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Plaintiffs
v.
CITY OF SOMERVILLE, PLANNING BOARD
OF THE CITY OF SOMERVILLE, AND KEVIN
PRIOR, ELIZABETH MORONEY, JOSEPH FAVALORO,
JAMES KIRYLO, MICHAEL A. CAPUANO, AND
DANA LeWINTER, AS MEMBERS OF THE
SOMERVILLE PLANNING BOARD
Defendants
Somerville's Planning Board, filed on September 9, 2010 with the City Clerk, denying a request
for a Special Permit as more fully described herein. This follows upon the decision of the City
of Somerville's Senior Building Inspector, denying (on or about February 22, 2010 or February
23,2010) the plaintiffs application for a Building Permit. This action also seeks a declaration,
pursuant to G.L. c. 240, §14A, that the provisions of the Somerville Zoning Ordinance §7.13.K
and §6. I .22.D.5 are invalid, violate the provisions of G.L. c. 40A, are invalid as applied to the
Massachusetts and the Constitution of the United States, and that the actions of the City of
f. Dana LeWinter c/o City Hall, 93 HighJand Avenue, Somerville, MA 02]43.
named as "parties defendant with their addresses," plaintiffs counsel has attempted to obtain the
home addresses of these members of the Planning Board although the statute does not specify
that a "home" address is required. Plaintiffs counsel is informed by the Assistant City Solicitor,
David Shapiro, Esquire that the city no long publishes the home addresses of members of the
Planning Board pursuant to the provisions of G.L. c. 4, §7, Twenty-sixth, Exemption (0). In
order to comply with the provisions of G.L. c. 40A, §17, plaintiffs counsel has obtained via
Internet search, what appear to be the home addresses of the members of the Planning Board of
the City of Somerville. However, in order the preserve privacy and confidentiality of these
persons, this infonnation is attached as Exhibit "B" which is included in an envelope attached
hereto and -marked as Exhibit "c" and which may be sealed by Order of this Court.
Facts:
8. For some 40 years, the property at 299 Broadway, Somerville, was occupied by a
mercantile retail establishment selling general merchandise and food. Said establishment,
operating under the name Star Market, was also commonly referred to as a supermarket.
9. In January 2008 the lease under which Star Market operated at the premises was
teTTIrinated and thereafter the plaintiff Trustees sought a new tenant for the premises.
10. Following the cessation of operations by Star Market, the plaintiff, James A.
Cohen, Trustee, received a telephone request from the Mayor's development office to meet with
the Mayor. At that meeting, the Mayor produced a sketch showing a new development at the site
of the premises including stores on the lower level and apartments above and stated that he
11. The said plaintiff trustee pointed out to the Mayor that the proposed development
included two buildings at the comer which were not owned by the trust. The Mayor stated that
the trustee would have to buy the buildings at the comer and tear them down to complete the
development.
12. An Alderman named Pero was also present at the said meeting and stated that he
wanted a supermarket at the location. Upon being informed that there is a Super Stop & Shop
and a Shaw's Supermarket within close proximity, the alderman Pero stated "that's what my
people want."
13. As a result, the plaintiff trust turned to a real estate broker in an effort to obtain a
supermarket tenant for the premises. The real estate broker contacted many supermarket
companies and found no interest in the premises for a supermarket because the average
supermarket seeks premises with a size of approximately 44,000 square feet whereas the
14. As a result of efforts to rent the premises, the plaintiff trust was able to identify
15. Upon being informed of the interest of OSJL in the premises, the Mayor of
16. Following that declaration by the Mayor, the plaintiff trustee, James A. Cohen,
again met with the said Mayor and a representative of the city planning or development
department. At that meeting, the Mayor stated "over my dead body" would he allow OSJL into
the premises.
17. The said plaintiff trustee informed the Mayor that the development he proposed
was not economical but the Mayor insisted that the tenant had to be a supermarket or else, the
18. Upon infonnation and belief, the Mayor made his statements regarding a
supermarket or redevelopment, despite being infonned that no supermarket company was willing
to enter into a lease for the premises and that by attempting to limit the permitted preexisting
uses to a supermarket, he could effectively render the property useless from an income stand
19. In connection with his efforts to coerce the development of the property, upon
being told that the development was uneconomical, the said Mayor stated to the trustee: "I have
20. Thereafter, the Mayor met with the plaintiff Trustee James Cohen and
representatives of OSJL and repeated his intention not to allow OSJL into "my city." Further,
the Mayor stated that the City woulcl only approve a short-term leasewitbOSJL pmvidedthat
21. Thereafter, a document named Broadway Draft Covenant and titled Development
Covenant which was, based on the digital information shown in the Document Properties in
Microsoft Word, created on February 5,2009 by one Rob May who on infonnation and belief is
an employee of the City of Somerville in the Economic Development Office was provided by the
City of Somerville, to counsel for the plaintiff Trustee James Cohen. A copy of the said
22. Plaintiff trustees made a continuing good faith effort to obtain a supermarket
tenant and indeed, spent some six months negotiating with a business that operated a Portuguese
supermarket. However, when required to provide a stand-by letter of credit to guarantee the rent
as previously agreed, tills prospective tenant backed off and was no longer interested.
23. Approximately a week or two after the Mayor's "over my dead body" comment
referenced above, the plaintiff trustee James Cohen was advised that the City of Somerville was
creating an overlay district to further regulate zoning in an area that included the subject
premlses.
24. The City of Somerville imposed a moratorium and prohibited the plaintiff trustees
from having any other tenant occupy the subject premises while they conducted a study of the
25. By the actions of its Mayor, employees, and agents, the City of Somerville
prevented the plaintiff trustees from renting the premises to OSJL and deprived the property
owner Trust of its right to earn rental income from the property.
tenant interested in renting the property, plaintiff trustees entered into a lease with OSJL and
again went to meet with the Mayor of Somerville. The plaintiff trustee and his counsel advised
the Mayor that OSJL was the only tenant expressing interest in the premises. The Mayor stated:
28. When the plaintiff trustees attempted to file an application for a Building Pennit
the City of Somerville's employees engaged in stalling tactics by refusing to accept the
application for filing, requesting plot plans for the parking lot, demanding a traffic study and
Permit, the City refused to accept the same under the pretext that the City accepted applications
30. The stalling tactics and delay in accepting the application for a Building Pennit
were designed to allow enactment of provisions relating to the CCD-55 Zoning District so as to
force the property owner to apply for a Special Pennit despite the existence of a preexisting
lawful use.
31. In the meantime, while denying the plaintiff trustees and OSJL the opportunity to
file applications for a Building Permit, the City of Somerville enacted provisions of the
SomerviHe-Zoning:8rdinance ('~SZ.e~}ineluding+}:1~and~it.Ysub-pa:rtsineluding·§7-;B·.K-the
Large Retail Use Cluster in the CCD-S5 Zoning District, so-called and related provisions of
§6.1.22.
32. The City of Somerville failed to give proper notice by publication and to affected
33. On or about February 4, 2010 the City of Somerville received and docketed
plaintiff Trust's application for a Building Permit to make the premises suitable for use by OSJL.
