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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.

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Board Name: Boston Finance Commission
http://appointments.state.ma.us/BoardDetail.aspx?brdID=160218

Legal Authority: Chapter 486, Section 17-21 of the Acts of 1909
Purpose: Watchdog agency for administrative and financial activities of the City of Boston
Seat Restrictions: Term Limit: 0 | Term Length: 5 Statute: http://archives.lib.state.ma.us/actsResolves/1909/1909acts0486.pdf

Meeting Information: Third Tuesday of the Month. 43 Hawkins Street, Curley Room, 2nd Floor, Boston, MA 02114. 617-635-2202
Compensation: Chairman: $5000. Others serve without compensation.
Member Name ....               Seat Name .... Chair .... Term End Date
Ms. Meg Mainzer-Cohen .... Seat 1 ....                 .... 2020-07-17
Mr. James S. Weliky Esq. .... Seat 2 ....                 .... 2016-07-28
Patrick Sarkis ....                   Seat 3 ....                 .... 2020-09-18
Mr. Matthew Gorzkowicz .... Seat 4 ....                   .... 2017-08-09
Mr. Richard Iannella ....         Seat 5 ....                 .... 2019-10-09

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Than the GE package?

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This is the city transfering title from one department to another. Nothing to see here folks, Ms. Kessel is a well known anti-development crank.

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The BRA is not a city department.

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Technically, yes. As a practical reality, it's controlled by the mayor.

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BRA revenue does not go to the City coffers. That makes it a non-city agency to me.

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Except in this instance, where an agreement between the council and BRA states that all of the money from the redevelopment of this site will go into the city coffers.

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She laid out how the city is ceding control and therefore any gains from the development (outside of eventual taxes) to the BRA in exchange for nothing of obvious benefit to the actual city coffers.

Please clarify why the city can't just auction off this asset without handing it to the BRA?

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The BRA is far better positioned to move the property through the development process and the money still goes to the city. This isn't underhanded scheming, it's an effort to break a bureaucratic log jam to get something done that Menino first started working on more than ten years ago.

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The BRA is a state-level agency separate from the City government. They're officially a "body politic and corporate" under the statute (MGL c. 121B, s. 4), which puts them on the same level as for example the MBTA.

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Yes, it's an authority, and, yes, that means it has certain powers that city departments don't (such as the ability to not be subject to City Council budget review and all the fun eminent-domain stuff).

But in the real world, and unlike the MBTA or Massport, its directors are appointed by the mayor of the city of Boston. Don't think for one minute that isn't significant.

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4/5 BRA Board members are appointed by Mayor, confirmed by City Council. Remaining member is appointed by Governor.

The MBTA's Board is all appointed by the Governor. Massport's Board is entirely appointed by the Governor, too (one if ex officio, the Secretary of Transportation). Don't think for a second that isn't significant.

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The alternative to "cranks" is to lie back and take it.

I know which I prefer.

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Brava, madame!

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Hey Feds investigate the organised crime racket here already!

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Shirley Kressel, you go girl! I'm glad someone is looking out for the average citizen - even though the City Council wasn't when they went through this charade. How much longer do we have to put up with the BRA's deal makers as our shadow government?

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We've had the BRA for coming up on sixty years. Do we still need a quasi-public board to hold eminent domain power? It's always struck me as nothing more than a cesspit of corruption.

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That power is irrelevant. When was the last time they actually used it?

I agree that they shouldn't have nor need it. The agency is useful though, so I think it should just be restructured. Remove the eminent domain powers since they're no longer needed nor used. Change the name, and make the agency fully a City department so this "quasi-public" issue goes away.

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The BRA uses eminent domain powers all the time! Go online and read BRA Board meeting minutes. Some noteworthy takings of recent years: Winthrop Square garage parking lease rights (BRA gets the money, City keeps the maintenance burden), Yawkey Way, Hayward Place (a City parking lot), City Hall Plaza (BRA gets development rights, City keeps maintenance burden), Ames Building, cornice air rights, public ways, etc. Nowadays, it's mostly City property that the BRA takes without paying compensation to the taxpayers, and then sells/leases, keeping the money. The BRA, for some reason, did the takings for the City's new Bolling Building and botched them, with a lawsuit and loss of money to the City.

