Inclusionary Zoning Was Meant to Create Affordable Housing. Now a Developer is Taking it to Court.

For nearly three decades, Cambridge has relied on its inclusionary zoning policy to require developers to build affordable housing. Now, a lawsuit filed by a longtime local developer threatens the legal basis of that policy.

Patrick W. Barrett III filed suit in Massachusetts Land Court in December, arguing that Cambridge’s Inclusionary Housing Ordinance violates the Fifth Amendment by forcing property owners to give up constitutionally protected rights.

Cambridge adopted the ordinance in 1998, requiring 11.5 percent of units in developments with more than 10 units to be set aside as income-restricted affordable housing. In 2017, the City Council raised the requirement to 20 percent — among the highest inclusionary thresholds in Massachusetts.

Barrett’s lawsuit challenges that increase as an unconstitutional taking of private property.

Barrett, a developer and zoning attorney who has worked in Cambridge for nearly 20 years, is seeking to repair five properties on Columbia Street through an entity named Columbia St. LLC. The project would create nearly 90,000 square feet of condominiums. Under the current ordinance, however, the development would be subject to the 20 percent affordability requirement.

Complying with that requirement would force developers to “surrender fundamental property rights,” the suit argues.

The case’s second hearing is scheduled for Tuesday, when the court is expected to set a timeline for future proceedings. Paul R. Johnson, an attorney for Barrett with the Pioneer New England Legal Foundation, said his team planned to file a motion for summary judgment in hopes of moving the case toward a ruling by next January.

Johnson said the city has instead pushed for a longer schedule, including additional dispositive motions — legal filings that could resolve the case without a trial but would likely delay a ruling until next summer.

City spokesperson Jeremy H. Warnick wrote in a Monday statement that Cambridge “disputes the allegations in the Complaint” and maintains that the ordinance is “valid under both federal and state constitutions.”

Barrett said in a Monday interview with The Crimson that inclusionary zoning has become “the biggest bottleneck” in residential development in Cambridge.

He said he largely stopped building residential projects after the ordinance was amended in 2017.

“I stopped building residential almost entirely,” Barrett said.

“At the time, a lot of people in the development world were saying, ‘Well, this is going to be problematic,’” he added, “and I think that numerically, that’s been borne out.”

The lawsuit argues that to comply with the Fifth Amendment’s Takings Clause, the city must show an “essential nexus” between the inclusionary requirement and a legitimate public interest. Barrett contends Cambridge has failed to demonstrate that new residential projects create the affordable housing need the ordinance is meant to address.

The suit also argues that the city applies the ordinance “without any attempt to show that its need for affordable housing is caused by or reasonably related to any particular project.”

Johnson said that they believed the nexus study that supported the original 1998 ordinance is outdated, citing dramatic increases in land, construction, and labor costs.

Since 1997, the city has periodically commissioned nexus studies on inclusionary zoning and affordable housing in Cambridge. A study completed in 2016 provided the city with an updated set of recommendations, including raising the inclusionary requirement to 20 percent. The city’s latest nexus study, completed in 2019, concluded that new non-residential development in Cambridge creates a significant demand for affordable housing.

“The Ordinance is designed to ensure that construction of new market-rate housing does not undermine the City’s goal of maintaining a healthy socioeconomic diversity,” Warnick wrote.

If successful, Barrett’s suit could affect the more than 140 municipalities statewide with similar inclusionary requirements. While a ruling in the suit would only immediately affect the Columbia St. developments, it could set a legal precedent for developers to challenge inclusionary policies across the state, Johnson said.

Massachusetts Attorney General Andrea J. Campbell moved last week to intervene in the case, arguing that the lawsuit challenges the constitutionality of a local ordinance with statewide consequences.

“The Ordinance implicates a vital state-wide interest — the creation of affordable housing. The ‘crisis in housing for low and moderate income people’ in the Commonwealth has repeatedly been recognized as a long-standing and worsening problem,” Campbell wrote in the motion.

Johnson said the case follows similar challenges brought in California and Colorado.

“It’s not just lawyers who are looking at this. It is individual communities that are looking at this and thinking, ‘Maybe we are shooting ourselves in the foot here,’” he said. “Maybe we are, instead of creating more housing, having the effect of slowing down the construction or even preventing the construction of new housing.”

Barrett said the lawsuit is not ideologically motivated. He said he raised concerns about the ordinance’s economic impact to the City Council for nearly a decade without seeing changes.

“I don’t think anyone disagrees with me privately about the sort of negative impact that it’s had, but politically, it’s not very popular to say,” he said, referring to discussions with councilors about the IHO.

In a June letter to the Council, Barrett wrote that the ordinance has produced “a paper thin veneer of a housing market held up by labs, hubris, and wishful thinking.”

“I’m trying to save the city from itself” he said in a Monday interview, adding that he is willing to be the “bad guy” if it drives a broader reevaluation of the ordinance.

—Staff writer Isabel K. Crews can be reached at [email protected] or on Signal at isabelcrews.29. Follow her on X @isabelkcrews.

—Staff writer Adelaide L. D. Roger can be reached at [email protected]. Follow her on X @adelaidelrg.