7
The application reflected that plaintiff trust intended to do interior demolition and fit out of
offices and restrooms, restoration of walls, floor, ceiling, minor exterior renovations, painting of
column, etc., electrical upgrades with new lighting and installation of an Americans with
Disabilities Act ("ADA") compliant restroom on the first floor, a new roof, installation of a new
HVAC system, and exterior improvements to the building along with creation of green space
added to the property. None of the foregoing uses in any way changed the preexisting use of the
premises as a mercantile establishment for retail purposes selling a general mix of merchandise
34. On or about February 22, 2010 or February 23, 2010 the City of Somerville's
Senior Building Inspector denied the application for Building Pennit and issued a notice dated
February 22, 2010 stating that the SZO for the "application to convert a supermarket to a general
merchandise store requires the following zoning approval" which alleged requirements were
35. The plaintifftrust made a timely appeal of the denial of the Building Pennit to the
36. By its decision dated September 2, 2010 and filed with the City Clerk on
application for a Special Permit for the use of the premises to be operated as a store by OSJL and
to make the interior improvements and exterior changes described in the application for the
Building Permit.
37. The Building Inspector of the City of Somerville made an improper and erroneous
decision that the application for a Building Permit required zoning approval as stated in his
8
February 22, 20J 0 notice. The Planning Board of the City of Somerville has failed to appreciate
that the Building ]nspector' s decision was erroneous and fails to recognize that the use of the
premises for mercantile purposes for a retail establishment, whether of Ocean State Job Lot or a
supennarket so-called is a pre existing use not subject to zoning approval. The decision in that
respect exceeds the authority of the Building ]nspector and exceeds the authority of the Planning
Board.
WHEREFORE, plaintiff trustees pray that the decision of the Building ]nspector and the
SOMERVlLLE
38. The decision of the Planning Board of Somerville is erroneous and improper in
a. The underlying zoning provisions used by the Planning Board to deny the Building
Permit and Special Permit is invalid because it effectively eliminates all substantive uses
of the property.
b. The Planning Board used an improper and inappropriate process to require a Special
Permit and has attempted to limit uses of the premises by seeking to impose
c. The Planning Board has improperly attempted to regulate the use of the property because
of the identity of the user while conceding that the use would otherwise be appropriate
d. The Planning Board's decision makes no findings consistent with the necessity of a
Special Permit;
9
e. The decision of the Planning Board is an invalid attempt to force the property owner to
f. The Planning Board's decision concedes that the information provided by the plaintiff
trustees conforms to the requirements of the SZO and allows for a comprehensive
analysis of the project but erroneously concludes that there are "required Special Permits,
use."
g. Although the Planning Board admitted that "to the extent possible for the existing
structure, the proposed fa<;ade and signage changes comply with the design guidelines for
the CCDs "(§6.1.22.H)" the Planning Board nevertheless based its decision, in part, on
the inconsistent finding that failure to reorient the entrance door failed to comply with the
h. The Planning Board's conclusion that changes it deems desirable cannot be accomplished
without substantial renovation or redevelopment and that the parlGng lot remains the
dominant feature of the property rather than being hidden from view are not proper
reasons for denial of the Building Permit. These are arbitrary and capricious reasons and
1. The Planning Board's conclusion that the use of the structure itself is a significant barrier
to pedestrian activity is not a proper basis upon which the use can be denied. The zoning
laws are not intended to regulate the means and methods by which potential users get to a
property to enjoy a permitted use and the property owner has no obligation to influence
the manner in which customers and users will gain access to its facilities.
10
J. The PlanningBoard' s decision speculates, without basis, that the proposed use is a store
that is designed to draw from throughout the region and encourage fewer trips with larger
purchases. Even if true, the attempted use of Zoning Regulation to limit the geographical
area from which a business may draw its customers is improper, violates the property
owner's and tenant's right to earn income from rental and sales, respectively, and is an
k. The Planning Board's decision erroneously uses the stated purposes of the SZO, to wit, to
(i) conserve the value of land and buildings, (ii) encourage the most appropriate use of
land throughout the city, and (iii) increase the amenities of the municipality as a basis for
denial of the Building Permit and Special Pennit. The stated goals may be appropriate
for future development but they cannot be used to curtail the use of the plaintiffs
are arbitrary, capricious and vague standards that allow for unfettered administrative
making in seeking, on the one hand, a reduction in traffic while, on the other hand,
to the area.
39. The Planning Board's improper reasoning is stated in its conclusion that the
proposal is not consistent with the specific purpose of the SZO when it states that "the proposal
insures that a valuable parcel ofland ...will remain with a single story structure at a floor-area
ratio under 0.3 for the foreseeable future." One part ofthe Planning Board's decision
erroneously concludes that "the proposal insures that the site will not be conserved and used for
11
its greatest value." In fact, tills decision is self-contradictory because if the building is to remain
in its current condition and for its current use, then by definition it is being "conserved" and the
determination of what is the "greatest value" is an economic decision to be made by the property
40. In seeking to effectuate the stated purposes of the CCD-55 Zolling District in
§6.l.22.a ofthe Somerville SZO, the Planning Board erroneously and improperly exceeded its
authority by creating conditions under which use of the property will require redevelopment such
as an active mid-rise commercial and residential development. This decision not only prevents a
lawful preexisting use, but is an attempt to force the property owner into an uneconomical
development project to satisfy the subject desires of the Mayor, an Alderman and the Planning
Board.
41. The Planning Board's decision improperly and erroneously refused to grant the
Building Permit and Special Permit on the grounds that the proposal would affect the area for
many years. It was beyond the authority of the Plmming Board to limit the time period within
which a permitted and pre existing used might continue. The Planning Board's arbitrary and
capricious reasoning unreasonably interferes with the proposed tenant's business decisions and
Nevertheless, the Planning Board did not allow a Building Permit on condition of a shorter lease
42. The Planning Board's decision focused on the identity of the user, OSJL and used
anecdotal fact-gathering regarding the operations of OSJL to arrive at its arbitrary and capricious
decision. The Planning Board thus exceeded the scope of its authority in failing to determine
]2
propriety of use ra1her than the personal satisfaction ofPlanillng Board members with the
43. The Planning Board's decision erroneously denied the Building Permit and
Special Permit on the grounds that the intent of the Zoning District is to facilitate mixed use,
multi-story development and that the proposed use by OSJL does not meet that goal.
lmplementation of that goa} inherently requires redevelopment of the property and attempted to
punish the property owner for having extended the lease of the existing drug store in the adjacent
parcel ofland. The "intent" of the Zoning District is a statement regarding future development
or redevelopment and cannot lawfully be applied to existing structures and lawful existing uses.
44. The Planning Board erroneously exceeded the scope of its authority by refusing to
grant the Building Permit and Special Permit on the grounds that the owner had refused to divide
the store into smaller stores that would allow for a specialty or ethnic food market which the
Planning Board stated would be more compatible with community needs in the short term. This
decision exceeded the authority ofthe Planning Board. The Planning Board's attempt to coerce
the property owner into serving the needs of a particular ethnic community is an unlawful
interference with the property owner's right to use the property based on criteria involving race,
45_ The Planning Board's decision also erroneously denied the Building Permit and
Special Pennit on the grounds that the proposed use of the property seeks to extend the status
quo far into the future thus limiting any redevelopment opportunity and concluding that the
project is in conflict with the purpose of encomaging mid rise development. The Planning Board
exceeded its authority in so interpreting and enforcing the SZO by attempting to impose arbitrary
13
and capricious time limits and coerce development or redevelopment as a condition of continued
lawful use.
