BPI ANALYSIS: Does 2024's 'Article 80 Modernization Draft Action Plan' deliver on promises made in 2019's 'Abolish the BPDA' report?
Deadline is today for public comments on Draft Action Plan
Boston’s Planning Department is currently collecting public feedback on the Draft Action Plan. The deadline for that was originally November 15, before being pushed back to today, Sunday, December 15.
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Boston Policy Institute, Inc has been closely following the planning and development reforms proposed and enacted by Boston Mayor Michelle Wu’s administration. Mayor Wu’s reforms in these areas are particularly interesting because back in 2019 then-City Councilor Wu published a white paper titled “Abolish the BPDA” (referred to here as the ‘2019 Report’) which laid out an ambitious and far-reaching set of reforms for Boston’s planning and development processes and bureaucracy, along with many specific ideas about how to implement them.
Rather than comparing this administration’s actions on planning and development to a line from a State of the City address or a City Hall press release, it is possible to directly compare what Mayor Wu is doing to what Councilor Wu proposed in her own 76 page white paper.
Making those comparisons more than three years into Mayor Wu’s administration, this line from the 2019 Report stands out - this can be found on page 47 of the 2019 Report:
“Boston has seen many mayoral contenders promise sweeping reforms to the [Boston Planning & Development] agency in campaign years, only to retreat from those changes after the election.”
Earlier this year when Mayor Wu proposed creating a new Planning Department, it was clear that this administration was “retreating from those changes,” as Councilor Wu warned about. While the Mayor’s proposal moved much of the Boston Planning & Development Agency’s staff into the new City department, it left out a central plank of her 2019 Report: returning planning board powers to the City of Boston (p 32). No explanation has ever been given for how or why this decision was made, but then-Planning Chief Arthur Jemison was clear from the first public discussion about reforming the BPDA back in February 2023 that moving those powers was not part of Mayor Wu’s plan.
Mayor Wu is again “retreating from those changes” in the Article 80 Modernization Draft Action Plan that her administration released earlier this year. Article 80 is an extremely important process, and the 2019 Report included numerous ideas and proposals for reforming it.
Comparisons between the sections of the 2019 Report that deal with Article 80 to the Draft Action Plan fall into three buckets:
Rehashing ideas first proposed in the 2019 Report and which the Wu administration has taken no action on;
Retreat & tinkering around the edges of development reform; and
Sidestepping key questions about the future.
A fourth bucket of already completed actions is not possible, because BPI could not find any examples in the Draft Action Plan of the City taking action on Article 80 related proposals in the 2019 Report.
HOW DO BOSTON’S OTHER LEADERS VIEW ARTICLE 80 MODERNIZATION? READ MORE FROM BPI:
REHASHING 2019 IDEAS
Many of the ideas proposed in the Draft Action Plan were first laid out in the 2019 Report, and it appears that 5 years later there has not been any forward progress. Here are two examples:
Wu’s 2019 Report (p 35 and 36) discusses a proposal very similar to the newly proposed Community Advisory Teams (CATs), including the need for training, childcare, and language support. The Draft Action Plan indicates conversations around structure and training have not been had.
Wu’s 2019 report proposed that Boston should have “a model Community Benefits Agreement or a Community Benefits Ordinance,” (p 27). The Draft Action Plan has a proposal to write new definitions for mitigation and community benefits.
A third example shows the degree to which the authors of the Draft Action Plan appear to be lifting language directly out of the 2019 Report. That report proposed “district mitigation funds,” and the Draft Action Plan includes a very similar proposal.
Here is the quote from the 2019 Report - this can be found on page 19:
“Boston should consider having developers pay into district mitigation funds rather than commit to individual projects. This would allow the city to direct money towards where it is most needed and pool money to take on bigger projects that are too expensive for one developer—as examples, fixing dangerous intersections or installing Bus Rapid Transit lanes.”
Here is the quote from the 2024 Draft Action Plan - this can be found on page 44:
“Contributions toward the fee amount can be both monetary, directly paid to the City, or in-kind, where developers build or otherwise provide mitigation as part of the construction of their project. .... [M]onetary contributions allow the City to pool resources from multiple projects to achieve a greater overall outcome. For example, if multiple development projects are built near a city park, the increased number of park users may require upgrades to the park’s facilities. Those projects could provide a monetary contribution that can be combined by the Parks Department to upgrade the park all at once.”
While it makes sense that the City’s planning staff would use the Mayor’s previous work as a guide for their own, it appears that there has been no progress. In all three examples, the next step in the Draft Action Plan is to conduct more analysis before beginning a draft.
RETREAT & TINKERING AROUND THE EDGES
In addition to inaction, this Draft Action Plan also shows Mayor Wu explicitly retreating from some of the boldest ideas proposed in the 2019 Report.
Chief among those retreats is a citywide zoning code update, which has not been comprehensively updated since 1964, and the creation of a master plan, which Boston lacks in defiance of state law. Here is what the 2019 Report says about those two issues - this can be found on page 26:
“Because the BPDA has not undertaken comprehensive master planning to inform citywide zoning code updates, it is nearly impossible to propose financially feasible projects that are “as of right”—that is, allowable under the current zoning rules without special approvals. Instead, each proposal undergoes a time-consuming, opaque review benefiting applicants with special relationships and knowledge, and disadvantaging those without institutional influence or resources to hire consultants and attorneys.”
