In January 2011, the Boston Redevelopment Authority publicly released a "100 Acres Amended and Restated Memorandum of Agreement" completed in 2005 and amended in 2007. Existence of the MOA had previously been reported publicly by SAND, however the BRA steadfastly refused to provide copies of or information regarding the MOA upon the request of numerous small property owners, business owners — even to members of the Fort Point Advisory Committee convened by the BRA to assist in the drafting of the Fort Point 100 Acre Plan. Access to the MOA and any disclosure of its contents were denied repeated requests of BRA representatives at public meetings until 2008, when a formal request was made by the Boston Landmarks District Study Committee during the drafting of guidelines for the designation of Fort Point as a Boston Landmark District. A Cooperation Agreement was also provided to the BLC Study Committee.
Commentary: On Public Master Plans and Private Cooperation Agreements
January 2011
March 30, 2011: BRA posts its privately drafted MOA of 2007 online. To read MOA, see 2011 News below.
Summary: Through the drafting of private legal agreements unavailable for public review, the Boston Redevelopment Authority privately awarded approximately six million square feet of new density (new construction) in Fort Point above pre-existing as-of-right zoning to four large-property owners in Fort Point, while failing to include legally binding requirements to ensure development of civic spaces, cultural uses, groundfloor uses (other than private use) and critical community planning objectives. Greenspace requirements codified into these private legal agreements were marginal, with tbe creation of a multipurpose greenspace "sinking fund" created by property owners and lacking transparency in projected cost, administration or enforcement. Each of the urban planning objectives had been publicly, repeatedly and expressly stated as primary objectives in the BRA's public "100 Acres Master Plan," "Seaport Public Realm Plan," and "Municipal Harbor Plan," and each had engaged SAND's active participation since 1997. These planning objectives had been presented in scores of public meetings, public press releases and public statements from BRA representatives and the Mayor's Office during a decade of planning (1997-2006).
Private legal agreements between the BRA and large property owners were not available for public knowledge or review until 2008, at the request of a Boston Landmarks Commission study committee during the drafting of its guidelines. Another private Memorandum of Agreeement (MOA) of 2006, never shared with Fort Point residents, small property owners or Fort Point Acres Advisory Committee, was made public with its publication on the BRA website in 2011.
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Few urban planning objectives drafted into Fort Point and Boston Seaport Master Plans by the Boston Redevelopment Authority between 1998 and 2006, particularly those related to public space [non-ornamental recreational greenspace], facilities of public accommodation [civic, cultural] and commercial objectives [groundfloor commercial/retail, etc.] stated in the BRA Master Plans were codified into the myriad of legal agreements (Cooperation Agreements and MOA's) that were privately drafted between the BRA and large property owners subsequent to each planning process.
The BRA's public statements regarding residential requirements in Fort Point and more generally in the Seaport is also contradicted by privately drafted agreements. In recent months, one of the largest Seaport property owners is disputing the assertion that any legal documents exist requiring any residential development as a component of its large project — contradicting the BRA's public Master Plans, claims regarding rezoning and stated Mayoral "Executive Orders" over the past decade regarding residential requirements in the Seaport. While the The Boston Globe has used BRA press releases to report approvals totaling over 6,250 residential units in the Seaport over 10 years, only 35 owner-occupied condo units and fewer than 150 apartments exist in the actual development pipeline as of December 2010. Over a twelve year period, fewer than 500 residential units were created on Seaport property within the scope of BRA planning in the Seaport while office space and hotels were front-phased in each approved project — leaving future administrations to sort out the outcome on remnant parcels after offices and hotels were sited.
Systemic Failure to Capture Community Objectives
Beyond the failure to capture urban planning objectives in agreements privately drafted between the BRA and large property owners, the BRA also failed to capture a modicum of community planning objectives. For example, while Fort Point merited recognition as the largest density of working artists in New England (600 artists in the mid-1990's, over 200,000 sf of leased space negotiated without public subsidy), the BRA required no provisions for the use of space within the district for cultural use, artist live/work or other related use. By 2010, the arts community had diminished in scale by over 50%. The BRA's lack of attention to this particular community objective while drafting "cooperation agreements" and MOA's with large property owners contradicted the BRA's public statements over an entire decade regarding its own planning objectives for the arts community. The BRA's public statements regarding its attention to the arts community were included in the widely distributed South Boston Seaport Master Plan and Fort Point 100 Acres Master Plan.