46. The Planning Board's decision indicates that the Planning Board abandoned its
role as a permit granting authority and took up the task of dictating the uses of property by
reference to what it perceives to be the healthy dietary and exercise needs (walking and biking)
of city residents. Thus, the Planning Board exceeded its authority by denying the Building
Permit and the Special Permit on the grounds that the property owners proposal to lease to OSJL
does not include the retail of fresh foods. This decision is arbitrary and capricious and the
zoning ordinance is vague and lacks definable standards by which property owners may fashion
their conduct and allows for unfettered and subjective administrative decision-making by the
Planning Board.
47. The Planning Board's decision exceeded its authority in concluding that the OSJL
store would cater to customers coming a significant distance from the store via automobile. This
speculative approach to decision making is without standards and exceeds the authority of the
Planning Board and denies the property owner due process of law. It is also an unlawful attempt
to limit the geographical area from which a business may draw customers and imposes an
unlawful.,.reslraint-0ncinterstate~commetcecin-vi61atioIi6f-theecmstitutjon~ofthe'UI1ited'States·:··
48. The Planning Board further speculated about what customers would do in terms
of shopping at a specific discount store and then returning home, speculated as to the potential
unpredictable human behavior. Moreover, the Planning Board inconsistently seeks to have
pedestrians and bicyclists browse in multiple stores in the location without considering the
common sense limitations on how much a pedestrian or bicyclist can purchase and carry.
14
Therefore, the Planning Board's conclusion oflack of benefit to adjacent stores is entirely
speculative. The decision based on such speculation is arbitrary and capricious and exceeds the
Planning Board's authority. The Zoning Ordinance permining such speculative, arbitrary and
49. The Planning Board's decision recognizes that there are no historic structures on
the site but nevertheless denied the permit on the grounds that the property "provides no
the Planning Board engaged in self-contradictory, arbitrary and capricious decision making with
no basis in fact and on subjective and vague criteria, thereby exceeding its authority.
50. The Planning Board's decision erroneously relies upon its conclusion that rather
than being largely neighborhood-servicing, the proposed use draws on a regional market.
Although the Planning Board decision concludes, entirely on speculation that a Somerville store
is likely to result in significant vehicle trips from outside the city, the Planning Board and the
SZO are not proper vehicles for requiring that a property owner or a business owner must
somehow limit its business to local residents only. The decision interferes with the property
owner's and tenant's right to engage in interstate commerce without arbitrary restraints imposed
51. The Planning Board)s decision is based on speCUlation regarding traffic impact,
parking demand, trips by private vehicle allegedly replacing pedestrian and bike trips, and
conclusions that a discount store with a regional draw is likely to generate longer distance
vehicle trips. As a result, the Planning Board erroneously, improperly, arbitrarily and
capriciously concluded that a large discount store in this location is inconsistent with the purpose
15
of this district. The Plaruring Board had no right or authority to make such a detennination
which exceeds the scope of its authority and exceeds the scope of regulation permitted under
zoning laws. The decision is arbitrary, capricious and the zoning ordinance is vague and
52. The Planning Board's decision arbitrarily, capriciously and based entirely on
speculation projects that a supermarket "could generate a significant portion of its trips through
walking and biking." In concluding that the proposed discount store does little in its urban
design to support pedestrian and bicycle activity, and its use does not encourage pedestrian and
bicycle activity, the Planning Board erroneously sought to place the burden on the property
owner and OSJL to create a business use that indirectly and remotely influences the
transportation choice of customers as to how they are to get to the premises. This approach to
use of zoning laws is novel, unprecedented, and entirely not in keeping with the scope of
permitted regulation under zoning laws. The Planning Board exceeded its authority in this
respect and applied arbitrary and capricious reasoning. The purpose of zoning laws is limited to
reasonable regulation of use and structures and is not a proper vehicle for attempting to change
behavior of the public at large or the walking and bicycling segment of the public. Since the
Planning Board had any objective basis for its erroneous and speculative conclusion.
53. Although the Planning Board detennined that the proposed changes to the
structure's falYade are compatible with the built and unbuilt surrounding area, the Planning Board
nevertheless denied the Building Pennit and Special Pennit. In relying upon the criteria of
alleged compatibility with the more traditional store fronts on adjacent and nearby blocks, the
Planning Board improperly focused on the appearance of the property rather than on whether the
16
use was pennitted. Such criteria are arbitrary and capricious and the zoning ordinance is vague
54. The Plarming Board decision demonstrates the inherent contradictions in the
section, the Planning Board acknowledges that the CCD "purpose statement" in the SZO does
allow regional serving uses, but erroneously concludes that such uses are not permitted as "single
uses on large scale sites within a neighborhood shopping district." Further, the Planning Board
acknowledges that the OSJL use "could be acceptable if it was located within a quality mid rise
mixed use building, mixed with other local servicing retail uses, and placed some distance from
parking," but then proceeds to deny the use all together. Thus, the Planning Board Decision
admits that the use is proper, but nevertheless denies the Special Permit on the basis that the use
is not acceptable. The decision is arbitrary and capricious. The Planning Board exceeded the
scope of its authority in making this decision and exceeded the scope of permissible regulation
55. The Planning Board decision improperly relies on the existing building form-as a
reason for denial of the Building Pennit and Special Permit while acknowledging that the
56. The Planning Board decision improperly relies on the factor captioned "timing"
to declare its intent that the property be redeveloped and exceeds the scope of its authority in
attempting to use the SZO, the Building Permit process and the Special Pennit process to force
the property owner to redevelop his property and to limit the duration of a permitted lawful
existing use.
57. The Planning Board decision states: "this particular use in this existing Structure is
17
an unacceptable combination. While this use as part of a new structure may be appropriate and
other uses within the existing structure may provide a short tenn solution, neither option is
before this Board at this time." This statement is intema1ly inconsistent, self-contradictory and a
clear example of the Planning Board's having exceeded its authority and attempting to impose
improper, arbitrary and capricious restrictions on the property owner. The board has
ac1<nowJedged by this aspect of its decision that the use by OSJL is in fact an appropriate use
within a new structure. Thus, the Planning Board decision seeks not to regulate the "use" but
rather the form of the structure. In this respect, the Planning Board exceeded the scope of its
58. The Planning Board improperly, arbitrarily and capriciously treated OSJL as a
different use than a supennarket whereas the OSJL store sells a mix of merchandise and food
products that is similar to merchandise and food products, not including fresh produce and dairy,
annulled.
60. The provisions of the SZO relied upon by the Bui1ding Inspector of Somervill e
and the Planning Board of Somerville to make the proposed use by OSJL subject to zoning
and/or subject to a Special Permit are invalid as attempts to regulate, prohibit, or deny an existing
use in an existing structure, which pre existing uses were lawfully in existence and which
18
61 . The provisions of the SZO relied upon by the Planning Board are invalid because
they essentially deprive the plaintiff trustees of all substantive use of their property.
