Deutsche Bank National Trust Co.
Antonia Shelzi et al. ,  and Companion Cases  No. 134820
September 2, 2016
OF DECISION AND ORDER ON DEFENDANT SOMERVILLE REDEVELOPMENT
AUTHORITY'S MOTIONS FOR PARTIAL SUMMARY JUDGMENT
Kenneth J. Fishman, Justice
three cases before the court are petitions for damages, which
arose after the Somerville Redevelopment Authority ("
SRA") took certain property by eminent domain on May 29,
2013, in an effort to revitalize Somerville in connection to
the expansion of the MBTA's Green Line at Union Square.
At the time of the takings, plaintiff Francis Fahey
maintained a residence and business at 26-30 Prospect Street,
Somerville, Massachusetts, and plaintiff Prospect Iron &
Steel Corp. and affiliated corporations (" Prospect
Iron") maintained businesses at 40 Bennett Street also
in Somerville. In addition, defendant and cross claimant
Antonia Shelzi owned a two-story, single-family residence at
4 Milk Place in Somerville, upon which plaintiff Deutsche
Bank National Trust Co. (" Deutsche Bank") was a
mortgagee (hereinafter, the " subject properties"
or the " properties").
the takings, the SRA made pro tanto offers in the
amount of $385, 000.00 to Fahey, $3, 165, 000.00 to Prospect
Iron, and $75, 000.00 to Deutsche Bank's mortgage
servicer, by way of its mortgage instrument with Shelzi.
Subsequently, the plaintiffs instituted these actions
contending that such offers were not just and reasonable
compensation as required by the Fifth Amendment to the U.S.
Constitution and art. 10 of the Massachusetts Declaration of
matters are presently before this Court on the SRA's
motions for partial summary judgment in each case. The
gravamen of the SRA's argument is that the opposing
parties are not entitled to increases in the properties'
values, which the SRA avers are attributable to the
announcement of the revitalization project. Additionally, the
SRA argues that the changes in zoning, which were enacted
prior to the taking but in furtherance of the revitalization
project, should similarly be excluded from the just
compensation calculation. After hearing, and upon review and
consideration, the motion is DENIED .
following relevant, undisputed facts are taken from the
summary judgment record, with certain additional facts
reserved for later discussion.
of this project area in Somerville (or " the city")
began as early as February 1988, when the city published the
Boynton Yards Revitalization Plan (" Boynton Yards
Plan"). Boynton Yards was an 80-acre site
adjacent to Union Square, which consisted of industrial,
commercial, and residential uses. However, the area suffered
from blight, decadent, and substandard conditions, as defined
in G.L.c. 121B. The Boynton Yards Plan aimed at redeveloping
this area to eliminate such conditions while also creating
new jobs and affordable housing opportunities. The Boynton
Yards Plan was a two-phase plan, and the first phase was
completed on June 22, 2006. The SRA concedes that the second
phase was abandoned when the city chose to expand its plans
for redevelopment into Union Square.
spring of 2000, Somerville initiated various planning
studies, including the Union Square Revitalization Study. The
outcome of that study was the Union Square Revitalization
Study Neighborhood Revitalization Strategy Area Plan ("
NRSA Plan"), which the city published in the spring of
2002. The NRSA Plan targeted low and
moderate income areas for economic development and granted
the city access to public funds made available through the
U.S. Department of Housing and Urban Development ("
HUD"). Maps contained in the NRSA Plan denoted the
boundary lines of the strategy area, which included a portion
of Union Square.
in April 2003, Somerville published the Five-Year
Consolidated Plan (" 2003 Consolidated Plan"),
which was written in accordance with HUD requirements to gain
access to federal funding. The 2003 Consolidated Plan
provided the framework for disbursing those funds to various
programs throughout the city. It also commented on the
potential for expanding the Green Line to Union Square,
noting " [s]ome land assembly may be required
by private developers, the MBTA, or the City of
Somerville/Somerville Redevelopment Authority in order to
facilitate development." (Emphasis added.)
same month, Somerville published the Union Square Master
Plan (" Master Plan" or "
2003 Master Plan"), which incorporated the goals and
objectives of the second phase of the Boynton Yards Plan and
the 2003 Consolidated Plan and established a timeline to
accomplish those initiatives. Phase I of the Master Plan was
simply the 2003 Consolidated Plan. Phase II consisted of
ideas unique to the Master Plan, which " identifie[d]
new opportunities, [wove] together previously-identified
recommendations into a cohesive vision, and then define[d] a
step-by-step Action Agenda." The Master Plan also
acknowledged that Somerville was in the process of
negotiating with the MBTA to implement " new rapid
transit services for Somerville as a whole and Union Square
in particular, " and it named Prospect Street (a/k/a
" Prospect Street Corridor" or " Prospect
Street Gateway") as the potential location for the
transit station. In addition, the plan predicted that
land values and pressures to build in the Prospect Street
area would increase, pending commitments for transit
funding. The Master Plan also contemplated that
the MBTA would acquire easements through the area but stated,
" [s]ite assembly may be required as
well." (Emphasis added).
Master Plan also envisioned new zoning initiatives to
incentivize redevelopment. More specifically, the plan
stated, " [with] major redevelopment . . . likely to
occur in the Prospect Street corridor as transit commitments
. . . are confirmed . . . a zoning district boundary change
should be considered to extend the CBD [a/k/a Central
Business District] to the eastern side of Prospect
Street" (see Ex. 9, p. 29), because the CBD zoning
provisions were supportive of this new type of development.
In addition, the Master Plan proposed a Transit Overlay
District within 1, 200 to 1, 500 feet of the proposed transit
station location, which would reduce the mandated parking
ratios below those already required for entertainment uses.
The Master Plan suggested that these zoning changes occur in
2008, Somerville initiated a study to determine whether the
Somerville Zoning Ordinance in Union Square should be
amended. A public hearing was held on December 4, 2008, and
on April 23, 2009, the Board of Aldermen adopted Ordinance
No. 2009-03 (" Zoning Amendment" or " 2009
Zoning Amendment"). The Zoning Amendment acknowledged
that it was " in the City's best interest to take
advantage of anticipated Federal and State
investment in the extension of the Green Line . . ."
April 19, 2012, Somerville's Board of Aldermen endorsed
the SomerVision Comprehensive Plan 2010-2030 ("
SomerVision"), pursuant to G.L.c. 41, § 81D, which
qualified it as a " Master Plan." 
SomerVision's goals and objectives not only included
transforming Union Square, but also expressed a commitment to
undertake redevelopment in the city as a whole.
October 2, 2012, Somerville approved the Union Square
Revitalization Plan (" Revitalization Plan" or
" 2012 Revitalization Plan"),  which is a
twenty-year urban renewal plan. Revitalization plans,
or urban renewal plans, are planning tools, which generally
help guide development and revitalization in cities. The SRA
previously used a revitalization plan in transforming
Somerville's Assembly Square.
2012 Revitalization Plan indicates that it is " a
necessary first step to providing both the transit
and transit-oriented development (TOD) that will revitalize
the Union Square neighborhood." The Revitalization Plan
claims that it was predicated on a community consensus to
bring rail transit to Union Square in addition to two
previously enacted community processes: (1) comprehensive
rezoning in 2009; and (2) " Somerville's
first comprehensive plan, known as the
'SomerVision Comprehensive Plan.'" (Emphasis
added.) The ...