SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2856

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-First General Court
(2019-2020)

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by adding the following new sections:

SECTION XX. SECTION 1. Chapter 665 of the acts of 1956, as amended, is hereby amended by inserting at the end of the fourth paragraph the following sentence:-

The zoning commission may establish rules and regulations for its own procedures not inconsistent with this act and may, from time to time, establish subcommittees as it sees fit.

SECTION 2. Section 2 of chapter 665 of the acts of 1956, as amended, is hereby amended by striking out the first paragraph and inserting in place thereof the following paragraph:-

For the purpose of promoting the health, safety, convenience, morals and welfare of its inhabitants, the city of Boston may, through zoning regulations adopted by its zoning commission, regulate and restrict the following: the height, number of stories and size of buildings and structures, size and width of lots, percentage of a lot that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures, and land for trade, industry, agriculture, residence or other purposes. In order to protect and enhance the public welfare and meet planning goals so that neighborhoods will have a range of housing options with sizes, types, and levels of affordability to support a diverse populace, the zoning commission may also adopt inclusionary zoning regulations or amendments to establish and further Inclusionary Development for income restricted housing in residential developments.

SECTION 3. Section 2 of chapter 665 of the acts of 1956, as amended, is hereby amended by striking out the third paragraph and inserting in place thereof the following paragraph:-

A zoning regulation shall be designed among other purposes to lessen congestion in the streets; to conserve health; to secure safety from fire, panic and other dangers; to provide adequate light and air; to prevent overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of a range of housing options with sizes, types, and levels of affordability to support a diverse populace, transportation, water, sewerage, schools, parks and other public requirements; to conserve the value of land and buildings; to encourage the most appropriate use of land throughout the city; and to preserve and increase its amenities.

SECTION 4. Section 8 of chapter 665 of the acts of 1956, as amended, is hereby amended by striking out the last sentence in the sixth paragraph and inserting in place thereof the following sentence:-

The board shall establish rules and regulations for its own procedures not inconsistent with this act and may, from time to time, establish subcommittees as it sees fit.

SECTION 5. Section 8 of chapter 665 of the acts of 1956, as amended, is hereby amended by striking the word “her or him” in the last sentence of the last paragraph and inserting in place thereof the following:-

him/her/them

SECTION 6. Section 15 of chapter 665 of the acts of 1956, as amended, is hereby amended by striking out the meaning of "New large-scale commercial real estate development" and inserting in place thereof the following meaning:-

any development in the city in which development is proposed to erect a building or structure having a gross floor area, exclusive in both cases of all accessory parking garage space, in excess of one hundred thousand square feet or other threshold as established from time to time by the zoning commission, or to enlarge or extend a building or structure so as to increase its gross floor area, exclusive of all accessory garage space in both cases, to more than one hundred thousand square feet or other threshold as established from time to time by the zoning commission, or to substantially rehabilitate a building or structure or portion thereof having, or to have, after rehabilitation, a gross floor area, exclusive of all accessory parking garage space in both cases, of more than one hundred thousand square feet or other threshold as established from time to time by the zoning commission, which square footage is intended for one or more of the following "exaction" uses: (1) office, (2) retail business or service, (3) institutional or educational, (4) hotel or motel, but not including an apartment hotel or lodging house, or (5) other uses as determined by the zoning commission.

SECTION 7. Section 15 of chapter 665 of the acts of 1956, as amended, is hereby amended by striking out the meaning of "Substantially rehabilitated" and inserting in place thereof the following meaning:-

to cause alterations or repairs to be made to a building or structure, constituting a new large-scale commercial real estate development, within any period of twelve months, costing in excess of fifty per cent of the assessed value of the building or structure as it appears on the assessment rolls of the city as of the first day of January preceding the date of application to the zoning commission for any zoning map or text amendment to authorize such alterations or repairs, the filing of a Project Notification Form pursuant to Article 80 of the Boston zoning code, or the date of application for the building permit for such alterations or repairs, whichever is earlier.

SECTION 8. Section 15 of chapter 665 of the acts of 1956, as amended, is hereby amended by inserting the term “Inclusionary Development” and establishing the following meaning:-

a set of programs, policies, ordinances and regulations designed to create or incent the creation of income restricted housing and further fair housing by requiring development projects meeting thresholds established by the city of Boston to include income restricted housing on-site, construct income restricted housing off-site or contribute financially to the construction of income restricted housing or a city fund designated for such purpose.

