Mr. Kevin Prior, Chairman
Somerville Planning Board
93 Highland Avenue
Somerville, MA 02143
December 17, 2000
I am writing regarding two cases before you affecting the same property. With respect to your
deliberations in an advisory capacity to the Zoning Board of Appeals, I write in support of Mr.
Patrick Scrima's September 19, 2000, letter of decision denying the application of the Assembly
Square Limited Partnership (ASLP) for an "as of right" permit to build a Home Depot on part
of the former Assembly Square Mall site. Interconnected with this matter is the case against
ASLP's petition to grant Home Depot a Special Permit to Expand a Nonconforming Use or
Structure. ASLP needs a Special Permit with Site Plan review for the portions of its project
which are allowed at all in a BPA zone. The arguments pertaining to these issues are set forth
in this letter.
The ASLP permit application necessarily applies both to the alteration of a pre-existing
nonconforming structure and "change or extension of a pre-existing non-conforming retail use
at this location." (emphasis supplied). Sec. 4.4.1 states that "lawfully existing nonconforming
structures... may be enlarged, extended, renovated, or altered only by special permit authorized
by the SPGA .... The SPGA must find that such extension, enlargement, renovation, or
alteration is not substantially more detrimental to the neighborhood than the existing
nonconforming building."
The ASLP permit application proposes "selective demolition, alteration, and re-tenanting" of the
mall structure, and change of its exterior elevations. The ASLP claims to be reducing the gross
floor area of the structure; if so, it is only because their plans call for replacing part of the
former Jordan Marsh/Macy's with a parking structure for which they have not yet applied for
a building permit. In other respects, however, their plans constitute an "extension" or
"enlargement" of the structure, as by raising the height of the building from a maximum of 40
feet to forty-seven feet and five inches. ( See attached Appendix "A": " Full building height: 16
feet to 18 feet, to as high as forty feet"). Clearly ASLP's building permit application calls for
a "renovation" of the mall structure, and ASLP admits that it proposes its "alteration." As such,
this application requires a special permit under S.Z.O. 4.4.1., in keeping with the requirements
of M.G.L. ch. 40A, sec. 6, par. 1.
The structure, built as a Ford Assembly Plant in 1926, and later converted by First National
Stores to a warehouse, long predates its retail use. As in most such cases, it is difficult to
extricate completely the question of alteration of structure from that of expansion of use. S.Z.O.
sec. 4.4.1 acknowledges such a connection by its requirement that "[i]n making the finding that
the enlargement, extension, renovation, or alteration will not be substantially more detrimental,
the SPGA may consider, without limitation, impacts upon the following: traffic volumes, traffic
congestion,...noise, ..., scale,... ,visual effects and neighborhood character."
As an example of the detrimental effects of the alteration of this structure proposed by ASLP,
consider the aspect of scale. ASLP's building permit application states that it intends to build
a "one-story" structure forty-seven and a half feet in height. Consulting the table of Dimensional
requirements in S.Z.O. sec. 8.5, one sees that a structure forty feet high (the maximum height
of the existing structure) is generally considered a having three stories, a fifty foot structure,
four stories. Thus ASLP proposes to add almost the equivalent of a full story of height ( seven
and a half feet out of ten) to create a "single-story" structure which is almost four stories tall.
Of course the former Ford plant housing the former mall is a tall building, with exterior
elevations of up to 40 feet. Yet the exterior elevation varies from 18 feet to 40 feet, with
approximately 22 feet of this height used to accommodate the building's extraordinary skylight.
The skylight was considered a remarkable innovation in industrial architecture in its day. Beyond
the Neck ( at page 79) quotes commentator Orra Stone as writing that the Ford Motor Company
building "embodies the latest idea in one-story structures, and was designed distinctly for the
purpose of combining industrial economies and healthful working conditions."
In its re-use as the Assembly Square Mall, the building's "healthful" skylight was preserved.
Retail use was kept at a single story. (See Appendix "A": 'Height to dropped ceiling: typical
retail spaces is 12 feet to 18 feet.") Consequently, the significant amount of interior open space
devoted to public use -over 36,700 square feet - enjoyed vertical open space as well as open
floor space, illuminated by an unusually great amount of natural light. This outsized building,
when re-used as a mall, was kept to a human scale by making its great height into an amenity,
creating an all-season public open space. By contrast, Home Depot will flatten this roof at
almost a full story above its present maximum height, and fill the vertical space with shelving
and merchandise, converting a public amenity to a warehousing use.
This alteration of the building space, with its attendant alteration of use, has numerous impacts.
