Everything You Need to Know about Winthrop Square and Its Shadow Law Exemption

Representative Livingstone has been a longstanding advocate for parks and open spaces. He has done a lot of work in his district to maintain the integrity of the public greenspace that the 8th Suffolk has to offer, including the Boston Common and Public Garden.  Shared, public spaces are beloved and used by everyone, from residents who walk through the Common each day to tourists that visit the Common all year round. Below are some inquiries that our office has received about the current debate on shadow exemption and the Winthrop Sq Project. 

If you have any additional questions, feel free to reach out to my Legislative Aide, Caitlin Duffy, at Caitlin.Duffy@Mahouse.gov

 

What has Jay been doing to protect the Boston Common and Public Garden?

I have worked with the other elected officials (Reps. Michlewitz and Rushing, Senators Will Brownsberger and Joe Boncore, and Councilor Zakim) who represent the Boston Common and Public Garden or areas close to the parks to secure the best result possible from this process.  I have also worked closely with the Friends of the Public Garden and other neighborhood groups, such as the Beacon Hill Civic Association and Neighborhood Association of Back Bay.   The negotiations with the City and developer started in October 2016 and only recently ended.

I appreciate the direct involvement of Mayor Walsh.  It was especially helpful working with him and other elected officials and stakeholders throughout this process.  He has made specific commitments to going forward and I am excited to work with him and others to make much needed capital improvements on the Boston Common.

Does the current law prevent all shadows?

No.  This is a common misunderstanding of the law.  The Shadow Laws, enacted in 1990 and 1993 to protect the Boston Common and the Public Garden, limit amount of new shadow, or additional shadow cast beyond existing shadows by development during certain times of day and certain times of the year on any part of the park.  The shadow does not need to cover the whole park to trigger the law, just part of it. 

The original laws contained a number of exceptions that allowed further development causing new shadows on the Common and Public Garden.

No other parks were protected, including the Commonwealth Mall or Copley Square.

Here are the protections and some of the exceptions contained in the original laws:

Boston Common Shadow Law (Chapter 362 of the Acts of 1990)

  • General Rule - New shadows are currently only allowed during the first hour after sunrise or 7AM, whichever is later; or, the last hour before sunset.  This generally allows new shadow as late as 8:30 AM.
  • Midtown Cultural District Exception - New shadows cast between 3/21 and 10/21 are allowed if the area shaded at the end of two hours is less than one acre, cumulative of all permitted shadows exceeding the two-hour limit, or Shadow Bank. Otherwise, no new shadow allowed between 3/21 and 10/21 that lasts more than two hours between 8AM and 2:30PM.  The Midtown Cultural District is the area closest to the two parks.  The properties included in the District and excluded from it were heavily negotiated.  This allows a building to cast a shadow as late as 2:30 PM.
  • South Station exception - allows shadows cast the first hour after sunrise or 8 AM, which ever is later.
  • Current shadow bank contains .26 acre of total allowable cumulative acreage.  This allows more shadows to be cast for properties in the Midtown Cultural District.  One developer proposed a building at 171 Tremont Street last year that was twice as high as zoning allowed and required the use of the remaining shadow bank.  This proposal was rejected by the BPDA and was approved at half the height requested.

Public Garden Shadow Law (Chapter 385 of the Acts of 1993)

  • Additional shadows are allowed in an area that is already shaded by an existing structure, or by a permitted structure whose height conforms to as-of-right zoning as of 5/1/1990.
  • General Rule - New additional shadows allowed only during first hour after sunrise or 7AM, whichever is later; or during the last hour before sunset; otherwise no new shadow allowed.
  • Midtown Cultural District Exception: New shadows only allowed if they are cast before 10AM during the period between 3/21 and 10/21.
What does the proposed exception allow?

The Boston Planning & Development Agency (formerly the BRA), officially began its effort for special legislation that allows more shadow to be cast on the Boston Common and Public Garden from Winthrop Square.

The exception does not allow a shadow to cover the whole park at any time.  Indeed, the shadow from the proposed building will sweep across the parks.  The times below are the latest that the proposed shadow will appear on any part of the Common and Public Garden.

Specifically, it allows a shadow of two hours (instead of one) after 7 AM or an hour after sunrise on the Common.  This will allow a shadow on part of the Common until approximately 9:30 AM at the latest.

For the Public Garden, it allows a shadow for 45 minutes after 7 AM or an hour after sunrise.  This will allow a shadow until approximately 8:15 AM on part of the Public Garden at the latest.

The Commonwealth Mall is not protected by either of these laws.  I understand that the building, if built to the current proposed height, would cast a shadow after 7 AM or an hour after sunrise of approximately 15 minutes at the latest on the Commonwealth Mall.

The proposed building will cast a shadow of much shorter duration on most days.

 

What concerns has Jay attempted to address?

