Back Bay Tower

Stop Simon Properties Group and Neiman Marcus' "Jim Crow" Skyscraper Reconstruction Project at Copley Place in Boston's Back Bay: Part 13

Only 13 percent of the 542 additional residential units that the Simon Properties Group is now proposing to construct (within a newly-built 52-story skyscraper) on the Copley Place land in Boston's Back Bay neighborhood, that it leases from the Massachusetts Department of Transportation, would be "affordable" rental units.

Yet--like the premises of the existing apartment building on Copley Place project land at 16 Harcourt Street--the premises of the Simon Properties Group's proposed additional residential units at the Copley Place project are subject to "the requirement that a minimum of 25 percent of the units must be available for rent at all times to persons and families of low income" pursuant to "Schedule C of the Master Lease;" and "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 Suffolk County Registry of Deeds).

So unless 135 of the additional residential units that the Simon Properties Group is proposing to add in its reconstruction of the Copley Place project are to be "available for rent at all times to persons and families of low income" pursuant to "Schedule C of its Master Lease" with the Massachusetts Department of Transportation, the Simon Properties Group's Copley Place Reconstruction Project would still apparently be in legal violation of the terms and land use restrictions of its Master Lease, and should, thereforre, not be approved by the City of Boston.

As Andrew Warner--the then-director of sales of United Development Consulting Corporation, the former management agency for The Residences of Copley Place--indicated in a 1984 Christian Science Monitor article, the existing land use restrictions on Copley Place project land commits any real estate developer "to provide 25 percent of any housing built on Copley Place to low- and moderate-income senior citizens and families."
     

Stop Simon Properties Group's & Neiman Marcus' ' "Jim Crow" Skyscraper Project at Copley Place in Boston's Back Bay: Part 11 (Mel King's Open Letter)

In November 2011, former Massachusetts State Representative and 1979/1983 Boston Mayoral Candidate Mel King explained why the Boston Redevelopment Authority [BRA], the Democratic Patrick Administration and the Democratic Menino Administration should not allow Simon Properties Group [SPG] to reconstruct and expand the Copley Place project (by building a 47-story skyscraper of mostly luxury residential units and an enclosed “winter garden” on the Copley Place project land in 2012) in the following “Open Letter to the Boston Redevelopment Authority, Governor Deval Patrick and Mayor Thomas Menino”:

“To the Boston Redevelopment Authority, the Governor and the Mayor

“This is a request that you not be guilty of promoting a segregated housing program here at Copley Place . The Copley Expansion Project that is under consideration under your leadership should not be allowed to go forward. There are many reasons that have been raised by way of serious objections from the local community to the plans for The Copley Expansion. For me, the most crucial one, the one I believe causes the most harm, is the acceptance of a proposal that will; A) Allow segregated housing on public land and B) Create conditions that will further exacerbate the housing problems and the ability to exist in this neighborhood by folks of color and persons of lower income. The economic and social diversity of our community is threatened.

“I have spent a large part of my life dealing with segregation. What is the most egregious and one of the most serious aspects of this proposal, is how many people turn a blind eye to the kind of impact that projects based on segregation like this will have on individuals. I have heard the voices of the youth who clearly see that they are being pushed out of the South End. They understand far too clearly that the policies and practice are geared to the study by the Metropolitan Area Planning Council that says that in the next 20 years over thirty percent of the people who are living in Boston whose incomes are low will be living at least 25 miles from the center of the city. So when you understand that and you attend meetings where there is an indifference to these issues, it reminds me of the signs that I saw when I went South to college. So it is not a question for me of whether there will be 25 percent of the housing as affordable or not. I start with the fact that this is a project or process that one cannot trust.

“One of the things that we hear about The Copley Expansion Project is that they will create some jobs and therefore the scars that it places on people of color do not matter. This is part of the reason why it took so long to end the segregated systems both here and in the South. Yes, there were some people who stood because they understand injustice. The fact of the matter is that if the people themselves who were affected had not stood up and marched and did not face the cattle prods and the fire hoses and sometimes death; things to whatever extent would have not changed. I feel, and see, a similar thing that is necessary here. It is interesting that in the shadow of the Expansion Project there are folks who are involved in Occupations as a way to confront and expose the same kind of behavior which put profits before people’s humanity and dignity.

“You, as elected officials, and as members of the Boston Redevelopment Authority have a moral of responsibility and we do not want you to get sucked in with a policy that is geared to dehumanize. You have a chance to establish a policy of inclusion where all the tribes are welcome and all the gifts are shared. It’s time for you to step up and provide leadership based on justice. The issue of jobs and money is what allowed slavery to exist. Do not become advocates for a system that uses the public land to put greed before a person’s dignity, a community’s dignity and spiritual and mental health. Make it known that projects like this are not welcome.

