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Working With Article 80 of The Boston Zoning Code By Randi J

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Working With Article 80 of The Boston Zoning Code By Randi J Powered By Docstoc
					Working With Article 80 of The Boston Zoning Code
By: Randi J. Eisner
Goodwin Procter, LLP


        With the recent appointments of John Palmieri as the new Director of the Boston
Redevelopment Authority, and former Olympic cyclist Nicole Freedman as the new “bike
czar,” the Boston Redevelopment Authority is entering an exciting new era. However, as
before, Article 80 of the Boston Zoning Code remains the principal tool for public review
and Authority approval of significant new projects within the city. Developers have much at
risk and need predictability in the permitting process. Article 80 provides the framework for
a clear, predictable, and unified review process, even though the outcome of that review
process is often uncertain. Part I of this article describes the types of projects that are subject
to the four kinds of Article 80 review. Part II provides a list of helpful resources and
publications pertaining to the Article 80 process. Part III summarizes the recent addition to
the Boston Zoning Code, Article 37, which pertains to Green Buildings and is applicable to
projects subject to Large Project Review.1

     PART I. ARTICLE 80 ESTABLISHES FOUR TYPES OF DEVELOPMENT
                         REVIEW PROCEDURES.2

       Large Project Review: Section 80B-1
       Small Project Review: Section 80E-1;
       Planned Development Area Review: Section 80C-1;
       Institutional Master Plan Review: Section 80D-1.

       Large Project Review (See Section 80B-2)

       Large Project Review provides a procedure for the comprehensive review of large
development projects before and during the schematic design stage and affords the public the
opportunity for review and comment. Through the Large Project Review process, the Boston
Redevelopment Authority (the “BRA”), guided by public comments, assesses the project’s
impacts and requires the developer to take appropriate measures to mitigate those impacts.
The commitment to undertake these mitigation measures is enforced by a cooperation
agreement that the applicant must enter into with the BRA.

       Within most areas of the city, Large Project Review applies to projects that entail:

       •    addition of 50,000 or more square feet of gross floor area
       •    change of the use of a gross floor area of 100,000 or more square feet (in the
            Downtown)


1
    Portions of this summary are excerpted from relevant sections of Article 80 and from the BRA publication
    entitled, “A Citizens Guide to Development Review under Article 80 of the Boston Zoning Code.”
2
    Capitalized words and phrases used in this article have the meanings set forth in Article 2A of the Boston
    Zoning Code.
       •    change of the use of a gross floor area of 50,000 or more square feet (in the
            Neighborhoods and in the Harborpark);
       •    substantial rehabilitation of a building which has or will have 100,000 or more
            square feet of gross floor area.

       Within the Harborpark, Large Project Review applies to smaller projects that entail:

       •    addition of 10,000 or more square feet of gross floor area
       •    alteration of 1,000 square feet or more of any Pier or shoreline.

       Small Project Review (See Section 80E-2)

        The purpose of Small Project Review is to provide BRA staff review of projects that
do not require Large Project Review but that can be expected to affect the surrounding area
and public realm because of their size or location. Small Project Review has three separate
components: (1) design, (2) site plan and (3) comprehensive sign design.

       1.       Design Component

       Within Downtown, Harborpark and the Neighborhoods, the Design Component of
Small Project Review applies to:

       •    Any project that must be consistent with any design guidelines established for the
            location of the project
       •    Any project for which a decision of the Board of Appeal requires BRA design
            review as a condition for granting zoning relief

       Within the Neighborhoods, the Design Component of Small Project Review applies
to:

       •    Any project that entails the addition of 20,000 or more square feet of gross floor
            area or construction of 15 or more dwelling units
       •    Projects that involve exterior alterations within any Neighborhood Design
            Overlay District (See Section 80E-2(b)(iii))

       Within all districts, the Design Component of Small Project Review applies to:

            •   Any proposed installation of wireless communications equipment that requires
                BRA review under Article 86 of the Code
            •   Any proposed project in a Planned Development Area

       2.       Site Plan Component

      The Site Plan Component of Small Project Review applies to any project in a
Conservation Protection Subdistrict or in a Greenbelt Protection Overlay District.
       3.      Comprehensive Sign Design

       The Comprehensive Sign Design Component of Small Project Review applies to any
application for approval of comprehensive sign design.

