Stop Simon Properties Group & Neiman Marcus' "Jim Crow" Skyscraper Reconstruction Project at Copley Place in Boston's Back Bay: Part 9

Regarding the BRA's undemocratic decision to approve Simon Properties Group/Copley Place Associates' planned reconstruction of Copley Place--in order to reduce the percentage of low-income residential units in the HUD Urban Development Action Grant [UDAG]-funded Copley Place project to less than 16%-- the following facts should be considered in 2012:

1. As the Boston Globe reported on Dec. 23, 1978, former Massachusetts Gov. Dukakis and the Massachusetts Turnpike Authority signed a long-term lease on Dec. 22, 1978 with Urban and Investment Development Co. [UIDC]--a subsidiary of Aetna Life Insurance and Casualty Co.--in which it was agreed that the Copley Place project would just include "a 150 unit low and moderate income housing development" during the 99 year period in which the lease remained in effect.

2. On Jan. 31, 1980, former Massachusetts Gov. King and the Massachusetts Turnpike Authority signed an "Amended and Restated Lease" with UIDC which states on pages 14 to 15 of its attached Schedule C: "Housing: The housing which Tenant will construct will include at least 100 units of mixed income housing. A minimum of 25% of the units must be available for rent at all times to persons and families of low income."

3. On Apr. 30, 1980, Mayor Kevin White submitted on behalf of the City of Boston a "Copley Place Urban Development Action Grant [UDAG] Application To The U.S. Department of Housing and Urban Development" which stated the following:

"The 1978 EIR did not include an economic impact analysis for Copley Place...In the final months of the year, UIDC, the Turnpike Authority and the Office of State Planning worked to incorporate many community recommendations into a final air rights lease which would permit development on the site. The 40-year Lease Agreement, renewable to 99 years, was signed in the end of December, and included these additional community benefits:...2. Provision for a minimum of 100 units of housing with at least 25% for low income households..."

4. On the "UDAG Form 8: Provision of Housing" document which the City of Boston submitted to HUD in 1980 it states that 25% of the units to be constructed on the Copley Place project site are to be "low and moderate" and "Distribution of units determined by Lease Agreement between UIDC and Massachusetts Turnpike Authority."

5. In their Aug. 11, 1980 "Response By The City of Boston To An Administrative Complaint Submitted By Greater Boston Legal Services To HUD Concerning The Copley Place Urban Development Action Grant," City of Boston attorneys stated:

"From the CRC review process has come significant design change and affirmative action commitments. These include the following, many of which have been incorporated into the final air-rights lease between UIDC and the Massachusetts Turnpike Authority...3. Provision for a minimum of 100 units of housing, with at least 25% for low-income households.

"With regard to the housing to be constructed as part of Copley Place, there is little question that it will further fair housing goals...For the record it should be noted that there will be at least 100 units with 25% designated for low-income households. This provision was incorporated into the Air Rights Lease through the efforts of the Citizen's Review Committee. In conformance with Federal guidelines, the developer will submit an Affirmative Fair Housing Marketing Plan. The Mayor's Office of Fair Housing will provide technical assistance to the developer in designing and implementing the Affirmative Fair Housing Marketing Plan...

"...The complainant fails to acknowledge the significant benefits to low-and moderate-income persons and minorities which were negotiated through the CRC process as well as those incoporated by the City into the UDAG application. These are mentioned in at least three separate locations in the application.

"In addition to the permanent and construction jobs agreement cited in Part V, the Copley Place project has provisions for a minimum of 100 units with 25% reserved for low income households..."

6. The Aug. 31, 1982 sub-lease between UIDC and UIDC of Massachusetts states the following in Section 6:12 on page 17: "Regulations: Affirmative Action. Urban Investment and Development Co. supports the Affirmative Action and Resident Preferences set forth in Attachment C of Boston's Urban Development Action Grant Application for Copley Place..."

7. Section 11.6 of the January 31, 1980 "Amended and Restated Lease" with UIDC of the Massachusetts Turnpike Authority indicates on page 39 that any reconstruction of the Copley Place project is "subject" to "the use restrictions of Section 6:12" regarding affirmative action in the allocation of both Copley Place project jobs and Copley Place project residential housing units.

8. In his Nov. 15, 2011 memorandum to William Tuttle, Deputy Director and Robin Blatt-Eisengat of the Massachusetts Department of Transportation and Office of Real Estate and Asset Development, Andrew Royce of Sherin and Lodgen LLP notes that "after the first 15 years, Tenant may" only "construct additional improvements subject to...non-discrimination and affirmative action requirements;" and that "Schedule C, entitled HOUSING, states, in part `The housing which Tenant will construct will include at least 100 units of mixed income housing' and `A minimum of 25% of the units must be available for rent at all times to persons and families of low-income.'

