CMA 2021 #14 : A communication transmitted from Louis A. DePasquale, City Manager, relative to Awaiting Report Item Number 20-63, which requested a review of the granting of an extension for the 605 Concord Avenue project. CHARTER RIGHT EXERCISED BY COUNCIL NOLAN IN COUNCIL FEBRUARY 3, 2021 TABLED IN COUNCIL FEBRUARY 8, 2021

Nancy E. Glowa Assistant City Solicitors City Solicitor Paul S. Kawai AS ANTON Keplin K. U. Allwaters Arthur J. Goldberg Sean M. McKendry Megan B. Bayer Deputy City Solicitor Brian A. Schwartz Samuel A. Aylesworth SO RIGIMIN First Assistant City Solicitor Public Records Access Officer Seah Levy CITY OF CAMBRIDGE Office of the City Solicitor 795 Massachusetts Avenue Cambridge, Massachusetts 02139 February 1, 2021 Louis A. DePasquale City Manager City Hall Cambridge, MA 02139 Re: Response to Awaiting Report No. 20-63 Re: Report on reviewing the granting of an extension for the o05 Concord Avenue project. Dear Mr. De Pasquale: With respect to the above referenced Council Order, my response is as follows. 1. The Number of Affordable Units for the Project was Calculated Pursuant to Article 11, Section 11.203 of the Zoning Ordinance. On December 21, 2016, the Planning Board Decision in PB Case No. 319 re: 605 Concord Avenue, granting a special permit with conditions for the development of 605 Concord Avenue (the "Project") was filed with the Office of the Cambridge City Clerk (the "Decision"). In accordance with the provisions of Article 11, Section 11.203 of the Cambridge Zoning Ordinance ("Ordinance") fifteen percent (15%) of the total Dwelling Unit Net Floor Area within the Project was required to be devoted to affordable dwelling units.' The Dwelling Unit Net Floor Area of the Project as defined in Article 2 of the Ordinance, was determined to be 37,290 square feet.? The recorded covenant for the Project requires that seven (7) units totaling fifteen percent (15%) of the Dwelling Unit Net Floor Area, or 5,594 square feet, be provided as ' Article 11, Section 11.203 of the Ordinance states: "For Inclusionary Housing Projects issued a special permit or, if no special permit has been issued, a building permit on or after December 1, 2016 (the date of the first advertising of the most recent amendment to this 11.203) but on or before June 30, 2017, fifteen percent (15%) of the total Dwelling Unit Net Floor Area within the project shall be devoted to Affordable Dwelling Units." 2 The accuracy of the Dwelling Unit Net Floor Area for the Project was certified by the architect on July 15, 2019 and is so referenced in the recorded covenant, Book 73999, Page 198. TTY/TTD [phone removed] Facsimile [phone removed] Telephone [phone removed]

2 affordable dwelling units. The seven (7) units designated as affordable units in the recorded covenant include one studio unit, three (3) one-bedroom units, two (2) two-bedroom units and one (1) three-bedroom unit. Therefore, the number of affordable units for the Project was calculated as seven (7) units totaling 5,594 square feet. 2. The Planning Board Granted Extensions for the Project in Accordance with G.L. Chapter 40A and Section 10.46 the Ordinance. Pursuant to Massachusetts General Laws Chapter 40A, section 9, ("Ch. 40A, s. 9) zoning ordinances or by-laws "[s]hall provide that a special permit granted under this section shall lapse within a specified period of time, not more than 3 years..." In accordance with the statute, Article 10, Section 10.46 of the Ordinance ("Section 10.46"), provides that a Special Permit shall lapse within two years, not including the time to pursue an appeal, if construction was not begun by such date except for good cause. Here, the Project developer applied to the Planning Board on three (3) occasions for extensions of time to commence construction of the approved development and was granted three (3) separate extensions. On November 1, 2018, November 20, 2019 and October 29, 2020, the Planning Board issued decisions granting one-year extensions of time to commence construction for good cause. In each instance the extensions were granted at a public hearing in accordance with law. Extensions for good cause are permitted pursuant to Ch. 40A, s. 9 and as noted above, pursuant to Section 10.46 of the Ordinance. Good Cause is a discretionary determination made by the Planning Board and may include but is not limited to an applicant's pursuit of other required permits. See e.g. Ware Real Estate LLC v. Town of Ware, Mass. Mass. App. Ct. 1120(2012) (Rule 128 Decision); lappini v. Dakota Partners, LLC, 87 Mass. App. Ct.1103 (2015) (Rule 1:28 Decision). 3. Residential Projects that sought Special Permits but Have Not Obtained Building Permits. I have been informed by the Community Development Department ("CDD") that there are no other residential projects that were granted Special Permits after December 1, 2016 but before June 30, 2017, that have not yet obtained building permits. CDD has informed me that there are some mixed-use PUD projects that received a special permit prior to the amendments to the Ordinance but have a longer timeframe to obtain building permits. Very truly yours, Nancy E. Glowa City Solicitor 3 Section 10.46 provides: "A special permit granted under this section shall lapse within two years, not including such time required to pursue or await the determination of an appeal to the Superior Court or to the Land Court as provided in Section 10.22 from the grant thereof, if a substantial use thereof has not sooner commenced except for good cause or, in the case of a permit for construction, if construction was not begun by such date except for good cause." 2