Policy Order 2023 #44 ,related to the Barrett, et al., Zoning Petition

Council Order O-3 of 3/6/2023, related to the Barrett, et al., Zoning Petition

We submit the following in response to Council Order O-3 of 3/6/23, which requests that CDD provide language that would propose amendments to the Patrick Barrett et al. North Mass Ave BZ-5 Zoning District Petition (the “Petition”) to include the amendments proposed by the Petitioners.

For reference, CDD staff have reviewed the so-called Letter of Commitment dated February 24, 2023 (the “Letter of Commitment”), which sets forth commitments that the developer North Cambridge Partners LLC (the “Developer”) of the project proposed to be located in a part of the proposed BA-5 Zoning District at 2400-2414 Massachusetts Avenue in Cambridge (the “Project”) has made to “abutting neighbors of Alberta Terrace, Cedar Street, and Harvey Street” (the “Neighbors”) of the Project, and also reflects the Petitioners’ proposed amendments to the Petition that were presented by the Petitioners to the Ordinance Committee on February 28, 2023.

CDD Staff have also addressed some of the practical issues raised in the CDD memorandum dated December 13, 2022. A redlined version of the Petition with CDD’s recommended amendments to the Petition is attached and discussed further below. I.

Summary of Amendments to Zoning Text

A. Changes in Letter of Commitment The following amendments are proposed by the Developer in Section 2c. of the Letter of Commitment: i. Amend footnote 1 to increase the distance from the residential district in the second sentence to fifty feet (50’) from thirty-five feet (35’). ii. Amend footnote 4 to read “All ground floor retail spaces may be exempt from FAR calculations by special permit only, provided that the retail does not front a residential district.” iii. Prohibit lab uses.

The first two proposed amendments would be incorporated into footnotes to the Table of Dimensional Requirements for the proposed new BA-5 Zoning District. They modify footnotes included in the original Petition. Because modifications that alter the fundamental character of the original Petition are not legally permitted, the Council

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must determine whether these proposed changes would alter the fundamental character of the original Petition. Because prohibiting laboratory use in this area was not a component of the Petition as originally advertised, the third proposed amendment also raises the question of whether such a change would impermissibly alter the fundamental character of the original Petition, which the City Solicitor addresses below.

That amendment could be accomplished by amending the cell in Section 4.34 of the Table of Use Regulations next to the row heading “f. Technical office for research and development, laboratory & research facility subject to the restrictions in Section 4.21m” and below the column heading that contains “Bus A-5” to read “Yes 62”; and by adding a new footnote “62” to the end of Section 4.40 to read “62.

Not permitted in a Business A-5 district.” However, given the concerns raised in the City Solicitor’s opinion, we have not included that change in the redlined version of the Petition so that it can be considered separately by the Council. B. Changes for Clarity and Consistency Separate and apart from the proposed amendments to the Petition that are proposed in the Developer’s Letter of Commitment, CDD staff recommends some proposed amendments to the Petition to improve the overall construction of the zoning text.

CDD has therefore added those recommended changes to the Petition in the attached redlined draft of the Petition. For example, as noted in the earlier December 13, 2022 CDD memo, overlay zoning is intended to modify base zoning, so it is confusing that the Petition includes provisions in the base zoning that modify or supersede overlay zoning.

The preferred approach would be to amend overlay zoning directly, and CDD has thus made proposed amendments to the attached redlined draft of the Petition that would address that. Other changes are suggested by CDD for consistency with other parts of the Zoning Ordinance. II.

Other Issues

Some commitments made by the Developer in its Letter of Commitment and discussed at the Ordinance Committee meeting on February 28, 2023, while related to zoning, are not proposed as amendments to the Petition and are therefore not before the Council for its consideration in connection with the Petition and any proposed amendments thereto.

Moreover, these proposed commitments relate only to the Developer’s Project and are discussed below to ensure that the Council has a clear understanding that while the Developer has made these proposed commitments in the Letter of Commitment if the Petition as amended is adopted, the proposed commitments do not involve the City, will not be part of the Zoning Ordinance, and will not be enforceable by the City.

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A. Parking The Developer commits in its Letter of Commitment (Paragraph 2d.) to a 1:1 parking ratio for the Project. However, we note that no minimum parking is required by zoning per the citywide zoning amendment adopted by the City Council in 2022. B.

Project Review The Developer commits in its Letter of Commitment to “to conduct and perform all studies and narratives required by Article 19.24 and to make those studies available upon request to the Neighbors.” Such studies will be required by zoning for projects of at least 50,000 square feet of Gross Floor Area that will require a Project Review Special Permit from the Planning Board.

If those studies are not required, they could be made available to neighbors voluntarily but would not be subject to any required review or certification by City staff. Under the current BA-2 zoning, a Project Review Special Permit is required for developments of at least 20,000 square feet.

While a Construction Management Plan typically covers some of the topics listed in Paragraphs 2h. and 2j. of the Letter of Commitment and often is included as a condition of a Project Review Special Permit (see Section 18.20 of the Zoning Ordinance), the Developer agrees in the Letter of Commitment to such a condition even for projects that do not need a special permit.

In the Letter of Commitment, the Developer also agrees that because the Massachusetts Avenue Overlay District is an Area of Special Planning Concern, the Developer will have a public advisory review meeting regardless of whether a special permit is required in connection with the Project. C. Sustainable Design and Development The Developer commits in its Letter of Commitment to “follow the regulations of Article 22 (Sustainable Design and Development)”.