As people mine the 199-page $135 million proposed Rt. 34 land deal between the city and developer Carter Winstanley, one passage has triggered alarm bells: The part that says the developer can tell the city how to design public streets.
That’s the way some critics are interpreting the language of the agreement. City officials dispute the interpretation.
The section in question appears on page 40 of the proposed land agreement that the city submitted last week for approval by the Board of Aldermen. The deal would pave the way for the first phase of the “Downtown Crossing” project, which would begin filling in the Route 34 Connector mini-highway to nowhere.
Under the deal, developer Winstanley would cooperate with the city and the parking authority on a plan to build a new medical office building at 100 College St., at an estimated cost to his company of about $100 million. The city would agree to complete a number of specific traffic improvements, including widening and adding bike lanes to North and South Frontage roads. The city and the parking authority would together spend an estimated $8.2 million on preparing the area. Another $26.4 million would come from the state and federal governments.
Supporters of the Downtown Crossing plan say the project will bring new tax revenue—$1 million per year, according to one estimate—and hundreds of jobs to the city. Critics fear that it will create a car-centric area where no one will want to bike or walk, and that any jobs will go to out-of-towners.
The release of the proposed agreement offers the first opportunity for people to look into the nitty-gritty of the project’s plans.
While the city and the developer have agreed on “preliminary design concepts,” the project’s traffic improvement plan has not been finalized. The agreement states the the city will consult with the developer to complete the design. It further says that the city won’t design the improvements in any way the developer thinks might harm his development.
Local land-use lawyer Frank Cochran said the language—which includes stating the city “shall not” proceed with designs the developer “reasonably” believes will harm his project—seems designed to give the developer “the ultimate say-so.” He said it’s something aldermen should have clarified or removed.
City spokeswoman Elizabeth Benton claimed the agreement doesn’t give Winstanley “veto” power over the city’s plans to remake the streets. The agreement simply “allows him to walk away and not build 100 College Street if he is unsatisfied with the design of the surrounding public right-of-way,” she said. Mike Piscitelli, deputy head of the economic development department, expressed similar sentiments.
Anstress Farwell, the head of the Urban Design League and an outspoken critic of the city’s approach to the Downtown Crossing project, read the agreement the way Cochran did. The troublesome condition reflects how the city is allowing Winstanley to dictate the terms of the deal, she argued. She’s concerned enough about the state of things that she visited federal transportation officials in Washington D.C. to talk about problems at Downtown Crossing.
The section of the agreement dealing with “The City’s Public Improvements” begins on page 40. The first part addresses the design and construction of traffic improvements to “prepare the Development Parcel for development by the Developer.”
Such preparation is to occur according to certain provisions, including that the city shall “seek to incorporate the Developer’s comments and suggestions in such design” as long as they don’t cause an increase in cost, the deal states.
The agreement then goes further: “Notwithstanding the foregoing, the City shall not design the City’s Traffic Improvements in any manner that the Developer reasonably believes would negatively impact the Development Parcel, the Development or the [State Traffic Commission] application for a major traffic generator certificate for the Development.”
“It sounds like a veto to the developer,” New Haven land use attorney Frank Cochran said of the language. “I’m not sure the way they drafted it is appropriate.”
He said the design for traffic improvements will need to find the approval of the State Traffic Commission [STC]. It would make sense if the agreement then included “something under which parties need to accommodate whatever the commission demands.”
But that’s not what the agreement says in this section, Cochran said. Instead, the language “refers to the developer’s opinion.”
“It’s like it gives him an out on the whole project for reasons that are not really relevant,” Cochran said. “It’s probably a really important point.”
“The reference to the State Traffic Commission application is clear—the city cannot incorporate elements that would cause STC to disapprove and must incorporate any that STC demands unless they would materially increase the cost,” Cochran explained. “But someone wanted to add some ambiguous language giving the Developer the ultimate say so long as it is based on a ‘reasonable belief.’ While that sort of language is often an open sesame for later litigation, there is nothing in this clause subjecting that to mediation or arbitration. However, courts generally construe ambiguous clauses against the interest of the party which had asked their inclusion. If I were a member of the Board of Aldermen, I would ask for clarification or removal of the two ambiguous additions to that sentence.”
“Obviously a developer should not be able to veto decisions that affect city streets,” said East Rock Aldermen Justin Elicker, who has advocated preserving pedestrians’ and cyclists’ interests in Downtown Crossing. “I’d like to look into the wording more.”
