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4-1 vote on plan near AHS shows challenges board faces as it follows its authority

 You're allowed to make this decision." -- Jenny Raitt to ARB before 4-1 vote July 20

Drawing of proposal for 882-892 Mass. Ave.Drawing of proposal for 882-892 Mass. Ave.

The drumbeat of opposition to Arlington development, with a history extending to the era just after the first pandemic a century ago, has been sounding again in earnest for the past 19 months.

Well-intentioned residents, some directly critical of town planning and some engaging in analyzing zoning details, are part of the challenge as professionals come to grips with trying to shape the town's housing.


ANALYSIS: Pressure from developers and public reporters


To put this broad issue in perspective, YourArlington took a close look at the meaning behind the 4-1 vote on July 20 to approve one controversial project, in the block across from Arlington High School. Redevelopment Board members see the go-ahead for the Pasciuto project at 882-892 Mass. Ave. as an overall plus for housing. Some residents remain critical and see a trend to replace commercial sites with housing.

Two citizen reporters

A citizen reporter, Aram Hollman, provided the public with the first portrayal of events on the Arlington email list one day after the vote. The post's subject lets you know the writer's opinion: "Redevelopment Board 'gives away store' to developer."

For days after, an ongoing email list thread repeated the thrust of the subject line, with a familiar poster alleging without facts Select Board and town-manager collusion.

Eleven days later, resident Don Seltzer drew on his own analysis of how he sees zoning bylaws carried out. His opinion piece is titled "Tossing out the Rule Book The New Normal and the Arlington Redevelopment Board: When Zoning Bylaws become Optional."

'Give away store'?

Did the Redevelopment Board "give away the store" or make zoning bylaws optional? A broader look at the facts does not support that conclusion.

The plan for the block of five business fronts built on soil contaminated in part by a former dry cleaner at the site drew criticism in early May, when fans of Toraya learned that the Japanese restaurant did not have its lease renewed and had to leave. Another restaurant, Thana Thai, followed. Negotiations over the fate of ACMi's Studio B, which in part serves AHS, continue, and a nondisclosure agreement keeps the parties from telling the public what is going on.

In place of these businesses are planned 21 one-bedroom residential units and one commercial space (1,750 square feet) in a four-story building. Note: The special conditions approved July 20 include provisions for a restaurant.

Did the board's 4-1 vote lead to Hollman's conclusion July 21? That is, "The wholesale conversion of business space to residential means that ... [it] gave away the store to the developer."

'Swept away'?

Did the vote means, as Seltzer writes, Aug. 1, that the board "swept away" these zoning issues -- eliminating the step back on the fourth floor, requirements of the floor area ratio and other matters?

He concludes: "In narrow terms, what happened last week simply means that a grossly oversized apartment building will be built on an undersized lot. It will come at the cost of a B2 zoned Small Neighborhood Business district, the ACMi studio that served the high school, the eviction of several small neighborhood businesses and the loss of jobs for those that worked in them.

"But far more alarming are the broader consequences of the precedent that was set last week. Every developer that comes before the board in the future will demand the same treatment. Every requirement listed in the zoning bylaw will be treated as a mere design guideline rather than a rule, to be ignored with the simple claim of profitability."

Redevelopment Board logo, Jan. 23, 2013

That process, Seltzer writes, means that "Every commercial block in our community is now in jeopardy. Look next on the Hit List for the East Arlington block at Lake and Mass. Ave. The same owner, and likely the same plan." He is referring to the Pasciuto family.

These accounts tell parts of the story. Consider balancing your view of what took place July 21 with a broader analysis. To pursue that, YourArlington asked each member of the Redevelopment Board to comment on his or her vote.

Only Gene Benson, the lone no vote, would do so. Three other members referred a reporter to the ACMi tape. One did not respond.

Gray areas

A review of the tape shows gray areas among the responses: A yes or no vote does not include the nuance of how an individual member may view the project.

Benson's limited comment was nonetheless revealing: "I am happy that in my 3 1/2 years on the board I have never been asked to vote a certain way on a special permit application (or on anything else). I think that speaks to the integrity of the process."

