Livingstone Seeks More Discussion on Shadow Laws

By Beth Treffeisen

With the recent passage of Boston City Council’s home rule petition that aims to amend the current shadow laws that protect the Boston Common and Boston Public Garden, State Representative Jay D. Livingstone has come out against this legislation as it is written.

“I was surprised at the swiftness in which the Boston City Council took up this issue,” said Livingstone. “I hope to have a more deliberate discussion at the State House.”

Livingstone, whose district covers Beacon Hill, the two historic parks and the Back Bay, said he hopes to continue the protections in place for both the Boston Common and the Public Garden that are currently in place and if not, make them better.

The proposed legislation by the City will amend two state laws that for 25 years have shielded the downtown historic parks from excessive building shadows, while at the same time allowing development to grow.

The Home Rule Petition will be sent up to the State Legislature for a vote and then will have to be signed by Governor Charlie Baker. No amendments will be allowed beyond what the Boston City Council voted on.

The Boston City Council passed the Home Rule Petition for a Special Law “An Act Protecting Sunlight and Promoting Economic Development in the City of Boston” in a new draft with a 10 – 3 vote, at the hearing held on Wednesday, April 26.

In opposition were City Council President Michelle Wu, City Councilor Tito Jackson, and City Councilor Josh Zakim.

“There has been $150 million earmarked to important causes but the fact that we’ve been pitting neighbors against neighbors, and park against park, and district against district but the people in the city all care about the same things here in Boston is a problem,” said Zakim.

He continued, “We need to be advocating for more of these important resources on a daily basis and looking into the way it impacts us today and into the future.”

Zakim said that he is still unsure about the protections put in place for Copley Square Park because there is already a lot of development slated for that area. Due to the all or nothing approach with the proposed Winthrop Square tower height, Zakim said, he felt like he could not support this legislation.

City Councilor Bill Linehan, who is the lead sponsor of this bill, said that after working on this for close to two years with the Boston Planning and Development Agency (BPDA), they had worked to receive the best deal possible for this piece of land.

“It has been a drag on the revitalization of downtown,” said Linehan of the closed Winthrop Square garage. “Now this has been assessed to be used to generate positive impacts throughout Boston.”

City Councilor Tito Jackson voted in opposition because he believes the planning of the building should be separate from creating policy changes.

“The question here really is we’ve gone through a transparent public process for a public piece of land that will put forward a project that will have an inevitable mark on the City of Boston” said Jackson. “I will submit to the City Council President that we did not.”

The bill will exempt one developer, Millennium Partners, from the laws in order to construct a tower in Winthrop Square that is capable of casting a mile-long morning shadow from the financial district across the Common, Public Garden and some days all the way to the Commonwealth Avenue Mall.

The luxury condo tower would violate state shadow laws 264 days of the year on the Boston Common and 120 days on the Public Garden. The new net shadow on average throughout the year is estimated to be about five minutes on the Public Garden and 35 minutes on the Boston Common.

The Shadow Bank was set up in an existing state law to allow projects within the Midtown Cultural District to draw from a one-acre bank for any new shadow cast on the Boston Common that is otherwise not in compliance with the law.

Under the home rule petition, the remainder of the shadow bank would be eliminated and any new slow moving, mid-day shadows to be cast on the Common from a future development would also be eliminated.

The proposal also includes two additional commitments: one will be to provide limits on new shadow on Copley Square Park cast from future structures built within the Stuart Street District and the second would require the Boston Planning and Development Agency (BPDA) to conduct a planning initiative for the Midtown Cultural District and the Financial District.

The new draft clarified that for the proposed shadow protections for Copley Square Park, which will protect the park from any new structure from casting shadow between certain times of the day do not include any proposed buildings that have been approved by the BPDA on or before March 31, 2017.

If those proposed projects still need other permitting they will be grandfathered in.

On April 24, a packed Boston City Council Chamber played home to a seven-hour hearing. The discussion included the benefits and effects of the proposed home rule petition.

Liz Vizza, the executive director of the Friends of the Public Garden, testified in opposition to this project.

Vizza said that the laws in place have shielded the parks from more than the development can take. She said that it is not about prohibition but it is about a balance.

“We are confident that this home rule petition sets a precedent for future developers,” said Vizza. “What is the limit on the sale of shadows? This deal provides that blueprint for the future. The ultra rich will have great views and the public parks will be damaged by these shadows.”

Chris Cook, Boston Parks Commissioner, said the funding that the parks get from the tower outweighs the additional shadow that it will cast on the downtown parks.

“They are America’s first public park and 1.5 million people a year visit the park,” said Cook. “That is a lot more than the budget can afford to take care of.”

The Winthrop Square project, Cook said, provides an opportunity to care for these parks for perpetuity by setting up a maintenance fund that will help the parks for years to come.

Greg Galer executive director of the Boston Preservation Alliance believes it is premature to clear a path for a project when an impact has yet to be determined.

“It sets a precedent,” said Galer. “It changes a rule if enough money is proposed to the city. It’s a slippery slope. When will it stop?”

He continued, “Winthrop Square is not a one-off case. Once this Pandora box is opened the temptation will be too great, maybe not in this administration but maybe in another.”

Vicki Smith, chair of the Neighborhood Association of the Back Bay (NABB), said that during the early morning hours the Boston Common and Public Garden are filled with people either walking to work, doing Tai Chi, or yoga.

“Having a little bit of extra light makes a big difference,” said Smith. “The shadows that we’re creating not only will affect us in our life time but our children’s and our grandchildren.”

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