Show Down at City Hall: 4 Standing Up for Democracy/7 Complicit in its Demise

We were not surprised that the majority of the City Council voted to warn a public hearing for the ordinance change, simultaneously offering their support for its passing at the hearing (Thursday, September 29th, 7 p.m. at Contois), but we were surprised at how few councilors were willing to accept even the most mild compromises proposed by councilors Tracy, Bushor, and Colburn in an attempt to move the zoning ordinance even slightly in a direction that reflected the public sentiments about height, affordability, underground parking, and the railroading or process. The Mayor on the sidelines encouraged this stubborness, arguing in between eating M & M's against raising the affordable housing percentage by a mere 5% (a fraction of what it would be for a building this tall under our current ordinance). He spoke in Orwellian doublespeak, claiming that providing more affordable housing would make the city less affordable. His arguments, as well as arguments by other councilors defending their stances, could be used as case studies of the misuse of logic. It was, most likely, this entrenchment and disingenuousness on the part of the 7 council members who refused to approve the amendments, which influenced  Councilors Bushor and Colburn to join  Councilor Tracy  in stating that they would not be approving the zoning change. Councilor Giannoni voted no with them when the question of the warning of the Public Hearing was called, which may mean that she also intends to vote against the ordinance when the time comes. Unclear. Councilors Colburn, Bushor, and Tracy all gave fierce speeches about why they would not be supporting the amendment, which I will get to in a bit, but first, the details.

The discussion of the ZA 16-14 DMUC Overlay Technical Corrections began with some confusion, as Eileen Blackwood, City Attorney, interrupted the proceedings to suggest that Council President Knodell go about things differently, since, as she noted when referring to the process they were forced into that evening of approving zoning amendments and warning a public hearing on the same night, "It's funkier than that". When the City's own lawyer publicly admits that something is funky, we do well to pay attention. It seems that there might be something fishy about it. And, while the Councilors crow about the 10 meetings they had on the amendments, these meetings consisted of 1-hour each for council discussions of the complex amendments (10 hours to discuss the largest zoning change in decades). It is still too fast. One amendment even came in during the meeting, emailed by David White to Council President Knodell around 7 p.m. The Councilors voted on it without any prior consideration.

The first series of amendments dealt with the boundaries of the Overlay District. Councilor Bushor proposed removing the Lake St. and College St. garages. Failed: 2 in favor (Tracy and Bushor)/9 against. Councilor Colburn noted that while she has concerns about height and scale, she fears any minimizing of the area would bring us closer to spot zoning. Then Councilor Bushor, "ever hopeful," proposed removing Lake St, garage, College St. garage and Macy's. She said the intent was to give relief to visual corridors from the Lake, Edmund's Elementary, houses surrounding. It would be more in keeping with how we should grow our downtown, she said. Councilor Wright asked Attorney Blackwood that old question: "We are not spot zoning"  with the current boundaries, "are we?" "Correct" Attn. Blackwood firmly said, but any removal of any parcel would strengthen the argument that it is spot zoning, though, in another instance of doublespeak, she backpedaled, saying, she was not saying that it would be.  Bushor's amendment failed again, with only Tracy's support: 2 for/9 against.

Councilor Hartnett, who had been captured on camera ordering Red Sox tickets during the Police Commissioner report may or may not have been paying attention to this discussion, but did answer when President Knodell called him to present his amendment, which was to expand the overlay district even more! He noted that if he had his way we could expand it from College Street to Pearl Street! But, since he realized he would not have the support on the council he withdrew the amendment. Maybe he also did not want to take the time to explain when there were things he could be researching on the internet?

Councilor Shannon withdrew her amendment to remove the College St. garage, even though she deemed it would not strengthen a spot zoning claim, since she had "confidence"  that the City Council would not approve building something there that would ruin the view down Bank Street.

An amendment on Major Impact review was proposed by Councilor Bushor, which I could not understand at all. Councilor Bushor supported it, but noted that the amendment (written by Wright?) circles around itself and is really hard to understand. Succeeded 10/1 (Tracy against).

The next amendment, proposed by Councilor Bushor and seconded by Councilor Colburn, was a modest attempt to lower the height in the district from 160 ft. to 135 and FAR(floor area ratio) from 9.5 to 8.5. Bushor's rationale was that the "overlay district is really out of scale with what Burlington wants to be".

Councilor Shannon opposed the amendment noting that it does not achieve any of the goals it sets out to achieve. For those who don't like the height, it is still too tall. Moreover, she noted, conflating the zoning overlay with the Sinex project as usual, there is no one offering to develop the site at 105 or 135 feet, would not get us our street grid back (why not?), etc. Councilor Colburn supported the amendment,noting that while door knocking for her legislative campaign she spoke with hundreds of residents who wanted height and density and growth but who found the scale of proposed changes too great. She also noted that we do not know if it is a workable compromised since we have not heard from Sinex or any other developers about it. Most importantly, she asserted, "Our zoning should reflect the desires of the community".

