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The Real Estate Addicts (REA) podcast is a must-listen for anyone interested in real estate development, investment, construction and entrepreneurship. Each episode dives into a wide range of industry topics and features conversations with savvy, successful entrepreneurs who candidly share their career paths, challenges, breakthroughs, and the stories behind the remarkable companies they’ve built. Expect big personalities, thoughtful insights, and conversations that both educate and inspire.
Co-hosted by Ray Hurteau, Dan Rubin (Instagram: @rhinvestgroup), and Marc Savatsky (Instagram: @choose_boston)
Follow the Real Estate Addicts Podcast on YouTube: @RealEstateAddicts
00:00
All right. So cameras are on. right. Well, welcome to the real estate addicts podcasts. Uh, we're here with your host, Mark Savatsky Choose Boston, Dan Rubin, RH Investment Group, Ray Hurteau, RH Investment. And we're happy to be joined today by. Matt Kiefer. Matt, you're with Goulston & Storrs. Uh, when I think of like zoning attorneys, I'll make analogy, much like any other profession, really, there's a range and it starts with like.
00:28
McDonald's, forgive me, to fast food lovers, and it goes up to like, Capital Grill. And that's probably not the right top of the range, but what would you guys, you guys are more foodies than me. What's the best? Dance of food. No, mean, of the hook. that's not even really, that's been gone for like five years. Sorry. That's Contessa. Well, anyway, the point I was trying to make is that, Matt, I think you are on the far upper end of that uh spectrum for zoning, when I need a real answer.
00:57
for zoning, I need to be able to depend on it. How many Michelin stars would you say he has? That's a good guess. All right, guys, all right, that's enough, that's enough. Bluff them up and up. How long have you been doing zoning? A long time, I'm an old dog. Well, I've been with Goulston & Storrs for, it will be 30 years soon. And...
01:23
That's really when I began, I started practicing a little before that, that going to Goulston was really when I began kind of focusing on land use approvals and zoning and the stuff we're going to talk about today. So I'd say that's kind of my timeframe and been a, live in the city and a kind of close observer of the city and how it changes. I should say also teach in the real estate program at the Harvard Graduate School of Design and teach land use.
01:53
related things. So I kind of come at it from those perspectives. That's nice. That's awesome. So why don't you set it up, Dan? You've done a lot of research to- Yeah, right. No, think just in general, I think what we wanted to touch upon today, I you've written a number of great articles and papers and contributed to a book related to kind of around zoning and land use and have a lot of opinions. ultimately, I think-
02:22
As we all know, myself, Ray and Mark have been going through the zoning process in the city of Boston since we began in this industry, and we know how arduous and painstakingly difficult it can be. so I think just overall, the big high level gist is that zoning is broken, right? The current process is broken. Yeah, spoiler alert. Spoiler alert. But I guess going back, like how...
02:51
How did we get here? Like, zoning is like 100 years old, right? So. Yeah, it is literally celebrating its 100th anniversary this year. was, the zoning started, just to read the capsule history here to kind of set the conversation. It started when Herbert Hoover was Commerce Secretary before he was president. And he,
03:18
started an effort to adopt what was then thought of as a land use reform. Cities were expanding, industrializing, early truck traffic was spreading them out, factories were located next to houses. It was a little chaotic, a little disordered. And zoning was thought of as a way to rationalize land use and particularly a way to
03:47
promote homeownership and protect homeowners from uh commercial and industrial uses. And that they promulgated a standard state zoning enabling act. And that was upheld by the Supreme Court in 1926. that was challenge. And when the Supreme it was challenged as an unconstitutional taking. How can you tell me how many stories I can build on my property or that I can do this use and I can't do that use? That's how Ray feels.
04:17
Well, I was literally driving down here and I'm on the phone with Dan and I said, I wonder if the ultimate play for rent control, uh zoning's maybe ugly cousin, uh, is going to be challenged in the Supreme court at some point as an unconstitutional taking because you, you're, you know, we'll get into that another time if we want. Yeah, probably won't. But that's interesting to know. it did not.
04:39
hold at the did. oh Sorry, argument against it. The argument didn't hold. then that's what, then every state basically, it took a few years. But after that, after 1926, every state eventually adopted some form of zoning. So Massachusetts was the first? Well, so it gets a little complicated. Massachusetts, yes, very early. And we had some kind of proto-zoning before this, some...
05:06
Yeah. Height limits and some early stuff, but basically, yeah, we were an early adopter. Wow. I'm so surprised to hear that Massachusetts was the first to offer that type of regulatory framework. We're such a live and let live. No, that's live free and die. Once that's a North neighbor. So wait, did it, so obviously it's, started, did it start at the state level for zoning? And then at what point did it like propagate down to every single- And then every municipality in town and-
05:34
When did it get to that? Yeah. So, you know, the first thing is the state has to pass an enabling act that says, that basically says to cities and towns, all right, you're now, you're authorized to adopt zoning ordinances. And then cities and towns started adopting them. So it happened, you know, gradually and differently. it really, big cities did it first, mostly. Houston's the exception. But big cities did it first. then,
06:03
Eventually after World War II, as the country was suburbanizing, suburban towns started doing it and it became almost universal. Why did Houston hold out? Sorry. Well, it's a good question. There's some history there, but a lot of, I guess you'd say libertarian anti-regulatory sentiment there, a pro-growth state.