Reforming the BRA is not possible. It was deliberately structured to be exactly what it is: to allow the mayor to do the most draconian -- and unlawful -- things without accountability. As one former BRA Director actually testified at a public City Council hearing, "The BRA was created to throw the people off the land and do the dirty things, and keep the mayor's hands clean to protect him from political retribution." He also said at a public meeting, "The BRA works for developers." A City zoning lawyer told me, "The BRA makes everything that is illegal, legal." And that's what it's there for.

We don't need the BRA for anything (and never did); all its powers are municipal powers, held by the City itself; the only difference is accountability. It was meant to be temporary, to implement temporary Urban Renewal Plans -- which are now due to expire on April 30, and should not be extended as the BRA is requesting. Those UR Plans should end, and we should strip the BRA of the planning powers the mayor transferred to it in 1960, and we should end the Chapter 121A tax breaks the BRA authorizes with phony "blight" declarations. All these actions are necessary to restore normal municipal governance to Boston, the cradle of democracy.

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Shirley says that:

Kressel is trying to block the transfer of the garage to the redevelopment authority because she fears the proceeds from the sale of taxpayer-owned land will go to the quasi-public agency.

But the Globe article indicates that:

City councilors had an agreement with the redevelopment authority stipulating that the money would go into city coffers.

What's the issue here?

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The Globe has omitted a few important details. The BRA wrote the Memo of Agreement, whereby the City would get "net proceeds" -- defined as "sale price or any lease payments, minus the cost to the BRA of advertising for proposals, analyzing the proposals with such staff and outside experts that the Authority deems appropriate, the management, maintenance and repair of the Garage before disposing of the property, and any other necessary costs incurred in connection with the disposal of the Garage." And the BRA would do the income collection, bookkeeping, management, and reporting -- tasks for which independent auditors found the BRA incompetent and conflicted. Would you sell your property on an agreement like that? No prudent public official would.

Why do you think the BRA wants to take ownership of this site? First, in 2007, the BRA took the right to years of parking revenue, and that was the intermediate step to taking the building itself -- with just a minor "amendment" to the "demonstration project." This is how the mayor funds the BRA without budget appropriations, which would be subject to Council approval and public scrutiny. The BRA wants to control the income.

Already, the BRA has set up the Council to expect very little, giving them an appraisal of $30 million reflecting today's condition as the site of a crumbling, shuttered parking garage instead of the forthcoming PDA re-zoning of "anything the developer wants," limited only by FAA requirements. Experts have told me the land is worth $200 million; that is consistent with the value of the land under 200 Clarendon, the 780' Hancock Tower.

The BRA would not conduct an open transparent bidding process. It would designate the developer of the Mayor's choice and structure a deal such that the cash flow is not visible or understandable to the Council or the public. It would make sure to keep whatever it wants, and dole out to the City a little spare change.

In any case, it is unlawful for PFC to funnel the property to the BRA for free (or $1, the usual price PFC charges the BRA for City land). The BRA is not a City department; it is an outside authority, politically and financially separate from the City government. It may, according to City Charter, sell or lease the property to such a public agency, but for a price and on terms that it deems appropriate -- which implies an evaluation process, not just an arbitrary and capricious "yes" vote.

And further, it is unlawful for the BRA to dispose of property other than for an Urban Renewal project without a Chapter 30B competitive bidding process. Such a disposition would be subject to legal action -- which is what is happening to the Yawkey Way deal, now in court.

These are legal restrictions. They apply whether or not you or I trust the BRA to deal honestly with the City. And they were established to protect the taxpayers against exactly this kind of mayoralty assisted embezzlement of public assets.

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Does the BRA still have that parking lot in the North End where it rents out spaces for like $100 a month?

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the land should fetch at least $200 million

And Marty just wants to give it away to make himself more powerful.

What a mess.

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Shirley Kressel is one of Boston's Great citizens. She's not against redevelopment at all she just wants things done legally and to maximize the public good. The City Council allowing the BRA to sell the property at a bargain rate is typical of these stooges who have zero power in City Government and who let this opportunity to exert their authority slip away. Shame on the BRA, they are a public entity and should be looking out for the best interests of the citizens.

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A Shirley Kressel fans web page is needed for those of us who appreciate the good works of SK !

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