UPDATED, 1:24 pm
Boston’s City Council voted 10-3 Wednesday to exempt a proposed downtown skyscraper from a state law that would otherwise prevent the building from casting a shadow over Boston Common.
Voting against the measure were City Council President Michelle Wu, 8th District City Councilor Josh Zakim, whose district includes the Common; and 8th District City Councilman Tito Jackson, who is running for mayor.
The vote endorsed a home rule petition, which will now go to the state legislature for approval.
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Just two days after a Boston City Council committee heard almost six straight hours of testimony in a chamber packed beyond seating capacity over whether the Council should grant a special exception to a major downtown development plan – that would otherwise violate a state law protecting Boston Common from being overshadowed by tall buildings – the Council may approve the deal as soon as its weekly meeting Tuesday.
The immediate matter before the Council is a “home rule petition,” that, if approved by city and then state legislators (and subject to veto by Governor Charlie Baker), would allow Millennium Partners to erect a 775-foot tower on the city-owned parcel knows as Winthrop Square, currently home to an aging parking garage.
The deal, brokered by the Boston Planning and Development Agency (formerly the Boston Redevelopment Authority) with the blessing of the administration of Boston Mayor Marty Walsh, would raise a lump-sum of $153 million for the city. The Walsh administration has pledged to spend the proceeds on affordable housing in Chinatown, funding for the city’s Franklin Park, and some would go to the Friends of the Public Garden – one of the groups most strenuously fighting the measure in the first place.
The petition, sponsored by (outgoing) former City Council president Bill Linehan, can now be called up for a vote by the committee’s chair, Michael Flaherty, at any meeting of the whole Council and, barring a tectonic shift in Councilmanic alignments, the petition will likely pass.
But if it does pass it will pass over the (anticipated) objections of a small group of Council members who have persisted in raising bigger questions about this deal.
Only three of the Council’s 13 members have voiced an intention to vote “no” on the proposed home rule petition: 7th District Councilor Tito Jackson, who is running for mayor against Walsh; 8th District Councilor Josh Zakim, whose district includes Boston Common; and City Council President Michelle Wu.
Despite comprising what appears to be a distinct minority block within the Council, these members have nonetheless raised and given voice to questions whose answers won’t necessarily be settled by a simple vote.
The Shadow: Oversight or Trojan Horse?
One of many nuanced twists in the Winthrop Square / Millennium tower project is this: Even the lawmakers and civic groups most forcefully opposing this deal don’t object to most aspects of the development itself.
There is wide agreement that Winthrop Square should be developed; that its current use, as a dilapidated parking lot, is a bad one; and that the city would be well-served by leveraging its ownership of an eyesore parcel in a booming real estate market to raise millions in the land sale and subsequent real estate taxes.
The Council overwhelmingly approved the city's pursuing a developer for that parcel. Millennium Partners offered a substantially higher sales price than other bidders in response to a city-issued Request for Proposals.
But it was only after that approval that BPDA officials informed councilors that they had become aware of a small hitch: the building would apparently cast a shadow over the Boston Common – temporary, in a day-to-day sense (it would dissipate by 9:30 a.m.) but a permanent affliction in terms of years to come.
At Monday’s hearing, BPDA director Brian Golden admitted that the agency had failed to identify the issue and alert Council members sooner in the process; but he chalked that failure up to (in so many words) the leadership structure in place before Mayor Walsh made changes to the quasi-independent agency.
That answer didn’t satisfy Council President Wu, who says that in a year of hearings on the matter the subject of a legal problem with the building’s shadow was never even mentioned by BPDA (then BRA) staff, said to BPDA director Golden: “If you're saying now that you would have done it differently had you known” – about the shadow, that is, “Well - we know now.”
As she left the hearing for another event, Wu was more blunt with WGBH News. Asked if she believed the BPDA had “mislead” the Council (in our words), she responded: “Yes.”
Jackson has echoed Wu’s perception that the Council was at least mislead if not, as he put it to WGBH News yesterday, lied to.
Other sources familiar with the issue have postulated that the untimely discovery (if that’s what it was) that the Millennium proposal would overshadow Boston Common was disadvantageous to everyone involved and that at the root of the thorny problem was perhaps incompetence, but hardly conspiracy.
Who’s to be held accountable?
Councilor Tito Jackson may have a political stake in opposing the Walsh-endorsed Millennium deal. But he has also raised questions about how the city will deliver on its promises – and hold the developers asking for special treatment accountable – that have not received much by way of answer from city officials.
During Monday’s hearing, Jackson asked BPDA officials whether the proposal before the Council, and all of the lucrative incentives therein, including the creation of jobs that include minority and disadvantaged workers, were enforceable by anything other than the “Memorandum of Understanding” reached between the city and Millennium. Jackson asked whether anything on paper included a “clawback” clause that would allow the city to penalize, fine or otherwise act on broken promises.
The answer was a wordier version of: “No.”
Gratuity or Perpetuity?
At least two major projects that cast shadows on Boston Common not only contribute to the Friends of the Public Garden in a kind of recompense – but do so regularly, every year.
The deal before Council, shadow and all, indeed proposes to raise tens of millions of dollars for the Friends of the Public Garden – but only, as it stands, as the deal is signed.
Some Boston Common advocates have pointed out that Millennium Partners has neither volunteered nor been asked to contribute annual sums to the Friends group, a non-profit that spends large sums annually to maintain the Common, the Public Garden, and the Commonwealth Ave. Mall.
That doesn’t mean whatever donation by the project to the Friends group (likely between $10 and $20 million) couldn’t be annualized.
Trading Shadow for Shadow
If you didn’t know that the City of Boston maintains a “Shadow Bank,” a clearly designated amount of allowable shadow to be cast of the Common and Garden, you might be forgiven. That would mean that you also wouldn't realize that bank of allowable shadow is almost depleted.
But the same state law that restricts the construction of buildings that would cast shadows over valued public spaces allowed Boston to use what would otherwise constitute violations of those restrictions as a kind of limited currency that could be traded while, at the same time, controlled for overall preservation of the sunlight needed for the growth of trees, shrubs, flowers, and grass.
As part of the deal before Council, approving the Millennium project would also trigger a premature and permanent closing of the remaining share of shadows in the city’s so-called “Shadow Bank,” a reserve of limited and fungible shadow space.
Put simply: After this shadow, no more shadows.
But, as dissenting councilors have noted, the “Shadow Bank” is already almost empty – in other words, there are few shadows left to spare – and used up almost entirely by … Millennium Partners, the same company now asking for an exemption to the shadow rule.
To be fair: The company’s previous use of shadow space was approved and conducted within the same legal confines that would have presumably allowed other development projects to do the same.
Still, as Council appears near a vote on a development that, in its most basic form, most parties prefer to the status quo – what might otherwise have been an easy political ribbon-cutting has been cast into, well, shades of doubt.
This story originally stated that Boston City Council approved Millennium Partners as the developer; the council had previously only approved the city's seeking developers for the land.
