A communication transmitted from Louis A. DePasquale, City Manager, relative to a further response to Calendar Item Number 2, regarding a report on reviewing the granting of an extension for the 605 Concord Avenue project, which was previously answered as Awaiting Report Item Number 20-63 on February 1, 2021. TABLED IN COUNCIL FEBRUARY 22, 2021

Nancy E. Glowa Assistant City Solicitors Paul S. Kawai City Solicitor Keplin K. U. Allwaters Arthur J. Goldberg Sean M. McKendry Deputy City Solicitor Megan B. Bayer Brian A. Schwartz 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 February 22, 2021 Louis A. DePasquale City Manager City Hall Cambridge, MA 02139 Re: SUPPLEMENTAL Response to Awaiting Report No. 20-63 Re: Report on reviewing the granting of an extension for the 605 Concord Avenue project. Dear Mr. De Pasquale: At the City Council meeting on February 1, 2021, Councilor Patricia Nolan exercised her charter right with respect to the response submitted by you to the City Council to Awaiting Report No. 20-63 (the "Response"), and by e-mail on February 5, 2021, Councilor Nolan followed-up with her reasons for her exercise of her charter right and the additional information she is seeking. Below is my response to the points raised in Councilor Nolan's February 5, 2021 e-mail, which is attached hereto. 1. Was the main question in Awaiting Report No. 20-63 answered? Awaiting Report 20-63 states: ORDERED: That the City Manager be and hereby is requested to review the granting of an extension for the 605 Concord Avenue project which appears counter to the City's zoning code and confer with the relevant departments on how many projects that had a permit prior to these changes could request an extension.... The first question in the above-order was whether the extension of the special permit for the project at 605 Concord Avenue was counter to the City's zoning code. That question was answered in the Response. The answer is "no", as the grant of an extension for this project was not counter to the Cambridge Zoning Ordinance (the "Zoning Ordinance"). A copy of the Response is attached for your reference. Telephone [phone removed] TTY/TTD [phone removed] Facsimile [phone removed]

2 As set forth in the Response, Inclusionary Housing Projects that received a special permit between December 1, 2016 and June 30, 2017, shall devote fifteen percent (15%) of the Dwelling Unit Net Floor Area to affordable dwelling units (see Section 11.203.2 of the Zoning Ordinance), and the special permit for the project at 605 Concord Avenue requires that. Also as set forth in the Response, G.L. c.40A, §9 and Article 10, Section 10.46 of the Zoning Ordinance allow for extensions of special permits upon a finding of good cause, and the Planning Board on three separate occasions has made such a finding and has extended the special permit for 605 Concord Avenue. Accordingly, the original special permit granted on December 21, 2016, which requires 15% of the Dwelling Unit Net Floor Area for affordable dwelling units, remains in effect. As extensions of special permits are permitted pursuant to state law and the Zoning Ordinance, it was not counter to the Zoning Ordinance to extend the special permit for the project at 605 Concord Avenue. The second question in Awaiting Report 20-63 asked how many projects that had been granted a special permit prior to these changes could request an extension. That question was ', as there are also answered in the Response. The answer, as set forth in the Response, is "none" no other projects that could request an extension of their special permit. No other residential projects that were granted special permits after December 1, 2016 but before June 30, 2017, have not yet obtained building permits. Once a project receives its building permit it has "exercised" its special permit and does not have to extend its special permit, so there are no other residential projects from that time period that will need to extend their special permit. ri How can the City legally require that a project with a special permit adhere to the provisions of the Zoning Ordinance in place at the time the project requests an extension of the special permit? Councilor Nolan expanded on this question and asked: "[s]houldn't all developments and requests for special permits be required to follow all zoning at the time of the extension? ... how can we ask for adherence to existing zoning?" As set forth above and in the Response, the answer is "no", special permits are not subject to the provisions of the Zoning Ordinance in place at the time an extension is requested, and the City cannot legally require that a development requesting an extension of its special permit conform to the provisions of the Zoning Ordinance in place at the time of the request for an extension. Pursuant to the Zoning Ordinance in effect at the time the special permit for 605 Concord Avenue was issued, the number of affordable dwelling units was correctly calculated, and that special permit remains in effect for two years pursuant to Section 10.46 of the Zoning Ordinance, and for any further time pursuant to extensions granted by the Planning Board. It is only if the special permit lapses and is not extended that the developer would have to seek a new special permit, in which case the new special permit would be subject to the current version of the Zoning Ordinance.