06:30
Even way back then when other states were adopting zoning. So when Texas adopted Enabling Act, some cities followed it and Houston just never did. Interesting. So in Houston, is there like basically skyscrapers next to single family houses? Houston would have been the ones at the Supreme Court in 1926 arguing from the other podium. So God bless them. Yeah, I mean, it's always used as the example of zoning doesn't.
06:58
have to be universal. can have a city without zoning. There's something to be said for like, I'll deliver what the market commands or I'll go bankrupt. So like if you, how many parking spaces do you think we need? Do you think we need, you can show me a chart or as a developer, I can say, I'm about to spend $50 million on this building. Like if I don't offer any parking and the city really needs it, no one's going to buy my units or you know, I don't know. But here's the thing, Mark. So yeah, I'm going to challenge you a little bit. You know, it's really easy to think.
07:28
Hey, zoning's broken, let's get rid of it. Let the market determine whether you made the right choice rather than having a citizen board or a planning authority. um I wouldn't want to live in Houston. How about New York City? Well, you wouldn't have a job. Well, New York City has zoning. But New York City- There's a reason that, you know, city trying to harmonize land use in a city without zoning, particularly in an existing
07:58
already built city is a challenging thing. You unleash potential chaos, not just sort of social friction, but are you going to make an investment on a piece of land you bought if you don't know? And I own the land next door and I decide I want to build a slaughterhouse next door. Nobody's building slaughterhouses today, but you get my point. em It protects you that you're building in an environment
08:26
that has some kind of rationality or order to it. Would people invest in cities without zoning? I mean, they do in Houston, but I don't know that I wouldn't advocate for that for Boston and re-urbanizing cities like Boston. Well, like I said, I think you wouldn't have much of a livelihood in Houston as a zoning attorney, although I could be wrong. kidding. Yeah, well. My bigger point is that all these minutiae.
08:55
Parking may not be a minutia, but the zoning code doesn't need to govern and dictate each and every facet. Starting at parking, going to heights, stories. What's a half a story? What's a full story? Yeah. Can you dig out your basement? mean, think there are bingo. mean, that's the difference is throwing out zoning to me is sort of throwing out the baby with the bath water, but that doesn't mean that you need rule that we live in this zoning world now that we've
09:26
We kind of take for granted, cause it's a hundred years old that says, let's make rules and let's make it really hard to depart from those rules. And over a hundred years, those rules have accreted. have rules about the rules. have rules about everything now. have rules about the dimension of parking spaces. have rules. We have overlay districts. have rules about flood resilience and green buildings and inclusionary housing. And we have a lot of rules.
09:56
The Boston Zoning Code is 4,000 words of text for a city of 700,000 people. It's way above the average for any other city. It's just layers upon layers that they've just added weird like... I would also add that a lot of it stems from discrimination like zoning. And when I think zoning really took off after World War II,
10:24
I don't know, I think there's a pretty good argument that a lot of those laws were passed not in good faith, perhaps you would say. and I mean, that's a second problem, I think. The first is too many rules. em And that has a lot of maybe other consequences we can talk about. But the second one is the one you mentioned, is it gets, it's kind of zoning's always had a bit of a subtext of exclusion. Who do we want in and who do we want out?
10:53
And it gets weaponized. It has from the start been weaponized. And even when zoning isn't adopted explicitly to be exclusionary, it gets used that way. It gets misused and it's set up. has almost a structural incentive for obstruction because if you want it, so we're to make a lot of really detailed rules and Mark, you come along and you want to depart from those rules. You have to go to a citizen board.
11:22
and beg for a variance. And that variance requires you to show hardship, what's sometimes called hardship, you know, that your property is different. There are special circumstances applicable to your property that create a problem in complying with zoning and therefore justify an exception from the rules. And any butter can challenge that. And it's really hard to sustain that on appeal because that bar set so high. I'm going to butter.
11:52
And whatever, we're in a two-family district and you want to build an apartment building, I've got leverage. I got a lot of leverage. Even though the city needs apartment buildings, you've basically zoning is structured to hand me a club and you got to beg me not to use it. Yeah, favors the incumbents, certainly. Absolutely favors the incumbents and the incumbents try to keep out newcomers. Yeah. I think a modern example is in Brookline.
12:20
where you're not allowed to park on the street overnight. It's just a natural, it's a natural barrier to density. It's like, oh, you want to have two generations of families living in one house? Well, I hope you have enough parking spots, you know, cause why, why, why shouldn't you be able to park on the street overnight? don't, I haven't figured that out yet, but. That's interesting. The thing that frustrates me the most about zoning specifically in Boston, and we can even extend it to like Somerville is just existing nonconforming.
12:49
which is, think Somerville actually did a study of every lot that they have on the record with what's built currently. And they said something to the effect of 95 % of existing structures were nonconforming, which begs the question of what's the purpose of the zoning code because it doesn't even reflect the current reality of the situation. And I don't know if there's been a similar study in the Boston proper area, but I would argue that that also happens quite a bit.
