COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, SS LAND COURT MISC. NO

COMAR REAL ESTATE TRUST BY JAMES A. COHEN, JEFFREY J. COHEN, AND JAMES B. MARCUS, CO-TRUSTEES OF COMAR REAL ESTATE TRUST

liiijliilillllllllWIIBComar Real Estate Trust By Ja~s A -

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

COMPLAINT UNDER G.L.cAOA, §17 AND GLC 240, §14A·

Nature Of The Action:

1. This is an action brought under G.L.cAOA, §I7 appealing a decision of the City of

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

subject property, violate the provisions of the constitution of the Commonwealth of

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.

6. Insofar as GLC 40A §] 7, requires the members of the Planning Board to be

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:

7. Plaintiff is the owner of the Improved Property located at 299 Broadway,

Somerville, Middlesex County, Massachusetts.

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 plaintiffTrustees 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

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of the premises including stores on the lower level and apartments above and stated that he

wanted the said plaintiff to build that structure at the site.

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

premises in question comprise only 27,000 square feet.

14. As a result of efforts to rent the premises, the plaintiff trust was able to identify

. ····onlyone-tenant·thatwaswiHingtooccupy·the premises, to wit, Ocean-StateJ6bEbt from which

it obtained a letter of intent to rent the premises.

15. Upon being informed of the interest of OSJL in the premises, the Mayor of

Somerville stated: "] don't want a dollar store in my town."

16. Following that declaration by the Mayor, the plaintiff trustee, James A. Cohen,

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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

property would have to be redeveloped.

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

point and thereby coerce the trust into a development deal.

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

partners for you."

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

the property owner signed a development agreement with the city.

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

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City of Somerville, to counsel for the plaintiff Trustee James Cohen. A copy of the said

document is attached hereto as Exhibit D.

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

proposed overlay district.

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.

26~ - -Inapproximattd-y -OctoberlNev€mb€T-2009-,aft@r-beingunable·tofindany other

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:

<1hey don't fit into my plans for Somerville."

6

27. Fonowing the meeting referenced in the preceding paragraph, a representative of

the Mayor, believed to be working in the planning department or development department,

advised plaintiff trustee's counsel to file an application for a Building Pennit.

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

refused to accept the application without the same.

29. When representatives of OSJL attempted to file an application for a Building

Permit, the City refused to accept the same under the pretext that the City accepted applications

for Building Permits only within certain limited business hours.

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

land owners prior to the enactment of said sections.

33. On or about February 4, 2010 the City of Somerville received and docketed

plaintiffTrust's application for a Building Permit to make the premises suitable for use by OSJL.

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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 ofmerchandise

including dry good and food products.

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

checked as shown on Exhibit "D" attached hereto.

35. The plaintifftrust made a timely appeal of the denial of the Building Pennit to the

SPGA Which, in this case, is the Planning Board of Somerville.

36. By its decision dated September 2, 2010 and filed with the City Clerk on

. ··September9;2010-asshown on the attached Exhibit ':.~A",the--Pla.n.iting--Board-denied·the

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.

COUNT I - ERRONEOUS DETERMINATION BY BUILDING INSPECTOR

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

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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

Planning Board be ammlled.

COUNT II - ERRONEOUS DECISION OF THE PLANNING BOARD OF SOMERVlLLE

38. The decision of the Planning Board of Somerville is erroneous and improper in

the following respects:

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

impermissible time limits thereon and negating a lawful preexisting use.

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

for the premises.

d. The Planning Board's decision makes no findings consistent with the necessity of a

Special Permit;

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e. The decision of the Planning Board is an invalid attempt to force the property owner to

demolish the property and build a completely new structure.

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,

thereby improperly imposing a requirement for a Special Permit on a lawful preexisting

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

purposes of the SZO.

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

amount-to an-improper exercis€>ofthg...c::wning-pow€F;·----- ..--- - ---.------­

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.

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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

unlawful restraint on interstate commerce.

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

property or to eliminate all substantive uses in an effort to coerce redevelopment. These

are arbitrary, capricious and vague standards that allow for unfettered administrative

discretion in the administration ofllie zoning regulations.

1. The Planning Board engaged in self-contradictory, arbitrary and capricious decision­

making in seeking, on the one hand, a reduction in traffic while, on the other hand,

touting· the expected extension oftheMBTA Green Line·which.would:-bring:::rtloI@·~pe0pre

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

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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

owner, not by the Planning Board.

