by Jason L. Nielson

The Somerville homeowner, who filed previous legal challenges to the development of Assembly Square, filed a complaint July 21 requesting the county’s land court quash Mayor Joseph A. Curtatone’s covenant with the project’s developers.

The plaintiff, Louana H. Evarts who is a MVTF member and lives across the street from Assembly Square, is supported by the Mystic View Task Force, said William C. Sheldon, the organization’s president.

“We will support Ms. Evarts in her legal challenge if that’s what is necessary, but we urge the city to simply follow the law rather than wasting more tax dollars to defend an indefensible ordinance and further delay the opportunity to bring high quality development to this blighted area of our city,” he said.

The board of aldermen went into executive session July 22 to hear from the mayor and the city solicitor their view of the Evarts’ complaint, said William M. Roche, the alderman for Ward 1, which includes Assembly Square.

“I spoken to maybe 50 people since this was filed, and not one person supported the Mystic View Task Force,” he said.

“It is unfortunate that a small group of people can cause disruption for the whole city,” he said.

“I am not a lawyer, but I am an optimist. I believe the vision created by the citizens of the city through a series of hearings that brought together the citizens, the developers, the aldermen and the planners will prevail,” Roche said.

Evarts also challenged two decisions of the Somerville Planning Board to subdivide the land into nine parcels and then, administer permits for the approved site plans, Shelton said.

“The Assembly Square rezoning violates the most fundamental principles of Massachusetts zoning law because it contains provisions which are arbitrary and have no rational relationship to zoning objectives stated in law,” Shelton said.

“Rather than requiring these developers to follow the law, our elected officials have rewritten the zoning ordinance to suit one group of developers. In doing so, they have violated the most basic principles of fairness and equal treatment for other property owners,” he said.

Shelton said the complaint hopes to invalidate the amendment, but not stop the developers’ plan. The amendment creates conditional development approvals that allow some developers to evade the special permit requirements of the Massachusetts zoning enabling act. Shelton said if the amendment is found invalid, it is up to the developers, Assembly Square Limited Partnership, on whether they continue with their plans.

He said that the amendment to allow city officials to authorize some land owners to build high-impact developments, while denying permits to others who are proposing identical projects on the same or similar properties.

The complaint includes six counts under the headings: Lack of Uniformity; Invalid Conditional Use/Special Permit Scheme; Unlawful Site Plan Scheme; Unlawful Delegation to Private Parties; Arbitrary Ordinance Provisions; and General Law c. 40A, 17.

“The complaint details the counts on which the mayor’s amendment to the city’s zoning ordinances violates four Massachusetts laws because it authorizes city officials to allow some land owners to build high-impact developments while denying permits to others who are proposing identical projects on the same or similar properties,” Sheldon said.

“It allows some developers to evade Massachusetts’ special permit requirements through the use of conditional approvals,” he said.

“It gives municipal authority to some developers that no city can legally delegate, and it contains provisions that are arbitrary and have no rational relationship to legal zoning objectives,” he said.

The amendment, passed in May, adopts new provisions governing a newly defined zoning district in Somerville known as the Assembly Square Mixed-Use District, which according to the complaint: replaces provisions relating to the “Business Park Assembly” and “Industrial Park Assembly” zones.

“The rezoning allows site plan approvals which should be reviewed and treated as special permits under the state zoning enabling act,” he said.

“It allows different land owners within the same zoning district to do very different things, with different levels of review. It delegates to some developers municipal authority that no city can legally delegate” he said.
Evarts told the court that the amendment created a category of “Priority Permitted Uses” that sometimes requires regular permits and other times, special permits.

“This feature also subjects as of right uses to the grant of a special permit, despite the fact that the concepts of a use as of right and a discretionary uses are mutually exclusive,” Evarts’ complaint contended.

For the retail section of the permitted use, the complaint defined it as replacing retail uses in an existing or vacant Mall with other Retail uses, with no single retail use occupying more than 75,000 square feet GFA, subject to some excluded uses.

“It’s a grudge between them and the developers,” said Joan M. Guarino, a member of the Perkin Street Park and East Somerville Neighborhood Association. “They can con whoever they want, but they are not conning me.”

“I can’t understand where MVTF is coming from, or what they are thinking,” she said.

Guarino said that she is appalled that the MVTF is challenging the re-tenanting of the mall, but were not concerned about other similar issues in East Somerville. “They pick and choose what they are going to fight. There is 82,000-square-foot Stop & Shop in a residential area and not one came out to help.”

“I challenge them to answer that question, what happened to Stop & Shop fight?” she said. “They pick and choose what they are going to fight.”

On the matter of the Stop & Shop, Shelton said MVTF members devoted hundreds of hours preparing analysis and giving testimony at hearings in opposition to the supermarket’s development plans for the former Somerville Lumber site.

Roche said when he first joined the board of aldermen he attended MVTF meetings. “It was when Bill Shelton ran the housing program, before they had dues or official membership.”

“I went because I was the ward alderman and I wanted to help them out,” he said. “After several meetings, I realized that their vision was not reasonable.”

“They are always saying that they want to meet the city half-way, but they haven’t bunged one inch,” he said.

“Every step of the process for five years, we have asked the developers to mediate a solution,” Shelton said.

“A year ago, this week, the then mayor, the chief of state’s development agency and the MVTF all pleaded with the developers to mediate, and they refused,” he said.

Defendants named in the complaint included the City of Somerville; Mayor Curtatone; the Somerville Board of Aldermen; Stanley Koty, commissioner of the publics works department; George Landers, superintendent of the inspectional services division; the Planning Board of Somerville; and the Assembly Square Limited Partnership.

The defendants named in the complaint are named only in their official capacities, not as individuals.