13:18
A direct example Dan and I have is we were trying to get a three family back on a lot that used to have a three family back in the seventies, you know, it went by the wayside because the building was, you know, it was the city was going through that blight period and structures that were abandoned, the city took and then raised and then what could do as of right? then we put nothing, nothing by right, nothing by right based on the So a three fam existed to the seventies. Even though we were in a three families district, was the minimum lot size that had us. So.
13:46
we ended up going for a three, then we brought it down to a two, then we brought it to a single, that got approved, and then it got appealed. And we had to deal with the appeal afterwards. But we went through it, I looked at every parcel on that street and it was like, almost 50 % of them were existing non-conforming. It just frustrated me. Well, you know, let's just see an example of what we're talking about that in this, in this, this notion of let's make rules and make departures difficult.
14:15
You over time, you default to, you know, what I think of as no regrets rules. So here's the thing about the rules is if I follow the rules, nobody has a say. Right. I don't, just, it's as of right. I go to the building department. get my, so if you ask the neighbors, what kind of zoning are you comfortable with? The answer is really low density, no regrets. The only thing I'm comfortable with is stuff that I wouldn't possibly
14:45
have any objection to. And parks and parking. So what happens over time is, and this has really been true in Boston, is stuff gets down zoned. And so your point about everything's nonconforming in an existing city, a mature city, gets more restrictive over time. It gets more detailed and it gets more restrictive. So very little of the existing fabric of the city is
15:14
As of right anymore, it's all nonconforming, which also means if you want to change it, you got to go get zoning relief. Yeah. So I think we've sort of established pretty clearly the problems with zoning, but so begs the question, well, so what do you do? There's going to complain. So, you know, drum roll. I think that's where Matt's got some interesting ideas here that are a little different because I mean, what's been tried so far would work. and I guess not only. oh
15:41
If it does work, how do we get there? I mean, we just rezoned East Boston. We did it in South Boston before then. It seems like the era of NIMBY is starting to switch to YIMBY, but with maybe a twist. I think your idea of like, they just rezoned East Boston, but like, think Matt, you're saying, why even have zoning altogether? Yeah, well, not quite, yeah. So I'm saying really,
16:12
The focus, so back up a step if I could to say, for most of time I've been doing this zoning was like the hidden source code. Nobody thought about it other than land use practitioners. You couldn't have a conversation with 99 out of 100 people about zoning, right? It's come out in the open now, which is a good thing. People are actually debating it. And I think what's really sort of shone a light on it is housing in particular, is cities.
16:41
like Boston, mature cities that have a housing shortage and they're full of incumbents, it's now become really obvious that zoning is an impediment to doing something that the city really needs. So it's great that people are thinking about it. um And the debate now, the Yimbi movement has started to be a kind of counterpoint to NIMBYism and what used to be thought of as democracy and citizen participation.
17:10
is now kind of really like, you know, aren't they just looking out for number one? You know, so that's all good. But, but my point is the response to that is to, okay, so the rules don't work, let's change the rules. And my point is this whole idea of making rules and making it really hard to depart from the rules is part of the problem. So it's first, it's hard to change the rules because the neighbors say, don't up zone my neighborhood.
17:40
Because once you up zone, then I don't get to say anything. So if you let Ray build an apartment building, I don't even get to show up to a community meeting. He goes down to city hall and he gets a building permit for an apartment building next to my house. What's up with that? I get that. know, if I, I live in the city. mean, I, I would expect to have something to say about Ray's apartment building. So it's really hard to make rules that are as housing friendly.
18:10
and as multifamily housing friendly as we want them to be. so a lot of the zoning reforms have been little micro reforms. Let's make ADUs as of right. Let's remove parking minimums. Let's allow three family housing and a two family district. Let's increase FAR from one to two. Yeah, because that's all you can get public support for.
18:39
is these little incremental, you know, it's fine, it's helpful, it's better, but it's nowhere near enough. And I would say the paradigm's a little flawed. So isn't there a middle ground between
18:56
You don't get a say at all on what Ray builds next to you, or you get a club that you can beat Ray with if you don't like every single thing he's doing. Isn't there a middle ground? And the middle ground, and that's kind of where I'm, what I've been thinking about with this and the piece I wrote that you mentioned, the book chapter uh is about. um And, you know, my thesis is this idea of detailed rules and a variance.
19:23
can be, we have something now that didn't exist when zoning arose. It's called impact review. Most big cities do it. Boston does article 80 review. It's not relying exactly on follow the rules or beg for a variance. It says, you know, each project over a certain size can make its own case. It's not about are you going to follow the rules or depart from the rules. It's study your project.
19:49
and determine whether it has impacts. And if those impacts are unacceptable, what are you gonna do to mitigate them? And you go through a bespoke process. so it's not Ray gets to go to City Hall, and it's not I've got a club, it's Ray, I'm going to these meetings and I'm gonna listen very carefully to the project you wanna build. And I'm gonna look at where it casts shadows and.
