BAIA To Meet Thursday July 3rd

The Brighton-Allston Improvement Association meets on the first Thursday of every month from 7:00 - 9:00 pm at the Elks Lodge, 426 Washington St., Brighton Center. All BAIA meetings are wheelchair accessible and open to the public. For more information, call 617-787-1299.

• 45 Harriet St. – Convert a two-family dwelling into two condos; add a full dormer to third floor with three bedrooms and bath
• 14 Ridgemont St. – Create off-street parking for two vehicles
• 89-91 Dustin St. – Raise roof line of a two-family house to create additional attic space [proponent asked to postpone]

May be a short meeting...

Four Landlords Plus One Student Make Five -- And File Suit Against the City

The Boston Herald reports that four landlords and one student have filed a lawsuit against the city's new zoning amendment restricting rental properties to four or fewer undergraduate students per unit:

Battling City Hall are four landlords, Mark Rosenberg, Anthony Dimeo, Lazarus Pavlidis and Lloyd Rosenthal, who all bought homes in Allston and Brighton over the past two decades with plans to rent them out to students...

Jessica Luccio, who lives with eight other students in a rental in the city, also has joined in the suit. She argues that, under the new rules, she faces an unfair restriction on who she can rent an apartment with in the city.

And... why didn't the other seven students join the suit?


Earlier: Amateur legal analysis of some legal arguments opposing the zoning amendment. Boston Zoning Commission passes the amendment following a long, boisterous public hearing. BRA Board does the same, without so much boisterousness. Background on the zoning amendment.

Update: Adam Gaffin reports that the student who joined the lawsuit, Jessica Luccio, is a student at Boston College, based on her Facebook profile. She also has a webpage on the BC server. She is in the class of 2010, hence currently a sophomore -- and therefore in need of housing for the fall, since BC does not, in general, provide housing for juniors.

Another Update: More will be coming in the future about some of the landlords who are part of the lawsuit. Some of them are well-known -- if not notorious -- in Brighton.

Legal Objections to the Four Student Apartment Zoning Ordinance: "Is That All You've Got?"

Opponents of the recently enacted zoning amendment limiting off-campus undergraduate students to four or fewer per apartment appear to be preparing a legal challenge, according to the TAB newspapers.

What might be the legal arguments at the basis of their challenge?

An online op-ed by Dr. Richard Cravatts, advertising and publications manager at law firm Nixon Peabody LLP, at the American Thinker website presents a series of potential arguments against the zoning amendment. I suspect that the arguments he makes will be similar to many arguments that will appear in a lawsuit seeking to overturn the zoning amendment. He works for a law firm, while I'm not a lawyer at all, so it makes perfect sense for me to be presumptuous by analyzing his legal arguments. I am admittedly surprised by how poor those legal arguments against the zoning amendment appear to be.

1. A zoning ordinance that has as one of it objectives to limit the amount of rent an owner could potentially realize in an unregulated market, thus reducing his profits and the value of his property, has been seen by some courts, as it has with rent control, as a "taking" of private property by the government for "public use, without just compensation," a violation of the Fifth Amendment.

At no time have I heard the proponents state that the zoning amendment has anything to do with rent control; instead, it is the opponents who claim that the amendment amounts to a backdoor version of rent control. Councilor Michael Ross and other supporters justified the amendment on the basis of over-crowding and quality-of-life issues. While some have claimed that the outcome of the zoning amendment could be to make such units more affordable to families, a plausible argument could even be made that the zoning amendment will actually drive up rental prices, because it will increase the demand, as measured in number of units, while not increasing the supply of units.

Opponents of the zoning amendment also frequently argue that it will increase the price per person for student rentals -- landlords continue to charge the same amount per unit, in order to pay off their costs, thereby charging more per occupant when there are fewer occupants -- which is contrary to the position that landlords will now be earning less per unit. Many students remark that they pay more for on-campus housing, yet still prefer to live on-campus, indicating that there is more money available to many students per person to pay for off-campus housing than they currently pay.

If the lawsuit simultaneously argues both that the zoning amendment amounts to rent control and that students will have to pay more for apartments as a result of it, then expect any decent defense lawyer to tear apart the argument by showing the inherent contradiction.

