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Developer’s Streets Veto Raises Eyebrows

by Thomas MacMillan | Apr 9, 2012 7:50 am

(15) Comments | Commenting has been closed | E-mail the Author

Posted to: Business/ Economic Development, City Hall

Thomas MacMillan Photo Uma Ramiah Photo 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 Language

Thomas MacMillan Photo 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.

“What’s Wrong”

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.

Click here to read the city’s cost/benefit analysis. Click here to read the Urban Design League critique.

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.

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Comments

posted by: anonymous on April 9, 2012  8:25am

The’s no functioning transit system in the area, so the streets really can’t be considered “complete” streets. They will be traffic clogged disasters, especially after the addition of the planned several new Yale parking garages around the edges of the Hill and West River.

Also, they will not be bikeable or walkable in the progressive sense of those terms, ie a bike lane next to 45 mile per hour traffic is not usable by most adults much less children, and a crosswalk on a street like that is practically designed to kill people in wheelchairs.

Piscitelli and others had wanted to study bus and streetcar improvements, but the Aldermen voted that down last week, which has essentially postponed the City’s longstanding hope of having a functional and equitable system for another 20 years.

posted by: Noteworthy on April 9, 2012  9:08am

If the language re: Winstanley’s veto power is fuel for consternation at this level, imagine what it will be if it is implemented and there is a disagreement down the road. .

Property taxes - How can a $100 million building with personal property and a parking garage, only generate a $1 million tax bill? The city is in a major lawsuit now with Bruce Becker and his union backed 360 State Street development when the property taxes jumped irrationally to $5 million after it was completed. Is Winstanley also getting a special tax deal?

posted by: ElizabethBenton on April 9, 2012  9:14am

For anyone interested, here is the full response I provided regarding the Cost Benefit Analysis:

The City’s Cost Benefit Analysis was prepared by Parsons Brinckerhoff, a well-credentialed and internationally respected firm based out of Washington, D.C.  The City took the additional step of commissioning a peer review by a second group of independent consultants, EConsult out of Philadelphia, who concluded that “the cost benefit analysis is professionally and appropriately undertaken and the results generated by the analysis are valid and reasonable, based on academic and industry standards.” The report has been further validated by the United States Department of Transportation, which has accepted the findings. By contrast, the Urban Design League report lists no single author or any kind of professional validation or affiliation.

Further, since the report was prepared in 2010, there have been additional Complete Streets improvements to the Downtown Crossing plan, including elimination of a fourth travel lane on MLK Boulevard between College and York streets, and the narrowing of 11-foot travel lanes to 10 feet.

It is also important to remember that the Cost Benefit Analysis only considers infrastructure improvements funded by the TIGER II grant, and does not consider the multitude of additional public benefits associated with the Downtown Crossing project. It’s been said before, but it’s worth saying again. This project is too important to delay. The first development at Downtown Crossing, 100 College Street, is projected to bring in more than $1 million in annual tax revenue and hundreds of new permanent jobs. As many as 4,000 new permanent jobs will be created as the full 10-plus acre Downtown Crossing development is completed. These economic benefits are in addition to the public safety and public health benefits that come from removing a highway and replacing it with a vibrant street grid and mixed-use community.

posted by: Curious on April 9, 2012  10:12am

The Urban Design League raises some excellent points.  It’s quite wrong of Benton to brush it off by complaining that there is no one author, or any professional affiliation with it.  You don’t have to be an architect to realize something is flawed.

posted by: Pedro Soto on April 9, 2012  10:46am

For anyone following this closely- and Anstress and anon certainly have been, the constraining factor on getting Downtown Crossing turned into “complete streets” has never been Carter Winstanley, it’s been the State DOT.

The state’s view on this is pretty straightforward- you are not allowed to back traffic up onto a highway by design.

Every other requirement (using the state’s own measures to get this approved) flow from that.

Does it make a whole lot of sense? No, it doesn’t, however, from what I have been told, the number of special exceptions on this project from CDOT norms is something apparently record-breaking.


This project has always been planned to be run in phases. This is only the first phase, which is the shutting off of the connector, and mitigating the effect of that.

I agree 100%- the numbers that the state uses are almost entirely car-centric and are designed to make sure that suburbanites can drive at 65-75 mph right up to their sheltered parking garage, and then speed right home. The city has been actually pushing pretty hard against this, hence the number of exceptions that have been carved out.

My view is this- take the connector out of the picture, put in the first phase of improvements.

