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Mass. Appeals Court Upholds Somerville’s Union Square Revitalization Plan

In 2012, the City of Somerville, the Somerville Redevelopment Authority (SRA), and the Massachusetts Department of Housing and Community Development approved the Union Square Revitalization Plan (the Plan), an urban renewal plan to be administered by the SRA under M.G.L. c. 121B. A taxpayer group and a landowner (Pishev) appealed the approval of the Plan, alleging that it violates Chapter 121B. In late July the Appeals Court upheld the Plan’s approval in Pishev v. City of Somerville (pdf), 95 Mass. App. Ct. 678 (2019).

Pishev’s property is identified as a parcel subject to eminent domain taking by the SRA under the Plan pursuant to the powers granted to the SRA by Chapter 121B. The Appeals Court first addressed the issue of standing and found that the taxpayer group did not have standing, citing St. Botolph’s Citizens Committee, Inc. v. Boston Redevelopment Authority (pdf) and finding that “[n]o sufficient causal or connective link exists between the injuries or harms alleged by the taxpayer group, and the legislative decisions made by the municipal defendants….” But because Pishev’s property was identified as a parcel to be taken under the Plan, the court found that Pishev did have standing based on Benevolent & Protective Order of Elks, Lodge No. 65 v. Planning Board of Lawrence (pdf). In that case the Supreme Judicial Court (SJC) held that a landowner whose property is identified for taking by eminent domain under an urban renewal plan has standing to appeal that plan.

The problem for Pishev, however, was that she waited 998 days from the date of the approval of the Plan to appeal. The Appeals Court found that she should have brought her case within 60 days of approval of the Plan– the timeframe for certiorari actions under M.G.L. c. 249, § 4. The Appeals Court followed its holding in Cumberland Farms, Inc. v. Montague Economic and Industrial Corp. (pdf), in which it held that a property owner could contest damages in an eminent domain action under M.G.L. c. 79, but not the underlying planning process that led to the eminent domain taking, unless the owner challenged that process within the time allowed under Chapter 249, § 4. In this case, although Pishev’s appeal was not in the context of a Chapter 79 action (when she filed the appeal the SRA had not sought to take her property), the Appeals Court held that a landowner whose property is identified for taking has to act in a more timely fashion to contest the approval of an urban renewal plan.

The Appeals Court never addressed the merits of the Plan, but noted that the Plan was approved after the public process described in Chapter 121B. The court also observed that during the 3-year period from approval of the Plan to the commencement of the case challenging the Plan, the SRA took significant actions and spent significant funds to advance the Plan. The court concluded that Chapter 121B grants broad powers to urban renewal plans and the authorities that approve and administer them, and that the authorities’ decisions are entitled to deference.

This case demonstrates why urban renewal plans remain valuable tools when a municipality is looking to revitalize an area. But stay tuned – a case currently before the SJC (which took the case from the Appeals Court sua sponte) also deals with the powers of an urban renewal agency under the provisions of Chapter 121B – Marchese v. Boston Redevelopment Authority, Docket No. SJC-12659. The plaintiff’s standing is also an issue in that case. The case was argued before the SJC in May and a decision is expected sometime this fall.

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About this Author

Paula M. Devereaux Partner Boston Commercial Real Estate Law Real Estate Land Use Environmental
Partner

Paula Devereaux is an experienced commercial real estate and land use attorney, focusing her practice on development, zoning, permitting, planning, and environmental regulatory compliance. Paula serves as real estate counsel for a number of clients in the Greater Boston area, ranging from smaller organizations to large corporations, medical centers, retailers, and real estate firms. She regularly advises clients on Boston permitting matters, waterfront development issues, and in sales, acquisitions, and financings.

Paula is active in the real estate community, serving in leadership...

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