If the TAB article is correct, then a form of this argument (#1) will be the primary basis for the lawsuit. Skip Schlomming of the Small Property Owners Association told the TAB, "They want to use a landlord on the verge of retiring so if he gets targeted, that’s just his retirement." Such a landlord's legal standing would be his financial harm due to the decreased occupancy.

2. Landlords legally cannot proscribe or police the private behavior of tenants -- nor should they have to -- even if it was permitted by housing law.

The zoning amendment as I understand it does not include any provision for policing the private behavior of tenants; its enforcement plan doesn't yet exist, but will presumably be written by the city's Inspectional Services Division. Indications are that enforcement action would be initiated by a complaint, and that the enforcement would target the landlord, not the tenant.

Standard leases state the names of all people allowed to occupy the unit; if other people not listed on the lease occupy the unit, then the tenant is in violation of the contract, and the landlord can just throw them out. If the landlord, however, signs one or more leases for a unit that include, in writing, more than four undergraduate student occupants, then the landlord is violating the new zoning amendment. In neither case is the landlord "[policing] the private behavior of tenants" -- he is only required not to sign leases to more than four students.

Something I expect to occur is that some students may now sign leases that do not list all the occupants. If they do so, they may become liable for paying the fines and also subject to eviction. It's one thing to like to watch Jeopardy, but quite another to be living in a state of continual jeopardy that could suddenly throw you out onto the street in the middle of the winter. Since ISD enforcement is likely to be triggered by complaints, students engaged in such illegal living arrangements would definitely not want to be throwing noisy parties with underage drinking.

3. The courts have also repeatedly asserted that tenants, when they live in units that conform to zoning regulations, are entitled to an expectation of privacy from government intrusion, something they seemingly would be denied if Boston officials can prevent them from living together merely because they happen to be college students.

Cravatts' sole legal argument here invokes the dissent in the U. S. Supreme Court's 1974 Belle Terre v. Boraas case; a lower court hearing a lawsuit against the zoning amendment would be unlikely to reject the majority decision in favor of the dissent, since this would likely not survive an appeal.

4. While the Boston ordinance specifically prevents more than four college students, and only students from living together in a unit, it will allow families, even extended families, to occupy the same units that will now be unavailable to students.

On a factual basis, the defense would cede this point. The reason is that students are not legally a protected housing class, regardless of whether or not some people consider this unfair. Cravatts' once again uses only the Belle Terre dissent as a legal argument that would be unlikely to carry the day.

5. There are other measures to address the social problem of rowdy student behavior which are more practical to implement and less intrusive than regulations which have tended to harm, rather than ameliorate, housing markets.

Whether or not this is true it does not invalidate the zoning amendment. Cravatts is making a political argument rather than a legal one. Government has every right to choose among competing options to address a problem, as long as they are all legal.


One more argument was made by attorney Stephen Greenbaum in the TAB article:

6. “The city would have to ascertain students’ personal academic status in order to determine the legality of their living arrangements,” said Greenbaum. “Students are under no obligation to disclose that information.”

Greenbaum's argument is that the law is not enforceable on a practical level, because students living off-campus will simply refuse to say whether or not they are students. Yes, that may very well happen, and the apartment would not get cited. But if the students deliberately lied to an ISD officer that might open up more legal jeopardy if ISD could determine their enrollment status through independent means.

Boston College Police, for example, jointly patrol off-campus with Boston Police Department details, and regularly are supported in their work by BC employees who identify whether or not a given apartment is occupied by BC students. BC students having a noisy party may prefer to be identified as being students to go through the student disciplinary system rather than initiating a criminal record.


I must say that I am quite unimpressed with these legal arguments against the zoning amendment. I honestly thought that there would be stronger legal arguments than these -- they amount to a Hail Mary pass, not a slam dunk. As The Decider asked Brother George, "Is that all you've got?"

More discussion on this topic is at the AllstonBrighton2006 google group.

Boston Zoning Commission Passes Rule Limiting Student Off-Campus Apartments to Four Occupants

The Boston Zoning Commission unanimously passed an amendment to the zoning code that allows only four or fewer off-campus undergraduate students to share a single apartment. The amendment clarifies the definition of a "family" under the city's zoning code after a recent court case and subsequent consent decree.

