By Martyn Roetter
Since 2021 when the proponent SCAPE filed a Letter of Intent (LOI) for this project to initiate the BPDA’s Large Project Article 80 Review, it has gone through a series of modifications, including notably the height of the buildings involved. The height proposed has consistently been well above what is allowed (70’ within 100’ of the Back Bay Fens) under Municipal Code Section 7-4.10. The Boston BPRD (Boston Parks and Recreation Department) must give permission for the project under Section 7-4.11 of this Code. The origins of this height limitation date from over a century ago to protect Olmsted’s Emerald Necklace. In the 2021 Project Notification Form (PNF) the height was set at 229’, and the project now approved by the BPDA Board on 7/18/2024 is a building of about 300’ tall. Thanks to a stratagem outlined below, it is said to be exempt from the Section 7-4.10 height limitation.
Text in a public comment on this project submitted (1/31/2024) to the BPDA by the BPRD, signed by Carrie Marsh Dixon, Executive Secretary includes:
“Publicly-owned park land cannot be privatized by design or use, under Article 971 of the Amendments to the Constitution.
Publicly-owned park land cannot be utilized or encroached on for demolition or construction staging for private development.”
The proponent, working with the BPDA as far as we can tell without involving the BPRD, then proposed a scheme which circumvents the intent of the Parks Ordinance by consolidating two parcels and then subdividing the resulting plot of land and introducing a tiered massing plan in which the height limitation is satisfied in a building in a subdivision within 100’ of the Fens but vastly exceeded in the abutting subdivision (a height of 300’ or more). Boston’s Corporation Counsel has reportedly agreed that this scheme or stratagem makes the project compliant with Boston’s Park Ordinances 7.4-10 and 7.4-11. This scheme is part of the project approved unanimously by the BPDA Board on July 18, 2024.
An alternative approach to overcoming the protections of the Emerald Necklace built into the Park Ordinance has been proposed. It requires an exemption to this Ordinance with an Amendment restricted to the specific address of the project. This Amendment will allegedly ensure that this project does not set a dangerous precedent for other similar exemptions, potentially ultimately invalidating the entire Parks Ordinance. In this scenario, allowing the project to proceed without an Amendment to the Parks Ordinance, with approval based on the subdivision of parcels could lead to this undesirable outcome of the removal of protections for the Emerald Necklace and other parks that have been in force for over a century. Proponents of other parkways projects would know about and be free to use the same tactic to sidestep these protections, and allege discrimination if denied. An ordinance for an Amendment to the Parks Ordinance to be considered by the City Council to preempt this outcome has been filed by District 8 Councilor Sharon Durkan.
The violation or at least justification for an investigation is that the proponent of this project and the BRA operating as the BPDA, in effect the City of Boston, are effectively undermining the Park Ordinance through a process which circumvents its long-established purpose without allowing an opportunity for a democratic process (as foreseen in Article 97) and public hearings to consider if such a fundamental change with citywide impact is justified. The claim that the exemption to the ordinance is a way to protect its integrity everywhere except for this project is not sustainable. There will be nothing to stop proponents of other projects on Boston’s parkways from pursuing tactics such as SCAPE’s, and then asking for another amendment to the Parks Ordinance to permit their project, “to avoid creating a precedent.” The Ordinance will be eroded step by step, and in the end succumb to a thousand cuts.
Moreover, what is to stop future amendments to the Parks regulation that permit gross violations of limits of building configurations that will cause further harm to our parks? “Fool me once” may be extended many times. What will be the impact if as the city is trying to do with its Home Rule Petition to “modernize” planning and development in Boston the city or successor to the BRA will have the power of eminent domain to seize properties adjacent to our parks claiming that this is necessary to pursue the goal of “affordability?” Whenever the goal of “affordable housing” conflicts or overlaps with the goal of preserving, sustaining and improving our parks, including for the newly urgent purpose of helping mitigate the impact of the consequences of climate warming, exercise of this power will ensure that developers’ projects can be prioritized over the goals of the Green New Deal with no practical recourse for defending the latter.
Appendix: Article 97
Article XCVII. Article XLIX of the Amendments to the Constitution is hereby annulled and the following is adopted in place thereof: “The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment; and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose.”