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

.. imposesounreasonable-cests-by attempting to shorten the pen()cloHhe"leasdt-mlgDt-reeeive; ..

Nevertheless, the Planning Board did not allow a Building Permit on condition of a shorter lease

thereby confinning that its specious reasoning is arbitrary and capricious.

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

marmer of OSJL's operations.

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,

co-lor;-ornationarorigin-and-viol ates-theproperty owner's civil-tights~in;vioTatibri-of·ilieo~,

Massachusetts Constitution and the Constitution ofthe United States.

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

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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

benefit to adjacent businesses and is an improper attempt to regulate zoning by speculation as to

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

capricious decisions is vague and invalid.

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

complement to historic development panem in the surrounding residential neighborhood." Thus,

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

.~byzoning 'regulations, The-Planning Board .deeisitmin ·this--Jespeet.-is-arbitrary-and-eapFieious-and

exceeded the scope .of its authority.

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

undefined, thus allowing for such unfettered administrative decisions.

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

.- --_..----, ---·--eS-JJ::;:sells-many'products that supermarkets also sell;there·is-no-reason·.foF-believir:ig~lliar 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

and improper insofar as it permits such unfettered administrative discretion.

54. The Plarming Board decision demonstrates the inherent contradictions in the

Planning Board's interpretation as revealed in the section captioned "DEC1SION". 1n this

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 ofpermissible regulation

allowed 1lllder zoning laws.

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

preperty" owner-cannoLalterthis situation,·Thi·s decision is al'bitraJy'andceapriGious~-::··

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

authority and the scope of regulation permitted under zoning laws.

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,

sold by supermarkets, so-called.

WHEREFORE, plaintifftrustees pray that the decision of the Planning Board be

annulled.

COUNT HI - INVALID ZONING ORDINANCE

--S9, The plainti:ff.trusteesadoptby-r€f€F€TIG€-andJ€stat€-thg:av€JTJ1€TIts-'in::cth€pteeeding­

paragraphs of this complaint.

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

structure was lawfully in existence.

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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

to impose size and time limits upon said use.

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.

~Further,such'taking constitutes'adeprivationofcthecplainti-fFs-propertywithout due proe~ssand, .-------- .

without just compensation.

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 plaintiffTrustees and prospective tenant based on improper and discriminatory criteria

involving race, color, creed or national origin in violation of the Constitution of the

Commonwealth ofMassachusetts and the Constitution of the United States.

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

re garding use of property.

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

the Commonwealth of Massachusetts.

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

plaintiff trustees and their particular property.

. COl: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

attempt to coerce the plaintiff Trust to agree to a development proposal as a condition to

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

Commonwealth of Massachusetts, Part 1, Article X and Article XlI. In particular, 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

oepn-vatlon ofthe plaintiff trustees' .enjoyment·oftheir prope:rtyand·the-inbom~to'be'derived

therefrom without due process and just compensation.

73 _ The imposition of a moratorium on the use of the Plaintiff Trustee's property in

the guise of studying a proposed zoning ordinance to confer an alleged public benefit, is a

deprivation ofthe PlaintiffTrustee's property without due process of law and without just

compensation, amounting to a taking.

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

of Massachusetts and require compensation to the Plaintiff Trustees.

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: 77 Franklin St., 4th Floor Boston, MA 02 1lO 617-398-0656 Fax: 617-723-3] 63 Cell: 617-680-5700 email: anil@madans.com

22

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CITY OF SOMERVILLE, MASSACHUSETTS OFFICE OF STRATEGIC PLANNING & COMMUNITY DEVELOPMENT

JOSEPH A. CURTATONE

MAYOR

PLANNING DNISION

PLANNING BOARD MEMBERS KEVIN PRIOR, CHAIRMAN Case #: PB 2010-04 ELIZABETH MORONEY, CLERK Site: 299 Broadway JOSEPH FAVALORO Date of Decision: September 2, 2010 JAMES KIRYLO Decision: Petition Denied MICHAEL A. CAPUANO, ESQ. Date Filed with City Clerk: September 9, 2010

. DANA LEWlNTER (ALT.)

