Cambridge Civic Journal Forum

The Misdirection of One Way Zoning – Just One Slippery Item on the Dec 17, 2018 Cambridge City Council Agenda

Lately I find myself wondering if some of my local elected officials are either intentionally devious or just terminally dense. Zoning seems to bring on this wonder more than anything else. Three cases in point: (a) zoning for a cannabis future; (b) the so-called "affordable housing overlay", and (c) a late City Council order from last week (Charter Right invoked) supporting a state proposal to change the standards for passage of zoning amendments relating to some aspects of housing.

The latest stash of cannabis zoning changes is up for ordination this Monday. There has been a certain inevitability to this ever since Massachusetts voters legalized the sale of marijuana for recreational use. This is really about who can make lots of money from this newly legalized trade (and perhaps making sure that it’s not just the usual suspects), but each city and town has to give the OK and can decide if and where this can take place. This makes it a zoning matter. I suppose much of what the Council has proposed seems reasonable though I do fear an Acapulco Gold Rush. I have some concerns about the expansion of this trade into some of the lower scale mixed residential/commercial zones in Cambridge that might well be characterized as "mom ‘n pop" business zones, e.g. the BA-1 zones. I live in such a zone. Over the years it has hosted such businesses as a barber shop, a china-mending shop, second hand stores, a small grocery, a bike repair shop, a florist, a "spa" corner store, a coffee shop, a few small Montessori schools and a day care. A proposed amendment would allow cannabis sales in these zones – from "mom ‘n pop" to marijuana. I don’t really know any reason why this use should be added to such a district, but I did see that one councillor had knowledge that one pot dealer had designs on a location in a BA-1 zone and apparently that trumps all other considerations. I really hope they keep the pot shops in the larger scale business zones.

The "affordable housing overlay" proposal is not yet even in draft form as a zoning proposal but some councillors are already marking their calendars for all the necessary mileposts en route to ordination. The mayor even wove this into his "state of the city" address (or was it a 2019 campaign event?). It’s not yet clear whether the proposal has the necessary votes, but the public relations campaign is already well underway to slander all who might disagree. Opinion pieces have been written and all the world’s a twitter about how anyone who questions the specifics of the proposal is either a hopeless regressive (as opposed to a "true progressive") or worthy of one of several scarlet letters. One councillor has even created the false dichotomy that anyone who questions the proposal must be opposed to housing for nurses. By the way, Cambridge already has in excess of 7800 subsidized housing units (about 15% of all housing units) and the latest revision of the Inclusionary Zoning Ordinance should yield on the order of about 18% of new housing being subsidized in some form.

Perhaps my prime objection to this proposal is the outright dishonesty of the proponents. There may be near-unanimous support for the goal of affordability in housing, but it’s not at all clear that most people support socialized housing (takeover of an increasing fraction of the housing stock by government or by entities operating on behalf of government) or whether they understand that this will only benefit those seeking housing from the government and will do nothing to address affordability generally (and may even exacerbate it). What’s currently being proposed is a plan that would permit a developer of 100% subsidized housing to build to a density up to 4 times what anyone else could legally build along with a reduction or elimination in setbacks from the lot lines and other requirements. The argument given is that this is necessary in order that these preferred developers can compete economically, but the rather obvious truth is that this also gives them the ability to effectively take property out of private ownership and into quasi-public ownership pretty much at will. The only limitation is their allotted budget, and it seems likely that this budget will grow once this little zoning hurdle is cleared. Oh, and if you have any objections you may as well keep them to yourself because all of this would be as-of-right. Let’s add that every residential property that goes from private ownership into "social ownership" contributes considerably less in property taxes, so the tax burden will shift onto the remaining residential owners or must be mitigated by additional commercial development.

The latest twist is a Late Order from Councillor Simmons asking her colleagues to sign on in support of Mass. House Bill H.4075, Act to Promote Housing Choices, that would, among other things, reduce the threshold for some housing-related zoning proposals from a two-thirds super-majority (6 of 9) to a simple majority (5 of 9). [Note: This bill has been superseded by Bill H.4290.] The zoning proposals subject to this lower threshold would be things like smaller lot sizes, higher density and multi-family zones, accessory dwelling units, and reduced parking requirements – things we already have aplenty in Cambridge. The latest revision also lowers the bar for subsidized housing and housing near transit. Our House Socialist (Rep. Connolly) is apparently holding out for more guarantees that the maximum amount of any housing produced would be removed from private ownership.