Tracy noted that should the ordinance move forward at 160 feet height he would not be supporting it. As such it would not reflect a compromise between those for and against the change.  Dave Hartnett, looking up from his computer, wanted the councilors to be fair to poor Mr. Sinex, noting that when the Council voted for the Pre-Development Agreement, they knew that the 160 feet would make or break the project. Councilor Bushor fervently disagreed, noting that she had explicitly stated at the time that she would support the PDA, but not the 160 ft. She noted that Sinex, at that time, had indicated that they would "work on it". Perhaps Councilor Hartnett was watching something on his laptop at the time and missed that part of the discussion?

The Mayor then gave a little speech, saying he appreciated the points about the spirit of compromise, but only when it would be meaningful, asserting that the impact of this amendment would be to eliminate dozens of housing units. Councilor Bushor countered by noting that it was a false assumption that housing would be the element lost in such a change. She had spoken with David White and Megan Tuttle, exploring ways to keep the housing in such a scenario.

Councilor Knodell let her fellow councilors and the audience know at this point that she would not be approving this amendment, or any other one that made a "material change" to the Pre-Development agreement or that would jeopardize it. So much for looking at the zoning change separately from a particular project.

Councilor Bushor's modest proposal to reduce the height and FAR was voted down 7/4, with Colburn, Tracy, Giannoni and Bushor in favor.

The next 2 amendments were proposed by Councilor Tracy, and dealt with setting a maximum height limit inclusive of mechanicals and administrative height relief. Tracy argued that the public understands the height to be 160, when in effect it would be higher with the mechanicals and possible changes made for grade differences. Why not set a maximum height to clarify the discussion? In answer, David White said that it would mean that the mechanicals would have to be relocated, that there would be less green space, and less room for storm water mitigation. Shannon noted that setting an absolute height would take up housing space and that setting a maximum height would limit the possibility of having architectural features that would improve the skyline. What nobody except Max seems to acknowledge is that setting a maximum height is a matter of transparency. Why not set the maximum height at 190 feet, if that is what they want? Instead, they call it 160 feet when it really means 190 or 200 feet? What? Totally baffled.

Tracy noted that he was not comfortable with someone who is not elected making decisions about administrative height variance. His amendment to set a maximum height inclusive of mechanicals  was voted down: 4 for (Bushor, Colburn, Tracy, Giannoni)/7 against, as was his amendment to removing administrative height relief variance: 2 for (Colburn and Tracy), 9 against.

David White's new amendment, # 3.4,  came in between these somehow, emailed during the meeting. No time for the public to understand either before hand or during. But it had something to do with bonuses and affordable housing. It received unanimous approval. But did everyone understand it?

Bushor and Shannon tried out two amendments related to Max's two above. Bushor argued for limiting the administrative variance to only be utilized for height grade differences. Voted down 2/9. Guess who. Then Shannon argued for changing the variance allowance from 10% to 5%, approved 9/2.

There's more. Go have a drink and come back.

Okay.

Next up was the amendment to increase affordable housing percentages. Councilor Tracy proposed an amendment to raise the required amount from 20 to 25% in the district, acknowledging that he would like to see much more but could not expect to get support on the council for it. It was, I believe, a symbolic statement and it surely demonstrated who on the council cared enough about affordable housing to support an increase of a mere 25% when this whole zoning overlay takes away the bonus system that would allow for a much greater affordability profile in buildings this tall. Councilor Colburn seconded the amendment, but the Mayor stepped in to give another little speech:
Certainly I support the good intentions, he said, but the administration (speaking of himself in the third person) opposes it for several reasons: 1. It constitutes a material change from the Pre-Development agreement, and was an issue highly vetted with the developer. He seems to have forgotten than a number of Councilors clearly noted on signing the PDA that if the affordability profile was not improved they would not sign the final agreement. He also seems to be forgetting that the ordinance is not supposed to be driven by the PDA. 2. it would be a mistake and self-defeating (he originally said self-serving in a Freudian slip, but corrected himself). It would make the city less affordable, by raising the risk of no development being built downtown. That being said, he noted that the discussion with the developer is open and a higher % is possible.  Councilor Bushor begged to differ with the Mayor, noting that a 5% increase in affordable housing requirements in this zone would be something the public would embrace. This amendment was voted down 7/4, councilor Knodell, allegedly an advocate of affordable housing in the Progressive Party, voting against an increase of a mere 5% in affordable units for the downtown overlay district.

