Saturday, April 20, 2024

The First Street Garage could be partially leased for parking serving a redeveloped former courthouse in East Cambridge. (Photo: Marc Levy)

A lawsuit was called “inevitable” when Leggat McCall Properties asked for a special permit to redevelop East Cambridge’s former courthouse into an office building (with housing at the base). Almost seven years after Leggat won the state bidding process and even two years after an appeals court for the lawsuit-that-came-true ruled in favor of allowing the project – still no construction. 

Now a lawsuit looms over the parking Leggat needs to make its special permit work.

The City Council hearing on Monday could decide if Leggat gets that parking – but it shouldn’t. Whether you’re in favor of the courthouse redevelopment or oppose it, you should agree that councillors would be smart to avoid voting on the parking and instead ask the city manager to work with the residents threatening to sue, answering their concerns through his office instead of through the courts. Though this may seem counterintuitive, that process can be accomplished a lot faster than beating or losing a lawsuit.

Trying to get the city manager to work with the residents also happens to be the right thing to do, and would be smart for a city manager whose office has, for whatever reason, been a clusterfuck of bad decision-making that again and again chooses to antagonize with little foresight or regard for principle. He and his staff keep the trains running on time, yes, but only if you choose to ignore the ones that, like our MBTA, have burst into flames or are stalled several stops away from their destination. 

And no one should make the mistake of thinking our Law Department will save the day. It has bad ones, and they can cost the city $14 million at a time, if anyone remembers the series of lawsuits lumped together as the Monteiro case. I’ve beaten the Law Department a few times myself, in the less impressive area of Open Meeting Law and public records appeals. 

Those most eager to see the courthouse redeveloped, either for the housing it will bring; the community benefits Leggat promises; because they want remediation as fast as possible for the asbestos, PCBs, black mold and other toxins within (and maybe, by now, without); because they just want to see a handsome tower where a wretched-looking hulk now stands; or because they’re just sick of the fighting, may see a trick in the suggestion to avoid a vote. They might ask: How do we know that the city manager will ever agree to work with the residents on a First Street Garage disposition process? How do we know those residents will ever be satisfied?

We don’t, really.

One is a political leap of faith, and the other is about faith in people you may think of as an unreasonable enemy. But it is as certain as anything in life can be that a vote Monday for a 30-year lease on 420 parking spaces and some retail will bring a lawsuit that will stall progress on the courthouse, probably for years.

Maybe the residents will drag out a disposition process for as long as possible, never accepting outcomes they don’t like, and then sue at the end anyway.

If you think they’re unreasonable people, that is certainly something unreasonable people would do. I don’t think that’s the case – I think the lawsuit will be filed because they think they can win, and a process in which city staff takes complaints about a slipshod disposition process seriously and does it right will, at the very least, erode the number of people taking place in a lawsuit and the money that will go into it. It will also help the city win such a lawsuit, maybe even on a summary dismissal.

The uncertain future of a garage ‘no’ vote

There’s a healthy contingent who have been in training for at least several weeks to doubt the motives and intentions of the potential suers and the leap of faith that would see the city manager agreeing to address residents’ concerns. By that I mean that they’ve already been doubting the motives and intentions of state Rep. Mike Connolly, and very resistant to what Connolly and some others would like to see happen at the courthouse, because it too could be described as a leap of faith, or maybe just a leap into the unknown: He and 1,250 residents who have signed a petition do want the council to vote on the First Street Garage on Monday, but for the council to vote “no,” because if Leggat doesn’t get the parking, it might be very difficult for it to satisfy the special permit. 

Here’s where things get murky. At the point where Leggat can’t satisfy the special permit without parking and can’t build without the special permit satisfied, it has to do something else, and that vague “something else” could be so expensive – could – that Leggat has to let its latest purchase and sale agreement with the state lapse and walk away. If the special permit remains in place as passed and there’s no parking to satisfy it, again Leggat may – may – have to walk away. But conditions and limitations set by the Planning Board for the special permit call for “evidence of a long-term lease agreement” for 420 spaces either at the First Street Garage or CambridgeSide mall; attention has focused on the city garage because the mall plans to eliminate much of its parking and wouldn’t have it to spare.