       Planned Development Area Review (See Section 80C-2)

         A Planned Development Area (PDA) is a special purpose overlay district. The
Zoning Commission may approve a request to establish a PDA where a development that is
well-suited to its location cannot be accommodated by the general zoning for the area.
However, a PDA must contain at least one acre of land, and the establishment of PDAs is
restricted to certain locations within the city.

        No project may be built in a PDA unless it is described in detail in an approved PDA
Development Plan. The plan describes all of the projects proposed for that land, both those
that will be built immediately and those planned for the future. A PDA Development Plan
must specify particular public benefits that projects in the PDA must provide. The
commitment to provide these benefits is enforced by a cooperation agreement that the
applicant must enter into with the BRA. The Development Plan requires the approval of both
the BRA and the Zoning Commission. The PDA Review Regulations in Article 80 specify
the procedure for the BRA’s review of these plans (and any amendments thereto).

       Institutional Master Plan Review (See Section 80D-2)

        The purpose of Institutional Master Plan (IMP) Review is to provide for the well-
planned development of Institutional Uses, which are defined under Section 2A of the Code
to include College or University Uses, Hospital Uses or Nursing or Convalescent Home
Uses. Institutional Master Plan Review recognizes that Institutional Uses need to expand and
renovate their facilities more frequently than do other uses, and that the cumulative effects of
incremental expansion may be greater than, or different from, the effects of each project
individually. To assess these cumulative impacts and determine appropriate community
benefits, Institutional Master Plan Review examines the combined impacts of an Institution's
overall development program and affords the public the opportunity for review and
comment.

        A “Proposed Institutional Project” is defined in Section 2A of the Code as a
“Proposed Project occupied or to be occupied for Institutional Uses upon issuance of a
building, use, or occupancy permit.” Institutional Master Plan approval is required (i) in all
areas where the underlying zoning requires that the Proposed Institutional Project be
consistent with an approved Institutional Master Plan; and (ii) in other areas, in general, if the
Proposed Institutional Project will add more than 20,000 square feet of gross floor area or
entail interior alterations for more than 50,000 square feet of gross floor area.

               PART II. HELPFUL RESOURCES AND PUBLICATIONS
                               ON ARTICLE 80

       1.    A thorough, thoughtful and up-to-date summary of Article 80 is included in
the Massachusetts Zoning Manual (MCLE, 4th ed. 2007). Chapter 16, entitled, “Special
Zoning Acts: Boston” by Cynthia M. Barr, Esq. discusses Boston Zoning, and Section 16.9
describes the Article 80 review process in detail. (Note: this chapter updates the book by
Cynthia Barr entitled, Boston Zoning A Lawyer’s Handbook published by MCLE (2003
edition)).

       2.      The MCLE book entitled, Mastering the Development Process in Boston-
“Between the Lines” and “Behind the Scenes” (MCLE,.2006) contains helpful information,
including the following:

             (a)    Permitting timelines, including timelines for Article 80 Large Project
Review and Planned Development Area Designation.

              (b)    The commitments made by developers to undertake mitigation
measures, make “linkage payments” under Article 80B-6 and/or provide public benefits are
embodied in agreements with the BRA and other public agencies. Sample forms of the
following agreements are included in this publication:

       Cooperation Agreement
       Development Impact Project Agreement
       Memorandum of Understanding, First Source Agreement
       Transportation Access Plan Agreement
       Boston Residents Construction Employment Plan

                 (c)     Pursuant to Executive Order of Mayor Menino (“An Order Relative to
the Provision of Mitigation by Development Projects in Boston”) dated October 10, 2000, as
amended by “An Order Further Regulating the Provision of Mitigation by Development
Projects in Boston” dated April 3, 2001, the first step to commencing Large Project Review
is filing a Letter of Intent with the BRA. A sample Letter of Intent is included in this
publication.

               (d)     A sample BRA Board memo authorizing the Director of BRA to take
the steps necessary to conclude Article 80 review is also included in this publication.

       3.     A succinct but excellent summary of Article 80 is included in the MCLE
publication Development Permitting in Boston: Mastering the Conflicts and Challenges of
the Development Process (MCLE, 2004). Other sample forms of the agreements listed in
item 2(b) above are included in this publication.

