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PAUL MCMORROW

An unpredictable mayor when it comes to zoning

Zoning in Boston is sacrosanct — except that it usually isn’t. It isn’t the city’s job to make a developer’s bottom line work — but for the right developer, the city will put millions of dollars on the table. If that’s confusing to read, imagine being a real-estate developer and living it every day.

There aren’t many rules governing Boston development. There’s the stuff that municipal lawyers put to paper, the stuff that regulates building height and density and form and a thousand other little details, but those details aren’t all that important. Most of what the city lawyers have to say about how development in Boston should work is just white noise. The real rules rest with Tom Menino, the man who has ruled over the mayor’s office for the past two decades.

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The wide latitude Menino leaves himself comes in handy when City Hall needs to leap to the rescue of an important project, overcome some needlessly stiff neighborhood opposition, or punish a particularly rapacious builder. But, as a flare-up in the Fenway showed last week, when one man inside City Hall sets the rules, there really are no rules. The rules only exist in the mayor’s head, and they seem to change day to day.

Boylston Street in the Fenway is currently in the midst of an epic building boom. New office buildings, scores of apartments, and retailers like Wegmans and Target are poised to completely remake the street and its relationship to the larger city. This stretch of Boylston was once a backwater dotted with gas stations, garages, and fast-food restaurants; it looked like it belonged on an unloved commercial strip in the suburbs, not around the corner from Fenway Park.

The old Boylston is disappearing because of a collective effort between Fenway residents, the city, and private developers. Residents supported an increase in zoning heights along Boylston because new mid-rise and high-rise buildings have helped create neighborhood amenities like new shops and restaurants, and attractive, walkable streets.

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Skanska Development wants to do what developers up and down Boylston have been doing. The company wants to tear down a one-story Burger King and replace it with 240 apartments. And for this, the company caught a sharp elbow to the face last week, courtesy of Boston’s mayor.

Skanska’s Burger King project has raised some eyebrows in the Fenway because its proposed 18-story apartment tower is a few stories taller than neighborhood zoning guidelines call for. The mayor made it clear that he sees this as a problem. “It’s not my fault they paid a lot of money for the site,” Menino told the Boston Business Journal. “They knew the zoning rules when they bought it and they have to work within those rules.”

When one man inside City Hall sets the rules, there really are no rules.

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No one should have assumed, as Menino seems to have, that the Fenway’s zoning was written in stone. Boston normally treats zoned heights as a starting point in negotiations, not an absolute end. The Fenway’s zoning was enacted years before Menino announced his goal of adding 30,000 new housing units by 2020 — a goal that will be impossible to hit without meaningful upzoning outside the downtown core. Skanska is proposing an urban solution for a suburban-style space on a street full of significantly sized buildings. It wants to build across the street from a pair of 20-plus story towers that will contain nearly 900 apartments.

For Menino, saying “It’s not my fault” means that City Hall won’t use its regulatory pull to make a development’s economics line up. He’s struck the same pose when showing antipathy toward developers like the Chiofaro Co. (would-be developers of the wretched Harbor Garage) and Vornado Realty Trust (former owners of the Filene’s pit). The problem is, there’s no truth behind the pose.

Menino sweetens the pot on developments all the time, when friendly builders are involved. He’s handed out tax breaks to State Street Bank, Vertex Pharmaceuticals, and Liberty Mutual — mega-projects that didn’t really need millions of dollars trimmed off their tax bills. The day after swatting at Skanska, his administration defended a plan to grant tax breaks to the new Filene’s developer — something the mayor refused to do when Vornado owned the site. One day, Menino is laying both thumbs on the scale; the other, he’s refusing to touch it. It’s maddeningly arbitrary, and it’s the way Boston has built for the past two decades.

Paul McMorrow is an associate editor at Commonwealth Magazine. His column appears regularly in the Globe.
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