SECTION 9. Section 15 of chapter 665 of the acts of 1956, as amended, is hereby amended by inserting the term “income restricted housing” and establishing the following meaning:-

a unit of housing, whether rental, condominium or cooperative, a single or multi-family owner occupied home, or other dwelling type, for which the occupancy cost to the resident(s) thereof does not exceed the percentage of the maximum income of an income eligible occupant household, attributed to that unit of housing, as defined by any state or federal agency, authority, department, or similar instrumentality providing financial assistance to reduce the occupancy cost of housing.

SECTION 10. Section 16 of chapter 665 of the acts of 1956, as amended, is hereby amended by striking out the first paragraph and inserting in place thereof the following paragraph:-

Notwithstanding the provisions of any general or special law or rule to the contrary, in the city of Boston the zoning commission is hereby authorized to adopt zoning regulations or amendments thereto for the purpose of mitigating the effects of new large-scale commercial real estate development on the health and welfare of low and moderate income residents of Boston due to the unavailability of affordable housing in the city of Boston. Such regulations shall provide that, with respect to new large-scale commercial real estate development, any relief granted under the provisions of the zoning code, existing or as amended, including without limitation the granting of a conditional use permit, exception, zoning map or text amendment or variance, or any approvals granted pursuant to Article 80 of the Boston zoning code, shall be conditioned upon action, or promised action, by the developer seeking to obtain such relief or approvals to contribute an affordable housing exaction, to mitigate the effects which new large-scale commercial real estate development projects may have upon the availability of affordable housing within the city, which action shall be, the contribution towards the creation of affordable housing as determined by the zoning commission pursuant to duly adopted regulation. Affordable housing may be a portion of a housing development which includes residents of mixed income levels. The regulations shall provide that the zoning relief or approvals necessary to build new large-scale commercial real estate developments are distinct from any other relief or approvals granted under the provisions of the zoning code.

SECTION 11. Section 16 of chapter 665 of the acts of 1956, as amended, is hereby amended by striking out “Boston redevelopment authority” in the first sentence of the second paragraph and inserting in place thereof the following:-

Boston Redevelopment Authority

SECTION 12. Section 16 of chapter 665 of the acts of 1956, as amended, is hereby amended by inserting after the second sentence of the second paragraph the following sentence:-

The requirements for creation of housing in kind or payments made over a period of time shall be determined by the regulations.

SECTION 13. Section 16 of chapter 665 of the acts of 1956, as amended, is hereby amended by striking out the third paragraph in its entirety.

SECTION 14. Section 16 of chapter 665 of the acts of 1956, as amended, is hereby amended by striking out the fourth paragraph and inserting in place thereof the following paragraph:-

Such regulations shall provide that the measured value of the affordable housing exaction shall be determined on the basis of a fixed dollar amount per square foot of gross floor area devoted to exaction uses in excess of one hundred thousand square feet of gross floor area devoted to exaction uses or other such threshold as determined by the zoning commission, exclusive in both cases of all accessory parking garage space, of the new large-scale commercial real estate development, as determined by the zoning commission upon written recommendations of the BRA, which recommendations shall include an analysis of the following: (1) economic trends, such as real estate development activity, commercial rents per square foot, employment growth and inflation rates; (2) housing trends measured in terms of vacancy rates for affordable housing available to low and moderate income residents, and production statistics for new dwelling units; and (3) any other such information which the BRA deems appropriate for consideration; provided, however, that the zoning commission shall be authorized to decrease the measured value of the above affordable housing exaction at any time upon consideration of the factors above; provided further, that annually on each July 1st, the current housing exaction in dollars per square foot ($9.03 as of the date of adoption of this amendment) as set by the zoning commission shall be automatically adjusted by the BRA to reflect the combined index; and provided further, that the zoning commission may adopt additional adjustments based on BRA recommendations pursuant to the analysis as required above. No such increase shall apply to any new large-scale commercial real estate development for which an application for a conditional use permit, exception, zoning map or text amendment or variance, Project Notification Form or other Article 80 application has been filed with the appropriate governmental authority prior to the effective date of such increase or for which an application for a planned development area has been filed with the BRA prior to the effective date of such increase, whichever occurs first; provided, however, that the zoning commission may require increased exactions for any development project which seeks additional relief through the filing of a Notice of Project Change, amendment of a planned development area, or other such zoning relief as specified by the zoning commission. Any affordable housing exaction payment shall be made to the neighborhood housing trust, as created and administered pursuant to section twenty. The zoning commission is authorized to promulgate such regulations or rules as will effectuate the purposes of this section.

SECTION 15. Section 16A of chapter 665 of the acts of 1956, as amended, is hereby deleted in its entirety.