        4.      The Article 80 review process and the opportunities for public comment are
explained in the BRA publication entitled, “A Citizens Guide to Development Review under
Article 80 of the Boston Zoning Code” (February, 2004), which is available on the BRA’s
website (www.city of boston.gov/bra/). This document is currently being updated, but the
new publication date has not yet been determined.

       5.     Another very helpful resource, available on the BRA’s website (www.city of
boston.gov/bra/), is entitled, “BRA Development Review Guidelines” (2006). This
document details the BRA review and submission procedures under Article 80 as well as
other related review processes. The flow charts in Appendix 2 and Appendix 3 (pages 36-38)
indicate the sequencing and timing of review under Article 80.

       6.      Pursuant to the Mayor’s Executive Orders (more particularly described in item
2(c) above), the Mayor may appoint an Impact Advisory Group (an “IAG”) to advise the
BRA on appropriate mitigation measures for projects subject to Large Project Review. A
publication entitled “IAGs & You” is available from the BRA by calling 617-722-4300. This
publication explains how the members of an IAG are appointed, the role of IAGs in the
review process and related questions.

       7.       A list of relevant contact information is attached as Exhibit A.

                                PART III. GREEN BUILDINGS3

       Background Information

         Green building is a broad concept that encompasses ways of designing, constructing,
and maintaining buildings to decrease energy and water usage and costs, improve the
efficiency and longevity of building systems, and decrease the burdens that buildings impose
on the environment and public health. In June 2003, Mayor Menino assembled the Mayor’s
Green Building Task Force. Comprised of industry leaders, green building experts and City
staff, the task force convened over a 12 month period to analyze best practices, develop
policy initiatives and make recommendations designed to promote green building and
development in Boston. The Green Building Task Force Report, incorporating the task force
policy initiatives and recommendations, was issued in the fall of 2004. Following a three
year implementation plan, the Boston Zoning Commission approved several amendments to
the Boston Zoning Code requiring that all projects subject to Large Project Review be
designed and planned to meet the “certified” level using the U.S. Green Building Council’s
Leadership in Energy and Environmental Design (“LEED”) building rating systems. Set
forth below is a summary of Article 37 of the Code pertaining to Green Buildings.

       Summary of Article 37

        The purposes of Article 37 are to ensure that major building projects are planned,
designed, constructed, and managed to minimize adverse environmental impacts; to conserve
natural resources; to promote sustainable development; and to enhance the quality of life in
Boston. Except for projects exempt under Section 37-3 of the Code, any Proposed Project
which is subject to Large Project Review under Article 80 is subject to the requirements of
Article 37.

       The term “LEED” as defined in Article 2A of the Code stands for Leadership in
Energy and Environmental Design Green Building Rating System--nationally accepted
standards for green buildings developed by the United States Green Building Council

3
    Portions of this summary are excerpted from relevant sections of Articles 37 and 80 of the Code and from
    Mayor’s Menino’s Green Building Task Force Report Executive Summary dated Fall 2004, available on
    the BRA’s website.
(USGBC). LEED standards include the following: LEED NC for new construction and major
renovation projects; LEED CI for commercial interior projects; LEED H for homes; and
LEED ND for neighborhood development. The Green Building Guide for Health Care,
developed by Healthcare without Harm, in conjunction with the USGBC is the appropriate
standard for hospitals.

        Pursuant to Section 37-4 of the Code, any Proposed Project subject to the provisions
of Article 37 shall be LEED Certifiable under the most appropriate LEED building rating
system. Using the LEED-New Construction standard requires earning 26 points to meet the
level of certified.4 Attached as Exhibit B is a sample LEED checklist for New Construction
which shows how points are awarded. Up to four (4) of the required points may be obtained
from the Boston Green Building Credits identified in Appendix A of Article 37.

        Pursuant to Section 37-5 of the Code, any Applicant subject to the provisions of
Article 37 shall provide to the BRA a completed LEED scorecard5, including any Boston
Green Credits that the Proposed Project will achieve. The Applicant shall demonstrate that
the Proposed Project will meet the requirements of Article 37 with appropriate supporting
documentation and by certification from a LEED Accredited Professional and/or other expert
recognized by the BRA. The submissions shall be in accordance with the provisions of
Section 80B.

