Updated. Lots of people have reached out after my post last week, “Upzoning” in Newton: A tool to turn over the city from one class of people to another? In addition to reading comments by various city councilors on the Newton rezoning process, someone also shared with me a letter to the Newton City Council Planning and Zoning Committee. The letter was written by a group of architects who were originally recruited by the mayor, the city’s planning department, and some city councilors to help review the rezoning proposals and add their professional opinions and recommendations.

It appears rezoning in Newton has been severely undermined. I am going to post the public document in its entirety, as the committee chair has yet to post the PDF on the official city website (even if it were available, it would be hard to read, especially on mobile devices – a chronic problem for most official city documentation, incidentally). The letter is long, but I have bolded some parts which I believe are particularly important, and encourage people to leave comments at the bottom of this page:

September 30 2020

Members of the Newton City Council Planning and Zoning Committee:

Over the past several months, many of us have been providing assistance to the Planning Department with analysis of the impact of its proposed rezoning plan. We have been encouraged to provide this assistance by planning department staff, many city councilors and the Mayor in recognition of the detailed knowledge and expertise we bring to evaluating the effects of zoning on housing development from design, construction cost and home owner perspectives. As architects, builders and residents of Newton, we are committed to help maintain the quality of life in our city as zoning is being reconsidered. Despite challenges to our businesses and personal lives caused by the pandemic, we have provided significant time and effort to analyze both the macro effects of the rezoning plan as well as its impact on homeowners by applying the proposed rezoning to numerous renovation and new construction projects which we have worked on for Newton residents over the past several years.

During numerous online meetings, we have presented detailed analysis of built projects to planning staff and we have shown that the vast majority of these projects would not be permissible under the current rezoning proposal. The projects we analyzed reflect a diverse range of improvements and building programs which are typical across the City. Specifically, we have presented projects that reflect renovation and additions undertaken by homeowners as well as projects that involve restoration of historic properties. In addition to the analysis of specific projects, we have also provided many examples where the proposed zoning would on a broad scale increase the number of homes that would not conform to the new dimensional requirements. Despite our efforts to help inform decisions regarding the impact of the proposed zoning, we have seen no evidence that our work is being considered. In fact, changes to the proposal that have been made over the past few months have ignored issues demonstrated by our project analysis and have instead made some elements of the plan more prescriptive and restrictive. In view of the Planning Department’s failure over several months to meaningfully answer questions and concerns, respond to evidence provided by numerous building professionals or provide its own probative analysis, we reluctantly have concluded that the proponents of rezoning have no intention of considering facts and evidence of the potentially broad, negative impact that this plan could have on homeowners, the aesthetic character of the city and potentially on property values. In short we feel our time and expertise is being wasted. 

Many of us have been concerned about this process from the outset given that no detailed analysis was undertaken to identify specific issues with current zoning so that the new “form based“ approach could be properly evaluated. Form-based zoning imposes a highly prescriptive approach to housing design and has been adopted predominantly in dense urban communities like Somerville. It is clearly ill suited to communities like Newton with a very diverse housing stock and varied lot sizes. Given the drive to force fit form-based zoning to the actual built environment, the Planning Department is now calling it a “hybrid” of form based zoning. Nonetheless, we made a genuine effort to improve on the original proposal rather than reject it summarily given the many problems that were obvious from its inception. The problems with the metrics of the rezoning proposal are only exacerbated by the most recent change that would allow multi family development by right across the city. Combined with the elimination of minimum lot sizes and allowing some additions in setbacks by right, the lack of restrictions on multi-family seems to effectively “unzone” the city, rather than reduce non conformity, make development more predictable, or retain the character of neighborhoods. The Zoning and Planning Committee’s “3rd straw vote goal” approved at its April 27, 2020 meeting was as follows: “Context: Preserve and protect what we like in our neighborhoods. Encourage new development to fit in the context of our neighborhoods and villages.” The current plan clearly conflicts in many important ways with the objectives the Committee adopted just a few months ago.

