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  • Acts
  • 2001
  • Chapter 170 AN ACT AUTHORIZING CERTAIN AMENDMENTS TO THE HOUSING AND EMPLOYMENT EXACTION REQUIREMENTS (LINKAGE) WITH RESPECT TO LARGE-SCALE COMMERCIAL REAL ESTATE DEVELOPMENT.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:


SECTION 1. The general court finds and declares that:

(a) a serious public emergency exists in the city of Boston with respect to the housing and also the employment of a substantial number of the citizens of the city;

(b) there is not an adequate supply of affordable housing for low and moderate income residents of the city;

(c) the construction of new large-scale commercial real estate developments as defined in section 15 of chapter 665 of the acts of 1956, inserted by section 3 of chapter 371 of the acts of 1987, attracts new residents to the city of Boston;

(d) the influx of residents caused by new large-scale commercial real estate developments increases the demand for housing in the city of Boston;

(e) the increased demand for housing in the city of Boston raises the price of the housing;

(f) there are material differences between new large-scale commercial real estate developments and other development projects in the city of Boston;

(g) smaller development projects do not affect the cost of housing to the extent of new large-scale commercial real estate developments in the city of Boston;

(h) new large-scale commercial real estate developments are classified differently than other development projects under the city of Boston zoning code;

(i) in order to supply affordable housing for low and moderate income residents in the city in conjunction with the construction of new large-scale commercial real estate developments, an act was adopted by the general court as chapter 371 of the acts of 1987, which imposed an obligation on large-scale commercial real estate developments to mitigate their adverse impacts on the availability of affordable housing by making development impact project exactions to provide revenue to meet the public exigency of the provision of affordable housing in the city;

(j) section 16 of chapter 665 of the acts of 1956, inserted by section 3 of chapter 371 of the acts of 1987, provides that the measured value of the affordable housing exaction to be imposed is to be determined on the basis of a fixed dollar amount per square foot of gross floor area devoted to exaction uses in excess of 100,000 square feet of gross floor area devoted to exaction uses, exclusive in both cases of all accessory parking garage space, as determined by the zoning commission of the city upon recommendation by the Boston redevelopment authority, and further provides that the zoning commission of the city may increase the measured value 3 years after October 5, 1987 and no more frequently than at 3 year intervals thereafter, but the increase shall not exceed the per cent of the increase in the combined index for the prior 36 month period;

(k) the measured value of the affordable housing exaction was set at $5 per square foot on October 5, 1987 and has been increased only once since then to $5.49 per square foot;

(l) section 16 of chapter 665 of the acts of 1956, inserted by section 3 of chapter 371 of the acts of 1987, sets forth the payment period for the affordable housing exaction as further set forth in Articles 26 and 26A of the Boston zoning code;

(m) Article 80, Section 80-5 of the Boston zoning code sets forth the applicability of Article 80 with respect to its predecessors Article 26 and 26A, in particular, that Section 80B-7 of said Article 80 supersedes said Articles 26 and 26A;

(n) Article 80, Section 80B-7(4)(a)(iii) sets forth that the affordable housing exaction for developments in the neighborhoods shall be paid in 12 equal annual installments beginning on the earlier of the issuance of the certificate of occupancy for the proposed project, and 24 months after issuance of the building permit for the proposed project;

(o) there is not an adequate supply of employment opportunities for low and moderate income residents of the city;

(p) the construction of new large-scale commercial real estate developments in the city tends to increase competition for jobs for which low and moderate income residents of the city are qualified;

(q) in order to supply job opportunities to low and moderate income residents in the city in conjunction with the construction of new large-scale commercial real estate developments, section 17 of chapter 665 of the acts of 1956, inserted by section 3 of chapter 371 of the acts of 1987, also imposed an obligation on large-scale commercial real estate developments to mitigate their adverse impacts on the availability of the employment opportunities by making an employment exaction to provide revenue to meet the public exigency of the provision of job training for low and moderate income residents of the city;

(r) section 17 of chapter 665 of the acts of 1956, inserted by section 3 of chapter 371 of the acts of 1987, provides that the measured value of the employment exaction to be imposed is to be determined on the basis of a fixed dollar amount per square foot of gross floor area devoted to exaction uses in excess of 100,000 square feet of gross floor area devoted to exaction uses, exclusive in both cases of all accessory parking garage space, as determined by the zoning commission of the city upon recommendation by the Boston redevelopment authority, and further provides that the zoning commission of the city may increase the measured value 3 years after October 5, 1987 and no more frequently than at 3 year intervals thereafter, but the increase shall not exceed the per cent of the increase in the consumer price index for urban wage earners and clerical workers as defined in section 15 of chapter 665 of the acts of 1956, inserted by section 3 of chapter 371 of the acts of 1987, for the prior 36 month period;

(s) the measured value of the employment exaction was set at $1 per square foot on October 5, 1987 and has been increased only once since then to $1.09 per square foot; and

(t) the city of Boston is currently in the midst of a real estate and economic market in which the cost of housing and job training has increased faster than the rate of increase in inflation and the consumer price index.

