Zoning PUD Zoning Waivers response to BOA 9-28-2017 — File 204330

CITY OF SOMERVILLE, MASSACHUSETTS LAW DEPARTMENT Honorable Board of Aldermen City Hall Somerville, MA 02143 September 28, 2017 Re: Response to Item #203978 Zoning Ordinance Section 16.10.2 Dear Honorable Board Members: You have asked whether the Board of Aldermen may amend section 16.10.2 of the Somerville Zoning Ordinance, which allows application in a Planned Unit Development (PUD) for a " ... waiver of any new zoning regulation through the special permit with site plan review process before the SPGA ... " to exclude application for any waiver from inclusionary affordable housing requirements. It is my understanding that a PUD Preliminary Master Plan ("PMP") was previously issued by the Planning Board for the ongoing project at Assembly Square. At the time that the PUD-PMP was issued, the property owner was permitted by the existing PUD section of the zoning ordinance to seek a waiver from complying with any future change to the zoning ordinances. I have been informed that the prope1iy owner entered into a development covenant, made significant contributions to the public infrastructure, including the development of streets, improvement of publicly owned and publicly accessible open space, and made a significant investment in accordance with the Assembly Square Public Funding Agreement executed by City, the Massachusetts Department of Transportation, and Federal Realty Investment Trust, towards the construction of the Assembly Square MBTA Orange Line station. In my opinion, given the above facts, while the amendment itself does not pose a legal concern for new PUD projects authorized under the PUD section of the ordinance, the application of such an amendment to the above referenced PUD-PMP is vulnerable to successful legal challenge on the grounds that 1) the right to ask for a waiver authorized under the PUD-PMP would be deemed a "vested right" such that it is inequitable to take away the right to ask for a waiver, with respect to a previously approved PUD-PMP; and 2) it constitutes a regulatory taking under the facts. SOMERVILLE CITY HALL· 93 HIGHLAND A VENUE · SOMERVILLE, MASSACHUSETTS 02143 (6 I 7) 625-6600, EXT. 4400 • TTY: (6 I 7) 666-000 l • fAX: (6 17) 776-8847 somervillema.gov; E-mail: Law@somervillema.gov

Honorable Board of Aldermen September 28, 201 7 Page2 A vested right "is the right to initiate or continue the establishment of a use or construction of a structure which, when completed, will be contrary to the restrictions or regulations of a zoning ordinance or an amendment to it which has become effective in the meantime." Edward H. Ziegler, 4 Rathkopf's Law of Zoning and Planning§ 70:2. 1 Rights have been declared to have vested as a result of a court's determination that the circumstances of the case would render it inequitable for the restrictions imposed by an amendment to an ordinance to be enforced against a particular property. 4 Rathkopf's Law of Zoning and Planning§ 70:26. Moreover, traditional vesting tests may be inapplicable to large-scale developments. In Rockshire Civic Ass'n, Inc. v. Mayor and Council of Rockville, 358 A.2d 570 (Md. 1976),2 the comi noted: "[T]he question of vested ... rights in planned residential unit development is an interesting and difficult question, which will no doubt return to the Courts of this State ... While it is entirely clear that in conventional zoning applications, the prope1iy owner acquires no vested interest in the continuation of existing zoning ... it is equally true that we are not dealing with conventional zoning. The landowner invariably dedicates to the public use substantial amounts of valuable prope1iy, and improves other areas in a manner perhaps not most desirable to him, in return for the privilege of more intensive development, or commercial development, in other areas of the tract." In light of the rationale of the Rockshire case and equitable principles, in my opinion, given the above facts, the application of new zoning amendments to the previously approved PUD-PMP plan is vulnerable to successful legal challenge on the grounds that it would be inequitable for new restrictions to be enforced on the previously granted right to seek a waiver, as it may deprive a property owner of critical development rights predicated on the previously approved PUD- PMP. More specifically, in my opinion, if challenged, a court may conclude that the applicant anticipated a right to request a waiver when the PUD-PMP was approved, and substantial investments were made in anticipation of having the legal ability to request a waiver. Fmihermore, in my opinion, given the above facts, the application of the amendment to the previously approved PUD-PMP is vulnerable to successful legal challenge on the grounds that it constitutes a regulatory taking. In some circumstances, government regulation of the use of property may be so severe as to constitute a "regulatory taking." Pennsylvania Coal v. Mahon, 1 G. L. c. 40A, section 6 provides seven (7) independent protections from zoning changes for real prope1iy owners in the Commonwealth. In my opinion, the statutory protections do not specifically reference PUD's in any manner. 2 There is no Massachusetts caselaw on point. The only case I have been able to locate with similar facts is the Maryland case.

Honorable Board of Aldermen September 28, 2017 Page 3 260 U.S. 393, 415 (1922). Identifying when a regulation has gone "too far" is a fact sensitive inquiry. See Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 326 (2002); Penn Cent. Transp. Co. v. City ofN.Y., 438 U.S. 104 (1978). The Supreme Court has explained that there is no ''set formula" for when compensation should be made, but that the determination rests on "the particular circumstances" in each case after "an essentially ad hoc, factual inquir[y]." See Penn Cent. Transp. Co. v. City ofN.Y., supra at 124. In Penn Cent. Transp. Co. v. City ofN.Y., supra, the Court provided three factors to guide this inquiry: the extent to which the regulation interferes with the owner's distinct investment-backed expectations; the economic impact of the regulation; and the character of the government action. Given the above facts, in my opinion, it is reasonable to conclude that the character of the government action, namely, the abrogation of the ability to request a waiver from subsequent more restrictive zoning ordinances, may be deemed to interfere with the prope1iy owner's "distinct investment-backed expectations." Please feel free to contact me with any additional questions or concerns. Thank you. !Ji?~ David P. Shapiro Assistant City Solicitor