3 3. What is the basis of granting multiple extensions of a special permit? Councilor Nolan expanded on this question and further asked: "[t]here is also the question of whether granting three separate one year extensions is legal. ... wouldn't it make sense that multiple extensions are counter to the intent of our special permit ordinance guidelines which require construction to start within two years? Could you point to the requirements for granting an extension?' This question was answered in the Response. As set forth in the Response, it is legal for the Special Permit Granting Authority to grant extensions of special permits pursuant to G.L. c.40A, §9 and Section 10.46 of the Zoning Ordinance. Additionally, neither state law nor the Zoning Ordinance prohibit a Special Permit Granting Authority from granting multiple extensions, and therefore, multiple extensions are legal as long as the Planning Board finds "good cause." General Laws c.40A, §9 states: [z]oning ordinances or by-laws shall provide that a special permit granted under this section shall lapse within a period of time, not more than 3 years, which shall no include such time required to pursue or await the determination of appeal referred to in section seventeen, from the grant thereof, if a substantial use thereof has not sooner commenced except for good cause or, in the case of permit for construction, if construction has not begun by such date except for good cause. (emphasis added.) Zoning Ordinance Article 10, Section 10.46 states: [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. (emphasis added.) Accordingly, extensions of a special permit may be granted for good cause. Good cause is not defined in the statute or in the Zoning Ordinance; and therefore, a determination of good cause is left to the discretion of the Special Permit Granting Authority, which in this case is the Planning Board. Case law in Massachusetts provides that a finding of good cause to extend a special permit may include "diligent pursuit of additional permits." See Ware Real Estate, LLC v. Town of Ware, 81 Mass. App.Ct. 1120 (Rule 1: 28 decision 2012); lappini v. Dakota Partners, LLC, 87 Mass.App.Ct. 1103 (2015) (Rule 1:28 Decision).

4 A finding of whether or not good cause exists is in the discretion of the Planning Board. The Planning Board is an independent body that acts pursuant to state law and the Zoning Ordinance and can lawfully exercise its discretion to determine whether or not there is good cause for an extension of a special permit. That decision stands unless timely appealed and overturned by a court. Additionally, as of April 3, 2020, Governor Baker signed into law Chapter 53 of the Acts of 2020, an Act to Address Challenges Faced by Municipalities and State Authorities Resulting from COVID-19. The Act, as amended by Chapter 201 of the Acts of 2020, among other things, tolls or suspends statutory timelines related to permits including special permits. During the state of emergency, a special permit that existed as of March 10, 2020 does not lapse or expire within the normal time frame but is given until the state of emergency ends. Additionally, after the automatic extension, the Act entitles the special permit holder to a reasonable further extension for good cause at the discretion of the Special Permit Granting Authority or its chair. The Planning Board's most recent grant of an extension for 605 Concord Avenue in October 2020 referenced the Act and recognized the difficulties for the developer of proceeding under COVID- 19 restrictions. I will be available to discuss this further with the City Council. Very truly yours, Nancy E. Glowa City Solicitor Enc.

Nancy E. Glowa Assistant City Solicitors Paul S. Kawai City Solicitor Keplin K. U. Allwaters Sean M. McKendry Arthur J. Goldberg Deputy City Solicitor Megan B. Bayer Brian A. Schwartz Samuel A. Aylesworth Public Records Access Officer First Assistant City Solicitor 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 605 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. Facsimile (617) 349-4/34 TTY/TTD [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 3 Here, the Project developer applied to the Planning Board by such date except for good cause. 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