the Council.)

At the August 8th hearing we got about halfway through a list of over 40 amendments and edits to the petition text. Here are some of the key changes (in bold and bracketed for strikethrough text) that have been discussed so far. The document with all of the suggested amendments that were we working from is here.

Changes to Purpose and Intent (Section 11.207.1): 

The purpose of this Section is to promote the public good by supporting the development of housing that is affordable to households earning up to 100% of area median income. The intent of this Section is to allow incremental increases in density, limited increases in height, and relaxation of certain other zoning limitations for residential developments in which all units are made permanently affordable to households earning up to 100% of area median income (referred to as “AHO Projects,” as defined in Article 2.000 of this Zoning Ordinance); to incentivize the reuse of existing buildings in order to create AHO Projects that are more compatible with established neighborhood character; to promote the city’s urban design objectives (Article 19.30) while enabling AHO Projects to be permitted as-of-right, subject to non-binding advisory design consultation procedures that follow all the design objectives set forth within this Ordinance and the review process shall inform funding decisions by [the principal public funder], the Cambridge Affordable Housing Trust; and to apply such standards throughout the City as appropriate to the neighborhood context, to promote city planning goals of achieving greater socioeconomic diversity and a more equitable distribution of affordable housing and related support services citywide

These were Councillor Carlone’s and my additions. It surprised me that three councillors (MMc, DS, TT) voted against adding “incremental,” saying it’s “too subjective.” Yes, but then “limited” is equally subjective by that measure; both speak to the need for sensitivity to street context, which is a tenet of the form-based zoning which the AHO aims to follow. CDD staff were uncomfortable with identifying the Housing Trust as “the principal public funder,” so that was struck. The mayor’s block of five councillors (MMc, AM, SS, DS, TT) voted to strike my suggestion to add “as appropriate to the neighborhood context.”

Changes to Eligibility for AHO Units (Section 11.207.2):

(b) For all AHO Dwelling Units: 

(i) AHO Dwelling Units shall be rented or sold only to AHO Eligible Households, with preference given to former Cambridge residents who experienced a no-fault eviction in Cambridge within the last 12 months, in accordance with standards and procedures related to selection, asset limits, and marketing established by the Community Development Department. 

This was Councillor Zondervan’s change. All supported except DS, who voted present. His other suggestions to try to prevent the displacement of tenants who may not qualify for subsidies and to require more owner-occupancy in AHO projects were deferred until the tenant displacement task force makes its recommendations next month. While protecting market-rate tenants (code for “wealthy” when in fact most market-rate tenants also are housing cost-burdened in such an expensive city) is not the goal of the AHO, it does seem reasonable to some of us to try to select sites where middle-income tenants in “naturally occurring affordable housing” would not be replaced with lower income tenants. Protecting housing stability is important for all income levels.

Changes to Use (Section 11.207.4):

Councillors Zondervan and Carlone tried to insert language that would require ground floor retail to provide services to the general public (not only to AHO residents) and that would protect existing local retail from displacement by an AHO redevelopment in a neighborhood business district. These were placed on hold after much discussion; the mayor and others felt it would place too great a burden on affordable developers to try to preserve local retail. (No one is trying to protect McDonald’s or chain stores and banks from displacement, but we all should care about protecting local independent businesses.) Councillor Simmons asserted that community developers already do this. (But will they be the only ones using this zoning?)

Changes to Dimensional Standards for AHO projects (11.207.5)

5.2.1 Building Height and Stories Above Grade 

(a) Where the District Dimensional Standards allow a maximum building height of 40 feet or less, an AHO Project shall contain no more than four Stories Above Grade and shall have a maximum height of 45 feet, as measured from existing Grade. For AHO Projects containing active non-residential uses on the ground floor, the maximum height may be increased to 50 feet but the number of Stories Above Grade shall not exceed four stories.

(b) BA and BA-2 Zones are to be regarded as “progressive transitional zones”. An AHO Project in these zones shall contain no more than six Stories Above Grade and shall have a maximum height of 65 feet, regardless of ground floor use.