“Mel King”

Stop Simon Properties Group & Neiman Marcus' "Jim Crow" Skyscraper Reconstruction Project at Copley Place in Boston's Back Bay: Part 10

Simon Properties Group (SPG) now wants to reconstruct the Copley Place project in 2012 by adding a 47-story skyscraper of 320 mostly luxury residential units that will reduce the percentage of low-income residential units on the Copley Place project’s public land to below 16 percent.

Yet the South End and Back Bay neighborhood community benefit that was incorporated into the April 30, 1980 UDAG application and the 1978/80/82 lease/amended lease/sub-lease for the Copley Place Project requires 25% of the residential units on the Copley Place public land to be affordable to low-income and minority tenants. And a Boston Globe article of 12/23/78 by Anthony J. Yudis originally described the planned residential portion of the Copley Place project as "a 150-unit low and moderate income housing development." Following is the complete text of the December 23, 1978 Boston Globe article:

"Gov. Michael Dukakis and the Massachustts Turnpike Authority yesterday signed a long-term lease agreement with a Chicago development firm which plans to build a $250 million residential-hotel-shopping center-office-garage complex in Copley square.

"The lease signing with Urban and Investment Development Co. (UIDC) of Chicago came after more than a year of negotiations by the Chicago firm, the state and representatives of surrounding neighborhoods and organizations.

"Gov. Dukakis, before the signing ceremony, termed the project, Copley Place, `a national model for successful citizens participation in the planning and design of large scale urban projects.'

"The project plans, which now will be going through reviews and negotiations with the city of Boston, would be built over the Massachusetts Turnpike ramp network, a 9.5 acre open site bounded by Dartmouth and Harcourt streets, the Southwest Corridor abutting the South End, and Huntington avenue.

"The commitment calls for an 868-room Western International convention-oriented hotel; two and possibly three major department stores on a five level plan; some 400,000 square feet of smaller-retail shops on a three-level shopping mall; a 1400 to 1800-car garage; a 150-unit low and moderate income housing development and a 600,000 square foot office building.

"Frank Keefe, director of state planning who coordinated the year-and-a-half planning effort, said the lease signing represented a lot of `firsts.'

"He said they included provisions in the lease that commits the development firm to assure the employment of a minimum of 20 percent minority construction workers with `good faith' effor to exceed that figure.

"Kenneth Himmel, project director and vice president for UIDC--a subsidiary of Aetna Life Insurance and Casualty Co.--estimated the project would provide 1300 to 1400 construction jobs during a three-year period.

"The lease also will require that 50 percent of the permanent jobs will go to Boston residents--50 percent of them women; 30 percent minorities and 17.2 percent residents of the immediate impacted area (including Chinatown, South End, Fenway, South Cove, and Back Bay). Himmel said that 6000 to 6500 permanent jobs would be available, depending if two or three department stores are built.

"Also, the state will commit state rent subsidies for 50 existing houses and families in the South End who might be impacted by rising rents as a result of the new project nearby.

"Keefe, mindful of dissent over the project plans from some organizations and neighborhood groups, despite the citizens' involvement, said every effort has been made to come up with a good plan.

"The project was endorsed by the Back Bay Federation for Community Development comprising representatives from the residential and institutional life of the Back Bay, and the Back Bay Assn. The endorsement was coupled with concerns for further refinement in areas of pedestrian access, environmental issues, scale and size, hotel tower location and continuation of the citizens review process. The latter also was made a part of the lease commitment.

"The Back Bay Neighborhood Assn. issued a separate statement, saying the organization supported a development over the turnpike but `does not support the proposed Copley Place project.'

"The organization objects to the size (3.8 million square feet, compared to 2.8 million square feet for the Park Plaza project in Park Square), traffic impact and air pollution.

"Himmel, asked about the unresolved neighborhood concerns, said: `During the first 9 days (1979) we plan to try to resolve our differences. There are some questions on our own minds and I think the direction we go in would be satisfactory.'

"He said there is a possibility of diminishing the size. He anticipated an agreement would be signed in February or March for the hotel with basic site work beginning during the summer.

"In September, work could start on the hotel, retail, office and housing elements, he said.

"Robert Ryan, head of the BRA, which will now inherit the planning process from the state, said he hopes that problems could be resolved in early 1979.

"Under terms of the Turnpike Authority lease, to run 40 years with renewal to 99 years, the Turnpike Authority would receive annual rent ranging from $140,000 in year one, to $920,000 in the 10th through 15th years, with increases after that determined by a formula based on the inflation rate. From the 30th to the 40th years, the rent would be about $2.7 million and after that year the rent schedule would be renegotiated.