Leggat sent out an email Wednesday urging people to send the council letters of support for the lease because “we will prevail only with numbers and your voice.”

Without parking from the mall or garage, the state would have to hold another process to figure out how to dispose of the courthouse. I recall people lambasting Connolly for saying this, but Mayor Marc McGovern said the same thing while defending the current courthouse plan. “If this process goes back out to bid, and the city is not going to buy the building, it will be sold to another for-profit developer,” McGovern said in an essay published July 16.

Leggat proponents agree with the mayor that the courthouse will go to a for-profit developer, because the state wants to make money with the deal, and the argument goes that it doesn’t do that by letting the property go for less than fair market value, or that the state is required to get fair market value.

The problem is that, as appealing as Cambridge real estate is to private developers, “fair market value” doesn’t mean much at a property where Leggat has walked away fuming after wasting seven years – and parking will still be an issue, depending on the project, and remediation (sometimes put at a price tag of $40 million) will still be an issue for any project.

When we think about “fair market value” at the courthouse, remember that the state Department of Capital Asset Management and Maintenance, which is in charge of selling off the property, valued the building at $40 million to $50 million in 2007, which is as much as $63 million in today’s dollars; in May 2010, then-city manager Robert W. Healy said he believed the state was seeking about $40 million for the building, which is $47 million in today’s dollars.

Yet Leggat offered only $33 million in December 2012, or $37 million in today’s dollars. It was the most money of any bidder, but still $30 million below a “value” of the former courthouse five years earlier and $10 million below our city manager’s estimate of the building’s “value” less than two years earlier.

The “value” of the building is only what a developer will pay for it, and if construction of a certain size demands a certain amount of parking that a developer can’t get, the value is possibly as low as the rejected bids from 2012, or possibly virtually nothing. Or maybe it’s buoyed by Cambridge’s gravity-defying real estate market? I don’t know, but I also don’t know if anyone does.

A departure by Leggat puts us in a world of uncertainty, and I don’t trust any certainty expressed about it. Connolly seems to be saying that Leggat walking away (and depressing the very specific real estate market of the courthouse’s 40 Thorndike St.) gives Cambridge and the state a chance to work out a different kind of deal for remediation based on land suddenly worth very little in a state that’s running a surplus anyway. When the $43.3 billion fiscal year 2020 budget arrived in August for signing, Gov. Charlie Baker didn’t veto a single dollar in spending.

Here’s where the most eager proponents of the Leggat deal, apparently including the mayor, say a very strange thing.

“The city manager has indicated that he will not ask for an allocation to bid on this property should it become available. This means that the city is not going to get control of the building for affordable housing or anything else, because without an allocation request from the city manager, the City Council cannot allocate the money on its own,” in McGovern’s words. “If the state decided to give the building to the city, the city manager has stated that he will not accept it, in part due to the $40 million-plus it will take just to remediate the asbestos.”

That’s not how this works, though, and I’m not sure why anyone is suggesting it is. After residents won East Cambridge’s Foundry building in real estate negotiations in 2009, it was the City Manager’s Office under Healy that tried to simply get rid of it. The City Council saw Healy’s total resistance to developing the Foundry building and rejected it, and despite a very uncertain path forward that saw some serious false starts, the community space is now on track to open in 2021.