Given these facts, Simon Properties/Copley Place Associates would appear to be violating the affirmative action use restrictions of the 99-year lease between the Massachusetts Turnpike Authority and the Copley Place project developer, as well as the community benefit terms and community benefit intentions of the City of Boston's Urban Development Action Grant application, if its reconstruction of Copley Place decreases the percentage of Copley Place project low-income residential units below 16% between 2012 and 2077.

Stop Simon Properties Group & Neiman Marcus' "Jim Crow" Skyscraper Reconstruction Project at Copley Place in Boston's Back Bay: Part 8

As noted in the Meeting Summary of the Copley Place Expansion Project CAC for November 9, 2011, Robin Blatt, MassDOT, claimed that the "the original lease as part of the original” Copley Place “project stipulated that 25% of any units built at the time, for that project only, would have to be affordable,” “this was extinguished when the Harcourt Street residences were constructed,” and “moreover, this part of the lease had a sunset clause that expires after 15 years."

But in the April 30, 1980 "Copley Place Urban Development Action Grant Application" that Boston Mayor Kevin White submitted to HUD there's no public mention of the lease allegedly containing a "sunset clause that expires after 15 years" or the 25% low-income units requirement for the whole Copley Place project included in the 99 year lease being "extinguished when the Harcourt Residences" are constructed.

Yet the "Copley Place Urban Development Action Grant Application To The U.S. Department Of Housing And Urban Development" that Mayor Kevin H. White submitted on behalf of the City of Boston on April 30, 1980 does state the following:

“The 1978 EIR did not include an economic impact analysis for Copley Place …In the final months of the year, UIDC [Urban Investment & Development Co.], the Turnpike Authority and the Office of State Planning worked to incorporate many community recommendations into a final air rights lease which would permit development on the site. The 40-year Lease Agreement, renewable to 99 years, was signed in the end of December, and included these additional community benefits:

“…2. Provision for a minimum of 100 units of housing with at least 25% for low income households…

“…UIDC entered into a 99-year agreement with the Massachusetts Turnpike Authority in December, 1978, amended January 1980…”

In addition, page 118 of the City of Boston’s 1980 “Copley Place Urban Development Action Grant Application,” is a copy of a form submitted by the City of Boston, titled “UDAG Form 8: Provision of Housing” which also indicated that 25% of the new units to be constructed are to be “low and moderate;” and states that “Distribution of units determined by Lease Agreement between UIDC and Massachusetts Turnpike Authority…”

And in the “Assurances” section of the City of Boston’s 1980 “Copley Place Urban Development Action Grant Application,” on page 145, the City of Boston also “certifies that it has not knowingly and willfully made or used a document containing any false, fictitious, or fraudulent statement.”

Since one of the "additional community benefits" included as part of the 99 year lease as part of the "many community recommendations" incorporated "into a final air rights lease" is the "at least 25% for low income households" benefit, a reconstruction of the same project that increases the total number of on-site residential units in the Copley Place project in a way that reduces the percentage of low-income household units to below 25% contradicts what the City of Boston stated in its April 30, 1980 UDAG application (although it looks like the proponents of Simon Properties Group and Neiman Marcus’ “Jim Crow” reconstruction/skyscraper are apparently also constructing a legalistic rationalization for scrapping the required 25% low-income units requirement/community benefit on the Copley Place project public land in 2012).

Stop Simon Properties Group & Neiman Marcus' "Jim Crow" Skyscraper Reconstruction Project at Copley Place in Boston's Back Bay: Part 7

Simon Properties Group [SPG]’s attorney, James H. Greene of the Rubin & Rudman corporate law firm, has claimed at recent Boston Redevelopment Authority [BRA] and Boston Zoning Commission hearings that Simon Properties is no longer required to keep 25% of all residential units constructed on the Copley Place Project land affordable to low-income and minority tenants who wish to live in the Back Bay/South End neighborhood of Boston until 2077 (as mandated by the Section 16 housing affirmative action and residential affordability provisions of the 1978 and early 1980s master and amended master leases between the Massachusetts Turnpike Authority and the original developer, the UIDC subsidiary of Aetna Life).