62. The provisions of the SZO relied upon by the Planning Board are invalid because
they improperly attempt to use the Special Permit process to limit lawful uses of the property and
63. The provisions of the SZO relied upon by the Somerville Building lnspector and
the Planning Board of Somerville invalid as applied to the plaintiff trustees and their particular
property because, even if vaJid as to a property where an entirely new use might be
contemplated, as applied to the subject property, the provisions deny substantive economic use
of the property.
64. The provisions of the SZO relied upon by the Building Inspector to deny the
Building Permit and by the Planning Board to deny the Building Pennit and Special Pennit are
invalid because they amount to a partial and ongoing regulatory taking of the plaintiff's property
and because by circumscribing the plaintiff property owners ability to conduct a business that is
regional or interstate in scope, the SZO and the Planning Board have imposed an unlawful
restraint on interstate commerce in a manner prohibited by the Constitution of the United States.
65. The Provisions of the SZO, insofar as they permit the Planning Board to requhe
the property owner and tenant to serve a particular ethnic community violate the civil rights of
the plaintiff Trustees and prospective tenant based on improper and discriminatory criteria
involving race, color, creed or national origin in violation of the Constitution of the
19
66. The SZO is void for vagueness inasmuch as it provides no definable standards to
whlch property owners, and this particular property owner, may conform their conduct and
allows for unfettered administrative discretion and arbitrary and capricious subjective decisions
67. The SZO violates the provisions of G.L. c. 40A and is therefore invalid.
68. Upon infonnation and belief, the SZO has created a Zoning District in which the
only properties exceeding 10,000 square feet are those owned by the Plaintiff Trustees. The
SZO is therefore a discriminatory ordinance singling out the properties of the Plaintiff Trustees
and constitutes spot zoning in violation of G.L. c. 40A and is a denial of the equal protection of
the laws guaranteed to plaintiffs by the Constitution of the United States and the Constitution of
Wherefore, plaintiff trustees pray that the decision of the Planning Board be
annulled, and that the provisions ofthe Somerville Zoning Ordinance utilized by the Building
Inspector and the Planning Board to deny the Building Permit and to deny a Special Pennit be
declared invalid and unenforceable in total, or invalid and unenforceable as applied to the
. CO l:J-NT- IN··=Taking-ofPlaintifFs-Property
69. Plaintiff trustee adopt by reference and restate the avennents in all preceding
Paragraphs.
70. The actions of the Building Inspector and the Planning Board of Somerville in the
guise of satisfying some public purpose as stated in the SZD and repeated by the Planning Board
decision, amount to a denial to the Plaintiff Trustees of the right to use their property for all
substantive uses and a deprivation of their property rights and the right to earn rental income.
20
71. By its actions, the City of Somerville has engaged in a partial regulatory tiling of
the plaintiff's property by denying the plaintiff trustees the right to the benefits of their property
and the rental income therefrom to date and continuing. In particular, the proffering of the
Broadway Draft Covenant, or Development Covenant so-called, in the form of Exhibit D was an
obtaining approval for use of the property by OSJL and constitutes an unlawful taking without
just compensation and without consent or due process, in violation of the United States
Constitution, Fifth and Fourteenth Amendments, and the provisions of the Constitution of the
Development Covenant grants an option to the Somerville Redevelopment Authority and/or its
nominee, without limitation as to who the nominee might be, to acquire the property with only
subjective protection against a forced sale. The denial of plaintiff Trustees' application for a
Building Permit absent the compulsion of signing the Development Covenant is an unlawful
taking of the property and the actions of the City have deprived the plaintiff Trust of its property
rights and right to earn rental income without due process of law and without just compensation.
72. The actions of the City of Somerville and its Planning Board amount to a
the guise of studying a proposed zoning ordinance to confer an alleged public benefit, is a
deprivation ofthe Plaintiff Trustee's property without due process of law and without just
21
74. The actions of the City of Somerville, its Planning Board and Building Inspector
violate the provisions of the Fifth and Fourteenth Amendments to the Constitution of the United
States and the provisions of Part 1, Articles X and Xll of the Constitution of the Commonwealth
Wherefore, the plaintiff trustees pray that this court award damages for the loss of income
sustained by the plaintiff trustees and for the taking by the City of Somerville.
Respectfully submitted,
Cornar Real Estate Trust
By its Attorneys,
Anil Madan
BBO #312560
Madan and Madan, P.c:
th
77 Franklin St., 4 Floor
Boston, MA 02 1lO
617-398-0656
Fax: 617-723-3] 63
Cell: 617-680-5700
email: anil@madans.com
22
20m SEP - q -
P b: 42
•••• J .- "-',.'
f-'r :-;;~";' ~
•. ! .) UFF!C!:"
- '.-I t. '
- -. # : j Ii
JOSEPH A. CURTATONE
MAYOR
PLANNING DNISION
MICHAEL A. CAPUANO, ESQ. Date Filed with City Clerk: September 9, 2010
Applicant Name:
Comar Real Estate Trust (James Cohen, Trustee)
Applicant Address:
89 Winchester Street, Brookline, MA 02446
Agent Name:
Robert L. Allen, Jr., Esq.
Agent Address:
300 Washington Street, Brookline, MA 02445
Legal Notice:
Applicant/Owner, Comar Real Estate Trust - James Cohen, Trustee,
seek a special permit for the use of a Large Retail general merchandise
store (SZO §7.I3.K) and a special permit to alter the structure and
signage (§6.1.22.D.5).
Zoning District/Ward:
CCD 55. Ward 4.
Date of Application:
March 22, 20 I 0
Date of Decision:
September 2,2010
Vote:
5-0
Case #PB 2010-04 was opened before the Planning Board at Somerville City Hall on June 24, 2010. Notice of the
Public Hearing was given to persons affected and was published and posted, all as required by M.G.L. c. 40A, sec.
11 and the Somerville Zoning Ordinance. After two hearings of deliberation (8/24 and 9/2), the Planning Board
took a vote.
SODlen'ille
b::C:r.i CITY HALL. 93 HIG1-ll.-AND AVENUE. SOMERVILLE, MASSACHUSETTS 02143
'fIjIf (617) 625-6600 EXT. 2500. TTY: (617) 666-0001 • FAX: (617) 625-0722
www.somervilIema.gov
2lI09
P L·u,2
1010 SEP -q 0
DESCRIPTION:
_,' r~' C~!~·C\ nFF\C~
The proposal is to change the structure's use from a supermarket to a General Mero1Htndise:Stofe(Oceap. State Job
Lot) in the Large Retail Use Cluster in the CCD-55 Zoning District (SZO §7.13.K) and a specia:rpermitto alter the
structure and signage (§6.1.22.D.5). The proposal will add fayade improvements, signage, and landscaping to the
existing site. The interior of the structure will be renovated but the existing footprint will remain~ the same.
In order to grant a special permit, the SPGA must make certain findings and determinations as outlined in §5.1.4 of
the SZO.
1. Information Supplied: The information provided by the Applicant conforms to the requirements of §5.l.2
ofthe SZO and allows for a comprehensive analysis of the project with respect to the required Special Permits.
2. Compliance with Standards: The Applicant must comply "with such eriteria or standards as may be set
forth in this Ordinance which refer to the granting of the requested special permit."
