Heidi Burbidge, BRA, Project Manager
Boston Redevelopment Authority
Via e-mail
November 22, 2002
Re: Residences at Kensington Place Draft Project Impact Report (DPIR)
Dear Ms. Burbidge:
The Alliance of Boston Neighborhoods is a federation of neighborhood associations concerned with proper public process in planning and development. In response to the Kensington DPIR, we are writing to address several key process issues regarding the project.
Planned Development Area designation
Current zoning limits the project height to 155' and the FAR to 10. It is in an area that is eligible for creation of Planned Development Area (PDA) projects which allow greater height and density, but this project will not meet the 1-acre minimum requirement for PDA designation. The BRA's Scoping Determination states, "Only property under the control of the Proponent should be considered in the Project Site and subsequent project."
The PNF and DPIR state that the proponent is counting as part of the project area the China Trade Center and Boylston Square alley, both owned by the BRA, to add the required acreage. The BRA allowed this redefinition of the project boundary, contradicting its own directive.
However, at the September 4, 2002, meeting of the Park Plaza CAC, the proponent, when asked to clarify the PDA area, stated that the site boundary line will be redrawn to increase the acreage by including, not the China Trade Center, but Washington Street from building face to centerline, the length of the project site, as well as LaGrange Street and Boylston Alley. The inclusion of BRA property is not valid for this purpose; the inclusion of the public street is also invalid.
The purpose of PDA zoning, originally for areas of at least 5 acres, was to allow more comprehensive planning for large development areas. The 1-acre PDA has served mainly to facilitate the evasion of the zoning appeals process by developers of full-block buildings. Now, this proponent seeks, with the BRA's public approval despite its written directive, to turn a site under 3/4 of an acre into a PDA by declaring adjacent BRA and City of Boston property to be part of the project site. This defeats the purpose of the PDA as a large-area planning tool for development. And it sets a precedent sure to multiply dramatically the number of PDAs, which are effectively self-zoning sites. We ask that the BRA respect their directive and the intent of the Boston Zoning Code, which was clearly not to allow public land to be used to meet private site-size requirements.
This project does not qualify as a PDA, regardless of whether it is the Trade Center, Boylston Square or Washington Street that is claimed as part of the site. If this proponent wants to try to exceed the zoning (the proposal doubles the zoned height [and has become even taller since the PNF, despite the sinking of the parking below grade] and exceeds the zoned FAR by almost 50%), the project must come before the Zoning Board of Appeal and prove that it meets the legal standards for a zoning variance. ZBA decisions provide legal recourse to the public.
Further, since the DPIR gives the wrong information to the public on the PDA eligibility, the single most important determinant of the legality of the project, a Notice of Project Change is required. The public must be allowed to comment on correct information.
The proponent dismissed this problem in public meetings by citing "precedents" for use of public ways in qualifying for the PDA acreage minimum. However, on further examination, these "precedential" PDAs simply include more than one development site -- quite reasonable for a Planned Development Area -- not public streets as part of their qualifying acreage.
As this PDA designation will not be possible, ABN asks that the BRA request from the proponent a revised plan that meets the zoning requirements for the site.
Eminent domain takings
This project site is not yet assembled, and the BRA has signed a Cooperation Agreement with the proponent to take by eminent domain any properties whose purchase can not be negotiated privately. The BRA assumes the right to take these properties because they are in the Park Plaza Urban Renewal Area. There are two problems with this assumption.
First: Section A.2. of the Park Plaza Urban Renewal Plan states, in part, "Unless the Authority shall have selected a Developer for Parcels D and E within 3 years from the date of approval of this plan, Parcels D and E shall no longer be considered part of the Park Plaza Project Area." The Plan was approved in 1971 and amended in 1977. The Developer for Parcels D and E was not selected within those three years, that is, by 1974 or 1980. Therefore, these parcels are no longer in the Urban Renewal Area, and the BRA has not eminent domain power over them. Although the proponent claims that an amendment to the Park Plaza Plan adopted by the BRA on November 12, 1981, deleted this requirement, a legal provision cannot be retroactively deleted after its effective term; if this were possible, no limited-term law could ever be assumed permanently expired. The proponent at the same time claims that the Chinese Economic Development Council was recognized as the developer for what is now the China Trade Center parcel as of January 30, 1980, i.e., within three (3) years of the 1977 amendments, which were adopted in May of 1977. Since the China Trade Center parcel is part of Parcel D, as is the Project site, the proponent claims that the developer selection requirement was met. These claims are mutually discrediting; why would the BRA have deleted the requirement in l981 if it had been met in l980?
