Courthouse developer making end run around City Council on parking needs (update)
The redevelopers of the former Edward J. Sullivan Courthouse say they have had discussions with the Galleria Mall for the parking the project requires, an alternative to looking for space at the city-owned First Street Garage after that plan drew widespread community opposition resulting in pressure on the City Council and city manager.
The Planning Board took no action on the developer’s proposal at its four-hour Tuesday meeting, and had no discussion on its merits. Board chairman Hugh Russell said the lateness of the hour and quantity of public comment precluded the board from discussing the issues.
Furthermore, a crucial legal opinion on zoning requested by the board at its March 4 meeting still hadn’t arrived from City Solicitor Nancy Glowa and her staff. It is expected this week, and the board is expected to take up the courthouse again in June. The developer had asked the board to make no “final decision” at Tuesday’s hearing.
Garage alternative
Leggat McCall’s plans for the 22-story, three-basement former courthouse call for 460,000 square feet of office space, some retail and 24 to 48 units of housing. Only some 90 parking spaces fit onsite, demanding spaces elsewhere.
But the First Street garage leasing “process is not moving forward at the City Council,” attorney James Rafferty told the board as representative for Leggat-McCall Properties, the developer. He described the city’s property disposition process as “very time-consuming,” saying, “it has not, frankly, begun in earnest yet. The city has not initiated the appraisal process and it’s for that reason that an alternative is being explored.”
Leggat-McCall is in discussions to lease 420 spaces from the Galleria Mall, Rafferty said, and anticipates amending its application to request a special permit for offsite parking, needed because the mall is more than 300 feet from the courthouse site. Zoning requires that “safe and convenient access” be provided between the development and its offsite parking.
Timeline and legal option
This is the second formal meeting of the board on the 40 Thorndike St. courthouse project. It was first heard Jan. 7 before a board of six members, which scheduled a continuation to March 7, but they were unable to achieve quorum then. Assistant City Manager for Community Development Brian Murphy announced at that meeting that he would ask the city solicitor for an opinion on whether the courthouse qualified as a “pre-existing nonconforming structure.” The City Council adopted a resolution March 24 asking for the same opinion.
That language is critical to the development plans. If the building is a pre-existing nonconforming use, the board can grant a special permit allowing it to be altered. If it is not, the building is in violation of zoning and Leggat-McCall would not be able to redevelop the building. In its current condition, the 1970s-era building has been deemed not usable, in large part because it requires an estimated as $34 million of asbestos mitigation.
Glowa, the city solicitor, has been out of the office since Friday and has not responded to queries about the timing of her opinion. The City Manager’s Office was also unable to explain the delay or why the opinion, which was requested 55 calendar days prior, was unavailable. Leggat-McCall’s request that the board make no final decision was sent by letter April 23 and could have influenced the solicitor’s timing.
The city opinion is expected in time for the May 5 council meeting, according to Jason Alves, aide to city councillor Timothy Toomey.
No discussion of special permit criteria
The board ran out of time to discuss the case; it heard Leggat-McCall present for 90 minutes, asked some brief questions and took another 90 minutes of public comment. Russell announced that he was “tired and overwhelmed” by the meeting, and the board adjourned without further discussion.
Vice-chairman H. Theodore Cohen said afterward that the board had hoped to discuss the case, and that “I think we all would have been happy if there had been an hour of testimony and an hour or so to talk about it.”
While the board had declared it would rely on the city’s legal department to address whether the building is a pre-existing nonconforming use, it still faces many zoning questions. The special permit criteria include:
Urban design: Whether the project is “responsive to the existing or anticipated pattern of development” and will “reinforce and enhance the complex urban aspects of Cambridge as it has developed historically” or “impair the integrity of the district.”
Non-conforming structure: If the redevelopment would be “substantially more detrimental to the neighborhood than the existing nonconforming” use.
Conversion to residential use: Evaluating the “potential negative impacts of the new activity on abutters as a result of … location, orientation and use.”
The board did not discuss these criteria, but did summarize them to guide public testimony.
Developer’s presentation
A presentation by Rafferty and a team of architects and consultants showed significant changes only in landscaping, trying to make a green area along Spring Street more accessible to the public by lowering it to street level. But one landscape architect in the audience suggested the change made it look more “corporate.”
Leggat-McCall also had its consultants present studies on wind, lighting and glare and provided a discussion of issues related to the Massachusetts Environmental Protection Act and its decision to seek an abbreviated MEPA process through a waiver – a bid city councillor Dennis Carlone later said he would ask fellow councillors to oppose.
Cohen asked whether the architectural changes to the building would change the wind activity. Ray Sinclair, a wind consultant from RWDI, said that some of the changes “do increase some wind activity,” which the team hopes to mitigate with trees and ground-level vegetation.