"Mayor Kevin H. White's office issued a statement lauding the state's accomplishment. He said his administration is sure that the several remaining steps will be resolved. The jobs the development would bring are crucial to the city, he said. The city is negotiating with UIDC on a tax agreement covering the various buildings to be constructed.

"Also endorsing the program was Greater Boston Convention and Tourist Bureau, Inc., as `the most significant addition to Boston's convention facilities since the construction of the Prudential Center complex.'"

An article by William J. Lewis that appeared in the Boston Herald-American on December 23, 1978 also stated that "the agreement reserves 15,000-20,000 square feet of space for neighborhood-oriented businesses, half of which are to be minority-owned or community development corporations;" and "the development will include a 868-room convention-oriented hotel, two to three department stores, more than 100 shops and restaurants in an enclosed central mall, a 600,000 square foot office building, 1800-space parking garage and 150 units of mixed-income housing."

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 6

The Indianapolis, Indiana-based Simon Properties Group [SPG] should not be allowed to enclose the public open space at Stuart and Dartmouth Street in Boston’s Back Bay/South End neighborhood and add a massive 47-story “Neiman Marcus Tower” skyscraper of mostly luxury residential units to the Copley Place project (atop the shopping mall’s Neiman Marcus anchor store) for the following nine reasons:

1) As Judge Caffrey noted in his August 17, 1981 memorandum in the Munoz-Mendoza v. Pierce case, “ Copley Place is a…multi-use development of housing, 25 percent of which are to be subsidized.” Yet of the 318 units of additional residential housing units that SPG/Copley Place Associates now proposes to add to Copley Place , less than 16 percent are to be subsidized, in contradiction to Judge Caffrey’s August 17, 1981 legal memorandum.

2) As Judge Caffrey also noted in his August 17, 1981 memorandum:

“In April of 1980 the City of Boston submitted to HUD a UDAG [Urban Development Action Grant] application for Copley Place , and HUD announced preliminary approval of the funding on October 9, 1980…The City of Boston and HUD signed a formal UDAG contract in the early months of 1981.”

Regarding the contract between HUD and the City of Boston that provided the original developer of Copley Place with over $18 million in public UDAG federal funds, 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 Grant,” the attorneys for the City of Boston indicated that the Boston Redevelopment Authority [BRA]'s previous review of the proposed Copley Place project determined that HUD’s $18.8 million UDAG was to be used to develop “landscaped open space” at the Dartmouth and Stuart Streets site—not an enclosed “winter garden” that’s linked to a 47-story skyscraper residential addition to Copley Place and reconstruction of its anchor retail department store, Neiman Marcus. As the City of Boston noted in its August 11, 1980 response:

“…The development site will be landscaped open space dedicated to public pedestrian circulation…These areas include…the plaza 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 …

“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…

“…The project would not reach a fair level of return without such a UDAG investment…

“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…UDAG funds are in fact necessary to the construction of Copley Place …”

The terms of the 1981 UDAG contract between the City of Boston and HUD do not authorize any current or future private developer (such as SPG/Copley Place Associates) to construct an enclosed “winter garden” and a 47-story skyscraper residential addition on the “landscaped open space dedicated to public pedestrian circulation” and 21,800 square foot “public plaza and mall entrance” at Dartmouth and Stuart Streets.

So without HUD approval of amendments to the 1981 UDAG contract, SPG/Copley Place Associates should not be allowed to now reconstruct Copley Place --especially given the opposition of most Back Bay and South End neighborhood residents. As section 570.463 of HUD UDAG regulations on “project amendment and revisions” notes, “applicants…must submit to the HUD Central Office, a request for approval of any significant amendment” to a UDAG-funded project and “a significant amendment involves new activities or alternations thereof which will change the scope, location, scale, or beneficiaries of such activities...”

3) 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 Grant,” the attorneys for the City of Boston also asserted that the “construction of Copley Place will further the objectives of the UDAG program by…creating opportunities for low-and moderate-income people and minorities.”

Yet of the 318 units of addition residential housing that SPG//Copley Place Associates now proposes to add to the partially HUD UDAG program-funded Copley Place project, less than 16 percent of the constructed new residential units would create residential “opportunities for low-and moderate-income people and minorities;” and the Indianapolis-based SPG/Copley Place Associates executives have indicated that if the City of Boston now requires their proposed Neiman Marcus skyscraper/Copley Place residential addition to contain 25 percent subsidized units that are affordable for low-and moderate income people and minorities—as mandated by the late 1970s and early 1980s Copley Place project development legal agreements—they would be unwilling to build any additional residential units on a construction site which previously received over $18 million in HUD UDAG program federal funds.