Update on Sept. 7, 2019: I’m not sure how much more clear I could have been in saying “that’s not how this works,” but Crowe & Co. seem to be willfully misinterpreting it, suggesting I think the Foundry project itself is a model for the courthouse. No. This paragraph discusses a political process that people have misinterpreted as “the city manager has to allow something or want something,” which may be how our government has been often functioning in practice, but is not how our Plan E charter form of government is intended to work. Councillors have a political process they can engage in that can override what a city manager “wants,” and they did it with the Foundry – that was my point. Someone has also brought up a “strong mayor” concept, which mystifies me. I’m not bringing it up, and I don’t know why anyone is.

No one really knows what would happen if the parking is denied to Leggat. Maybe developers would come to a new state disposition process with projects like what lost to Leggat in 2012, which East Cambridge Planning Team members at the time preferred to Leggat. Maybe not. Connolly hopes that the land winds up as 100 percent affordable housing, or at least as housing, but at a scale more suited to the neighborhood.

We’re sometimes rushing into things

Getting to a theoretical next plan, whether it’s one by a new private developer or affordable housing, could take a long time. If the Foundry opens as scheduled, it will have been a dozen-year process, and the courthouse site is already at more than half that at a much, much bigger scale. That’s not a fun thought. 

But for all the time it can take a development to come together in Cambridge, the city isn’t short of people whose self-interest – not a bad thing in itself – can undercut our ability to get the best project or even to say what that is. Unions and their construction workers have lined up predictably to urge councillors to vote “yes” on project after project, no matter their merit, because they need to keep feeding their families; renters and others being squeezed out of the city by surging real estate prices have lined up to urge a “yes” by stressing the number of units a project will bring to market, and the number of affordable units. These hungers can be like stuffing your face with the nearest junk food instead of taking the time to cook something healthy that might even be more filling.

There have been councillors over the past terms who despair that the city doesn’t negotiate projects from a position of strength. City Hall has a hunger too, for a commercial base that keeps property taxes low and the budgets and free cash funds fat, and the council falls every time for what the city manager says will be best.

Certainly the most pathetic of these, which I never tire of bringing up, was acceding in 2012 to Boston Properties’ claim of needing to destroy more than 40 percent of Kendall Square’s rooftop garden to keep Google from leaving. The city manager said the decision was urgent, and councillors didn’t ask why, or for proof. The deal was essentially illegal, having come through a single rogue employee of the Cambridge Redevelopment Authority when the authority’s board hadn’t met in months, and the councillors were told. The developer offered five “commitments” to win over councillors, and councillors didn’t notice that only two were new. The vote was 7-2, and the entire dumb scam had been pulled off within a month.

Cambridge ain’t always so smart. Sometimes whatever’s before us looks too good to resist when we don’t know what might replace it. (But let’s face it: Google was never leaving.)

We’ve descended into baseless name-calling

Speaking of very strange things people have been saying, there’s a story going around that Connolly is a “liar.”

The same crowd that has been calling the state rep a liar has members who have imputed motives to me that are not true, so I’m disposed to doubt their ability to impute motives accurately to anyone. Also, Connolly is a smart, thoughtful person who is often right about things – he proved this as a citizen promoting net zero construction and as a council aide looking into housing issues, which helped get him elected. I’ve always found him to be truthful and transparent as a policymaker and as a politician.

I think he’s spoken colorfully and sloppily during the courthouse debate – referring to the “privatization” of the First Street Garage is evocative but not wholly accurate, I think, and it’s unfair of him to say Leggat hasn’t been able to “close the deal.” The company’s got a good claim to extenuating circumstances, to say the least: It spent most of that time in that “inevitable” litigation with neighbors who didn’t think the state’s exemption from zoning should be or could be passed on to a private developer.

But some of what people are upset about seems like political rhetoric to me, no different than you might hear during any council term, or watching C-Span. (Example: A city councillor seeking more representation for women among city properties said recently that the city had no parks named after women, though it has at least two. Is that a lie, a distortion or a fabrication?) And the person who’s led the “liar” charge against Connolly, as in a Medium post called “Lies, Distortions, Accusations, and Fabrications Mike Connolly Told on his Way to the Sullivan Courthouse,” (hence the question about the councillor) has been a bit colorful and sloppy himself.