To the extent possible for the existing structure, the proposed fayade and signage changes comply with the design
guidelines for the CCDs (§6.1.22.H). The applicant worked with Planning Staff to increase visual and pedestrian
interest along Broadway through the addition of five columns to the windowless brick fayade. The existing metal
roofing will also be repainted in a more aesthetically appropriate color.
Despite compliance, the positive impact of the changes is limited by the massing and siting of the existing structure.
The property will continue to lack an inviting and pedestrian-oriented streetscape without substantial renovation or
redevelopment that is not a part of this proposal. The proposal does not encourage pedestrian activity as it fails to
reorient the main entrance toward the sidewalk. The parking lot remains the dominant feature of the property rather
than being hidden from view. The applicant did not provide any significant buffer between vehicles in the parking
area and the pedestrians on the sidewalk. The existing guardrail that is designed to be appropriate for a highway, not
a walkable neighborhood, would remain on this site plan. The most significant barrier to pedestrian activity is the
use of the structure itself. While the previous use on this site was a supermarket that met the daily needs of
residents, the proposed use is a store that is designed to draw from throughout the region and encourage fewer trips
with larger purchases, a model that is not compatible with pedestrian activity.
In general, while this proposal will fill a vacant building, it will not bring any significant benefit to the streetscape
and urban design ofBroadway on Winter Hill.
3. Consistency with Purposes: The Applicant has to ensure that the projec:t"is con~istent with(l) the general
purposes ofthis Ordinance as set forth in Article I, and (2) the purposes, provisions, and specific objectives
applicable to the requested special permit which may be set forth elsewhere in this Ordinance, such as, but not
limited to, those purposes at the beginning of the various Articles."
The proposal is not consistent with the specific purpose ofthe SZO above. The proposal ensures that a valuable
parcel ofland that was identified for up-zoning in a new zoning district approved in February 2010 will remain with
a single story structure at a floor-area ratio under 0.3 for the foreseeable future. The proposal ensures that the site
Somerville \ OftE C/lU.",cm HAll.:
b:C:r.i ClTY HALL. 93 HIGHLAND AVENUE. SOMERVILLE, MASSACHUSETTS 02143 ii]][I][)
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2009
(617) 625-6600 EXT. 2500. TTY: (617) 666-0001 • FAX: (617) 625-0722
www.somervilJema.gov
.SOMERViLLE
More specifically, the purpose of the CCD-55 zoning district in Section 6.1.22:1\ is to:" . ;'1 i\
• Encourage active mid-rise commercial and residential uses that contribute to a multi-modal-friendly street;
Increase commercial investment in high-profile, accessible areas including retail that is largely
neighborhood-serving in multi-tenant, mixed use buildings;
Preserve and complement historic structures;
• Discourage inappropriate auto-oriented, significant trip-generating uses along transit corridors; and,
• Promote pedestrian and bicycle activity.
The CCD-55 zoning district was adopted for this area ofBroadway in February of2010. This zoning amendment
was the culmination of an extensive community outreach and participation process designed to develop and
implement a vision for the Winter Hill and East Somerville neighborhoods. Throughout this process, community
members expressed their support for zoning that encouraged a balance between old and new, by preserving and
complementing historic structures while increasing investment in high-profile areas. The community identified a
preference for the establishment of more mid-rise mixed-use development in the area, and the importance of a high
quality public realm for pedestrians and bicyclists especially in light ofthe forthcoming Green Line Extension which
will bring rapid transit to nearby Gilman Square. As a result of this process, the zoning amendment balanced an up
zoning of development capacity along much ofthe corridor with the establishment of strict development standards
and design guidelines to ensure that development meets or exceeds community expectations. Within the CCD-55
zoning district the maximum floor-area ration (FAR) is now 3.0. This development capacity is established to
provide a catalyst for transformative development that will change the nature of Broadway, fill the gaps in the
streetscape, and encourage new business that will complement the existing business mix and encourage shoppers to
visit multiple businesses within the neighborhood on single trips.
This proposal would impact one of the most significant sites within the new zoning districts on Broadway. The
a
location is key corner with has significant street frontage that has the ability to define the character of this area for
many years. Use of this site can strengthen or detract from nearby neighborhood-serving businesses in a way that no
other property in this district can. The Planning Board has concluded that this proposal is not consistent with the
purpose of the CCD district, as follows:
a. Encourage active mid-rise commercial and residential uses that contribute to a multi-modal-friendly
street
Ocean State Job Lot has a reputation of being well-run discount establishment that finds overstock and
discontinued items to sell at a discount. The merchandise is always changing based upon the deals that they are
able to find. Many supporters of the store find it valuable to return every few weeks to find new bargains.
Despite their reputation for being a well-run establishment, they do notgenerally perform significant exterior
improvements to their facilities to open a new store, although the extent of exterior improvement proposed for
the Somerville site exceeds their typical level of investment in a new store.
As noted in the purpose statement, the intent ofthe zoning district is to facilitate mixed use, multi-story
development, of which this project is neither. In acknowledgement that significant redevelopment of the site
was unlikely given the current economic circumstances, the Planning Staff attempted to see if the property
owner was amenable to a time-limited special permit that would allow for regular discussions about
redevelopment ofthe site in a more supportive economic situation - a type of agreement which has been
reached on several properties elsewhere in Somerville. Instead, the owner indicated that he recently e>..1.ended
the lease for the existing drug store and he has indicated that the lease for this tenant would be for a ten year
term with multiple extensions. The owner has also refused to divide the store into smaller stores that could
allow for a specialty or ethnic food market that would be more compatible with community needs in the short
~~ER<ra
Date: September 9, 2010 _ _
tenn. The owner's actions in this instance seek to extend the status quo far into the fuhi;~, i~iii~~~)O ~ ~.1 cc:
redevelopment opportunity of the largest and most valuable parcel ofland within the new Broadwayr~zb~irlg
area. Therefore, the project is directly in conflict with the purpose of encouraging mid-rise development.
Further, the proposed use will reinforce the auto-oriented nature of the property instead of contributing to a
multi-modal-friendly street. Although landscaping will begin to break up the expanse of parking lot, the
addition of greenery will be minimal. The current configuration of the structure combined with the nature of the
use makes the proposal inconsistent with the goals of a multi-modal street and inappropriate for the
neighborhood.
b. Increase commercial investment in high-profile, accessible areas including retail that is largely
neighborhood-serving in multi-tenant, mixed use buildings
The store provides a stable base of merchandise including some food items, but daily food needs, including
fresh healthy fruits and vegetables are not a part of their business model. In significant written comments
submitted to the Planning Board many residents have identified the need for fresh foods as the primary
neighborhood need. Furthermore, a survey in Winter Hill completed by the Shape Up Somerville program
indicated that residents are seeking more fresh fruits and vegetables as a part of their shopping needs. They also
generally indicated that they often walk andlor bike to the grocery store and that existing stores are rather far
from the neighborhood.
Any combination of development or redevelopment of the primary opportunity site within the neighborhood
would benefit from the inclusion of retail that sells fresh foods. While the owner has indicated that he made an
effort to rent the existing building to many food establishments, he indicated that the building is too small for a
conventional supermarket and too close to competition. When smaller specialty markets were suggested, the
owner indicated that he was unwilling to divide the existing building.