4) The 1,558 parking spaces that SPG/Copley Place Associates controls are often filled to capacity during the Boston Red Sox baseball season, during the workweek, and on weekends at the peak of the tourist and shopping seasons. So adding at least 300 more cars of the residents of the proposed 47-story skyscraper residential addition will likely force many more non-residents of the neighborhood to park on nearby streets, and, thereby, reduce the parking spaces available to South End and Back Bay neighborhood residents.

5) If the 47-story skyscraper is built, the wind force level on pedestrians on the street at Dartmouth and Stuart Streets is expected to increase by 20 percent; and the shadows cast over Copley Square during workweek lunch hours between October and March—when this public park is most crowded on weekdays during these months—are also expected to increase by 20 percent. In addition, the proposed 47-story skyscraper is expected to cast a shadow over the Commonwealth Mall park space at around 9 a.m. each day—at a time when the Commonwealth Mall is being used most by people in the Back Bay neighborhood who pass through Commonwealth Mall each day as they walk to work or to the Copley Square subway station.

6) At a recent public meeting in the Boston Public Library, little specific information or visual material indicating how the construction site area at Dartmouth and Stuart Streets and the surrounding neighborhood streets are going to be affected or inconvenienced during the 3 years it would take to complete the proposed 47-story skyscraper/enclosed “winter garden”/over-development project was provided to the public. No mention was made, for example, of the amount of fugitive dust that will be created so close to the Back Bay Station (which is used by large numbers of commuters) during the demolition part of the proposed construction project. Nor was there any discussion of whether current crane safety precautions in Boston to assure pedestrian, commuter driver and construction worker safety are sufficient to build a 47-story skyscraper (over a 1 to 3-year period) in a highly windy area of heavy foot and car traffic, and where the ground regularly shakes as trains pull in and out of Back Bay station (and which even experienced a recent earthquake tremor).

7) Regarding the crane safety issue, the City Council in New York City requires, for example, that in Manhattan “prior to a crane’s initial erection or dismantling, the general contractor must hold a safety coordination meeting;” and “a pre-jump safety meeting must take place no more than 24-hours prior to each instance of a tower or climber crane jump or climb.” In addition, “the general contractor must notify Department of Buildings at least 48-hours before any safety coordination meetings or pre-jump safety meetings are held, and these meetings must cover topics related to scope of work, roles and responsibilities, rigging equipment, sequence of operations, inspection of rigging equipment tools prior to work, review of all equipment, permit validity, qualifications and training of personnel, relevant weather warnings, compliance with the manufacturer’s manual.”

8) Regarding the promise of 1,700 temporary construction work jobs that SPG/Copley Place Associates’ proposed Copley Place Retail Expansion and Residential Addition over-development project would provide, at the recent BPL public meeting no specific break-down on how long each of the 1,700 temporary construction job positions created actually would last or which of the expected temporary construction worker jobs will actually be filled with Boston and/or South End and Back Bay residents was provided. Does the “1,700 jobs” estimate, for example, include particular construction work jobs that will only last less than 3 months? Are the Boston and/or South End residents who get hired to work on the proposed Copley Place Retail Expansion and Residential Addition project only to be allowed to fill the temporary construction jobs that pay the lowest hourly rate and/or last less than 3 months?

9) Between the time that SPG/Copley Place Associates first proposed to build a 47-story “Neiman Marcus” Tower and enclosed “winter garden” (mainly to apparently provide more potential local residential customers for its anchor retail department store tenant) and April 2009, construction work on 29 skyscraper construction projects in the United States were halted because of the U.S. economic recession. And since the U.S. economy is expected to be in an even deeper economic recession in 2012 and 2013, there’s a possibility that SPG/Copley Place Associates would also eventually be forced to halt construction of its 47-story skyscraper and enclosed “winter garden” if its proposed Copley Place Retail Expansion and Residential Addition project is begun in 2012.

Given the Simon Properties Group’s current financial condition, it’s not totally impossible that it might be forced financially to halt construction of this proposed 47-story skyscraper construction project before completion, if a post-2012 economic recession intensifies. Regarding SPG’s current financial condition, Wayne Gorsek, for example, expressed the following opinion in his September 2 and September 5, 2011 column on the Seeking Alpha website:

“Simon Property Group, Inc (SPG) is a mall REIT that owns and manages retail mall properties…Fundamentally, the stock looks way overvalued….There is a high chance the USA will enter another recession and this will cause people to stop spending at high price retailers (Saks (SKS), Nordstrom (JWN), etc.) in the malls that Simon owns. This can reduce their revenues as part of their revenues are based on the sales of the retailers in the malls….Look at 2009, these high price retailer sales plummeted as did their stocks, 2011 2nd half and 2012 will look very similar to 2008 and 2009, in my humble opinion, based on massive fundamental facts regarding world debt, deficits and economies.

