A communication transmitted from Louis A. DePasquale, City Manager, relative to Awaiting Report Item Number 18-33, regarding a report on whether or not Chapter 4.25 of the Cambridge Zoning Ordinance applies to the Inman Square redesign project and therefore whether or not a report should be made to the Planning Board

Assistant City Solicitors Nancy E. Glowa Paul S. Kawai City Solicitor Samuel A. Aylesworth Keplin K. U. Allwaters Arthur J. Goldberg Sean M. McKendry Deputy City Solicitor Megan B. Bayer Brian A. Schwartz Vali Buland REGIMINE First Assistant City Solicitor Public Records Access Officer Jennifer Simpson CITY OF CAMBRIDGE Office of the City Solicitor 795 Massachusetts Avenue Cambridge, Massachusetts 02139 April 2, 2018 Louis A. DePasquale City Manager City Hall Cambridge, MA 02139 Re: Response to Awaiting Report Number 18-33; Policy Order Resolution No. O- 6 of 3/5/18 Re: Report on Whether or Not Chapter 4.25 of the Cambridge Zoning Ordinance applies to the Inman Square redesign project and therefore whether or not a report should be made to the Planning Board. Dear Mr. De Pasquale: This will respond to the above referenced Council Order, in which the City Council requested that the City Manager seek a legal opinion from this office on the issue of "whether or not Chapter 4.25 of the Cambridge Zoning Ordinance applies to the Inman Square redesign project and therefore whether or not a report should be made to the Planning Board." BACKGROUND The City acquired land that currently makes up Mayor Alfred E. Vellucci Community Plaza ("Vellucci Plaza") pursuant to an eminent domain taking in or about January, 1980. The land was taken by the City for "recreation and open space purposes". The deed describing the parcel as "public recreation open space" was recorded in the Middlesex Registry of Deeds on February 8, 1980. Vellucci Plaza as it exists today was redesigned and improved in 2006 and has a total area of approximately 6,480 square feet. In or about October, 2016, the City initiated the Inman Square Intersection Safety Improvement Project (the "Project") which consists of designing and constructing physical improvements to Inman Square in order to address concerns about public safety particularly related to pedestrian, bicycle and automobile safety. The proposed design would reduce the size of the current Vellucci Plaza but would create a new Vellucci Plaza, on the opposite side of Hampshire Street adjacent to existing retail uses. It would also result in Hampshire Street being rerouted through a portion of Vellucci Plaza at its current Facsimile [phone removed] TTY/TTD [phone removed] Telephone [phone removed]

2 location. The proposed redesign of Vellucci Plaza will include a number of amenities for the public but will not include construction of any building or structure. IL. LEGAL ANALYSIS A. Approvals Required for the Project Vellucci Plaza was taken by the City for a purpose (public open space) protected by Article 97 of the Amendments to the Massachusetts Constitution ("Article 97"), and as such is subject to the protections of Article 97. Therefore, it is likely that if a road is constructed through a portion of Vellucci Plaza at its current site, legislative approval will be required. Although the construction of a roadway on land protected by Article 97 requires legislative approval, it does not require relief from the provisions of the Cambridge Zoning Ordinance ("Zoning Ordinance"). See e.g. Harrison v. Textron, Inc. 367 Mass. 540, 549 (1975) ("Although a municipality is subject to its own zoning regulations, (citations omitted) we know of no authority for the proposition that a public way, laid out by municipal action, pursuant to statute, may be used only for purposes permitted in the zoning district in which the public way lies"). See also, Harrison v. Braintree, 355 Mass. 656, 657 (1969) ("The town is not in a straightjacket. It may lay out public ways"). Therefore, as with any roadway used and maintained as a public way, the City is not required to obtain relief from the Zoning Ordinance in order to lay out and construct the roadway that is proposed to be rerouted through Vellucci Plaza. B. Section 4.25 of the Zoning Ordinance is Not Applicable to the Project The Zoning Act, G.L. c. 40A ("Chapter 40A") authorizes cities and towns to enact regulations for any purpose that affects the public health, safety, morals, or the general welfare. The Zoning Act also sets forth limits on the exercise of zoning power by municipalities. See, SCIT, Inc. v. Planning Board of Braintree, 19 Mass. App. Ct. 101, 108 (1984). Pursuant to Chapter 40A, cities and towns in Massachusetts are permitted to regulate the use of land, wetlands and flood plains, the size, height, bulk, location and use of buildings or structures, areas and dimension of open space and intensity of use, among other things. Chapter 40A, § 4, also referred to as the "Uniformity Provision" of the Zoning Act requires that "[a]ny zoning ordinance or by-law which divides cities or towns into districts shall be uniform within the district for each class or kind of structures or uses permitted." The Supreme Judicial Court has stated that the basic assumption of Section 4 is that "[e]ach land use will have a predictable character and that the uses of land can be sorted out into compatible groupings." See Leahy v. Inspector of Bldgs of New Bedford, 308 Mass. 128, 132 (1941). Pursuant to the authority granted by the Zoning Act to cities and towns, Cambridge, through its Zoning Ordinance, regulates the height and size of buildings and structures, the size and width of lots, yards and open spaces and the location and use of buildings, structures and land within the zoning districts that Cambridge has established. Article 4 of the Zoning Ordinance sets forth permissible uses within each zoning district. A use that is not permissible as of right in a particular zoning district may be permitted pursuant to the

