The developers of 1740 Massachusetts Avenue, the proposed 71-unit six-story development at the corner of Linnean Street, did not receive the preliminary injunction they sought at a hearing Tuesday in Middlesex Superior Court. The noon hearing was on papers filed last Wednesday including the developers’ request, the city’s opposition, and the developers’ reply.
Judge Sarah Ellis didn’t decide the matter but said she would issue a decision soon, after a 45-minute hearing on the developers’ request that the court order the City of Cambridge to issue their building permit. It also touched on larger issues in the case like the legality of the inclusionary housing ordinance.
OND 1740 Investors LLC, the development entity for the project owned by Old North Development, filed suit in August challenging Cambridge’s inclusionary housing ordinance. The ordinance requires that new buildings of 10,000 sq. ft. or ten or more dwelling units set aside 20 percent of their space for affordable housing. The ordinance was first adopted in 1998, and the set-aside percentage was raised from 15 to 20 percent in 2017.
OND claimed that the city is withholding final pre-review signoffs from the project’s building permit and not allowing them to pay the $450,000 fee to start the formal permitting process. OND claims it is losing $23,600 each week in carrying costs and is asking the court to order the city to issue them the building permit.
Cambridge claims that Old North has not actually asked the city to issue a building permit; that Cambridge zoning requires them to sign an affordable housing covenant (contract) before seeking a building permit; and that regardless the issue is not ripe for judicial intervention because Old North has not followed the right process, which Cambridge says is formally requesting the building permit issue or seeking a zoning determination from Inspectional Services commissioner Peter McLaughlin, which both sides said they expected would be denied. Old North could then appeal the denial to the Board of Zoning Appeal.
Oral argument, plaintiffs first
The Old North developers, represented by Robert Stetson of Bernkopf Goodman, began by attacking the inclusionary housing ordinance, saying the question was “whether the city of Cambridge can impose the inclusionary housing requirement on an as-of-right project, without giving any bonus [of additional development rights]. The answer is clearly no.”
Stetson said inclusionary housing could only be imposed through a discretionary special permit (which would be issued through a public hearing process via the planning board or zoning board and then subject to appeal). Cambridge’s multifamily housing ordinance changes deliberately allowed substantial as-of-right development to avoid potential special permit appeals, which can be costly and delay development projects for years.
Stetson likened the inclusionary requirement to rent control — currently illegal in Massachusetts — a prohibited form of cities impacting “civil relationships,” and referenced landlord/tenant relations.
“But you don’t have any tenants yet,” Ellis observed. Ellis suggested that by imposing the affordable housing covenant requirement before the building permit, the city is “avoiding … interference with landlord/tenant relationships.”
Ellis noted Cambridge’s papers said Old North hadn’t paid the permit fee and the permit had not been denied.
“We’ve been asking for this building permit for months,” Stetson responded. “They have said, in no uncertain terms, ‘you’re not getting this building permit’ unless we sign this unlawful and unconstitutional covenant.”
“Without the Housing Department’s sign-off, we can’t get to the permitting process where we have to get to pay the fee. So, they’ve effectively created a scenario where we either sign the covenant and waive all of our rights, or we get stuck in this limbo.”
Stetson further argued that it would be futile to file an appeal with the Board of Zoning Appeal, because only a court can opine on the constitutionality of inclusionary housing or whether the inclusionary ordinance is beyond the city’s legal powers.
“So, from a practical standpoint, the action you’re asking me to take is to issue a [preliminary injunction] directing the City of Cambridge to issue a building permit?” Ellis asked, noting that she had only cursory knowledge of the project.
Stetson tried to point to a declaration the city submitted from Chris Cotter, its director of Housing, saying it made clear that the housing covenant was the only roadblock.
“I did not read that in their affidavits,” Ellis said. “I just didn’t see an affidavit saying everything else about the project is acceptable.”
Cambridge responds
Assistant City Solicitor Franziskus Lepionka began the city’s argument by saying the case didn’t meet the standard for a preliminary injunction, because there is no likelihood of success on the merits; the case isn’t properly before the court; there’s no subject matter jurisdiction; and Old North didn’t follow the required appeal procedure under the Massachusetts Zoning Act of going through the BZA.
Ellis asked Lepionka when the city would deny the permit, so that Old North could follow the process he laid out and appeal to the BZA.
“Well, they could pay the building permit fee and request a determination,” Lepionka said. Alternatively, “they could not pay the building permit fee and request a determination. That’s their route forward, right there.”
Ellis asked Lepionka for case law involving inclusionary housing for by-right projects rather than special-permit projects, saying she could not find any.
“I don’t think there are any cases, it’s simply the zoning — it’s the law,” Lepionka said.
“How do you respond to the argument that it’s basically an empty step to appeal to the BZA because the project’s been approved but-for this affordable housing, and because this is an ordinance that just applies to this development as it would any development project?” Ellis asked.
“If I wanted to be flippant, I’d say ‘don’t ask, don’t care,’” Lepionka said. “Strictly on the law, you have not asked, and you have not received an answer. The law clearly states that’s what you have to do.”
Ellis also quizzed Lepionka on the history of Cambridge zoning, its recent change to allow multifamily housing citywide, as well as background on the other pending case challenging the constitutionality of Cambridge’s inclusionary zoning ordinance, Columbia LLC versus Cambridge, brought by the Pioneer Foundation on behalf of developer and attorney Patrick Barrett. That case is in fact discovery through November and is scheduled for a status conference on November 13.
After allowing rebuttal from Stetson, Ellis took the case under advisement, saying she would try to rule “as soon as possible.”
Old North principal Adam Siegal and Stetson, his attorney, declined to comment after the hearing. Lepionka also declined comment.
A stronger
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