“Reviewing cash flow at Simon Property Group, Inc. (SPG) and using it to support an approximate $34 billion valuation does not add up. Cash flow ending in 2010 shows a negative cash flow of $3.1 billion. First half of 2011 shows negative cash flow negative of about $7 million.

“Massive debt and liabilities at SPG total $19.648 billion dollars. This creates a high degree of risk for a company relying on high priced retailers in mall locations to maintain profitability. Another risk would be higher interest rates and this could rapidly destroy their earnings.

“The risk of world and USA economies heading into a double dip recession is a high probability. If this occurs, look at the 2008 and 2009 performance of SPG during the prior recession, it dropped from over $100 per share to under $30 per share in less than one year! A potential loss of 70%! … A quick review indicates numerous insiders (executives and directors) sold over $60 million worth of stock from Dec 2009 to August 30, 2011. In fact there was not one insider purchase during this time frame as indicated by Yahoo finance reports. Massive insider selling by numerous officers and executives as in the case of Simon Property Group is a major red flag….”

For all these reasons, the SPG/Copley Place Associates’ “Copley Place Retail Expansion and Residential Addition” reconstruction project that would over-develop the Back Bay’s Copley Place (mainly for the benefit of private, special corporate interests) should not be allowed by the City of Boston and the State of Massachusetts to go forward; and the “landscaped open space” at “the plaza near the corner of Dartmouth and Stuart Streets,” which is now “designed to provide a park-like extension of Copley Square” and a “spatial extension of Copley Square” in “the public plaza,” should now be maintained in accordance with the terms of the HUD-City of Boston formal Urban Development Action Grant contract of 1981.

Stop Simon Properties Group & Neiman Marcus' "Jim Crow" Skyscraper Reconstruction Project at Copley Place in Boston's Back Bay: Part 5

In its April 1980 application for an $18.8 million Urban Development Action Grant [UDAG] in federal funds from HUD to create a public plaza of open space on the Copley Place Project public land at the corner of Dartmouth & Stuart streets, the City of Boston did not indicate to HUD that it would ever allow in 2011 a subsequent real estate developer to reconstruct the Copley Place project site in a way which encloses the public plaza of open space in a “winter garden”/expanded retail store entrance, that would be adjacent to a 47-story “Jim Crow” skyscraper of luxury residential apartments atop the project’s Neiman Marcus anchor retail store.

Yet according to the HUD handbook:

"In its review of the closeout documents, the Field Office staff may find that the project is not ready for closeout. This can occur for several reasons, for example: 1. The project may not have been carried out in a manner which is consistent with the terms of the Grant Agreement. For example, the UDAG may have been awarded to construct 120 single family homes, yet the closeout documents indicate that the Developer built only 110...If the Field Office staff determine that an impediment has occurred, they should take appropriate steps to deal with the situation...An action by HUD, such as amending the Grant Agreement, may be required...Generally, the Recipient should request a formal amendment in situations where the deviations from the Grant Agreement meet the threshold for a significant amendment as defined in Chapter 1 of this Handbook and as set forth in Section 570.413(b) of the UDAG regulations...

And according to HUD regulations:

§ 570.463 Project amendments and revisions.

(a) Pre-approval revisions to the application. Applicants must submit to the HUD Area Office and to Central Office all revisions to the application. A revision is considered significant if it alters the scope, location, or scale of the project or changes the beneficiaries' population.

The applicant must hold at least one public hearing prior to making a significant revision to the application.

(b) Post preliminary approval amendments. Applicants receiving preliminary approval must submit to the HUD Central Office, a request for approval of any significant amendment. A copy of the request must also be submitted to the Area Office. A significant amendment involves new activities or alterations thereof which will change the scope, location, scale, or beneficiaries of such activities or which, as a result of a number of smaller changes, add up to an amount that exceeds ten percent of the grant. HUD approval of amendments may be granted to those requests which meet all of the following criteria:

(1) New or significantly altered activities must meet the criteria for selection applicable at the time of receipt of the program amendment.

(2) The recipient must have complied with all requirements of this subpart.

(3) The recipient may make amendments other than those requiring prior HUD approval as defined in paragraph (b) of this section but each recipient must notify both the Area and Central Offices of such changes.