At every step of the way, put pressure on all actors to make sure that the phase as it currently stands *does not preclude any further improvements in the future.*

Once everyone (the state, Carter, etc.) sees that the world is not going to end with the connector gone- start moving to the next phase- further narrowing the streets, reintegrating the grid, separated bike lanes etc.

In some ways this is like 360 state street- the first building might not be a new urbanists dream, but going to make a huge difference by providing the economic justification for further development.

Winstanley is not the only actor in this area-
The company looking at the Coliseum site, for example is pushing pretty hard that a superhighway is not built next to their site. They are pushing for walkable mixed use.

We need to take the long view. Kill this project, and you kill downtown crossing. Period. $100 Million dollar projects do not show up every day, and this project makes sense for its location. Do we take one new office tower to ensure the future development of the area? I think so.

posted by: Wooster Squared on April 9, 2012  10:59am

Is “Design by Developer” even a legitimate use of the TIGER grant, or is the City putting the funding for this project at risk by handling the reigns to a private developer? I doubt this is what the Federal DOT had in mind when they awarded New Haven this grant.

Noteworthy brings up an excellent point. How is it that Winstanley is only going to pay 1 Million dollars a year in taxes on a 100 Million dollar building. That’s one percent of the value of the building. Most homeowners in New Haven pay several times that amount.

posted by: cedarhillresident! on April 9, 2012  11:43am

I do agree with noteworthy on the “only one million?” that seems off for the location this development will have. I would think it would be a lot higher. And with the becker situation…have we not learned ?

But with that said I am still in support of this. To block it at this point could stop it from being developed at all. The money that needs to be invested into such an endeavor is not behind every door and I hate to see that door shut. They have made many changes to the streets design. And I, in no way do not see this Developer as an anti community developer.  They have proven who they are and what they are in this city. They are a benefit.  They are building a building and are hiring people from New Haven to work on the project.  They have started some ground rules for future tenants.  As a New Havener and one that does not like change, this is one I am on board with.  This to me is what New Haven needs, a responsible developer that can help contribute to this city to become the dream that all are commenting about. The dream is ours and I think each step we take is heading that way. 

I still am saddened by the loss of long wharf theater at the coliseum site. The Shell,  Cesar Pelli designed was amazing.
But I still am with noteworthy on the tax thing.

posted by: robn on April 9, 2012  1:11pm

NOTEWORTHY,

Ding!!! Give that man a Cee-Gar!

At the current mill rate, $100M of construction is supposed to generate $3.8M of annual property taxes. Is there a quiet tax abatement tucked into the deal somewhere, or is the administration making public under-estimates to give the developer legal cover (as they may have done with 360 State.)?

posted by: anonymous on April 9, 2012  1:19pm

Noteworthy: The cost to develop a building is different from its assessed value.  For example, the new high schools that New Haven is building cost at least $75,000,000 but their value at the end of the day is essentially a few million dollars.

Elizabeth Benton is correct that a few changes were made to improve the design of a few parts of the proposed new highway, mostly in the area surrounding Gateway Community College. I think one or two pedestrian crossing islands were added (out of the at least 10 places where they are absolutely needed before this can even remotely qualify as a “complete street”).  However, these changes were made only at the request of the previous Board of Aldermen, in the face of large-scale protests were organized by the City administration to try to stop the changes. Will Winstanley (Yale) be able to “veto” any future changes?

I also agree with Curious that Elizabeth Benton’s (and/or the Mayor’s) point about authorship is nonsense, and is not befitting of the level of conversation that we need to improve this City. I would think that anyone experienced in economic development would find Benton’s comments to be highly revolting, and an insult to the process of urban design.

posted by: PauletteCohen on April 9, 2012  2:46pm

The Route 34 “highway to nowhere” is essentially a trench that removed a neighborhood and divided a large portion of the City.  That trench will still remain when the Carter Winstanley TIGER II project is completed.  The trench, however, will now be a dedicated driveway to the new Carter Winstanley Garage.  The streets on either side of this trench will be expanded multi-lane one way arterials.

The problem with this approach is described in the League’s report: “...the resulting sunken and street level combination is an even more formidable barrier to connectivity than the previous conformation.”  The report later adds:  “Though it is only Phase One of a multiphase project, it so mimics the flaws of the original highway spur that without improvement it is likely to remain as much an obstacle to reconnecting the City as the existing Highway to nowhere.”  I would add that Phase One is the only Phase that is now planned for or funded.

The League’s report on Downtown Crossing is actually quite readable.  It can be accessed here:

http://www.newhavenindependent.org/archives/upload/2012/03/TIGER_New_Haven_Concerns_League_03_2012.pdf

posted by: Noteworthy on April 9, 2012  4:58pm

@anonymous instructs us again on the difference between building costs and actual market value. While your example of schools is closer on par with the point you were trying to make, it is worthless when talking about commercial real estate. One does not invest a $100 million in a building, not including personal property and expect that building only to be worth about $25 million which is roughly what it would take to generate a million dollar tax bill. 

