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 Committee Report

Committee Report #1


In City Council November 7, 2011

Councillor Sam Seidel, Chair  
Councillor Leland Cheung  
Vice Mayor Henrietta Davis  
Councillor Marjorie C Decker  
Councillor Craig A Kelley  
Mayor David P Maher  
Councillor Kenneth E Reeves  
Councillor E. Denise Simmons  
Councillor Timothy J Toomey  

The Ordinance Committee held a public hearing on September 14, 2011 and a follow-up public meeting on October 25, 2011 to consider a re-filed petition to amend the zoning ordinance filed by Chestnut Hill Realty (Attachment A).  The petition would allow creation by special permit of rental apartment units in basement units of existing multifamily residential buildings in Residence C Districts which meet the special permit criteria.

Present at the September 14th public hearing were Councillor Sam Seidel, Chair of the Ordinance Committee, Mayor David Maher, Vice Mayor Henrietta Davis, Councillor Leland Cheung, Councillor Kenneth E. Reeves, and City Clerk Margaret Drury.  Present at the October 25th public meeting were Councillor Seidel, Vice Mayor Davis and Mayor Maher and City Clerk Drury.  Also present were Brian Murphy, Assistant City Manager for Community Development, Stuart Dash, Director of Community and Neighborhood Planning, Community Development Department (CDD) and Jeffrey Roberts, Neighborhood Planner, CDD.   Owen O'Riordan, City Engineer also attended the October 25th meeting.

The September 14th hearing began at 6:58 P.M. with a presentation from the petitioners, Mark Levin and Matthew Zuker of Chestnut Hill Realty.  They reported on the changes in this petition from the first petition on flooding issues and affordable housing units.  Flood concerns have been addressed.  With regard to sewer backflow issues, all units must have separate sewer and storm drainage lines from the unit and the street, there must be backflow preventions for each unit, and for buildings with a history of sewer backup problems, the City Engineer can require additional safeguards.  With regard to overland flooding concerns, buildings on sites with a history of overland flooding would not be allowed to build basement units.

With regard to affordable housing, the petition would require that if any amount from one up to nine new basement units are built, one of the units must be affordable, if 10 are built, two affordable units must be built and for any amount after 10, the normal inclusionary zoning requirements would apply.

Councillor Seidel requested that CDD staff describe the Planning Board hearing and recommendation, a copy of which is attached to this report (Attachment B).  Mr. Dash said that while some members of the board were intrigued with the proposal, their overall recommendation remained the same as the it was for the previously filed petition, i.e., that the Planning Board does not recommend ordination of the amendment as currently proposed.  The board noted that while the revised petition does attempt to deal with flooding and affordability issues, those issues remain as important concerns.  A memorandum from the City Engineer is attached to the Planning Board report.  Mr. Dash noted that the Planning Board also expressed some concern about the petition's allowance of new units without any additional parking space requirement, along with concern about the quality of basement units.

Vice Mayor Davis stated that she would need to hear from the City Engineer at a committee hearing before she could consider voting on any proposal for creating additional basement units.

Mayor Maher asked whether members of the Planning Board had viewed the units.  He stated that he was quite skeptical when he first heard of the proposal, but after actually seeing the space and some existing basement units, he was impressed with the quality of what could be built.  He said that he has some interest in a pilot program, with a sunset clause and a required review of the results of the pilot.  He said that he would also be interested in some way of targeting seniors as tenants who could be looking for ways to give up driving.  He agreed with Vice Mayor Davis that the committee should hear from the City Engineer. 

Councillor Reeves said that there are already basement apartments in Cambridge, some quite charming and liveable, some not. 

Councillor  Seidel said that he thinks that there are still a lot of questions that need better answers for him to reach a comfort level with the proposal.

He invited public comment.

Sheila Russell, Hawthorne Park, consultant to Chestnut Hill Realty, stated that she looked at two existing basement units in eligible buildings.  She was quite surprised at how spacious and comfortable they were.  She said that Cambridge needs affordable housing and that this proposal is a good way to add some more.

