MISC 06-328685

April 12, 2010

Sands, J.


Plaintiffs filed their unverified Complaint on August 29, 2006, challenging the validity of an amendment to the Zoning Ordinance of the City of Cambridge (the “Ordinance”) pursuant to G. L. c. 240, § 14A. Defendant City of Cambridge (“Defendant” or the “City”) filed its Answer on September 28, 2006. A case management conference was held on November 17, 2006. Plaintiffs filed their Motion for Summary Judgment on October 30, 2008, together with supporting memorandum, Statement of Undisputed Material facts, and Affidavits of Gordon M. Jones, III and James M. Lyman. On January 29, 2009, Defendant filed its Opposition, together with supporting memorandum, Statement of Additional Undisputed Material Facts, and Affidavit of Vali Buland. Plaintiffs filed their Reply on February 27, 2009, together with Second Affidavit of Gordon M. Jones, III. Defendant filed its Reply on April 14, 2009. A hearing was held on the motion on April 22, 2009, at which time the matter was taken under advisement.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

This court finds that the following facts are not in dispute:

1. Plaintiffs own property located at 445 Concord Avenue, Cambridge, Massachusetts (“Locus”). The Lyman family has owned Locus since the 1930s. Locus contains 98,078 square feet and was used formerly as an electronics manufacturing business from the 1930s through 1987; it is currently in use as a self-storage business. Locus was zoned Industry A-1 until the 2001 Zoning Amendment (the “Amendment”). [Note 1] Locus is bounded on one side by Fern Street, and directly across that portion of Fern Street is an area zoned Residence B.

2. In 1993, the Cambridge Planning Board and the CDD published a Growth Policy Document titled “Toward A Sustainable Future,” as a result of a request from the City to prepare a document articulating the City’s growth and planning policies. The document stated, in part, that “[e]very effort should be made to encourage an expansion of the city’s housing inventory,” and that “[t]he greatest and perhaps only opportunity for construction of new housing is to be found in those areas which have been traditionally used and developed for non-residential, principally industrial, uses.”

3. In 2001, the City undertook a substantial rezoning, which resulted in the Amendment. The Amendment included the creation of a new zoning classification, Residence C-1A. [Note 2] As part of the Amendment, Locus was rezoned from Industry A-1 to Residence C-1A. [Note 3]

4. In 2004, Plaintiffs hired a real estate broker to market Locus. In 2005, Plaintiffs executed a purchase and sale agreement with Abbott Real Estate Development LLC (“Abbott”) contingent upon Abbott’s ability to construct a 127-unit condominium complex on Locus (the “Project”). [Note 4]

5. On March 7, 2006, Abbott held a meeting with neighbors of Locus to explain the Project. A group of neighbors to Locus, including Eileen Woodford and Gina LaRoche (the “Woodford Group”), opposed the Project. Following the March 7 meeting, the Woodford Group met with Plaintiffs to try to reach a compromise but were unable to do so.

6. On March 13, 2006, the Woodford Group filed a petition (the “Petition”) with Defendant to rezone Locus (which was zoned Residence C-1A) and the surrounding area (which was zoned Residence B and Industry A-1) to Residence C. This rezoning would result in a reduction of the maximum number of units in the Project from 128 to 70. The Petition’s stated concerns included the following: increased threat to public safety, increased traffic congestion, increased air pollution, increased noise pollution, increased need for on-street parking, and decreased availability of natural light and air flow.

7. Defendant referred the Petition to the Cambridge Planning Board (the “Planning Board”) and to the Ordinance Committee of the City Council (the “Ordinance Committee”). The Planning Board held a public hearing on the Petition on May 16, 2006. [Note 5] At the hearing Plaintiffs indicated that rezoning Locus to Residence C would make the Project uneconomic. After the hearing, the Planning Board requested that the CDD prepare an analysis of the Petition. At a hearing on June 6, 2006, the Planning Board voted unanimously to recommend rejecting the Petition. In a letter from the Planning Board to Defendant dated June 26, 2006, the Planning Board stated:

. . . The Board finds that the proposed zoning change does not meet the objectives of the current ordinance provisions (to encourage housing over time in the area while allowing existing and new businesses to operate unencumbered), nor would it be an effective way to address the issues raised by the petitioners (adequate transition between the existing neighborhood and new development, improved pedestrian safety, retention of existing businesses). It is the Board’s view that the best outcome, for the neighborhood and for property owners, can be found through the careful review of proposed developments via the Article 19.000 Project Review Special Permit process already in place. . . . . The Petition area and adjacent commercial streets were reviewed during consideration of the citywide rezoning petition that was adopted by the City Council in 2001. . . . The objective of that change was to encourage the conversion of a light industrial activity immediately abutting the neighborhood to housing at a critical point of transition from the existing neighborhood to the more intense commercial activity of Alewife and Fresh Pond.

