Assembly Square, the back story
Part 16:  Rezoning

A commentary by William C. Shelton

(The views and opinions expressed in the commentaries of the Somerville News belong solely to the commentators themselves and do not neccessarily reflect the views and opinions of the Somerville News, its publishers or its staff.)

Seven years ago Home Depot wanted to replace Assembly Square Mall with a large new store.  When Assembly Square Limited Partner‚Äôs (ASLP‚Äôs) balloon payment on the property‚Äôs one-year mortgage came due, Home Depot bought the loan.  ASLP happily agreed to the tough new mortgage and lease that Home Depot imposed.

During the time that the project was later stalled in court, ASLP realized that developing a big-box strip mall would generate far greater profit than a Home Depot.  But the reasons why the court eventually judged the Home Depot to be illegal also applied to a strip mall.  And ASLP was bound by its Home Depot contracts.
Once elected mayor, ASLP‚Äôs candidate, Joe Curtatone, immediately retained Palmer and Dodge to write zoning that would lend ASLP‚Äôs plans an appearance of legality. He simultaneously initiated a campaign to persuade Aldermen to approve it.  Somerville‚Äôs Charter forbids mayors from submitting zoning, but they can always find a compliant alderman.
Some aldermen insisted on a process for public input.  The administration conducted a series of public meetings, but participants‚Äô ‚Äúinput‚Äù never influenced the rezoning draft.
To give the charade more credibility, the administration retained fiscal analyst Richard Bonz to forecast the city taxes and costs that ASLP‚Äôs and Ikea‚Äôs projects would produce.  In March, 2004, he reported to the Legislative Matters Committee that the strip mall would generate no net tax revenue, and all the other projects together would produce $890,000 more taxes than costs. Some aldermen were stunned; two years of state aid cuts had totaled $15 million.  The Mayor hustled Bonz out of the committee room.
  A week later Bonz issued a revised report.  It projected net revenues for all projects at $4 million.   A peer review by Tischler and Associates knocked a million off this projection for things like assuming that each of ASLP‚Äôs apartments would only house two one-hundredths‚Äô of a public school student. 
Tischler had been given a narrow contract scope, and no raw data to review.  So Tischler‚Äôs analysts said they couldn‚Äôt estimate the costs resulting from Bonz‚Äôs other errors, like including no capital costs whatsoever.
Had they received the raw data, their estimates would have been a net loss for the strip mall, and little more for all the rest.  Nonresidential developments‚Äô largest municipal expenses are public works and public safety costs.  Road-related costs are driven by the number of vehicle trips; and public safety costs, by what kinds of uses are on site and how many people they bring.  Retail space, for example, produces about 14 times the number of police calls that the same amount of office space produces.
Bonz‚Äôs analysis divided the city‚Äôs annual road costs by its total road miles, and applied this cost-per-mile to Assembly Square‚Äôs road miles.  This is equivalent to saying that maintaining an isolated residential block costs the city as much as a Union Square block.  City roads serving the ASLP/Ikea developments would be the most traveled in Somerville.  And instead of using the police call figures from Assembly Square, city staff gave Bonz figures for the sleepier Somerville Avenue Target store.
However, Assembly Square‚Äôs high rate of police calls was useful in persuading Home Depot to relinquish its contractual rights with ASLP.  Palmer and Dodge crafted zoning that allowed the strip mall but excluded Home Depot by limiting big boxes to 50,000 sq. ft.‚Äîbig enough for, say, a Christmas Tree Shop‚Äîunless the developer also built 1.5 times the same amount of non-retail space. Contract law required ASLP to defend Home Depot‚Äôs interests, but ASLP‚Äôs attorneys actually consulted with Palmer and Dodge on the rezoning.  ASLP still needed Home Depot to let them off the contractual hook.  So the Mayor closed down Home Depot for a day, publicly citing crime in its parking lot.  Home Depot got the message.
Writing the zoning that ASLP required wasn‚Äôt easy.  It was an affront to the Somerville Zoning Code‚Äôs stated purpose, and allowing one landowner to do things forbidden to others violated Massachusetts law.
The 54-page re-zoning‚Äôs legalese was difficult to penetrate. Most aldermen didn‚Äôt try.  Nor did they read the analyses submitted by citizens that explained why it was illegal and how it would harm public health and city finances.  Alderman Sean O‚ÄôDonovan stated that he didn‚Äôt understand the rezoning but was going to vote for it anyway.  He was simply more candid than his colleagues.
On April 23, 2004, Aldermen voted eight-to-three to approve the rezoning.  During the next 16 months, 15 Palmer and Dodge attorneys gave an average of $600 each to help retire the mayor‚Äôs campaign debt. 
Today, with only half of Palmer and Dodge‚Äôs invoices publicly released by the city, we know that the firm was paid at least $600,000.  The meter is still running.