Here’s an example: According to Loren Crowe, the author of the piece and several others in favor of the current courthouse proposal, Connolly “said that Cambridge could strike a similar deal with the state as Worcester, which bought its courthouse for $1. But wealthy Cambridge is not less-privileged Worcester, and the two projects are not comparable cases as far as the Commonwealth is concerned.” Crowe links to a tweet of Connolly’s seemingly to back this up, but Connolly’s tweet doesn’t say what Crowe suggests it does. This is what Connolly said, and it makes no reference to a dollar amount, only to a process that Connolly thinks Cambridge would be wise to follow:

The city can obtain financing by issuing bonds to help cover the cost of remediation (in exchange for the state agreeing to transfer a clean site to the city). That’s precisely what the City of Worcester did with their abandoned/toxic county courthouse.

Or: Crowe later refers to a “consultation fiction,” in which Connolly deceives by claiming “that DCAMM never consulted with Cambridge during the courthouse disposition process, despite the fact that the city was consulted in 2010 and rejected the opportunity to acquire the site because of the costs of asbestos remediation.”

Anyone who was participating in or watching the disposition process knows what Connolly is talking about, and it’s not what Crowe is talking about. The state told residents from the start they would have little input on the selection of a developer. Dana J. Harrell, then acting deputy commissioner of real estate for the state agency, said, “Usually we decide. It’s the state’s real estate.” When the state winnowed seven bids to three, and then anointed Leggat as the winner, it was a choice based on a high bid, not community preference. “I haven’t had a single positive response. People are very disappointed,” said Barbara Broussard, then president of the East Cambridge Planning Team. Councillor Tim Toomey, then also a state representative, also said he was disappointed: “DCAMM heard from the community about how other developers’ proposals were clearly better for East Cambridge, but it feels like we were ignored.”

But Crowe’s original reason for calling Connolly a liar, which came via Twitter instead of Medium, looks to me to be based on gullibility, rather than lack of historical context.

The paragraph by Connolly that inspired Crowe is this:

After witnessing the opposition to the First Street Garage disposition, I contacted the [state] and asked them what would happen if the City Council refused to make the First Street Garage available to Leggat McCall. DCAMM advised that the council’s rejection of the parking disposition would effectively kill the Leggat McCall deal, and subsequently DCAMM would reevaluate the current process and look to begin a new disposition process. Under a new disposition process, the city would have an opportunity to negotiate with the state for the public reuse of the courthouse site.

I read this and take it at face value, because Connolly has turned out to be truthful and correct in so many of our dealings. Crowe read it and thought … something else. After Connolly told Crowe that the state official was Matt Cocciardi, the agency’s chief of staff, Crowe got in touch directly and Cocciardi told him – as Crowe recounted via Twitter on May 17: 

“DCAMM’s position is that there is a deal in place that we respect … Don’t know where the rest of that came from … DCAMM doesn’t comment on hypotheticals … I tried to get in touch with [Connolly] months ago to correct how he was characterizing our conversation.”

Saying that either Connolly or Cocciardi is lying is not quite right, because Cocciardi is barely saying anything. 

It’s incredible that Crowe and his friends on Twitter, the mayor and the city manager keep quoting things this state agency says as though they mean anything – and as though state agencies don’t know how to lie through suggestion, by choosing their words carefully to not-quite-lie while absolutely not telling the whole story. Neither “DCAMM’s position is that there is a deal in place that we respect” nor “DCAMM doesn’t comment on hypotheticals” have content: There is a deal in place until there isn’t, which may be soon if four councillors reject the First Street Garage lease to Leggat, which is exactly when things stop being hypothetical. “Don’t know where the rest of that came from” is a fine thing to believe in if you’re also credulous enough to believe Cocciardi when he says that he’s been trying but failing to get in touch with Connolly. Or, to read this literally, that he tried to get in touch with Connolly once.