. . . .

The [Petition] is an attempt to address a number of concerns of residents related to potential impacts resulting from potential development in the existing Residence C-1A zone in particular (the self storage site): the safety of pedestrians and bicyclers as the move through the neighborhood to nearby parks and other amenities; additional automobile traffic; air and noise pollution and emissions from dense new housing; parking competition particularly on existing neighborhood streets; loss of light and air from excessively tall buildings; and general concern for quality of life.

. . . The Planning Board views new residential development in the area, through the conversion of existing non-residential activity to housing, as a good idea and one way to enhance the qualities that already exist in the neighborhood. Such housing conversion is also an objective embodied in the existing zoning provisions (most especially those applicable at the self-storage facility site.) This type of conversion, however, from non-residential uses to housing, often requires some amount of additional density or other incentives. The current C1-A district on the self storage site provides that incentive. The Residence C district proposed in the Petition would probably encourage the existing business to stay because the amount of development now on the site is greater than the Residence C district would allow . . . .

. . . .

The Board is concerned that the proposed zoning change would essentially freeze existing buildings and current uses in place, and that the change to Residence C would be counter to the objectives of the petitioners themselves. Certainly, at [Locus], a future as housing would provide the best physical transition to the existing neighborhood. The [Petition] might discourage that outcome. Moreover, some of the concerns of petitioners, like improvements to traffic and pedestrian safety, might be most easily accomplished as part of mitigation required from a new housing development.

. . . .

. . . The issues of concern expressed by neighbors during the hearing process, as well as the objectives outlined in the Petition documents, are appropriate ones, reflect community sentiment, and should be acknowledged and respected by all parties involved in the new development in the area and should guide its final physical manifestation. [Note 6]

8. After meeting with some business owners who were impacted by the Petition’s proposal to rezone Industry A-1 to Residence C, the Woodford Group proposed a compromise amendment (the “Compromise”) to the Petition that proposed to rezone Industry A-1 to base Residence C-1A with a Mixed Use Residential Overlay District, [Note 7] and rezone Locus from Residence C-1A to Residence C-1. The Compromise would increase the maximum number of units in the Project from 70 to 85. Plaintiffs were not a part of any discussions leading up to the Compromise, but Plaintiffs advised city officials that the Project would be economically unfeasible under the Compromise.

9. On July 11, 2006, the Ordinance Committee of the City Council held a public hearing on the Petition at which the Woodford Group proposed the Compromise. At that same meeting, Plaintiffs proposed their own alternative that would rezone a portion of Locus as Residence C-1A and a portion as Residence C-1, resulting in the allowed construction of a maximum of 104 units for the Project. At the conclusion of their July 11, 2006, meeting, the Ordinance Committee forwarded the Compromise to the full City Council with a favorable recommendation. [Note 8], [Note 9]

10. At a public hearing held on August 7, 2006, the City Council voted to adopt the Compromise. [Note 10] Eight members of the City Council voted in favor of the Compromise; zero members voted against it; and one member was absent. The transcript of this public hearing sets forth the City Council’s rationale for enacting the Compromise and reflects the City Council’s position that the Compromise considered the planning goals of the Amendment and refined those goals in context of Locus’ surrounding neighborhood. The City Council felt that the Compromise achieved a balance between business and neighborhood feel and was cognizant that the neighborhood served as a critical transition point from industrial to residential use. At the same time, the transcript indicates that the City Council acknowledged that the Compromise was not unanimous in its neighborhood support, but that it would benefit the majority of the neighborhood.


The single issue before this court is the validity of the Compromise. Plaintiffs argue that the Compromise bore no substantial relationship to a legitimate zoning purpose and was arbitrary and unreasonable. Defendant contends that the Compromise was enacted for a legitimate public purpose and was not unreasonable. I shall examine each argument in turn.

The classic constitutional test for the validity of a zoning ordinance is “whether a zoning by-law ‘is clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare.’” Zuckerman v. Town of Hadley, 442 Mass. 511 , 516 (2004) (quoting Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926)). [Note 11] “More specifically, due process requires that a zoning bylaw bear a rational relation to a legitimate zoning purpose.” Id. Plaintiffs face a substantial burden as “[e]very presumption is made in favor of the by-law, and, if its reasonableness is fairly debatable, it will be sustained.” Sturges v. Chilmark, 380 Mass. 246 , 256 (1980).