With this background in mind, these are our primary concerns with the current proposal:

• We have examined numerous built and proposed projects and find these new proposed controls are significantly more restrictive and more complex than current controls. New side and rear yard setbacks will create more non-conformity in existing structures. For example, the side yard requirements imposed by the new R1 zone for much of Waban results in most homes being non-conforming. The new lot coverage definition that now includes driveways compounds the problems. The resulting non conformity will severely restrict and discourage homeowners across the city from improving their homes with additions that reflect contemporary living requirements and market expectations to retain property value. Such projects also facilitate improved energy conservation as well.
• The proposal to remedy increased non-conforming conditions by allowing certain additions by right in the new more restrictive setbacks would likely be struck down in the courts and defies the most basic purpose of zoning in the first place. Shouldn’t property owners at least be able to expect that there will be no construction allowed in setbacks, at least not without a variance?
• The elimination of FAR in favor of foot print restrictions is another significant issue. The footprint restrictions are based on the median of what currently exists in contrived neighborhood zones based on the pattern book prepared by Sasaki. The problem with this methodology is that over 90% of homes in Newton were built before 1960 which means that this most critical standard of footprint limits is based on characteristics of housing built over the last hundred years, not current and future housing requirements. In many the data used reflects homes [text missing]
• The removal of minimum lot size is an enormous and unnecessary paradigm shift that promotes more vertical than horizontal homes. As is the case with all the dramatic changes in this plan, no study has been presented which evaluates the impact of such a significant change to land use in the city. If we want a mechanism to allow existing non conforming lots to be buildable, we can simply add a provision to our existing code with whatever stipulations we find appropriate and subject the approval to issuance of a special permit.
• Minimum lot frontage has also been significantly reduced. Combined with the removal of minimum lot size, this one change could allow certain neighborhoods in our city to be significantly transformed. If this is adopted, developers as of right could more easily take down a house on a larger property, subdivide that land, and put up two houses on lots that do not meet current requirements. In fact, subdivision of existing lots should not be the primary concern. The incentives under lower frontage requirements without lot size minimums to assemble adjacent conforming and non-conforming lots to create two legal lots will certainly spur property speculation and encourage more demolition of homes, a central problem that rezoning was supposed to address. 
• One of the late additions to this proposal was the global change to eliminate single family zones. As proposed, existing homes could be subdivided into up to six units by right. This would certainly affect density, green space, and parking issues. It could also create new infrastructure demands on schools, streets and sanitation. If there is a desire to increase housing options through such a change, its adoption should require extensive community discussion, and an independent review of legal issues and its and economic impact. We also believe that abutters should be able to weigh in on multi family conversions by requiring a special permit when such conversions are proposed . 

We believe that based on the evidence we and others have presented, the proposed zoning plan disregards many of the original goals of the City Council for updating the city’s zoning code. As the proposal has evolved, it has become increasingly clear that it is being driven by ideology and not an evidence-based approach to updating and improving the city’s land use policies. The lack of objective quantitative analysis of issues with current zoning by the Planning Department is unacceptable in a city which touts its high standards for transparency and professionalism. 

Moreover, to advance such dramatic changes to our neighborhoods at a time when the public cannot effectively participate because of the pandemic is divisive, cynical and unnecessary. Is this what we envisioned for a process toward improved zoning? There are simply too many changes in this proposal that are so diametrically opposed to the controls currently in place. Does such unstudied dramatic change to land use make sense now? 

We believe that strategically-targeted incremental modifications to the Zoning Code would be a much more effective way to improve and rectify problems on the ground. Changing all the controls will create chaos, driven by conflicting policy objectives and too many unforeseen consequences. Conversely, if we improve the current code based on clear objectives and analysis, the results are likely to be far better. We can modify the Code to strategically improve what is on the ground with modest modifications that help preserve neighborhoods and can allow for reasonable and controlled growth. 

We hereby request an opportunity to present our analysis and conclusions at a ZAP meeting as soon as it can be scheduled. Such a presentation will allow a more detailed and dynamic discussion of the many substantive concerns that have been raised by us and many other residents with the proposed rezoning. We encourage other professionals who may be working privately with members of the Committee to make their views public and participate.

Thank you for your consideration.