Public space and amenities are eliminated in favor of merchandise storage space. Not even
commerce itself, but storage space accessory to commerce, replaces the lost public realm. The
increase in merchandise storage volume ( which could be easily calculated) must consequently
increase truck and other vehicular traffic, as there has to be a way of getting all that merchandise
in and out.
This anticipated increased truck traffic volume is evidenced by another proposed expansion of
the existing structure: a doubling of the existing truck loading docks. As shown in Appendix
"A," the mall presently has two truck loading docks, one for each of the anchor stores, and none
in the body of the mall. The ASLP plans show four loading docks. This change has detrimental
truck traffic implications for the site and its surrounding neighborhoods.
While I agree with Mr. Scrima that this project constitutes a change to a nonconforming
structure triggering a special permit requirement, I can see only one existing nonconforming use
at the mall site which is being changed. K Mart, at 94,800 square feet is a nonconforming use
(SPSPR), but has not changed. The former Jordan Marsh/Macy's, at 72,240 square feet, is
similarly nonconforming. Since it has been changed to an operation presumably within the same
use category, Building 19 (Sec 7.11:9.2.c. General merchandise, department store, supermarket;
10,000 s.f. or more gross floor area), it maintains its nonconforming status. ( All references to
square footages are documented on the mall floor plans supplied by Somerville's Inspectional
Services Division, attached as Appendix "B.")
ASLP's plans do suggest that the Jordan Marsh/ Building 19 structure will be demolished, but
the only part of the proponent's project which will occupy that space is the new Garden Center.
All of the new Home Depot store will be located within the body of the mall, the portion
between the two anchor stores. This fact can be seen by examining the mall plans as rendered
in the same scale as the plans for the mall, attached as Appendix "C.") Therefore, only the
conversion of the Jordan Marsh/Building 19 into the Garden Center can be regarded as a change
from one nonconforming use ( as outlined above) to another nonconforming use ( Sec. 7.11.10.
Commercial greenhouse or nursery.)
Within the mall itself, as shown on attached Appendix "B," are approximately 56 separate shops,
restaurants, and offices. The largest of these are all under 10,000 square feet of gross floor area.
All seem to have been occupied by uses which were and are as-of right at that scale within a
Business Park Assembly district. These include: several specialty food stores ( S.Z.O. Sec.
7.11:9.3.a. and b.), the largest of these Nature Food Centre at 1,474 square feet, and two or
more fast food restaurants with no drive up service, conducted within an enclosed building, at
under 4,000 square feet of floor area (Sec.7.11.10.2.1.a. and b.). The largest restaurant in the
mall, Dapper Dan's, at 5,325 square feet, also falls within an as-of-right category, Restaurant,
other than fast food, S.Z.O. Sec. 7.11:10.1.1.c.
The office uses at the mall, such as Heritage Dental Center, at 2,882 square feet, all fall within
as-of-right category, Sec. 7.11:7.2.a. Most of the other shops seem to fall into category 7.11:5.,
"store selling or renting goods such as books stationary, drugs sporting goods...[etc.] and the
like that are typically of a size a customer can carry by hand." The largest of these, Anderson
Little, at 9,334 square feet is still small enough to locate as-of-right in a BPA zone; 10,000
square feet of gross floor space being the trigger for SPSPR. I can find not a single commercial
space or use within the mall that is not as-of-right under our present zoning ordinance.
The only exception to consistent of-right use within the mall is the approximately 36,700 square
feet of public open space in the interior of the mall. The closest use category I can find that
might apply to it is 7.11:6.4, "Theater, cinema, or other public assembly." Uses of over 10,000
square feet in this category do need SPSPR. Interestingly, this is the only use category which
bears the note "[i]n case of multiple theater/cinema operations on the same site, the total
aggregate footage of all the theaters or cinemas shall determine gross floor area." Tellingly,
there is no such note in the retail or service category that would aggregate square footage within
malls, as the ASLP does when it tries to conflate its conforming uses with the non-conforming
structure that contains them.
What ASLP is trying to do here is convert a collection of higher, conforming uses, to a an
apparent blend of uses lower in the table of uses. These are, principally, "store selling hardware,
paint, wallpaper lawn and garden supplies' ( S.Z.O. Sec. 7.11:8.1.c) and "Building and
construction materials" (Sec. 7.11:9.1.c). Either of these uses requires a SPSPR if conducted
on over 10,000 square feet of gross floor area; Home Depot will cover almost six times this
area, 173,692 square feet. It seems quite clear that, if Home Depot's retail uses can be allowed,
they must be only by Special Permit with Site Plan Review.