I. Whether the Compromise is Rationally Related to a Legitimate Zoning Purpose.

This court’s first step in determining the validity of the Compromise is to ask whether the Compromise was related to a legitimate zoning purpose.

Some of the objectives for which zoning may be established, as provided in St. 1975, c. 808, Section 2A, include lessening congestion in the streets, conservation of health, securing safety from fire and other dangers, provision of adequate light and air, prevention of overcrowding of land, and avoidance of undue concentration of population. A regulation that materially promotes one or more of these objectives substantially relates to public health, safety, and welfare.

MacNeil v. Avon, 386 Mass. 339 , 341 (1982). The primary rationale behind the Compromise, as stated in the City Council transcript of its August 7, 2006, public hearing, was related to concerns about the character of the neighborhood abutting Locus, as the Project was far more dense than the surrounding residential neighborhood. [Note 12] Moreover, in enacting the Compromise, the City Council was aware that Locus and the surrounding neighborhood were at a transition point from industrial to residential use. These concerns are legitimate zoning interests. See e.g., Trustees of Tufts College v. Medford, 415 Mass. 753 , 757-58 (1993) (referring, in context of G. L. c. 40A, § 3, to the preservation of the character of an adjacent neighborhood as a legitimate municipal purpose sought to be achieved by local zoning); Martin v. Rockland, 1 Mass. App. Ct. 167 , 169 (1973) (finding that where a parcel is located at a borderline between a business, an industrial, and a residential zoning district, “the town could properly determine that the classification was reasonably related to public convenience and welfare and constituted an appropriate use of the land.”).

In light of the above, I find that the Compromise was rationally related to a legitimate zoning purpose.

II. Whether the Compromise is Arbitrary and Unreasonable.

Despite the presumed legitimacy of the Compromise, “as a practical matter [courts] have never dealt with a zoning regulation in a vacuum.” Sturges, 380 Mass. at 257. Rather, “[t]he circumstances existing in a municipality have always been considered in the process of passing on the constitutionality of a zoning provision.” Id. As such, this court is tasked with reviewing the enactment of the Compromise in light of the facts in the summary judgment record to determine whether the Compromise is arbitrary and unreasonable.

Planning Goals.

Plaintiffs assert that the Compromise was arbitrary and unreasonable in that it ran counter to the longstanding planning goals of the City to encourage housing in industrial areas, and cite the Amendment which rezoned Locus from Industry A-1 to Residence C-1A. This goal, Plaintiffs contend, was offset by the whims of neighbors through the Petition and the Compromise. [Note 13] Plaintiffs also claim that the Compromise was unreasonable in light of the Planning Board’s opposition to the Petition, given that there was no change in circumstances since the Amendment in 2001 to justify either the Petition or the Compromise. Finally, Plaintiffs claim that Locus was the subject of discrimination because it was treated differently from the surrounding industrial area. Defendant argues that the Compromise was consistent with the City’s two long-standing planning goals of increasing housing in formerly industrial districts while also protecting the surrounding neighborhood from over-development, and point to the changes to the area surrounding Locus since 2001, including increased traffic, parking, and density.

The summary judgment record indicates that Defendant undertook extensive planning for the Amendment prior to 2001, including a major growth policy study (“Toward a Sustainable Future”) in 1993. Moreover, the Planning Board’s thorough recommendation concerning the Petition was a part of the City Council record. [Note 14] This analysis brought to the City Council’s attention all of the relevant facts despite the Planning Board’s differing in its conclusion. Additionally, the City Council, the Planning Board, and the Ordinance Committee of the City Council held numerous public hearings with respect to the Petition and Compromise, at which members of the public spoke out in favor of and in opposition to the Petition and Compromise. In light of the above, the record indicates that the City Council enacted the Compromise after adequate deliberation of the relevant issues.

It is a reasonable inference that the Compromise was consistent with the goals of adding housing and protecting adjacent neighborhoods against over-development, as Defendant claims. Barber, an agent of the City, states that even though he would have preferred the Amendment as compared to the Compromise, it was a reasonable choice for the City Council to come to a different conclusion than the Planning Board. It is not dispositive to whether the Compromise is reasonable that the Planning Board may have had a different approach. See W.R. Grace, 56 Mass. App. Ct. at 568 (“The decision regarding sensible zoning is for the planning board to recommend and for the city council to make. Considered views on the subject, even if in conflict, are plainly helpful to both.”). Additionally, despite Plaintiffs’ claims that the Compromise did nothing to address the Planning Board’s concerns about the Petition, the Compromise did include a Mixed Use Residential Overlay District that would allow for existing businesses to expand without having to apply for variances, and the Compromise increased the maximum number of units of the Project from 70 to 85, as opposed to the Petition.