Respectfully,

Steven Garfinkle

Peter Sachs, Architect

Marc Hershman, Architect

Robert Fizek, Architect

Stephan Hamilton, Architect

Schuyler Larrabee, Architect

William Roesner, Architect

About one week after this group sent the letter, three city councilors (Marc Laredo, Lisle Baker and Pamela Wright) sent a memo to Deborah Crossley (the committee chair) and cc’ing the mayor, senior city planners, and the city solicitor. It requests the following:

1. The Zoning and Planning Committee should hear dissenting views directly from a group of local architects who recently wrote that they have been excluded from the group advising the Planning Department about its zoning proposals;

2. The Zoning and Planning Committee should be advised by the Law Department how homes which might become nonconforming under the proposed new zoning can be protected or find relief if changes need to be made;

3. The Zoning and Planning Committee should have an opportunity to discuss the current Planning Department proposals, including whether alternatives involving our current zoning code should be considered.

More details are in the memo, which is available on the city website (in PDF form). But one section of the memo from the three councilors stood out (emphasis mine):

As an institutional matter, we remain troubled by the manner in which this entire process is proceeding. While we appreciate the expertise that the Planning Department brings to this effort, it is the City Council, and not the Planning Department, that needs to debate the merits of any proposal and decide how to proceed. Instead, we have had repeated presentations by staff with questions that they want answered in order for them to work on their proposals.

The decision whether to continue to use Floor Area Ratio (FAR) as a check on oversized residential construction is a good example. While the Department offered a brief written response about FAR in the attachment A to its last memorandum dated September 25, the Committee itself has not had a chance to discuss whether to discard this tool that originated from a prior Planning Department’s advice. If FAR it does not work well presently, are there ways to modify it so it can be improved? What are the experiences of other communities that use FAR? Have any other communities adopted FAR and then abandoned it? If so, why?

The same types of questions need to be asked of other elements discussed in the September 30 architects’ memorandum. These are key policy decisions that need to be made by the Council initially through the Committee, not by staff, with thoughtful deliberation after considering all points of view. Instead, what we appear to be doing is assuming the new framework is sound, and responding to questions about the details. This strikes us as backwards, especially since the original idea of fixing some specific issues such as oversized construction and front-facing garages has been superseded by this grand redesign for Newton zoning that the Department, but not yet the Council itself, has endorsed.

In summary, policy about zoning ends and means should be explicitly decided by the Council, not implicitly by the Planning Department. A way to begin frame that decision is to provide the members of the Zoning and Planning Committee, on behalf of the Council, some time to discuss the current Planning Department proposals, including whether alternatives involving our current zoning code should be considered.

I alluded in my last post to some of the tactics used by developers to undermine local democracy in Newton, such as providing huge cash injections to “grassroots” groups that support high-density housing. The developers (Northland) won the vote as a result.

Another side of this trend is the tactics used by some of our own elected officials and the city planning department to steamroll opposition and discussion. A few years back, it was holding neighborhood feedback sessions (“Hello Washington Street“) in which the mayor, planning department officials, and highly paid consultants made a big show of listening to local residents in West Newton and Newtonville about the plans. After the sessions were over, they promptly turned around proceeded to ram through the high-density plan that they and big developers wanted all along.

Now we’re seeing a situation in which architects have been invited to participate in the discussion. Guess what: their well-articulated concerns have also been ignored. Does anyone see the pattern here?

What’s going on now should be setting off alarm bells across the city, in every neighborhood. “Upzoning” or “unzoning” (or whatever you want to call it) will primarily benefit developers, not residents. Any house that can be torn down, chopped up, and divided into overpriced multifamily units will be. The result: more luxury apartments, condos, and townhouses that are out of reach to all kinds of ordinary people, including:

• Seniors and disabled people living on fixed incomes
• Teachers, firefighters and other public workers
• Recent immigrants
• Young people who grew up in Newton trying to move back to their hometown
• Anyone earning the Massachusetts median income of ~$77,000 per year or less

Just as we’ve seen at Trio Newton (studio rentals starting at $2,600 per month) and 28 Austin Street (rents starting at $3,700/month for a 2-bedroom apartment), a sheen of affordable housing will be tacked on to these projects to give the appearance that officials are, as Councilor Jake Auchincloss once claimed in an election flyer, “holding developers’ feet to the fire.”

I’ll close with the same excerpt from The Newton Villages Alliance newsletter that I quoted last week:

The proposed overhaul of Newton’s zoning code for higher density will lead to a transformation of Newton to a much more expensive, congested, urban environment. In the process, well-financed property speculators will be the winners and existing residents the losers as investment capital pours into our community for the sole purpose of extracting as much profit as possible.

Comments are welcome below.

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