Parcel 9 (Haymarket Hotel) Letter on Development Progress, Or Lack Thereof

Victor Brogna, North End resident and Impact Advisory Group Member for the Parcel 9 project at Haymarket, catches us up on the progress (or lack thereof) in the long-delayed development. [See also the Parcel 9 post archive here on NorthEndWaterfront.com.]

September 23, 2015

Christopher Tracy
Project Manager
Boston Redevelopment Authority
One City Hall Square, 9^th Floor
Boston, MA 02201
christopher.tracy@boston.gov

Re: Development of Central Artery/Tunnel Parcel 9

Dear Chris,

As you know, I am a member of the BRA’s Article 80 Impact Advisory Group (IAG) for this project. I am writing to you at this time because of the lack of current information on the project available to the general public as well as to the members of the IAG. I last wrote to you by email on November 26, 2014, requesting information regarding the scheduling of the next IAG meeting and noting particular matters that I wished the IAG to discuss. I await your reply to that request.

A Brief History. It is my understanding that the Parcel 9 development proposal in its latest form remains under review in the BRA’s Article 80 process. The plan as now proposed calls for two major departures from the form in which it was originally bid by the developer and accepted by MassDOT. The low market hall, which was originally a view-preserving 20 feet high, was raised by the developer after bidder selection and award to a view-blocking 27-30 feet high. The hotel, which was originally 84 feet high and comparable in height to the Clinton Street Garage, its 85-foot neighbor, was raised by the developer to 103 feet. The post-bid change brought the hotel far above its other neighbor, the Millenium Bostonian Hotel, which is only 74 feet high.

These are the maximum heights which we have been led to believe the developer’s project will reach. However, in the developer’s Expanded Project Notification Form dated October 14, 2014, the developer stated on page 1-5, “As currently contemplated, the Project will be ten (10) stories with a zoning height not to exceed 115 feet.” (Emphasis added.) The developer went on to state on the same page, “[T]he Project will require relief from the provisions of the Code for use, height and FAR.” The height permitted by the Boston Zoning Code is 55 feet. The zoning height now sought by the developer is double what the Code allows.

An Article 80 Scoping Session was held at 2:30 pm on October 27, 2014, and the first and only IAG meeting quickly followed at 5:30 pm the same day. That evening, at 7:00 pm, the first and only public meeting was held. All this took place less than two weeks into the 30-day public comment period on the PNF filing. I received notice from the BRA of the PNF filing on October 17, 2014. I filed a comment letter addressed to you and to David A. Carlson, a BRA member and Executive Director of the Boston Civic Design Commission (BCDC), on November 14, 2014, within 30 days of the BRA’s notice to me of the PNF filing. Please confirm the receipt of my comment letter, and inform me regarding the process by which my comments and comments from others were considered or will be considered in a following Scoping Determination or other BRA action.

Although a Scoping Session was held on October 27, 2014, I am not yet aware whether a Scoping Determination has been made by the BRA with respect to this project. I note that under Article 80B-5.3(a) the BRA is to issue a Scoping Determination 45 days after a PNF is filed.   If a Scoping Determination has indeed been made, please email me a copy so that I may see what issues the BRA has directed the developer to address.

Shortly after the three meetings which took place in rapid succession on October 27, 2014, the BCDC reviewed the developer’s proposal with its post-bid changes on November 4, 2014. Thereafter, the BCDC’s Design Review Committee reviewed the proposal on November 25, 2014. The BCDC reviewed it again on December 2, 2014. I appeared at all three BCDC meetings and opposed the post-bid changes because of their blocking of view corridors from the North End and the Greenway, and because to permit the adoption of substantial changes in the project after bidder selection and award would reflect negatively on the integrity of MassDOT’s public bidding process. Notwithstanding my objections, the BCDC approved the proposal with its post-bid changes at the meeting of December 2, 2014.

The issue regarding blocking of view corridors did not end with the BCDC’s approval, however. The Massachusetts Historical Commission (MHC) on January 26, 2015, made an official determination that “the proposed project will have an ‘adverse effect’ on the Blackstone Block through the introduction of visual elements that are out of character with and alter the setting of this historic district,” citing Federal and State Regulations.