20:14
Do you have enough parking? you have too much parking? And I can submit comment letters and there are standards for mitigation. If you go over certain thresholds, you got to do certain things. I get to look at your project. I don't get to club you over the head if I don't like where it comes out, but I have a say in your project. That's a much better paradigm than rules and variances. And so my point is to say, why don't we do that more often? Why don't we let more projects go through that process?
20:44
And then when they're done, they're done. They don't need to get zoning relief. They went through this process. They studied their impacts. They submitted their reports. Anybody who wanted to got to comment, not just the abutters. And the city made a determination that you, you know, you change your project to reduce the impacts or you mitigated the impacts you're going to produce. You're done. It's similar. It's, it's, and I feel like it would cover a lot of the objections that
21:13
come up in a typical neighborhood process anyway, like traffic, light, ah Yeah, but the difference is that no one can see you at the end. No, I understand completely. Because I think that the community process is fairly similar. But it's ticking all those boxes that typically come up. instead of it saying like, oh, there's a shadow on the corner of my steps for an hour a day, therefore don't allow.
21:37
you're getting rid of the irrational and the aspects that, it's almost like a PUD, a planned urban build. That's very much like here's the framework of what we're looking for. And we understand that new building is going to have some impact, but how do we mitigate that impact? Even down to the level of traffic and education and utilities, because you typically see like impact fees as a one-time fee as well to offset some of Yeah, you're right.
22:06
You both said really important things. mean, it's what you just said, Ray, is absolutely true that it's not based on this idea that there's any such thing as zero impact development, you know, follow the rules and don't have any impact. It's based on this idea that, okay, projects have impact, so let's look at them and let's judge whether it's worth it. The city needs housing. They did X, Y, Z to mitigate their impacts. It gets over this idea that
22:36
somehow you can make perfect rules. And if you make perfect rules, nothing's going to have any impact. Cities just don't work that way. So it recognizes that. it also, Margie made a really important point. People can challenge, you can find some basis to challenge it, but it's not, it can't get weaponized in the same way. It's not like a variance where a butters have a club. They come back to saying they got a club to beat you with. doesn't, anybody can comment, but there's a very high standard.
23:04
to go into court to overturn it if the agency's gone through this process and made a kind of a reasonable decision. I guess a few questions that are comments that I have. So where do you think the threshold, the size threshold should be for something like that, like an impact review? Because obviously there's zoning and there's always oh obviously the other aspect that gets brought up these days is cost and how it's very expensive to build new housing right now.
23:34
you know, on a smaller project, if you have to start doing all of these studies, like shadow studies, traffic, like traffic studies and all this thing, it's gonna crush a lot of smaller projects. So there's gotta be some sort of threshold, you know, like Boston has Article 80, know, small and large project review and stuff like that. So where do you see that threshold being? then every, is...
23:59
And then like anything below that threshold, as long as it meets the certain requirements, does it not have to go through that impact review? How do you see kind of that playing out? Yeah, that's good question. So I think Boston's Article 80 thresholds aren't bad. 20,000 square feet for small project review and 50,000 of new construction or 100,000 of rehab for large project review. Those aren't bad.
24:28
Boston's going through this Article 80 modernization process. I'm involved in it on the stakeholder committee, the stakeholder advisory group, um trying to make that process work better because sometimes it does take too long, it's too much of a burden. um in my world where projects
24:56
more projects do this and kind of embrace it because it's better than zoning relief. In order to make that case, it should work better than it does now. It takes too long. It's unpredictable. It's got the DNA is good. The paradigm is good, but it, it, the implementation is not ideal. And I think it really needs to improve. then people wouldn't complain as much about it being burdensome. would even say, you know, in, in, you know, my view of the world, you're like,
25:26
Even if you're under 20,000, you could opt in. You could say, I'm going to build a three-decker. I have to break some rules to do it. I think I can make the case for it. I'm going to submit my, you know, and it's a small thing. So it's got a 90 day review period and it's better than going to the board of appeal. I'm just, I'm going to do it even though I don't have to. almost like an A and B path. And, and you can, you can stay on the path of the projects that are under that minimum threshold. You could opt in.
25:56
uh in order to mitigate maybe some of that risk. ah Would there ever be a scenario where the project would just be flat out declined in that scenario where you kind of opt in? I mean, or would they right size it essentially? Well, so that's another really important difference, Ray. You guys are asking great questions and it kind of gets back to Mark's thing about the appeal risk. So the kind of the paradigm, the approach of impact review, it's like site plan review in
26:24
suburban communities, it's not yes or no. It's under what conditions. It's really hard to deny site plan review or to deny impact review. It's the paradigm is you need to address, you need to submit, you need to propose measures that address the impacts your project creates. And when you do that, and if you don't propose them, we'll come up with some. We need the public agency, right?
26:54
So the paradigm is you'll eventually get there. You may not like the yes you get, but you can't really get a no if you're willing to do these things. You say, I'm gonna, I don't know, whatever it And that single family example we mentioned earlier, well, it's in a 3F district. And then we whittled it down in the community process to a single family. Maybe that's the area where you can't really deny somebody who builds something. Or even your three family and you say, well, what's the...