Yet in its August 11, 1980 "Response by the City of Boston to an administrative complaint submitted by Greater Boston Legal Services to HUD Concerning the Copley Place Urban Development Action Group," the City of Boston attorneys, themselves, stated:

"Again, the complainant fails to acknowledge the significant benefits to low-and moderate-income persons and minorities which were negotiated through the CRC process as well as those incorporated by the City into the UDAG application. These are mentioned in at least three separate locations in the application .

“In addition to the permanent and construction jobs agreements cited in Part V, the Copley Place project has provisions for a minimum of 100 units of housing with 25% reserved for low-income households, and provisions for 15,000 to 20,000SF of community retail space with 50% reserved for Community Development Corporations and Minority Business Enterprises at below market rents...."

But, coincidentally. according to the Massachusetts Office of Campaign and Political Finance website data, the proposed Copley Place Reconstruction project's lead architect, Jack Hobbs of Hingham, Massachusetts, gave 5 campaign contributions--totalling $1,100--to Mayor Menino's campaign committee between May 16,2005 and November 4, 2010.

Stop Simon Properties Group & Neiman Marcus' "Jim Crow" Skyscraper Reconstruction Project at Copley Place in Boston's Back Bay: Part 3

The architect for the proposed reconstruction/expansion of Copley Place's Neiman Marcus anchor retail store stated at a late 2007 or early 2008 community meeting at the Boston Public Library that in the early 1980s "we had always planned to build" the luxury condominium skyscraper at the proposed Stuart & Dartmouth Street reconstruction site.

Yet in its misleading early 1980s legal response to the Greater Boston Legal Services' complaint to HUD (about using $18.8 million in federal UDAG funds to build the Copley Place project), City of Boston attorneys gave HUD officials (and, subsequently, U.S. federal court judges) no indication that the Stuart & Dartmouth Street corner site was going to be part of a 52-story luxury high-rise residential skyscraper. As the August 11, 1980 “Response By The City of Boston To An Administrative Complaint Submitted By Greater Boston Legal Services To HUD Concerning the Copley Place Urban Development Action Grant” stated:

“III. UIDC Does Require UDAG Funds to Construct Copley Place

“A UDAG grant…has been determined to be warranted by the Boston Redevelopment Authority's review of the Copley Place project…

“Copley Place Will Not Have A Negative Impact On the Special Problems of Low- and Moderate-Income and Minority People

“The overall impact of Copley Place will be positive through the provision of…housing for low- and moderate-income people…

“The City also has rent control and condominium conversion ordinances which will help to mitigate the effect of market forces on low- and moderate-income tenants.

“The City of Boston has prepared a detailed response to each point raised in the Administrative Complaint….Copley Place is a project by which Federal funds will leverage substantial private investment to the direct and indirect benefit of low- and moderate-income people, especially members of minority groups. Under these circumstance, HUD will best fulfill its mandate by approving the City's application for UDAG funding. Copley Place deserves HUD's support.

“The Greater Boston Legal Services has filed an Administrative Complaint with the Department of Housing and Urban Development challenging the City of Boston's application for Federal assistance under the Urban Development Action Grant (UDAG) program….

“Copley Place deserves HUD's support. In fact, as documented in the UDAG application, it is only with HUD's support that Copley Place is feasible….

“With regard to the remaining allegations the City stands firm to its position that the developers of Copley Place require an Action Grant…to undertake this project. The grant request has been carefully analyzed by the BRA and its consultants. This analysis has revealed that the project's cost estimates and income projections are reasonable and that,based on these estimates , the project would not reach a fair level of return without such a UDAG investment…“

In conclusion, Copley Place not only meets but surpasses all of HUD's selection criteria. The funding of this UDAG is in keeping with the intent of the program and represents significant achievements in the area of affirmative action…An objective evaluation of this project will demonstrate conclusively that Copley Place should receive UDAG funding.

“Therefore, in light of the evidence presented herein and in the UDAG application, the City of Boston requests that HUD reject this administrative complaint and fund the Copley Place UDAG. ..

“UIDC DOES REQUIRE UDAG FUNDS TO CONSTRUCT COPLEY PLACE

“…The developer was exploring sources for public funding as early as the spring of 1978. In a document distributed to the City and State in October, 1978, the developer enumerated approximately $22 million in project site premium costs and stated that they were requesting public funding to defray much of this cost. In addition, the Air-Rights Lease signed December, 1978 between UIDC and the Massachusetts Turnpike Authority makes direct reference to UDAG and other public funding assistance. (Please see Air- Rights Lease, Section 15.13, Certain Governmental Assistance)….