Pursuant to the regulations cited by MHC, I requested on February 21, 2015, that the developer’s consultant, Epsilon Associates, and the MHC, furnish to me all documents exchanged between them, including design alternatives. I received copies of two design alternatives sent by Epsilon Associates, Inc. to the MHC by letter dated February 19, 2015. One of the design alternatives showed a return to the 84-foot height for the hotel as originally bid, but no reduction in the increased height of the market hall. The other showed a hotel at the 55-foot height permitted by the Code, which covered the entire parcel. This latter design alternative would succeed in blocking views of the Blackstone Block almost completely. I have received no design alternatives or other documents since that date from any source.

I also requested of Epsilon Associates and the MHC that public meetings be held pursuant to the requirement of the MHC’s regulations that there should be “maximum public participation in the review process” (950 CMR 71.08), the purpose of which “is to eliminate, minimize, or mitigate adverse effects to properties listed in the State Register of Historic Places.” (950 CMR 71.02) The regulations state that informing the public may include holding or sponsoring public meetings. (950 CMR 71.08[e]) Nevertheless, no public meetings have been held by the MHC or Epsilon Associates in spite of my request.

Further details of the project’s history are contained in my comment letter of November 14, 2014. Since, as I noted above, the Scoping Session was held less than two weeks into the comment period, my comments and the comments of others were not available for discussion at the Scoping Session. If a Scoping Determination has been issued, I hope that all public comments received have been addressed. If a Scoping Determination has not been issued, I request that all public comments be addressed in the document when it is issued.

The Scoping Determination and Public Benefits. The developer has proposed in its Expanded Project Notification Form at page 1-1 a community room, a fitness room and “potentially” a pool. I would expect that these as well as additional public benefits would be required of the developer in the BRA’s Scoping Determination. Public rest rooms, for example, should be an additional requirement, and other public benefits may be suggested by other members of the IAG at the meeting which I am requesting that the BRA schedule.

The Article 80 Process and Historic Resources. During the lengthy period that has elapsed since the Scoping Session was held on October 27, 2014, I have had the opportunity to review the Article 80 process as described in the Boston Zoning Code. I note in Section 80B-3.4 that certain requirements are imposed on both the BRA and the Applicant (the developer) with respect to the treatment of Historic Resources in the Scoping Determination. The full text is as follows:

“Historic Resources Component. In Its Scoping Determination, the Boston Redevelopment Authority shall require the Applicant to submit an analysis that sets forth measures intended to mitigate, limit, or minimize, to the extent economically feasible, any potential adverse effect that the Proposed Project may have on the historical, architectural, archaeological, or cultural resources of any district, site, building, structure or object listed in the State Register of Historic Places. The Boston Redevelopment Authority may forward the Historic Resources Component to appropriate public agencies for their review, comment, and recommendations, including but not limited to, a statement as to whether the Proposed Project satisfies any regulatory requirements of such public agencies.”

Therefore, if a Scoping Determination has not yet been made, please make certain that it includes a Historic Resources Component in compliance with the above-quoted paragraph when it is issued, and that the Historic Resources Component is forwarded to the Massachusetts Historical Commission, the Boston Landmarks Commission and the Federal Highway Administration.

I also wish to comment on the “economically feasible” standard mentioned in the paragraph from Article 80B quoted above. It seems clear that a return to the lower building heights contained in the original bid which the developer submitted to MassDOT must be taken as satisfying an “economically feasible” standard. To put it another way, the developer should not be heard to complain that the project would not be economically feasible without adding one floor to the market hall and two floors to the hotel (the latter representing a 25% increase – from 180 to 225 keys). Certainly, unless the original bid was not made in good faith, the developer would not have bid the project in the first place with an offer to build at the lower heights unless it was economically feasible. However, it appears that even those lower heights may not be acceptable to the Massachusetts Historical Commission and the Federal Highway Administration, based upon the reasoning adopted by the MHC in its determination of “adverse effect” as set forth in its letter of January 26, 2015.

A Planned Development Area Designation is Not Permitted for the Parcel 9 Site. The developer has stated its intention to seek a Planned Development Area (PDA) designation for the site. Parcel 9 is located within the Government Center/Markets District created under the Boston Zoning Code. Section 45-9 of Article 45 of the Code establishes four locations within which a Planned Development Area may be permitted in the district. Parcel 9 is not included in the list. In fact, Section 45-9.1 states firmly, “No PDA is permitted within the Government Center/Markets District except within these areas.”