“I would think that is something to be concerned about,” Hill Alderwoman Dolores Colon said of the passage. “I think it should be something that’s mutually agreed upon.”
“We’re in a symbiotic relationship,” she said. “It’s got to be good for the city as well the developer. We can’t just give him the store and hope he does right by us.”
“Not A Veto”
“It’s not that at all,” said city deputy economic development chief Piscitelli. The section in question has to do with Winstanley’s need to get approval from the traffic commission, Piscitelli said. It commits the city to build off-site road improvements so that Winstanley can submit an application.
“This is not a veto power,” Piscitelli said. The section needs to be seen in the context of the whole agreement and the exhibits that accompany it, he said. It’s part of a series of commitments by both the city and the developer, and the agreement gives each party opportunities to walk away if certain conditions are not met, he said.
“The development agreement, therefore, allows [Winstanley] to walk away and not build 100 College Street if he is unsatisfied with the design of the surrounding public right-of-way,” spokeswoman Benton wrote in a comment on an Independent story. “For example, in the agreement Church Street is a two-way street. If the USDOT [Department of Transportation], State and City changed course and agreed to make Church Street one-way, Carter could break the agreement leaving the State and City free to advanced their plans.”
Besides, Piscitelli said, the developer and the city have both expressed a commitment to developing the project in accord with the city’s Complete Streets standards, which are designed to make streets work for all modes of transportation.
Farwell, head of the Urban Design League, said the agreement simply puts in down in black and white what has been a problem all along: Winstanley is calling the shots and other voices are being shut out.
Downtown Crossing is “really geared more toward the interest of a single developer rather than the public good,” she said.
“It’s been clear throughout the project that the people generating it and at the table have been Winstanley and his traffic engineers,” Farwell said. “That’s exactly what’s wrong with this project.”
Farwell stressed that she is not opposed to the project in general—if it’s done properly, in a way that actually benefits the city. As it is, the plan would not do enough to encourage to accommodate pedestrians, encourage public transit use, decrease congestion, and foster vibrant street life, she argued.
City officials have disputed these charges. Benton has pointed out that more than 70 public hearings have been held on the Downtown Crossing plan, that the project will bring taxes and jobs to the city, that it’s allegedly being designed in accord with the city’s pedestrian- and bike-friendly Complete Streets manual, and that the project is just the first step towards the stated goal of re-knitting several neighborhoods severed by the highway.
At any rate, the time for changes is running out. In order to cash in on federal TIGER II grant funds, the city has to have the design done and construction contracts ready to go by September 2012, Farwell said. “It’s basically 11:55 at this point.”
DOT Is Watching
Farwell’s Urban Design League organization has emerged as a leading voice of caution on the Downtown Crossing project. A report the league released in February critiqued the city’s plans as a misguided repetition of past planning mistakes. The design is car-centric and will not fulfill its stated goal of re-connecting downtown with the Hill and Union Station, the report charged.
The league followed the report up with a March 26 memo questioning the city’s cost benefit analysis for the Downtown Crossing project. The document said the analysis was based on dubious and contradictory assumptions and made “misleading” and “unsupported” claims.
The city has sought to rebut both the league’s report and the memo. Plans for Downtown Crossing have been the subject of dozens of public meetings, Benton said. The project will bring in over $1 million in taxes and create hundreds of permanent jobs, she said.
As for the memo on the cost benefit analysis, Benton said the work was thoroughly and independently vetted. “By contrast, the Urban Design League report lists no single author or any kind of professional validation or affiliation.”
Farwell said her organization wrote the report in response to a request by U.S. Sen. Dick Blumenthal’s office after she brought her concerns about the project to him in January. In the last week of March, she and league board member Dawn Gibson-Brehon, brought their complaints to D.C. personally. They met with staff at Blumenthal’s office and with USDOT officials.
Gibson-Brehon (pictured), who lives in the Hill, said she shared her concern that Downtown Crossing will not do enough to connect her neighborhood to downtown. “I would love to see the connections,” she said. “I just wasn’t seeing that.”
Like Farwell, she stressed that she supports the Downtown Crossing project in general.
Asked for comment on the meeting with Farwell and Gibson-Brehon, USDOT spokesman Justin Nisly said, “As with all TIGER grantees, we are working with Connecticut DOT and the City of New Haven to ensure this project moves forward quickly and appropriately and to make [sure] the benefits promised in the application are achieved.”
Aldermanic committee meetings on the proposed agreement and an accompanying zoning change are tentatively set for May 2 and 10 in City Hall.