A general merchandise discount store, such as a Job Lot, in this location will cater to customers coming a
significant distance from the store via automobile, just as their stores in other parts of Massachusetts do.
Shoppers at stores of this nature and in this particular configuration are typically going to the location solely for
the purpose of shopping at the specific discount store and will then return home with their purchases. As a
result, their presence will not benefit the adjacent businesses, as it is unlikely that they will then elect to browse
in the more pedestrian-oriented stores across or further down the street. Basically, they will park, enter the
store, return to their car, and exit the neighborhood. This is contrary to a fundamental objective of the new
zoning. (Note that some success has been found in commercial districts with regional serving uses when the
parking for the uses is remote from the store and visitors are thus compelled to walk past other storefronts on
their way to their primary destination.) .
There are no historic structures on the site. But, by retaining the structure's existing footprint, the proposal
perpetuates a single-tenant, single-use building that turns a blank side to Broadway, and provides no
complement to historic development pattern in the surrounding residential neighborhood which consists of
small storefronts that open onto the sidewalk. The applicant did indicate that they will provide new design
features along the Broadway fac;:ade to minimize some of the effect of the large single-story structure, but these
do not complement the neighborhood to the extent that a well designed multi-story building would.
Rather than being iargely neighborhood serving, the proposed use draws on a regional market. Current Job Lot
locations are limited in the immediate Boston area. The nearest stores are in Quincy and Danvers. A·
Somervill. . ONE CAll" CITY IW.l
·-;ffi--T~
CITYCLEAK
Date: September 9, 2010
Case #: PB 2010-04
Site: 299 Broadway
Somervl'11 e store IS
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asked to provide infonnation about the general catchment area for travel to their stores, but has failed to provide
this infonnation. . r:" ';' :' ~ C:(\',\ ~~UCE
While the applicant's traffic impact analysis concludes that the Job Lot will generate fewer trips that the fonner
supermarket, it indicates a higher parking demand. The combination of a reduction in daily trips with an
increase in parking demand suggests that this use will generate fewer, longer trips to the store. This is the travel
pattern of a regional draw that seeks customers on an occasional basis. Furthermore, the share of trips made by
private vehicle may actually increase due to customer origins, replacing pedestrian and bicycle trips that were
previously made from within the neighborhood. (see Section e, "promote pedestrian and bicycle activity",
below.)
Therefore, despite the reduction in total number of trips, a discount store with a regional draw is likely to
generate longer-distance vehicle trips, thereby creating a regional draw automobile oriented store in a location
that is intended to strengthen the transit-based mixed-mode transportation system that is the basis for
Somerville's future. And, while the proposed use may generate fewer trips than a supermarket, it does not
negate the simple fact that a large discount store in this location is a significant trip-generating auto-oriented use
that is inconsistent with the purpose of this district.
An urban neighborhood supermarket or other primarily local serving use(s) could generate a significant portion
of its trips through walking and biking. According to the extensive field research conducted by the applicant's
traffic engineer existing supermarkets in Somerville showed a 16% walklbike split for the Market Basket on
. Somerville Avenue, 13% for the new Stop and Shop that is buffered from nearby neighborhoods by the
McGrath Highway, and a 35% walklbike share for the Foodmaster and Star Market stores on Beacon Street, the
locations that are most similar in demographics and physical layout to the Broadway location. Only the Whole
Foods, on the edge ofthe busy Alewife Brook Parkway generated a low walklbike mode share. A discount
store is unlikely to provide the sort of mode split of an urban supermarket, and the applicant has provided no
data to suggest that Job Lot will generate this portion of local walklbike traffic.
Therefore, the location ofthe proposed discount store at 299 Broadway does little in its urban design to support
pedestrian and bicycle activity, and its use does not encourage pedestrian and bicycle activity. The lack of
fresh food options requires residents in this neighborhood to travel farther, often by car, to meet daily grocery
needs. Furthennore, tying up this redevelopment site for a long term purpose further limits the ability to
provide housing and commercial opportunities within walking and biking distance of the rest of the Winter Hill
neighborhood on this site.
4. Site and Area Compatibility: Ihe.J\Pplicant basto ensure that the project "(i)s designed in a manner that is
compatible with the characteristics ofthe built and unbuilt surrounding area, including land uses."
The proposed changes to the structure's fac;ade are compatible with the built and unbuilt surrounding area, inSofar as they
will improve the appearance of the currently vacant building. The applicant has provided fac;ade improvements to
address issues that were of concern to the Planning Staff. Furthennore, the applicant has agreed to 'green' the
fonner loading dock areas that face Grant Street and Broadway, limiting loading activities to the corner of the
building furthest from the street and greatly reducing a neighborhood impact of the fonner supennarket use.
Nonetheless, the improvements only provide minimal benefits to an otherwise inappropriate and poorly-defined
building in the neighborhood. The structure, even with improvements, is not compatible with the more traditional
storefronts on adjacent and nearby blocks, the parking lot and guardrail remain and the upgrades do little to
encourage additional pedestrian activity on Broadway.
SOIll~n'iUe
! ONE CALL ••, CITY HAI.I.
bf.td CITY HALL. 93 HIGHLAND AVENUE. SOMERVILLE, MASSACHUSETTS 02143
(617) 625-6600 EXT. 2500. TTY: (617) 666-0001 • FAX: (617)625-0722
:[I][I][]]
'fUr
.2009 www.somervillema.gov
_,SOMERVILLE.'
~&.ER6t'8
DECISON
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••
The proposed use is inconsistent with the zoning purpose statements (SlO IlJ1d CCD DiWict)-and,1!\ereby fails to
meet the criteria for a special permit. Three primary factors show the inconsistency: the llse proposed on the site
the structure it is proposed to occupy, and the time in which it is will remain.
Use - the CCD purpose statement clearly seeks uses that are predominantly local serving. While this allows room
for some regional serving uses to be permitted, these are expected to be placed within the context of a mixed use
development, not as single uses on large scale sites within a neighborhood shopping district. In considering how
this could be applied at 299 Broadway, a regional serving use could be acceptable ifit was located within a quality
mid-rise mixed-use building, mixed with other local serving retail uses, and placed some distance from parking.
Unfortunately, such a proposal is not before this Board.
Building Form - The existing structure at 299 Broadway is completely inconsistent with the design guidelines of
the new CCD zone and buildings of its type were one of the reasons why the zoning was adopted. Historically,
Winter Hill has contained smaJl scale stores located immediately on the sidewalk and geared toward pedestrians. In
many locations, the multi-story buildings that were found in Winter Hill prior to WWII have been reduced in size,
but the physical form of the storefronts has remained consistent over time. Instead of the traditional pedestrian
oriented storefronts, the 400 foot frontage of 299 Broadway consists of a massive parking lot and the side of a
building and its design negatively affects all surrounding businesses. Studies have shown that one-sided shopping
districts - as is the case in Winter Hill - are less successful than two-sided shopping districts where stores face each
other. The proposal before the Board makes some gestures to improve the side of the building, but this does little to
improve the pedestrian experience on'this side of the street and does nothing to support business activity opposite.