@Elizabeth Benton - that means nothing and repeating the talking the point of thousands of jobs at some point in the future which could be decades from now, is to wish upon a star. Projecting job growth is a fool’s errand or a government employee’s dream job. Remember how Obama said he was going to save or preserve millions of jobs?

The fact is working people have lost 25% of their wages across the last 20 years because their incomes are largely flat while inflation has eaten the rest of it up. The number of people employed in the U.S. is decreasing, not increasing having declined by more than 2% overall as more and more people drop out of the labor force.

In real terms, unemployment is more than 10% because of that decrease and easily somewhere near 18 to 20% in urban areas. This development project will do damn little to change that scenario and it would be a heck of alot more honest to quit talking about jobs as justification for corporate welfare and greater debt by those unemployed New Haven residents.

The cruel reality is that a large number of our fellow citizens are unqualified to hold the jobs in Winstanley’s building either in the trades or in the long term. We would do well to address that issue head-on and quit putting our head in the sand.

Are there other reasons to do Winstanley’s deal? Perhaps the tax revenue if we can get an accurate estimate of that and there isn’t some sentence in the 199 pages that dwarfs its value. Will it be good for Yale and YNHH? Perhaps that’s a plus. Will it provide additional economic impact via lunch, dinner and Shubert crowd or maybe retail or hotel occupancy or high end rents? Perhaps. Are there others? Perhaps.

posted by: annegatling on April 9, 2012  5:20pm

@noteworthy—there is quite a bit of discussion already going about how to train more residents for the types of jobs that will be in the 100 College Street building as well as future development in that area.  Besides the Job Pipeline committee at the BOA and the work EDC/City/Gateway and others are doing to look at training programs that will lead to a variety of jobs, there will be more and more opportunities. The building will be open in 3 years, and the work is being done now to assure more people a path that is better aligned with the future opportunities.  Please note that ‘skills gap’ is something that the entire state/country is grappling with, and we’re lucky to be in a city that is small enough with enough committed stakeholders that we might actually be able to address in a shorter timeframe.

as well there are many economic benefits that the city will get from this project, including taxes, but more importantly the number of additional jobs that are supported/generated by the 600-900 that will come directly from this project.  For biotech jobs (that are also a spectrum of job types—not just all lab coats, fyi) that this building is likely to house, up to 3 additional jobs are supported/generated. this could be anything from support professional services, maintenance and retail jobs, personal services etc.  Many of our current biotech employees, whether they drive or take a bus to work, local or regional, support all types of support services in the area, and are part of the population that takes advantages of the restaurants/shubert/accountants etc.  More will then support more of that to occur, and perhaps even more types of services that we may not have enough of yet (daycare comes to mind!). 

I agree with Pedro—have to take the long view here, both in terms of the phasing of the overall district and the public investment required to get the project off the ground.

posted by: DingDong on April 9, 2012  8:20pm

@Pedro.  Do you have a source for your claim that ConnDOT, and not Winstanley, is demanding the autocentric design? 

That would be consistent with much of my experience with ConnDOT, but it seems odd that the Mayor and Winstanley aren’t dropping hints that DOT is to blame—and the Mayor tends to be quite good at blaming others.

posted by: streever on April 10, 2012  1:38pm

The developers veto is a symptom, not the illness.

It shows how misguided and poorly directed this entire project is, but focusing on it is pointless, because it can be “re-written” or edited to appease the people who are genuinely and legitimately upset at this awful, auto-centric, poorly-done plan.

The entire plan needs substantial improvements, not just striking of a few words from an agreement.

Pedro, CHR, and others accurately point out that the plan needs to move forward quickly. The city has dragged its heels on making the improvements requested, and as such, has put us in a situation where we have limited time to get this project completed.

If they want this project to proceed and they want to actually live up to the goals they articulated so well, they are going to have to get at it soon. Further delays will certainly endanger the potential of a truly transformative plan.

posted by: Jonathan Hopkins on April 12, 2012  11:01am

“...the Urban Design League report lists no single author or any kind of professional validation or affiliation.”

That’s not what is important. What is important is whether or not the report’s metrics are accurate and the conclusion is reasonable. Are the studies that the Urban Design League cites accurate and relevant? Is the evidence presented true?
If it’s false, then debunk the report, don’t brush it to the side with a meaningless qualifier.

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