[47 FR 7983, Feb. 23, 1982, as amended at 61 FR 11476, Mar. 20, 1996]

Stop Simon Properties Group & Neiman Marcus' "Jim Crow" Skyscraper Reconstruction Project at Copley Place in Boston's Back Bay: Part 4

Despite the opposition of most Back Bay and South End neighborhood residents, the Zoning Commission of Boston utilized an undemocratic process to recently authorize the Simon Properties Group [SPG] to enclose and over-develop (on Massachusetts Department of Transportation/Turnpike Authority public land) the open space and public plaza at the corner of Stuart and Dartmouth Streets, as part of its Neiman Marcus anchor store expansion and massive “Neiman Marcus Tower” skyscraper construction/reconstruction of Copley Place project.

Coincidentally, as the following 2004 and 2005 articles that first appeared in Indianapolis, Indiana’s alternative weekly newspaper, NUVO, indicate, the Simon Group apparently was also undemocratically allowed to over-develop and build on public open space in Indianapolis, in a project that only benefitted the private special corporate interest of the SPG.

In a June 23, 2004 article, titled “Some Critical Of Downtown Decisions," the NUVO alternative newsweekly, for example, observed:

“Downtown development is booming. But with that boom, two projects may threaten a pair of downtown landmarks. One of those projects is Simon Property Group’s plan to construct a 12- to 14-story headquarters on Capitol Commons on the west side of downtown. The plan is drawing criticism from a number of groups that want to preserve the green space that former Gov. Robert Orr fought to create in the late 1980s.

“State Rep. Tom Saunders ( R-Henry County ) joined a number of state legislators in signing a letter of opposition that was delivered to the Mayor’s Office on June 7. They stated that their understanding, at the time the park was built, was that Capitol Commons should remain a `public park’ area. They also requested a meeting with city officials to discuss a more suitable solution. Saunders said, `I appreciate the Simons, but I wish they could find another spot.’

“Other legislators who joined Saunders were Beverly Gard, Jeff Epich, Vaneta Becker and Phil Hinkle. City officials finally agreed late last week to hold an informational meeting with the state representatives who signed the opposition letter.”

And in an article, titled “Simon’s Land Grab: City Trammels Public Process,” that appeared in the Jan. 26, 2005 issue of NUVO, Clark Kahlo wrote:

“The Simon Property Group recently revised the design for the exterior of its office building, which is slated to occupy part of Capitol Commons Plaza , just south of the state Capitol. This comes just prior to the start of construction, and was recommended by Simon’s new local architect, who replaced an Atlanta-based firm. The façade was redesigned to better conform to the existing character of nearby landmarks.

“Yet at an Oct. 6 public hearing, the Metropolitan Development Commission (MDC) was broadly assured by a Simon executive, his architect and city officials that the building’s design was fully sensitive to the Statehouse and surrounding buildings. Thus the design change comes as a major surprise. It also invites a look back (and forward) with respect to citizen involvement in development issues in our city.

“Beginning last June, many citizens wrote to the newspapers and to Mayor Peterson to protest his plan to give part of the public plaza to Simon for its 15-story building. Many also signed petitions opposing the giveaway of the priceless open space plaza (which connects the Statehouse and the Convention Center) and $20 million in other public subsidies.

“This most recent public land giveaway well illustrates how our city officials have failed to provide an open, inclusive and reasoned public process. Instead, they opted to cater to the highly profitable Simon company, which is the largest owner of shopping malls in the country.

“Despite the opposition, Simon’s corporate headquarters was on a fast-track for city board approvals from the very beginning. The city’s planners and architects weren’t even allowed by the mayor’s economic development staff to review the proposed project before the deal was publicly announced by Peterson.

“Here’s another example. In June, just two days after Mayor Peterson announced the deal, the development commission hurriedly adopted an amendment to the new Regional Center 2020 Plan for the downtown. The amendment authorized an office building in the public plaza, which is shown on the city’s new plan as a “public park.”

“While the city may have technically complied with the legal requirements for publishing the notice of the June 2 public hearing in the Legal Notices section of the newspaper, it’s clear the public was not aware of the significance of that commission meeting, the city’s hasty action to amend the official plan or the plan’s connection to the Simon deal. Thus there was no opposition present at the hearing.

“On Oct. 6, the MDC met again to hear an appeal filed in response to the city planning agency’s approval of the initial design for the Simon building. The Marion County Alliance of Neighborhood Associations and Citizens for a Better Future raised concerns about the proposal, including strong objections about the taking of the public plaza, which, by the terms of a previous agreement between the city, the Capital Improvements Board (a city board) and the Westin Hotel developer, was to remain an open space vista and public plaza linking the Convention Center and the state Capitol. These objections were rebuffed and the MDC unanimously supported the design.


