Inclusionary zoning, Cambridge’s method of ensuring there are affordable units in housing developments, is unconstitutional, claims a lawsuit filed Tuesday in the Massachusetts Land Court.
The suit was filed by the Pioneer Institute’s Legal Foundation and the Boston firm Pierce Atwood. The Pioneer Institute is a right-leaning think tank in Boston. It argues that the zoning cannot be imposed on the expected redevelopment of a row of homes in the Wellington-Harrington neighborhood.
But a ruling in the developers’ favor could be applied to other projects, and could undo zoning enacted in 1998 that has created nearly 1,600 units of affordable housing and allowed people with lower incomes to stay in Cambridge despite its surging rents and property expenses.
The lawsuit is clearly meant to be “precedent-setting,” said David Sullivan, a lawyer who was on the City Council from 1980 to 1990, including when the first inclusionary zoning was proposed. “We should be concerned about its effect on Cambridge and Massachusetts, where there are other cities that have similar requirements – including Boston – but we should also be concerned about setting a national precedent.”
Developer Columbia St. LLC owns the 2.5- and three-story buildings between 345 and 365 Columbia St. and plans to replace them with a 89,500-square-foot condominium complex, according to the lawsuit. But it balks at city zoning laws that sets aside 20 percent of the net floor area for affordable homes.
The zoning laws “constitute a taking of private property for public use without just (or any) compensation,” a violation of the Fifth Amendment to the United States Constitution and part of the Massachusetts Declaration of Rights, according to the lawsuit filed in the Land Court.
It quotes a Supreme Court precedent from 1960 that “one of the principal purposes of the Takings Clause is ‘to bar government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’”
Selling the affordable homes at the rates required by the law would bring in $3.6 million on square footage worth $15 million, the lawsuit says, and “such a covenant amounts to a requirement that Columbia convey directly to the city, for no compensation, valuable private property rights as a condition of obtaining a building permit.”
Behind the lawsuit is Patrick Barrett, a lawyer, Cambridge business owner, and developer with projects proposed in Harvard Square and North Cambridge. Barrett did not respond to a request for comment but his thoughts on the limitations of inclusionary zoning have been addressed for the past several months to the City Council and other boards.
The inclusionary ordinance “especially on smaller projects, is particularly daunting. Based on the existing zoning, it’s near impossible to make those kinds of numbers work,” Barrett told the Historical Commission in August, explaining the complexity of a Harvard Square hotel-and-homes project.
City government disputes the lawsuit’s allegations and plans to defend itself in court, said Jeremy Warnick, a city spokesperson.
The city’s inclusionary housing provisions “are a valid exercise of the city of Cambridge’s authority and consistent with both state and federal constitutional requirements,” Warnick said, noting that the Inclusionary Housing Zoning Ordinance has become a model for other communities looking to “ensure the socioeconomic diversity of the community is reflected in new housing.”
Sullivan said the lawsuit is “a loser – but not a slam-dunk loser.” The flaw he sees in the lawsuit, Sullivan said, is that “there’s no absolute property right to build.”
“I don’t see a difference constitutionally between a zoning ordinance that imposes a height restriction, which clearly limits your property rights and the profit you can make,” Sullivan said, “and a restriction that says, ‘Okay, you can build a little higher, but you’ve got to provide some affordable housing when you do.’”
He said that while the Supreme Court has made rulings that restrict what governments can do to regulate development, the Pioneer Institute Legal Foundation “is trying to spin the Supreme Court decisions in a very aggressive way.”
This story was updated to include a photo of a Cambridge building with inclusionary housing.
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Modern zoning is full of if/thens: “If you do this (e.g. plant more trees), then you can do that (e.g., reduce your parking requirement by 10%). Some of these if/thens are invented by the Planning Board in unique case special permit decisions. I leave it to experts to decide whether or not such conditional permissions are “fair” or even “rational” — but on the whole, they usually pass as legal.
I think there’s an argument to be made the IZ percentage is too high. I don’t think that governance by lawsuits is good, though.
Our rules shouldn’t be dictated by the few entities who have enough time and money to spend in court. This is true whether the intent is to remove bike lanes, block park improvements, or expand or reduce the amount of housing that can be built.
Lawsuit challenges to what some believe are illegal laws, have been going on for hundreds of years in America. These have not been dictated by a few elites.
This lawsuit is an excellent challenge to what many believe is an unlawful ordinance. Let’s see what the courts say.
What David Sullivan said is simply not true since February. The C-1 District has what might be considered compensation for inclusionary zoning, but the same cannot be said for any of the other upzoned districts. It’s a shame the complaint didn’t adequately address the issue of just compensation, which city officials have always touted as a necessary legal requirement for inclusionary zoning, until it was completely abandoned by the brain trust who put together February’s upzoning. Nor does it appear to be a consideration in the current push to upzone North Mass Ave and Cambridge Street.
Government by lawsuit is less necessary when government pays attention to following the law. I assume cwec supports Cambridge’s extensive participation in the lawsuitpalooza that gets listed periodically in the City Manager’s agenda. The residents of Cambridge are no less entitled to try to have their rights vindicated in court when Cambridge violates the law.
The WHOLE reason the up zoning passed 8 to 1 was because of the 20% affordable. Without that it might have gotten 3 votes. If they get rid of inclusionary, they need to rewrite zoning ASAP!
The hastily passed up-zoning of our entire city is fraught with Major issues. It gives nearly unlimited construction rights to developers & investors with no site specific review of building appropriateness for the city or community. The one community benefit was that if construction exceeded certain heights, 20% was required to be ‘affordable’. Not only the land, but now also the sky is being sold to the highest bidder. When this enormous transfer of community resources happens (sky, sunlight, water permeable land, green space, trees, enormous pollution & emissions from demolition & construction), along with an enormous transfer of wealth – the community expects to have at minimum, 20% affordable housing produced.
Already, a developer apparently wants the construction rights & profits; but he does not want to uphold the community benefit of 20% affordability.
So disappointing. Shameful on the developers part. And also disappointing that the city approved deeply flawed up-zoning.
Patrick Barrett sounds like a lovely person.
Some flavor of this Taking Clause challenge to zoning has come before the courts several times before, and the outcome has always been that municipalities are able to restrict and regulate what is built on land and how. Sure, they are legally entitled to take this suit up, but to reiterate, I do not think it is /good/. Continually trying the same arguments in court until it yields favorable results is not a particularly democratic system, in my opinion.
Lawsuits take time and money. Those that have less time and money are less likely to be able to successfully sue than those that have more time and money. Sorry for pointing out that reality.
The city council has been so ham-fisted with upzoning, with such an illogical approach, that I’m finally driven to do what had been unthinkable for me— support rent control, so these developers won’t want to come here anyway.
Cwec, would you like to give us some legal citations? Take a look at Sheetz v. County of El Dorado, a unanimous US Supreme Court decision not quite two years old (https://supreme.justia.com/cases/federal/us/601/22-1074/#) and then report back.
I will remind you that the City of Cambridge took the position that imposing inclusionary zoning without adequately compensating the owner of the property was an unconstitutional taking until this past February. Jeff Roberts helpfully reiterated that previous position as current law at Monday’s City Council meeting and yesterday’s joint meeting of the Housing and Health & Environment Committees. At an earlier meeting, we were reminded of the necessity of completing the nexus study that may or may not even have started yet in order for any inclusionary zoning exaction to be legal.