Here is what the Draft Action Plan says in 2024 - this can be found on page 45:
“Our engagement and analysis shows that in today’s process, community benefits provided by a particular proposed development project are not connected to the planning needs of the community in which it is built. A complex and ad-hoc community benefits negotiation means that only experienced participants can effectively advocate for specific ideas.”
While both documents identify the difficulties presented by Boston’s complex planning and development system, the Draft Action Plan leaves out the 2019 Report’s assertion that the lack of a master city plan or comprehensive zoning review is largely responsible for those difficulties. This is likely because Mayor Wu’s and her Planning Department have not made any substantive moves to do a citywide zoning code update or create a master plan.
Instead of focusing on solving those major issues, the Draft Action Plan instead proposes tinkering with the existing system. This tinkering can be seen in proposals creating stronger connections between recent planning and community benefits, formalizing the pre-file process and aligning filing sequence with industry practices, and locking in key decisions through a “Concept Determination” that can provide a clear and early “no” to inadequate proposals.
This tinkering is an explicit rejection by Mayor Wu of Councilor Wu’s call for Boston to engage in the hard work of system change, which the 2019 Report made the case for - this can be found on page 26:
“By engaging community in setting regulations for how land should be used, then codifying updated zoning code provisions before a developer gets involved, Boston can move to a development review process that is transparent, consistent, and more efficient—saving time and resources for all stakeholders and ensuring that projects fit neighborhood needs.”
The 2019 Report proposed comprehensive planning and zoning reform which would create a new system in which the kind of small-bore changes to the existing system that the Draft Action Plan proposes would not be necessary.
SIDESTEPPING KEY QUESTIONS
The last bucket for the Draft Action Plan is not inaction or retreat, but side-stepping. The 2019 Report was written in a City Council office, and while it is an impressive document, it left many questions unanswered, particularly technical answers beyond the scope of her then-office to answer. More than 2 years into the Article 80 modernization process, it seems reasonable to expect that with the resources available to the Mayor of Boston, some of those questions would be answered. Instead, it appears that the technical questions posed in the 2019 Report remain unanswered in the Draft Action Plan.
Transparency: Crucially left out of the Draft Action Plan are substantive moves towards transparency which the 2019 Report called “the foundation for accountability.” (p 28). The 2019 Report states - this can be found on page 27:
“Taxpayers should also be able to easily access information about commitments made by developers in exchange for project approval, as well as which companies are benefiting from corporate tax breaks. Developers and businesses receiving tax breaks should be required to disclose the tangible public benefits of their projects, including the number of jobs created with wages and benefits information. The City should make all of this information publicly available in a searchable database, as well as an interactive map, for a refreshingly user-friendly experience. Taxpayers deserve to know which developers are good neighbors, and which fall short of their commitments.”
In the Draft Action Plan there are no commitments to external data improvements - only to internal ones. Furthermore, the Draft Action Plan focuses only on transparency in the development process, crucially leaving out post-development transparency and tracking of what public benefits actually occur. This has been an issue that has plagued Boston for years, with numerous instances of agreed-upon public benefits never being delivered. Overall, while the Draft Action Plan gives various nods to “transparency,” they fall significantly short of what the 2019 Report called for.
Costs: This Draft Action Plan does not propose a solution to the additional costs that will be incurred by the City in implementing its proposals. For example, while the goals of providing staff support, childcare, translation services, and stipends for community members serving on CATs is laudable, it is expensive and administratively complicated.
The 2019 Report proposed “charging development review fees proportional to the size and complexity of each project, as other cities do” (p 27) to support the review process. However, that was written before the realities of post-COVID development set in. Is the Wu administration still going to put this onus on developers who are already showing little appetite to begin new construction or will these expenses fall on tax-payers? This remains unclear.
Legality: Almost entirely missing from the Draft Action Plan is whether the City has the legal authority to do many of the things it proposes. This criticism also applies to the 2019 Report, but with access to City attorneys and outside counsel, Mayor Wu should be able to answer those questions.
A good example of the legal issues the Draft Action Plan faces is mitigation, which is a state law issue. In order to implement an idea like 2B, which would “Establish clear dollar-per-square-foot policies for transportation & infrastructure and open space & public realm mitigation,” (p 38) the City would need enabling legislation from the state. The Draft Action Plan notes that the Planning Department “will also conduct due diligence to assess the legal requirements of new formulas, including nexus studies and any necessary enabling legislation” (p 44) but does not address the realities of asking the state to take action.
As Mayor Wu knows well, Boston has a poor record of getting its home rule petitions passed, especially ones with state-wide policy implications or that are focused on collecting new revenue. The mitigation policy proposed in the Draft Action Plan is both, meaning it requires exactly the kind of home rule petition that the state legislature has a record of rejecting.
CONCLUSION
While the public comments for this Draft Action Plan are due on December 15, the future of this document beyond that date is not clear. What we do know is that work on Article 80 modernization will continue well into 2025, and timelines are likely to be pushed further into the future, as happened with public comment on the Draft Action Plan.
We also know that some members of the Boston City Council are monitoring this process: District 1 Councilor Gabriella Coletta Zapata filed a hearing order about Article 80 back on January 24, 2024 and the Council held a hearing on that docket on July 15, 2024 - BPI wrote about that meeting. It is likely that another hearing order will be filed at the start of next year, and if it follows a similar timeline to this year, another Council hearing on Article 80 modernization can be expected by next summer.
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WANT TO READ MORE ABOUT MAYOR WU’S PLANNING & DEVELOPMENT REFORMS? CHECK OUT SOME OF BPI’S PAST WORK ON THE ISSUE:
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