27:23
What's your beef with it exactly? What are the impacts you're concerned about? Well, it's going to shadow the park on the corner. Okay, well, I'll make a contribution to fund the park. I'll move the orientation of the building to reduce the shadows at the time of day that people use the park, whatever it is. You agree to some things. And then on the basis of those things you've agreed to, the agency makes a finding that your project can go forward.
27:52
It's a very different thing than you got to follow the rules. There's a presumption that you're doing something wrong if you break the rules. Yeah. I mean, there's a saying, uh is the worst form of government except for all the others. I think the same could be said if you interchange uh democracy and zoning laws in Boston specifically. I think Boston zoning is the worst form of zoning except for all the others. Cause what do we do? We review each project.
28:22
case by case, we look at it, you sort of make your impact advisory thing, you cut deals on an individual project basis based on the perceived impacts from the neighborhood. The problem is, and how it could be better, is the club that comes after it, I think, is the ultimate trump card, which is, no, you didn't meet the threshold of the law. mean, that seems really weird to me, Mark, that- Yeah.
28:45
I've been involved in projects in Boston that have a two, three, four year long large project review process. And then at the end, you have to go to the board of appeal. Like you went through three years of community review. You negotiated everything, the number of parking spaces, where your vehicle entrance would be, where your ba ba ba ba ba ba ba ba. And you did it enough for the BPDA board to say, okay, we're satisfied and they approve you. And then you got to go to the board of appeal.
29:15
who's gonna hear your case for six minutes. And then all your butters and every one of your butters shows up with clubs. And then some random a butter will sue you. That's all it, it only takes one and they can basically hijack that two, three year long community process. resources, not only city resources, but like monetarily, it's just like the hours and it's just that you spend only to be basically crushed by...
29:44
It's crazy by one abutter. Just one abutter. It's crazy. I mean, if you were designing, know, knowing what we know now about cities, I mean, we're using Boston as our example, but I would say mature cities, generally you would say this now as cities are kind of re-urbanizing and reinventing themselves. If you parachuted in from another planet and you spent kind of six months walking around figuring out how this city worked and somebody said, okay, now
30:12
we need to design some kind of land use system here for the city. It's going to be growing and we need to make some rules. Would you, and somebody said, well, here's one proposal. We're going to hand over your butter. You would like look at them like they were nuts for proposing something like this. But we kind of, this is the world we live in. We think it's normal somehow that we do this. Yeah. That's a good point. I always come back to the point where I want to scream it at the meetings is just,
30:42
where did your housing come from? Someone had to build it at some point in time. So you can't be anti-new housing altogether when someone else could use a home in the city if they want to live there. They're in the lifeboat. They're going to pull the ladder up behind them. That's fairly nuts. That's why I say what I say. Well, yeah. So I want to just moderate this a little bit if I could. I've kind of inflected a little bit here that um I've been involved in
31:11
I mean, I mentioned I live in the city and been involved, know, represent property owners who are evaluating new zoning or the effects of zoning. And I think it's completely reasonable that abutters, that the people most affected by development have a say. And yeah, they're going to be self-interested. Don't give them a weapon. Give them a voice.
31:40
but not a veto. That's my point. And I don't want to lose that they should have a voice. And that's part of why these as of right things don't work, because it takes their voice away. And that's just as unreasonable as giving them a veto. And the neighbors, you know, when you're going through this impact review process, the neighbors are great impact police. They know their neighborhood better than you do.
32:09
and better than the planners do. So they're a great source of local knowledge and they're like a free database of information about how to design your project to minimize its impacts. And you don't want to lose that. You want to give them a voice, but not a veto. uh I agree to a point, I guess, on a large scale project that has much higher impact, I agree.
32:39
You know, if I want to, you know, build a triple decker on a street that has 90 % triple deckers, like why should a neighbor have a voice? Like I, no, no offense to them, but like, sorry. should their voice turn into a I'll take the other side too. And listeners, long time listeners have heard me say this before, but you know, urban planning is a science. It is a study. It's something that deserves respect.
33:07
If somebody collapses on the corner, I don't say who here has known Dan the longest. He's having a heart attack. Say who's the professional who's educated in this and has spent time studying his malady. need help. I don't get why. And furthermore, the idea that you've lived here for 30 years, you're at worse specs of dust where we see nothing. If you really could live for a long time, you'd know that Dorchester was a sheep pasture and a horse farm. And that's what you'd be arguing with me. You raised your kids here for 20 years. Congratulations.
33:37
You've seen nothing. If I could draw a timeline and show you how long you've lived here for, sorry, buddy, we're not significant. Like, you been to the, it's the same thing. Have you done the, the new freedom tower thing in New York city where you get into the elevator and it basically at the ground level, it's like a video in the elevator ground level. It's basically New York city as just pastors. And like, as you go up.
34:01
the elevator shows how the city is developed. It's pretty cool, but that's to your point. It's like, there was nothing. was just land. Right. So like, was a lot of farms and then those got subdivided into the neighborhoods they are now. So it's like, yeah, I've, I've lived in this neighborhood for my entire life. Okay. Well, sorry. Like, yeah, well that, you know, I guess I agree and I don't Mark. mean, I know what you're saying. You know, cities change and they have to evolve. They have to be.