“A UDAG grant…has been determined to be warranted by the Boston Redevelopment Authority's review of the Copley Place project.

“6. Landscaping

“Some of the development site will be landscaped open space dedicated to public pedestrian circulation and to the visual enhancement of the neighborhood. These areas include…the plaza area near the corner of Dartmouth and Stuart Streets…At the Dartmouth/Stuart entrance to the retail center the public mall and plaza entrance will be constructed over the Turnpike deck. This entrance is designed to provide a park-like extension of Copley Square and a gateway to Copley Place …

“10. Dartmouth/Stuart Entrance to Copley Place

“At the Dartmouth/Stuart Street entrance to the proposed retail development, the Turnpike will be decked and a public plaza and mall entrance will be constructed. This entrance will provide a spatial extension of Copley Square and act as a major focal point. The public plaza and mall entrance will cover approximately 21,800 square feet.

“These activities add greatly to the construction costs of the development without adding directly to the cash flow of the project. To confirm its analysis, the BRA retained an independent consultant which has advised it that the developer's costs estimate and income projections are reasonable and that, based on these estimate, the project would not reach a fair level of return without such a UDAG investment. While the project might be able to absorb approximately $9 million of the special site costs, $18.8 million in costs cannot be supported by project income....

“The Boston Redevelopment Authority will be the recipient of the UDAG funds from the City. The BRA will administer the grant and loan portions of the UDAG…

“It is respectfully submitted that contrary to the allegations contained in Part III of the Administrative Complainant, that UDAG funds are in fact necessary to the construction of Copley Place and construction of Copley Place will further the objectives of the UDAG program by…creating opportunities for low- and moderate-income people and minorities …

“C. APPROVAL OF THE COPLEY PLACE UDAG PROPOSAL WOULD NOT VIOLATE TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 …

“Shadows

“As for the claim that the program will have an adverse impact on the neighborhood environment by virture of its shadows , it is to be noted that the project contains low- and mid-rise buildings and two 30-story hotel towers . Furthermore , the project does not dominate Copley Square as suggested in the complaint. Instead, it abuts only one corner of the Square and the podium height of the Western International Hotel is harmonious with the height of the Boston Public Library and the Copley Plaza Hotel.

“During the winter months the two hotel towers will cast shadows upon Copley Square as the sun sweeps low on the southern horizon. The brief period of time when the shadow is solely the result of shadows cast from Copley Place will be minimal compared to the existing shadow and duration of shadow cast by the John Haincock Tower and the Prudential Center…

“During the summer, no shadows will be cast by the Copley Place Project on Copley Square or Trinity Church. This coincides with the period of highest use of the square. The complainant implies that "a tremendous volume of casual pedestrian traffic, many of whom came there solely to sit in the sun" will be denied sun by winter shadows cast by Copley Place. It would be more accurate to state that the casual pedestrian in the winter would find some additional shadow during the afternoon…

“CONCLUSION: HUD CAN AND SHOULD GRANT A UDAG FOR COPLEY PLACE …

“Copley Place will have impressive benefits for the City's low- and moderate- income citizens…The project will provide…mixed-income housing… Copley Place deserves HUD's support….”

Stop Simon Properties Group & Neiman Marcus' "Jim Crow" Skyscraper Reconstruction Project at Copley Place in Boston's Back Bay: Part 2

“In direct contradiction to Federal regulations, Copley Place and its UDAG will not provide an opportunity for low and moderate income persons and minorities to reside in the project area after its completion…

“It is impossible to reconcile the Copley Place Project as consistent with the concerns of the Congress as expressed in the UDAG statute and the regulations promulgated by HUD…” (from Greater Boston Legal Services’June 5, 1980 letter to local HUD Director, which complained about use of UDAG funds to develop site of Simon Properties Group & Neiman Marcus’ proposed “Jim Crow” Skyscraper of luxury residential units at Copley Place)

Following is the text of Judge Caffrey’s August 17, 1981 memorandum in the Munoz-Mendoza v. Pierce court case regarding the use of $18.8 million in federal funds from HUD to construct the Copley Place project:

August 17, 1981 court decision
Viviana MUNOZ-MENDOZA, Maggie Morris, Arturo Juarbe, Pat Quintana, Marcia Wiley, Bruno Rodriguez, Kam Yun Lee, and The Chinatown Housing and Land Development Task Force, Individually and on Behalf of all others Similarly Situated, et al., Plaintiffs,v.
Samuel R. PIERCE, in his Official Capacity as Secretary, Department of Housing and Urban Development, Robert C. Embry, in his Official Capacity as Assistant Secretary for Community Planning and Development, Marvin Siflinger, in his Official Capacity as Area Manager, Boston Area Office of the Department of Housing and Urban Development, Robert Pacquin, in his Capacity as Area Director of Community Planning and Management in the Boston Area Office, Kevin H. White, in his Capacity as Mayor of the City of Boston, and Robert Ryan, in his Official Capacity as Executive Director of the Boston Redevelopment Authority, Defendants

The opinion of the court was delivered by: CAFFREY

MEMORANDUM

Plaintiffs, seven individuals and an unincorporated organization, the Chinatown Housing and Land Development Task Force, are before the Court challenging federal funding for the development of a project known as " Copley Place ." The plaintiffs, seeking declaratory and injunctive relief, sue the Secretary of the Department of Housing and Urban Development (HUD) and other federal officials, as well as two officials of the City of Boston, claiming that the award by HUD of a $ 18.85 million Urban Development Action Grant (UDAG) was not preceded by adequate planning and will have a discriminatory impact on low-income residents of Boston's South End, in violation of civil rights laws (Title VI, 42 U.S.C. ? 2000d et seq. and Title VIII, 42 U.S.C. ? 3601 et seq.). Cross-motions for summary judgment have been briefed and argued.

Copley Place is a $ 318 million multi-use development which will include a 712-room luxury hotel, a 960-room convention hotel, a retail center, office space, enclosed parking and 100-150 units of housing, 25% of which are to be subsidized. The site for Copley Place is 9.5 acres of vacant land, cleared 16 years ago for construction of the Massachusetts Turnpike extension. There is no presently existing residential housing located anywhere on the 9.5 acre tract. The tract, bordering the South End, Fenway and Back Bay neighborhoods, has remained undeveloped except for several exit ramps and a rail line located in the center of the site. All of the plaintiffs live in neighborhoods close to the project site. The South End is a fully integrated residential area.

In April of 1980 the City of Boston submitted to HUD a UDAG application for Copley Place , and HUD announced preliminary approval of the funding on October 9, 1980. The Chinatown Housing and Land Development Task Force and one other organization filed an administrative complaint with HUD in June 1980 expressing concern over the displacement impact of the project on neighborhood residents. On October 21, 1980 HUD notified the complainants of the project's approval. The City of Boston and HUD signed a formal UDAG contract in the early months of 1981.

I. Threshold Issues

The federal funding at issue was authorized by the Housing and Community Development Act of 1977, and a threshold issue is the application of the civil rights duties of Title VI (42 U.S.C. 2000d et seq.) and Title VIII (42 U.S.C. 3601 et seq.), i. e. of non-discrimination and the promotion of fair housing, to UDAG grants and applicants under that statute, 42 U.S.C. 5318. Fairly recent amendments to the UDAG regulations, effective on November 11, 1980, leave no doubt as to the relationship between civil rights laws and Urban Development Action Grants. All applicants for grants must certify, 24 C.F.R. 570.458(c)(16)(xiv)(A) and (B), that their UDAG projects comply with Title VI of the Civil Rights Act of 1964 and Title VIII of the Civil Rights Act of 1968. The new regulations, 24 C.F.R. 570.458(c)(12), also specify that information about involuntary displacement of low-income minorities should be submitted.

Although the regulations in effect at the time of Copley Place UDAG approval were not as explicit, I rule that the Copley Place UDAG was, and is, subject to the civil rights obligations of Title VI and Title VIII. "It is clear that anti-discrimination statutes have a significant impact on all federal financial assistance programs." NAACP v. Wilmington Medical Center , 426 F. Supp. 919, 923 (D.Del.1977)….

The primary relief sought in the instant case, however, is further HUD study of Copley Place displacement impact, and complete relief cannot be awarded without HUD's presence in the suit. Indeed the gravamen of the complaint is that action against the City alone is not sufficient. Plaintiffs claim that representations concerning Copley Place impact presented by the City of Boston , as the interested potential recipient, should not determine the federal agency's own study of the civil rights aspects of the grant.

This is not a case of claimed past discriminatory practice raising the spectre of terminating financial assistance but an action designed to prevent such a practice and to ensure that HUD follows certain procedures...

