April 9 Zoning & Planning Committee Meeting

Department of Planning and Development, City of Newton, MassachusettsWorking Session Memorandum
April 6, 2012

The full 26-page memorandum is available here in PDF form.  It includes "Attachment E"- revised language of the proposed zoning amendment.  But for a few minor changes, this will be what the Aldermen will be voting on at their April 17 meeting.

Following is an excerpt from the Planning Department's memo, including their responses to the public comments received.  You can jump directly to a specific section using the links below.

Executive Summary
Responses to Questions and Concerns

Direct Access
Access to Riverside Center (the existing, adjacent office complex)
Traffic Impacts
Parking
Project Size and Scale
Flexibility
Uses
Site and Design Standards
School Impacts
Water and Sewer
Chapter 40B Development Options

Other Proposed Text Changes
Recommendations

EXECUTIVE SUMMARY
The Riverside site is unique in many regards. It is bordered by a scenic road, the Charles River, Route 128, train tracks and an MBTA maintenance yard. Having been altered by the sand mine that once operated on the site, it is carved out of the banks adjacent to Grove Street and its irregular topography merits special consideration of site design features. The proximity of the MBTA Green Line, buses, and highway that serve the area provide a springboard for furthering a transit-oriented development, which can be further refined during the Land Use review process as walkways, bike paths, and transportation incentives are detailed. Its proximity to the Charles River and informal trails present opportunities for enjoyment of the area’s natural resources and for activities and points of interest for those who live, work and visit the site ~ a true community asset.

Since the start of the zoning amendment process in January 2012, City staff, members the Board of Aldermen and residents throughout the City have expressed their interest in creating the best possible mixed-use development at Riverside. As noted in the City’s Comprehensive Plan, and particularly its Mixed-Use and Economic Development Elements, this site is ideal for a variety of uses. Numerous conversations have ensured at Community Meetings, Committee meetings, and a public hearing that have articulated the various perspectives of those who have an interest in the City’s future as a whole and are most directly affected. While consensus has not been reached on all aspects of what should be included in a zoning text that enables the optimal development on this site, the current text aims to balance as many of the desires expressed as possible in order to create the greatest good for the greatest number of people.

The proposed hybrid zoning model includes both traditional dimensional standards and performance-based provisions that measure, limit and mitigate the impacts of a possible project on the Riverside site. It includes requirements for before- and after-studies of the impacts on the City’s infrastructure, as well as an analysis of the estimated fiscal impacts. The proposed text also includes caps on the square footage of the total development, as well as on specific categories of uses to create tangible standards with some flexibility around them to incentivize integration of uses on the site and allow for adaptability to market fluctuations.

After analyzing other mixed-use projects in Massachusetts and other states, considering the dimensional standards utilized in other City zoning districts, studying the demographics of various types of businesses, assessing the scale and attributes of our village centers, talking with numerous developers about their approaches, and most of all, listening to what the voices in the community have to say, the Planning Department recommends approval of the zoning text presented in #400-11 with the amendments noted in the attached revised draft. With regards to #400-11(2), staff recommends the Board take no action on this item, as direct access is considered infeasible at this time for failure to meet federal standards for interstate access. Should laws or conditions change, the zone could be amended to allow for it at a later date.

RESPONSES TO QUESTIONS AND CONCERNS

On March 22nd, the Zoning and Planning Committee and Planning and Development Board held a public hearing, followed by a working session on March 26th at which Planning staff responded to many of the questions that arose during the hearing. This report summarizes the major areas of concern.
 
Direct Access. Many members of the public advocated for direct access between northbound and southbound Route 128 and the Riverside development site, while others objected to the provisions of #400-11(2), which would allow a density bonus for providing this direct access, preferring instead that direct access be a requirement rather than an option.