Inspection of the Home Depot's plans and consideration of the use pattern at their existing site
reveal that approximately 30% of their gross floor area will be used for wholesale purposes, to
supply the building trades. Thirty per cent of 173,692 square feet is approximately 52,107
square feet. The use category in S.Z.O. Sec. 7.11:13.1.1.b.," Wholesale business or
storage...conducted entirely within an enclosed building" is permitted only in less than 25,000
sq. ft. of gross floor area in a BPA zone; and not permitted at all for greater square footages.
Hence, I would conclude that such a use may not be instituted at the mall site. (See Sec. 7.6,
" The symbols in the TABLE OF PERMITTED USES shall have the following meanings:.... NOT PERMITTED" ).
The proponent of this project states in his building permit application that "[s]ince retail use
commenced at the property in 1979-1980 and has operated continuously since that time,
replacement tenants for the retail space are not subject to the subsequently enacted requirement
of a special permit with site plan review for new retail uses having 10,000 square feet or more
of gross floor area." Some of the less obvious fallacies of this assertion have been explored. Its
principal statement is also untrue; apart from the situation of the anchor stores discussed above.
Inspectional Services has informed me that the stores within the mall between the anchor stores
have not been occupied since approximately 1995.
Section 4.5.2.a. of the Somerville Zoning Ordinance states that "A nonconforming use shall be
considered abandoned when the building or use is abandoned or not used for a period of two
(2) or more years." Thus nonconforming uses at the site, if any, have lost their status as such.
The same may be true of rights of nonconformity in the building.
While it is always difficult to separate out the intertwined strands of change to non-conforming
structure and change of non-conforming use, one can easily see that the alterations contemplated
by ASLP, whether to building or to use, will be substantially more detrimental than the
operations of the former mall. I've already made reference to the question of increased traffic
occasioned by the far greater volume of merchandise that will be contained in the enlarged and
altered building. While others can speak more expertly than I on the subject of traffic, I'm sure
that proponent's Institute of Traffic Engineers (ITE) estimates are no substitute for actual historic
traffic counts from the mall ( which must exist somewhere) and traffic projections based on
actual counts from the existing Home Depot at Assembly Square.
I would also urge the Planning Board to gain Access to the traffic circulation analysis done by
TAMS, Steve Cecil's Transportation consultant, as part of that study. At a public meeting on
January 11, 2000, the TAMS representative stated that while he did not have traffic impact
studies for the Mall or IKEA sites, he did have general road access and interior circulation plans
for the mall, and "our first impression of the plan is that we don't like it much." He stated that
he thought "traffic will back up to the Fells at peak hours." He also noted that "neither of the
plans [National or IKEA's] does much for pedestrian access to the site," an improvement
recommended by the Cecil Report.
The TAMS representative also noted that the mall and IKEA plans "don't yet show 'interface'
with the rest of the development area." This deficiency persists, and is actually quite serious.
The ASLP asks this city to render its building permit denial/ special permit decision as if the
Home Depot development were taking place in a vacuum. The connection between the mall's
access roads and State Road 28 is not addressed; yet that connection presumably would trigger
MEPA review by the Commonwealth, just as the site's river boundary triggers the requirement
for a license under M.G.L. ch. 91. One must wonder whether the isolation of this portion of the
mall redevelopment might not be an improper segmentation of the project in violation of the
MEPA regulations. 301 CMR 11.01(2)(c).Suffice it to say, for the moment, that the information
proffered on traffic impacts is grossly inadequate.
Mr. Robert Fishman, the attorney for the ASLP, does correctly state the three part test used by
the Massachusetts courts in determining "whether a current use of property is a protected
nonconforming use." Cape Resort Hotels,Inc. v. Alcoholic Licensing Board of Falmouth, 385
Mass. 205, 212 (1982). It incorrectly identifies this test, however, as the Powers test, citing the
case of Powers v. Building Inspector of Barnstable, 363 Mass. 648 (1973). While the Powers
decision is instructive and useful, it is not, as Mr. Fishman claims, "seminal" with regard to the
three-prong test, as which was first articulated in the case of Bridgewater v. Chuckran, 351
Mass. 20, at 23 (1966.)
Looking at each part of the Chuckran test, it is possible to come to very different conclusions
than Mr. Fishman has in his July 31, 2000 letter to Mr. Scrima. The first part of the test is
"Whether the use reflects the 'nature and purpose' of the use prevailing when the zoning by-law
took effect." Id. at 23. Interestingly, when the mall was developed, in about 1980, before the
days of "large footprint" retail, the city's rather primitive zoning ordinance treated all retail use
as a single, undifferentiated category. When the Ordinance was amended in 1990 to create
different classes of retail use, all the retail spaces in the mall proper, apart from the anchor
stores, remained conforming.