  1. Portions of buildings that are within 35 feet of a district whose District Dimensional Standards allow a maximum building height of 35 feet or less shall be reduced to a maximum of four Stories Above Grade and a maximum height of 47 feet, as measured from existing Grade, except where the building abuts a non-residential use.

This was another instance where the 5-4 split showed, and Councillor Carlone’s competing suggestion to limit the height to 55 feet (60 feet with retail) was defeated by the mayor’s block (AM, MMc, SS, DS, TT) who are willing to allow up to 65 feet in zones that could be next to two- or three-story houses.

(e) No dwelling units shall be located below grade.

This carried unanimously. Basements can be used for storage and mechanicals, just not habitable living space. (When we approved the Barrett Petition last year to remove basement living space from FAR, we overrode the concerns of DPW about the potential for flooding but in creating subsidized housing I think we have a higher duty to protect the health and safety of tenants. Using basements for living space could further increase the unit count of an AHO project when the density of residents on a lot is already being multiplied by the AHO zoning.)

The question of whether there should be any limit on Floor Area Ratio remains a major sticking point. The petition entirely eliminates FAR from the typical dimensional standards (FAR, height and setbacks) in the base zoning, and that has raised a lot of questions about how much additional density is actually needed to make affordable developers competitive in the market. We could not agree on what a reasonable cap on the FAR of an AHO project should be. The mayor and Councillor Mallon had suggested a maximum of 3.0 in districts where the maximum height is 40’ — this is not much of a limit since an FAR as great at 3.0 would probably not even be feasible in such districts within the other AHO limitations (in Res B the base FAR is 0.5; multiplying it by 6 times is hardly “incremental” up-zoning). Councillor Carlone reiterated our request for an analysis of what multiples of the base FAR are needed and appropriate for each district; I have suggested allowing up to twice the base FAR. Since FAR is a metric for regulating the number of square feet that can be developed on a parcel , the size of the lot matters; a very large lot could have more interior square footage within the height and setback limits, and lot sizes do vary significantly even within the same base district. It is complicated to make FAR a one-size-fits-all number, which is why I feel the density increase should be expressed as a multiple rather than as an absolute number.

5.2.3 Yard Setbacks

(b) An AHO Project shall use the average front yard setback of existing, adjacent buildings (two on each side but not including corner lots) above two (2) stories high or as called out in zoning, whichever is less. Corner lots shall have a minimum front yard setback of 10 feet, except where the District Dimensional Standards establish a less restrictive requirement. [However, the front yard setback may be reduced to the average of the front yard setbacks of the pre-existing buildings on the lots adjacent thereto on either side, if such average is less than the front yard setback otherwise required.]

Councillor Carlone’s amendment to make front setbacks more sensitive to the neighboring context carried on a vote of 7-2 (TT voted no, DS voted present). However his subsequent suggestions to apply a similar contextual approach to side and rear setbacks failed on a vote of 4-5, with the mayor’s block voting to keep the setbacks keyed to the property lines rather than taking into account the distance to abutting structures. Councilor Carlone had suggested a minimum of 20 feet between structures at the sides and 40 feet at the rear. This is another major sticking point. I did succeed in adding a requirement that bicycle parking spaces in the setbacks be no closer than 7.5’ from an abutting residential structure. 

5.2.4 Open Space 

  • Except where the District Dimensional Standards establish a less restrictive requirement or as otherwise provided below, the minimum percentage of open space to lot area for an AHO Project shall be 30%. However, the minimum percentage of open space to lot area may be reduced to no less than 15% if at least one of the following criteria is met:

[(i) An area commensurate with such reduction is used to provide off-street surface parking spaces on the lot along with necessary driveways and access aisles.]

We eliminated parking as a criteria for reducing the open space requirement to 15% from 30%. Later on (see below) we eliminated parking minimums for all AHO projects; this does not mean they won’t have any parking, just that parking would not be required except as necessary for disabled, delivery and drop-off and pick-up spaces.

(ii) The AHO Project includes the preservation and protection of an existing building included on the State Register of Historic Places [and the site cannot accommodate 30% open space.]