There are two interrelated claims in this case, one alleges a procedural injury and the other alleges a substantive harm. The plaintiffs assert that prior to the UDAG award HUD failed to study the indirect displacement that low-income residents living in the impact area would suffer as a result of the Copley Place project. They trace this alleged planning failure directly to the conduct of the federal officials responsible for approving the UDAG, and they seek a procedural remedy which would mandate the completion of such a displacement study by HUD. The alleged substantive injury is that the Copley Place UDAG discriminates against low-income minorities residing in abutting neighborhoods by providing critical financial aid for the Copley Place development, which in turn will work to indirectly displace the nearby plaintiffs by triggering increased rents, condominium conversions and threatened evictions. Plaintiffs seek relief which would mitigate the alleged indirect discriminatory displacement impact.

I rule, on the basis of the limited record presently before the Court and for the purpose of these motions only, that plaintiffs' have shown sufficient standing to withstand defendants' motion for summary judgment...

The plaintiffs have the burden of demonstrating that the increased rents and threatened evictions are "fairly traceable" to the UDAG funding of Copley Place, and that court-ordered relief can redress the harm. It is arguable that Copley Place, a $ 318 million project, would have been built even without the $ 18.85 million UDAG, and that the South End's ongoing gentrification and displacement of low-income minorities would have continued to accelerate at a significant pace even without any Copley Place project whatsoever. Nevertheless, I am satisfied on the current record that the plaintiffs have sufficiently personalized issues at stake to further litigate the legal claims presently before the Court...

These plaintiffs say they face increased rents and threatened evictions. They live in the claimed impact area. Their personal stake in displacement allows them to raise the issue with HUD and City officials.

In attacking HUD's study of the civil rights implications of Copley Place, plaintiffs assert that part of HUD's failure lay in its unwillingness to review the City of Boston's general eligibility for UDAG awards...

II. Title VIII and Title VI Claims

Title VIII, particularly 42 U.S.C. 3608(d)(5), places an affirmative duty on HUD to promote fair housing opportunities. That duty extends to prospective situations as well as to past or continuing practices in the private and public sector. The Second Circuit held in Otero v. New York City Housing Authority, 484 F.2d 1122, 1134 (2d Cir. 1973), that 42 U.S.C. 3608(d) (5) "requires that consideration be given to the impact" of a proposed project "on the racial concentration" in the impact area. Accord, Marin City Council v. Marin City Redevelopment Authority, 416 F. Supp. 700 (N.D.Cal.1975).

Title VI, 42 U.S.C. 2000d et seq., also imposes a duty on HUD, less affirmative but broader ranging than that under Title VIII, designed to eliminate racial discrimination in all federally assisted programs or activities. 24 C.F.R. 1.7(c) states that HUD "shall make a prompt investigation whenever a compliance review, report, complaint, or any other information indicates a possible failure to comply" with Title VI.

The issue in this case is whether HUD, in conjunction with the City of Boston , met or failed to meet its duties under Title VI and Title VIII. HUD satisfied its Title VIII duty to promote fair housing if it used an "institutionalized method" to reach an "informed decision," based on "the relevant racial and socio-economic information." Shannon v. HUD, 436 F.2d 809, 821 (3rd Cir. 1970). It met its Title VI responsibilities if it conducted the investigation outlined in 24 C.F.R. 1.7(c). NAACP v. Wilmington Medical Center , 426 F. Supp. 919, 924-5 (D.Del.1977). ..

I find, on the basis of a limited record, that the nature and extent of HUD's civil rights inquiries concerning the impact of the Copley Place project on low-income minority residents of the neighboring areas presents a genuine issue of material fact.

The administrative record reveals the following. In early 1980 Boston submitted a UDAG application, including assurances of Title VI and Title VIII compliance. Several preliminary observations by HUD officials attest to their awareness of displacement concerns (Record, 189; Record, 195). An administrative complaint was filed by two housing organizations on June 5, 1980, raising civil rights issues concerning the project's indirect displacement. The Deputy Assistant Secretary for Fair Housing and Equal Opportunity was notified of the administrative complaint on June 11, 1980. The City of Boston responded to the complaint on August 25, 1980, and in the meantime the project's developer had forwarded a housing impact study, completed in late 1979 for the City, to HUD (Record, 358).

HUD officials met with the administrative complainants on September 2, 1980, but never responded to the complainants' written request for findings. The most revealing document in the record is a letter dated September 19, 1980, from the Director of the Area's Division of Fair Housing and Equal Opportunity to the Area Manager in charge of Copley Place UDAG review. (Record, 710). It notes that HUD is "extremely concerned about the involuntary displacement of minorities," but observes that no HUD guidelines exist on the issue and that indirect displacement is hard to measure in any event. In the absence of "hard evidence" the report recommends that "the project not be stopped based on civil rights considerations." The last sentence of the letter declares that "it does not appear that either Title VI or Title VIII will be violated." (Record, 711). No supporting material or explanation is offered.