Staff Response: Director of Transportation, Clint Schuckel summarized the direct access issue as follows:

1. Federal Highway Administration (FHWA) criteria #4 states that direct access to a private road is not allowed from an Interstate Highway such as Route 128 (Attachment A). The criteria must be met for the State to be eligible for federal funding for infrastructure improvements and are not negotiable.
2. In the unlikely event that an exemption for this and/or other regulations were granted, a ramp would have to be designed such that it would greatly impact the development site and the surrounding area. For instance, southbound access would require an overpass from the Riverside site over the northbound lanes. In order to construct a cloverleaf ramp that will connect to the southbound lanes, it is likely the roadway would encroach on existing homes in the Lower Falls area. This scenario would also move the highway closer to the remaining homes.
3. Direct access will not capture all of the traffic bound to and from the site. For example, people wishing to avoid paying tolls at the intersection of Routes 90 and 128 may exit the highways elsewhere and approach the site from Grove Street, regardless of whether direct access is provided. In this vein, a density bonus for providing direct access may actually increase traffic on Grove Street, since there is no way to ensure that all new traffic will arrive at the site via the highway.

In addition, FHWA criteria #1 (Attachment A) requires that it be shown there is no other viable option for providing the necessary access except by way of a new interchange. However, adding a second access point to the site along the Collector/Distributor Road, traffic bound for the site from the highway or from the Lower Falls neighborhood will be able access the site, while avoiding the section of Grove Street between Route 128 and the existing entrance to the site.

Mr. Schuckel also looked into access to the Liberty Mutual site nearby in Weston. He noted that there is direct access to/from Liberty Mutual via ramps at an existing interchange (I-95 and I-90); however, Liberty Mutual does not have its own interchange (Attachment B). The access currently proposed by the Riverside developer with a roadway that goes directly to the northbound I-95/Route 128 off ramp (existing ramp for exits 23, 24, and 25) is similar to the one that accesses Liberty Mutual. There is a clear difference between these configurations and private access to or from a new, dedicated interchange, which is not allowed by federal regulations.

Recommended Action: Based upon the Director of Transportation’s conclusion that a new interchange with direct access between Route 128 and the Riverside site is unattainable and/or undesirable, staff recommends that the Zoning and Planning Committee vote “no action necessary” (NAN) on Petition #400-11(2). Should circumstances change, the zoning text could be amended at a later date, provided that the developer reserves land now or otherwise provides for additional development in the future.
 
Access through the proposed site to/from the existing adjacent development, Riverside Center, 275 Grove Street. The special permit for approval of this complex states that a connection to the MBTA site from the Riverside Center should be made if direct access is provided from the highway across the MBTA site to Riverside Center (Attachment C). However, this cannot be done without the permission of the adjacent property owner, the MBTA, which has not agreed to do so (Attachment D). Thus, such a connection is not being provided at this time. The City’s Senior Conservation Planner has reviewed whether a roadway could be extended on DCR land to create such a connection and concluded that the conditions are unfavorable. DCR land is primarily on a slope adjacent to the river, subject to conservation restrictions, and within the 200-foot riverfront area. A portion of the area may also be within the 100-foot buffer to bank. In order to gain approval from the City’s Conservation Commission and other permitting agencies, significant mitigation would be needed and it is unclear where and whether such mitigation could be performed. In addition, as State-owned parkland, building a road on the site would likely require special state legislation.

Traffic Impacts. Traffic impacts on the surrounding area as a result of a new development at the Riverside site are a general concern.

Staff Response: The proposed text encourages mixed-use and transit-oriented development for the benefits of creating synergies among uses that enliven a place, as well as to capture efficiencies in terms of trip generation. For example, when more uses are provided on-site that meet the needs of those who live, work and visit the site, people will not be as likely to get in their cars to seek basic goods and services. A good variety of uses that meet the needs of those who drive to the site means that one can park once and visit more than one place, thus reducing single-trip excursions. The availability of public transit options also allows for site visits without cars. The proposed zoning text requires traffic impact analyses to be provided and independently reviewed, as well as a transportation demand management plan that will require quantifiable and measurable means of incentivizing use of transportation alternatives and reducing traffic. Finally, design of the project and off-site mitigations will influence traffic management. The zoning text requires monitoring after completion of each phase and after final build-out to assure conformance with accepted levels of traffic.

