Downtown District zoning: Planning’s changes please opponents but frustrate proponents; Article may be pulled

by beth on September 30, 2021

Post image for Downtown District zoning: Planning’s changes please opponents but frustrate proponents; Article may be pulled

Above: The Board of Selectmen supported adopting Planning Board’s recommendations for the proposed Downtown District Bylaw, including a revised map. (image cropped from posted hearing materials)

For years, selectmen have stressed that zoning changes require ⅔ Town Meeting vote, and seldom pass when there are vocal opponents. For the Economic Development Committee to reform downtown zoning, it needed support from the selectmen, the Planning Board, and the community. That consensus appeared to finally be achieved last week. 

Unfortunately, that compromise version doesn’t pass muster with the group that initially spearheaded the initiative.

The EDC is publicly objecting to Planning Board recommendations adopted by the selectmen (the official Article sponsors). EDC is calling some of the revisions too restrictive, and counter to the zoning goals. Issues relate to maximum building sizes allowed by right and restrictions on the number/percentage of residential units allowed in a mixed use project.

Some EDC members have opined the Town might be better off keeping current bylaw than passing the compromise version. On Friday, a member referred to Selectman Marty Healey’s advice to “not let the perfect be the enemy of the good.” John Wood quipped, he wasn’t sure the compromised version was “good”.

Yesterday morning, selectmen discussed the possibility of pulling the Article slated for a November 1st Special Town Meeting* if the EDC won’t support it. They will discuss it with the EDC this Tuesday, prior to signing a final version of the STM Warrant.

There is one significant area of apparent progress, a revised zoning map. And, despite publicly dug-in heels, Town officials have signaled the possibility for compromise.

Background

The EDC has long been pushing for new zoning bylaws to revitalized the Downtown Business Village. Their vision was zoning codes that would welcome investments in new downtown business development. To achieve that, they wanted a streamline the approval process for desired business uses.

They also proposed outlining uses for the area that would allow desirable projects “by right”, without subjective hearings by the Planning Board. That included encouraging mixed residential and commercial buildings. Buildings with 1-2 stories of residences above businesses were intended to attract developers and support existing businesses by increasing foot traffic.

After batting back and forth whose responsibility it was to develop the bylaw, the EDC agreed to lead the effort with Planning support. Selectmen became more involved after a legal issue was raised that the Article couldn’t be submitted by the EDC.

Eventually, representatives from EDC, Planning and the Board of Selectmen worked together, with support from consultants, to draft a proposed bylaw. Through that effort, allowing multi-family homes to meet Town housing diversification goals and support downtown businesses also became part of the mix.

When a proposed Article was shared with the public last February, some residents began raising concerns and speaking in opposition at Planning’s hearings (and other forums). [Although, some anti-EDC blog commenters had been criticizing the effort from the beginning.] Residents objected to taller buildings and high density that bylaw standards would potentially allow by right. Some claimed the zoning would only attract apartment buildings or more banks rather than desired retailers or eateries.

Kevin Miller of Latisquama Road represented himself and neighbors in voicing concern over the zoning map. He worried what new by right language could allow in backyards of residential homes. Miller highlighted that if owners of residential lots split by the map sold off those sections to a developer, they could be cobbled together with a parcel owned by the railway to allow a large multifamily, mixed use, or business there without a hearing.**

Selectmen decided to postpone the bylaw to a Special Town Meeting this fall, to allow officials to work out some of the issues raised. Hearings were reopened this summer based on an updated version.

Planning Recommendations

On September 20th, the Planning Board made several recommendations for changes based on residents’ and members’ concerns. The following night, the Board of Selectmen voted to adopt all of them as the version to include in the Warrant for voters.

Disagreements on Mixed Use Restrictions 

Changes that the EDC objects to include Planning’s capping of residential units in a mixed-use project.

Planning members opined that bringing in downtown businesses was the main purported reason for making zoning changes. They discussed the potential ways that the mixed-use could allow too many downtown apartments without meeting that goal. Unlike multifamily housing, mixed-use projects don’t automatically require a special permit hearing. 

Indicating a potential loophole, Chair Don Morris suggested prohibiting any dwellings on first floor of a mixed use project. Rear facing first floor units had been pitched as a way to add handicap accessible housing. But Morris said someone could simply add an ATM to an apartment building’s first floor, facing the street and call it a mixed-use.

Member Andrew Mills opined that capping residential use in a mixed-use building at 40% would better address the Board’s and neighbors’ concerns. Ultimately, the entire Board agreed. 