One must wonder whether the 1990 zoning ordinance might not have been deliberately crafted
to prevent the creation of any non-conformity within the mall, which was at the time the city's
most significant retail center. In the absence of a zoning change rendering the uses in the mall
nonconforming, it is not really possible to apply the first prong of the Chuckran test, other than
to the conversion of the former Jordan Marsh to a garden center. Ironically, the petitioner here
is eager to create the illusion of nonconforming use where it has only the nonconforming
structure as a way of getting a special permit without the requisite site plan review. Yet the
analysis of the amended Somerville Zoning Ordinance yields 56 conforming retail spaces within
the mall.
The second part of the Chuckran test is "[w]hether there is a difference in the quality or
character, as well as the degree, of use." Ibid. Putting to the side the fact that we're not dealing
with prior nonconforming uses (with the one noted exception), the difference in quality,
character, and degree of use between the old, conforming mall retail spaces, and the proposed
nonconforming Home Depot is staggering. The increase in truck traffic and other vehicular
traffic at the site go to this point. The prodigious increase in scale and volume of operations go
to this point. Also pertinent here is the change in character where use shifts away from a human
scale shopping district with amenities such as open space, seating areas, natural light, and a food
court, where the retail uses fell into a category distinguished by the sale of goods "that are
typically of a size a customer can carry by hand." S.Z.O. sec. 7.11:9.5.
The mix of uses Home Depot would institute has already been analyzed above, but it is worth
pointing out that much of the merchandise offered for sale here must be transported not by
human hand, but by forklift and truck. The significance of this change in the nature of
merchandise, as well as the volumes and manner in which such merchandise is stocked, are
highlighted in the text of the following email, which reached me later in the evening of the
December 6 public hearing on the ASLP Special Permit application:
----- Original Message ----
From: Zbell, Michelle
Sent: Monday, December 04, 2000 11:06 AM
To: HOUSE AIDES; HOUSE REPS; HOUSE STAFF; Senate
Subject: "Hard Hat" Legislation
December 4, 2000
Dear Colleague:
In 2000 there were a number of reported deaths that took place in "working warehouse" store like Home Depot and Wal-Mart. A 3 year girl in Idaho was killed by failing merchandise in a Home Depot and a 41 year old man was killed by falling lumber in Connecticut also at a Home Depot. These injuries occur more frequently than you would imagine. In a California lawsuit, evidence was collected that proved that Home Depot averaged 185 injury claims a week or more than 9,600 per year. These working warehouses operate heavy machinery in customer shopping areas during regular business hours and place items well above the reach of their customers. As a result falling merchandise is a regular occurrence in these types of stores.
In Massachusetts, no records are kept of these injuries to consumers and there are no requirements that the stores protect the public from these injuries. The regulation of retail warehouse safety is virtually non-existent. When asked by the media how many people had been seriously injured or killed at Home Depot stores the company responded that information was not for public consumption.
To that end I am filing a bill, An Act Requiring Safety Conditions in Commercial Establishment. This would amend Massachusetts' Labor and Workforce Development statute to require retail stores that operate heavy equipment or stack merchandise more than 10 feet above the ground to post their premises as a "hard hat area" and require employees and customers to wear such common sense protections. It also requires business for the first time to report customer injuries to the state.
Below is a copy of the legislation. If you are interested in being a cosponsor, please contact Michelle Zbell in my office at 722-2637, ext 1.
Sincerely,
Christopher J. Hodgkins
State Representative, 4th Berkshire District
AN ACT REQUIRING SAFETY CONDITIONS IN COMMERCIAL ESTABLISHMENTS
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
SECTION 1. Chapter 149 of the General Laws is hereby amended by adding after section one hundred and thirteen the following new section:-
Section 113 A. Any person owning, managing, or operating a wholesale or retail establishment in which heavy machinery, including but not limited to forklifts, is used during normal business hours in areas where the public is shopping, or which places merchandise on shelving higher than ten feet above the sales floor, shall post the premises with signs located at the entryway to such establishment that the facility is a hard hat area, and require employees of said establishment and customers to wear hard hats while working or shopping on the premises. Whosever violates this section shall be punished by a fine of not less than $5,000 for each incident in which a violation occurs. Provider further, that all establishments subject to this section which employ more than 50 employees shall be required to report to the department of labor and workforce development on an annual basis a listing of all serious injuries or deaths to customers of said establishment, and any additional information as shall be required by the department. The department shall submit an annual statistical report to the house and senate committees on ways and means regarding such customer injuries, together with any recommendations for reducing the incidence of such injuries or deaths.