PLANNING BOARD DECISION

Applicant Name: Applicant Address: Property Owner Name: Property Owner Address: Agent Name: Agent Address:

Legal Notice:

Zoning District/Ward: Zoning Approval Sought: Date of Application: Date(s) ofPublic Hearing: Date of Decision: Vote:

Comar Real Estate Trust (James Cohen, Trustee) 89 Winchester Street, Brookline, MA 02446 Comar Real Estate Trust (James Cohen, Trustee) 89 Winchester Street, Brookline, MA 02446 Robert L. Allen, Jr., Esq. 300 Washington Street, Brookline, MA 02445

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).

CCD 55. Ward 4. §7.l3.K & §6.1.22.D.5 March 22, 20 I 0 6/24,7/15,8/5,8/19 & 912110 September 2,2010 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

(617) 625-6600 EXT. 2500. TTY: (617) 666-0001 • FAX: (617) 625-0722 www.somervilIema.gov

'fIjIf 2lI09

A TRUE COpy ATTEST:

EXHIBIT "A" ::uttrrv&.ERf.r8 ..

.. Date: September 9, 2010 Case #: PB 2010-04 Site: 299 BrQadway

P L·u,21010 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.

FINDINGS FOR SPECIAL PERMIT (SZO §7.13.K & §6.1.22.D.5);

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 purpose of the SZO includes requirements in Section 1.2 to: • Conserve the value ofland and buildings; • Encourage the most appropriate use of land throughout the city; and, • Increase the amenities ofthe municipality.

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

\OftE C/lU.",cm HAll.:Somerville b:C:r.i ClTY HALL. 93 HIGHLAND AVENUE. SOMERVILLE, MASSACHUSETTS 02143 ii]][I][)qup (617) 625-6600 EXT. 2500. TTY: (617) 666-0001 • FAX: (617) 625-0722 .SOMERViLLE

2009 www.somervilJema.gov

A TRUE COpy ATIEST:

Date: September 9, 201 0 Case #: PB 2010-04 Site: 299 Broadway

. . . .'/fIlP, <:t:p - q .P b: L12 WIll not be conserved and used for Its greatest value. The proposal lJmlts the s4-M'to "rl'use that IS not the most appropriate use ofthe land and,limits the ability to bring new amenities to the Winter Hill_n_e.i~.hbor~oBPt' r;

r ! -; '-I f' -." '/ r'-. SOl 1 i V '­

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 up­zoning 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 ofBroadway, 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 location is akey 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

: ONE CAll "CITY RALLSomervlUe b:ttti CITY HALL. 93 HIGHLAND AVENUE. SOMERVILLE, MASSACHUSETTS 02143 irnJ[l][]J

(617) 625-6600 EXT. 2500. TTY: (617) 666-0001 • FAX: (617) 625-0722 :SOMERVILLE·'iiiP www.somervillema.gov ATRUE COpy ATrEST:

~~ER<ra

21109

Date: September 9, 2010 _ _

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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.) .

c. Preserve and complement historic structures

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.

d. Discourage inappropriate auto-oriented, significant trip-generating uses along transit corridors

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·

. ONE CAll" CITY IW.lSomervill. i::I:tn1 CITY HALL. 93 HIGHLAND AVENUE. SOMERVILLE, MASSACHUSETTS 02143 '[I)[l]LI]

(617) 625-6600 EXT. 2500. TTY: (617) 666-0001 • FAX: (617) 625-0722 ;SOMERVilLErmp 2W,l www.somervillema.gov

ATRUE COpy ATIEST:

·-;ffi--T~ CITYCLEAK

Date: September 9, 2010 Case #: PB 2010-04 Site: 299 Broadway

'11 . I'k I I"'fi h' I . fr 'd f ?mn'<;:\='°h- q IP b: it 2Somervl e store IS ley to resu t In Slgnl Icant ve IC e tnps om outSI e 0 t>!:WCIly.'-T e app Icant nas Deen 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.

..e. Promote pedestrian and bicycle activity

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.

!ONE CALL ••, CITY HAI.I.SOIll~n'iUe

bf.td CITY HALL. 93 HIGHLAND AVENUE. SOMERVILLE, MASSACHUSETTS 02143 :[I][I][]](617) 625-6600 EXT. 2500. TTY: (617) 666-0001 • FAX: (617)625-0722 _,SOMERVILLE.''fUr www.somervillema.gov

ATRUE COpy ATTEST:

~&.ER6t'8

.2009

Date: September 9,2010 Case #: PB 2010-04 Site: 299 Broadway

DECISON

,1 -­ ~-••~}' c: n'; F\C[ 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

Date: September 9,2010 Case #: PB 20lO-04 Site: 299 Broadway

Attest, by the Planning Board: zOin SEP - g P b: 42

-" (:0. ~r:KJS OFFfCE '.. !; ! ~-.;! j"• . - i' ; ,h

Kevin Prior, Chairman

Elizabeth Moroney

Joseph Favaloro

o

/! i ' . J .<"'.J'u;k'it'·r, AId '. .t(l&V-t cd, 'a Dana LeWinter

Michael Capuano

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.