SECTION 16. Section 17 of chapter 665 of the acts of 1956, as amended, is hereby amended by striking out the section in its entirety and inserting in place thereof the following section:-

Notwithstanding any provisions of general or special law or rule to the contrary, in the city of Boston the zoning commission is hereby authorized to adopt zoning regulations or amendments thereto for the purpose of mitigating the effects of new large-scale commercial real estate development on the health and welfare of low and moderate income residents of the city of Boston due to the unavailability of employment opportunities for such low and moderate income residents of Boston. Such regulations shall provide that any relief granted under the provisions of the zoning code, existing or as amended, including without limitation the granting of a conditional use permit, exception, zoning map or text amendment or variance, or review and approval under Article 80 of the Boston zoning code, shall be conditioned upon action, or promised action, by the developer seeking to obtain such relief or approvals to contribute an employment exaction to mitigate the effects which new large-scale commercial real estate development projects may have upon the availability of jobs for low and moderate income residents within the city, which action shall be the contribution towards the creation of job training programs for the training of low and moderate income residents of the city as determined by the zoning commission pursuant to duly adopted regulations. The regulations shall provide that the zoning relief or approvals necessary to build new large-scale commercial real estate developments are distinct from any other relief or approvals granted under the provisions of the zoning code.

The zoning commission shall determine by regulation that the value of an employment exaction shall be measured on the basis of dollars per square foot devoted to exaction uses in excess of an amount as established from time to time by the zoning commission devoted to exaction uses, exclusive in both cases of all accessory parking garage space, in the new large-scale commercial real estate development project or other such threshold as determined by the zoning commission. The developer of any new large-scale commercial real estate development project, in lieu of contributing towards the creation of job training programs or similar projects referred to in the preceding paragraph, may make a payment or payments of an amount of money equal to the measured value of the employment exaction to the neighborhood jobs trust authorized by section twenty of this chapter over a payment period to be established by regulation of the zoning commission, for the purpose of mitigating the impact of new large-scale commercial real estate development projects.

Such regulations shall provide that the measured value of the employment exaction shall be determined on the basis of a fixed dollar amount per square foot of gross floor area devoted to exaction uses in excess of one hundred thousand square feet devoted to exaction uses, exclusive in both cases of all accessory parking garage space or other such threshold as determined by the zoning commission, in the new large-scale commercial real estate development, as determined by the zoning commission upon written recommendations of the BRA, which recommendations shall include an analysis of the following: (1) economic trends, such as real estate development activity, commercial rents per square foot, employment growth and inflation rates; (2) employment trends such as unemployment rates and statistics on the availability and use of job training programs; and (3) any other such information which the BRA deems appropriate for consideration; provided, however, that the zoning commission shall be authorized to decrease the measured value of the above employment exaction at any time upon consideration of the factors above; provided, further, that annually on each July 1st, the current employment exaction in dollars per square foot ($1.78 as of the date of adoption of this amendment) as set by the zoning commission shall be automatically adjusted by the BRA to reflect the combined index; and provided further, that the zoning commission may adopt additional adjustments based on BRA recommendations pursuant to the analysis as required above. No such increase shall apply to any new large-scale commercial real estate development for which an application for a conditional use permit, exception, zoning map or text amendment or variance, Project Notification Form or other Article 80 application has been filed with the appropriate governmental authority prior to the effective date of such increase or for which an application for a planned development area has been filed with the BRA prior to the effective date of such increase, whichever occurs first; provided, however, that the zoning commission may require increased exactions for any development project which seeks additional relief through the filing of a Notice of Project Change, amendment of a planned development area, or other such zoning relief as specified by the zoning commission. Any employment exaction shall be paid into the neighborhood jobs trust as created pursuant to section twenty of this chapter. The zoning commission is authorized to promulgate such regulations or rules, as will effectuate the purpose of this provision.

SECTION 17. Section 17A of chapter 665 of the acts of 1956, as amended, is hereby deleted in its entirety.

