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).

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.

Comments?

Lotsa Ordainin' To Do - Dec 10, 2018 Cambridge City Council Agenda

The ordaining queue has been growing over the last few weeks - Surveillance Ordinance, Revised Street Performers Ordinance, Revised Fair Housing Ordinance, and the Mandatory Book-Burning Ordinance (OK, not really). Perhaps next year we'll also see the Don't Touch That Tree Ordinance, the Chicken Farming Ordinance and Handbook, and the Socialized Housing Ordinance. The business of municipal ordinances was always complicated - even in days of yore, i.e. Cambridge in 1899 (Revised Ordinances of 1892) which even contains a precursor to the zoning ordinance that would not be enacted for another quarter century. Here's a sampler of some of the ordinances of the day:

CHAPTER 37. SECT. 1. Any minor, between the ages of seven and fifteen years, convicted of being an habitual truant, or wandering about in the streets or public places of Cambridge, having no lawful occupation or business, not attending school, and growing up in ignorance, and such children as persistently violate the reasonable rules and regulations of the public schools, shall be committed to the Middlesex Truant School for a term not exceeding two years. The Middlesex County Truant School is the place provided for the confinement, discipline, and instruction of such children.

CHAPTER 38. SECT. 1. There shall be established in the city of Cambridge a workhouse for the employment and support of the following description of persons, that is to say, poor and indigent persons that are maintained by or receive alms from, the city; persons who, being able of body to work, and not having estate or means otherwise to maintain themselves, refuse or neglect to work; persons who live a dissolute, vagrant life, and exercise no ordinary calling or lawful business; and persons who spend their time and property in public houses, to the neglect of their proper business, or who, by otherwise misspending what they earn, to the impoverishment of themselves and their families, are likely to become chargeable to the city.

CHAPTER 45. SECT. 2. No person shall climb a tree in any street, or fasten or tie a horse or other animal to, or post a bill upon, any such tree, or allow any horse or other animal owned by him, or under his control to stand so near any such tree, that such tree may be gnawed or otherwise injured by such horse or other animal so allowed to stand, and no person shall place a sign upon or around any tree on any street of the city.

CHAPTER 45. SECT. 16. No person shall coast upon a sled on any street of this city without the written permission of the mayor; and without such written permission no person, in any public street or square of this city, shall ride a bicycle or tricycle at a rate of speed exceeding ten miles an hour, and only for the time, and upon such portions of the public ways, streets, or squares aforesaid as may be specified in said permit. Such reasonable conditions shall be attached to such permits as the mayor may deem proper, and in accord with the circumstances and for the occasion for which the permits may respectively be granted. Between the hours of eight o'clock in the morning and five o'clock in the afternoon, children under the age of fourteen years may use velocipedes on any sidewalk in any public way, street, or square of this city. In no part of any public grounds, commons, enclosures, and parks, now or that hereafter may be under the general charge of the park commissioners, shall children use a velocipede without the written permit of the park commissioners.

CHAPTER 45. SECT. 19. No person shall have in his possession a club or bludgeon, on any street, with intent to use the same in a sport, sham-fight or strife, or to intimidate any person or horse.

CHAPTER 45. SECT. 21. No person shall behave himself in a rude or disorderly manner, or use any indecent, profane or insulting language, in any street or public place.

CHAPTER 45. SECT. 35. No person, except by permission of the mayor, shall deliver a sermon, lecture, address, or discourse on any common or other public grounds.

CHAPTER 46. SECT. 1. No person in any public street of the city shall ring a bell or gong, between the hours of ten o'clock P.M., and six o'clock A.M., except as a warning of danger.

CHAPTER 48. SECT. 1. No child under sixteen years of age shall be, loiter or remain upon any street, highway, park or other public way or place in this city after the hour of half past nine o'clock in the afternoon of any day, unless accompanied by, or under the control or care of a parent, guardian or other adult person, or performing or returning from employment or from the performance of some duty, directed in writing by said parent, guardian or other adult person, and no such child, while performing such duty, or returning from the performance thereof, or from employment, shall loiter upon any such street, highway, park or other public way or place.