In its Expanded Project Notification Form, on page 1-5, the developer acknowledges that the site is not in an area in which a PDA is permitted. The developer states that it intends to seek an amendment to the Code to permit it.

However, for the BRA to permit a PDA at this site would be contrary to a position against PDA’s taken by the Mayor of Boston. I participated at a meeting which the Alliance of Downtown Community Organizations (ADCO) had with Mayor Walsh on May 18, 2015. The matter of PDA’s came up during the meeting, and Mayor Walsh explicitly stated to all those present that he was not in favor of PDA’s. Therefore, where the Mayor of Boston has taken a position against PDA’s generally, and the Boston Zoning Code firmly states that “no PDA is permitted” for a site such as this, the BRA should not support the developer’s request.

A Cooperation Agreement Between the BRA and the Developer Must Await the Completion of the Public Process. A Cooperation Agreement should not be drafted until impacts and mitigation measures are determined through ongoing public review.

In my email to you of November 26, 2014, I stated that it was my understanding that the IAG will be able to have a look at the final draft of the Cooperation Agreement before it is signed. The need for this would seem to be self-evident, but nonetheless it needs to be restated and confirmed: If, as its name implies, the Impact Advisory Group is indeed expected to give advice regarding impacts, it will obviously need to see what it is the BRA and the developer are proposing to agree upon before the agreement is concluded. Therefore, please confirm to me that there will be an IAG meeting scheduled before the BRA/Developer Cooperation Agreement is signed, and that a copy of the proposed agreement will be distributed by email to the members of the IAG for their review prior to the meeting. In the meanwhile, I would appreciate your sending me copies of any drafts of a Cooperation Agreement which may have already been produced.

The Cooperation Agreement should also include the statement that the members of the North End, Waterfront, Beacon Hill, West End and Bulfinch Triangle communities are intended beneficiaries of the public benefits contained in the agreement, and that any non-profit organization representing the interests of the members of any of these communities shall have standing to enforce any or all of the public benefits by court action or such other action as may in its sole discretion be required.

To conclude:

1. Nearly a year has elapsed since the Scoping Session of October 27, 2014, was held.                 Circumstances have changed during that lengthy period. Public comments have been received. The MHC has made a determination of “adverse effect.” Other events may have occurred which need to be taken into account. An additional Scoping Session needs to be held, to fully inform a BRA Scoping Determination.

2. The MHC’s determination of “adverse effect” alone warrants that the Scoping Determination require the developer to prepare and file a Draft Project Impact Report.   Other substantive issues that may have been raised in public comments on the Expanded PNF, but have not yet been brought to the attention of the IAG, may also warrant further evaluation and proposed mitigation in a Draft Project Impact Report.

I note that the position taken by the Massachusetts Historical Commission in its determination of “adverse effect” may have established criteria which cannot be met by the project presently proposed, even with a return to the lower building heights as originally bid. Therefore, if an impasse is reached, the best resolution may be to urge MassDOT to re-bid the project. I am informed that other bidders with the financial ability and interest in the project may be awaiting the opportunity to re-bid.

Alternatively, MassDOT itself could build and lease out a one-story market hall on the site, which would conform to the view-preserving schematic designs which were presented by MassDOT to prospective Parcel 9 bidders as part of its Request for Proposals.

3. In either case, new specifications would be developed to address all the issues in a full public process involving the participation of the MHC, the Boston Landmarks Commission, the Federal Highway Administration and the neighboring communities.

At this point, however, the IAG needs to be convened to identify the project impacts and determine the appropriate mitigation – the tasks it was created to perform.

Yours sincerely,

Victor Brogna
Member, BRA Parcel 9 Article 80 Impact Advisory Group
Member, MassDOT Parcel 9 Advisory Committee
Chair, North End/Waterfront Residents’ Association, Zoning, Licensing & Construction Committee

cc: The Members of the Impact Advisory Group

Office of the Mayor

Office of Transportation

Boston Redevelopment Authority

Historic Preservation

Massachusetts Department of Transportation

Massachusetts Environmental Policy Act

Rose Fitzgerald Greenway Conservancy

Boston Public Market

Federal Highway Administration

North End/Waterfront Residents’ Association

NorthEndWaterfront.com

Developer and Consultants