The hearing room was packed both by supporters and opponents of the proposal, according to several people who attended. [Read their reports below.] The Boston Globe story posted on boston.com includes pictures of a long line of people waiting to speak in the hearing room. The meeting was long, beginning promptly at 9:00 am and continuing until 12:45 pm.

There were some indications that organizations of local realtors, small property owners, and students may have been planning to attend the hearing en masse. Supporters of the amendment were apparently offered a cute button to wear during the event.

The Boston City Council unanimously passed the original petition in December 2007, while the Board of the Boston Redevelopment Authority passed the zoning amendment in February 2008. The Zoning Commission approval was the last hurdle for it to pass.

Mayor Thomas Menino recently wrote a letter in support of the zoning rule change in advance of the Zoning Commission's consideration of the proposal.

WHDH has an online story that includes an image of Boston College's campus. Does WHDH realize that the zoning rule applies to off-campus housing, not on-campus housing?


Summary of the Arguments Supporting and Opposing the Amendment

One Brighton resident who attended the meeting, Sandy Furman, spoke in support of the amendment. He wrote this description of the main arguments of those both supporting and opposing the zoning amendment. (Furman did not take notes at the meeting, but wrote this summary from memory later in the day -- he hopes he remembered it all accurately.)

Interestingly, the proposed amendment had the support of Mayor Menino, a unanimous City Council, and a unanimous BRA Board.

The meeting room was packed, standing room only, with a line out the door into the corridor. I am arithmetically challenged, but I'd say there were well over a hundred people present, perhaps several hundred. The atmosphere was highly charged, with strong emotions on display from both sides. Tensions were also high.

Councilor Ross began with a PowerPoint presentation:

• After the Sang Vo case, which had been brought by Greater Boston Legal Services and resolved with a consent decree, it became open season for landlords to buy up Victorians, two family and three family houses, and convert them into student apartments, at exorbitant rates.

• This was done especially in the neighborhood he represents, Mission Hill, but also in other neighborhoods such as Allston and Brighton.

• This development caused massive increases in the values of these homes, with commensurate increases in property taxes for all who live nearby.

• Quality of life issues such as noise, litter, public urinating, etc., became larger problems for the communities.

• Families and young professionals found themselves displaced at worst and unable to afford housing at best.

• Most (he said all) major cities around the country have some kind of restriction on the number of people who reside in houses/apartments.

• Some of them discriminate explicitly against students. (“Discriminate” is my wording, not his.)

• His conclusion is that this plan, to redefine family in the zoning code so as to exclude five or more undergraduate students from any unit, is legal.

• The plan is not a panacea that solves all problems, but it is an important step towards saving and, in some cases, taking back our neighborhoods.

• By limiting housing units to no more than four students, the average rental of those units would fall from $5000-6000 per month to approximately $3000 per month, which he views as affordable.

• Dispersing students more broadly rather than concentrating them in clusters or "ghettos" benefits the embattled neighborhoods while having a minimal impact on the other neighborhoods that might inherit some students.

After he finished speaking there was a parade of proponents of the amendment. This included elected officials – Councilor Sam Yoon, other City Councilors, a representative from the Mayor's office, a representative from the BRA, and numerous residents, including Alex Selvig, Shelby Marshall, and myself. Most of the speakers were from the Mission Hill neighborhood.

We mostly echoed Ross's comments, while adding personal stories.

I, for example, described the rapid turnover of the Foster Street, Kirkwood Road, Radnor Road, Gerald Road, Greycliff Road, and Lane Park area in the few years since the enactment of the Sang Vo consent decree, and that I was weary of being told that "this is a college town, man". I also pointed out that I personally am prepared to risk that the value of my home might be adversely affected by this proposal, if it will save the neighborhood.

Then the barrage kicked in from the opponents.

There were at least as many opponents, probably more. They appeared well organized. They included a Northeastern University economics professor who claims to live in Mission Hill, some students from Northeastern University, a real estate lawyer, and numerous property owners -- including an 82-year-old sympathetic woman -- several of whom claim to live in the community.

