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March 29, 2007
Gov. Patrick Turns My Hope into Alarm
(Originally printed in the South End News, March 29, 2007)
by Shirley Kressel

I had great hopes for Deval Patrick. He got me to “check back in” to politics — the “triumph of hope over experience.” But I’m losing hope fast, as experience triumphs again.

It started when he told reporters, just after winning, that the greatest misconception about him is “the liberal thing” (during the campaign, he said it was, “that my first name is Patrick”). Gulp.

Then, there was the corporation-sponsored coronation.

Then, his “private-citizen” call to a corporation that does business with the State on behalf of predatory lender Ameriquest, his past employer.

Then, the selection as Coordinator of Development of Rep. Dan Bosley, who supported last year’s bill (Special Development Districts) letting developers create their own private municipalities, complete with taxing and eminent domain powers.

Then, the appointment as Director of Housing and Economic Development of Dan O’Connell, a savvy real-estate lawyer and former development executive with Meredith & Grew, Spaulding & Slye Colliers, Massport, and MassDevelopment.

Then, the appointment of Greg Bialecki, another savvy real-estate lawyer, as “ombudsman” to help developers get expedited permitting per last year’s Romney legislation — which I hoped Patrick would damage-control with sensitivity to community and environmental needs. Do the big developers really need an “ombudsman”? They have all those savvy lawyers! It’s the community that needs help!

But now, after further arming Goliath, Patrick is taking away David’s slingshot.

He has filed legislation (H3757) to defeat a state Supreme Judicial Court decision that gave the public back its rights on public-trust waterfront land.

A Cambridge neighborhood group sued to demand that the new five-million-square-foot, 45-acre NorthPoint development, on the Charles River, comply with state law Chapter 91, the Public Waterfront Act, which protects public rights on public-trust Commonwealth tidelands. Tideland development, by law, is to serve a “proper public purpose.”

The state Department of Environmental Protection (DEP) issues development licenses on tidelands with conditions that protect public access to and enjoyment of the waterfront. The regulations stipulate that “private advantages of use are not primary but merely incidental to the achievement of public purposes.” Public benefits, to be determined with community input, include shadow protection by height and setback restrictions, access paths, transit programs, parks and other public amenities to prevent privatization of the public realm.

The Court ruled that DEP had exceeded its authority by deciding to exempt from its licensing process those tidelands that are “landlocked” (separated from the waterfront by a public way) such as NorthPoint, since those are no less public-trust land. The ruling says only the legislature, directly accountable to the people, has the right to give up these public rights, and requires DEP to apply its licensing process to landlocked tidelands.

Instead of seizing this rare opportunity to restore our public rights, Governor Patrick has proposed legislation (H3757) authorizing DEP’s “landlocked” exemption — to continue depriving us!

He is snatching this victory from the citizenry in the name of “economic development.” This, despite the Fan Pier experience showing that a developer can pile about the same amount of profitable masonry onto a waterfront site — with a more attractive design — and still meet the legal requirements.

Ian Bowles, Patrick’s Secretary of the Executive Office of Environmental Affairs, has expressed concerns — not about the environment, but about NorthPoint and other proposed projects, e.g., towers at North and South stations and even in the Fenway. But the community doesn’t oppose the development; they ask only for proper public benefit — for example, a safe pedestrian connection across a major highway to the MBTA station relocated into the project site.

The Administration argues that existing development titles are clouded by the ruling, although the Court expressly denies that intent. But instead of just proposing a grandfathering provision for the past, it is pushing a roll-back of protections for the future.

The bill disingenuously states that “the redevelopment and revitalization facilitated by this exemption maintains and increases the public’s access to the waterfront. Any benefits to private parties from this authorization will be incidental to the achievement of these public purposes.”

If this reflects Governor Patrick’s own idea of public interest, it’s alarming enough.

But there’s something else. Dan O’Connell led the NorthPoint team for developer Spaulding & Sly Colliers (now Jones Lang LaSalle); and he told the press that he “sold his interests” in the NorthPoint project at Patrick’s request when he took the government job. Greg Bialecki (Patrick’s former law colleague at Hill & Barlow) served as the NorthPoint lawyer at DLA Piper; he was also the lawyer for Boston’s Fan Pier Chapter 91 process, and for the Red Sox, now major developers in the Fenway. Their firms donated almost $13,000 to Patrick’s campaign. These heavyweight development promoters are now in office as our public servants!

We have a serious fox-guarding-the-henhouse problem here. And Patrick’s assurance of his appointees’ “recusal” from the legislation effort rings hollow. Bialecki recently was honored by the Mass Alliance for Economic Development — hosted by DLA Piper, still the NorthPoint law firm. These are all still colleagues and clients, past and future if not current.

The Governor continues to show a lack of understanding of the conflict-of-interest concept. Apparently, his experience in the corporate (fox) sector is a more powerful influence on his sense of ethics than his Clinton administration turn helping the chickens.

He is also emboldening others to pounce.

Rep. Michael Rodrigues introduced his own bill, H847, reducing all tideland public benefit to a non-negotiable designation of only 25 percent of the ground-floor uses as “facilities of public accommodation” (FPA) — a civic-sounding category that includes, and usually is, retail and restaurants. In practice, many of these are already marginal public benefits (one “museum” was “a lobby with pictures of boats,” as the BRA publicly admitted), and some are totally privatized after the projects are approved. Russia Wharf, which gutted a National Historic Register District for a half-million-square-foot office tower, has reduced all its FPA’s to a lobby called, ironically, “New Town Square”; and the BRA just let Joe Fallon’s Westin Boston Waterfront Hotel turn a 30,000-square-foot space licensed as FPA into a private meeting room.

The National Association of Office and Industrial Properties (NAOIP), a commercial-development lobby, is waiting in the wings with eight new bills including further weakening of Chapter 91 protections.

Fortunately, several Cambridge and Somerville legislators are resisting this proposed erosion of public rights. Public protest letters have started to roll in. A public hearing will — hopefully — be held.

So I am doing something I hoped not to have to do for at least four years. I’m issuing a community action alert.

The Commonwealth tidelands belong to all of us, regardless of where we live. Private development rights at the waterfront should not be “expedited” into the hands of corporate profiteers — who need no help in exploiting our natural commons — to chase some bogus notion of “economic development.” Experience shows that the best project designs come from an inclusive process balancing private financial interests with community and environmental health.

Contact your State legislators and demand that they defeat H3735, H847 and other bills that indulge developers at the expense of public rights. And ask Deval Patrick to start acting more like the “outsider” we thought we elected to rein in the inside deals on Beacon Hill!


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