Mayor Maher moved that the petition be held in the Ordinance Committee.  The motion passed on a voice vote without objection.  The September 14th public hearing was adjourned at 7:33 P.M.

Councillor Seidel called the October 25, 2011 follow-up meeting to order at 4:13 P.M.  He invited Mr. O'Riordan to begin with a report on the flooding issues associated with this petition. 

Mr. O'Riordan said that the Engineering Department has concerns in two areas:  sewer backup and overland flooding.  He has had a productive meeting with the petitioners.  They have worked successfully to provide safeguards with respect to requiring in the ordinance proper plumbing to address the sewer issue. 

The bigger issue is overland flooding, which is ultimately a result of conveyance capacity and cannot really be predicted with total certainty.  There is some historical data, but there have been recent events that would not have been predicted by the historical data.  He described a building with about eight basement units built in the 1960's.  For many years there were no problems with flooding.  Only recently have they experienced basement flooding as a result of overland flooding events.

Mr. O'Riordan said that they have developed additional analysis and modeling techniques.  There are a number of areas within the petition area that are likely to be susceptible to overland flooding.  They would have to develop language to define these areas.  In the July 2010 overland flooding event, the DPW received 200 calls from homeowners.  Judging from that number of calls, they estimate that the number of properties impacted by that event was much greater, perhaps as much as ten times as large.  Mr. O'Riordan said that as we look as climate change, we see the probability of more flooding in the future.

Councillor Seidel asked Mr. O'Riordan to elaborate on the effort to define the areas of probable overland flooding.  Mr. O'Riordan said that the first meaningful discussion took place at a meeting with CDD and the petitioners that day.  There was agreement that the language would have to provide broad discretion to the City Engineer to use his modeling techniques to estimate probabilities and, based on those reasonable estimates, to be able to make the decision that in a particular proposed site, the construction of a basement apartment is not in the City's best interest.

Vice Mayor Davis noted that Mr. O'Riordan spoke of the "City's best interest."  The property owner petitioners say that the petition is in the City's best interest.  She asked the City staff why it matters to the City.  Mr. O'Riordan said that this is a philosophical and a legal question as well, but on the practical level, their experience has been that when there are flooding events, a lot of city resources are utilized in the municipal response to the event.  The city has spent considerable funds on flooded basements, beginning with the first responder activities to cut off gas and electricity and continuing on to the funds spent to try to alleviate the problem that exists.  An extremely large amount of money has been spent to try to improve the sewer lines.

Vice Mayor Davis asked Mr. O'Riordan to define overland flooding.  Mr. O'Riordan said that the ground becomes saturated.  The storage capacities of the city are all filled up.  At that time the water is virtually being stored on the surface of the ground and eventually builds up to the extent that it overwhelms the system's ability to move the water out of the system.   Mr. O'Riordan said that the ability to convey water out of the system is very constrained by the Charles River and the Alewife River and their dams.  The elevation of the Charles Rivers is artificially high. 

Vice Mayor Davis said that past history does not seem adequate to predict these recent rain events, for example the July flooding in Cambridge and the flooding in Swampscott a few weeks ago.  She asked Mr. O'Riordan if he could have predicted that the properties that would be affected in July were the properties that were affected.  Mr. O'Riordan said yes and no.  There are some areas that are surely bad risks.  Vice Mayor Davis said that the trend is toward moving mechanicals that can be damaged by flooding out of basements.  In the future we will see that furnaces, etc., will not be in the basement of the building.

Vice Mayor Davis said that she feels concerned because these rain events are very serious.  She is concerned about delivering apartments at risk in these events to citizens even though the City has had no part in building them.  She gave the example of the Kennedy Biscuit building in which the environmental conditions were found to be responsible for exacerbating the asthma that led to the death of a child. 