For them it was all about rights to property and profit. (Do you detect a bit of bias here?) Half or more of those speaking in opposition identified themselves as being involved in real estate: owners, sales, and/or rentals.

Their arguments included the following:

• The proposal is nothing more than a back door attempt at rent control, something for which Councilor Ross has been fighting his entire career.

• The proposal unfairly discriminates against a class of people, i.e., undergraduate students.

• We, as residents, should appreciate the wonderful things that the institutions in general, and the students in particular, bring to our neighborhoods.

• The proposal is misguided because it unfairly (as well as unlawfully) penalizes property owners, most of whom (all of whom if the speakers can be believed) are responsible, and should not be held responsible for the bad behavior of a few bad apples.

• The problems, such as they (minimally are), can and should be solved by enhanced enforcement of existing laws and regulations -- police, ISD, the universities themselves.

• If the change is enacted, then it will be impossible to enforce given both the very limited resources of ISD and the privacy issues.

• If taxes do in fact go down, the ripple effect on city services such as schools, let alone ISD, will be severe.

• Rents will not go down because the parents of these students will pay whatever they have to.

• The "Starbuck's Crowd" will come into the neighborhood and pay rents equal to the student housing rental rates. The result is that there won't be any restoration of families or young working people to the neighborhoods. (I guess real families don't drink Starbuck's -- which is why, for example, in Brighton Center we obviously cannot sustain Starbuck's, Café Nation, and Athans).

• The restriction will increase the problem by spreading students further out into more houses and more neighborhoods -- bringing the problems, such as they are, to other neighborhoods.

• A landlord known to reside in Newton, far away from BC, who owns several properties, spoke of the wonderful improvements he made in his house, and the great tenants the students make.

I must say, the "Starbuck's Crowd" argument is downright odd because it contradicts two of the other arguments. If a non-student class of people -- this "Starbuck's Crowd" -- would really move into the apartments currently housing excessive numbers of students and pay the same price the students are currently paying, then the zoning amendment will neither result in rent control nor cause property owners to suffer financially. Someone needs to go back to the talking points.

I have not heard that anyone from the Greater Boston Real Estate Board, a trade association, spoke in opposition to the amendment. The Boston Herald noted that "some real estate groups are rallying their members against the proposal," yet only quotes GBREB as "[contending that] the proposal is legally flawed and won’t stand up to a challenge in court." Their GBREB website makes no mention of the issue.


Another Brighton Resident Summarizes the Meeting

Another Brighton resident, Shelby Marshall, spoke at the meeting in support the zoning amendment. He summarized the meeting:

"Councilor Ross did a wonderful job laying out the arguments for the amendment. He has really done his homework. Quite a few officials spoke strongly, and then lots of community members spoke. Many were from Mission Hill, and a few people from the Boston College neighborhood... took our turns, too.

The opposition came down to three basic arguments: they'll lose money, it won't work, and it's discriminatory. Oh, yes, and to make sure they don't lose money, they'll raise their rents so that the few students who remain will pay more. And, by the way, the government's job is to raise taxes, not to regulate the market. So higher rents, higher house prices, and higher tax rates are good.

The landlords who spoke... swore that they and every other investor they know takes wonderful care of their houses (which they buy in awful condition and fix up, by the way), better than many of the neighbors; don't let students party in their houses; and believe that student behavior should be regulated -- something they would love to discuss with neighbors, colleges, and city authorities."

Hmmmm... I detect just the slightest bit of sarcasm there.

Simple examination of the police blotter demonstrates that students are partying in the houses, and that many landlords are not regulating the student behavior. As for the condition of the party houses, I can't imagine anyone in the "Starbuck's Crowd" wanting to move into one of them after they have been packed with students for years -- unless the units undergo substantial renovation after the students move out.



UPDATE: The full Boston Globe story has now appeared. It includes the "Starbuck's Crowd" quotation. The enforcement mechanism, according to Councilor Ross last month and, now, an official with the city's Inspectional Services Department, will enforce the zoning change in response to complaints, not proactively:

Enforcement of the law would be driven by neighborhood complaints, city officials said.

