The city’s zoning enforcement officer handed developers of the proposed Kingstonian project a victory last week when he rejected arguments by an activist group that the controversial market-rate housing, parking and boutique hotel complex eyed for the Stockade District had to include affordable housing to comply with the requirements of the zoning code’s Mixed Use Overlay District (MUOD) where it would be located.
The ruling by Zoning Enforcement Officer Eric Kitchen was issued on Sept. 27. The city requested a formal determination on the issue after members of Kingstoncitizens.org — an activist group that’s criticized the review process for the project — brought up language in the MUOD code which they said would require developers to set aside 20 percent of the proposed 129 apartments in the building for affordable housing. Earlier this month, an attorney hired by Kingstoncitizens.org to address the zoning issue went further, arguing that the code did not allow for any new residential construction at all in the MUOD. Developers of the Kingstonian have said that a requirement set forth by the city that they build, operate and maintain 200 public parking spots as part of the project makes the inclusion of affordable housing financially unfeasible.
The MUOD was formed in the early 2000s as the city sought to redevelop vacant department stores and industrial facilities in the Uptown neighborhood into mixed-use residential and commercial spaces. In his decision, Kitchen pointed to language in the zoning code that set forth two goals for the new district; to promote the adaptive reuse of existing commercial and industrial buildings to provide rental multi-family housing — including affordable housing for city residents — and to encourage the development of “mixed-use, mixed-income pedestrian based neighborhoods.” Kitchen noted that the Kingstonian does not include any adaptive reuse; the proposal calls for the construction of one building on a site that is now a municipal parking lot and the demolition of a warehouse to make way for another newly built structure.
“Affordable housing is not a requirement because what is being proposed is new construction,” Kitchen wrote.
Kitchen added that it would be up to the applicant, over the course of the review process, to demonstrate that the project met the code’s requirement that it promote a mixed-use, mixed-income pedestrian-friendly neighborhood. Kitchen also wrote that he was “not persuaded” that the term “mixed-income” included in the code “necessarily includes all hypothetical income levels, particularly those eligible for affordable housing.”
Kitchen also addressed the argument by attorney Emily Svenson on behalf of Kingstoncitizens.org that the MUOD prohibits the new construction. Kitchen said that Svenson had ignored language in the code addressing “site improvements” or new construction as distinct from “building improvements” or adaptive reuse of an existing structure.
“The terms are not used interchangeably. The code clearly differentiates between adaptive re-use and other types of development,” Kitchen wrote. “It is my opinion and interpretation that the code allows for the new construction of residential units in the Mixed Use Overlay District.”
The zoning issue has led to breech between Mayor Steve Noble and Kinsgtoncitizens.org which had previously supported many of his progressive-minded initiatives. After Svenson weighed in on the zoning issue on behalf of the group, city Corporation Counsel Kevin Bryant declared that her involvement constituted “notice of appearance of counsel” and that all further communications between the city and officers of Kingstoncitizens.org regarding the Kingstonian take place through attorneys.
Bryant’s memo signaled that the city anticipates litigation by the grassroots activist group around the zoning issue. In response, a coalition of activist groups published a “group editorial” on Kingstoncitizens.org’s website last week accusing Noble’s administration of using “bullying” and “intimidation” to freeze them out of the Kingstonian’s review process.