In a post the Arlington email list, he explained further: "Everyone on the Redevelopment Board does what s/he thinks is right in applying the zoning bylaw to each application for a Special Permit and Environmental Design Review. I hope the serious discussion at the hearing showed that. Thoughtful comments made by the public throughout the review process, and the board's own comments to the applicant, resulted in a much better final project than the project the applicant first presented.

"Even though I voted no for the reasons I stated during the hearing, I think the town should appreciate that the old building is being demolished to allow for serious underground contamination to be removed -- and the new building will be a good mixed-use project with commercial/retail space along Mass. Ave. and with 21 new apartments, including three one-bedroom apartments that meet the affordability requirements of the zoning bylaw."

Before considering the other members' view, look first at the appeal for relief by Robert Annese, the attorney for the applicant. He cited provisions of the part of the town zoning bylaw that guides the Redevelopment Board in considering such projects, the Environmental Design Review (see p. 38). See the bylaw here >>

Annese cites requirements

Punctuated by his characteristic "OK?," Annese said the mixed-use bylaw does not reflect "inflexible requirements," and he counters those who say that relief cannot be granted. "We need relief, and you know that," he said, noting that the board has the authority to do that.

He cited Section 3.4.4 of the bylaw, the design-review standards (p. 39), which say: "The standards are intended to provide a frame of reference for the applicant in the development of site and building plans as well as a method of review for the reviewing authority. They shall not be regarded as inflexible requirements and they are not intended to discourage creativity, invention, and innovation."

The various representatives of the developers then reiterated the steps they had taken to make changes, outlining where they need relief, calling it "the best we can do."

Board member Kin Lau, who met with the developers outside of meetings to suggest alternatives, said he concurred about relief for parking, the side-yard setback and open space.

Benson said he favors losing some parking and reducing minimum driveway width.

Public comments

At this point, residents had their say. Seltzer pointed out that parking should not be against the building and floor area was figured incorrectly. Referring to Lau, Chris Loreti asked to put an end to private meetings. John Worden cited a Covid-19 story in The Globe as evidence against housing density.

As to the Globe story, Benson said: "It is not density -- it is overcrowding." As to the project, he said he was "conflicted," that he likes the project.

He asked to take another look at gross floor area. "The bylaws are ambiguous about what we should do when inconsistencies come up," he said, saying there was no specific direct authority cited.

As to the step back, Benson said, "the math doesn't work," and he could not vote for removing it.

Member Dave Watson echoed Benson: "I like the project. I don't like ambiguity. Our zoning bylaw is messy."

He said it was unclear that flexibility [in Section 3.4.4 of the bylaw] applies to everything. "I'm not sure what to do. I think this is right type of project; I don't like how it looks. The applicant is asking for a lot of relief. I'm not sure we should grant it all."

Bunnell: 'Fully support'

Board Chairman Andrew Bunnell said, "I fully support this project. I think we have authority to provide relief."

When Benson suggested voting on all issues except for gross floor area, requiring extending the meeting to Aug. 17, Bunnell declined to accept that.

Jenny Raitt, director of planning and community development, weighed in at some length, which is unusual. Her words help explain the board's authority and provide balance to the portrayal that the board "gives away the store" to a developer.

"There was a lot of listening, and that has shaped some outcomes .... I appreciate the work so far," she said.

Focusing on the board's role, she made clear that its members were not doing anything out of scope, with its process or regarding the special conditions, which accompany the approval for any plan. She said: "You're allowed to make this decision."

Raitt: 'Correct path'

Adding that she has spoken to town counsel and inspectional services a number of times about the board's role, she said members are "headed down the correct path."

As to zoning-bylaw ambiguity, Raitt said she is happy to go back to the zoning board and she is glad to answer questions.

"The EDR [Environmental Design Review] was designed for you; it was designed by you, to have better powers," she said. "The purpose is to encourage housing and the appropriate use of land."

Responding to Annese's citing the section of the bylaw to provide flexibility for the step-back issue, Benson said there is "no unbridled discretion" in Section 3.4.4 to reconfigure the top floor for one unit less so it could have enough space to include the step back. The developer refused.

"I am struggling," he said. "I like the project. I will give it more thought."

Bunnell moved toward a vote, saying the applicants have been clear about what they want.

'Ambiguity'

Lau added: "I do not support a vote with a condition of gross floor area. We vote yes or no .... Not all decisions will be unanimous. We all share goals, but have different criteria. I don't want to come across as rubber-stamping board.