“In addition, the Indiana Chapter of the American Society of Landscape Architects complained in a letter to Mayor Peterson that allowing Simon to build its headquarters on prime urban parkland sets an “unfortunate precedent.” Referring to the lack of public input in the process, the group also asked, “Would this be the preferred decision if opportunity had been given to the citizens of Indianapolis to provide input on the potential loss of this public space?”

“The group also urged Mayor Peterson to immediately reinstitute an ordinance invalidated by the Republican administration of Steve Goldsmith that required a public hearing for any city proposal to dispose of major public open space or right-of-way. The mayor denied their request.

“It’s ironic that in 1996, Councilor Steve Tally, a Democrat who is now president of the City-County Council, proposed a measure which would have required a public hearing before public property disposition by a city agency. That proposal was voted down by the then-Republican council majority. But now that Councilor Talley’s Democrat Party controls the council, and now that he’s expected to support the mayor’s plan to give prime public land to the Simons, he has conveniently forgotten the need to provide an open and fair public process.

“In fact, he restricted public comment at his June 28 committee hearing on the Simon matter. He rudely cut off the testimony of the representative from the Indiana Alliance for Democracy who attempted to cite a university study about the limited value of tax abatements and other corporate welfare by municipalities. Chairman Tally told Dr. Jack Miller that he didn’t think the study was relevant to the Simon matter. However, Tally hadn’t even given Miller the chance to describe the study.

“Indianapolis citizens don’t deserve such shabby treatment from their elected representatives when they try to question the continuing corporate giveaways and parkland takeaways. Simon’s recent changes to the façade will not compensate the public realm for the loss of this priceless plaza land and the loss of part of the soul of the city. “

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).

Stop Simon Properties Group & Neiman Marcus' "Jim Crow" Skyscraper Reconstruction Project at Copley Place in Boston's Back Bay: Part 1

In its 2008-filed "Project Notification Form," the debt-ridden, Indianapolis-based Simon Properties Group owner of shopping malls claimed its Stuart Street and Dartmouth Street Copley Place Reconstruction/”Neiman Marcus Tower” project "promotes Boston's affordable housing objectives." Yet Simon Properties Group provided no evidence in its "Project Notification Form" that 25% of its proposed new 320 residential units on the Copley Place project land will be affordable to low-income residents of Boston or that the residential population of its proposed 47-story skyscraper will reflect the current racial diversity of the City of Boston.

But in its "Project Notification Form," Simon Properties Group [SPG] did admit that if its skyscraper is built, during the lunch period of the workweek when Copley Square is most frequently used by local office workers in the autumn, 20 percent of Copley Square will then be under a shadow. As page 3-2 of the "Project Notification Form" noted:

"From October to February, additional shadow resulting from the Project will reach Copley Square...around 12:00 noon...affecting...20% of the area of Copley Square at any one time. From November to February 23, new shadow from the Project will sweep across Copley Square starting around 11:00 a.m., again affecting...20% of the area of Copley Square at any one time."

SPG also indicated that an uncomfortable new wind tunnel along Stuart Street will be created if its skyscraper is built. As page 3-2 of its "Project Notification Form" observes: "Wind conditions along Stuart Street may...require...mitigation due to the...channeling effect between the Project and surrounding existing buildings, which could increase pedestrian level horizontal wind..."

If Simon Properties Group is allowed to start building its luxury condominium skyscraper on Stuart Street and Dartmouth Street, for at least 3 years (between 2012 and 2015) around 1,700 construction workers will be disturbing the quality of life between 7 a.m. and 6 p.m. each weekday for commuters, local residents, local office workers and local hotel guests and shoppers. And, as the "Project Notification Form" also noted, to construct SPG’s skyscraper "night hours will be required as determined by the Mass Turnpike Authority for work on the Mass Pike," which will disturb the quality of life for local residents and local hotel guests during the night.

Since the new residents of the 272 luxury condominium units in SPG’s planned skyscraper are each expected to own at least one automobile, nearly 15 percent of the 1,558 parking spaces now controlled by Simon Properties Group in the Copley Place Center and Tent City (Dartmouth) garages will then be just reserved for the new residents of the Stuart and Dartmouth Street “Neiman Marcus Tower,” if the project is built. The number of available parking spaces for use by local workers, local shoppers and local residents in the Copley Place Center and Tent City (Dartmouth) garages will thus be decreased by at least 297, since at least "297 parking spaces will be reassigned to provide parking for the residential units," according to page C-1 of the "Project Notification Form."

