Home WARREN INNIS, as Trustee of A & W Realty Trust II, PAUL DiBIASE, as Trustee of SHERWOOD HILLS REALTY TRUST, and PAUL DiBIASE, as Trustee of OSBORNE HILLS REALTY TRUST, Plaintiffs v. THE CITY OF PEABODY, Defendants

MISC 19-000285

OCTOBER 5, 2020

ESSEX, ss.



Plaintiffs Warren Innis, as Trustee of A & W Realty Trust II, Paul DiBiase, as Trustee of Sherwood Hills Realty Trust, and Paul DiBiasi, as Trustee of Osborne Hills Realty Trust, (together, the Plaintiffs) filed their Complaint on June 12, 2019, naming the City of Peabody (City) as defendant and Maura Healy, as she is the Attorney General of the Commonwealth of Massachusetts (Attorney General), as interested party. The Plaintiffs' complaint has two counts. Plaintiffs seek in Counts I and II to determine the validity of § 6.11 of the City's Zoning Ordinance (Inclusionary Zoning Ordinance) pursuant to G.L. c. 240, § 14A, and a declaratory judgment of that determination pursuant to G.L. c. 231A, respectively. The City filed its Answer on July 5, 2019. The Plaintiffs dismissed their claims against the Attorney General on July 5, 2019. On August 23, 2019, the Plaintiffs filed their Motion for Summary Judgment. On October 16, 2019, the City filed Defendant's Opposition to Plaintiff's Motion for Summary Judgment. The Plaintiffs filed their Reply Memorandum in Support of Plaintiffs' Motion for Summary Judgment on October 25, 2010.

This Motion for Summary Judgment came on to be heard on October 30, 2019. In a Memorandum and Order of even date, the court (Foster, J.) has denied the Plaintiffs' Motion for Summary Judgment and instead rendered summary judgment in favor of Defendant.

In accordance with the court's Memorandum and Order issued today, it is

ORDERED, ADJUDGED and DECLARED that the City of Peabody's Zoning Ordinance shall be interpreted to include in the § 6.11.5 Incentives Provision the incentives of the former § 4.6.11 as applied to the R1, R-1A and R-1B Zoning Districts, as follows:

To facilitate the objectives of this Ordinance, modifications to the dimensional or parking requirements in the applicable zoning district shall be permitted for projects subject to the requirements of this Ordinance. The modifications shall be permitted as set forth below. The following incentives are available only for projects in which the affordable units are provided on-site or off site.

(1) In any R1, R1A, or R1B district: Applicable application fees or building permit fees imposed by the City in connection with all Affordable Units shall be waived.

(2) In any R1, R1A, or R1B district or R1B district: A minimum of 2.0 parking spaces per housing unit, inclusive of visitor parking, shall be provided.

(3) In addition, the affordable units shall be exempted in calculations pertaining to lot coverage, floor area ratio, and minimum lot area and size and any other area calculations.

It is further

ORDERED AND ADJUDGED that the Complaint is DISMISSED with prejudice.