The biggest concern that I had from when I first learned of the possibility of this request was the precedent of creating an exception to a law that had not changed since 1993.

I was also concerned about the need for consistent long-term resources to protect the parks.

Finally, I looked for ways to decrease negative encroachment from shadow from this project as well as future developments

I kept these concerns foremost in mind over the last ten months of negotiations with the City and developer. 

What resulted from Jay's efforts working with his colleagues?

Reps. Rushing, Michlewitz, and I with Councilor Zakim started negotiating with the City and the developer in October 2016 and recently completed our agreements. We also worked with Senators Brownsberger and Boncore, who provided great support.  As a result, I ultimately did not object to the legislation passing the House of Representatives.  (My colleagues and I had objected for a long time, holding up the process.)  Here is the final result:

  • The City agreed to conduct a zoning study regarding the downtown areas closest to the Boston Common and Public Garden and report on the potential future impacts and recommendation ways to minimize those impacts.
  • Protections from shadows for Copley Square codified in State law.  This is the first new park protected since 1993.
  • Elimination of one of the exceptions that exists in current law (shadow bank) that allows development close to Boston Common.  This establishes the precedent of a "shadow for shadow" trade.
  • Mayor Walsh committed to spend $28 million from the Winthrop Square sale in the Boston Common on capital improvements.
  • Mayor Walsh committed to set aside $5 million of $28 million in a perpetual trust to only be spent on Boston Common.  The three trustees are appointed by the Mayor, Councilor for Eighth District (currently Josh Zakim), and Friends of the Public Garden.  The proceeds of the trust will be spent annually on park improvements in the Boston Common.
  • Millennium committed to provide $125,000 per year for the next 40 years for improvements to the Boston Common, Public Garden, and Commonwealth Mall.  The Boston Foundation will hold these funds.
  •  Mayor Walsh  agreed to partner with the Friends of Public Garden with respect to all improvements.
  • The City agreed to undertake a master planning process for the Boston Common prior to spending $23 million.
  • The City agreed to spend $200,000 for a master planning process to make improvements to Copley Square.

Separately, the Mayor’s office has pledged to give money to various park projects across the city to make up for the shadow being cast on the Boston Common. It has pledged $28 million for Franklin Park improvements, $5 million for the Greenway, $11 million for the effort to complete the Emerald Necklace, $25 million toward redevelopment of the Boston Housing Authority’s Old Colony Public Housing in South Boston, and $10 million for improvements at the BHA’s Orient Heights public housing in Orient Heights. 

The agreements and other commitments address many of my concerns.  I hope that I am never confronted again with the request of an exception to this law.  Mayor Walsh has committed that this is a one-time exception.  Still, I understand this exception creates a precedent.  I view the precedent that the cost of an exception is a "shadow for shadow" trade removing pro-development rules; re-evaluating other development rules; protecting a new park with anti-shadow rules; providing significant, immediate capital improvements for park improvements; providing long-term resources for care of the parks; and the City receiving significant additional funds for important needs such as affordable housing.  

 

Why couldn't the building be a little shorter?

I am often asked why the building could not be a little shorter.  The current proposal is to build a 775 foot building at Winthrop Square.  Unless the building was approximately 325 feet tall or around 60% smaller, it still would have needed an exception in the law.  A 500 foot building or 600 foot building would have required creating the same exception in law. 

Where does the bill stand now?

Because of the way the Public Garden protections originally became law, the changes needed to be adopted by the Boston City Council and the State legislature.

The Boston City Council enacted the exception using what's called a "home rule petition."  It passed the City Council 10-3 in April and only Councilors Josh Zakim, Michelle Wu, and Tito Jackson voted against it.

It was filed in the State legislature in June and was enacted by the House and Senate on July 24, 2017.  Governor Baker signed the bill into law on July 28, 2017.

 

Does Millennium need any further regulatory approvals?

Yes.  Millennium is still proceeding with the BPDA's Article 80 process and the State's MEPA environmental process.  In addition, Millennium will need an exception from the FAA for the height it requests.

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2 comments

  1. Don Carlson says:

    In the balance of the approval process, is there any opportunity to kill the project or reduce the height of the building?

    Is the “one-time” exception to the shadow law for Millennium binding on anyone who later applies for an exception?

    • Jay Livingstone
      Jay Livingstone says:

      The developers have a way to go before any building is built. The BDPA’s Article 80 process and the State’s MEPA process are each mid process. Both processes can have an impact on the final building design. In addition, the developer needs to relief from the FAA specifically regarding the top 75-80 of height that it requests.

      If the developer secures all those approvals, it still must time the market right.

      Mayor Walsh and Director Golden have each called this a “one-time exception.” As I explain in the post, I hope the bar we set for an exception is high enough that it discourages future requests in case the requests that come after Mayor Walsh and Director Golden are no longer serving.

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