Timing - In prior decisions, the Planning Board has indicated its understanding of today's economic circumstances
and has been willing to issue limited duration permits for uses on properties where redevelopment is desired in the
long tenn. These permits have been issued in a sense of collaboration with the property owners and are written to
ensure that the vision for the property will ultimately be realized. In the instance of 299 Broadway, no recognition
exists of the merits of the City's long term vision and instead, the property owner has indicated a strong desire to
freeze the property in its current status for potentially decades into the future. Approval of the requested special
permit would ensure that little or no change happens in Winter Hill even after the new transit station opens in the
next few years. Given that surrounding businesses are already struggling and many are continuing on in hopes that
the neighborhood will tum around, approval of the proposed permit could potentially result in more vacancies and
disinvestment.
This particular use in this existing structure is an unacceptable combination. While this use as a part of a new
structure may be appropriate and other uses within the existing structure may provide a short tenn solution, neither
option is before this Board at this time. Establishing the proposed Ocean State Job Lot on this site would negate the
effort ana the results of the extenslve community input, visioning, goal setting and rezoning exercise that was
completed when the CCD-55 zoning was established on this site in February 2010.
Present and sitting were Kevin Prior, Elizabeth Moroney, Joseph Favaloro, Michael Capuano and alternate Dana
LeWinter. Upon making the above findings, Kevin Prior made a motion to approve the request for a special permit.
Michael Capuano seconded the motion. Wherefore the Planning Board voted 5-0 to DENY the request.
CITYCI.ERK
Elizabeth Moroney
Joseph Favaloro
o
Michael Capuano
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Dana LeWinter
Copies ofthis decision are filed in the Somerville City Clerk's office,
Copies of all plans referred to in this decision and a detailed record of the
SPGA proceedings are filed in the Somerville Planning Dept.
~J " '.::'D"'U"I
CITY CLERK
SolnerviU-e i OUE CAlL ~ CITY-HAUl
bA'd CITY HALL. 93 HIGHLAND AVENUE. SOMERVILLE, MASSAC:r-tuSI~TrS 02143
,[IJ[IJIT}
WP (617) 625-6600 EXT. 2500. TTY: (617) 666-0001 • FAX: (617).625-0722
2009 www.somervillema.gov
:SOMERVILLE:
Date: September 9, 2010
Case #: PB 2010-04
.Bite: 299 Broadway
CLERK'S CERTIFICATE
"O'n
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Any appeal of this decision must be filed within twenty days after the date this notice is filed in the Office of the
City Clerk, ana must be filed in accordance with M.G.L. c. 40A, sec. 17 and SZO sec~ 2,-4)9-, ,;;:;"1.' S OFF leE
," . ~- :.. : '.: ;'~.,'- _.c~:;t; ~ F. ~\f\
In accordance with M.G.L. c. 40 A, sec. 11, no variance shall take effect until a copy of the decisro~ bearing the
certification of,the City Clerk that twenty days have elapsed after the decision has been filed in the Office of the City
Clerk anCl.no appeal has been filed, or that if such appeal has been filed, that it has been dismissed or denied, is
recorded in the Middlesex County Registry of Deeds and indexed in the grantor index under the name of the owner
of record or is recorded and noted on the owner's certificate of title.
Also in accordance with M.G.L. c. 40 A, sec. 11, a special permit shall not take effect until a copy of the decision
bearing the certification of the City Clerk that twenty days have elapsed after the decision has been filed in the
Office of the City Clerk and either that no appeal has been filed or the appeal has been filed within such time, is
recorded in the Middlesex County Registry of Deeds and indexed in the grantor index under the name of the owner
of record or is recorded and noted on the owner's certificate of title. The person exercising rights under a duly
appealed Special Permit does so at risk that a court will reverse the permit and that any construction performed
under the permit may be ordered undone.
The owner or applicant shall pay the fee for recording or registering. Furthermore, a permit from the Division of
Inspectional Services shall be required in order to proceed with any project favorably decided upon by this decision,
and upon request, the Applicant shall present evidence to the Building Official that this decision is properly
recorded.
This is a true and correct copy of the decision filed on ----'_ _ in the Office of the City Clerk,
and twenty days have elapsed, and
FOR VARIANCE(S) WITHIN
_ _ there have been no appeals filed in the Office of the City Clerk, or
_ _ any appeals that were filed have been finally dismissed or denied.
FOR SPECIAL PERMIT(S) WITIllN
_ _ there have been no appeals filed in the Office of the City Clerk, or
_ _ there has been an appeal filed.
CITY CLERK
Kevin Prior
100 Pearson Ave
Somerville, MA 02144
(617) 625-8872
Michael Capuano
39 High St
Somerville, MA 02144
(617) 616-5014
150 Glen 5t
Somerville, MA 02145
(617) 628-6150
Joseph Favaloro
75 Myrtle 5t #314
Somerville, MA 02145
(617) 623-7704
27 Franklin 5t #1
Somerville, MA 02145
(617) 666-8473
James W Kirylo
200 Summer St
S?-Tel¥1[t~!=~~P2143
(617) 628-1429
Dana Lewinter
1695 St
Waltham, MA 02453
(781) 899-2843
Elizabeth J Moroney
24 Teele Ave
Somerville MA 02144
t
(617) 628-7253
EXHIBIT "B"
u
·······1
i
;
I
DEVELOPMENT COVENANT
WHEREAS, the Applicant wishes to occupy the building and land located at 299
Broadway, Somerville, MA (the "Property") in order to operate general merchandise
store entirely within the existing building on the Property;
WHEREAS, the Applicant requires zoning relief under the Somerville Zoning
Ordinance ("SZO"); and
1. The City will advocate that the Special Permit Granting Authority
("SPGA") under the SZO grant a Special Pennit with Site Plan Review ("SRSR") for
General Merchandise Store of greater than 10,000 square feet with a condition that the
SPSR expire eight (8) years after the date of the SPSR decision. This SPSR is referred
to solely for purposes of this Agreement as the "OS-SPSR" ("OS" standing for "Ocean
State").
2. The City agrees in principle to advocate for a permanent zoning relief for
. a 1~1~r~~R~~~}2Rm~ntpI§:l1J()I tl1.e Property thaLmeets the criJ~tias~~ fR@iILg~~~~pltccc-..
5(b)(l) below.
3. For the first seven (7) years after the date of the OS-SPSR decision, the
Applicant shall meet with City no less than once a year during regular business hours to
review the general progress of redevelopment in the Winter Hill neighborhood, including
progress in bringing the Green Line to the area. The meeting shall be held at a mutually
convenient time and place.
4. The Applicant may apply to the SPGA for up to two (2) extensions of the
OS-SPSR: a first extension for two (2) years, which shall expire ten (l0) years from the
date of the original OS-SPSR decision (the "First Extension"); and a second extension for
two (2) years which shall expire twelve (12) years from the date ofthe original OS-SPSR
decision ("Second Extension") unless the application of the force majeure clause in
Paragraph 6 below extends these dates. The Applicant shall notify the City, no later than
EXHIBIT "D"
six (6) months in advance of the expiration date (or extended expiration date) of the OS
SPSR, that the Applicant intends to apply for an extension. Each request for extension
shall be filed no later than ninety (90) days prior to the expiration date (or extended
expiration date) of the original OS-SPSR.