34:30
You have to have rules that allow them to evolve. But on the other hand, people live there. It's not like the 1920s when zoning arose and cities were expanding into cornfields and you could kind of make rules and there was nobody out there to complain. The cornfields are gone and people live there and it's important to them.
34:59
How do you draw that balance? know, it's like your point about zoning is terrible except for a very other. mean, democracy is messy. It's terrible, except that it's better than all the alternatives. It's just, there's no magic formula that is gonna eliminate that. People have different views. And in some ways, that's how democracy works, is you just create some ground rules for those different views to come in contact with each other.
35:26
and reach some kind of resolution. But to your point, Marc, I agree with you, right? Like, you know, there are so many people like yourself, Matt, who have so much more expertise around these, you know, impact studies and zoning analysis and urban planning and things like that, where I think there could be some, there has to be some sort of rules, right? To your point, like you can't have no rules.
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But you could have a Houston. Let me give a real example from you guys. We did a four, three, four year study of South Boston. There was a gentleman who was assigned to lead that process. It was a very good process. And I him, I think he did a fantastic job. He hosted probably a hundred community meetings and it culminated in a floor area ratio of two, a height of 40. And I think it was like MFR allowed. And one of the first projects through post new zoning.
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was Q Dan and Ray converting an old house into an FAR of two and a height of 40. the outcry was so politically disruptive that immediately the city imposed the interim planning overlay, which is just like a kibosh. It's like a fire. Yeah. Yeah. On everything needs to What did we just do? What did we just do? And like that to your, I think this demonstrates your point perfectly, which is that it's really tough to just make a graph with
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with rows and columns and say 40 feet FAR2. Cause you guys probably did pick a bad house. It's not your fault. No. And it wasn't just us. heard there was another developer. So there were a couple of us. the same time. All kind of saw what was coming and said, let's make some strategic acquisitions based on what we the rules would be. And not hold. It's not like we picked that.
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that particular house and just said, school all these people. I think it's a good thing why one size can't fit all. Yeah, I mean, it does. And maybe with just a little bit, sometimes it's just like the luck of the draw. The person next door is the president of the neighborhood association or very active and is willing to make kind of a full-time job out of it. But it comes back to, I use this phrase of a voice but not a veto.
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Sometimes the neighbors think they have a veto and I think that's just not good for the city. No, I, it's really not. It's, and it, it's just too much self-interest. Yeah. But what's good for the goose isn't always good for the game. when they know they have a veto, right. Well, what I, what I really like, and I think the best news story and most underreported of this past year for real estate professionals is um the abutter to John Holland. is all public knowledge now in the South end.
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who was sued by John for abuse of process and said it was also an unfair and deceptive business practice under a 93A claim and a judge, happened to be a nerd and I read this decision. He was quite effusive in his decision saying like, you my friend are an asshole. I don't believe anything that you've testified here that those were actually your motivations or that you were really, you were just abusing him and you've cost him a ton of money.
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And you now own that in trouble damages and interest on it. And it's like, it starts at like 11 million, add the interest to it. Yeah, it's a very interesting case. this guy's got a lot of assets. This isn't just like a judgment to frame and put on your wall. Right. This is, this is a real, so I want, I want people who appeal a decision to have skin in the game, sort of like England, where if you lose a lawsuit, like you owe me my legal fees now and something for my time. Like I think if you step to the plate and you say this project is screwed.
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You are going to create so much unmitigated harm that and somebody, a third party reviews this and says like, no, you're being predatory. You live 400 feet away. You saying that that two families can add one vehicle. Yeah, right. I think there needs to be put skin in the game. Yeah. No, I agree. And that's a good decision. don't know.
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Yeah, it's unusual, but also the things that the budding owner did were pretty unusual. They were pretty abusive. mean, that- But the bar should be lower for that. Pardon, yeah. So I just think that you should be able to come back and say like, all right, if you want to play, I'll play. So who ultimately has control over, in this case, Boston zoning? Is it City Hall? Is it BPDA? Or does it have to go to the state legislature to change anything? Like what-
39:58
Who has the authority to change? Yeah, the Boston Zoning Commission. There's a body, it's different than the Board of Appeal, and there's a body called the Boston Zoning Commission that adopts zoning and zoning changes. they're... Are they elected officials? No, they're appointed. They're appointed by the mayor from... Boston has its own...
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zoning statute, it's different than the rest of the state. Massachusetts has two zoning enabling acts, one for Boston and one for everywhere else. And Boston has its own appointment. The real estate board nominates some people, the different organizations nominate members. And based on those nominations, the mayor picks them and then there are four at-large members that the mayor appoints directly. And they have terms and they're
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citizen volunteers and it's staffed by the BPD. So how difficult is it to make any significant change in the city? Yeah, from a zoning perspective. What would it look like essentially? What's step one? Step one is you file a petition. It goes to the BPD board first for a recommendation. Who's you? Sorry, anybody? So I think it's 10.
41:23
Registered voters, I think, can file a zoning petition. Doesn't happen very often. Most of them come from the city. They're initiated by the BPDA. But there are citizen petitions for zoning changes. And then you can get sued for spot zoning. Yeah, well, that's a little different. em for the invalidating the zoning itself rather than the approval.