Mayor Maher said that he would have no problem with giving the City Engineer the authority to make decisions on what areas would be appropriate or not appropriate based on engineering data analysis.  He has toured the some of the sites and found that the sites are decent.  He looks at this as a pilot project that could start in a small and confined way.  Staff could evaluate the success, and if the worst case scenario occurs, the project would end.  If this proposal does move forward, he intends to introduce a sunset provision.  He would like staff feedback on what length of time would be appropriate for a pilot program.  Three years?  Five years?  He would want a provision that six months prior to the expiration date, the City Council would get a report on the pros and cons.

Vice Mayor Davis said that the idea of a sunset provision raises the issue of spot zoning for a particular owner.  Mayor Maher said that this petition does not just cover one owner.  There are several owners who could take advantage of the amendment.

Vice Mayor Davis asked about other Planning Board concerns.  Mr. Murphy said that there are issues about the affordable housing.  The petition would provide for at least one unit of affordable housing in a building.  However, the unit would be a studio or one-bedroom unit, which is not really suitable for families.  That size unit does not encourage permanence.  Additionally, the petition would allow for the waiver of all requirements to provide additional accessory parking for the units.  This is a particular concern because the new units would likely be situated in neighborhoods where on-street parking is very limited.

Councillor Seidel noted that Councillor Kelley had submitted a communication for the record in which he stated that he would not be interested in supporting the proposal unless the petition provided that occupants of the new basement units could not get resident parking stickers (Attachment C).

Councillor Seidel then invited the petitioners to make any comments they desired.  They summarized the changes since the last petition and hearing: 

  1.  Pilot program provision with sunset clause.
  2. City Engineer to have full authority to require additional safeguards.
  3. If there is a history of overland flooding on the site, no new basement units would be allowed.
  4. Improvement of affordable housing proposal.
  5. De minimus increase in parking

At this time the committee members made the following motion to encompass the questions which they deemed must be anwered before they could finally consider the petition:

Councillor Seidel

Mayor Maher

Vice Mayor Davis

ORDERED:                 That the City Manager be and hereby is requested to confer with the Assistant City Manager for Community Development, the Commissioner of Public Works, the City Engineer, the Director of Traffic, Parking and Transportation and the City Solicitor to provide the following information and material to the Ordinance Committee no later than November 21, 2011:

1.      Answers from the City Solicitor as to 1) Whether the Zoning Ordinance can provide for a Special Permit for development of basement units that requires review and approval by the City Engineer of the appropriateness of the site with regard to the level of risk of overland flooding such that without said approval no special permit will be issued; and 2) Whether the special permit can also provide that the landlord must provide flood insurance that covers flood damage to the tenants'  possessions.

2.       Responses from the Assistant City Manager for Community Development and the Director of Traffic Parking and Transportation on the effect on the City's overall parking demand management policies of enacting the proposal for a complete waiver of the accessory parking requirements for the new basement units.

3.      Information from the City Solicitor, Assistant City Manager for Community Development and the Director of the Traffic Parking and Transportation Department as to the legality and feasibility of some mechanism that would prevent additional on-street parking demand from the new basement units by prohibiting anyone in the newly created units from receiving resident parking permits ( e.g., deed restriction, lease requirement, whatever method Boston is using, etc.).

4.      Language for amendments to the current proposed amendments to accomplish the following:

a.      Authority of City Engineer to reject application based on his estimation of the danger of overland flooding;

b.      No resident parking permits for these new units

c.      Providing that this special permit program is a pilot program  requiring a review and report to the City Council with recommendations regarding continuation six months prior to the expiration date.

The motion passed on a voice vote without objection.  Thereafter, on a voice vote without objection, the committee passed a motion to refer the proposed amendment to the full City Council without recommendation.

Councillor Seidel thanked all those present for their attendance.  The October 25, 2011 meeting was adjourned at 5:10 P.M.

For the Committee,

Councillor Sam Seidel, Chair
Ordinance Committee


View attached file


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