"This ambiguity is not helping future development." He opposed continuing the hearing.

Bunnell agreed. "I have heard all say it's a good project," he said. "This is why we sit on this board."

Watson added: "We have the authority .... This is a better project as it's designed [now] than when we started. It's better to have wider sidewalks than to have fourth-story step back ....

"Whatever the ambiguity, I will to construe that to vote in favor."

Member Rachel Zsembery, who had been keeping track of the special conditions, said she had no last statement.

Bunnell made the motion, noting the conditions (see sidebar).

At 2 hours and 18 minutes into the meeting, the board voted, 4-1, to approve the project.

CONDITIONS, general and special for 882-892 Mass. Ave.

The project must adhere to the following general conditions:

1. The final design, façade materials, landscaping, fencing, lighting, and sign plans and relevant specifications shall be subject to the approval of the Arlington Redevelopment Board. Any substantial or material deviation during construction from the approved plans and specifications is subject to the written approval of the Arlington Redevelopment Board.

2. Any substantial or material deviation during construction from the approved plans and specifications is subject to the written approval of the Arlington Redevelopment Board.

3. The Board maintains continuing jurisdiction over this permit and may, after a duly advertised public hearing, attach other conditions or modify these conditions as it deems appropriate in order to protect the public interest and welfare.

4. Snow removal from all parts of the site, as well as from any abutting public sidewalks, shall be the responsibility of the owner and shall be accomplished in accordance with Town Bylaws.

5. Trash shall be picked up only on Monday through Friday between the hours of 7:00 am and 6:00 pm. All exterior trash and storage areas on the property, if any, shall be properly screened and maintained in accordance with the Town Bylaws.

6. The owner shall provide a statement from the Town Engineer that all proposed utility services have adequate capacity to serve the school. The owner shall provide evidence that a final plan for drainage and surface water removal has been reviewed and approved by the Town Engineer to the Department of Planning and Community Development.

7. Upon installation of landscaping materials and other site improvements, the owner shall remain responsible for such materials and improvement and shall replace and repair as necessary to remain in compliance with the approved site plan.

8. All utilities serving or traversing the site (including electric, telephone, cable, and other such lines and equipment) shall be underground.

9. Upon the issuance of the building permit the Applicant shall file with the Inspectional Services Department and the Police Department the names and telephone numbers of contact personnel who may be reached 24 hours each day during the construction period.

The project must adhere to the following special conditions:

1. The owner shall work with the Department of Planning and Community Development to comply with all requirements of Section 8.2, Affordable Housing Requirements.

2. The affordable units shall be equitably dispersed throughout the building and shall be comparable to market-rate units in terms of location, quality and character, room size, number of rooms, number of bedrooms, and external appearance as approved by the Department of Planning and Community Development.

3. An Affordable Housing Deed Restriction shall be executed with the Town prior to issuance of an Occupancy Permit for the three affordable units.

4. No condominium conversion of said affordable rental units shall be permitted without the express permission of this Board. In the case of a proposed condominium conversion, Applicant shall work with the Department of Planning and Community Development to ensure that the units continue to meet the requirements of Section 8.2.

5. The owner shall make provisions for a restaurant tenant in the commercial space, including location for a grease trap and a chase for black iron venting to the roof.

6. The owner shall file an application for all building and property signage for review and approval by this Board.

7. The owner shall install at least one (1) Electric Vehicle charging station in the parking lot.

8. The owner shall install amenities for building residents, including outdoor seating, an outdoor grill, a garden for use by the tenants, and appropriate landscaping, shade, and/or other amenities encouraging outdoor use in the usable open space. The owner shall landscape the smaller areas of the plan labeled not sufficiently sized for usable open space.

9. The owner shall submit a Transportation Demand Management (TDM) plan for review and approval by the Department of Planning and Community Development.

10. The owner shall submit an updated façade design plan, particularly for the corner entrance to the residences, including building color schemes, for review and approval by the Department of Planning and Community Development.


July 13, 2020: Altered Mass. Ave. block proposal to return

May 19, 2020: Mass. Ave., hotel developers told to come back in July
May 3, 2020: Toraya closes as 22-apartment project planned for block

This news analysis was published Sunday, Aug. 9, 2020.

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