SECTION 18. Section 18 of chapter 665 of the acts of 1956, as amended, is hereby amended by striking out the entire section and inserting in place thereof the following:-

(a) The zoning commission is further authorized to promulgate zoning regulations and amendments thereto for the purpose of mitigating the effects of new large-scale commercial real estate development in the city of Boston on the availability of affordable housing or employment opportunities for low and moderate income residents of Boston; provided, however, that such regulations may not be in force simultaneously with those authorized by sections sixteen and seventeen. Such regulations and amendments may provide that any relief granted under the provisions of the zoning code, existing or amended, including without limitation the granting of a conditional use permit, exception, zoning map or text amendment or variance, or review and approval under Article 80 of the Boston zoning code or other such threshold as determined by the zoning commission, shall be conditioned upon action or promised action by the developer seeking to create such new large-scale commercial real estate development project or obtain such relief to mitigate the effects which new large-scale commercial real estate development may have upon low and moderate income residents of the city as determined by the zoning commission pursuant to duly adopted regulations. Such regulations or amendments shall state the specific improvements or amenities to be provided as a condition required for the grant of zoning relief or approvals and the zoning relief or approvals to be granted. The regulations shall provide that the zoning relief or approvals necessary to build new large-scale commercial real estate developments are distinct from any other relief granted under the provisions of the zoning code.

(b) Any such regulations and amendments must provide that (1) the present and future economic burden of any such improvements or amenities shall not exceed the sum of the present value of the prevailing affordable housing exaction as established by the zoning commission (at the time of adoption of this amendment, $9.03) per square foot paid in equal and annual installments over a seven year period plus the present value of the prevailing employment exaction as established by the zoning commission (at the time of adoption of this amendment, $1.78) per square foot paid in equal and annual installments over a two year period, each commencing on the date of the issuance of the building permit, for each square foot of gross floor area devoted to exaction uses in excess of one hundred thousand square feet devoted to exaction uses, exclusive in both cases of all accessory parking garage space, or other such threshold as determined by the zoning commission, in the new large-scale commercial real estate development; provided, however, that annually on each July 1st, the affordable housing exaction and the employment exaction shall be automatically adjusted by the BRA to reflect the combined index; and provided further, that the zoning commission may adopt additional adjustments based on BRA recommendations pursuant to the analysis as required above.

SECTION 19. Section 19 of chapter 665 of the acts of 1956, as amended, is hereby amended by striking out the section in its entirety and inserting in place thereof the following section:-

Notwithstanding any provision of general or special law or rule to the contrary, (a) articles 26, 26A and 26B of the Boston zoning code; (b) all zoning code amendments, zoning map amendments, zoning variances, conditional use permits and zoning exceptions granted or planned development areas approved or enacted prior to the effective date of any zoning code amendment or zoning commission regulation pursuant to this act and in any way dependent upon, or related to, articles 26, 26A or 26B of the Boston zoning code, or any of them, which have not been appealed or challenged on the grounds of the invalidity of said articles, or any one of them, in judicial proceedings timely and properly commenced, prior to the enactment of this act or which have been so appealed or challenged in judicial proceedings which have been dismissed or otherwise adjudicated in favor of the developer prior to the enactment of this act; (c) all zoning code amendments, zoning map amendments, zoning variances, conditional use permits, or planned development areas approved and zoning exceptions granted or enacted prior to the effective date of any zoning code amendment or zoning commission regulations pursuant to this act and in any way dependent upon or related to, articles 26, 26A or 26B of the Boston zoning code, or any of them, which have been appealed or challenged on the grounds of the invalidity of said articles, or any of them, in judicial proceedings timely and properly commenced prior to the enactment of this act and which have not been dismissed or otherwise adjudicated in favor of the developer prior to the enactment of this act; (d) any development impact project exactions, development impact project contributions and jobs contribution grants, as those terms are defined in said articles, and agreements for such exactions, contributions and grants related to or dependent upon any of the zoning actions described in clause (b) and (c); and (e) any additional actions, zoning variances, conditional use permits, or planned development areas approved and zoning exceptions granted pursuant to, or in connection with, any development contemplated by any zoning map amendment, zoning code amendment or agreement described in clauses (b), (c) or (d), whether or not subsequent to the date of enactment of this act, are hereby ratified, validated and confirmed, insofar as any such amendments, variances, permits, exceptions, exactions, contributions, grants, agreements, and other actions may be invalid by reason of any invalidity of said articles or any of them. Any new large-scale commercial real estate development which is the subject of any agreement ratified, validated and confirmed by this section, and any additional actions, zoning variances, conditional use permits, zoning exceptions, and zoning code and text amendments ratified, validated and confirmed by this section, shall be governed by any such agreement and by the provisions of said articles 26, 26A and 26B of the Boston zoning code, or any of them, pursuant to which said agreements were made or planned development areas approved, and shall not be subject to any zoning regulations or amendments hereafter adopted by the zoning commission pursuant to this act. Notwithstanding the foregoing, no new large-scale commercial real estate development shall be subject to the terms and provisions of sections 26-3(2)(c) of Article 26, section 26A-3(2)(c) of Article 26A or section 26B-3(1)(c) of Article 26B of the Boston zoning code.