Councillor Zondervan’s suggested amendment failed, with the mayor’s bloc (less AM who was out of the room) voting against it. The fact is, the AHO does very little to incentivize or to ensure the protection of historically significant properties, the vast majority of which are not listed on the State Register, which does not cover neighborhood conservation districts. The Historical Commission would still have jurisdiction over its districts and the ability to impose the demolition delay ordinance (currently only six months but there is a petition to extend it to a year) and to initiate landmark studies (though it is the Council that ultimately votes on whether to landmark a property).

(c) [At least half] All of the required open space at grade level shall meet the definition of Permeable Open Space as set forth in this Zoning Ordinance. 

We voted 8-1 to approve Councillor Zondervan’s amendment to require all of the open space be permeable, which is defined as: “A kind of Green Area Open Space…in which the surface material must be permeable but which surface material is not limited or restricted as to type. That surface material may include vegetation; rocks, pebbles, wood chips and similar landscaping materials; or unit pavers. All other materials (for example, continuously poured asphalt or concrete) are not allowed except that any material may be used for pedestrian walkways not exceeding forty-eight (48) inches in width or half the width of the area in which they are located, whichever amount is less.”

  1. d) All of the required open space shall be located at Grade or on porches and decks that are no higher than the floor elevation of the lowest Story Above Grade. Open space may be located at higher levels, such as balconies and decks, [but shall not count toward meeting the required Private Open Space for the purpose of this Affordable Housing Overlay.]  

(i) Shared above grade spaces, such as roof decks or balconies accessible to all tenants may count towards not more than 25% the percentage of required private open space.

Originally the mayor’s block had wanted to allow all shared space on a roof deck or balcony to count toward the 30% open space requirement, which I and others opposed. CDD suggested a compromise that the amount be no more than 25% (so 75% of open space still has to be at ground level). Requiring ground level open space is critical for landscaping and trees and is more in keeping with surrounding residential areas with yards. Roof decks would need to have railings and even stairway penthouses, features that could increase the effective height of an AHO. Also roof space can be used for solar panels.

Changes to Parking and Bicycle Parking (Section 11.207.6):

(a) Off-street parking shall be required [at a minimum ratio of 0.4 space] per AHO Dwelling Unit, except as further modified below. 

(b) Off-street parking shall not be required for an AHO Project except to ensure compliance with the ADA. In addition to providing ADA compliant parking, sufficient parking and driveway infrastructure shall be included to accommodate pick-up and drop-off activities by motor vehicle, as well as short-term parking and loading zones for moving vans and delivery trucks [on a lot that is located, in whole or in part, within one half-mile of a public rapid transit station or within one quarter-mile of a bus stop with a scheduled peak hour frequency of at least six buses per hour during 7:00 to 9:00 AM and 4:00 to 6:30 PM on weekdays.] 

As mentioned above, there will be no parking minimums for AHO projects, but undoubtedly many will still have parking. This gives the developers the flexibility to peg the amount of parking both to the context (proximity to transit) and to any special needs of the expected residents.

(c) Notwithstanding Paragraph 6.44.1(a), on-grade open parking spaces may be located within 10 feet but not less than 5 feet from a building wall on the same lot at the basement or first story but not less than 7.5 feet from an adjacent lot without requiring a special permit, provided that such parking spaces are screened from buildings on abutting lots by year-round visual screening [fence or dense plantings.] 

(d) Notwithstanding Paragraph 6.44.1(b), on-grade open parking spaces and driveways may be located within 5 feet of a side or rear property line or within 7.5 feet of an abutting residential structure without requiring a special permit, provided that screening is provided in the form of year-round visual screening [a fence or dense plantings] at the property line, unless such screening is waived by mutual written agreement of the owner of the lot and the owner of the abutting lot.

We approved my amendments to add more space and privacy screening for abutters next to parking areas or driveways. My suggestion for “evergreen” trees was replaced with “year-round visual screening,” which I suppose could include evergreen trees as well as fencing.

6.5 Transportation Demand Management 

(a) Offering either a free annual membership in a Public Bicycle Sharing Service, at the highest available tier where applicable, or a 50% discounted MBTA combined subway and bus pass for three months or pass of equivalent value, to up to two individuals in each household upon initial occupancy of a unit.  