Under existing state law if there is objection from owners of at least 20% of the land affected by any zoning proposal then a three-quarter super-duper-majority (7 of 9) is required. The proposed law would raise the bar to 50% land ownership to push the threshold from simple majority up to the current two-thirds majority. One interesting twist is that a simple majority would be required to permit some of these housing options but a two-thirds majority would be required to reverse it, i.e. one-way zoning. The fact is that almost every zoning proposal in Cambridge over the last two decades that had any merit managed to pass with a super-duper majority and often with unanimous support even with the two-thirds requirement. So why the insistence that the threshold be lowered? My sense is that this House bill is targeting our suburban neighbors and their preclusionary zoning. However, my strong sense is that these towns may well maintain majorities to preclude any increased density or multi-family housing and once again the lion’s share of the burden of producing increasingly dense housing will occur in places like Cambridge, Somerville, and Boston, i.e. the opposite of what is intended in the legislation.

In fairness, it should be noted that the two-thirds super-majority requirement is not generally the standard elsewhere. My read of history is that the super-majority standard derives from the understanding that zoning is a form of police authority that affects property rights and this is at least in part intertwined with notions of constitutional rights – hence the higher standard. A better approach would be for the State Legislature to simply place limitations on what can be regulated by zoning. For example, they could start by not allowing absurdly large lot size requirements that prevent reasonable subdivisions. They should also require that all cities and towns permit some degree of multi-family housing and accessory dwelling units. If I were king I would also insist that there be at least one significant zone for apartment buildings in every city and town in Massachusetts. The singular focus on subsidized housing is shortsighted to say the least.

OK, now that I’ve said what I had to say, what’s on the agenda?

Charter Right #1. Airplane Noise Reduction Update on noise and vibrations from a concentration of low-flying airplanes originating at runway 33L at Logan Airport continue to disturb many residents.

I offer no opinion on this. I also grew up not far from LaGuardia Airport in NYC and acclimated to low-flying planes.

UPDATE: Councillor Kelley and Vice Mayor Devereux submitted competing substitute Orders and the matter was TABLED (MM).

Charter Right #2. City Council support of Bill H.4075, Act to Promote Housing Choices, which would allow municipalities across the Commonwealth to change some zoning rules via a simple majority vote. [Note: This bill has been superseded by Bill H.4290.] [Comparison of original (H.4075) and latest revised (H.4290) versions of Housing Choice Initiative]

See above.

UPDATE: After an extended discussion, this Order failed on a 4-4-1 vote.(AM,DS,TT,MM-YES; DC,CK,SS,QZ-NO; JD-ABS)

Unfinished Business #7. A communication transmitted from Louis A. DePasquale, City Manager, relative to a draft zoning petition concerning the regulation of cannabis establishments in the City of Cambridge in response to Awaiting Report Item Number 18-75.

Also see above.

UPDATE: The Cannabis Zoning was Ordained as Amended on a 7-1-1 vote (TT-NO; JD-ABS).
[Initial Petition Map] [Text as Ordained]

Order #1. That the City Manager confer with appropriate departments to advance the timetable for updating the Zoning Code’s Table of Uses and determine a frequency at which they can be regularly reviewed and updated.   Councillor Mallon, Councillor Simmons, Councillor Siddiqui

Sometimes I wonder if CDD operates on a geological time scale. This has been on the back burner for years.

Order #2. That the City Manager is requested to confer with City staff, including the City Electrician and the Director of the Commission for Persons with Disabilities, to determine if there is a safe and effective way for people to bring power to the curb and cross City sidewalks, to include running power cords under the sidewalk, to charge electric vehicles and, if so, how the City might best go about appropriately permitting and monitoring such activity.   Councillor Kelley, Vice Mayor Devereux, Councillor Carlone, Councillor Zondervan

I’m sure there will be some creative solutions to this in the future, but I doubt that running heavy duty extension cords under the sidewalk will be among those solutions.

Order #4. That the City Manager is requested to confer with the Assessor’s Office on the topic of requiring that a business entity’s beneficial ownership be disclosed in all Cambridge real estate transactions.   Councillor Siddiqui, Mayor McGovern, Councillor Carlone, Councillor Zondervan

I doubt whether this is legal barring any discovery requirements triggered by something illegal. That said, I would love to know who’s behind all those mysterious LLCs. Other than curiosity, however, what exactly is the public’s interest in this information?

Committee Report #2. A communication was received from Paula Crane, Deputy City Clerk, transmitting a report from Councillor Quinton Zondervan, Co-Chair and Councillor Dennis J. Carlone Co-Chair of the Neighborhood and Long Term Planning, Public Facilities, Arts and Celebration Committee, for a public hearing held on Oct 23, 2018 to discuss the status of the Harvard Square Kiosk.

Central Square should get a kiosk. Maybe then we can also get a 122-page report on what to do with it. – Robert Winters

UPDATE: City Clerk Donna Lopez informed the City Council that she will be retiring in May 2019.

Percentage of Subsidized Housing Units (not including group quarters) – September 2017
(source)

Note: It must be pointed out that the figures above only show subsidized units. In many cities and towns there are many "naturally occurring" affordable units, i.e. apartments that simply have affordable rents. In addition, some tenants live in unregulated apartments but pay reduced rent due to such mechanisms as Section 8 vouchers. The figures above should therefore be understood only as a baseline.