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Paul McMorrow

A curveball at Fenway Center

No developer has managed to build anything atop the Massachusetts Turnpike in Boston since Copley Place was built in the early 1980s. A mega-development outside Kenmore Square has the potential to change that record, and open up long sweeps of the Pike for redevelopment. For its work in unlocking acres of previously un-developable real estate, the Fenway Center project has invited a typically brutal Boston reward — it has an abutter throwing up roadblocks and nursing petty grievances in court.

Fenway Center sits across the street from Fenway Park, and down the street from the Longwood Medical Area. It should be incredibly valuable real estate but for the two acres of railroad tracks and Turnpike roadway running straight through it. The Turnpike makes this real estate literally worthless, since the cost of building over the road normally swallows any profit to be made. Still, when an air-rights project like the Prudential Center or Copley Place manages to get built, it becomes a development that changes the face of its neighborhood. That’s why the past 30 years of air-rights deals have been littered with big dreams and spectacular failures.

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Fenway Center stands out among recent air-rights proposals because more than half its footprint — a triangular site running between Brookline Avenue and Beacon Street at Kenmore Square — sits on firm land. This fact helps assure the city and state transportation officials that the 1.3 million-square foot apartment, office, and parking project will actually break ground when it’s supposed to, early next year. Perversely, that surety makes the development a tempting legal target.

The Fenway project is piggybacking on a $26 million public investment in the area. The state is rebuilding and expanding Yawkey Station, and constructing a set of new roads to let commuters and buses get to the site. Previously, the only way to get to the commuter rail station was by hiking through some Red Sox parking lots. Now, those lots are at the center of a nasty legal spat targeting the entire Fenway Center development.

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The roads that will connect the new Yawkey Station to Brookline and Beacon run through private parking lots. The state is taking roadway easements from these parking lot owners, and paying their owners accordingly. But one of the parking lot owners, a real estate fund called HRPT Medical Buildings Realty Trust, is using the Yawkey Station road work to go after Fenway Center’s city approvals.

According to Fenway Center developer John Rosenthal, HRPT asked him for between $10 million and $12 million worth of free parking in Fenway Center’s new parking garage. When Rosenthal refused, HRPT sued the city of Boston in a bid to overturn Rosenthal’s zoning approvals.

“From a principle standpoint, and a business standpoint, it made no sense to cave in to that kind of absurd demand,” Rosenthal says. “It’s strictly a holdup for money or free parking, in my opinion.”

In March, a land court judge tossed out HRPT’s lawsuit. The company filed an appeal earlier this month; the land court case took three years to get thrown out, and there’s no telling how long an appeal could drag on. While settlement talks are confidential, it’s safe to say HRPT wants to get paid, be it in cash or expensive parking spaces, in return for dropping its suit.

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The land court said it dismissed HRPT’s lawsuit because the Yawkey Station construction and the Fenway Center development are two separate undertakings; public transit investments make the private development more attractive, but the public infrastructure is needed, with or without Fenway Center. The state is running a new road over HRPT’s parking lot because, as a city redevelopment official said during the lawsuit, “You cannot create a public transit station without any public access.” But it’s easier to exert legal leverage over private developers, who work under fixed margins and sensitive deadlines, than it is to pressure the state, so that’s what HRPT has done.

HRPT’s campaign against Fenway Center smacks of greed, since the company is already getting paid for the easement it’s losing, and since its real estate will benefit from infrastructure improvements. And on a macro level, Fenway Center is an important project for the city, because it will pilot a new model for financing construction over the Turnpike. When Fenway Center breaks ground, it will do so on an innovative lease that has the potential to unlock development along the Pike. This sort of construction should be encouraged, not exploited.


Paul McMorrow is an associate editor at CommonWealth Magazine. His column appears regularly in the Globe.