A TRUE COpy ArrEST:

~ J " '.::'D"'U"I

CITY CLERK i OUE CAlL ~ CITY-HAUlSolnerviU-e

bA'd CITY HALL. 93 HIGHLAND AVENUE. SOMERVILLE, MASSAC:r-tuSI~TrS 02143 ,[IJ[IJIT}(617) 625-6600 EXT. 2500. TTY: (617) 666-0001 • FAX: (617).625-0722 :SOMERVILLE:WP www.somervillema.gov 2009

Date: September 9, 2010 Case #: PB 2010-04

.Bite: 299 Broadway

CLERK'S CERTIFICATE "O'n ('fO - q p ~ l!;2Llv J_\

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.

Signed City Clerk Date _

iONE CIU.i. ~CIlY HALL;Snmen'iU.

b1trt CITY HALL. 93 HIGHLAND AVENUE • SOMERVILLE, MASSACHUSETTS 02143 f3J[ 1111)' (617) 625-6600 EXT. 2500. TTY.: (617) 666-0001 • FAX: (617) 625-0722 iSOMERVILLE

-------''ijiP 2009· www.somervillema.gov A TRUE COpy ATIEST:

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 Somervillet MA 02144 (617) 628-7253

EXHIBIT "B"

u

·······1 i 1

;

I

I i I

I

------

DEVELOPMENT COVENANT

This Development Covenant is made the __ day of ,2009, by and between the City of Somerville, a Massachusens body politic and corporate with a usual address of93 Highland Avenue, Somerville, MA (the "City"), and _(Cohen) , and _(Ocean State) , both with a usual address of____________________ (collectively, the "Applicant").

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

NOW THEREFORE, in consideration of the mutual covenants herein contained and for other good and sufficient consideration, the receipt and sufficiency ofwhich is acknowledged, the Applicant and the City, including their successors and assigns, hereby agree as follows:

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 OS­SPSR, 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:

• the Applicant's compliance with the OS-SPSR conditions;

• 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.

(l) During the seventh (ih) 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").

(2) During the eighth (8 lh) 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 fOLpurpDses."<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-in­fact 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.

6. Notwithstanding any other provision oftlUs Covenant to the contrary, the parties agree that a delay in the anticipated opening of a new Massachusetts Bay Transportation Authority Green Line Station at Gilman Square beyond December 31, 2014, shall constitute aforce majeure, which shall toll for a corresponding and equal time the expiration date of the IP-SPSR and the commencement dates of the First Extension and the Second Extension.

7. The Applicant further covenants and agrees as follows:

(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.

(b) The Applicant shall contribute $5,000 to a Broadway/Winter Hill Streetscape Study and Plan;

{CJ·· 'Fhe·Applicant ·shaH-complete-the~following,,:,priOl:"tojheissuance ofthe OS-SPSR, and subject to SPGA approval, the following shall be incorporated as conditions in the OS-SPSR:

• 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.

9. The Applicant shall permit the City to participate in finding a suitably qualified development partner for the Applicant, provided however, that the choice of development partner will rest solely with the Applicant.

10. MISCELLANEOUS PROVISIONS

(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 behalfof their respective entities.

(d) This Covenant shall take effect upon the date of the SPGA decision granting the OS-SPSR.

(e) This Covenant shall be governed by the laws of the Commonwealth of Massachusens.

SlGNATURE PAGES FOLLOW

COMMONWEALTH OF MASSACHUSETTS LAND COURT

DEPARTMENT OF THE TRIAL 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 To the above-named Defendant: Assistant City Solicitor

You are hereby summoned and required to serve upon __A_n_i_1_M_a_d_a_n_,_E_s_q_u_i_r_e :

Madan and Madan, P.C.

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.

Witness, KARYN F. SCHEIER, Chief Justice, at Boston, september 29, 2010

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