5. (a) In determining whether or not to support the First Extension and the
Second Extension, the City will take into account the following considerations:
• then current real estate market conditions, including absorption rates and
commercial financing availability and terms; and
• progress on the extension of the Green Line into Gilman Square; and
(b) In addition to the considerations set forth in 5(a), the City support for a
First and Second Extension shall be contingent upon the Applicant's willingness to take
reasonable actions to plan for and further the redevelopment of the Property as described
below.
h
(l) During the seventh (i ) year following the date of the OS-SPSR decision
and prior to applying for the First Extension, the Applicant shall have
developed a conceptual site plan for the Property that (i) is acceptable to
the City as being consistent with publicly-adopted plans and guidelines for
development in the Winter Hill area; (ii) conforms to the then-current
zoning, or can be permitted with zoning relief acceptable to the City; and
(iii) optimizes the mixed use, transit-oriented development potential of the
site (a conceptual site plan meeting the foregoing criteria is referred to in
the following paragraphs as the "Conceptual Site Plan").
lh
(2) During the eighth (8 ) year following the date of the OS-SPSR and prior
to applying for the First Extension, the Applicant shall have filed an
application for zoning relief for a project that conforms to the Conceptual
.Si~~P.~an (referred.to~olely fOL purpDses."<ktthi,s"~gr~m~n.k~~a'~J.:OD:-:.
SPSR", with "TOD" standing for "Transit Oriented Development").
(3) Prior to applying for a Second Extension, the Applicant shall have entered
into an agreement ("Option Agreement") with the Somerville
Redevelopment Authority ("SRA") giving the SRA and/or its nominee, for
a period of five (5) years from the date of said Option Agreement, the
right to purchase ("Option to Purchase") the Property at a date and time to
be determined by the SRA, provided however, that the SRA shall not
exercise such Option to Purchase if the Applicant is proceeding
expeditiously to develop a project at the Property conforming to the
Conceptual Site Plan, as demonstrated by the granting of a TOD-SPSR,
the filing of an application for a demolition permit, tbe demolition of
existing buildings at the Property, the filing of an application for a
building permit, and the commencement of construction..
The Option Price shall be the fair market value determined by a mutually
agreed upon, commercially reasonable method based on independent third
party apprai sals by qualified appraisers. If the parties fail to agree on a
such method, then the following method shall be used: each party shall
select a qualified appraiser, the two appraisers shall select a third
appraiser, and the Option Price shall be the average of three appraisals
dated no earlier than three (3) months prior to a date of closing selected by
the SRA. Notwithstanding the foregoing, if the buildings at the Property
have not already been demolished by the Applicant, the Option Price shall
be the fair market value as calculated above, less the cost of demolition
and disposaL The Applicant hereby appoints the City as its attorney-in
fact to execute the Option Agreement with the SRA should the Applicant
fail to do so. The Option Agreement shall be recorded at the Middlesex
South District Registry of Deeds.
(a) The Applicant shall actively participate with the City and/or the SRA
in applications for public funding of infrastructure and other
improvements in the Winter Hill area.
• Provide for funding to install two street trees with no less than a 4
inch caliper along Broadway
• Provide for funding to install two street trees with no less than a 4
inch caliper in the Broadway Median;
• Instillation of a privacy fence between the property and the Sewall
Street residences,
• Parking lot lights to dim one hour after store closure,
• Creation of a distinctive fa9ade facing Broadway;
• Construction of a 6 foot landscape buffer between the parking area
and Broadway; and
• Removal of any debris, building materials, dirt and/or aggregate
from the Sewall Street lots.
(d) The applicant (Ocean State) shall provide a minimum of 5,000 square
feet of grocery items including dairy products, general dry goods,
prepackaged meats and produce, and frozen foods available on a daily
basis.
(e) The applicant will not apply for a license to sell liquor, beer or wine.
8. Notwithstanding anything herein to the contrary, this Covenant shall lapse if any
holder ("Holder") of record of a first mortgage granted to a state or national bank, state or
federal savings and loan association, cooperative bank, mortgage company, trust company,
insurance company or other institutional lender acquires the Property by reason of foreclosure or
upon conveyance of the Property in lieu of foreclosure, provided such Holder has given the City
not less than sixty (60) days' prior written notice of its intention to foreclose upon its mortgage or
to accept a conveyance of the Property in lieu of foreclosure. Provided, however, that this
Covenant shall be revived as though it had never lapsed if the Property is acquired through
foreclosure or deed in lieu of foreclosure by a "Related Party", defined as (i) the Applicant; (ii)
any person with a direct or indirect financial interest in the Applicant; (iii) any person related to a
person described in clause (ii) by blood, adoption, marriage, or operation oflaw; (iv) any person
who is or at any time was a business associate of a person described in clause (ii); or (v) any
entity in which any of the foregoing have a direct or indirect financial or management interest.
qualified development partner for the Applicant, provided however, that the choice of
(a) The Applicant agrees that any agreement or covenant entered into with any
other property owner in the Winter Hill area will be based on considerations
unique to that owner's property and any inconsistencies between this Covenant
and any other agreement or covenant shall have no effect on the enforceability of
this Covenant.
(b) The Applicant shall not assign this Covenant without the prior written consent
of the City. Notwithstanding the foregoing, this Covenant shan be binding upon
the Applicant's successors and assigns.
(c) The signatories to this Covenant represent that they have full authority to sign
on behalf of their respective entities.
(d) This Covenant shall take effect upon the date of the SPGA decision granting
the OS-SPSR.
LAND COURT
CIVIL ACTION
NO. 10 MISC 440303
Comar Real Estate Trust by James A. Cohen,
Jeffrey J. Cohen, and James B. Marcus,
Co-Trustees_o_f_C_o_m_a_r_R_e_a_1_E_s_t_a_t_e_T_r_u_s_t , Plaintiff(s)
City of Somerville, Planning Board of the ~ty of Somerville, and Kevin Prior,
Elizabeth Moroney, Joseph Favaloro, James Kiry10, Michael A. Capuano and
Dana LeWinter, as Memebers of the Somerville Planning Board
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ , Defendant(s)
SUMMONS
City of Somerville, et a1., c/o David Shapiro, Esquire
Plaintiffs attorney, whose address is 77 Franklin Street. 4th FI. BostOD, MA 02110 , an answer
to the complaint which is herewith served upon you, within 20 days after service ofthis summons upon you,
exclusive ofthe day of service. If you fail to do so, judgment by default will be taken against you for the
relief demanded in the complaint. You are also required to file your answer to the complaint in the office
of the Recorder of this court at 226 Causeway Street, Boston, MA 02114 either before service upon
plaintiffs attorney or within a reasonable time thereafter.
Unless otherwise provided by Rule 13(a), your answer must state as a counterclaim any claim which
you may have against the plaintiffwhich arises out ofthe transaction or occurrence that is the subject matter
ofthe plaintiffs claim or you will thereafter be barred from making such claim in any other action.
Recorder
NOTES
1. This summons is issued pursuant to Rule 4 of the Massachusetts Rules of Civil Procedure.
2. When more than one defendant is involved, the names of all defendants should appear in the caption. If a separate
summons is used for each defendant, each should be addressed to the particular defendant.
3. TO PLAINTIFF'S ATTORNEY: PLEASE CIRCLE TYPE OF ACTION INVOLVED
(1) EQUITY - (2) OTHER
LCS-4 (01103