As now written, that would prohibit projects that representatives from Planning had previously agreed to – buildings with first floor commercial uses topped by 1-2 floors of residences. Not even a special permit would allow a two story project with that concept. (The second floor would have to be 10% smaller or include at least one commercial unit.) 

Mills also worried that allowing up to 8 residential units without a special permit was too many. He suggested keeping it to three by right. Member Jesse Stein agreed that was more in keeping with the kinds of buildings they’d be looking at. 

Member Marnie Hoolahan suggested loosening that to four. Member Meme Lutrell pointed out that once they hit four units, at least one unit is required to be affordable. Based on that, she felt the project would warrant more oversight.

EDC members objected to both of those changes in comments made that night, at the September 21st Board of Selectmen meeting, and in a public letter submitted to both boards and emailed to residents. 

The committee asserts the 40% requirement, “makes no sense and negates the original intent of adding by-right mixed-use.” And the reduction to three by right units was described as “overly restrictive, undermines the intent, of encouraging mixed-used development, and was proposed arbitrarily with almost no discussion or reasoning.”

Disagreements on Mixed Use Restrictions and Building Size/Scale

The other issue that EDC’s Julie Connelly strongly objected to was the reduction of the by right Floor Area Ratio for buildings. The EDC, Planning, and BOS had debated the merits of using lot coverage or FARs to define the allowed density of projects.

Connelly had argued for defining the percentage of a lot that could have impervious surfaces, as recommended by the zoning consultant. (That would include the building, patio, walkways, and parking lot.) Requirements such as setback and height restrictions would be used to limit density.

Feb 16th Downtown forum - slide 10 - Floor Area RatioPlanning was in favor with sticking to FARs as used in other sections of the zoning bylaw. (That divides the building’s capped footprint by the number of stories. See the image right for a better understanding.)

For months, representatives from EDC, Planning and BOS had agreed on a compromise FAR of 0.35 by right and 0.5 by special permit.

In earlier meetings some residents questioned if FAR was the right metric, worrying it would lead to mini skyscrapers. Last spring, the BOS proposed replacing the FAR with lot coverage. But the mistaken inclusion of text allowing 80% coverage raised alarms about too high density. This summer, that figure was changed back to the 0.35 FAR in the proposal used for hearings.

Connelly repeatedly expressed concern that the 0.35 FAR was too limited to attract businesses to smaller lots, like the one at 2 East Main Street. She said she understood that residents were concerned about the potential for a larger by right project on a larger lot, like a parcel on Park Street.

In the draft document submitted for the September 20th hearing, Connelly continued to push for using lot coverage, suggesting 70%. She followed that if Planning still wanted to stick with the FAR, she urged a tiered approach:

(a) For lots of 2 acres or less: 0.50 as of right, or a maximum of 0.70 by special permit from the Planning Board.

(b) For lots greater than 2 acres: 0.35 as of right, or a maximum of 0.5 by special permit from the Planning Board

On the 20th, Lutrell said she didn’t support that change. She noted that she had felt that 0.35 was already to high. Morris asked if she would like to lower it to 0.3. She said yes. Hoolahan supported the reduction, reminding it was closer to their initial position. Other members agreed.

During the hearing on the 20th, Morris asked the EDC to limit their comments to “new information”, rather than going over old differing opinions. EDC’s Alan Belniak said zoning was meant to make the downtown area special. He opined the changes appeared to be making the zoning closer to current zoning and zoning in other sections of town.

Connelly pointed out that the new FAR would cap a three story building to 9% of the lot (by right). She urged reconsideration of it and the mixed-use residential caps, to no avail.

At the EDC’s September 24th meeting, Connelly updated that the change would actually make the by right FAR for commercial buildings more restricted than the current bylaw. Other members agreed it was too restrictive. They agreed to send a letter stating their objections to the three big changes. That included:

The reduction of the Floor Area Ratio from 0.35 to 0.30 is (i) contrary to months of agreed upon discussion, (ii) against the recommendation of the zoning and planning experts hired by the Town, and (iii) significantly lower than the current Floor Area Ratio permitted in the Downtown Business Village District, which is currently 0.50 for commercial buildings (see Schedule of Dimensional Regulations).

Areas of general agreement – Redrawn Map, Reduced Building Height, Reduced max multi-family units

Downtown District Zoning MapThe Planning Board recommending redrawing the map boundaries. In the image to the right, the portion shaded white is proposed to be changed to the Downtown District Zone. Not included are lots that are partially split between the current Downtown “Business Village” and “Residence B”. Those will retain their current zoning, as will the lot owned by CSX Railroad.