Regarding Master Planning and Private Cooperation Agreements
While colorful Master Plans were being publicly drafted and widely published in the Boston Globe, attorneys representing each property owner were working on a separate track with the BRA on the private drafting of confidential Cooperation Agreements and MOA's, ensuring that elements vital to the success of each developer, namely the zoning changes providing additional FAR (height, density), were clarified to the letter. The contents of these Agreements and MOA's was never subject to public scrutiny, the documents witheld from public knowledge and release for years after their drafting. The contents of these agreements was never analyzed by the Boston Globe or other media outlets to compare the BRA's public statements and planning objectives drafted in Master Plans to the legally binding zoning variances that each agreement addressed.
Project approvals are now considered in a vacuum, out of context of any Master Plans. Once Seaport and Fort Point Master Plans were completed, published in final draft by the BRA, the urban planning objectives of the Plans were rarely if ever referenced by the BRA for consideration by BRA and Mayoral appointed Impact Advisory Groups (IAG's) in their capacity as advisors in the approval of individual projects within the bounds of the Master Plans. Projects were and continue to be considered as standalone sites for approval, with little discussion of context or broader commitments made over an entire portfolio of parcels. Discussions in IAG meetings nearly exclusively focus on project height, mitigation of impacts (i.e. shadow, wind) and payments by the developer for offsite benefits.
Because the BRA conducted its negotiations privately while maintaining master plans publicly, zoning changes in the Seaport and Fort Point have quietly succeeded in substantially increasing the density available for commercial development on undeveloped tracts and atop existing buildings. At the same time, civic and public spaces across the Seaport and Fort Point remain predominately dependent on the voluntary altruism of property owners.
The world-class objectives, maps and renderings presented by the BRA in its public presentations and media releases during the Seaport Master Planning processes conducted from years 1998-2006 have little resemblence to the actual outcome on the ground. Across the waterfront for example, property owners have designed ornamental berms and barriers on their abutting greenspace parcels to serve the immediate interest of the site rather than serving a larger context. First floor spaces across the Seaport have been privatized, contrary to BRA assertions that it was requiring active first floor uses.
At a meeting in November 2010, after a decade of public press releases and Master Plans outlining the BRA's stewardship ensuring the creation of civic space and other urban design objectives, the BRA announced in a public meeting that the agency had determined that the South Boston Seaport would never require significant civic spaces such as a school, police station, fire station, library or community center — and so advance planning to ensure the proper allocation of space for such civic uses was entirely unnecessary.
The following excerpt encapsulates one of many examples of how the BRA routinely employed a parallel track in its approval process to garner public approval of over 9 million square feet of new commercial development in the South Boston Seaport. The first track is one of public "Master Planning." The second parallel track is the drafting of private agreements with large property owners which rarely if ever reflected the aspirations of the public Master Plans and press releases — from urban design to architecture.
"This Plan applies the same ground floor use strategy of Chapter 91 to the rest of 100 Acres." — Boston Redevelopment Authority 100 Acres Master Plan Draft as of June 2005,
This statement was the BRA's publicly broadcast planning objective for ground floor uses in the 100 Acres parcels as of June 2005. As of June 2005, the BRA had hosted 5 years of 60 meetings with the Fort Point Working Group and Fort Point Advisory Group. The BRA was to award 9 million square feet of new commercial development to four large property owners under the Plan ("signators"), and the agency's stated purpose of Master Planning was that the approved new commercial density would ensure the proper buildout of private, civic and greenspace uses. The SAND website, particularly from 1998 to 2006, documents much of the collaborative effort that existed between the community and Boston Redevelopment Authority in the drafting of Seaport and Fort Point Master Plans.
"The Plan proposes that, wherever possible, ground floors of all buildings should have publicly accessible uses that activate the abutting streets and open spaces for the rest of the 100 Acres." — Boston Redevelopment Authority 100 Acres Master Plan Final Draft, Sept. 2006
This statement was the modifed language that was substituted into the BRA's 100 Acres Plan "Final Draft" in September 2006. It had been altered from the June 2005 Draft and prior drafts without public notice, and presented to the Fort Point Advisory Committee in the final stage of the 100 Acres planning process.
(The 100 Acres Master Plan and drafts mentioned above are available on the BRA website and SAND website for objective analysis.)