After the meeting he added that actual measurements of wind were not standard in his industry, and he could not recall a case where his firm had taken them. Reliable measurements require deploying many pieces of equipment for a long period to capture daily and seasonal variation, and they are at risk of vandalism, he said.
Public comment
About 100 members of the public attended the meeting, and about 30 spoke at public comment. Sentiment was near uniform in opposition to the project, with the exception of two business association members, a resident and one non-resident who works in the area.
Concerns of noise, traffic and light pollution were repeatedly raised, and many expressed frustration at the process and the state’s decision to award the property to Leggat-McCall, with MIT professor Seth Teller calling the departure of the building’s courts and jail a “once-in-forever” chance to fix a problem – a massive structure that didn’t fit in a residential neighborhood that opposed it from the start.In a shift, the board let neighborhood associations pool their time and make visual presentations rather than restricting them to three minutes per person. Michael Hawley, representing the newly-formed Neighborhood Association of East Cambridge, offered a slick multimedia presentation that included a vertical video of block-after-block of stalled cars, visually making the case for East Cambridge traffic problems that residents fear would worsen with the tower’s new use. Barbara Broussard indicated the East Cambridge Planning Team would wait for a revised proposal from the developer would offer its comments by letter to the board.
Attorney and Massachusetts zoning law expert Mark Bobrowski, representing several residents, offered a legal argument in response to an April 23 letter from Leggat-McCall lawyer Martin Healy saying Healy’s analysis depended on a case, called Durkin, that was not relevant.
In Durkin, the local ordinance allowed government uses of the property as-of-right, Bobrowski said, and a subsequent change to that ordinance made the Falmouth post office a lawful, pre-existing nonconforming use – but the courthouse could never have built as-of-right.
Bobrowski said he looked forward to the city solicitor’s opinion so he could respond to it.
The planning board is expected to resume this hearing June 3 or June 17.
An earlier version of this article paraphrased Leggat-McCall’s attorney, James Rafferty, as saying the company had “arrangement” to lease parking spaces at the Galleria Mall. Rafferty has clarified Legatt-McCall has merely had “discussions” about leasing spaces, but does not have an “arrangement.”
There’s an overabundance of parking in the neighborhood. The First Street Garage was built to accommodate a much more vehicle-intensive use of the structure in question, and the conversion of the courthouse to office, retail and residential would not unduly tax the garage’s capacity. The spots are there. In fact, as we’ve just learned, the Galleria also has more parking that it needs. We’ve routinely required developers to build many more spots than will actually be used, and salted our city with underutilized parking structures at enormous indirect expense to the public.
Parking shouldn’t be a legitimate obstacle to this project moving forward. But – unless the city solicitor decides it’s a non-conforming structure – it may well appear like the most expedient way to block the necessary permits. So it’s where opponents have turned.
The consequences of that decision are…unfortunate. Leggat McCall’s proposed upgrade to the garage would’ve benefited the neighborhood. If, instead, it ends up leasing the spots it needs at the Galleria, and the project moves ahead on that basis, everyone loses. It’s less convenient for the residents and workers in the building. The neighborhood loses amenities it otherwise would’ve captured. And the city is stuck with a parking structure that has no real use.
If the project is blocked as non-conforming, this’ll become irrelevant. But if it moves ahead? If anyone actually believes it’ll be better for this project to lease 430 spots in the Galleria than to proceed with its proposed renovation of the First Street Garage, I’d love to hear from them. My fear is that the project’s critics may fail to stop it, and end up with a project that’s substantially less attractive than the proposal they originally attempted to derail. I’d hate to see that happen.
I’m sorry, but the deal with he Galeria is a farce. As anyone knows who has driven around those subterranean wastelands during the holiday season. I would hope that the city places the burden of proof on the developers shoulders to show that sufficient space exists yearlong rather than take anyone’s word. I cannot imagine that the Galeria has been hiding all this extra parking space during the mob-jammed holidays. Nice try, guys!
You haven’t answered my question, Paul. If the project gets approved in the end, will it be better for the community if it uses the First Street Garage with all the promised upgrades, or if it just leases 430 spots in the Galleria?
I understand that you don’t like the project. But your objections don’t actually seem to stem from parking issues. I have the sense that, if developers promised to excavate a five-story garage under the present building and thus put all the required parking right on site, you’d still oppose everything else about the project. Am I wrong?
The current building is awful. It should’ve been torn down, and replaced. But to make that economically viable, the replacement would’ve had to have at least as much square footage as the current tower. Since the current building is hulking, that probably would’ve meant an even taller tower on the site – albeit one that was far more attractive, and with far fewer negative impacts on the surrounding blocks. And you know why that didn’t happen? Because activists made it perfectly clear that if the existing structure was torn down, they’d do everything within their power to prevent anything tall from being erected on the site. The state, to its credit, took them seriously. And the result? Instead of a tall, functional, attractive building on the site, we’re most likely going to wind up with the current building which everyone hates, even the developers reclad to look slightly less offensive. I have yet to hear anyone explain how that’s a superior outcome.
