Real estate developers like the Simon Properties Group [SPG] that have signed master leases with the Commonwealth of Massachusetts’ Massachusetts Turnpike Authority or Department of Transportation that govern what kind of residential apartment buildings can or cannot be constructed on the Copley Place project’s public land site are usually required by the Attorney General of Massachusetts to abide by the use restrictions that determine what percentage of the rental units in Copley Place project residential apartment buildings “must be available for rent at all times to persons and families of low income.”
According to the March 27, 1985 "Cooperative Housing Area Notice of Sub-Sublease between Urban Investment & Development Co. and Copley Place Cooperative Corporation, "the premises" of The Residences At Copley Place at 16 Harcourt Street, for example, are "subject to the terms of the Declaration of Covenants, Easements and Restrictions dated March 27, 1985," which states in Section 7: Assumption of Certain Obligations:
"7.1. Obligation to Provide Housing.
"Reference is made to the obligation of Urban, pursuant to Schedule C of the Master Lease, to construct `at least 100 units of mixed income housing' and the requirement that `a minimum of 25% of the units must be available for rent at all times to persons and families of low income.' The term `low income' is further defined in the Master Lease.'...
"Urban, for itself and on behalf of the successors in title to the Rental Area, hereby agrees that the Rental Area should be used to provide 26 units of housing available for rent at all times throughout the terms of the Master Lease to persons and families of low income.
"The provisions of this paragraph may not be amended unless such provisions as amended are consistent with the requirements to provide housing set forth in Schedule C. of the Master Lease." (See Bk 11488/074 to 095 in registry of deeds).
Yet although 25% of the 104 residential units of The Residences At Copley Place at 16 Harcourt Street are required, at all times, to be low-income rental units, according to the Citizens’ Housing and Planning Association (C.H.A.P.A.) Mass housing access web site none of the 26 rental units of The Residences At Copley Place at 16 Harcourt Street are currently low-income residential rental units, 3 of the 26 rental units are market rate residential units and 23 of the 26 rental units are moderate-income residential units.
So, ironically, it appears that the real estate developer that now wants to reconstruct the Copley Place project in 2012 to increase the percentage of luxury residential units on the public land (by building a 47-floor skyscraper on top of the Neiman Marcus anchor store) may already be violating the terms of both its Master Lease with the Massachusetts Department of Transportation and Section 7.1 of the March 27, 1985 Declaration of Covenants, Easements and Restrictions governing The Residences at Copley Place apartment building at 16 Harcourt Street.