On Brookline

By: Arshag A. Mazmanian

Brookline’s Zoning Bylaw Section 4.08 titled “Affordable Housing Requirements” consists of seven (7) plus pages with great detail reflecting amendments over the years addressing concerns of developers who seem reluctant to provide affordable units on the sites of their multi-residence projects.

This Bylaw provision (available at the Web site of the Town Clerk) includes provision for Guidelines to be adopted by the Planning Board. Such Guidelines are available for home ownership units at:

http://www.townofbrooklinemass.com/Housing/PDFs/440CondoGuidelines.pdf

and for rental units at:

http://www.townofbrooklinemass.com/Housing/PDFs/rentalguidelines.pdf

Contrast the above with the simplicity of the second paragraph of Section 9 of Chapter 40A discussed in the prior installment. [link] A fair reading of this second paragraph is that zoning may provide by means of special permits for certain “maximum increases in density of population or intensity of use” if the developer provides for certain amenities, including affordable housing.

This suggests that the developer can get certain development bonuses for providing any of the designated amenities. The concept of a bonus is something extra. That is, there is a base for appropriate development that may be increased by means of “density of population or intensity of use” for providing any of the designated amenities. The second sentence of the second paragraph of Section 9 of Chapter 40A specifically requires that the bylaw

“ … shall state the specific improvements or amenities or locations of proposed uses for which the special permits shall be granted, and the maximum increases in density of population or intensity of use which may be authorized by such special permits.”

A fair reading of Section 4.08 of Brookline’s Zoning Bylaw and of the Planning Board’s Guidelines discloses no base of development nor the specific bonuses that may be available for providing affordable housing in conjunction with a multi-residence project. Section 4.08 is triggered by any project involving six (6) or more dwelling units. Section 4.08 fails to set forth “maximum increases in density of population or intensity of use” for providing affordable housing in the project. There is no bonus spelled out. The affordable housing requirements are mandatory unless the project involves less than six (6) dwelling units, regardless of the size of the project site.

Limitations by means of zoning on the development of land should have some logic to it. For example, a multi-residence project may be subject to various density requirements relative to the footprint and location of the site for the benefit and protection of residents of the project, the adjoining neighborhoods and the Town. Brookline’s Zoning Bylaw details such requirement in sections other than Section 4.08.

The purpose of the second paragraph of Section 9 of Chapter 40A is to permit a developer to provide certain amenities that may benefit the Town in various ways, such as affordable housing; and in return the Town’s Zoning Bylaw will “reward” the developer with “increases in density of population or intensity of use” for his project.

In my view, Section 4.08 of the Brookline’s Zoning Bylaw fails to comply with both the letter and spirit of the second paragraph of Chapter 40A. Of course, the developer remains free to limit his project to less than six (6) dwelling units even though his site would readily accommodate significantly more units. But is this a realistic choice? Or is it an exaction?

[The next installation will compare Chapter 40A and Chapter 40B as they relate to affordable housing.]