SECTION 2. The first paragraph of section 16 of chapter 665 of the acts of 1956, as appearing in section 16 of chapter 371 of the acts of 1987, is hereby amended by adding the following sentence:- The regulations shall provide that the zoning relief necessary to build the new large-scale commercial real estate developments is distinct from any other relief granted under the provisions of the zoning code.

SECTION 3. The fourth paragraph of said section 16 of said chapter 665, as appearing in section 3 of chapter 371 of the acts of 1987, is hereby amended by striking out the third sentence and inserting in place thereof the following sentence:- The payment period of the affordable housing exaction shall be 7 years as set forth in the Boston zoning code, such payment period to begin on the initial payment date set forth in Article 26A of said code as of November 1, 1986, and the period shall not be altered by subsequent regulation.

SECTION 4. Said chapter 665 is hereby further amended by inserting after section 16 the following section:-

Section 16A. Notwithstanding any general or special law to the contrary, the zoning commission may increase the measured value of the affordable housing exaction by the per cent of the increase in the combined index for the period commencing October 5, 1987 and ending as of the most recent anniversary of this date, notwithstanding that the period is in excess of the 36 month period described in section 16; but the zoning commission may not set the measured value of the affordable housing exaction, for the period described above, at more than $7.18 per square foot of gross floor area devoted to exaction uses in excess of 100,000 square feet devoted to exaction uses, exclusive in both cases of all accessory parking garage space. The increase shall not 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 has been filed with the appropriate governmental authority before the effective date of the increase or for which an application for a planned development area has been filed with the BRA before the effective date of the increase, whichever occurs first.

SECTION 5. The first paragraph of section 17 of said chapter 665, as appearing in section 3 of chapter 371 of the acts of 1987, is hereby amended by adding the following sentence:- The regulations shall provide that the zoning relief necessary to build new large-scale commercial real estate developments is distinct from any other relief granted under the provisions of the zoning code.

SECTION 6. Said chapter 665 is hereby further amended by inserting after section 17 the following section:-

Section 17A. Notwithstanding any general or special law to the contrary, the zoning commission may increase the measured value of the employment exaction by the per cent of the increase in the CPI-W for the period commencing October 5, 1987 and ending as of the most recent anniversary date of this date, notwithstanding that such period is in excess of the 36 month period described in section 17; but the zoning commission may not set the measured value of the employment exaction, for the period described above, at more than $1.44 per square foot of gross floor area devoted to exaction uses in excess of 100,000 square feet devoted to exaction uses, exclusive in both cases of all accessory parking garage space. The 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 has been filed with the appropriate governmental authority before the effective date of the increase or for which an application for a planned development area has been filed with the BRA before the effective date of the increase, whichever occurs first.

SECTION 7. Subsection (a) of section 18 of said chapter 665, as appearing in section 3 of chapter 371 of the acts of 1987, is hereby amended by adding the following sentence:- The regulations shall provide that the zoning relief necessary to build the new large-scale commercial real estate developments is distinct from any other relief granted under the provisions of the zoning code.

SECTION 8. Said chapter 665 is hereby further amended by adding the following section:-

Section 21. As used in this section, the following terms shall, unless the context requires otherwise, have the following meanings:-

"BRA", the Boston redevelopment authority.

"Impact", a significant effect on the public health, safety, convenience and welfare of the inhabitants of a section of the city of Boston.

"Impacted area", a section of the city of Boston that is being impacted by a development project.

"Mitigation", specific enhancements, projects, programs or financial contributions made by a developer to limit any adverse impact caused by a real estate development on an impacted area.

Notwithstanding any general or special law or rule 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 any new real estate development on the public health, safety, convenience, and welfare of its inhabitants, including, but not limited to, the transportation network, 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, shall be conditioned upon action, or promised action, by the developer seeking to obtain the relief, to undertake measures, as required by the BRA, to mitigate, limit, or minimize the impact within the city.

After the developer has submitted to the BRA formal notification of a development project subject to Article 80 of the Boston zoning code, the BRA staff shall conduct a public meeting to assess the boundaries of the area impacted by the new real estate development. Nothing herein shall be interpreted to require the BRA to limit the area impacted within the city. BRA staff shall hold at least 1 public meeting in that area to discuss for the purpose of determining the mitigation necessary to limit, minimize, or otherwise mitigate, any adverse impact caused by the new real estate development. The Boston zoning board of appeal or the zoning commission shall not grant zoning relief to real estate development subject to Article 80 of the Boston zoning code until the BRA has issued a written document specifying the required mitigation. The document shall be a public record. Notwithstanding any general or special law or rule to the contrary, the BRA shall not delegate its authority to conduct the public meetings or to require the mitigation to any other person or entity.

SECTION 9. The Boston zoning commission may adopt such regulations or rules as will effectuate sections 1 to 7, inclusive, including without limitation, regulations and rules required to amend Section 80B-7 of the Boston zoning code to reflect said sections 1 to 7, inclusive.

SECTION 10. The most recent anniversary date referred to in section 16A of chapter 665 of the acts of 1956, inserted by section 4 of this act, shall be a date earlier than the effective date of this act.

SECTION 11. The most recent anniversary date referred to in section 17A of chapter 665 of the acts of 1956, inserted by section 6 of this act, shall be a date earlier than the effective date of this act.

SECTION 12. This act shall take effect upon its passage.

Approved November 30, 2001.