SECTION 20. Section 20 of chapter 665 of the acts of 1956, as amended, is hereby amended by striking the word “him” in the fourth sentence of the first paragraph and inserting in place thereof the following:-  him/her/them

SECTION 21. Section 21 of chapter 665 of the acts of 1956, as amended, is hereby amended by striking the first full paragraph after the definitions and inserting in place thereof the following paragraph:-

Notwithstanding any general or special law to the contrary, in the city of Boston the zoning commission shall adopt zoning regulations or amendments thereto for the purpose of mitigating the adverse impact of new real estate development on the public health, safety, convenience, and welfare of its inhabitants, including, but not limited to, the transportation network, infrastructure, environment, urban design components, or historic resources in the city of Boston. The regulations shall provide that, with respect to new real estate development, any approval or relief granted under the provisions of the zoning code, existing or as amended, including without limitation the granting of a conditional use permit, exception, zoning map or text amendment or variance, or approvals pursuant to Article 80 of the zoning code shall be conditioned upon action, or promised action, by the developer seeking to obtain the relief or approvals, to undertake measures, as required by the BRA, to mitigate, limit, or minimize the impact within the city.

SECTION 22. Chapter 665 of the acts of 1956, as amended, is hereby amended by inserting the following section 22:

Notwithstanding the provision of any general or special law or rule to the contrary, in order to protect and enhance the public health, safety and welfare in accordance with the goal of this act, to meet fair housing and planning goals so that neighborhoods will have a range of housing options to support a diverse populace, the city of Boston zoning commission is hereby authorized to adopt inclusionary zoning regulations or amendments to set aside, or to facilitate the creation or preservation of, income restricted housing. Such regulations or amendments shall be adopted in a manner consistent with the planning and zoning authorities, standards and processes of the city of Boston, BRA and zoning commission except as specified in this section.

The zoning commission shall only adopt Inclusionary Development or an amendment thereto, following a recommendation of the Board of the BRA, and a vote or inaction of the Boston city council, as described herein. After a vote of the BRA Board, the BRA shall provide notice to the city council of the Inclusionary Development or amendment thereto. The city council shall have, from date of notification, sixty (60) days to reject the Inclusionary Development or amendment thereto, by a two thirds vote of all its members. If the council fails to reject the Inclusionary Development or amendment thereto or should the council take no action within the specified sixty (60) days, then the Inclusionary Development or amendment thereto shall proceed to the zoning commission, which shall notice and schedule a hearing in accordance with section 3 of chapter 665 of the acts of 1956, as amended.

Such Inclusionary Development or amendment thereto may include one or more of the following requirements that, regardless of the need for zoning relief, residential development projects, as defined by the zoning commission, must: (1) include a percentage of the units or a percent of square footage on-site as income restricted dwelling units, (2) produce or cause to be produced income restricted units off-site, or, (3) in lieu of including or producing such units, make a monetary or in-kind contribution toward the creation or preservation of income restricted housing. Such requirements may vary based on the zoning district of the new project, or such other factors determined by the zoning commission to be necessary or advisable to achieve the goal of this act.

In making a recommendation, the BRA shall consider: (1) Boston housing cost trends; (2) market and income restricted housing production goals; (3) providing housing at a cost not generally available in the city; (4) the city’s goal of maintaining racial and economic diversity in the city, and affirmatively furthering fair housing for members of protected classes and the larger community; (5) financial and other considerations regarding the production and cost of market-rate residential development projects and income restricted housing units; and other factors as determined by the zoning commission; provided that, the zoning commission may waive such analysis upon finding that proposed regulations are substantially similar in nature, enact clerical or procedural adjustments, clarify existing requirements, support adoption of a citywide regulation into neighborhood or planned development area zoning, or are otherwise reflected in documented consideration of such factors by the zoning commission, the BRA or the city of Boston within three years of submission.

SECTION 23. Chapter 665 of the acts of 1956, as amended, is hereby amended by deleting the fourth paragraph of section 1 and replacing it with the following:

The zoning commission and city of Boston shall cause to be made public electronically accessible contact information for members of the zoning commission and meeting minutes.

SECTION 24. Chapter 665 of the acts of 1956, as amended, is hereby amended by inserting after section 21 the following section:

Section 23. Should any part of this act be found invalid, all valid parts that are severable from the invalid part remain in effect. If any part of this act is found invalid in one or more of its applications, that part remains in effect in all valid applications that are severable from the invalid applications.

SECTION 25. This act shall take effect upon its passage.