3 grant of a special permit. However, as set forth above, the City may lay out public ways in any zoning district without obtaining zoning approval. While section 4.25 of the Zoning Ordinance sets forth a procedure for review of "[glovernmental and institutional non-open space development statutorily exempt from prohibition in designated Open Space Districts" and requires that "[a]ll uses in an Open Space District other than a park or recreation use permitted by Subsection 4.33.f shall comply with the procedural requirements of this Subsection prior to the issuance of any building or special permit, variance or other approval or before conveyance of any lot within the district"" these procedural requirements are not applicable to the Project because the physical improvements and amenities that are being proposed in the redesign of Vellucci Plaza do not include construction of any building or structure that would require either a building permit, variance or special permit and the proposed Project does not include uses set forth in Section 4.33.f, (other than a public park). Thus the provisions of Section 4.25 of the Zoning Ordinance are not triggered by the Project. ' Article 4, Section 4.25 provides as follows: "Non Open Space Uses in Open Space Districts. The purpose of this section is to provide for public notification and review of governmental and institutional nonopen space development statutorily exempt from prohibition in designated Open Space Districts. All uses in an Open Space District other than a park or recreation use permitted by Subsection 4.33.f shall comply with the procedural requirements of this Subsection prior to the issuance of any building or special permit, variance or other approval or before conveyance of any lot within the district. 4.25.1 A report shall be submitted to the Planning Board and filed with the City Clerk by the agency or other party proposing such non open space development or proposing to convey a lot. This report shall include the following information, as appropriate: (1) A map indicating the location and area of the land proposed for nonopen space development or for conveyance. (2) A description of the proposed development and future use of the area including information concerning the proposed site plan, physical design, and user population. (3) An analysis of alternative sites for the development outside of the district. (4) Evaluation of the anticipated impacts of the development or property transfer on the remainder of the open space district, upon the ability of alternative park and recreation areas in the neighborhood and city to meet the needs served by the affected open space district which would be displaced by the proposed action, and upon other land uses in the neighborhood (5) Any other information reasonably determined pertinent by the Planning Board 4.25.2 Within thirty (30) days of the receipt of a report required by Section 4.25.1, the Planning Board shall hold a public hearing concerning the proposed development or conveyance. Notice for the hearing shall comply with the requirements of Section 11, Chapter 40A, G.L. 4.25.3 The Planning Board shall prepare a report with recommendations concerning the proposed development or conveyance, including conditions that should be attached to such action. This report shall be filed with the City Clerk within thirty (30) days of the public hearing required in Section 4.25.2. Filing of such a report shall satisfy the requirements of this Section 4.25. Failure of the Board to file a report within thirty (30) days of the public hearing shall obviate any further actions under this Section 4.25." 2 Article 4, Section 4.33 f of the Zoning Ordinance enumerates local government uses that are permitted as of right, by special permit or not permitted within each zoning district. The local government uses set forth in Article 4 Section 4.33.f are as follows: (1) Administrative Office; (2) Fire or Police Station; (3) Museum; (4) Municipal Service facility; (5) Public park, playground or recreation building; (6) Municipal library.

4 CONCLUSION III. In my opinion, the proposed improvements and amenities to Vellucci Plaza including the proposed construction of a roadway are not governed by Chapter 40A or the Zoning Ordinance and as such Section 4.25, which requires a process for uses other than a park that are set forth in Section 4.33.f of the Zoning Ordinance, is not applicable to the project and a report to the Planning Board is not required. Very truly yours, City Solicitor