Second: The Urban Renewal Plan for this area does not designate these properties for BRA seizure. Any modification of the UR Plan, including this one designating new takings, must be reviewed and approved by the Massachusetts Department of Housing and Community Development (DHCD), and the Boston City Council. Seizure of private property must be justified by a public purpose; it is unconstitutional to exercise eminent domain merely to take private property from one owner and convey it to another, as recent court cases are holding. The proponent must demonstrate a public purpose.
The proponent has stated in public meetings that the "public purpose" of the takings is to implement the Urban Renewal Plan, this is circular reasoning; the Plan cannot be carried out by changing it. The DPIR actually states: "To be in conformity with the Park Plaza Plan, a modification must be made to the Park Plaza Plan's description of properties to be takenSĀ" This idea that projects are to be brought into conformity with Plans by changing the Plans rather than the projects reflects the absence of genuine planning in Boston, and reveals the outdated and irrelevant role of the Urban Renewal Plans in shaping the future of our city. Until the obsolete Urban Renewal program is terminated, however, the review process by the State and City must continue to address the propriety of individual Plan modifications.
The DPIR list of Anticipated Permits (Table 1-1) does not include the DHCD or the City Council as agencies whose approval is required; the Urban Renewal Modification approval is listed only as a BRA requirement. Since the BRA has in the past submitted only a handful of its 280 UR Plan modifications for DHCD review, and all of the modifications were little known to the public, we request that this process be carried out with full respect for the letter and spirit of the law, with ample notice and opportunity for public participation. We have been informed by DHCD that modifications approved and implemented by the BRA without State review are not valid nor legally binding.
Demolition Permitting
On September 24, the Boston Landmarks Commission agreed -- prematurely, we believe -- to consider the project's demolition request. Perhaps the BLC members were unaware of the many uncertainties surrounding project approval. Having voted to consider the request, the BLC could do no more than invoke the 90-day Demolition Delay for the buildings on this site, including the historically significant Gaiety Theater. As a result, the proponents were effectively allowed by the BLC to demolish the Gaiety, which they own, after December 23, regardless of the completion of other approval processes.
The Alliance expressed concern that the prospect of a hole full of historic rubble marring booming Washington Street for an indefinite period could be used by the proponents to compel the City/BRA to expedite takings and approval for the project, regardless of its merits and regardless of the legal issues described above. In view of the urgent concerns voiced by the Commissioners and members of the public at the hearing regarding both the loss of yet another historic theater in the dwindling Midtown Cultural District and the improper processes pursued for site assembly and zoning relief, Ralph Cole, representing the proponent, verbally assured the BLC that no demolition will begin of any building until the entire project has all its State and City approvals. We request that this promise be committed to writing, to assure the public that the demolition of a precious historic theater will not be used as a lever in getting project approval. The preservation community's awakened interest in preserving the Gaiety Theater is most timely, as the Midtown Cultural District plan calls for preservation or replacement of cultural resources as the area is revitalized.
Community benefits
Issues have been raised about public benefits from this project, including contributions to Liberty Tree Park, the Boston Common, Boylston Square and local parks. Boston's development picture is greatly distorted by the zoning concessions granted in return for services and amenities that should properly be public responsibilities. We ask that the project be subjected to all lawful requirements, and be evaluated on its own merits, uninfluenced by the prospect of financial contributions. If there are legal commitments for park funds, they need not be considered in this evaluation, as they are guaranteed. Any additional donations desired by the City or by neighborhood residents should not enter into decisions at this point. Should the City allow the proponent to landscape the adjacent Liberty Tree Park or Boylston Square, no design elements or use restrictions should be allowed that could compromise the public character of the area. Any community contributions should be discussed after only all project review requirements are met; they should not unduly influence the decisions on a building that will affect a large part of the city for decades to come.
We note that these and other important issues not yet addressed by the project were previously raised in our PNF comment of January 25, 2002, and in letters from the Campaign to Protect Chinatown, the Bay Village Neighborhood Association, and the Asian Community Development Corporation. We look forward to more specific recognition and resolution of public concerns.
Daniel Cushing, President
Shirley Kressel, Vice President
Cc:
Mayor Thomas M. Menino
Mark Maloney, BRA, Director
Rebecca Barnes, BRA, Chief Planner
Rick Shaklik, BRA, Zoning Director
Ellen Lipsey, Boston Landmarks Commission
Boston Zoning Commission, c/o Jeff Hampton
David Carlson, Joan Goody, Boston Civic Design Commission
Bernard Borman, Chair, Park Plaza CAC
Albert Rex, Boston Preservation Alliance
Carol Wolfe, Urban Renewal Program Coordinator,
Massachusetts DHCD
Lydia Lowe, Chinese Progressive Association
Steve Bailey, The Boston Globe
Paul Restuccia, The Boston Herald