If Simon Properties Group is allowed to begin its three-year Copley Place reconstruction project, negative "air-quality impacts from fugitive dust may be expected during the early phase of construction and during demolition," according to page 3-6 of SPG's "Project Notification Form." In addition, "The Project will generate solid waste;" and "solid waste generated" by SPG’s Back Bay-South End skyscraper project "will be approximately 1,010 tons per year," according to Simon's "Project Notification Form" of 2008

In addition to possibly creating nighttime traffic problems on the Mass Pike when Simon's construction workers are authorized to make noise during night hours, additional daytime traffic jams on Stuart Street and Dartmouth Street may also be created by Simon's project because it will produce decreased automobile lane width at the Stuart Street and Dartmouth Street intersection.

Although Simon Properties's skyscraper will be located very near to a skyscraper which was plagued by unpredictable post-construction problems, the John Hancock Building, the "Project Notification Form" doesn't seem to indicate why its skyscraper won't be plagued by similar unpredictable post-construction problems as was the John Hancock Building. But as the book Skyscraper by Karl Sabbagh observed:

"The windows of the John Hancock Building in Boston provide one example of the unpleasant surprises lying in wait for the best of architects and construction managers. One November day in 1972 a pane of glass fell out of the newly-completed sixty-story building. It was the first of hundreds of panes that were to shower down on the Boston passers-by...It took four years of falling glass for the architects and construction company to decide what to do...The true cause of the failure was never made public...It has been estimated that the total cost of the John Hancock problem, including replacing all 10,344 panes of glass, was more than the original cost of the building, $95 million..."

The same book also recalled that when a skyscraper is constructed:

"The effects of the project will inevitably spread far beyond the boundaries of the site. The constant stream of trucks to and from the site, some bringing concrete, others carrying away rubble to dumps...disrupt...the already busy traffic...Buses sometimes have to mount the pavement to skirt around the trucks...

"The history of construction is littered with disasters caused by a failure to appreciate the impact of loads and forces on steel connections and supports. In July 1981 two walkways in the lobby of the Hyatt Regency Hotel in Kansas City collapsed, killing 113 people and injuring more than 180..."

So, not surprisingly, most of the people who live, work, shop and visit in Boston’s Back Bay and South End neighborhood want to see Simon Properties Group and Neiman Marcus drop their plans for a “Jim Crow” skyscraper of mostly unaffordable, luxury residential units on the Copley Place project's public land.

"Back Bay Tower" Folk Song Protests Against Copley Place Residential Addition/Winter Garden In Boston

(chorus)
To profit Neiman Marcus
And Simon Property
Is not sufficient reason
For approval by the City.

(verses)
They want to build a tower
Forty-seven stories high
From the middle of Back Bay
Right up to the sky
They want to cast a shadow
All over Copley Square
From luxury apartments
On top of a big store. (chorus)

They want to build a skyscraper
Right next to Tent City
And clog the streets with trucks
And make the air dirty
For three long years their cranes
Will endanger pedestrians
And yet another wind tunnel
Will be created at the end. (chorus)

They promise many jobs
When they build with borrowed cash
But if they can't pay off their debts
With a big hole we'll be stuck
And none of the apartments
Will be affordable to the poor
Or even to the workers
Who build them with their labor. (chorus)

So if you think your neighborhood
Doesn't need their Back Bay Tower
And to enclose public space in glass
So Neiman Marcus stock can go higher
Then it's time to stop this skyscraper
From being built on the Copley Mall
And to protest as a community
And to protest to City Hall. (chorus)

Simon Property Copley Place Owners Involved In Inheritance Litigation

The Indiana-based billionaire Simon Dynasty that wants to build a 47-story luxury residential skyscraper on top of the Copley Place shopping mall that it owns in Boston's Back Bay has apparently been involved in a "Simon vs. Simon" court battle in Indiana in recent years. According to a WISH TV website posting of July 2010:

"NOBLESVILLE (WISH) - Initially we expected the fight over Mel Simon's billions to continue today in Hamilton County Superior Court. Both sides will now be at it again later this month.

"Simon's widow Bren and Simon's children are at war over his $2 billion fortune. 24 Hour News 8 has learned just how explosive the feud is; we obtained a copy of Bren Simon's deposition where she reveals her husband's dying wish -- to fight the kids (from Mel's first marriage) so she could have a 'say' after his passing.

""For three weeks, the last three weeks of his life," Bren tearfully testified: "every night I would sit with him and he would squeeze my hand and say, 'fight 'em Bren, fight 'em.'"

"The Simon kids claim their father was coerced to change his will while on his death bed, drastically reducing their inheritance and upping Bren's by as much as $300 million.

Watch 24 Hour News 8's Brad Edwards' full report (to the right) where in a 5 hour deposition, Bren Simon details her husbands final days and the war with his kids. At one point, tension was so high Bren ordered security to keep the kids out of their $ 50 million Bel Air estate


http://www.wishtv.com/dpp/news/local/marion_county/indianas-billion-dollar-family-feud-simon-v-simon