A developer is free to put up a 22-story apartment tower in Kendall Square now that a city councillor has withdrawn her order for a vote to be taken over.

Among the concerns of city councillor Minka vanBeuzekom: The city might have inadvertently allowed for the creation of fewer apartments reserved for low-income tenants and more for short-term residents, even though councillors have been talking publicly about moving toward requiring more affordable housing and finding ways to make the city more family friendly.

“We missed several opportunities to shape Kendall Square for the benefit of the public,” city councillor Minka vanBeuzekom said in a Wednesday letter explaining her actions. “My ‘no’ vote on the Ames Street Rezoning represents a protest against a rush to decision. In my opinion, the council did not suitably discuss amendments to the zoning ordinances.”

Boston Properties has promised an apartment tower three times for Kendall Square, but to deliver this time it needed slightly more land, leading it to offer the city just over $2 million for 8,556 square feet of sidewalk along Ames Street. Last week, every councillor voting – including vanBeuzekom – approved the sale.

Two votes against

The company also wanted zoning changes, including permission to rent more storefronts to fast food restaurants allowed and to cut in half the number of parking spaces needed for its new apartment renters. When it came to this custom zoning within the existing so-called MXD District, councillor Craig Kelley and vanBeuzekom voted no.

“I am frustrated that the vote came up tonight – we had until [Feb. 5] to review it – and I think it was rushed,” Kelley said.

But although the two councillors were aligned in their opposition, vanBeuzekom made the mistake of first voting yes. When she tried to correct her official vote, Kelley blocked it, and vanBeuzekom filed for “reconsideration,” which would have brought the zoning back for a vote Monday. She stuck by her move for reconsideration even after Kelley changed his own mind and allowed her vote change – and despite being jeered loudly by many people at last week’s council meeting.

On Wednesday, though, she reversed herself again even while explaining her several problems with the zoning, because “it appears unlikely that the voting outcomes on this petition will change.”

Her problems with the zoning, began she said, with its examination in the council’s Ordinance Committee, run by David Maher:

There was no quorum of councillors at the only Ordinance Committee meeting held to discuss the Ames Street rezoning petition. At the unofficial meeting, the Community Development Department was requested to report back to the committee with specific zoning information relating to fast food businesses, housing types and housing affordability. This did not occur.

She said she feared the fast-food rule – which is on track to be changed retroactively, as the Community Development Department has been working on a definition but hasn’t finished – would crowd out businesses residents want in Kendall, such as a grocery or a pharmacy; and that the zoning could lead to the apartments becoming “corporate housing or short-term housing for visiting scientists and corporate executives” instead of having space reserved for families.

Open space

She also looked at  that the way Boston Properties’ zoning handled open space – as a districtwide total instead of at by how much went with each lot making up that district.

In approving its end of the Ames Street tower proposal, the Kendall Square-focused Cambridge Redevelopment Authority won an extension of the public’s right to use a rooftop garden for 99 years, to 2112. That didn’t stop the garden from shrinking, though, and it was the removal of 42 percent of the garden from public use (for construction of a Google building and as a private garden area for Google and the Ames Street apartment tenants) that led to this point.

It’s the zoning’s open space approach that’s supposed to stop that from happening again.

“We can’t add or take away without another zoning amendment. That should offer some level of protection,” said David Stewart, project manager for Boston Properties.

The total for the company’s four big lots using this approach is about 53,000 square feet, which architect and involved citizen Tom Stohlman deemed a loss of about 30,000 square feet of potential open space. Resident Heather Hoffman, a lawyer who attends many meetings of the council and CRA and has followed the Boston Properties apartment tower proposal from the start, was also critical.

“While it might well be better from a planning point of view to plan the open space strategically throughout the district, Boston Properties has shown that it cannot be trusted to tell the truth about open space, nor to safeguard it without a very short leash,” Hoffman told the council in public comment. “BP has played fast and loose with the definition of open space, apparently counting a median strip and odd bits of pavement used as motorcycle parking.”

From vanBeuzekom’s perspective, though, the zoning just “throws into question the need for a new 99-year agreement with Boston Properties to grant public access to the Kendall rooftop garden.”

Density and housing

Perhaps the most serious issue vanBeuzekom raised in her letter was the effect of granting unlimited density for the apartment building. “Because the petitioners received an unlimited [floor area ratio], the city may now be limited in its ability to incentivize the creation of a maximum number of affordable units. The new zoning language seems to imply the city has lost the ability to offer increased density for more affordable units (for low- and moderate-income residents) and may not expect 15 percent of units as affordable,” she wrote.

Hoffman agreed with that take on the zoning.

“I don’t think it supports any bonus,” Hoffman said. She had previously told the council:

We want housing in Kendall Square. We want affordable housing in Kendall Square. I have listened to hours of council speechifying about the alleged 15 percent affordable housing requirement, which we all know is a lie unless you flunked arithmetic and can’t tell the difference between 15 and somewhere around 10 or 11.  So could someone explain to me why BP is planning to build 240 to 250 units, with 30 to 32 of them affordable?  They don’t get bonus units and square footage in the MXD District, do they? How could they if there’s unlimited [floor area ratio]? Why are they talking about 12.5 percent affordable housing instead of 15 percent?

This would not be the first time the council went ahead and approved a business deal even after a problem had been pointed out. Last February, Kelley and vanBeuzekom noted a loophole in zoning at a Forest City development near Central Square, which councillors approved anyway. Before that, citizen Charles Marquardt had warned the council that the CRA at the time lacked board members and couldn’t properly have vetted the Google proposal. Councillors ignored the warning, which was correct, and okayed construction.