Now, instead of learning from their past mistakes, I hear the same activists repeating them. Blocking the project from using the First Street Garage isn’t ultimately going to block the development. But it may well produce a development that’s far less functional. If you’re right that the Galleria has a seasonal need for those spots – even if it’s still insane to have a suburban shopping mall in a vibrant city – it’s not going to stop them from leasing them out if the price is right. It’ll just mean more traffic and parking issues in the neighborhood every holiday season.
At some point, can’t we stop trying to cut off our noses just to spite our faces?
Dear Commenter:
Why would I answer your question when you take such a strong pro-developer view without revealing your name? Rather than answer your question, I prefer to pose my own: why should we take this alleged agreement between the developer and the Galeria as anything but a weak attempt to avoid having the city debate the merits of the development itself?
Why answer my question? I don’t know. Why bother to engage with me here at all?
But since you have, I’d point out that my questions have now left the realm of the theoretical, and become practical. The City Solicitor has confirmed what we all knew – the building is a “pre-existing non-conforming structure.” So the Planning Board and the City Council can certainly make life difficult for the developers, but they lack the ability to block the development entirely. One way or another, the Sullivan Courthouse is going to get reused. So the pressing issue is ensuring that the reuse delivers the maximum benefits to the city.
You see the proposed Galleria parking as “a weak attempt to avoid having the city debate the merits of the development itself.” I see it as the predictable response to a crass attempt to make the question of parking a proxy for that debate. We don’t actually get to decide whether the proposed development is a good idea. That’s now how planning works. What the Special Permit process allows is a bargain – the developers can get more of what they want, in exchange for more of what we want. And I want to focus on striking the best bargain possible. Doctrinaire stands against development put that at risk.
I don’t hold any pro-developer views. It’s entirely immaterial to me whether Leggat McCall turns a profit on this venture, or posts a catastrophic loss. What I care about intensely is improving our city, and East Cambridge in particular. I want base of the tower wrapped in housing. So does every single community group that’s weighed in. It’s that housing which has triggered most of the special permit requirements.
You want a nightmare scenario? Leggat McCall could submit a revised proposal that strips out the housing and retail, and simply mitigates the asbestos and reskins the existing structure, leaving its external footprint precisely as it is. To block that, the Planning Board would have to find that an office building is “substantially more detrimental to the neighborhood” than the pre-existing non-confirming use of the site as a jail and courthouse. That’s not going to happen; it couldn’t be defended in court. But let’s not have any illusions. It’s the office uses that stand to be profitable here. The retail just makes the offices more attractive to tenants; the residential component is a price Leggat McCall is willing to pay in order to smooth the process of development.
The building is there. It’s not going anywhere. So we all have a choice. We can sit down around the table with Leggat McCall, and try to drive a hard bargain to ensure that their development proposal includes the maximum benefit for the community. Or we can stridently oppose the project, throw obstacles in its way, and refuse to compromise. Most likely, that’d result in a reskinned building that lacks any benefits to the community. And on the very small chance that such strident opposition convinces Leggat McCall that development is more trouble than it’s worth? We’ll get the existing structure sitting there, derelict, because the state has no interest in paying to remediate the asbestos.
Perhaps you think that one of those outcomes is preferable to an adaptation of the building that remediates some of the damage its done to the neighborhood, adds badly-needed units of housing, and delivers upgraded spaces to the community. I don’t.
Dear Commenter:
The big difference between me and you is that I don’t concede we’re going to lose in a battle with the developer, nor am I ready to negotiate least painful outcomes assuming such a loss takes place. All your arguments, and some of them make great sense, are built on the assumption that an aroused neighborhood and an enlightened debate won’t win the day. An assumption I don’t share.
Paul,
The big difference Paul is that the commenter is practical and you just don’t know what you’re talking about. The city solicitor has given her opinion and ch 40a sec 6 and 7 apply. Which means the structure is lawful, and needn’t be diminished in any way. I also means that the use is also allowed (which I don’t think was ever in question). However, there may be a point of leverage with the developer relative to parking, but acting as you do won’t spur any conversation it’ll just polarize. There is a conversation to be had, and people like you need to be kept miles away from it, lest the neighborhood gets nothing. Its a shame the building exists, I’ll grant you that, but it would be even more of a tragedy if we let sad, smug, conceited do-nothings like you rule the conversation. As always, see you in the funny pages.
Patrick: It’s interesting you feel the need to bring your gruff bullying demeanor to every discussion, resorting to name-calling and brutish asides as if that will prove your argument and taint my reputation rather than yours. Also interesting that you seem to have appointed yourself my personal Greek Chorus, jumping onto the stage whenever and wherever you find me offering my opinion. I’ll be happy to respond to your insulting allusions once you stop acting like the meanest and angriest kid in the schoolyard.