A communication transmitted from Yi-An Huang, City Manager, relative to Awaiting Report Item Number 22-62, regarding requests for a legal opinion and additional analysis on linkage fee rate increase discussion

Telephone [phone removed] Facsimile [phone removed] TTY/TTD [phone removed] Nancy E. Glowa Assistant City Solicitors City Solicitor Paul S. Kawai Diane O. Pires Megan B. Bayer Patrick C. Cento Deputy City Solicitor Kate M. Kleimola Sydney M. Wright Elliott J. Veloso Evan C. Bjorklund First Assistant City Solicitor Franziskus Lepionka Public Records Access Officer Seah Levy CITY OF CAMBRIDGE Office of the City Solicitor 795 Massachusetts Avenue Cambridge, Massachusetts 02139 October 3, 2022 Yi-An Huang City Manager Cambridge City Hall 795 Massachusetts Avenue Cambridge, MA 02139 Re: Response to Council Order No. O-12 of 9/12/2022 Re: Report on answers to any legal questions that came up during the linkage fee rate increase discussion that occurred during the regular City Council meeting on September 12th. Dear Mr. Huang: I am writing in response to Council Order No. O-12 of 9/12/22 which requests that the City Solicitor answer any legal questions that came up during the linkage fee rate increase discussion that occurred during the regular City Council meeting on September 12th. Specifically, at the September 12, 2022 meeting, Councilor Zondervan proposed a possible amendment to the Incentive Zoning Rate Increase Zoning Petition (the “Petition”), which would set the Housing Contribution Rate at $21.02 per square foot of Gross Floor Area (“GFA”) for the fist 30,000 square feet of GFA, and set the Housing Contribution Rate for the remaining GFA at $33.34. In the discussion of Councilor Zondervan’s proposed amendment, we understood Councilors to have asked if there is any additional legal analysis as to whether this proposed amendment would: 1) require new notice and a new hearing pursuant to G.L. c.40A, §5; and 2) require a new nexus study; and we will address those questions in this opinion. A. Background The original Petition sought to increase the Housing Contribution Rate applied to all Incentive Projects from $21.02 to $33.34 per square foot of GFA. At the September 7, 2022 Ordinance Committee meeting, the Ordinance Committee voted to amend the Petition to exclude the first 30,000 square feet of an Incentive Project from the calculation of the Housing Contribution payment, and sought to exclude “existing floor area that is demolished and subsequently rebuilt as a building project” from the definition of an Incentive Project. At the September 12, 2022 Council Meeting, Councilor Zondervan proposed a two-tiered Housing Contribution Rate, with one rate for the first 30,000 square feet of GFA of an Incentive Project, and with a second rate for the remainder of the GFA of the Incentive Project. The rate that

2 would be charged for the first 30,000 square feet would be the same rate that is the current Housing Contribution Rate paid by all Incentive Projects ($21.02), and the rate that would be charged for the remainder of an Incentive Project would be the same Housing Contribution Rate currently proposed by the Petition ($33.34). B. Analysis In my response to Council Order No. O-15 of 8/1/22, which was provided to the Ordinance Committee for its September 7, 2022 meeting (a copy of which is attached hereto for your convenience), I set out the standard for when an amendment to a pending zoning petition requires that there be new notice and a new hearing. Consistent with the legal standards set forth in that response, an amendment to a zoning petition requires new notice and a new hearing when the Council finds that the amendment changes the fundamental character of the petition. Therefore, the Council may determine whether or not Councilor Zondervan’s proposed amendment to the Petition changes the fundamental character of the Petition. If the proposed amendment would alter the fundamental character of the original Petition, the Zoning Act requires new notice of the proposed amendment and that a new hearing be held on the proposed amendment. Also, as set forth in my response to Council Order No. O-15 of 8/1/22, to pass constitutional muster, there must be an essential nexus between an exaction and a legitimate public interest, and a rough proportionality between the impact of the development and the particular exaction. The current nexus study does not address whether different sized Incentive Projects have different impacts on the need for affordable housing such that different Housing Contribution Rates for different sized Incentive Projects are proportional. Therefore, for the same reasons set forth in my response to Council Order No. O-15 of 8/1/22, I recommend that the Council obtain a new nexus study before proceeding with Councilor Zondervan’s proposed amendment. Very truly yours, Nancy E. Glowa City Solicitor