Back in the present (2018), here are a few items on the agenda that drew my attention this week:

Manager's Agenda #7. A communication transmitted from Louis A. DePasquale, City Manager, relative to the appointment of an Advisory Committee on Climate Resilience Zoning.

Unfinished Business #6. A communication transmitted from Louis A. DePasquale, City Manager, relative to Awaiting Report Item Number 18-85, regarding a report on the feasibility of appointing an advisory committee to work through resilience elements raised during the Envision process and through the Brown Petition.

The City Manager's original 25 appointees included four city councillors and a representative from the Mayor's Office. This led to concerns of possible Open Meeting Law violations unless the entire advisory committee was rethought as an ad-hoc City Council committee - but that would have diminished the role of all the other appointees. The new list of 20 appointees has zero councillors and nobody from the Mayor's Office, and one MIT appointee was reclassified from "Institutional/Non-Profit Representative" to "Business Representatives/Property Owners".

Charter Right #1. Legal Opinion on Portland's Relocation Assistance Ordinance.

Yes, it would require a Home Rule Petition. Needless to say, if the threshold for triggering this is a 10% rent increase (even if the rent was unchanged for years) I would expect a 9.5% rent increase every year to become commonplace.

Unfinished Business #4. A communication transmitted from Louis A. DePasquale, City Manager, relative to proposed revisions to the draft Surveillance Ordinance. QUESTION COMES ON PASSAGE TO BE ORDAINED ON OR AFTER DEC 10, 2018.

Unfinished Business #5. A communication transmitted from Louis A. DePasquale, City Manager, relative to the proposed amended Street Performers Ordinance. QUESTION COMES ON PASSAGE TO BE ORDAINED ON OR AFTER DEC 10, 2018.

Time for some ordainin'. Please be advised that street performers may not deliver a sermon, lecture, address, or discourse on any common or other public grounds except by permission of the mayor.

Order #1. Improving Pedestrian Safety.   Mayor McGovern, Vice Mayor Devereux, Councillor Zondervan

This Order is primarily a request for information on how various "traffic calming" treatments have been working. The current policy seems primarily to be to create as much congestion as physically possible so that traffic cannot move very quickly. This has the added goal of infuriating drivers to the point that they consider alternate modes of transportation.

Order #2. Tree on City Hall Lawn.   Vice Mayor Devereux, Councillor Zondervan

I would suggest having conversations with both Charlie Sullivan (Historical Commission) and former City Councillor Kathleen Born before moving on this. There used to be a perimeter hedge around City Hall as well as a couple of spruce trees straddling the main entry to City Hall. About 20 years ago the consensus was that it would be ideal to restore the appearance of City Hall to its late 19th Century magnificence. This led to the removal of the hedge and the trees - as well as the ivy that had crept over much of the building surface. An additional unanticipated benefit was that the front lawn of City Hall became a significant open space resource for Central Square and a popular place for sunbathers during the warm weather months. We all love trees but any choice to plant a significant tree in front of City Hall should be weighed against these other factors.

Order #4. City Budget and Council Goals.   Councillor Carlone, Councillor Zondervan, Councillor Siddiqui

While it's a good idea to have the budget presentation highlight how it reflects City Council goals and priorities (and let's be clear that the City Manager already does this every year), I would not want to see every City department have to justify every expenditure against that short list of Council priorities. If DPW needs to buy another packer truck or if the Fire Department needs to purchase another fire engine or hire additional firefighters, I would hope they would not need to justify this by proving how it will "implement equity policies for the people of Cambridge". Most of the City budget goes to maintaining operations, and the goals expressed by individual departments in the annual Budget Book usually highlight how they can best deliver their services. - Robert Winters

Comments?