City property hand-off to BRA: Mayor Walsh follows in Menino's footsteps

Once again, the Boston Globe writes about the BRA's impending unlawful mayor-assisted heist of the City's Winthrop Square garage, blaming the whistle-blower for holding up the works.

I posted the following comment:

As happens occasionally, the Globe reporter has made some errors, as has the feverish Tosh33 (who perhaps is more financially interested than an “independent observer” might be). Allow me to clarify.

1. I am not a critic of development. I am a critic of UNLAWFUL development, and other UNLAWFUL government activities, like tax breaks based on phony “blight” declarations.

2. I have no objection to the development of the site. In fact, it could and should have been redeveloped ten years ago, when construction costs were much lower, but the BRA decided to milk a few bucks out of the parking garage for its last years of structural stability, taking the parking lease rights (i.e., the income, but not the maintenance burden) from the City by eminent domain in 2007 as a “demonstration project.” The BRA intended to acquire the actual building later as an “amendment” to the “demonstration project.” What is a “demonstration project”? Think Yawkey Way. It’s a demonstration that the BRA can do anything it wants, especially with City land, on its oft-touted assumption that, as an urban renewal agency, it is “bulletproof in court.” As the Yawkey Way court case has indicated to date, it is not.

3. Further, I have no opinion about the size, shape, or use of the new building. We know that because it’s over an acre in size, it’s going to be zoned as a PDA, i.e., whatever the developer wants, with the maximum height the FAA allows and the maximum density that can be crammed in. PDA’s are a spot-zoning mechanism, but they are the law, which the BRA, in its capacity as the city’s Planning Board, made for such occasions (as a City lawyer once told me, “The BRA makes everything that is illegal, legal”). So I don’t oppose.

4. My Open Meeting Law complaint was filed with the City Council, not the AG. If the Council fails to remedy the violations within 14 business days, it will go to the AG. Remedies include rescinding the unlawful vote and disclosing what happened at the secret meetings.

5. Unfortunately, the Council also voted on the wrong action -– the transfer of the property from the Public Facilities Commission (PFC) to the BRA -- not on what the Charter allows them to vote on, which is only the transfer of the garage property from the Parking Facilities Board to PFC. So they can take another vote – but not on what they voted on before.

6. I’ve spoken to the Inspector General, not about the violations of municipal law (the City Charter) – which apparently NO ONE enforces, although the Finance Commission should -- but about violations of state law Chapter 30B, the Uniform Procurement Act, which requires public bidding for selling/leasing City property, and is enforced by the IG. The BRA, on the assumption (or pretense) that it is exempt from 30B as an urban renewal agency, has begun the process of funneling the land, unbid, to the developer whom Mayor Walsh currently wishes to enrich. However, that 30B exemption applies only to projects done pursuant to an official Urban Renewal Plan, which this is not. So if the BRA tries to funnel this immensely valuable property to the Mayor’s current best friend (a higher bidder, of another kind…), it will land in court – as did Yawkey Way – and the development will be delayed for much longer.

7. PFC is not an “obscure city board”; it is the City agency that manages disposition of public property. It was about to vote to transfer the property to the BRA, but alas, the Open Meeting Law complaint suspends the effect of the Council’s vote. However, as explained above, the Council’s vote is invalid also because it exceeded its authority in voting for the wrong transfer.

8. PFC is not allowed to just hand City land to the BRA for free, even though Menino had them doing so for two decades. By the City Charter, PFC is authorized to transfer City property in only 3 ways: between City departments, with no payments required; to private parties, via open competitive bidding; and to other public agencies, like the BRA – on a price and terms it “deems appropriate.” The three PFC commissioners, mayoral appointees, have done no analysis of the property’s potential market value nor of the terms in the “agreement” the BRA is proposing, which is vague and unenforceable -- in fact, a blank check for the BRA without a single protection for the City’s taxpayers. This is strictly a political hand-off by the three commissioners – one of whom, the Menino hold-over, Larry Mammoli, is, just coincidentally, the BRA’s Director of Engineering & Facilities Management, who has been shepherding the Winthrop heist through the BRA’s sausage factory since 2007.

9.The BRA had an appraisal done -- but at the current zoning, which is only 10 FAR; and it was, according to the appraiser’s contract, expressly to be used only for “internal agency planning” – not for marketing. There has not been a marketing appraisal of the potential value of the land at the expected up-zoning. My information from experts is that at the expected allowed build-out (as indicated by the 8 proposals received), the land should fetch at least $200 million; that would be consistent with the land value for the 780’ Hancock Tower. Developers who propose smaller projects would, of course, offer less, since build-out determines land price. The City agency conducting the bidding should decide, with public input, what the desired project size and use should be, get an appropriate appraisal, and anticipate fair bid prices accordingly.

10. The Mayor wants BRA ownership so he can control designation of the developer. The BRA wants ownership so it can control the money that comes in. Neither cares what the City gets.

11. The BRA would not simply sell the land, for a price all can see; it would structure a complicated and unfathomable deal that best benefits the developer and itself -- and thus the Mayor, who would reap fat campaign contributions from the developer and continued service from the “self-funding” BRA. The Councilors will never know, from the BRA, what the land is really worth, and what the proceeds really are; they will get occasional token crumbs, and will be told to be grateful because the garage was bringing in nothing (well, that’s true in a way -- the BRA was raking off the parking fees).

12. Sam Tyler, of the Boston Municipal Research Bureau, has written to the City Council formally recommending that “the PFC retain ownership of 115 Federal Street.” Tyler is a registered lobbyist for developers; yet even he advises that the City keep and sell its own property, and cites past City sales of its surplused big garage properties.

13. The sale of the land by the City in an open, honest process will get this project done most quickly, with no risk of court delays, and with the best balance of project design and price.