A communication transmitted from Louis A. DePasquale, City Manager, relative to Awaiting Report Item Number 20-15, regarding a report on the feasibility of limiting the number of Saturdays and holidays any one developer can be permitted for any one construction project

Assistant City Solicitors Nancy E. Glowa Paul S. Kawai City Solicitor Keplin K. U. Allwaters Sean M. McKendry Arthur J. Goldberg Megan B. Bayer Deputy City Solicitor Brian A. Schwartz Katherine Sarmini Hoffman Samuel A. Aylesworth First Assistant City Solicitor Public Records Access Officer Seah Levy CITY OF CAMBRIDGE Office of the City Solicitor 795 Massachusetts Avenue Cambridge, Massachusetts 02139 October 26, 2020 Louis A. DePasquale City Manager City Hall Cambridge, MA 02139 Re: Response to Awaiting Report No. 20-15 of 2/24/20, requesting that the City Manager confer with the Department of Public Works and other relevant City Departments to determine the feasibility of limiting the number of Saturdays and holidays any one developer can be permitted for any one construction project. Dear Mr. DePasquale: This is in response to Awaiting Report No. 20-15, Council Order No. O-2 of 2/24/20, attached hereto, which requests that the City Manager "confer with the Department of Public Works and other relevant City Departments to determine the feasibility of limiting the number of Saturdays and holidays any one developer can be permitted for any one construction project." Limiting the number of Saturdays and holidays with respect to a particular construction project by a particular developer may raise allegations of arbitrariness of the determination of which project should be permitted to work a discretionary number of Saturdays and holidays, and may even result in allegations of discrimination or of an equal protection violation. In granting and administrating a building permit, the City is under a "duty to act in a fair, judicial and reasonable manner... [and] cannot act in an unreasonable, arbitrary, whimsical or capricious manner." Castelli v. Board of Selectmen of Seekonk, et al., 15 Mass. App. Ct. 711, 714 (1983). Providing a limited number of Saturdays for a particular developer may raise allegations of differential treatment for certain projects which may require more time or may require more Saturday and holiday work, as opposed to other projects which may be done more easily during weekdays. Some developments require months to years of work, while other developments may only require a few days. Further, if there is a minority or women-owned business that is being developed at a slower pace due to particular issues related to the development being done by or on behalf of a minority or women-owned business, and the development requires more Saturday and holiday work due to any such reasons, there could be allegations of differential treatment and Facsimile [phone removed] TTY/TTD [phone removed] Telephone [phone removed]

2 raise the possibility of an equal protection claim. See, e.g., Cordeco Development Corp v. Santiago Vasquez, 539 F.2d 256, 258 (1" Cir. 1976)(holding that improper delay in issuing a sand extraction permit based upon allegations of "illegitimate political or at least personal motives" violated the plaintiff's equal protection rights). The potential legal issues that could be caused by the City making an individualized decision to put limitations on particular projects might be avoided if the City created objective standards that would apply to all developers so that the City would not be basing the limitations on who the particular developer is or where the project is. Objective standards could, for example, be based on zoning districts, the type of construction project or noise levels generated, among other possible factors. Because an individualized limitation could subject the City to potential allegations or claims related thereto, I do not recommend limiting the Saturdays and holidays ın which work may be done by a particular developer for a particular project unless the City develops objective standards such as those identified above. Very Truly Yours, Nancy B. Glowa City Solicitor Enc.