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the zoning belief that this parcel doesn't require any zoning because you can go to a ZBA to get a variance or you can go to the BCC to get the zoning change Well, but and that's um I'm a layman here. So no you're right. If you you know, there is this idea of spot zoning the zoning These enabling acts have this requirement of uniformity. So you should treat all similar properties similarly. So if you mark
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go to the zoning commission and say, here's a row of three deckers in a three family zone, rezone my property for multifamily residential with whatever, a height of 65 feet and FAR of four and everything else has a height of 35 feet and FAR of two. And you convince the zoning commission to do it. I doubt they would, but if you convince them to zone your property separately,
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you'd be subject to a spot zoning challenge. They do this, they do spot zoning in other places. I've heard a lot about it out in the California, for example. And I'm not sure if you've seen any of those and I don't have a specific example per se, but I've heard of that practice not being uncommon. Right. And just curious how those compare and contrast. Yeah, it doesn't happen that much in Boston because m
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Boston to Boston Zoning Commission just hasn't done that much. But in a lot of places where zoning's restrictive and it's very hard to get a variance or the neighbors often challenge them, there are some zoning commissions, local zoning bodies that are willing to do that. I come with a project and the city wants the project, so they create.
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a change to zoning to allow that project to occur. And it's just for that project. um And courts tend to say, well, zoning is supposed to be based on planning. You're supposed to look at the entire area. You're supposed to zone properties in some rational way and not just kind of pick and choose your favorites. um It's pretty rare around here. your proposal be not that different from a special permit process?
44:13
We've both recently done projects in Newton, for example, and you have your baseline zoning rules. And then there's almost like a column that's like stretch. Like, yeah, you can do just apply for your permit and build your purple house if you want for two stories. But if you want to go up to four stories, that's special permit. And the bar for appeal is much lower. And if you stay within the confines of those rows and columns for special permit and the city hears it out and approves it, as I understand, it's much more difficult.
44:42
And actually, that's another thing I suggested in this piece I wrote, that Boston's equivalent is called an exception. And it's a different standard than a variance. But yes, zoning ordinances that have special permits is kind of like what we're talking about. It's a much more flexible standard. The idea is for certain kinds of projects, or maybe it's in certain kinds of districts, projects, it's not
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available citywide sometimes, but certain kinds of projects and certain kinds of districts, you know, we, even if you depart from the rules, we think there's a case you can make. So you come in and make the case. And if we agree with you, you get a special permit. Those are much harder to appeal. Boston has something called exceptions that they don't use that much. And I think they ought to use them much more often for housing projects. Conditional use permit? Well,
45:35
There's sometimes they use conditional use permits. exception standard is, that's another one in Boston. The exception standard is broader. It's not just about uses. It's about dimensional requirements. It's about anything. It's just, you just have to make a finding that the projects in harmony with. I never heard of that. Yeah, it's not used. mean, somewhere in the 4,000. Well, but here's, talk about zoning, you how hard is it to make, you could go to the zoning commission.
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So I don't know, you guys live in Boston? I do. So let's get 10 people. However many of us, we got four here, but we're not quite there yet. You could get 10 people and submit a petition. And literally it would be one paragraph long that says, I'm going to make this up a little bit, but the city needs housing. need multifamily housing, multifamily housing within these parameters maybe.
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in any residential district in the city that needs any zoning belief, it'll be by exception and not variance. It'd be two sentences in the zoning code and it would change everything. It would take away this handing every abouter a club. Yeah. Because now it's an exception. got a question. Yeah, actually. How do you feel about form-based zoning? I feel like that was very on trend. Somerville adopted it. This idea that like,
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The zoning code should be four pages long and should be mostly pictures. The idea is more seductive. Ikea instructions. It's hard to do. The idea is more compelling than the reality of it because, you know, it's a little bit like zoning period that if you're expanding into a cornfield, all right, you decide what you want the city to look like and you make rules.
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and people follow those rules and nobody cares because the corn doesn't have standing, you know? But when you try to impose that on an existing city, in a city like Boston, like how do you do form-based zoning? Every block is different. I mean, it's the thing that drives us crazy, but it's the thing we love about Boston. It's the reason you wouldn't want to live in Houston because when you walk down the street in Boston, every block is different. Every neighborhood is different.
47:56
Every neighborhood has its own character and it's really quirky and fine grained and you can't invent some form-based thing that works in that environment. You just can't do it. Yet I love Paris. Pardon? Yet I love Paris. Paris is one of my favorite cities and it's probably the reason is it's because it was one of the most draconian zoning policies. It was all burned down and then as I understand it, it came.
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Said this is how each city will be you will respect this roof line and carry this consistently across You will have small Juliet balconies and like I don't know the result is beautiful Are there other cities in Europe that it's like you cannot build higher than like the top of the... you can't build higher than the monument. Right. like the higher than the church school like in the center of certain... I'm not really sure what I'm arguing anymore.
