Urban Renewal Plan extension: How the City Council lost its power to vote

Here is how it worked:

The Boston City Council, in 2004, approved an Order extending certain Urban Renewal Plans until April 30, 2015, and also enacting "a series of procedural changes with respect to Urban Renewal Plans in Boston” consisting of changes in the Council's Urban Renewal Plan review process, so as to retain only the powers to vote on initiation of new Urban Renewal Plans and termination of ongoing Plans, and deleting from Council jurisdiction extensions of expiring Plans.

These changes constituted a "major modification," as described in the attached minutes of the BRA board meeting on December 2, 2004:

“This is a Public Hearing before the Boston Redevelopment Authority regarding major modifications to certain urban renewal plans in the City of Boston. The BRA is holding this public hearing to consider proposed modifications to certain urban renewal plans regarding changes in the modification process, certain update requirements, and termination dates. “ (emphasis added)

The attached 2004 Order was sent to me from City Hall, marked up as shown, clearly emphasizing that only these two powers over Urban Renewal Plans remain in Council jurisdiction. Clause 1 states which Plan changes henceforth must be submitted to the City Council for approval; Clause 2 states that any other Plan changes must be submitted to the City Councilor only as a notification.

This set of major modifications was approved by the state DHCD. The documents submitted by BRA to DHCD for approval (too big a file to upload) included the City Council Order containing the changes to the Council's review process. I attach also the DHCD approval of the submittal as approved by the Council (includes the Council vote reducing its own powers). This major modification is valid and in effect today.

The BRA had, in the two prior years, attempted to organize a multi-city filing of state legislation eliminating the need for City Council approvals of Urban Renewal Plan extensions. The BRA ended this effort when the Boston City Council learned of it and objected vociferously. The BRA then developed a strategy to remove the Council from further extension decisions by changing the major modification process so to eliminate this Council power in the future, incorporating the change itself as a major modification in the Council's vote for that 2004 extension.

I received personal confirmation of the Council's loss of this power in 2005 from the BRA attorney handling this matter, Rebecca Lee, in a phone conversation. She also stated that in the future only the BRA itself would vote on further UR Plan extensions.

I also received personal confirmation of the Council's loss of this power in an August 24, 2015, meeting with BRA attorney Renee LeFevre. She stated that the BRA has "reconsidered" and decided to “allow” the Council to vote on this extension. The BRA “reconsidered” after realizing belatedly that the state Department of Housing and Community Development (DHCD), whose approval is the final step in the Plan modification process, cannot lawfully consider an extension without receiving evidence of Council approval. This is in the DHCD Urban Renewal Regulations (760 CMR 12.03; ) and DHCD Urban Renewal staff has confirmed to me in writing that it applies to this extension.

The BRA has no authority to decide that the Council may now cast a vote in violation of city ordinance and state law.

The Superior Court cited this change in the Council’s powers in its ruling in a 2005 Open Meeting Law case regarding Council meetings leading up to the December 15 vote. In that case, the Council stated that it had given up ALL its powers over urban renewal plans on December 15 (in order to argue that after that date, its meetings could not have violated the Open Meeting Law due to lack of jurisdiction). The ruling stated:

“…the order adopted on December 15, 2004 …requires that the Council retain approval powers for termination, adoption and certain changes to urban renewal plans. (footnote17)

(17) The defendants argue that the Council no longer has jurisdiction over urban renewal issues after December 15, 2004 because the order adopted extended the existing urban renewal plans until April 30, 2015. This argument is without merit, especially due to the fact that the order also explicitly retains the above-mentioned powers on behalf of the Council.”

(19) The December 15, 2004 Order states in pertinent part:
‘In recognition of the City Council’s authority in connection with the aforementioned urban renewal plan changes, the BRA Director has agreed to seek BRA Board approval at the BRA’s meeting on December 21, 2004, to implement a series of procedural changes with respect to urban renewal plans in Boston, including (1) the submission of certain plan changes to the City Council for approval…’ “

The Order goes on to distinguish the plan changes to be submitted to the City Council for approval as opposed to those that would simply be provided as notice for the Councilors’ information:

“…i.e, [meaning "that is," not e.g., meaning "for example"] the proposed termination or adoption of an urban renewal plan, the addition of additional land..to an urban renewal area; plan changes allowing … an increase of density of development within an urban renewal plan area as a whole…; (2) providing the City Council with at least thirty (30) days’ notice of any proposed modification to any urban renewal plan not described in clause (1); (3) providing the City Council with at least thirty (3) days’ notice of any proposed eminent domain taking of city-owned land in excess of 10,000 sf; (4) providing annual reports the City Council on the progress of urban renewal efforts within the city of Boston… (emphasis added)

The approved Order enumerated in Clause (1) the Urban Renewal Plan modifications that would henceforth be considered “major” and thus within the Council’s jurisdiction, and in Clause (2) the Order states that any other proposed Plan modification not in described in Clause (1) would be simply noticed to the Council, without submission for Council approval.

Since the Council cannot lawfully vote, DHCD cannot lawfully review the proposed change, and the Urban Renewal Plans must by law expire as mandated, on April 30, 2016.

Any Boston City Council vote on this matter exceeds its authority, and the vote is invalid and subject to legal challenge.