In light of this information about the character of Home Depot's "retail" use, ASLP's proposal
is worlds away from the relatively small and civilized mall. The character of the Home Depot
is more like the a less "healthful" version of the Ford assembly plant or First National
warehouse, where the beneficent skylight has been replaced by many vertical feet of hazard from
above. The information given in support of Rep. Hodgkins' proposed legislation suggests that
municipalities should consider instituting "Warehouse Retail" as a separate zoning use category;
perhaps something that Somerville should consider for the future.
To return to the prongs of the Chuckran test again, hypothetically, as if it were applicable, we
look at part 3, whether the proposed use is "different in kind in its effect on the neighborhood."
Ibid. The principal external effect in the proposed change of use on the mall site is, of course,
traffic, which I will not belabor. I will mention, however, that the effect on the neighborhood
of the traffic from the Assembly Square Mall was probably less than that of the present Home
Depot on an adjacent site, and that the proposed Home Depot is 40% larger again than the
existing Home Depot. That Home Depot will, under the ASLP Memorandum of Agreement with
the Mayor, remain open as a Home Depot Expo. Also, a New Home Depot has been
constructed, but is not yet open, across the river in Everett. As the Ten Hills neighbors who
attended the December 6 hearing asked me, "What roads do they think people are going to use
to get to the store in Everett?" The cumulative effects of traffic from three Home Depots on
Somerville roadways, including Somerville portions of I-93 and State Road 28, and on
Somerville neighborhoods has not yet been addressed by the ASLP.
The citation of other non-conforming use cases by Mr. Fishman is neither here nor there. Every
change of non-conforming use case is entirely fact-specific, and depends on a detailed analysis
of the history of the lands, structures, and uses in question; of any variances or special permits
granted, and of the history of actual changes in use. The Cape Resort Hotels case, supra,
determined that a full-service hotel, with restaurant and full liquor license, "whose primary
purpose was to provide lodging, meals, and entertainment to guests," (385 Mass. 205, at 212)
despite "very few structural changes" (Id. at 209) was improperly changed to "an entertainment
complex with some guest rooms," (Id. at 213) despite a variance to create a parking lot for the
facility granted in the intervening years. The long, thoughtful decision is well worth reading for
its careful analysis of the facts, and equally careful granting of a remedy fair to both parties to
the dispute.
The Chuckran decision found that concrete mixing, once been part of the activities conducted
on a building contractor's site "had been transformed from a 'merely incidental' aspect of the
construction business to a major enterprise..."( 351 Mass. 20, at 23), and ruled it an
impermissible extension of the building contractor's nonconforming use. The Powers decision
itself, with its 17 pages of close factual analysis, held that continuation of the use of a candle
factory and store was simply an enhanced continuation of an existing use; conversion of one
building on a second parcel from "dead" storage to active merchandise processing was an
impermissible change of nonconforming use, and the use of a second building on that parcel was
permissible as to the use of the first floor for storage, but not as to the conversion of its second
floor to administrative offices.
I find the Powers decision to be useful mainly for its fine summary of the Massachusetts case
law on change of nonconforming uses, which I have taken the liberty of excerpting and attaching
to this letter as Appendix "D." Sifting through these decisions is probably the best means of
getting a sense of how the state's appellate courts weigh the factors that are applied in the three
part Chuckran test. Although the change of nonconforming use analysis applies only to the
change from the Jordan Marsh/ Building 19 to Garden Center portion of the project, it may be
useful. It will also be useful to consider what nonconforming rights as to the use of that
nonconforming building remain once the building is demolished, which is what ASLP plans to
do with it.
As per the analysis above, the conclusion seems evident that the alteration of the nonconforming
mall structure requires a special permit, and that a building permit to selectively demolish and
remodel the structure may not be issued as of right. ( See also Watros v. Greater Lynn mental
Health and Retardation Association, 421 Mass.106 (1995). The change of nonconforming use
of the Jordan Marsh/Building 19 to a Garden Center might be eligible for consideration for a
Special Permit for Change of a Nonconforming Use, but there is doubt whether the right to the
nonconforming use would survive demolition of the nonconforming structure, as ASLP proposes.
The change of the conforming retail, restaurant, and office uses within the mall structure to
other, larger scale retail uses, may be permitted by Special Permit with Site Plan Review, as set
out in the table of uses. The partial use of a proposed Home Depot for wholesale business, at
the scale proposed, is not permitted under the table of uses.
The appeal of the denial of the as of right building permit should be dismissed, and the Special
Permit for a Change of Nonconforming Use denied.
Respectfully submitted,
Denise Provost
Alderman-at-Large