Legal Zoning Documents for 100 Acres approved at BRA Board and Zoning Board of Appeals
Ground Level Uses. The ground floors of all buildings within Chapter 91 jurisdiction will contain publicly-accessible uses, such as restaurants, theaters, lobbies, fitness facilities, civic spaces, cultural and educational institutions, tourism-related, and retail uses, consistent with the applicable provisions of the Commonwealth’s Waterways regulations, 310 CMR 9.00, as those provisions may be modified pursuant to 301 CMR 23.00, Review and Approval of Municipal Harbor Plans. These ground-floor uses may be included where appropriate elsewhere within the Site [100 Acres boundaries].
Above is the only reference to ground floor uses within the legal zoning documents privately drafted by the BRA (Fort Point 100 Acre Plan Planned Development Area PDA) and published in January 2007.
The required uses for tidelands properties (a fraction of the 100 Acre territory) were required by the State Executive Office of Environmental Affairs, and simply repeated in the PDA language above. As the last sentence in the paragraph clarifies, the BRA required no specific uses, objectives or intended uses for ground floors within the 100 Acres boundaries — contradicting the stated objectives drafted and widely publicized during the BRA's public 100 Acres Master Plan process. The PDA allowed property owners to determine the use of all groundfloor space, and the choice of whether the ground floor was public or private, unless otherwise regulated by State authorities.
Cooperation Agreements and MOA's
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— Cooperation Agreements and MOA's regarding civic space requirementsThe numerous private "Cooperation Agreements" (held privately by the BRA until 2010, not available on the BRA website for public review as of 2011) and "Memoranda of Understanding" (held privately by the BRA until 2008, made available for public review in 2011) signed between the BRA and the four signators to the 100 Acre Plan specified no required uses or even intended uses for ground floors as drafted in the BRA's public Master Plan.
For projects that were subject to State regulations regarding ground floor uses (Chapter 91 tidelands regulations), the Boston Redevelopment Authority had actually amended its Muncipal Harbor Plan to reduce the size and scale of ground floor requirements below State standards.
The most significant planning objectives outlined and widely publicized by the BRA in its public Master Plans and presentations do not mesh with the private agreements, approvals and variances awarded by the BRA subsequent to its drafting of Seaport and Fort Point Master Plans. Requirements and commitments for the creation of an appropriate mix of uses, including greenspace, civic space, cultural space, waterfront amenities and variety of planning objectives that the BRA had claimed publicly were being captured in the legal agreements with the property owners were not drafted into the agreements. One signator to 100 Acres has stated that they have no obligation to fulfill any residential density objectives that the BRA continues to state publicly are required of all Seaport large property owners. And no authority existed (or exists) to reconcile the private agreements with the BRA's public statements and master plans.
And then arrrived the actual projects submitted for approval under the Master Plans. The first signator to the 100 Acre Plan proposed an array of commercial projects in 2009 and 2010.
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— Project Notification Form filed by 100 Acres Signator, regarding required civic spaceIn December 2010, the BRA Board approved the final zoning variance in an entire array of variances for the first large property owner and signator to the 100 Acre Plan, including approximately 350,000 square feet of new commercial development. Not one square foot of space across the entire portfolio was required by the Boston Redevelopment Authority for civic use. Not one square foot of ground floor space across the entire portfolio was required for any other than private uses such as office lobby, private exercise room, etc. The ground floor of the largest project in the developer's portfolio was proposed and approved as 100% private use. In January 2010, the ground floor of a second building in the same property owner's portfolio garnered BRA support for 100% private use. Because this building was on tidelands, the private uses supported by the BRA contradicted State Chapter 91 tidelands regulations requiring "facilities of public accommodation" (including commercial retail) on a percentage of the groundfloor.
Not one square foot of parkspace was created to accompany the array of commercial projects created within 100 Acres by this signator.
A modest "sinking fund" requiring a contribution of approximately $11 per square foot of new construction, with no public administration or oversight, was funded by the first signator for the creation of future greenspace within 100 Acres. In 2010, when privately drafted Cooperation Agreements were finally obtained by community members, it was revealed that the BRA had included a provision that allowed all large-property owners and signators under 100 Acres to tap into the greenspace sinking fund for roadway improvements, onsite landscaping and other amenities unrelated to vital recreational greenspace and public realm objectives outlined in both the 100 Acres Plan and South Boston Public Realm Plan.
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