Connolly has an email address; a visit to Cocciardi’s state profile reveals that he too has an email address. It turns out both have phone numbers. I have called both and confirmed that each have voice mail. What exactly does it mean that Cocciardi “tried” to get in touch “months ago”? Not much.

McGovern repeats that Cocciardi “reportedly” tried to contact Connolly, which is fair but means even less, while DePasquale treads some mushy ground of his own:

“DCAMM has reiterated repeatedly that the courthouse is a valuable asset and that it expects to obtain fair market value in any disposition of this property. DCAMM believes the fair market value of the courthouse exceeds $30 million prior to any costs associated with remediation and redevelopment. DCAMM is committed to [Leggat’s] redevelopment of the courthouse and is in support of the municipal actions that are required to complete the transaction and to begin the redevelopment of the courthouse.”

Not only does nothing here say Connolly is wrong, but the final sentence brings us in a circle: The state supports the city supporting the plan that the state supports.

Everyone, and I do mean everyone, from Crowe to Connolly, is supporting their points of view by using the stuff they like from what the state agency says and ignoring the rest when it’s inconvenient. But the agency can’t be trusted in anything it says, because it will say basically anything that supports its simple goal of selling the courthouse for as much money as it can get. That the building has been empty for five years with no action and no Leggat money in its pockets is probably nagging at someone there, and whether it’s suggesting Connolly is misrepresenting a conversation that said too much politically or saying the asbestos-ridden structure is safe without maintenance, DCAMM’s wish to make money and not spend it is the context that matters.

Still, we see Crowe using a DCAMM official’s quotes to blast Connolly for misrepresentation in May, then blasting Connolly in August for too faithfully repeating what officials at the agency told him.

The state agency that got us to fight each other

Blaming Connolly for not being tough enough in dealing with the agency is easy. But no one is being tough. An open letter from residents worried about getting sick from the courthouse was primarily angry with Connolly for quoting what he was told, with some passive murmurs of complaint about the agency that originated the lies he passed on.

Is it not bizarre that there’s so little blowback when it’s so obvious that DCAMM and the state have generated every problem Cambridge faces about the courthouse? The state balked at the cost of remediation it first promised to do, which is why one of our “Cambridge” courts is in Medford and the other is in Woburn; it took no responsibility for the asbestos and other problems that caused the courts and jail to move out in the first place, which played a role in Healy’s rejection of the property; it locked out residents from decision-making and chose the project liked by no one in the city who’d tried to engage; and it has caused worry in the neighborhood as residents fear the poisons inside have begun to leach out, because an agency whose role is maintenance has clearly done nothing to maintain the building it owns.

Councillor Dennis Carlone said this plainly in June, making little impact.

“There are definitive procedures when you close down a building. And it seems like very few of them are undertaken by the state,” he said, suggesting DCAMM failed a simple checklist that smaller property owners follow all the time, such as shutting off the water so pipes don’t freeze in the winter.

The state put the poisons in the building, moved out because there was poison in the building, tried to sell the building to make someone else deal with the poison and is now allowing the poison (again, maybe) to escape – likely to force a panic that will help it get the $33 million it wants so it can forget about the courthouse forever. The state is surely delighted to see that the response of a few of our citizens is to attack a state representative who had nothing to do with any of this, but isn’t responding with the proper amount of state-induced panic.

Helping out is former city councillor, mayor and state representative Anthony Galluccio. He’s been among the crowd tweeting up a storm of outrage over the stalled courthouse plan and with rage for Connolly. (He compares Connolly to President Donald Trump. Um, what?) But, for as much admiration and love as I have for Galluccio, it needs to be noted that he and his law firm work for Leggat McCall. Though he may believe wholeheartedly in the good of the courthouse project, when he tweets it’s as an employee of the company that pays him to boost its chances of pulling off that project. He’s got a financial interest, which means he’s not just another guy from around town with an opinion. 

