Letter to the Editor

The state agency has  overstepped its authority

Dear Editor:

To Secretary Jay Ash, Executive Office of Housing and Economic Development:

I am writing to inform you that the state Department of Housing and Community Development (DHCD) has exceeded its powers by acting on a matter over which it has no jurisdiction.  DHCD has issued a decision (see attached letter, signed by Undersecretary Chrystal Kornegay) that violates its own regulations.

DHCD has approved a multi-year extension of Boston’s 14 expiring Urban Renewal Plans, on the advice of the Boston Redevelopment Authority (BRA), which seeks an extension of its powers.  Such an extension constitutes a major modification of the Plans. Extensions of up to a year are considered minor modifications, on which DHCD may act without local oversight.  However, DHCD cannot act on a major modification without a prior City Council vote of approval. But DHCD has approved this in the absence of a valid City Council approval.

The City Council, also following the BRA’s advice, cast a vote of approval on March 23, 2016; but, as the BRA was aware, that vote was not effective because the Boston City Council’s jurisdiction to vote on extensions was eliminated by BRA, Council, and DHCD enactment of a major modification of Boston’s Urban Renewal Plan review process in 2004-05 (see attached text of Council vote, emphasis added).  The Council’s loss of this jurisdiction was confirmed to me personally by BRA attorneys, both in 2005 (Rebecca Lee) and in 2015 (Renee LeFevre).   DHCH has no power to act on this Plan extension, because there is no way to meet the regulatory prerequisite of a VALID City Council vote.

DCHD is violating its own regulations in order to give the BRA the extension it wants but cannot lawfully get, by pretending that it can simply now decide to define any Plan extension as a minor modification, as long as the Plan’s goals and objectives remain unchanged. (Note that DHCD ignored ample evidence it received showing the BRA’s publicly stated intentions to “update obsolete Urban Renewal Plans,” change the mission of Urban Renewal from “tackling blight” to “creating vibrancy,” redefine “Urban Renewal” as simply “urban planning,” and make other substantive changes in the Plan goals and objectives, thus violating even the DHCD’s proposed criteria for its new classification of major and minor.)

DHCD’s letter also states that it intends to change the state regulations to reclassify every Urban Renewal Plan extension proposed in any municipality, no matter how long the duration, as a minor modification, which it can approve without prior approval from the local government.  Under the revised regulations, redevelopment authorities in Massachusetts could simply come to DHCD and get indefinite Plan extensions without having to ask their city officials.

If DHCD wants to do this, it will have to go through a state-wide regulation amendment process per state law, with notification to the public and the city governments, public hearings and comment periods, etc., and explain to all those city governments and their citizens the state’s intent to strip them of control over the duration of their Urban Renewal Plans.

DHCD has not taken any steps toward such a regulatory amendment.   The BRA’s public process cited in the letter was a campaign to promote this particular extension.  DHCD personnel, who had already warned community leaders that they would consider none of their concerns and, ironically, stated that they would make this decision based only on legal requirements, called a public hearing at the last minute per a request from two legislators; but the hearing and comments related only to this particular extension.  Neither agency’s “outreach” activities had anything to do with a state-wide regulatory amendment process, as the letter seems to try to imply.

Perhaps DHCD will proceed to try to make this change in its regulations — but it is unlikely that all the city and town councils in Massachusetts will be willing to give up this important power.

(To clarify the unique Boston situation: The Boston City Council could not take an effective vote on this extension, even though they supported it, and so DHCD cannot, under current regulations, impose the extension on the city; but if the Council had opposed this extension, the absence of their vote would have prevented an unwanted DHCD approval.   However, if DHCD succeeds in changing the regulations to make any Plan extension a minor modification, it will be able to approve all extensions without asking the Councilors — even if, next time, the Councilors oppose it — because minor modifications need no prior approval by local Council bodies.)

At this time, however, DHCD is operating under the regulations, policies and practices in effect for decades. (See attached letter from former DHCD Director Jane Gumble to the BRA, written in 2005 — the first time the BRA tried to declare a multi-year extension a minor modification.)  And the DHCD stands in violation of its own regulations.

This extension is not legally enacted, and transactions in the 14 Plan areas (some 3,000 acres of central Boston) relying on DHCD’s approval will be under a legal cloud.

I ask you to have this unlawful approval rescinded.

Thank you.

Shirley Kressel

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