"As with other zoning violations, the Inspectional Services Department will develop an enforcement strategy to respond to any property owners reported or found to be in violation of the code," Dorothy Joyce, the mayor's press secretary, said in a written statement. "We will work with local colleges and universities to educate students and property owners about the new zoning. As [with] all zoning, we expect all property owners to adhere to the letter of the law."

Officials have not determined the specifics of enforcement, including possible fines.

The text of the zoning amendment is quite brief, merely changing the definition of what constitutes a "family" under the zoning code. No enforcement procedure or penalties was part of the amendment, but will instead be developed by the city after the Mayor signs the amendment.


UPDATE: The Allston-Brighton TAB has also come out with their story which quotes Councilor Stephen Murphy repeatedly. Councilor Murphy claims that the idea for the zoning change came from conversations dating to 1998 between him and late Allston-Brighton District 9 City Councilor Brian Honan:

"The late Councilor Brian Honan and I talked about this in 1998 before [Michael] Ross got on to the body. It’s been an issue predominantly in student neighborhoods for a number of years."

Councilor Honan died unexpectedly in 2002.

The TAB did not ask Councilor Murphy the obvious question about why he and Councilor Honan would have been talking about this zoning change back in 1998. The city had zoning language in place in 1998 limiting apartment occupancy to four or fewer unrelated people, which led to the Boston court case and subsequent consent decree in 2003 invalidating that zoning language. It was the 2003 court case that allowed property owners to pack students into apartments legally for the last five years. Before 2003, students could be packed into the apartments illegally -- and from now forward they could be packed into apartments illegally, too -- meaning that the problem in 1998 was one of enforcement, not of the zoning language in place at the time.

I take this to mean that Councilor Murphy was actually referring to 1998 conversations about what to do about illegal apartment-packing, not that he and the late Councilor Honan were talking in 1998 about instituting a zoning change like the one adopted yesterday.

Mayor Menino Supports Zoning Rule to Limit Rentals to Four or Fewer Students

Mayor Thomas Menino now supports the proposal to limit undergraduate student rentals to four or fewer students, according to the Boston Herald:

Menino has submitted a letter backing the proposal, which would amend the city’s zoning code to prohibit landlords from renting out a single unit to more than four students. Ross also has letters and pledges of support from a dozen neighborhood groups, and even a top downtown developer.

The Zoning Board will be meeting Wednesday morning to consider the proposal. Their approval is the last step in implementing the zoning rule change.

The Boston Herald news story, however, is way off in understanding the magnitude of the student apartment-packing:

The expansions are putting the squeeze on the city’s real estate market, with landlords cashing in by renting out apartments for $3,000 to $4,000 a month to half a dozen or more students at a time.

Actually, some of the apartments have as many as 10-12 students, thereby netting twice that in monthly rent. When such over-renting appears in a two-family house, such as 62-64 Kirkwood Road in Brighton, the rental value could easily be quadruple the Herald's number -- and be accompanied by a series of ISD code violations in the process. No family renter can compete with these high prices that landlords can collect from over-packed student renters.

The Allston-Brighton TAB editorial page has not taken a position on the proposed zoning change, while the Boston Herald editorial page took a position in January against it as did the Boston College student newspaper, The Heights.

A number of local institutions of higher education are in support of the proposal, according to District Councilor Michael Ross. The TAB editorial notes that Jack Dunn, Director of Public Affairs at Boston College, "supports" the idea, although this does not appear to be the same as strong institutional backing from BC.

The Greater Boston Real Estate Board opposes the proposal and thinks it violates the law -- even though, as Councilor Ross has noted, many other cities and towns in Massachusetts, such as neighboring Newton, have passed nearly identical ordinances.

The TAB covered a meeting last month of the Allston Civic Association on the topic.

The Zoning Board will be meeting tomorrow (Wednesday) at 9:00 am to consider the proposal. The City Council passed the petition unanimously in December 2007, and the Board of the Boston Redevelopment Authority passed an amended version of the ordinance last month that would specify that the rule applies only to undergraduate students, not graduate students.

Boston Zoning Board
Public Meeting
Room 900, 9th Floor, City Hall
9:00 am
Agenda: Proposal to limit student rental units to four or more people unrelated by blood or marriage/family status.