48:54
Well, it seems like it's an uphill battle. Yeah. And that was, yeah, it'd a hard thing to do today to set rules that are that draconian and have everybody live by them. you know, back in the days of house men when boulevards were cut through, know, houses were torn down. mean, the city's filled in around that. But if you tried to do that today, you'd probably get the reaction people had to urban renewal. tell you what, I think Mayor Menino
49:24
was a good example of a God bless him, ah benevolent dictator. And he was, he really kind of, as I recall as young, but he seemed to rule, you rule with a pretty iron fist, but it was always for the benefit of the city. And he made decisions and he never made one for his own self-interest. He just sort of said what he felt. he was like, and that's almost like democracy is so messy in this. If we only had one very educated person who could just be firm.
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It's difficult because that person typically becomes a tyrant. ah He didn't in my destination. Some people might argue otherwise, but not me. He very old. I think you're right. like that's a, it's like, could you? He was a remarkable guy. There's a reason he was mayor for 20 years. He never without real any headlines, major headlines. Scandals. I mean, I think he basically until the very end when his health was, you
50:20
He got up every day, every morning and pinched himself that he got to do the job for another day. It really was important to him to get it right for every day he lived that. I really, I admire the guy. Yeah. Yeah. Good for him. Well, it's a boy or a girl. I was going to say, so, mean, so whether it's zoning reform or impact-based zoning, I mean, the idea and the thesis behind it is because everyone needs a home, right?
50:49
It's about the optimal use of limited resources, which is the land here in the city. And aside from that, I mean, if everyone had a home and everybody was good and there was no more demand. And tax base. Yeah. Sure, sure. I mean, homes. But then what would we do next? Like just replace like kind? mean, it seems like you're always going to have that population growth. But then at some point, city does have that period where it might contract a little bit. Yeah.
51:16
So I mean, we've been lucky. We're lucky to have the problem we have um of needing more housing than we have. there, I grew up in Detroit. Um, you know, um, let me talk about Irpin for cool, right? They're going through it now. I mean, that's the city that has a third of the population it had at its peak. Uh, um, you know, we're lucky to have this problem. Um, but still, yeah, you're right.
51:44
people we need housing. It's not just housing. mean, you know, maybe we built too much lab space, but it's not so bad, you know, and, and, and, you know, we're kind of the world's life science capital really. And if we need lab space to maintain that status, maybe that's just as important as housing. creates jobs and tax revenue. And maybe it's helping to, you know, I'm getting grandiose here, but Boston is a place that
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helps forge the future of humanity. Stuff gets invented here and has for centuries that um we've innovated in all kinds of fields. You know, science, literature, politics, how many presidential candidates from Boston? uh How many, what other city has sports teams like we have and fan-based like we have? And there is so many areas where like the stakes are high for getting it right and not
52:43
not making decisions that send us into another period of decline. I think it's also not, it's, you know, I know we talked a lot about zoning, but it's not just zoning. There's a lot of other levers that contribute to housing production as well. You know, there's obviously fight financial markets and things like that, that are out of the local jurisdictions control. But there's also things like,
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IDP and the stretch code and a lot of other things that can be, you know, changed to help spur housing, right? And I think that zoning is one of those things, but if you fix zoning, but all these other things make it still financially unfeasible to build housing, like I think there was, you in the interview that you were on,
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I think someone on there said there was like, have been 30,000 housing units or something approved by the city in the last X number of years. if none of those- Not going into construction. of those get built. Yeah, Then prove versus- no, it's true. mean, zoning is only one of, but you control what you can and this won't last forever. The economic circumstances change. em You know, the-
54:05
that the current market moment isn't going to last forever. Take the long view. What does the city need? And zoning, we had to be doing zoning that works for a decade or two decades or a half a century, not only in this market. Yeah. Yeah. Well, I think it's been an awesome conversation. Appreciate everyone listening, reviewing, subscribing. Please share the podcast with your friends. oh
54:31
Pardon thoughts here, Matt, Ray, what do you got? We need music, I Don't get the Ray's yet. Ray, Ray, take her. I was watching. No, for Matt, how can everybody learn more about what you're proposing and studying here and If somebody needs an excellent zoning attorney. Yeah, well, I wrote a chapter in a book called Idea City. My chapter was called Zoning 3.0. Maybe a little more than you want to know about this, but I also was interviewed. uh
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by the Harvard Design Magazine. And I kind of gave a little bit of a snapshot of this. You could find that on the Harvard GST website. I'm also happy to. I'm a zoning nerd, kind of like you. I mean, I'm happy to talk about this for anybody who wants to. I'm not going to bill you for it. I think about this. Maybe you'll think I'm a little weird, but I think about this. And I think about the importance of the city getting it right.
55:29
about to celebrate our 400th anniversary as a city. Boston was founded in 1630. 2030 is gonna be, you know, we're gonna be heading into our fifth century. I just, I think we really need to be thinking about the future of our city and how to make it the best city for everyone. And by everyone, I mean, not just people who live here, but again,
55:58
being a little grandiose, I feel like we have a bit of a responsibility to the rest of the world to continue to be the great, great city that we are. And zoning's a piece of that. It happens to be the piece I understand the best. That's a piece of it. Amen. appreciate it. Let's leave it. All right, guys. Hit the music. Yeah, thanks for having me. Thank you. Yeah, enjoyed the conversation. Thank you. All right. Thank you, everybody. Talk to you soon.