SERIES: "Where do Boston City Councilors stand on Housing?" Part 3: Article 80 Reform & Mitigation
Mayor Wu announced she's reforming this creation of the early Menino admin, but a brewing conflict between competing priorities - mitigation and streamlining - threatens to derail the process
Zoning and development is full of jargon and acronyms - NIMBY and YIMBY being perhaps the best known. Here in Massachusetts, Boston has contributed a number of terms that are only used in the City of Boston, the result of 70 years of mayoral control of its zoning & development process. For this third part of the series ‘Where do Boston City Councilors stand on housing?’ BPI is looking at the best known of these home-brew processes: Article 80, and Councilors’ answers to Question 11 of AHMA’s 2023 Candidate questionnaire.
Spoiler-alert: all thirteen City Councilors are clear Article 80 is flawed, but on whether the process should be less expensive and shorter they range from ambivalent to actively opposed.
The reason comes down to one word: “mitigation.”
“Mitigation” is a catch-all term for payments from developers to the community in which they are developing.
Unlike the money collected from developers by the City through regulated, legal processes like property taxes or building permit fees, “mitigation” is ad hoc, allowing money and other resources to be steered by City Councilors and other powerful residents to specific organizations and priorities in their neighborhoods.
Back in 2016 the Boston Globe called mitigation “a payoff” in an expose on the practice, but despite the negative coverage, it has remained an important part of the development process under the Wu administration, for example a $750,000 payment was made by a developer to a Dorchester civic association in January.
As you will read, mitigation is the top issue for both the City Council and the Wu administration when it comes to Article 80.
Missing from this public debate is whether “mitigation” is something that should continue to happen, or if it is an artifact - like the widespread use of urban renewal powers - of an earlier era of development in Boston.
Article 80 and its proposed modernization is complicated, so this post will be split up into four parts:
What is Article 80?
What does Mayor Wu want to do to Article 80?
How did City Councilors answer the Article 80 question in 2023?
How did City Councilors talk about Article 80 in 2024?
WHAT IS ARTICLE 80?
Here is how Article 80 is described by the agency that created the process and whose legal authority it operates under:
In 1996, the Boston Redevelopment Authority adopted Article 80 of the zoning code to provide clear guidelines for the development review process relating to large projects (adding more than 50,000 square feet), small projects (greater than 20,000 square feet), planned development areas (new overlay zoning districts for project areas larger than 1 acre), and institutional master plans (projects relating to academic and medical campuses). Article 80 was adopted because the parameters of these unique projects rarely fit neatly within the existing zoning code and a more predictable review process was needed.
The Article 80 process may include, but is not limited to, review of a project's impacts on transportation, public realm, the environment, and historic resources. Planning Department Project Managers assist developers in navigating the Article 80 process. Public input is encouraged throughout a project's review timeline.
The TL;DR of Article 80 is that it lays out the development review process for all major real estate projects in Boston, and for many smaller ones as well.
WHAT DOES MAYOR WU WANT TO DO TO ARTICLE 80?
Changing Article 80 has been a long-time goal of Boston’s Mayor Michelle Wu. It is mentioned 9 times in the white paper that then-Councilor Wu’s office released in 2019 titled “Abolish the BPDA” and which her Mayoral administration has generally followed. Mayor Wu’s view of Article 80 is captured in the title of the section where the process was described in detail: ‘A Black Box Approach.’
After criticizing the process for a lack of transparency and consistency, the paper states:
Development approvals must be transparent, responsive to public input, and based on clear rules to become fair and consistent.
In her 2023 State of the City speech, Mayor Wu announced her plans to pursue some of the goals laid out in her “Abolish the BPDA” white paper. Part of that was reforming Article 80 - here is how she described her plans:
I’ve also charged our team with improving the uneven and unpredictable approval process that frustrates community members and developers. Next month, we’ll form a steering group of real estate and community leaders to recommend changes to our Article 80 development review process.
Shortly after that speech the “steering group” was announced, with a list of leaders from labor, neighborhood organizations, and the development community.
The rest of 2023 was spent in what the Boston Planning & Development Agency called ‘Phase I: Listening & Research’ where staff did research and held behind-closed-doors meetings with various stakeholders. Public meetings were part of Phase I, but those didn’t happen until more than a year after the steering group had been announced, in late February 2024. Here is the timeline laid out by the BPDA in its website:
CITY COUNCILORS’ 2023 ANSWERS ON ARTICLE 80
As is clear from Mayor Wu’s focus on the issue as a City Councilor and then as Mayor, Article 80 is an important issue to many people in Boston. While there appears to be wide agreement that Article 80 is flawed and needs to be fixed, these answers make something else clear too: there is little consensus what the fix is.