The residents who retweet Galluccio want Connolly out because “he’s politically invested in obstructing the current redevelopment plan.” So far as I can tell, his political interest in obstructing the Leggat plan is that he would prefer to find a way for the site to become affordable housing. It’s surprising to see that become the basis for such coordinated loathing.

After Crowe paid for tests of some asbestos-riddled material from an exposed room in the building, Connolly got DCAMM and the state Department of Environmental Protection onsite for an examination and some quick repair work. Yet the attacks on Connolly have continued with the assertion he has become the state’s “mouthpiece” and “the residents of Cambridge deserve a source of information they can trust.” What they want, according to the letter published Wednesday:

The state should make available a spokesperson.

Shopping for a spokesperson you can trust

Presumably, the “state”-provided spokesperson that these citizens can trust doesn’t come from DCAMM; if they’re being poisoned, it’s the part of the state that’s poisoning them. The state Department of Environmental Protection official who came when Connolly insisted said some good things and seemed earnest, and maybe that department would provide a new liaison, and maybe that act would be approved by someone higher-up who wouldn’t set any agenda – such as making sure that the courthouse property sells quickly and the state gets its $33 million. East Cambridge could luck out and get a state employee who arrives with no hidden agenda and truly cares about the residents over their job. In my experience talking with city and state employees, not many will take the citizen’s side over their employer, any more than a teller at Wells Fargo will stand up to their manager over outrageous fees and repeated fraud. Not while keeping that job.

Here’s an anecdote about why the state DEP may not be any more of a solution than anyone else. On Saturday, Crowe tweeted that he went back to the courthouse and talked with the security guards there, who had not been told about the asbestos “they’ve been breathing for months. I told them, gave them copies of the lab report and suggested they call [a health agency].”

When I showed up to the courthouse Aug. 30, where Connolly had called in the state officials before Labor Day, there was a long time to wait, and a security guard showed up first. Since he was wearing no protective gear, I asked if he’d been warned against anything dangerous escaping from the courthouse. Nope. But when the three state experts arrived – a DCAMM consultant and then two from Department of Environmental Protection – they also wore no protective gear, despite lingering for a long time at the bay where Crowe found the asbestos-ridden material.

I asked Ken Sanderson, of the Department of Environmental Protection, if the guards were at risk – given the risk of illness and a future lawsuit against the state for failing to protect them. No, he said, because there wasn’t much material outside the building, and the wind probably carried most of it away.

But wasn’t the wind that carried it away from the security guard also carrying it toward the neighborhood, I asked.

Sanderson did not answer, beyond a helpless kind of smile. The question was treated, gently, as ridiculous, because he’d already said there wasn’t a lot of material that made it outside the building.

The level of risk to those living next to the courthouse – as discussed by a DEP guy wearing no protective gear – remains unclear to me.

What is clear is that DCAMM is purposefully letting this state-owned building rot (or is just very, very bad at its mission) and that people who are worried about what’s inside and might be leaking out should also be asking for the City Council to not vote Monday, and instead to urge the city manager to go through the parking garage disposition process again with residents who are dissatisfied.

That stands a good chance of avoiding a lawsuit against the city.

Freed of having to worry about fighting its own citizens, our Law Department can do what it should have been doing months ago: suing the state to make it take care of its property, so residents don’t have to worry about their safety. The garage is both its own issue and tied to the courthouse redevelopment, which makes a good, informed decision doubly important; but a vote too soon might not produce anything but a lawsuit and more delay.

This post was updated Sept. 7, 2019, to clarify that the special permit for Leggat McCall Properties to redevelop the former courthouse suggests that only First Street Garage or mall parking will be satisfactory. It also notes that though affordable housing is considered ideal by state Rep. Mike Connolly, he would also prefer market-rate housing to a Leggat proposal in which office uses are predominant.