Category: Environment

Galvin says New Shadow Law Removes Layer of Protection for Historic Parks

By Beth Treffeisen

Gov. Charlie Baker recently signed a home-rule petition into law that would allow Millennium Partners to move forward with building a 775-foot tower on the site of the city-owned Winthrop Square Garage, bypassing two existing state laws that protect the Boston Common and Public Garden from new shadows.

Mayor Martin Walsh introduced this bill last April for a “one-time” exemption to the state shadow laws, citing the reported $153 million sale of the property would bring to the city. The Boston City Council approved sending the bill to the State House in a 10 – 3 vote.

 

“The bill passed removed a layer of protection for historic sites but it doesn’t mean the project is exempt from other processes,” said Secretary of the Commonwealth William Galvin. “Millennium wouldn’t be able to build this building without that exemption but it’s still fuzzy on how it’s going to go moving forward.”

Galvin said that although this project skirts around the 25-year-old state shadow laws that have shielded the downtown historic parks from excessive building shadows, there is still more to be done.

The project, which is set to break ground next year, is still under going the Article 80 process with the City, has yet to complete the Massachusetts Environmental Policy Act (MEPA) report, and still needs to gain the approval of the Federal Aviation Administration before it can reach its proposed height.

In addition Galvin said there hasn’t been a wind study or a complete shadow study that goes beyond the downtown parks into the surrounding historic neighborhoods.

“The process is going to go on,” said Galvin. “A layer of protection has been removed, but the building is not exempt from the process.”

As part of the MEPA report, Galvin who is the Chair of the Massachusetts Historical Commission will work towards determining the effect the proposed tower will have on historic buildings and sites downtown.

Galvin said that although the bill may have taken away a layer of protection for the Public Garden and the Common there are other buildings and historic architecture that needs protection as well.

“I look forward to continuing to work with Mayor Walsh, the Friends of the Public Garden and other stakeholders on the short-term and the long-term improvements to the Boston Common that are possible because of our collaborative efforts,” said State Rep. Jay Livingstone.

 

The Friends of the Public Garden worked with the developers Millennium Partners to come to agreement that would invest $125,000 a year for 40 years towards a fund for the upkeep of the Common, Public Garden and Commonwealth Avenue Mall.

 

The Neighborhood Association of the Back Bay (NABB) said that this is not the outcome they had hoped for but understand that the City said that this is a one-time exemption and offered further study and protections for the Boston Common, the Public Garden, and the Commonwealth Avenue Mall from development and its subsequent impacts from mid-town.

Vicki Smith the executive director of NABB said that the neighborhood association would continue to request shadow studies and wind studies on new development in the Back Bay that negatively affect Copley Square and the Commonwealth Avenue Mall.

“Given the dramatic number of new buildings under construction and consideration it is more important than ever to protect and preserve our increasingly used green spaces,” wrote Smith. “They are precious and significantly contribute to what makes the Back Bay so attractive to both residents and visitors.”

She continued, “On any given day virtually year round, there are people from all over Boston and the world in Copley Square and on the Mall. NABB will continue to advocate for the protection and enhancement of these iconic spaces for future generations.”

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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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Legislators Delay Bill on Changing Shadow Law

By Beth Treffeisen

In an unexpected turn of events, state lawmakers put on hold for two weeks a bill that will give a one-time exemption to the developers Millennium Partners to build a 775-foot high building exempting them from laws meant to protect the Boston Common and Boston Public Garden from new shadows.

Secretary of Commonwealth William Galvin, who also is the chairman of the State Historical Commission, told the joint committee on Municipalities and Regional Government, that he wanted to hold off passing the measure, at least for two weeks.

 

According to a report from WGBH, Galvin said that the Historical Commission had been kept out of the loop and that he had learned of new developments, including the final height of the building that is still being determined, only last Friday.

Galvin asked that the Committee delay passage of the bill until more details are finalized.

In a two-hour session, a number of testimonies were made from community members including Vicki Smith, the president of the Neighborhood Association of the Back Bay, Leslie Adam, the Chair of the Friends of the Public Garden, Brian Golden, the executive director of the Boston Planning and Development Agency, Chris Cook, the commissioner of the Parks Department, Joe Larkin from Millennium Partners and more.

“We still have strong reservations about a one-time amendment to laws that have worked to protect our parks while allowing development to continue in downtown Boston,” said Adam of Friends of the Public Garden in her testimony. “But we are working toward an agreement that will result in a significant investment in the parks, as well as a comprehensive planning process for downtown development.”

She continued, “Our goal is to minimize – or mitigate – the impact of the shadows and gain assurances about future exemptions from these laws.”

According to State Representative Jay Livingstone, who is on the joint Committee, this is just the first step of many to get this Home Rule passed, which the Boston City Council approved in a 10 – 3 vote earlier this year.

“It remains to be seen how long it will take to gain passage,” said Livingstone. “It has been a few months since the City Council approved it and one month since it was filed, and the Committee was quick to have a hearing on it.”

In addition, Livingstone said that the Friends of the Public Garden are in ongoing discussions with Millennium Partners and that also will impact how fast it moves forward.

“We are happy to be moving forward,” said Smith. “But we understand that the Friends of the Public Garden are still negotiating and talking with Millennium Partners.”

She continued, “It was an interesting meeting. The room was packed…we are surprised that everyone showed up again to testify.”

Livingstone said that the Committee will continue to do some research. When Committee members feel like the bill is ready, there will be a poll of the Committee members before it can be passed on to the floor. If the House and Senate pass it, Governor Charlie Baker will have to give it final approval before it is passed into law.

“It is one step in a multi-step process,” said Livingstone.

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Testimony: H.2147 and H.2149 – Climate Change Legislation

Bill titles: 

  • H.2147 – An Act providing for the establishment of a comprehensive adaptation management plan in response to climate change
  • H.2149 – An Act relating to the effective and efficient implementation of the Global Warming Solutions Act of 2008

Filed by: Representative Frank Smizik of Brookline

Heard by: Joint Committee on Environment, Natural Resources, and Agriculture

Date: May 16, 2017

Download (PDF, 62KB)

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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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