Pioneer New England Legal Foundation Files Lawsuit Challenging Cambridge Inclusionary Zoning Ordinance
Requirement that 20 percent of a housing project remain permanently affordable places burden on developers that should be borne by the public as a whole
Cambridge – Pioneer New England Legal Foundation filed a lawsuit in state Land Court against the City of Cambridge on behalf of developer Columbia St, LLC, challenging the City’s inclusionary zoning ordinance. The ordinance requires any property owner seeking a building permit for a project of 10 units or more to permanently set aside 20 percent of the square footage for affordable housing.
“The ordinance requires property owners to surrender fundamental property rights protected by the U.S. and Massachusetts Constitutions,” said Pioneer New England Legal Foundation attorney Paul Johnson. “These requirements constitute unlawful land-use conditions under settled U.S. Supreme Court precedent.”
Under the Cambridge ordinance, a developer who builds and sells condominium units must agree to sell 20 percent of the square footage at roughly 75 percent below market price. For a rental project, the rent on 20 percent of the square footage cannot exceed 30 percent of the tenant’s income, and the tenant must meet maximum income-eligibility requirements.
The ordinance violates the long-standing legal principle that government cannot force a small subset of the population to shoulder public burdens that fairness dictates should be borne by the public as a whole.
“Cambridge is unfairly singling out real estate developers to bear the cost of solving the city’s affordable housing problem,” said Frank J. Bailey, President of the Pioneer New England Legal Foundation. “Real estate developers did not create the housing shortage. It is a result of a lot of factors – primarily not building enough new housing to keep up with population growth.”
Recent U.S. Supreme Court decisions have confirmed that a city may, in some circumstances, require developers to pay money or even donate real estate as a condition of obtaining a building permit. But those same decisions make clear that a municipality may impose such conditions only if it can present solid evidence that the specific project will worsen the problem the municipality seeks to address.
For an ordinance designed to address the shortage of affordable housing, the city would have to show that this project will, in some way, make the shortage worse. In this case, Pioneer alleges in its complaint that the city cannot make that showing . To the contrary, the project will more than triple the amount of livable square footage on the property. It reduces the housing shortage; it does not exacerbate it.
“We recognize the importance of building affordable housing,” Johnson added. “But the cost should be shared equally by the community as a whole. We should not impose what is essentially a tax on new development to pay for affordable housing.”
The complaint was filed in Land Court late yesterday.
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