       Within five (5) days of its receipt of a completed LEED submission, the BRA shall
transmit a copy of the submission to Boston Interagency Green Building Committee.

       Pursuant to Section 37-6 of the Code, the BRA may promulgate regulations to
administer Article 37. BRA staff is in the process of drafting regulations, but none have been
formally adopted as of September 27, 2006.

        Pursuant to Section 37-7 of the Code, the Commissioner of Inspectional Services
shall not issue any building permit or use permit for a Proposed Project that is subject to the
provisions of Article 37 unless the Director of the BRA has issued a Certification of
Compliance pursuant to Section 80B-6.

       Review and Submission Procedures Pertaining to Green Buildings under
             Article 80

              1.     The Project Notification Form (PNF) filed with the BRA pursuant to
Section 80B-5 must include the following preliminary green building information:

4
    This information is based on the publication entitled, “New Construction Reference Guide Version 2.2
    (Second Edition, September 2006) which is available on the U.S. Green Building Council’s website at
    http://www.usgbc.org/DisplayPage.aspx?CategoryID=19.
5
    The checklist is referred to as a scorecard when it is filled out to show which points were achieved. To
    view a completed scorecard, log on to the website, www.usgbc.org, go to LEED> LEED Project Lists>
    Certified Project List> then search for a previously certified building and click on its rating. It will then
    bring up the scorecard for the project.
                    (a)     a completed LEED checklist indicating the level of
       performance/point outcome of the Proposed Project based on the most appropriate
       LEED building rating system;

                      (b)    an explanation of how each credit will be achieved;

                       (c)     a list of members of the development team, including a LEED
       certified professional; and

                   (d)    a statement as to whether the developer will register the project
       with USGBC and seek certification.

              2.      In its Scoping Determination made pursuant to Section 80B-3, the
BRA will require, as part of the Environmental Protection Component, an analysis to
determine how well the Proposed Project complies with LEED and to assess the level of
environmental performance that will be achieved by the Proposed Project under the most
appropriate LEED rating system.

               3.      The Certification of Compliance issued by the Director of the BRA
pursuant to Section 80B-6 must contain a finding that the Proposed Project complies with the
provisions of Article 37, if applicable. If this finding is omitted, the Commissioner of
Inspectional Services may not issue a building permit or use permit for the Proposed Project.

       Additional Information

      For more information about Green Buildings and LEED certification, contact the U.S.
Green Building Council at 1-800-795-1747 or visit the website at:

       http://www.usgbc.org/DisplayPage.aspx?CategoryID=19



              For more information, please feel free to contact:

              Randi J. Eisner (617) 570-1000
              reisner@goodwinprocter.com
                                        EXHIBIT A

                                 LIST OF CONTACTS


BOSTON REDEVELOPMENT AUTHORITY

City Hall Square
Boston, MA 02201
Phone: 617-722-4300
Fax: 617-248-1937
Website: http://www.cityofboston.gov/bra/

Contact (prior to November 12, 2007):

Paul McCann, Acting Director
E-mail: Paul.McCann.BRA@ci.boston.ma.us

Contact (beginning November 12, 2007):

John F Palmieri, Director
E-mail: John.Palmieri.BRA@ci.boston.ma.us

Officers:

Clarence J. Jones, Chairman
Paul D. Foster, Vice Chairman
James M. Coyle, Member
Christopher J. Supple, Member
Consuelo Gonzales-Thomell, Treasurer
Harry Collings, Secretary

BOARD OF APPEAL

Boston City Hall
Room 204
Boston, MA 02210
Phone: 617-635-4775
Fax: 617-635-2918
Website: http://www.cityofboston.gov/isd/building/boa/

Contact:
Darryl Smith (available Tuesdays and Thursdays at Board of Appeal; available Monday,
Wednesday and Friday at Inspectional Services Department)
Board Members:

Joseph D. Feaster, Jr. Chairman
51 Elmore Street
Roxbury, MA 02119
Phone: 617/723-0400
Fax: 617/723-7234