On top of a lack of public consensus is a lack of public information. The questionnaire that BPI is using as the basis of this series was released and filled out before any public meetings had been held on Article 80 modernization. That means that for the people filling this out there was little public information about what the Wu administration planned to do outside the 2019 white paper, those few lines in the 2023 State of the City speech, and the press release announcing the steering group.
Here is the question that AHMA asked:
In Boston, almost all housing development proposals with more than 10 units must participate in the Article 80 process, which requires applicants to undergo a series of additional reviews to assess the project’s impact on transportation, the environment, displacement, and other issues. Do you agree or disagree that the Article 80 process should be streamlined to reduce the cost and time required to get a proposal approved? If you agree it should be streamlined, what kind of reforms would you like to see?
All seven Councilors’ answers were broadly supportive, but none of them offered the specific reforms that last part of the question asked for: “If you agree it should be streamlined, what kind of reforms would you like to see?”
The four incumbent Councilors who filled out the questionnaire did not make any gestures towards answering that last part of the question. Here is what current Council President & At-Large Councilor Ruthzee Louijeune; At-Large Councilor Julia Mejia; District 2 City Councilor Ed Flynn; and District 9 City Councilor Liz Breadon wrote:
The three Councilors who filled out this questionnaire as first time candidates submitted longer answers, but none of them offered specifics either. Here is what At-Large Councilor Henry Santana; District 5 City Councilor Enrique Pepen; and District 6 City Councilor Ben Weber wrote:
Councilor Weber is the only one of the seven who touches on the likely reason why none of the Councilors offered specifics: “I believe the commission Mayor Wu is putting together is likely to come out with some recommendations, and I am interested to see them.”
HOW DID COUNCILORS TALK ABOUT ARTICLE 80 IN 2024?
In 2024, the Council discussed Article 80 in two instances: first when a hearing order was filed in January, and then at the hearing it called for in July. These hearings gave all thirteen City Councilors - including the six who did not fill out the questionnaire - an opportunity to weigh in on the issue. The hearing in July took a turn into an intense focus on “mitigation,” which until this hearing had not appeared central to the Article 80 reform process. Councilors disagreed however, so BPI took a look at how the issue was discussed.
At the Council meeting in January two Councilors who did not fill out the questionnaire - Councilor Coletta Zapata and Councilor Fernandes Anderson - spoke and while both clearly want changes to Article 80, neither appeared supportive of the idea of streamlining the process:
Here is Councilor Coletta Zapata - she is Speaker 7 and her remarks starts start at the 2:12:28 mark in the transcript:
“Article 80 must work effectively to extract proper mitigation and make a more equitable community.”
Here is Councilor Fernandes Anderson - she is Speaker 9 and her remarks starts start at the 2:14:57 mark in the transcript:
“The process has not allowed for proper community input, and that is the bottom line. Most of the constituents that have come to meetings and development meetings all have explained that they are not being heard.”
That trend continued at the hearing in July. There was little talk of streamlining - the word was was only used once in the whole hearing - and Councilors speeches were mostly focused on how the outcomes of specific Article 80 processes failed to meet either their own expectations, or some in their community. The rhetorical support for streamlining was voiced by just two Councilors:
District 4 City Councilor Brian Worrell, who didn’t even fill out the 2023 questionnaire, said something that echoed those 2023 answers- he is Speaker 11 and this statement starts at the 20:19 mark in the transcript:
“You know, we want to make sure that we're pushing production, we're making it faster and more predictable, more affordable, and also just speaking to the demands that the community is looking for.”
Council President Ruthzee Louijeune provided this line, but made no connection between expensive community process and the lack of affordable housing - she is Speaker 10 and this statement starts at the 18:14 mark in the transcript:
“We are in the middle of a deep, deep housing crisis that's going to depend on us building, and it's gonna depend on us building with an emphasis on affordability.”
While the rhetorical support for streamlining was missing, it was after the administration gave their presentation at that hearing that Councilors suddenly found a specific issue within the complex Article 80 about which they were extremely concerned: mitigation.
The focus on mitigation started with the presentation from Nupoor Monani, Senior Deputy Director of Development Review. Monani did most of the talking for the Wu administration’s at July hearing, giving the presentation and then answering most of the Council’s questions.
