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Just How High Can Developers Get in Boston?

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The recent revival of Steve Belkin's proposal for Boston's tallest skyscraper raises an interesting question, with a complicated answer: Who regulates the heights of buildings in Boston?

As you may recall, Belkin's proposal came in response to a Request for Proposals for the redevelopment of a city-owned garage in Winthrop Square, issued in 2006. At the time Mayor Menino challenged developers to propose an ambitious tower that would become Boston's tallest, rising at least 1,000 feet. Belkin, who controls an adjacent property, responded with an ambitious proposal for a 75-story office tower designed by starchitect Renzo Piano, which would be environmetally friendly and include public space at ground level, topped by a roof garden.

Reality set in when the Federal Aviation Administration (FAA), which controls sensitive airspace near airports, vetoed the plan on account of its interference with the flight paths to Logan. This effectively killed the mayor's dream of a tower rising to 1,000 feet or more at this location.

Thus we arrive at the question: Who regulates the heights of buildings in Boston? The answer is not simple. All power to regulate land use, including building heights, originates from the state, which over time has allocated some powers down to local governments or up to the feds. Over the years, the Commonwealth of Massachusetts has allocated the power to zone, plan, and redevelop to local governments through legislation such as the Enabling Act, M.G.L. (Massachusetts General Law) Chapter 121A, and Chapter 652 of the Acts of 1960 (consolidating planning and zoning powers in the Boston Redevelopment Authority).

At the same time, the state has allocated some land-use control in Boston to a number of state agencies and quasi-public authorities such as Massport (control of Boston's seaport and airport); the State Department of Environmental Protection (control of waterways, Boston Harbor, filled tidelands); the Department of Conservation and Recreation (control of the Boston Harbor islands, Charles River Basin, the Neoponset River, and Mystic River); and the MBTA and MassDOT (control over rail and highway property, facilities and air rights). In some cases the state has allocated authority over land use to the federal government as well.

This complex web of overlapping authority over land use is what led to the misunderstandings which doomed the mayor's plan for a tower rising 1,000 feet into airspace above the city. Title 14 of the Code of Federal Regulations CFR Part 77 gives the FAA the power to restrict the height of structures that may serve as a hazard to air travel. The FAA has traditionally relied upon MassPort, the quasi-public authority that controls Logan Airport, to assist them in their administration of this authority. In the aftermath of the mayor's doomed initiative, Massport moved to clarify the issue with a set of general guidelines for city officials and developers mapping the sensitive airspace around Logan with height guidelines.

To further complicate the issue, the state legislature has preempted local authority over building heights in Boston on a number of occasions, inserting provisions directly into the zoning code by statute. In 1990, state legislation was enacted to prohibit the approval of any new structures which cast shadows for most of the day on the Boston Common, and additional legislation added the Public Garden in 1992 (1990 MA Acts Ch. 362 & 1992 MA Acts Ch. 384). More recently, legislation was proposed by Massachusetts Senators Byron Rushing, Marty Waltz and Anthony Petruccelli which would restrict any buildings from casting shadows on the Commonwealth Avenue Mall, Charles River Esplanade, Copley Square, and parts of the Rose Kennedy Greenway. Not surprisingly Mayor Menino wasn't a big fan of the legislation, preferring to address concerns about shadows "through the planning process of the Boston Redevelopment Authority."

Who regulates the heights of buildings in Boston? The answer lies in a complicated web of intergovernmental authorities at the state, local and federal level, prone to misunderstanding, lawsuit, judicial review, and legislation. Any questions? — A. Contributor

· Boston's Tallest Tower, Take Two [Curbed Boston]