HUD's record, granting plaintiffs all inferences, is one of reaction and bureaucratic feedback, not of initiative and study. On September 24, 1980, HUD's Area Manager merely reiterated the concerns about the project's "potential negative impact" on low income households that he had voiced in a June 3 letter (Compare Record, 713-716 and Record, 195). Nothing more substantive emerges from the present record. On October 9, 1980, a press release announced the UDAG award…The record as it now appears does not clearly establish that HUD had the "relevant racial and socio-economic information" at the time of UDAG approval…

This Court, on the present record, will not rule that defendants did all that was legally necessary to satisfy Title VI concerns….

III. Arbitrary and Capricious Agency Action

The third and final claim of plaintiffs is that HUD's funding of Copley Place was arbitrary and capricious agency action, subject to review and relief under 5 U.S.C. 706(2)(a). The ultimate standard of review under this statute is a narrow one, Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971), and precludes judicial review on a de novo or even a substantial evidence basis. King v. Harris, 464 F. Supp. 827 (E.D.N.Y.1979).
HUD must establish that its decision on Copley Place was based on all relevant information and included the appropriate inquiries. Given the ambiguity of the current record, and the existence of the independent claims, the Court reserves on this claim seeking judicial review. NAACP v. Medical Center, Inc., 599 F.2d 1247, 1259 n.49 (3rd Cir. 1979).

Simon Properties' Boston Industrial Financing Authority/Rubin & Rudman Law Firm Connection

In apparent violation of previous 99-year lease, amended lease, sub-lease and sub-sub-lease agreements of the late 1970s and early 1980s between the Massachusetts Turnpike Authority and Aetna's UIDC subsidiaries (as well as the April 1980 City of Boston's Urban Development Action Grant application to HUD) which restrict what kind of residential units can be constructed on the Copley Place project's public land, the Boston Redevelopment Authority recently undemocratically approved the Simon Properties Group/Copley Associates LLP' proposal for reconstructing the Copley Place project.

Although 25 percent of all residential units constructed on the Copley Place project site, at all times, are apparently required to be affordable to low-income or low-income/moderate-income tenants until 2077, Simon Properties wants to now reduce the percentage of low-income or low-income/moderate-income residential units on the Copley Place project site to below 25 percent--by adding a 47-story skyscraper of unaffordable, luxury apartment residential units near the corner of Stuart and Dartmouth Streets in Boston's Back Bay/South End neighborhood.

Coincidentally, the Rubin and Rudman LLP lawyer that represented Simon Properties' private, special corporate interests at the public Boston Redevelopment Authority hearing which undemocratically approved Simon Properties' proposal to reconstruct the Copley Place project--James H. Greene--has also apparently been the "Chairman of the Boston Industrial Financing Authority" in recent years, according to the Rubin and Rudman corporate law firm website.

Also, coincidentally, the Rubin and Rudman lawyer and "Chairman of the Boston Industrial Financing Authority" whose Simon Properties' client was successful in getting the Boston Redevelopment Authority to approve Simon Properties' proposed Neiman Marcus Tower/Wintergarden skyscraper building project in the Back Bay/South End has apparently made over 75 individual contributions to the campaign committees of various local and state politicians (totalling over $19,500) since 2002--including 9 individual campaign contributions (totalling $4,000) to the campaign committee of Boston Mayor Thomas Menino. According to the Massachusetts Office of Campaign and Political Finance [MA OCPF] website, for example, between April 13, 2011 and October 15, 2011 Simon Properties' Rubin and Rudman Attorney Greene gave 2 campaign contributions (totalling $500) to Boston Mayor Menino's campaign committee and 13 additional campaign contributions (totalling $2,550) to the campaign committees of other local or state politicians in Massachusetts.

One additional reason the affirmative action and community benefit housing provisions of the Copley Place project's 99-year lease and UDAG application that apparently require 25 percent of all residential units constructed on Copley Place land to be affordable at all times to low-income or low-income/moderate-income families or persons should not be apparently violated now by Simon Properties, is that the need for new low-income residential housing units for Boston residents has increased, not decreased, since the Copley Place project was originally built in the 1980s. As the 2010 Greater Boston Housing Report Card study of Northeastern University's Kitty & Michael Dukakis Center for Urban & Regional Policy observed:

"...Despite more than two years of a weakening economy and falling home prices, rents remained stubbornly high. We now have additional data for all of 2009 and the first half of 2010 on rents in Greater Boston, and they suggest that our original concern was not misplaced...Rents have actually increased since last year, not softened...