Next came parking. Councilor Bushor advocated for creating an incentive for underground parking in the zone which would make each underground parking space be counted as 1.75 spaces, taking the burden of providing more spaces off developers who agreed to put their spaces underground. She noted that in the Sinex project this could eliminate one whole floor of parking. Councilor Tracy seconded the amendment, noting that it was in keeping with the Downtown Parking Plan's commitment to better utilize the parking we have rather than building more.  The amendment carried unanimously. Thank you, Councilors Bushor and Tracy for this innovative amendment.

Councilor Tracy then made a bold move that was seconded by no one on the council: instead of strongly preferring or creating incentives, why not require underground parking absolutely. No takers.

I am skipping the one about awnings.

The next amendment, floated by Councilors Colburn and Shannon, was about LEED certification and required LEED Gold or a "nationally recognized equivalent as determined by the administrative officer". Eric Morrow had criticized this language during public comment time, noting that there was stronger and clearer language adopted by San Francisco they should consider instead. Councilor Colburn acknowledged Mr. Morrow's concerns, saying that the intent of the language was not to present a loophole, but to leave the city open to utilizing stronger requirements should they arise. The problem with this, I add, is that we cannot trust our administrative officers. In any case, this amendment carried unanimously.

Then Councilor Bushor proposed an amendment to minimize effects on the micro-climate by reducing heat islands. But the Mayor was against this, saying it would be limiting and that the other requirements presented in the overlay district were already making this zone far better than in any other part of the city in respect to green initiatives. TThis amendment could create problematic proscriptions. The Mayor had already told us about all the great things we are getting with this new zoning, neglecting to mention that we could very well get the same good things without the bad things he has tied them up with. We could set a LEED Gold standard and new storm water requirements without increasing our height and FAR limits and taking away our bonuses for affordable or senior housing.We can even get the streets back without doing this. This amendment lost 9 against/2 for.

The following amendment about Storm Water treatment was unanimously approved and provided the occasion for another self-congratulatory speech by the Mayor, who crowed about the new storm water treatment without acknowledging that the new developments allowed in the zone would put enormously new pressure on these systems. To create new systems is great. But without accounting for the reduction of permeable services and the increased pressures of population, etc, without adding green roofs and green spaces, without a commitment to preserving natural areas within the city,  this is less than a win.

Finally we were ready to warn the Public Hearing and have general statements from the councilors.

Councilor Wright thanks Don Sinex and affirmed that this district was the right place in the city for tall buildings, that it would not constitute a precedent, and that it would grow the tax base.

Councilor Colburn said she would not be supporting the ordinance as amended. The height and scale are dealbreakers, she said, since the majority of her constituents say it is too big and want a more modest proposal of around 10 stories. She also noted a false dichotomy throughout discussions: either you are for this project or you are against growth, housing, progress. Thank you, Councilor Colburn, for noting this. It is a nuance many have not been able to grasp. She also noted that she would be working towards creating a better project in negotiations in the future.

Councilor Tracy, our stalwart hero, noted that the proceedings that night had confirmed his worst fears since the Pre-Development Agreement, that the ordinance process would be a charade. He had hoped that the council would approve some amendments that would ameliorate the project and show some willingness to compromise. But instead there was an unwillingness to bend on making a maximum height, on affordable housing, on parking. There was no substantial change to reflect the public sentiment. Tracy also noted that the Public Hearing was scheduled when he would be away and although he had made that clear there had been no willingness to schedule it at a time when he would be present. He may be flying in and arriving at City Hall at around 9:30 the night of the hearing. Maybe in time to vote; maybe not.

Councilor Shannon said that there had been many many meetings. Although they had worked under a "somewhat condensed time line" the considerations had not been condensed "meeting-wise". She said she appreciated the opponents's concerned and shared many of our views, but she did not believe that we could achieve what Plan BTV wanted without making this ordinance change.

Councilor Roof, who is clearly learning how to be a good politician from the Mayor, took the time to explain to the misinformed public how TIF really works. Thanks, Adam. We had no idea.

Councilor Bushor bravely and intensely stated that she would not be able to support the proposed overlay district zoning. Sadly, she said, because there were many wonderful things in it. The fatal Flaw in the whole project, she noted, was the intertwining of the zoning overlay and the Sinex project. She noted that Attorney Blackwood had encouraged the Ordinance Committee to look at the ordinance separate from the Sinex proposal. She concluded by saying that the height and massing of the overlay were not compatible with Plan BTV.

Councilor Knodell, in opposition to the Progressive Part which sent out a press release recently rejecting the project on the grounds of process and its bad affordable housing profile, finished out the speeches by saying she would be supporting moving forward with a warning. The Zoning, she said, is right for Burlington.

7 Councilors voted to warn the meeting. 4 (Giannoni, Tracy, Bushor, Colburn) voted against.

Please plan on being there on the 29th for Public Comment and to witness the conclusion to this part of the charade. And if you want to help with petitioning to get this zoning change on the ballot, please contact us right away.