My proposed amendment to offer this benefit longer than three months was debated and referred back to CDD for more consideration. One question was whether a transit benefit would count as income that could affect the eligibility of residents for AHO units. Since we have eliminated the parking requirement, which saves developers money on building parking and potentially allows more units on the lot, I think they could be asked to subsidize non-auto transit at a greater level. We should do everything possible to incentivize AHO residents not to own cars that they will have to park on the street, and this applies to site selection as well.

Changes to Site Selection (Section 11.207.7)

Due to the above regulations, each site will offer different opportunities and constraints for the affordable housing developer as well as impacts on the abutting neighbors. The priority of site selection shall be organized by the degree that the selected location enhances affordable housing renters’ mobility, social interaction, and retail/services access, as well as generates a greater number of units. Therefore, Priority 1 locations are in or immediately adjacent to city squares and smaller neighborhood retail/service districts (BA, BA-1, BA-2). Priority 2 sites are those that the city already controls or owns (empty lots, parking lots, storage areas, etc.). The next three priorities are Carlone Edits 07.25: AHO As Referred by Housing Committee on April 25, 2019 Page 10 of 17 in lower density neighborhoods: Priority 3 is on major streets and avenues, especially those with mass transit access; Priority 4 are corner locations (traditional locations for most apartment buildings in residential neighborhoods); and Priority 5 are residential properties that are not on corners. 

Councillor Carlone sought to create a priority system to guide site selection and it was voted down 8-0-1. (I voted present because while I think site selection is important, the wording could have been improved, but we didn’t even try to edit it.) This amendment came at the end of our seven-hour hearing, when people were tired, and the debate got emotional and devolved into criticism that trying to apply the basic standards of sound urban planning to site selection is “classist” and perpetuates exclusionary zoning. In particular the suggestion to locate AHO developments near “neighborhood retail/services districts” drew criticism, with DS asserting that every neighborhood is near services since we are such a small city geographically (in that case then isn’t every neighborhood also near some of our existing affordable housing stock?). A major sticking point is whether the AHO’s overarching goal is to create more affordable housing in places where residents will be closest to transit and commercial amenities, or whether the goal is to redistribute affordable housing to further an elusive ideal of geographic equity. One is more pragmatic, the other is more political.

(c) Characteristics of street – Since each potential AHO site and its surrounding context is different from street to street; an analysis of both the common and diverse characteristics of each site’s street architectural and urban qualities is required prior to the design phase. If a particular street has a diverse collection of building types, and setbacks, heights, density, etc. vary significantly, a new AHO building will more easily fit in. However, if the street has fairly consistent, architectural and urban design characteristics, a new AHO project shall incorporate as many of those qualities as possible into its design.

This also was Councillor Carlone’s suggestion, which was moved into the non-binding guidelines that are not part of the zoning itself and hence are solely at the developer’s discretion to consider, or not. Staff felt that the criteria would be too subjective for the yes/no checklist the Inspectional Services Department uses to determine whether a project meets the zoning’s requirements. This debate likely will be replayed when we reconvene because among Councillor Carlone’s later proposed amendments is a requirement that a contextual design statement be submitted with each AHO application and a very long list of Design Consultation Objectives that include an analysis of how an AHO fits the character of the street.

When we reconvene on August 13th we will take up many more proposed amendments including ones that require AHO projects to be Net Zero Ready and subject to Tree Protection Ordinance, and others that require annual progress reports to be presented publicly to both the Planning Board and the Council, that AHO developers submit a financial pro-forma and their profits be capped at what is allowed under 40B, and that add a sunset provision once 1,000 affordable units are created. These may be vigorously contested as placing too great a burden on affordable developers when the goal of many AHO supporters to place as few constraints as possible on them.

My Conclusion: Allowing the petition to expire rather than voting it down would not prevent it from being reworked and reintroduced and would allow some time to broaden awareness and build consensus in the community on the best approach. It also could forestall lawsuits that would divide and distract us when we need to be coming together to face down the looming existential challenge of climate change and stand up to a federal administration that is widening income inequality and stoking social unrest.

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    Jan Devereux
    City Councillor
    Cambridge, MA