Zoning vote is set for Monday, with warnings

The conversion into apartments of a former school, now owned by Somerville developer Mouhab Rizkallah, has inspired proposed changes for the city’s so-called 5.28 zoning laws. (Photo: Marc Levy)

A citywide zoning law remains scheduled for a vote Monday, arriving before city councillors with changes in language, several proposed amendments and warnings from a meeting two weeks ago when resident after resident stood to warn of “unintended consequences” if it’s enacted. As though to underline the warning, residents also continued to find mistakes in the proposed law.

What’s at stake: Turning large, nonresidential buildings that come on the market in small neighborhoods into a mass of apartments that could transform an area — in the words of one alarmed resident, a “density bomb.” In the case that inspired the vote, one developer owns an empty former school on cozy, one-way Norris Street in North Cambridge that at one time was proposed to hold so many renters it would have doubled the number of residents and likely clog the street with cars.

The Monday vote comes just two days before the proposed changes for the city’s so-called 5.28 zoning laws expires. If a vote isn’t taken, the proposal will have to be refiled. It would be the third filing, and would face a likely deadline for a final vote around January.

Norris Street resident Sue Hall spotted one mistake in the current proposed law when comparing figures in a document prepared by the city’s Community Development Department. Much of the debate comes down to figuring out how much of a large building could be used to hold apartments, then how many apartments would fit in that space and of what size. Hall noticed that when by subtracting a building’s “common space” to calculate the size of an average apartment, the CDD mistakenly made it seem as though apartments would be smaller than the actual proposal. With the calculations done right, average apartment sizes would go down about 8 percent (to 1,653 square feet from 1,800) rather than the 24 percent it looked like (to 1,364 square feet) at first.

Charles Marquardt, a candidate for City Council, looked at how space in the large buildings could be used for nonresidential uses so it’s not all either living space or empty and useless. He noticed that the draft of the law residents saw two weeks ago would not allow for such things as an art studio on the ground floor, but does allow police and fire department uses.

“I’m not sure you want a police or fire station on the ground floor of a residential building,” Marquardt said.

Indeed, planner Jeff Roberts told the council, the draft of the proposal allows for categories of use including “local government,” which could mean such things as administrative offices, a museum or municipal library — or police or fire use. “That could be amended if it was felt a fire or police station wasn’t an appropriate use under any circumstances,” Roberts said.

“Unintended consequences”

Although officials such as councillor Sam Seidel, who led the July 18 Ordinance Committee meeting, and Mayor David Maher, who has met several times with Norris Street neighbors to hone proposed 5.28 language, feel “it is time to wrap up,” there were at least a half-dozen references to “unintended consequences” and the need for intensive review of the language during the public comment period.

“Yes, time is short and we have almost reached the expiration date, but I think we need to get a legal opinion,” said Steve Kaiser, a Hamilton Street resident. “It’s crucial. And it may need refiling, but when it’s refiled maybe we can make a better ordinance.”

“This language is becoming more and more complicated, as evidenced by what I pointed out at the beginning,” Hall said, referring to the calculation error she spotted in this more-than-fivefold expansion in the length of the original law. “We just have to be very careful as we go along. We’re almost getting to the point where it’s inevitable some sort of unintended consequences are going to fall out of this language.”

The spotting of flaws two weeks ago followed the spotting of similar flaws at a meeting June 20 that had city councillor Ken Reeves asking CDD mildly whether there was “someone within the department who will review for typos.”

But more significant is the motivation for the proposed changes: Current law says the Norris Street project — the conversion into apartments of the former North Cambridge Catholic High School, now owned by Somerville dentist and developer Mouhab Rizkallah — isn’t allowed. In what Maher and City Manager Robert W. Healy call a mistake going against the “intent” of 5.28, the law says  a nonresidential building simply cannot be turned into apartments in a neighborhood zoned Residential B, which describes Norris Street.

History of 5.28

It was established that way Jan. 24, 2001, as part of a citywide rezoning, according to records turned up by City Clerk Margaret Drury, and related criteria for special permits needed by developers taking on projects such as Rizkallah’s were put in place Oct. 16, 2006. As a result, the city’s zoning ordinance says now at Article 3.11 that Residence B areas are for “two-family or semi-detached dwellings” only; that the table of uses at Article 4.30 gives a “no” on the line asking about multifamily dwellings; and that rules for “offstreet parking and loading requirements” in Article 6.36.1, when consulted concerning multifamily dwellings, show there are none because the use is “not applicable.”

Councillor Craig Kelley remains a certain “no” vote on the proposed change to 5.28 laws because it defines how to make conversions when the law says there should be no conversions in the first place. “I don’t understand how one can be clearer than saying ‘no,’” he has said in rejecting the notion that the law has simply been incorrect and against the council’s intent since 2001. He and others have expressed concern about precedent — that other laws could simply be identified as having been entered into the record incorrectly and thus ignored.

A final mistake for the July 18 meeting seemed to come when Seidel called debate about the proposed citywide changes “a conversation that’s been going on now more than a year.”

Later in the meeting, while confirming with the city clerk how many public meetings there’d been on the issue and who was alerted directly when they were about to take place, Maher corrected that “this is a complex answer to a complex problem that I believe came to us seven months ago.”

Seidel seemed to have been referring to a separate 5.28 proposal brought up by councillor Tim Toomey in March 2010 in response to Jesuit properties that had come onto the market and were bought by Harvard University when the city failed to bid on them for use as affordable housing. That proposal, “for an amendment to Section 5.28.2 of the zoning ordinance to include a provision to facilitate the conversion of institutional property to affordable housing,” died in August 2010.

Despite the errors, residents were effusive July 18 in thanking the city and its officials for their work on legal language that continued to improve incrementally and was described as nearing acceptability.

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