New and Future Changes to the Boston Zoning Code and the Boston Planning and Development Agency

Michel L. Wigney

The Boston Zoning Code (“Code”) is nearly 4,000 pages long, includes 429 separate zoning districts, and has been amended over

the decades by adopting “articles” that are generally tacked onto the Code as a whole, rather than revising specific sections within the Code itself. With such a system, it is perhaps not a surprise that 42% of parcels within the City of Boston are deemed “nonconforming” regarding lot-size requirements, to say nothing of nonconformities with respect to other criteria, the proliferation of variances, and the availability of waivers from the Zoning Board of Appeal.

To describe the Code as “unwieldy” is an understatement. As a result, the Boston Planning & Development Agency (“BPDA”), the agency charged with administering, applying, and enforcing zoning within the city, commissioned a comprehensive assessment of the current Code, including recommendations for improvements and reforms (“Report”). The Report was released by the City in September. It is authored by Cornell University professor Sara C. Bronin, who is also the Director of the National Zoning Atlas.

Bronin’s critiques of the current Code are significant and comprise approximately half of the Report. The complexity of the current version of the Code can at least, in part, be attributed to the fact that fifteen of Boston’s twenty-six neighborhoods were once separate towns, or neighborhoods of separate towns. Regardless of the reason for the Code’s current complexity, the Report makes a series of recommendations for improvement that are likely more relevant to Boston’s residents and professionals because the BPDA has commenced partial implementation.

The Report includes two overarching recommendations and a number of more specific suggestions that fall within two main categories. The two primary changes recommended to be made in an updated version of the Code, according to the Report, are:

·       Boston needs to dispense with neighborhood-specific zoning and planning in favor of a City-wide vision.

 

·       The Code must be shortened and simplified to streamline, clarify, and equalize development and redevelopment requirements and processes.

The Report notes that “in 2017, the city adopted its first citywide plan in 50 years, Imagine Boston 2030” but that it seems to have gained very little traction and been given little “regulatory heft,” which may be indicative of the city’s ambivalence to comprehensive planning generally. Report, pp. 19-20.

In addition to these two broad measures, the Report details more targeted actions, which it asserts will have a significant impact on Boston zoning and promote the city’s goals. These include:

·       Synthesizing the Neighborhood Plans that have been the mainstay of city planning into a single, cohesive planning document for the entire City.

·       Limiting the Code to 500 pages.

·       Capping the number of zoning districts within the city at 50.

·       Adopting “Form-Based Zoning” that focuses on building design, shape, scale, spacing, orientation on the lot, and similar features, with the use-based regulations of traditional zoning being incorporated but not predominating.

·       Facilitating housing development – especially multi-family housing – by establishing as-of-right pathways for housing principal uses, enabling dense housing around squares and transit hubs, and legalizing accessory dwelling units.

·       Accelerating economic growth by increasing zoning areas for small businesses, promoting mixed-use developments within hubs and corridors, and allowing more diverse uses within industrial zones (while maintaining the industrial uses themselves).

·       Accounting for climate change by increasing tree plantings and green roofs to address extreme heat, reducing greenhouse gas emissions via dense development around transit hubs, considering a moratorium on development in areas deemed at severe risk from sea-level rise, and reducing vehicle reliance by eliminating minimum parking requirements.

Implementation of these suggestions would constitute a dramatic shift in the current paradigm. The varied and numerous critics of the current Code, including Boston Mayor Michelle Wu, might say that this is not necessarily a bad thing. The benefits, according to the Report, would be numerous. The Code would become more understandable, more accessible, require less time and fewer City resources for implementation, decrease barriers to entry, increase equity and diversity in development, increase conformity and compliance, and improve control while maintaining flexibility.

Some of these changes are already taking place.

The BPDA Planning Department – one of 13 different departments – now includes a Zoning Compliance team that will reduce exceptions to the Code by supporting “planning-led development”. The Planning Department has also renamed and restructured existing teams to create a Comprehensive Planning team, which will focus on long-term, citywide goals, and a Zoning Reform team, which will proactively amend and revise the Code.

These teams will be launching the BPDA’s next major initiative “Squares & Streets”, a program that will analyze specific hubs and corridors within the City and develop Small Area Plans specific and personalized to each area. This appears to be an effort to incorporate the Report’s recommendations that dense housing and mixed-use developments be constructed in existing popular or high-traffic areas with access to public and/or rapid transit to address housing needs and decrease vehicle reliance. The BPDA has hosted, or is planning to host, Squares & Streets pop-up events in Dorchester, South Boston, Mission Hill, Hyde Park, and Nubian Square.

The BPDA seems to be taking the findings of the Report to heart, though Chief of Planning Arthur Jemison notes that protecting “the ability for neighborhoods to maintain their unique character” will remain a consideration.

The changes so far begin to incorporate the actions suggested in the Report, and the primary purpose, at this stage, appears to be to allow development of additional multi-family housing to address the severe housing need in the city. For many, this is a promising start. It will, however, take time for such an overhaul to be completed and, until that process is finished, the current regulations and procedures remain in effect.

Here is a link to the report, Reforming the Boston Zoning Code, by Sara C. Bronin https://www.bostonplans.org/getattachment/a4c0dc15-bad1-4e6c-83b1-59f216a86b48

An associate in the real estate, zoning and land use, and litigation departments of the Boston and Quincy based firm of Moriarty Bielan & Malloy LLC, Michel’s practice focuses primarily on real estate development and associated work such as permitting, environmental document review, zoning compliance, and conveyancing. She has represented a variety of clients, including individuals, small businesses, large-scale corporations, and federally recognized Indian tribes. Michelle’s email address is mwigney@mbmllc.com.