Post #430: Pop quiz on “gathering space”.

Posted on October 24, 2019

Consider two small restaurants that are completely identical, except that one is fully enclosed, and one is open to the outdoors.  One has 10 tables, located in a little storefront along Maple Avenue.  The other has 10 tables under an awning, adjacent to the Maple Avenue sidewalk.  They serve identical menus, charge identical prices, and do an identical amount of business.  And for either one, you can’t use the tables unless you buy something to eat.

Separately, one restaurant is part of a building that sits on a 2.99 acre parcel of land.  The other restaurant is part of a building that sits on a 3.00 acre parcel of land.

Clear?  Nearly identical restaurants on nearly identical parcels of land.

And now, two questions, with answers provided below.

Question 1:  Which of the following statements is true, regarding proposed Maple Avenue zoning:

A:  The Town offers a bonus for the indoor restaurant seating.

B:  The Town offers a bonus for the outdoor restaurant seating.

C:  The Town is neutral about the choice of indoor or outdoor seating.

Question 2:  Which is true, regarding the two parcels of land that these restaurants sit on, under the proposed MAC zoning revisions. 

A:  The Town requires twice as much open space on the 2.99 acre parcel.

B:  The Town requires twice as much open space on the 3.00 acre parcel.

A:  The Town treats the two parcels more-or-less the same.

To the best of my understanding, the correct answers are B and B.

For question 1:  Builders have to reserve some minimum amount of “gathering space” on property redeveloped under MAC zoning.  The new “gathering space” requirement replaces the existing “open space” requirement.  If they don’t provide enough “gathering space”, they can’t redevelop the lot under MAC.

The 10 outdoor restaurant tables, accessible from the sidewalk, appear to count as “gathering space”, while the indoor tables definitely do not.  That makes the 10 outdoor tables much more valuable to the builder.  The indoor tables are simply commercial space.  The outdoor tables are not only commercial space, but in addition help satisfy the “gathering space” requirement.

For question 2:  The proposed law literally has a sharp cutoff at exactly 3 acres.    The Town doubles the “gathering space” requirement if the lot is 3 acres or more.  The 2.99 acre lot is required to reserve 10% of the (buildable area of the) lot as “gathering space”.  The 3.00 acre lot is required to reserve 20% of the lot as “gathering space”.

Aside:  The proposed law is actually substantially worse than that.  Not only does it require 10% more “gathering space”, but developers can sidestep that if they provide “cottage housing”.  Any cottage housing, as the draft currently reads.

Commentary:    The “open space” requirement was arguably the single most screwed-up part of the MAC statute.  You can read an old writeup of it here.

Here’s the problem:  It’s not getting any better.   It’s different under the proposed MAC.  It’s now “gathering space” instead of “open space”.  But in terms of double-counting spaces, allowing little dribs and drabs of space to count, and so on, it’s more-or-less no better than it was.  One truly goofy part of the prior law was eliminated, in that courtyards that are completely internal to a building, and only accessible to building residents, will not count as “gathering space” (but did count as “open space”).  But otherwise, pretty much all the things that made the prior requirement worthless still remain.

And now we are weaponizing it with some fairly significant financial incentives.  Build a restaurant with three sides, that counts.  Add that fourth wall, so that the same space can be used in winter, and it doesn’t count.  Cross that 3.0 acre line, and you are slapped with a big penalty.  But build some cottage housing, and you dodge the penalty.

And so, as the Town now changes this requirement, and uses it to create new and untested financial incentives, I think maybe it needs to step back and ask “what, exactly, are we likely to get with this “gathering space” requirement?”.

First, to be clear, you aren’t getting public parks.  This “gathering space” is private property.  It’s not a park, in the sense of Town-owned land open to the public.  It might be a space where you could (e.g.) stroll up and sit on a bench.  It might be a space where you’d feel like you were intruding on private property if you did that.  And it might be a strictly pay-for-play space, such as an outdoor restaurant.   And it might be nothing more than a broad sidewalk.

Second, we should have enough sense to do a little arithmetic, to get some idea of what we’d be getting under the proposed law.  Are we getting anything more than a broad sidewalk as mandatory “gathering space”?

In some cases, the answer is easily shown to be no.  For example, if the Wawa parcel were redeveloped under MAC, the existing, legally-required setbacks from the roadways would far more than satisfy the “gathering space” requirement.

The Town is proposing to have a 28′ setback from the Maple Avenue curb, and a 20′ setback from any other major street.  That’s already required.  In both cases, maybe 12′ of that will be literally in the Town’s right-of-way, and so is not private property that counts as “gathering space”.  The new Wawa sits on a lot that’s about 37,000 square feet.  If that were redeveloped under Maple, something under 3700 square feet would have to be gathering space.  (Under, because only the “buildable area” counts, that is, area of the lot excluding the mandatory setbacks and such.)  The portion of the Maple Avenue setback that is private property is about (170′ long x 16′ deep =) 2720 square feet.  The portion of the Nutley Street setback that is private property is (330′ long x 8′ deep =) 2640 square feet.  Together, that’s 5360 square feet.  The setbacks alone vastly exceed the required amount of “gathering space”.

Is this what the Town meant when it asked for “parks and plazas” along Maple, as part of MAC zoning?  A broader sidewalk?  How did we get from that simple desire, to this outcome?