At the time of special permit/site plan review, the traffic studies required by the proposed zoning text also will provide the Land Use Committee and the Planning and Development Board with the essential information necessary to determine whether a proposed rezoning and special permit are appropriate and what conditions and/or limitations should be placed on that future development to assure circulation and traffic volumes are within accepted levels. The proposed zone requires that a traffic study be submitted with a special permit application for any project greater than 20,000 gross square feet. The purpose of this study is to provide information to the Land Use Committee regarding possible traffic impacts to the City roadways as a result of the project. The zone also includes a finding, section 30-24(i)(2), that the project must offer long-term benefits to the City such as improved access and enhancements to public transportation and improvements to parking, traffic and roadways. In addition, the zone requires post-construction studies to ensure that the expected goals in these areas are met.

Parking. Some argued there may be too much parking proposed for the site and that dedicated free parking for each use might encourage single-occupancy car trips and worsen traffic impacts; at the same time, others want to make sure there will be enough parking available to the public to deter overflow parking on neighborhood streets, especially on Red Sox game days.

Staff Response: Like traffic assessments, a parking analysis will be performed during the special permit process. The shared-parking analysis will look at what efficiencies can be created by the mix of uses (different combinations of uses have different traffic generation), but will also factor into the equation the impacts of parking during baseball season. Pricing of parking and availability of spaces to the general public will also be taken into account, as both affect parking behavior and utilization. This information will be used to establish parking standards during the special permit review process.

Project Size and Scale.While some believe that the project is too large, fearing its impacts will overwhelm the neighborhood, particularly with regards to traffic and school impacts, others argue that the development project anticipated may not be large enough to provide the financial means to afford beneficial improvements to infrastructure or to create enough activities to create a real sense of place.

Staff Response. Balancing the benefits of a development project (i.e., increased property tax revenue, potential new jobs, and a more attractive site) with the impacts such a project may have on the surrounding neighborhoods, is paramount. The size of a development is limited using three different, but complementary methods: (1) a cap on square footage, (2) dimensional standards, and (3) impact studies. The physical size of the project on the site, as limited in the proposed zone by hard caps on gross square footage, is in line with other transit-oriented developments in the region. The zone also limits the size of a development with conventional dimensional standards, such as FAR, setbacks, minimum open space, and building height. Finally, the proposed zone limits the size of a development through a measurement of its impacts on the City as a whole and in particular on the surrounding neighborhoods, including studies of the impacts of the project on the City’s infrastructure (roadways, water, sewer, and storm water systems). A fiscal impacts analysis must show that the project has net positive affect on the City’s finances. These studies will assist the Land Use Committee in its deliberations during the special permit process where conditions can be included to require impacts to be at or below specified levels. The zoning text also requires after-studies for traffic, water, sewer and storm water infrastructure. If the measured impacts in the after-studies fail to meet expected outcomes, further mitigation may be required until the initial goals are met. The purpose of these approaches is to assure the development causes no harm to the environs.

Flexibility.Balancing predictability with flexibility is one of the challenges of crafting a thoughtful zoning text. Predictability of outcomes is reassuring to both residents and developers, as it can define what can be built, what it will look like, and how it will function. Knowing what is possible allows developers to design a realistic project that can be financed if they know up front how much density will be allowed, what mix of uses is possible, as well as the process and submittals that will be required. Flexibility is also important. A development that cannot respond to market shifts runs the risk of failure. Flexibility in the zoning text also allows discretion at the special permit phase for creative designs that lower impacts and may offer benefits to both neighbors and the property owner. In general, limiting impacts while allowing flexibility as to how to meet those impact thresholds can be an effective, performance-driven approach.

Recommended Action: There is presently a cap of 580,000 square feet of gross floor area for all uses in three categories, excluding accessory parking: Categories A (225,000 square feet of office), Category B (20,000 square feet of retail), and Category C (335,000 square feet of residential not to exceed 290 units). To allow more flexibility and to encourage vertical integration within the site, planning staff recommends the following changes to the proposed zoning text:

1. Modify the requirement that all office uses be in one building to require the majority of the office space within one building, thereby allowing some office space to be located elsewhere on the site and encouraging some integration of uses.
2. Allow up to a 10% increase in the gross square footage permitted for all categories (A, B, and C) again, provided that the total square footage of the development does not exceed 580,000 square feet. This means, for example, if the gross floor area is increased in one category, the square footage elsewhere on the site must be reduced by the same number of square feet. This would allow for up to 247,500 square feet of office, 22,000 square feet of retail, and 268,500 square feet of residential (not to exceed 290 units), again within the 580,000 square foot cap. No specific minimum square footages are required, except that a Mixed-Use Development must contain at least one use from each of the three categories.
3. Retail uses (Category B) that are determined by the Commissioner of Inspectional Services to be accessory to another use on the site do not count toward the 20,000 square foot cap. This is intended to allow for goods and services that can meet the basic needs of those who live and work in the area so as to minimize the need for them to drive elsewhere for such things, thus reducing traffic.

Uses. Several questions were raised about the use table. For example, there was concern that the “uses similar to or accessory to” could provide a loophole to allow uses otherwise prohibited or allowed only by special permit. Also, inclusion of medical offices as a by-right use in Category A raised concerns based on its high-traffic-generating potential. One individual questioned whether research and development could lead to manufacturing as an accessory use. Another wondered whether the bike-sharing “Hubway” could be allowed.

Staff Response: The Table of Allowed Uses has been revised to address these points:

1. A phrase was added to clarify that the Commissioner of Inspectional Services is responsible for interpreting what uses are similar or accessory to other uses.
2. A new footnote(#2) states that any use similar to a use listed in Table A is subject to the same conditions as the use to which it is similar (i.e., by right or by special permit). An accessory use is only allowed if the use to which it is accessory is allowed.
3. Business incubators were added to the list of uses allowed by right.
4. Medical offices are now noted as allowed by special permit only.
5. Manufacturing has been added to the list of uses that are prohibited.
6. The table has been revised to read more easily, noting that retail sales, personal services, and eating and drinking establishments are allowed by right if less than 5,000 square feet in gross floor area per establishment, and require a special permit if greater than 5,000 square feet; this distinction is intended to encourage smaller retail stores, services, and restaurants for a local clientele and not a regional draw.
7. Bike rentals and electric car-charging stations were added as by-right uses that foster use of alternatives and reduce reliance on single-occupant vehicles.
8. Private non-accessory parking has been removed as a principal use, since it does not support the goals of a transit-oriented development.

Site and design standards. In particular, members of the public asked whether the proposed project provided adequate open space, should have more vertical integration of uses, or if the design truly qualifies as excellence in place-making, as recommended in the Mixed-Use Centers Element.

Staff Response: While the text does not establish design guidelines, it does require that the developers demonstrate that they are providing a “high quality architectural design and site planning so as to enhance the visual and civic quality of the site and the overall experience for residents of and visitors to both the Mixed-Use Development and its surroundings.” The features of the site including circulation patterns, design of open space, arrangement of building footprints, appearance of buildings, and other site design features will be considered by the Land Use Committee during review of the special permit/site plan and the developer must demonstrate efforts to create excellence in place-making. It also requires enhanced open space and a pedestrian-scale development, with a minimum of 15% beneficial open space of which half must be usable by the general public; the BU5 zone requires 25% landscaped area, the PMBD requires 20% beneficial open space, and the other mixed-use and business zones have no minimum requirements, so this requirement is somewhere in the middle and emphasizes that it be useful space. This zoning text allows for, but does not require, vertical integration of uses. The special permit criteria outlined in this zoning proposal along with a robust land use review will create the best opportunity for the type of development imagined in the Mixed-Use Centers Element.

School Impacts. There was general concern about the school impacts of a large residential component associated with a potential project on this site.

Staff Response: There are limits to what can be appropriately regulated through zoning in this regard. Newton cannot levy an exaction or impact fee to pay for increased costs to educate additional school children, nor can its regulations be discriminatory against families under the Fair Housing Act. Zoning is also limited in its ability to regulate the internal configuration of apartments, for example, by limiting the number of bedrooms. The proposed zoning text calls for an analysis of net fiscal impacts on the City, including impacts on the City’s school system as part of the special permit approval process, and requires a net positive fiscal outcome. Solutions would need to be tailored to the nature of any problems identified during the special permit process.

