Right and Wrong, What is Legal? And What is Possible?

Charles Schulz, via mass.org

As discussed in City Officials Misprepresent and Ignore Forest Hill Heights Small Area Plan  the recent approvals of Watermark and Viridian apartment complexes were "bait and switch" because the total rental units greatly exceed the number of rental units contemplated in the relatively recently drafted Forest Hill Heights Small Area Plan. Residents took part in the process of planning by participating in charrettes, only to have the City Administration pull the rug out from under the residents. City officials even went so far as to wrongly claim that they are following the plan. 

I am a "straw man."

I'd like to examine the carefully worded, seemingly scripted replies to my comment on social media that the City engaged in "bait and switch". According to defenders of the practice, the City was actually following the Small Area Plan because of the mere fact that the projects were approved by the Planning Commission and BMA. Because I never made the representation that what the City did was illegal, this is by definition a "straw man" argument. 

The reasoning expressed is that developers use the Small Area Plan as something to bargain against, so that they can come to a "compromise" with the City. They do not look at the Small Area Plan as something they should attempt to comply with, since it cannot be legally enforced.

Of course, the issue is that the residents of Forest Hill Heights were not told that their good faith effort in helping craft the Small Area Plan was simply a beginning point for eventual compromise with developers.  Although the Small Area Plan is not a legally binding document, our leaders should certainly attempt to comply with the guidelines.  Don't the citizens deserve an explanation when significant portions of the Small Area Plan are ignored, when residents were led to believe that their participation had some meaning?  We not only got no explanation, the Small Area Plan, when discussed in meetings, was given as the reason that both Viridian and Watermark should be approved. The references to this Plan were sprinkled throughout their meetings, yet there was no discussion at all of the deviations. Is this transparency? I will let my readers decide if they think this is what we should expect from our City.

The bottom line is that the Viridian and Watermark complexes total 610 rental apartment units, while the Small Area Plan calls for 252 (by 2025!).  And neither of these apartment complexes is subject to the "moratorium."  That is why I characterize the moratorium as weak and toothless.  

What Else is Legal? 

Because of the "it's legal" (and therefore right?) argument (that seemed to me like "cut and paste" directly from the City Economic Development Department) I feel that it is instructive to extend that same line of thinking to see what other actions could lie in our City's future. The following would also be legal:  

*1. By increasing the density of apartment units allowable in the PUD to 18 per acre in the December BMA meeting, the City has set an important precedent. It is likely that other projects in FHH will request the same density, and obtain it as quickly and easily as the vote in December. Apartments are allowed in T5 areas, and if deviations in the Small Area Plan can be easily ignored, we could see apartments of this increased density over the entire T5 zoned area. Can you imagine the entire FHH area being filled with apartments at a density of 18 per acre?

2. Cordova Triangle, watch out!  Do you believe that what the BMA passed in the January meeting means that the area is now zoned single family?  Notwithstanding the action taken, the Triangle currently still has T4 zoning;  Legally the action taken by the BMA was meaningless. Please see the following discussion. 

 

Per City Attorney David Harris, the Smart Code T4 zoning overlay may officially be removed from the Triangle by first going back to the Planning Commssion. If removed by the Planning Commission, then the measure would be brought before the BMA, and there it could be approved in three readings. Only then would the Triangle would be free of the Smart Code zoning.

There are two difficulties with this:

a.  The City Attorney sidestepped a question about this-- As it stands now, the Cordova Triangle is still zoned T4, which includes light retail and all multi-family housing. Yet, the moratorium only keeps apartments and apartment buildings from being approved for eighteen months. There is nothing to prevent a developer from bringing forth a non-apartment related multi-family or a retail project before the T4 zoning is legally removed. Thus, it would be legal for such a project to be approved, nothwithstanding the January 8 vote by the BMA. In effect, the vote by the BMA regarding the Cordova Triangle was more of a promise than a legal action. I remind the residents near the Triangle that the City broke a promise to the FHH area. What is there to prevent the City from breaking the promise about the Triangle? 

b.  Also note that there have been two separate meetings of the Planning Commission since this resolution was passed by the BMA, and the removal of T4 zoning of the Triangle has not yet been part of the agenda. Will the removal of the Smart Growth overlay even come to fruition at all? I recommend that the citizens in the neighborhoods near the Triangle stay well informed of any progress (or, more specifically, lack of progress) being made with regard to the removal of the Smart Growth overlay from the Cordova Triangle.

*Note: #1 has been edited to reflect that the density of apartments was changed for the PUD, rather than for the entire area.