"...Between the second quarter of 2005 and the third quarter of 2008, average asking rents in Greater Boston rose by $186 (12 percent)...

"...At the end of 2009, the average asking rent in Greater Boston had dropped about $50 from its 2008 peak...By the second quarter of 2010, though, rents began rising again...Whatever downward correction in rents took place was rather short-lived...

"According to REIS.com, in the second quarter of 2010, only four metropolitan regions--New York City; Westchester County, New York; San Francisco; and Fairfield County, Connecticut--had higher average rents than Boston...

"...There is little reason to believe that the historically high rents of the past several years will come down anytime soon..."

But since low-income tenants in Boston apparently don't contribute as much money to local and state politicians as lawyers for out-of-state-based real estate developers like Simon Properties, the Menino Administration's Boston Redevelopment Authority apparently sees nothing either illegal or unethical about allowing Simon Properties to build a skyscraper of over 300 more unaffordable, luxury residential units on the public land upon which the Copley Place project stands.

Simon Properties' Goodwin Procter Law Firm Connection

As Goodwin Procter’s website notes, besides being a member of the Brookline Massachusetts Zoning Board of Appeals in recent years, “Larry Kaplan, a partner in the firm’s Real Estate Capital Markets Group, represents institutions, owners, developers and tenants during the permitting, acquisition and financing process;” and “also has served as real estate counsel to the Massachusetts Health and Educational Facilities Authority” (which is currently part of MassDevelopment, the state finance and development authority on whose board of directors Boston Zoning Commission member Jay Hurley, coincidentally, also sits).

So, not surprisingly, “Goodwin’s real estate deal team included partner Lawrence Kaplan” when “a team of Goodwin Procter attorneys served as advisors to Copley Place Associates, LLC, an affiliate of Goodwin’s client Simon Properties Group, on the negotiation of an air rights lease” that was signed by Massachusetts Gov. Patrick on June 20, 2011 (according to a June 28, 2011 Goodwin Procter press release)—in an apparent attempt to provide a legal cover for Simon Properties’ proposed Copley Place Reconstruction/Luxury Skyscraper building project in the Back Bay/South End section of Boston.

In its June 28, 2011 press release, Kaplan’s corporate law firm claims that “the new agreement supersedes the client’s existing air rights lease for Copley Place which was entered into in the late 1970s”( that apparently required 25% of all residential units constructed on the Copley Place project site between 1978 and 2077 to be affordable at all times to low-income or low-income/moderate-income households; and apparently required any new construction after 15 years on a reconstructed Copley Place project site to be subject to the affirmative action and community benefit provisions and use restrictions regarding jobs and housing that were incorporated into the late 1970s lease).

Yet according to the June 20, 2011 “Notice of Lease Agreement” which Gov. Patrick signed “this Notice of Lease …does not purport to include all of the terms thereof, and is not intended or deemed to amend, supplement, or vary any of the terms and provisions of the lease;” and “in the event of any conflict or inconsistency between the Lease and this Notice of Lease, the provisions of the Lease shall govern and control.”

Besides having sat on Brookline’s Zoning Board of Appeals in recent years and having been the Massachusetts Health and Educational Facilities Authority’s real estate counsel in the past, Goodwin Procter “real estate deal team” member Kaplan also gave Boston Mayor Menino’s campaign committee two contributions, totaling $1,000, between 2005 and 2008, according to data posted on the Massachusetts Office of Campaign and Political Finance [MA OCPF] website.

In addition, between 2005 and late 2011, nearly $40,000 in campaign contributions were made to the campaign committees of either Boston Mayor Menino, Massachusetts Gov. Patrick or Massachusetts Attorney General Coakley by partners or employees of the Goodwin Procter law firm that is now representing the private, special interests of the Indianapolis-based Simon Properties Group, in its Copley Place Reconstruction project “real estate deal.” Between 2005 and late 2011, for example, Mayor Menino’s campaign committee was given $12,600, Gov. Patrick’s campaign committee was given $13,600 and Attorney General Coakley’s campaign committee was given $13,700 by Goodwin Procter partners or employees—nearly all of whom do not live in either the Back Bay or South End neighborhoods into which Simon Properties wishes to push its 47-story “Neiman Marcus Tower” luxury skyscraper construction project.