Water and Sewer. Aldermen and members of the public expressed concern that the proposed large new development would overburden portions of Newton’s water, sewer, and storm water systems and cited flooding in Lyons Field and backups in other nearby areas. The impacts on water, sewer, and storm water depend significantly on the water and sewer needs of the future tenants, the overall programming of the site, and the site design, which will be considered during the special permit review process. The proposed zoning text requires specific tests and analyses that the developer must perform and prove as part of a special permit filing, that the community will be well-served by the changes in capacity. Specifically, the text requires a detailed study of proposed surface runoff, an Environmental Site Investigation Report, solid waste master plan, a quantitative analysis showing water demands will not overburden the water supply of existing infrastructure, a master plan and schedule of sanitary sewer system improvements that improve upon existing conditions.

Chapter 40B Development Option. There is general concern that if a new mixed-use zone is not approved by the Board of Aldermen, the proposed developers of the Riverside site will build a 550-unit, all-residential project under Chapter 40B. Such a project would further the City’s goals with respect to affordable housing, potentially bringing our total affordable housing percentage to around 9% or more, and would generate somewhat less traffic impacts along Grove Street and other neighborhood streets. On the other hand, a mixed-use development will likely have a more positive net fiscal benefit to the City, as commercial property is taxed at a higher rate than residential. In addition, the impacts on the school system would be significantly less with the mixed-use project most recently presented. Finally, a mixed-use development would provide a sense of place and public destination for the general public in contrast to an all-residential project that would primarily benefit the residents and their visitors.

OTHER PROPOSED TEXT CHANGES

Advisory council membership. The language establishing the Organization of Owners notes that the membership of the council shall be determined in the special permit and shall ensure that all neighborhood interests are represented.

Lot area and parcel size. In the purpose and other sections, the former reference to 9.33 acres was changed to require no less than 9 acres, simply to round off the figure. The minimum lot area, in Tables 1 and 3, was changed to nine acres, as well, to prevent any subdivision of the Riverside parcel and subsequent succession from the Development Parcel and Organizations of Owners.

After-studies and starting point. To make it easier to reference, a new Section 30-24(c)(9) has been assigned to separate it from the remainder of 30-24(c)(8); both sections still address required impact and after-studies. The after-studies must start within twelve months of occupancy for each phase of development, and continue from two to five years after final build out. The Director of Planning and Development and Commissioner of Public Works would determine whether the developer’s bond would be forfeited for failure to provide adequate mitigation.

River access. The language in the new Section 30-24(i)(5) was altered to reflect the ownership of land near the river by the MBTA, Mass DOT, and DCR with which coordination will be needed to access the Charles River banks. While the developer does not control land accessing the banks of the River, the development can be designed in such a way so as not to preclude future connections to the river and nearby trails.

Community use space. Community gardens were added to the definition of community use space.

Development Parcel and Organization of Owners. New language was added to the description and definition of Development Parcel to allow the Development Parcel to include access or other essential easements that cross neighboring parcels without requiring the owner(s) of such parcels to join the Organization of Owners simply because their property provides the access to the Mixed-Use Development.

RECOMMENDATIONS

The Planning Department recommends that the Zoning and Planning Committee approve Petition #400-11 as amended. The revised text achieves the delicate balance between flexibility and predictability needed to permit an economically viable development, while minimizing negative impacts on the surrounding neighborhoods. Flexibility is essential to allow a development to respond to changing market conditions and ensure its success and allows the Land Use Committee to entertain site designs and uses that maximize benefits to the City.

Predictability about how much development will be allowed is important for developers to understand expectations and secure financing and, overall, important for the economic success of the site. Assurances to the neighbors regarding project features and management of impacts are provided through impact studies and post-construction studies that require ongoing monitoring and enforcement.

Based upon Director of Transportation’s conclusion that a new interchange with direct access between Route 128 and the Riverside site is unattainable and/or undesirable, staff recommends that the Zoning and Planning Committee vote “no action necessary” (NAN) on Petition #400-11(2). Should circumstances change, the zoning text could be amended at a later date, provided that the developer reserves space or otherwise plans ahead for additional development in the future.