Opinion » Guest Opinion

Extension of BRA Urban Renewal Plans: Council has no authority

by Shirley Kressel
contributing writer
Saturday Dec 5, 2015

I am writing to comment on a 10-year extension sought by the BRA and Mayor Walsh for 14 Urban Renewal Plans expiring on April 30, 2016.

The BRA is asking the City Council to vote on this request, as it did on a 10-year extension request in 2004.

However, per that 2004 City Council vote (see attached), the Council no longer has jurisdiction over this matter.

The language of the 2004 vote, written by the BRA for Council approval, included not only a 10-year extension of expiring Urban Renewal Plans, but also a change in the City Council's oversight over the Urban Renewal Plans. By this vote, the Council retained power to vote on adoption of new Plans and proposed termination of existing Plans, but not its power to vote on further extensions of expiring Plans.

This was not an oversight; it was intentional. The BRA had previously tried to eliminate the Council's power over extensions by forging an alliance with other Massachusetts cities to file for state legislation perpetuating all Urban Renewal Plans. When this scheme was discovered, the BRA had no choice but to seek an approval from the Council. In two years of closed-door meetings with the Council, the BRA persuaded the Councilors to vote on the BRA's prepared text, thus getting the Councilors to sign away that power.

The BRA assumed that it had, in this way, succeeded in its goal of perpetuating the Urban Renewal Plans and, with them, its absolute and unchallengeable powers over development on 3,000 acres of very valuable downtown land (the 10% of Boston the BRA deemed, when it created the Plans, "blighted" by people of inferior color and class and/or suitably located for profitable redevelopment).

After the Council vote, I confirmed with the BRA attorney handling this matter at the time that this had indeed been the result of the Council vote.

However, since then, the BRA has realized that DHCD, which has the authority to grant final approval, cannot do so if the City Council has not voted to approve; I have written communications from DHCD confirming this. The current BRA attorney and Urban Renewal extension staff have acknowledged to me that, although there is now no authority under which this Council vote can be sought, they had "reconsidered," and decided to give the Council an opportunity to vote. While this explanation was meant to demonstrate the BRA's voluntary submission to Council oversight, the true purpose was to get a Council vote upon which DHCD could act.

Absent this Council vote, the Urban Renewal Plans must expire, by law, on April 30, 2016.

And this is exactly the right outcome.

Urban Renewal Plans were limited by law to 40 years - and for good reason. These Plans are not important as "plans" (they are routinely modified to suit each developer) but as legal structures authorizing a quasi-public non-City agency to exercise municipal government powers - and to do so with absolutely no accountability.

The BRA, as an "independent" agency, has effectively no political accountability, having stripped the City Council of all meaningful oversight after it approved the original BRA Plans. The BRA serves only the Mayor, who appoints the director and board members, so checks-and-balance accountability is absent. And its broad powers, per its enabling law, MGL Chapter 121B, provide no explicit right of appeal, so there is essentially no legal recourse. The BRA is, in its own words, "bulletproof in court." The "three-legged stool of democracy" has been whittled to a single leg, the executive.

With the marginalization of the legislative (Council) and judicial branches, the BRA essentially replaces democratic government within the Urban Renewal Plan Areas in matters of land use and taxation. No one, when this regime was created, envisioned that this suspension of democratic government would last indefinitely. It was a radical act of "martial law," in desperate times, and was explicitly limited in both space and duration.

The first extension in 2004 extended all but two of the Plans, which had originated at varying dates, to a common 2015 expiration date (West End and North Station Area have different expiration terms). Then the BRA obtained a one-year extension from DHCD to 2016, without requesting or needing Council permission.

Now the BRA wants another 10 years to wield its "tools (a disarming euphemism for "powers") of Urban Renewal." And the BRA has publicly stated, to justify keeping these powers even in thriving areas, that its mission is no longer to "eliminate blight" but to "create vibrancy" -- indicating that it still seeks perpetual Urban Renewal power. This violates the fundamental condition of these Plans: that they were to expire, and that the end should come at or about 40 years.

The end of Urban Renewal is no loss. Urban Renewal as a strategy for urban revitalization has been universally discredited, and indeed was abandoned by the federal government in 1973 as a political, social, and economic failure.

It is a mistake to credit Urban Renewal with the growing prosperity of the city over time. Boston is successful now for entirely different reasons, relating to public infrastructure investment, demographic shifts, environmental quality protections (including preservation of historic architecture and public space that survived the BRA's program of destruction), intellectual and medical institutions, excellent public education, good consumer markets, diversity in population and industry, etc. Boston has succeeded despite Urban Renewal, not because of it. (Note that the signature "accomplishment" touted by the BRA, Quincy Market, was not an urban renewal project, as architect Jane Thompson has explained in the attached letter.)

The BRA does not "do" development, contrary to popular misconception. When I have asked BRA officials why they are not bringing development to Urban Renewal areas still languishing, the response was: "We have to wait for the market." That's right. The "market," including all the social, political and environmental forces above, determines demand for development; the BRA simply hops on the train, distorts the market forces for the political benefit of the mayor and the financial benefit of his friends, and rakes off whatever financial gain the deals can yield for itself (as a "self-funding" agency).