In original versions of the proposed bylaw, four story buildings were allowed. Residents pointed out that’s not only higher than currently allowed downtown, but higher than anywhere in Town. The version proposed for this fall lowered that to three stories, but still 40 feet. Last week, Planning recommended lowering that to the currently allowed 35 ft max.

The zoning will add multi-family housing as a potential use downtown, not currently allowed anywhere in town. However, the use requires the Planning Board to approve a special permit. On the 20th, reducing the number of allowed units from 12 to 10 was one of the ways Planning addressed residents’ concerns. Other edits related to clarifying some of the requirements like off street parking and landscaped green space.

At their Friday meeting, some EDC members expressed support for the changed map. Reaction to the building height restriction was more mixed, but all members indicated they could support it and most of the other edits. (On the other end of the spectrum, Main Street resident Ray Hokinson told Planning he still disliked allowing 3 stories but indicated he could support the compromise.) 

Board Reactions and Next Steps

In a discussion between EDC and selectmen on the 21st, selectmen supported all or most of Planning’s changes. Selectman Sam Stivers said he believed the FAR was too restrictive. Healey sided with Connelly that 40% restriction for mixed use didn’t make sense. However, both agreed to support Planning’s version. The Board prioritized having a version vetted through public hearings and supported by Planning. The belief was that they finally had a good shot at getting the votes needed to pass it.

That sentiment was before the EDC issued their letter declaring:

the Committee is unable to accept changes that add further restrictions on potential development, defeat the original intent, and make any future viable development unlikely or more restrictive.

The EDC’s letter opened with gratitude for the Planning Board and Board of Selectmen’s efforts and progress. But it summed up with their frustration:

The three particular changes referenced above, were proposed by the Planning Board at the eleventh-hour and adopted by the Board of Selectmen unanimously with almost no discussion. These added changes undermine the purpose of two years of consistent and diligent work to make small-scale but actionable modifications to the zoning code for Downtown. All in an effort to encourage future investments in amenities, diversity in housing, and a more vibrant Downtown to serve as the heart of our Community. It is our grave concern that our efforts will have been in vain if these changes are upheld. We sincerely hope you will reconsider and open these items up for further discussion before the warrant is printed.

In the continued hearing on the 27th, Town Planner Karina Quinn read the letter into the record. Lutrell objected to an inference that the submitted draft should have been treated as final. She asked if the document was to be treated that way, what would be the purpose of holding public hearings.

Morris disagreed with EDC’s sentiment that the Planning Board’s recommendations would make the zoning bylaw changes de minimis. He did note he was happy to see that the EDC stated “willing to discuss and compromise further”.

Planning will continue to hold hearings until the Special Town Meeting. Hokinson and Miller both commented their support for the Planning Board’s changes.

Yesterday morning, selectmen discussed frustration over the public correspondence. Chair Lisa Braccio asked how selectmen could present and defend an Article that they likely wouldn’t have brought forward without the EDC’s urging if the EDC doesn’t support it. Healey said he wasn’t focused on the “bruised feelings” of the groups involved, but whether or not the Article achieves their goals to improve downtown. Having recently driven through hundreds of small towns, he said Southborough’s was sadly in the bottom quadrant. But he wasn’t sure the version as revised by Planning would accomplish what is needed.

He opined that the Planning Board’s explanations for changes weren’t clear. Other selectmen noted that the EDC hasn’t voted on or been clear about what standards they want in place of the changes made.

Stivers said that he felt the revised version was “reasonably close” enought to what selectmen wanted to support. Selectman Andrew Dennington agreed. Vice Chair Chelsea Malinowski opined they include the Article in the Warrant with the potential of pulling it before the meeting. Healey agreed.

The Board has yet to post an agenda for the meeting on Tuesday, October 5th, but it’s likely to be a regular evening session.

*The Board of Selectmen is moving forward as thought there will be a Special Town Meeting this fall. However, they noted on Wednesday morning that they are still waiting for the Board of Health to approve their plans for the gathering. The meeting may be cancelled by Selectmen up to mid-October. Once the Warrant is officially posted the authority shifts to the Town Moderator.

**Major Site Plan approval hearings would likely be required for a large project, but that just gives Planning some control over elements like layout, design, and landscaping. Prior to Site Plan Approval, special permit hearings give the Board the ability to reject a project when they perceive adverse effects to outweigh the benefits for the Town or the vicinity. When a projects fits within defined thresholds in bylaws, a special permit hearing isn’t required.

