A recent editorial in The Boston Globe spoke about the successful conclusion of the permitting for Fenway Center, the $450 million mixed-use project over the Mass. Turnpike. The gist of the piece was that developing air rights is no easy matter. Besides the very high cost of developing over an eight lane highway, there are the inevitable lawsuits that can stretch an approval process out by 2-3 years. The Fenway Center case was finally resolved in appeals court.
Columbus Center, another very worthwhile project involving air rights, was not so lucky. While the financial crisis played a role in its demise, one of the real reasons that it did not move forward was due to the lengthy delays caused by well over 100 public meetings. No one can deny the appropriateness of having community involvement, but there must be some limit on that process. Are the city and neighborhood really better off with the scar of an urban highway canyon dividing the Back Bay and the South End than it would have been with a mixed-use project including affordable housing?
The Globe said that “These projects shouldn’t be the last along the Pike.” However, predictability and transparency are necessary before any developer will be willing to risk capital on a speculative urban development involving air rights. A few suggestions:
- Establish some clear guidelines for developers interested in responding to RFPs for future air rights parcels;
- Set a limit on the number of public hearings with the appropriate neighborhood groups within a limited time period;
- Allow the developer to opt in to the Permitting Session of the Land Court for any appeals;
- Require appellants to post a bond if they choose to appeal the decision of the court;
- Allow developers to count some portion of the cost of the infrastructure associated with the air rights project as part of their community betterment payments.