Cracking the Code: Updating Boston’s zoning to unleash the city’s potential

Printed from:

BOSTON – Bryan Glascock, Deputy Director for Regulatory Reform at the Boston Redevelopment Authority, has his work cut out for him. Appointed by Mayor Marty Walsh in 2014 to be Boston’s first zoning chief, Glascock’s job is to cull Boston’s 3,000-page zoning code and recommend to the Zoning Commission ways to simplify and streamline the city’s complicated, multi-layered regulations.

“Each neighborhood got addressed over time,” Glascock explained in an interview last month, and the result is a “patchwork of zoning” and outdated regulations that often make it difficult for small businesses to get started and for developers to provide adequate housing for a growing Boston.

One example of an “outdated” regulation? Up to a year and a half ago, art galleries were technically “forbidden use” in some neighborhoods.

Boston’s zoning code is “written in the language of the 1960’s, and goes back as far as the 1920’s in some places,” Glascock said. Because Boston’s newer regulations are layered over older code, inconsistencies and contradictory provisions can lead to confusion.

“We have to strip all of that down,” Glascock said. “When you’re painting a house, you can’t keep layering paint on top of paint; you’ve got to strip it down. That’s what we’ve been working on, making it more serviceable for residents.”

In Boston, owners that seek to develop or use their property in ways that don’t comply with the zoning code can appeal to Mayor-appointed zoning boards, which address requests on a case-by-case basis.

“Right now we send a lot of things to zonings boards. About half of the applications don’t meet zoning, but they almost always get approved by board. What we want as city is not reflected in zoning, and we want it to show what our values are,” Glascock explained.

Glascock has started by making the code more accessible. The BRA recently put Boston’s entire zoning code online, so residents and business owners can search code more conveniently.

Glascock and his team are also updating listing categories. Currently, there are 260 types of listed uses in the code, meaning 260 unique categories meant to cover all the listings possible for businesses, houses, and other buildings. There are factory and warehouse uses, retail and office uses, nursing or convalescent home uses, and ground level uses, among many others.

“They’re all very specific,” Glascock said.

“We can have 60 different kinds of listed leases that cover everything happening in the city pretty well, and are general enough to allow for new types of things to come along without being a big deal.”

This kind of specificity has historically hurt small businesses and start-ups, Glascock said. If someone is trying to open a yoga studio in a certain neighborhood, for example, that may be considered forbidden use, as there is often no specific listing for “yoga studios,” since yoga studios generally didn’t exist in Boston in the 1960s. Until recently, the business owner would need to obtain a conditional use permit that costs thousands of dollars and requires a process that can take over six months.

Economic development vs. community preservation

Although Boston’s zoning code dates back to the 1960s, zoning policy has been shaping American cities since New York adopted the first comprehensive zoning code in 1916, with other large cities following suit almost immediately. Prior to that time, land use was regulated by nuisance law, which regulates land use ex post facto, or after land has been used in ways citizens deem inappropriate. Zoning, on the other hand, regulates land use before any inappropriate use can occur.

Dartmouth College economics professor, William Fischel, attributes this change in policy to the release of Henry Ford’s cheap Model T, which made moving goods and people a lot easier, prompting businesses to move out into the suburbs. People living in these smaller towns didn’t like businesses setting up shop in their bucolic setting, and they abandoned nuisance law in favor of zoning.

But as layers upon layers of regulations have piled up in cities such as Boston, policy makers across the country have been forced to reconsider the goals of zoning and how best to strike a balance between economic development, on the one hand, and preserving neighborhoods and protecting property rights, on the other.

“The classical struggle is between existing homeowners — people who are there — and development-minded homeowners, people with a couple acres of farm land, or people active in the development industry who would like to build something,” Fischel explained in a phone interview last month.

“In the old days, they were evenly balanced, but now since home prices have gone up, homeowners are desperate to hold onto value and are afraid of anything that could reduce the value of their homes. So they zone for open space, and against apartment buildings, and it tends to be too much of a good thing.”

A housing crunch?

A recent article in the Washington Post noted that in some areas of Boston and outlying towns, home values have risen by over 40 percent since 2004. With this dramatic rise in value in a 12-year period, it is not surprising that homeowners want to preserve their investments and capitalize on the gain by passing strict zoning requirements. Since the ’90s, people have been moving to the Boston area in higher numbers. This, coupled with homeowners zealously protecting property values, has created what Fischel believes is an artificial market.