{ 14 comments… read them below or add one }

1 David Parry September 30, 2021 at 1:32 PM

Please provide a link to the revised zoning article, approved by the Selectmen for Town Meeting.

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2 beth September 30, 2021 at 2:24 PM

You can find the latest version in Planning Board materials for their hearing on the 27th here.

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3 Kelly Roney October 3, 2021 at 3:04 PM

I watched the meeting, during which the Planning Board made change after change that effectively kill this proposed zoning change.

The whole point of mixed use is to make the combination of a commercial first floor and residential upper floors profitable enough to be viable. Limiting residences to 40% of floor space severely damages that.

Floor area ratio is a bad approach that leads to low rise buildings. Downtown is not the place for open space. It’s the place for reasonable density, harking back to small towns of a hundred years ago, which had mixed use and small setbacks – and which worked very well.

I’ll oppose this article if I’m able to attend Special Town Meeting.

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4 R Jackson October 4, 2021 at 6:15 PM

The Planning Board should be commended for their edits and changes to the EDC proposed by-law. Finally some expertise and common sense. The last thing we need is large 12 unit BY-RIGHT housing complex in the small downtown proposed as one of the options by EDC. We are not Framingham or Westborough Center. Also, in order to carry out the EDC plan, a $4M sewage treatment facility is likely required. Who might pay for this? EDC suggests that “someone” (as in a developer) might come along and foot the bill. Yet, the feasibility study outlines funding by mandatory sewer hook-ups for homeowners and businesses in the Downtown Village District plus increased taxes for all taxpayers. Kudos to the Planning Board for putting on the brakes and taking swift and decisive action when we needed you most. Thank you, thank you, thank you!

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5 Longtime Observer October 5, 2021 at 12:54 PM

No one who has been following town politics for the last 10-15 years should be surprised by the Planning Board subverting the process at the 11th hour. Limiting multi-family housing (whether called “mixed use” or “multi-family”), avoiding the creation of affordable housing, and preserving its own right to weigh in and ultimately tank any progress in this town is the Planning Board’s M.O.

The Planning Board’s self-interpreted raison d’etre has always been to be the God of vocal minority NIMBYs whenever and wherever and to insert itself as agitator and death knell anytime the idea of balancing Southborough’s trending elitism, what with its unchecked and unopposed proliferation of three-car-garage mansions on 2+ acres, comes up.

This is what Planning does. No one should be surprised.

What people need to do is start paying attention to elections for Planning. People are so focused on BOS elections and worrying about what the (clearly powerless) EDC *might* suggest that they neglect the real center of power in this town – the Planning Board.

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6 Longtime Resident October 5, 2021 at 2:49 PM

Well, this person who has been following town politics could not disagree more.

Planning Board is one of the best and most professional boards in town. What’s the problem? They actually ask questions and try to do the job properly? Unlike the misguided dangerous amateurs on EDC (past and present), Planning Board doesn’t allow the free-for-all giveaway to developers? The bottom line is that this is an EDC initiative. It is flawed and misplaced to begin with: this area of town is much too small and this plan will result in much too excessive density, traffic, and clog. This is NOT an economic plan, it is a harmful misplaced housing plan. The EDC has literally no idea what it is doing, other than create fee income for its cronies and try to bypass elected officials on Planning Board to get there. As for costs, they have no clue what costs they are passing along to taxpayers in perpetuity.

And yes, thank goodness, Planning Board consists of ELECTED officials, elected by the VOTERS of this town. So that means the voters in town agrees with your skewed point of view. These individuals are smart, hard working, decent professionals who ask questions. It’s not their fault that EDC is greedy and misguided with this wrong plan for the wrong location. EDC is a total failure, has too many connections to developers, and should be disbanded for wasting everyone’s time.

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7 Kelly Roney October 6, 2021 at 1:35 AM

I disagree with Planning Board members on policy, but unlike Longtime, I don’t think that people I disagree with about this one thing are bad people. They’re doing what they think is right. I just think they’re wrong, not craven or corrupt.

If we could all get back to civil disagreement and away from impugning motives, that would be great.

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8 Longtime Resident October 6, 2021 at 5:17 PM

There is nothing personal or uncivil about calling out legitimate questions and concerns on matters at hand. It’s all about the business of running the town. It can be run well. Or it can be run not so well, with conflicts of interest and other special exemptions. Its probably not a good idea in general to allow exemptions to conflict of interest laws.

