Cambridge developer Patrick Barrett’s potentially landmark suit against the city’s inclusionary zoning policy was scheduled to have a timeline set today but the court was closed because of conditions after the massive nor’easter that pummeled the Boston area.
Massachusetts Attorney General Andrea Campbell’s office had filed a motion to intervene, stating the case will “establish a constitutional test that may apply to potential future challenges to other communities’ inclusionary zoning ordinances.”
Under Massachusetts law, the Attorney General can intervene in a case if it challenges the constitutionality of state or municipal actions. Campbell’s office will defend Cambridge’s inclusionary zoning rules, the motion stated.
The move came after the plaintiff provided notice of the case to Campbell’s office in late January.
Barrett’s lawsuit in Cambridge is part of a wave of challenges to established zoning laws using the Fifth Amendment. In 2024 the Supreme Court ruled in Sheetz v. County of El Dorado that land use rules passed by legislatures are beholden to the Fifth Amendment’s “takings clause.” The clause, which states that the government cannot seize property without just compensation, is the basis for Barrett’s suit.
The Sheetz case “opened the door for developers to challenge the zoning statute directly,” Paul Johnson, a staff attorney at Pioneer New England Legal Foundation, told Cambridge Day.
Pioneer and Pierce Atwood filed suit against Cambridge on behalf of Columbia St. LLC, which is owned by Barrett, in December. In 2013, Columbia acquired five buildings with 20 market-rate rental units on Columbia Street just south of Inman Square. These include 363-365, 345-349, 357, and 359-361, with a total of 18,000 square feet. According to the suit, Barrett wants to create a $57 million condominium complex quadrupling the site’s current size.
A redevelopment of that size would be subject to Cambridge’s inclusionary zoning rules, which require that 20 percent of residential floor space in developments with 10 or more units be sold or rented below market rate. For Barrett’s project, that would mean units worth a projected total of $15 million could be sold for no more than $3.6 million, the lawsuit says, which would create “uncompensated costs” for the developer.
Inclusionary zoning rules are on the books in hundreds of jurisdictions in the United States. The Grounded Solutions Network, a nonprofit that supports affordable housing, counted over 1,000 policies in 31 states in 2019.
“There’s a real potential for this case to have an enormous precedential impact,” said Frank Bailey, president of Pioneer New England.
In the Greater Boston area, it would affect not just Cambridge, but Boston, which requires that between 17 and 20 percent of space in developments with seven or more units be affordable. In Somerville, rules are even broader: only four units are needed to trigger a 20 percent set-aside.
Some say that the suit challenges already settled law. “The constitutional questions have been settled for about five decades,” said Doug Ryan, vice president of housing policy at Grounded Solutions. He pointed to legal developments tracing back to the early 1970s: in Virginia, for example, state courts determined that local inclusionary housing policies did constitute unjust takings — but, after state statutes were changed and municipalities added incentives like density bonuses, the policies have stood.
“The most well-designed programs, and the ones, frankly, that we advocate for, like the one in Cambridge, [have] an incentive structure,” Ryan said.
In Cambridge, density bonuses allow developers to build up to six stories instead of four in districts zoned for townhouses and multi-family dwellings.
The city filed a response to the suit on January 26. It is not yet known when the case management conference will be rescheduled. Once the timeline is set, Johnson estimated the case could take roughly a year.
A stronger
Please consider making a financial contribution to maintain, expand and improve Cambridge Day.
We are now a 501(c)(3) nonprofit and all donations are tax deductible.
Please consider a recurring contribution.
Barrett is too embedded in Cambridge politics to have a fair conversation about Inclusionary Zoning. Barrett donated tens of thousands to Cambridge elected officials including: $500 Marjorie Decker, $1000 Tim Flaherty, $4680 Marc McGovern $7000 Denise Simmons and that only includes current elected officials. There are thousands more for prior candidates and councilors!
Massachusetts faces a severe housing shortage, and Cambridge’s inclusionary and multifamily zoning are among the few tools that have delivered mixed-income housing where it’s most needed.
Attorney General Andrea Campbell’s decision to defend these law is laudable. They are essential to addressing the affordability crisis and it is the right thing to do. Not just for Cambridge, but as a model for everywhere.
People need homes. Housing is a human right.
Doug Ryan is flat-out wrong when he says Cambridge’s inclusionary zoning scheme has “an incentive structure”. The article is also wrong when it says, “In Cambridge, density bonuses allow developers to build up to six stories instead of four in districts zoned for townhouses and multi-family dwellings.” The massive upzoning adopted a year ago got rid of density bonuses of all types in every residential district except for C-1, and Residential C-1 is the only district in which the stated bonus applies.
Nothing so crass or mundane as an actual study backing up the designed-on-the-fly two-story “bonus” was considered important by the brilliant City Councillors who preferred to ignore the warnings of professionals like me, an actual real estate lawyer. They didn’t consider the possibility that someone might build ten or more apartments in four stories. They didn’t consider anything because they’re so sure Cambridge is too special to have to obey the Constitution. Ends do not justify means.