Contact the Zoning Commission directly by writing to the Chairman and Members of the Zoning Commission, 1010 Massachusetts Avenue, Boston, MA 02118.

Civics Lesson on Zoning

The Boston College student newspaper, The Heights, published an op-ed by freshman Kelly McCartney under the title, "University Has a Right to Expand":

What does come at a cost is BC's 10-year plan, a $1.6 billion effort to better the University. In addition to increasing the range of academics and activities available to undergraduates and the community, BC is also spending precious funds to increase the number of students on campus per the city of Boston's new recommendation.

Unfortunately, putting more students on campus is not enough for the neighborhood of Allston-Brighton. They also want to decide when, where, and how we do so. A popular opinion of the surrounding neighborhoods demands that BC add additional stories to residence halls on the Chestnut Hill campus to dissolve the need for housing on the Brighton Campus [former St. John's Seminary land].

Does an institution of higher education in Boston have the "right to expand" as they see fit?

In response to this question, (Professor) Harry Mattison, a quick-draw on the Allston Brighton Community Blog, delivered a civics lesson on the concept of zoning:

Actually, BC has no such right.

I have no right to buy some coin-operated washing machines and run a laundromat out of my basement. I have no right to buy my neighbors homes, combine the lots, demolish the existing homes, and build a 10 story apartment building. And regardless of whether or not it is a good idea, Boston College has no "right" to build dormitories, athletic stadiums, or anything else that does not pass the City's review.

Like it or not, we are all governed by Boston's Zoning Code and Boston and every other town and city in America does have the right to limit and restrict development and use of property.

What McCartney fails to recognize is that Boston has, for the past 15 years, has been about the most institutional-friendly Zoning Code that could be invented.

What do I mean? Article 80 of the Zoning Code dates back to 1992, and contains the guiding statutory language governing institutional master plans and other large and small project reviews. Article 80, in a nutshell, establishes a process by which any institution can re-zone their land to build absolutely anything. Yes, literally anything can be built on such land, regardless of the existing zoning.

If BC were to propose a 100-story building at the former St. John's Seminary land, for example, then Article 80 review is basically all they would need to get approval to break ground. Before Article 80, the underlying zoning for the land ("Conservation Protection Subdistrict") under Article 51 of the Zoning Code would have applied, which forbids skyscrapers.

The example is extreme, but the parallel is real. BC is currently proposing dormitories for the same seminary land, which are "forbidden uses" under Article 51 of the underlying Zoning Code -- just like a skyscraper is a forbidden use. That BC proposed dormitories at all for that land is an indication of how permissive Boston's Zoning Code is, in practice, towards institutions.

It might be appropriate for McCartney instead to thank the city of Boston profusely for having a Zoning Code so lax that BC could even consider proposing building those two dormitories.

Zoning... Yawn?

We don't normally think of zoning issues as exciting. But they're pretty important for what people can do with the property they own, be it residential, commercial, institutional, etc.

A nice, though far from exhaustive, discussion of institutional-related Article 80 zoning issues in Boston can be found recently in the BC_Neighbors_Forum, particularly as these relate to BC's master planning process.

Will Newton's Own Development Pave the Way for BC's Master Plan?

A March 27, 2007 editorial in the BC newspaper, "The Allston-Brighton-Boston-Newton College's The Heights," discusses the City of Newton's plan to build a parking garage in Newton Center:

"Apparently a five-story parking garage is not too tall. Needless to say, if these proposals for Newton Centre are accepted, the city of Newton will have little grounds for denying BC the buildings that will be a part of the upcoming campus masterplan."

While the editorial does go on to ask Newton to "carefully consider this proposal," the editorial provides a justification for BC's master plans (in Newton) based on Newton Center's development project located a mile or so away.

I think that the editors at the newspaper may need a little education on zoning. A structure that is perfectly suited to one site can be wrong for another. We don't build the Prudential Center in Brighton Center, for example, nor do we build student dormitories in the middle of Boston Common. The neighborhood bordering BC's proposed buildings in the upper campus needs to be considered when evaluating if the proposal is appropriate; likewise, the shopping district bordering Newton's proposed parking structure in Newton Center needs to be considered when addressing its appropriateness.