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Air-rights lease at Copley roils critics

Public review is undercut, they say

By Casey Ross
Globe Staff / July 19, 2011

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The plan to enlarge Copley Place with a 47-story tower that would be Boston’s largest residential building has again thrust the complex into controversy, with two lawmakers accusing Mayor Thomas M. Menino and Governor Deval Patrick’s administration of steamrolling the public review of the massive project.

State representatives Martha Walz and Byron Rushing, whose districts abut or include the project site, contend the Patrick administration recently violated a 1997 agreement by signing a revised lease with the developer before city and state regulators could review traffic, parking, and other issues.

Walz said Patrick’s top trans portation aide, Jeffrey B. Mullan, told her during a recent phone conversation that the administration was under pressure to sign the lease from Menino, who backs expanding Copley Place.

The lease gives Simon Property Group air rights over the Massachusetts Turnpike, where it wants to build a complex that would include 318 condominiums, a larger Neiman Marcus store, and a glass-enclosed garden with restaurants and shops.

In one section of the lease, the Massachusetts Transportation Department, acting as landlord, appears to sign off on the details of the developer’s plan for the tower: “Landlord has herewith given its approval to the proposed development plan for the project which is attached hereto as Exhibit H, which provides a clear and detailed written and, to the extent applicable, graphic description’’ of the size and design of the project, as well as saying how to mitigate its impact on the surrounding area.

Simon’s tower would sit across from the Massachusetts Bay Transportation Authority’s Back Bay Station, at the intersection of the Back Bay and South End. Residents of those neighborhoods have raised concerns about the wind and shadows thrown off by the skyscrapers in the area.

A transportation executive said the lease, by itself, does not grant the right to build, because the project still needs approvals from state environmental regulators and the Boston Redevelopment Authority.

“The lease amendments we made do not interfere in any way with the review process that’s in place,’’ said Peter O’Connor, head of real estate for the Massachusetts Department of Transportation. “All we are saying in the lease is that if you get permits from the city and [environmental regulators] we will not object, as landlord, if you build it on this land.’’

Walz and Rushing, however, said the administration’s action makes such approvals a fait accompli and appears to violate the 1997 city-state agreement concerning air rights projects over the turnpike. They cited a provision that the state “shall not lease any air rights for a project except in accordance with the BRA’s certification.’’

“It’s disappointing to see the mayor and the governor undercut the community and regulatory review processes,’’ said Walz, a Boston Democrat. “They’ve made up their minds, which causes me and others to question the legitimacy of these reviews.’’

Menino denied he is trying to muscle the project through.

“We’ve already had 11 community meetings, and the process is not finished,’’ he said. “I’m interested in this project because it means new jobs and revenue for the city.’’

Asked whether he pressured Mullan to sign the lease, Menino said: “You should ask Jeff Mullan that. He’ll say this is an important project to him and the city.’’

Mullan, who is secretary of the state Department of Transportation, denied Menino pressured him, though he acknowledged having multiple discussions with members of Menino’s administration.

“There’s no question the city supports it, but at no time did I feel pressured to advance it,’’ said Mullan, who said last week that he will resign at year’s end, citing personal issues.

“I spoke to city officials because I did not want to advance a project the city didn’t support,“ Mullan said. “These dialogues happen all the time, all day long.’’

Rushing said he does not know the extent of Menino’s involvement in the lease discussions, but he said the signed agreement appears to jump ahead of the community process by offering state support for a project still under discussion.

“I think the lease should reflect the decisions made about what should be built and how it should be built,’’ Rushing said. “We have not heard a reason why they did this.’’

The original air-rights lease, signed during Copley Place’s development during the 1970s, did not include plans for condominiums. O’Connor said the state agreed to revise the document to allow for that use and to address lingering maintenance issues associated with turnpike tunnels underneath the complex.

The revision requires Simon to pay $2.5 million to reimburse the state for prior tunnel maintenance, and the company has committed itself to a $1.25 million escrow account to fund future repairs. Simon will also pay the state $1 million, along with 2 percent of the proceeds from condominiums sold.

O’Connor said the issues needed to be dealt with up front so Simon could go through the lengthy and expensive review process without the threat of a state roadblock.

Controversy is not new for Copley Place. Built by Chicago-based Urban Investment and Development Co., the Back Bay complex was at the time the largest mixed-use project in the country. It was criticized by neighbors and some public officials for the way its hulking buildings towered over town houses in the South End. The $500 million project eventually included Westin and Marriott hotels, four office buildings, a shopping mall, 100 apartments, and a 1,400-space parking garage.

The Simon building, designed by Elkus Manfredi Architects, would add 755,000 square feet to the complex. Simon Property Group proposed the project in June 2008, but put it on hold when the recession dried up funding for big projects.

The Indianapolis company resurrected the project in the spring; its local consultant, R.F. Walsh Collaborative Partners, has been meeting with residents and city officials about the design of the complex and its expected impact on traffic and pedestrians and other matters.

In a prepared statement, Simon executive Les Morris said: “Boston is at the forefront of the nation’s economic recovery and Simon wants to fulfill its vision for Copley Place and contribute to the economic vitality of the Back Bay and South End.’’

While Walz and Rushing have raised concerns, others involved in the review said the lease would not interfere with their ability to suggest changes.

“They explained [the lease] to us in detail, and I don’t think our role is diminished,’’ said David Berarducci, a member of a city-appointed committee reviewing the project. “There are a lot of things to pay attention to here, and we will continue to do that.’’

Casey Ross can be reached at cross@globe.com.


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