Thus, we are seeing real estate development and values flourish in many non-Urban Renewal areas, e.g., the Seaport, East Boston, parts of Fenway, Back Bay, Leather District, downtown. And at the same time, some Urban Renewal Areas still struggle, mainly Roxbury; and some non-Urban Renewal areas also struggle, mainly Dorchester and Mattapan. The pattern is linked to racial injustice rather than the BRA's "tools of Urban Renewal" - except to the extent that those tools have been used to intensify the disparity.

The result of creating an agency with potent government powers and no public accountability is, predictably, legalized corruption. Powers that are conferred without accountability, which would protect the people from their government, are implicitly conferred to be abused. The Urban Renewal legal structure as a parallel municipal government deliberately anticipates, invites, allows, and legitimizes abuse of government power by shielding the perpetrators from recourse and retribution.

As a result, the BRA functions as a "Department of Dirty Tricks," empowered, in arcane ways unfathomable for the general public and the press, to remove the political and legal risk of corruption from mayors and the developers they favor. As a former BRA director testified to the City Council a few years ago: "The BRA was created to throw the people off the land and do the dirty things, and keep the mayor's hands clean and protect him from political retribution." He also stated, in public, that "The BRA works for developers." A City attorney explained to me, in earnest: "The BRA makes everything that is illegal, legal." And BRA staff say, when I oppose their mischief: "There's nothing you can do about it." The BRA dissociates transparency from accountability; we can know everything, but there's nothing we can do about it.

Although it was never contemplated by the original Urban Renewal enabling law, the BRA has abused its powers to become the biggest real estate handler, speculator and rentier in the city, often at the direct expense of the taxpayers. As a "self-funding" agency, it has gross conflicts of interest as a regulatory entity. Using its Urban Renewal powers within the Plan areas -- and outside them, as "demonstration projects," which power should also be eliminated -- the BRA routinely takes City property interests and air/subgrade rights (without paying compensation) to sell or lease for its own gain, e.g., Yawkey Way, Winthrop Square Garage, City Hall Plaza, Hayward Place, Ames Building.

The fact is that, contrary to the BRA's repeated assertions to the citizenry and to the City Council, the City of Boston has all the same powers as the BRA - eminent domain (for all the same purposes), blight-finding, and re/zoning. But when the City acts, there is public accountability and legal recourse. That is the only difference.

So there is no reason at all to continue the Urban Renewal Plans -- nor, indeed, the BRA that was formed to create and implement them. Whatever the BRA does that we need done in Urban Renewal Plan areas can and should be done by City agencies - just as it is done in the other 90% of the city.

Would any of you advocate that Urban Renewal should be expanded to cover all of Boston? Would you ask for your neighborhood to be put under the Urban Renewal regime - to become, as one resident put it, "a dark zone where any crazy thing can happen"? The BRA itself has admitted that it will never get to create any more Urban Renewal Plan areas; as they say, there is no "political appetite" for it, to put it mildly. For the same reason, the existing Plans should end.

Without further delay, the Mayor should instruct the BRA to begin immediately to prepare a transition plan, transferring all of the BRA's remaining Urban Renewal-related property and other assets and interests, as well as legal agreements and other documents, to the City of Boston. All this should be completed by the expiration date of April 30, 2016, to avoid legal complications.

Any affordable housing units whose restrictions expire with the Plans should be identified and addressed with Boston's Department of Neighborhood Development. The BRA has already voluntarily closed out several Plans that had affordable housing, so this is not a new issue. Since affordability restrictions pursuant to the City's Executive Order for the Inclusionary Development Program, in use since 2000, are also time-limited to a maximum of 50 years, the City might do well to revisit the general expiring-use issue and reconsider time-limited set-asides as an affordable housing policy.

All City-owned property taken by the BRA will revert back to the City. Urban Renewal land still lying fallow in the BRA's land-bank, exempt from property taxes, will be used for public purposes or returned to the private market, and to the tax rolls, by competitive bidding.

It is time, long past time, to put the unfettered, undemocratic regime of Urban Renewal behind us. All of Boston's neighborhoods deserve the same accountable governance. There is no justification to continue the segregation of downtown neighborhoods from the standard government enjoyed by most of the city. Here in the cradle of democracy, we must have confidence in democratic process. A half-century BRA regime depriving tens of thousands of Bostonians of self-rule has yielded nothing good that could not have been achieved by standard governmental process, and an unimaginable amount of bad that could have been avoided by democratic process.

While we are making this transformation, we should repeal the state legislation, in Ch. 652 of the Acts of 1960, that made the BRA our planning agency, and re-establish a real City planning department. It is unconscionable that a major city aspiring to "world-class" status has not had a city master plan (and few if any genuine neighborhood plans) since 1960. The BRA usurped the powers of the Boston planning board to preclude planning lest it get in the way of any developer's wishes; it will never be a planning agency, and any expectation otherwise is naive. Our housing crisis, and many other deficiencies in the city, are directly related to this half-century planning vacuum. The BRA's capture of the city's planning power has further disempowered our City Council, the legislative body that normally oversees planning and zoning, and further narrowed the legal recourse against spot zoning, across the whole city.

When the municipal legislative body is disabled and the courtroom door is shut, the people are disenfranchised. Is this the Boston we want to see as we "Imagine Boston 2030"?

We cannot go back in time and correct past mistakes. But now we must - literally and legally must - go forward and restore to all of Boston the democratic government processes by which all worthy goals are achievable.

Shirley Kressel is a landscape architect and urban designer, and one of the founders of the Alliance of Boston Neighborhoods. She can be reached at Shirley.Kressel@verizon.net.