Planning Board members are elected officials, elected by town VOTERS. They are careful professionals who ask questions and do the job with intelligence and ability to see through bullshit (most of the time). They usually show great constraint and patience for whining complainers. It is possible to call out crummy conflicts or frivolous wastes of time by those applicants who intentionally do not produce the required documents. So there are two sides to every story and its perfectly ok to call out unsavory and legitimate concerns. Again, it’s a business. And its NOT ok to bully the way to the candy store.

Planning Board members are careful with each matter that passes before them. They don’t make “policy” and therefore there is nothing to disagree with on that score. They apply Zoning Bylaw to whatever matter appears before them. Also, it is their authority to propose and amend zoning bylaws for Town Meeting approval. The matter before them now is an EDC initiative. Period. It originated with and came from EDC and its “consultants.” It is flawed and misplaced. It is a wrong plan for the wrong location, with many unknowns on serious legitimate concerns including hydrology, perking, infrastructure costs, traffic impacts, clog, costs to taxpayers going forward. The dangerous amateurs on EDC have not considered any of these essential factors. But they whine and blame everyone except themselves. Bottom line: It is NOT the obligation of the taxpayers to subsidize developers to enable this candy store giveaway that essentially bypasses Planning Board, the very elected Board that was put in place by the VOTERS. Bottom line: the plan was and remains ill conceived — wrong plan for wrong location. The voters need to just say no.

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9 Kelly Roney October 7, 2021 at 10:47 PM

“the misguided dangerous amateurs on EDC” is uncivil. Own it.

Of course the Planning Board makes policy. What would your preferred word be for it?

And you won’t put your name on it. Of course not!

But we agree on one thing: The warrant article is useless and should be withdrawn or defeated.

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10 Michael Robbins October 7, 2021 at 10:18 AM

Trying to find a balance between just the right amount of development with neighbors and the opinion of the entire Town’s people is incredibly hard.

However, the fact that all this time has been spent getting data, opinions, meetings, drafting and redrafting the proposal then to have wholesale changes made to it at the very end is disheartening.

The fact that the entire EDC tasked with trying to update and revitalize the downtown is 100% in opposition to these changes is concerning.

What disappoints me the most is our downtown is in much worst shape that it was thirty years ago and apparently this will not improve anytime soon.

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11 Downtown Resident October 7, 2021 at 5:33 PM

I’m not sure what you mean by “the opinion of the entire Town’s people.” Could you elaborate, please?

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12 Michael October 7, 2021 at 8:30 PM

There had been a survey done to get data on this and other town residents goals/ wants. I know that is very hard to get consensus from such a large group. However, I feel strongly that the “downtown” area needs to have some revitalization. I cannot think of another upscale town like Sboro where their downtown has gotten worse in the last 30 years.

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13 Downtown Resident October 8, 2021 at 9:05 AM

Ah, yes, the infamous survey that the EDC keeps referencing. I’ve done a little surveying of my own and guess what? Not all registered Southborough voters took part in “The Survey.” In fact, not all registed Southborough voters even received the EDC’S survey. Of the people I have spoken to over the years concerning this survey, most of them did not know what I was talking about, some of them didn’t even know what the EDC was, and only a very few of them said they remembered receiving a survey. Of the few who did receive the survey, only some of them completed it and returned it. All of those who receive it said that only 1 was sent to their home and not everyone who is a registered voter in their home received it. So, based on my own, word of mouth, casual survey, I would say that the EDC’S survey does not adequately represent all of the registered Southborough voters and therefore cannot be a justified reference for this purposed bylaw.

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14 Michael Robbins October 8, 2021 at 4:22 PM

To It’s All Relative and anyone else who feels my opinions and views are colored by my Father. If you actually took the time to speak to me or my father you would know that we are on the opposite side of almost every issue.

For the record my father thought I was “nuts” to join the ZBA as it is a hot bed of political controversy. He did not encourage me in any way and your opinion on this point is wholly without any basis in fact. I look at it as my civic duty to the town to volunteer and contribute as best I can. As does my Father with his work with the EDC.

As to your believe that the “village is precious, cherished, and just about right as is”… well I could not disagree with you more. I find it depressing to have a vacant lot as our entry into the downtown village. Were it so precious and cherished it would not be in such a run down state. I too, do not want Framingham, Marlboro or Westboro but feel strongly that we do do better than what has been there for the last 30 + years…

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