Michael Monahan, Member
256 Freeport Street
Boston, MA 02122
Phone: 617/436-3710
Fax: 617/436-3299

Angelo Buonopane, Member
3 Webster Place
Boston, MA 02113
Phone: 617/727-6573
Fax: 617/727-1090\

Christine Araujo, Member
Boston Connects, Inc.
2201 Washington Street
Roxbury, MA 02119
Phone: 617/541-2671
Fax: 617/427-0747

Peter Chin, Member
237 Shamut Avenue
Boston, MA 02118
Phone; 617/451-9681

Robert Shortsleeve, Member
45 Lila Road
Boston, MA 02130
Phone: 617/522-4600
Fax: 617/522-4601

Anthony Pisani, Member
374 Congress Street
Boston, MA 02210
Phone: 617/423-1022
Fax: 617/426-0939
Alternates:

Beth Worell
Apollo Catala
Eugene Kelly
Benito Tauro

BOSTON ZONING COMMISSION

One City Hall Square
Boston, MA 02201
Phone: 617-722-4300
Fax: 617-367-5916
Website: http://www.cityofboston.gov/bra/zoning/zoning.asp

Contact:

Jeffrey Hampton, Secretary for the Zoning Commission
Phone: 617-918-4308
Fax: 617-367-6087
E-mail: Jeffrey.Hampton.bra@ci.boston.ma.us

Commission Members:

Mr. Nelson Arroyo
Ms. Jane Brayton
Mr. James C. Clark
Mr. Ralph Cooper
Ms. Denise Doyle
Mr. Robert Fondren
Ms. Jill Hatton
Mr. Jay Hurley
Mr. Robert L. Marr
Mr. William Tarlow
Ms. Pat Tierney

COMMITTEE ON LICENSES

1010 Massachusetts Avenue
Boston, MA 02118
Phone: 617-635-5300
Fax: 617-635-5384
Website: http://www.cityofboston.gov/licensing/

Contact: Brigid Kenney, Secretary
Email: Brigid.Kenney.isd@ci.boston.ma.us
Committee Members:

Paul Christian, Boston Fire Department (or designee)
Andrea D'Amato, Boston Transportation Department (or designee)
Gary Moccia, Inspectional Services Department. (or designee)
Phone: 617-635-5300
Fax: 617-635-5360
Email: gary.moccia.isd@ci.boston.ma.us

PARKS AND RECREATION COMMISSION

1010 Massachusetts Avenue
Boston, MA 02118
Phone: 617-635-4505
Fax: 617-635-3227
Website: http://www.cityofboston.gov/parks/aboutparks.asp

Contact: Brian McLaughlin, Executive Secretary - Parks Commission
Phone: 617-635-4505(X 6223)
Fax: 617-635-3256
E-mail: Parks@cityofboston.gov

Commission Members:

Antonia Pollack, Chair, Acting Commissioner
Ray Foley, Associate Commissioner
Paul Foster, Associate Commissioner
Charles Titus, Associate
Commissioner Susan Park, Associate Commissioner

PUBLIC IMPROVEMENT COMMISSION

1 City Hall Plaza, Room 714
Boston, MA 02201
Phone: 617-635-4965
Fax: 617-6354558
Website: http://www.cityofboston.gov/publicworks/pic/

Contact: Vincent Leo, City Engineer
Phone: 617-635-4961

Commission Members:

Dennis E. Royer, Chairman
Phone: 617-635-2497
Fax: 617-635-7499
Email: dennis.royer@ci.boston.ma.us)
Gary Moccia, Assistant Commissioner
Phone: 617-635-5300
Fax: 617-635-5360
Email: gary.moccia.isd@ci.boston.ma.us)

Michael Galvin, Member
John DeBenedictis, Boston Transportation Department
Member Phone: 617-635-4690

Stephen P. Shea, Boston Water and Sewer Department,
Member Phone: 617-989-7425

INSPECTIONAL SERVICES DEPARTMENT

1010 Massachusetts Ave., 5th Floor
Boston, MA 02118
Phone: 617-635-5300
Fax: 617-635-5629
E-mail: ISD@cityofboston.gov
website: http://www.cityofboston.gov/isd/

Contact: William Good, Commissioner
Phone 617-961-3434
EXHIBIT B

				
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