“The consensus among economists is [Massachusetts] is a lot more expensive than it has to be because of land use regulations. State-wide laws on regulation would help that, but the devil really is in the details on this,” Fischel said.

Recent studies have demonstrated how zoning can, intentionally or not, further inflame urban inequality, strengthening the case for a new kind of zoning. Fischel argues that this is happening in Boston, as well.

“People have become aware that this has happened through too much regulation, and it hurts poor and middle class people who can’t find a house in Boston. It makes communities overly elite, which is kind of unhealthy for the community and the area as a whole,” Fischel argued.

To deal with the issue, many housing activists advocate so-called inclusionary development policies, which require that developers provide a certain percentage of “affordable housing.”

Massachusetts already has a statewide inclusionary development law. Under the Massachusetts Comprehensive Permit Act, colloquially referred to as “40B” (a reference to the chapter of the state law books in which the Act is found), developers in municipalities that offer less than ten percent affordable housing have an exemption from local zoning ordinances, so long as they set aside 20-25 percent of all units in a new building for people who make below 80 percent of the median income for that area.

Boston’s own inclusionary development policy goes further. It dictates that approximately 13.4 percent of total units must be “affordable.” But Boston also offers a “cash-out” option, under which developers can opt out of building the affordable units, if they pay the city. The result? Since 2000, 98 units have been built for single people with an income below about $40,000 out of a total of 18,516 units, or .0005 percent, according to BRA data.

Some economists and zoning experts have critiqued some of the unintended consequences of 40B’s inclusionary development policy.

“There is a very strong tendency to pull up the gang plank and down-zone things once they reach their 40B quota,” Professor Fischel, said.

Others oppose 40B altogether, arguing that it usurps local control and allows developers to disrupt community preservation efforts in order to build financially profitable buildings. They argue that each town should be free to determine for itself what percentage of “affordable” units to provide and to create their own inclusionary zoning policies consistent with local needs.

A proposal on Beacon Hill

Massachusetts lawmakers are currently considering a bill that seeks to implement a uniform zoning law for the entire state, excluding Boston. The measure would update zoning law to address competing needs for land preservation and housing development. Boston is exempt from the bill because it faces specific urban zoning issues, and already has the resources and budget to handle its zoning needs, according to the bill’s sponsor, Senator Dan Wolf (D-Hyannis).

Under this bill, the current legislation for inclusionary development, 40B, would remain intact.

“This bill allows communities to streamline approvals for permitting, which will allow developers to have more predictability in the process,” Senator Wolf said in an interview, referring to a common complaint among developers that the development process in the Commonwealth is highly unpredictable due to the various committees that must approve development projects.

One goal of the bill is “creating density that can be served by infrastructure,” Wolf said.

“The bill will encourage communities to preserve urban space and reduce suburban sprawl…it encourages things like cluster development, development in higher density areas,” Wolf said. This would allow for increased housing development, while still preserving open space.

Proponents of the bill, which has passed the Massachusetts House and is expected to be debated on the Senate floor in the near future, argue that the state needs uniform ground rules so that professional planners can develop timely, intelligent, and cost-effect building projects.

Opponents say that a “one-size-fits-all” approach will strip local authorities of their power to determine what gets built where, with potentially disastrous results.

Wolf said this shouldn’t be a cause for concern.

“One of the goals of the bill is to give communities the authority and autonomy to make decisions for themselves. They can set their own bylaws. The state doesn’t control everything; we’re trying to give more tools to communities.”

As Massachusetts and Boston both continue to experience net population gains, adequate physical space for businesses and housing is critical, according to Metro Area Planning Council Executive Director Marc Draisen.

“I know that zoning is not usually seen as one of the most fascinating or interesting public policy issues with which you might deal,” Draisen told the Municipalities and Regional Government Committee in a meeting last fall, “but, literally, these are the rules of the game. In terms of developing physical space, it decides what we build, where we build, how much we build, what we save, how many people we house, how many jobs we create, where we concentrate those jobs and homes.”

For his part, Glascock believes that zoning regulation should be limited. “We don’t need zoning code to have such a tight stranglehold. Let the marketplace sort out what’s a good restaurant and what’s not a good restaurant.”

The purpose of zoning code, he said, should be “to make it easier for things to be built.” Good zoning laws, he said, should “make things possible.”

Contact Lizzie Short at [email protected].