Monani had a complicated story to tell on the effort to formalize mitigation:
Where mitigation ranked among issues - she is Speaker 1 and her remarks start at the 31:52 mark in the transcript:
“What we heard from these community survey results was a huge amount of support for standardized mitigation and community benefits.”
How Article 80’s current set-up makes “getting mitigation” a relatively easy task - this statement starts at the 36:44 mark in the transcript:
“And a lot of the stakeholders too agreed on both sides, development and community, that while Article 80 is not perfect, it provides a really robust framework for assessing development impacts and for getting mitigation, and for, you know, having community conversations about development.”
Monani explained that a major challenge the Wu administration faced was trying to turn survey responses into policy, because respondents didn’t seem clear on what terms meant - this is in the same statement that starts at the 36:44 mark in the transcript:
“What we experience is depending on who you ask, the definition everyone thinks they know what mitigation and community benefits means, but when you ask them what it is, you know, one person might have a totally different definition from another.”
At the close of her presentation, Monani laid out how far from the finish line the Wu administration was after more than a year of work - this is in the same statement that starts at the 36:44 mark in the transcript:
For example, you know, what is the dollar value for the mitigation formula? We're nowhere close to sort of having a number that we can name today.* It will need a lot more thoughtful analysis. It will need legal analysis. It will need sort of, you know, due diligence and financial modeling to really support, and so the goal with this action plan will be to be able to launch into some of those more detailed analysis and sort of technical studies, um, as well as producing a first draft of new zoning that we can then bring back to stakeholders as well as the zoning commission, um, in the new year, sometime in the in the winter or spring. *emphasis added
With Monani’s presentation done, Councilors were able to ask questions.
Prior to the Wu administration’s presentation, just one Councilor mentioned mitigation - Committee Chair Sharon Durkan, who said - she is Speaker 0 and this statement starts at the 21:02 mark in the transcript:
“Contrary to other cities, our city departments do not have standard mitigation formula to rely upon.”
After the presentation however, mitigation was the most popular topic for questions:
District 1 City Council Gabriella Coletta Zapata - who is Speaker 3 in the transcript - asked a question about mitigation at the 1:03:39 mark.
District 9 City Councilor Liz Breadon - who is Speaker 5 in the transcript - asked three questions about mitigation at the 1:20:20 mark, the 1:26:14 mark, and the 1:28:23 mark.
District 3 City Councilor John FitzGerald - who is Speaker 6 - asked a question about mitigation at the 1:32:22 mark.
District 6 City Councilor Ben Weber - who is Speaker 9 - asked a question about an “impact fee” at the 1:39:54 mark, which Monani in her answers says is another work for mitigation.
Council President Ruthzee Louijeune - who is Speaker 10 in the transcript- asked two questions about mitigation, with the first one at 1:59:20 mark, and then the second one at the 2:02:39 mark.
District 6 City Councilor Enrique Pepen - who is Speaker 14 in the transcript - asked two questions that did not use the work mitigation, but which the planning officials who answered it said were about mitigation at the 2:05:29 mark and the 2:08:56 mark.
Councilor Coletta Zapata - who is Speaker 3 - asked two more mitigation questions in the second round at the 2:42:48 mark and the 2:44:46 mark
Councilor John Fitzgerald - who is Speaker 6 - had one more mitigation question in the second round at the 2:46:31 mark.
Finally in her closing statement Chair Durkan used the word 4 times.
On Article 80 modernization, Councilors are caught between competing priorities:
deliver “mitigation” for their neighborhoods on the one hand, and
Boston’s cost of living crisis on the other.
This is not the only issue that forces Councilors to make a choice between those two competing priorities - we will encounter more as we continue through AHMA’s questionnaire.
How that conflict is resolved will decide whether Boston makes the hard choices required to build the housing it needs, or if the City continues on its current path toward a community only inhabited by the very rich and very poor.
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PLEASE NOTE: This piece is not intended to cover the enormous amount of work done by a huge cast of people to propose, create, and implement the Article 80 process back in the 1990’s, and the equally large cast working on reforming it today. Rather, it is narrowly focused on what thirteen elected officials have written or said in public about the process. For a more in-depth view of how the process had evolved by mid 2010’s, check out this handbook “A Citizen’s Guide to Development Review Under Article 80 of the Boston Zoning Code,” which was written by the Boston Redevelopment Authority.
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