With respect to whether land use patterns changed between the Amendment and the Compromise, Defendant claims that neighbors testified during various public meetings on the Compromise as to increases in traffic, parking problems, and neighborhood density. However, upon this court’s review of the meeting minutes and transcripts, such neighborhood testimony is prospective in nature and does not testify as to specific, observed increases in traffic, parking, or density between 2001 and 2006. Rather, the hearing transcript reveals mostly speculation by neighbors. Moreover, Plaintiffs cite to a different portion of the deposition testimony of Barber, in which he states that nothing had occurred in Locus’ neighborhood since 2001 that would require a rezoning. Given the above, this court cannot conclude that the purported changes in land use patterns in the neighborhood surrounding Locus between 2001 and 2006 are undisputed.

However, this absence of facts relative to purported changes in land use patterns in the summary judgment record does not determine whether the Compromise is unreasonable or arbitrary. [Note 15] In short, this court must uphold the validity of the Compromise if it the record shows “some substantial relation between the zoning code amendment and the general objectives of the enabling act.” National Amusements, Inc. v. Boston, 29 Mass. App. Ct. 305 , 309 (1990). Stated differently, “[d]ue process challenges to government action affecting economic activity call for an inquiry ‘whether the challenged measure bears a rational relation to any permissible public object which the legislative body may plausibly be said to have been pursuing.’” W.R. Grace, 56 Mass. App. Ct. at 566 (quoting Sturges, 380 Mass. at 256). As discussed, supra, the Compromise is reasonably related to the City’s planning goals.

While Plaintiffs claim that the Compromise unfairly discriminates against Locus, they admit that the Compromise is not an instance of reverse spot zoning, as Locus was zoned differently from the surrounding neighborhood prior to the Compromise. This is not a case, as Plaintiffs suggest, of a parcel being “set off from similar adjacent business lots at the instigation of citizens who objected to a particular proposed business use.” Schertzer v. Somerville, 345 Mass. 747 , 752 (1963). Locus is a unique parcel, as it is located at a transition between two zoning districts and is not adjacent to any similar lots. Nor is this an instance of “singling out of a particular parcel for different treatment from that of the surrounding area, producing, without rational planning objectives, zoning classifications that fail to treat like properties in a uniform manner.” National Amusements, 29 Mass. App. Ct. at 312. [Note 16] As previously discussed, the Compromise reasonably integrates legitimate zoning interests. Moreover, to the extent that the Compromise results in a greater economic impact on Plaintiffs, that alone is insufficient to invalidate the zoning amendment as zoning is “not designed for the preservation of the economic value of property, . . .” Tranfaglia v. Building Comm’r of Winchester, 306 Mass. 495 , 503-04 (1940).

Economic Detriment.

Finally, Plaintiffs argue that the Compromise was economically detrimental to them, citing the loss of forty-two units in the Project. As a rationale for the inclusion of such assertion, Plaintiffs cite to Amberwood Dev. Corp. v. Bd. of Appeals of Boxford, 65 Mass. App. Ct. 205 , 210 (2005), in which the Appeals Court required a property owner to show “significant injury” (in addition to showing that an application of the by-law has no real or substantial relationship to public health, safety, or welfare) to successfully challenge a local by-law under G. L. c. 240, § 14A. However, the relevant question in Amberwood involved whether the by-law provision was valid as applied to the plaintiff. Id. at 205. Given that the case at bar involves Plaintiffs’ facial challenge to the Compromise, it is questionable whether this court need make a finding concerning whether the Compromise significantly harms Plaintiffs’ interest in Locus. Moreover, even if the Amberwood test applied to the case at bar, as this court has found a rational basis between the Compromise and a legitimate zoning purpose, there is no need to address the “second branch” of the Amberwood test.


As a result of the foregoing, I find that the Compromise was not arbitrary and unreasonable. Thus, I DENY Plaintiffs’ Motion for Summary Judgment.

Judgment to enter accordingly.

Alexander H. Sands, III


Dated: April 12, 2010


[Note 1] Lester Barber (“Barber”), the Director of Land Use and Zoning within the Cambridge Community Development Department (“CDD”), gave affidavit testimony that

this Industry A-1 District was created in the late 1970s to be applied to a number of areas that had a significant amount of industrial use but which for a variety of reasons were thought to be good locations for housing in the future. So it was created to allow that housing while allowing the continuation of the industrial and retail uses.

[Note 2] Barber’s deposition stated,

Over time [the Industry A-1 District] actually proved successful and we got a lot of housing in those districts. So at some point, it seemed appropriate where the tipping point had occurred where housing was now the dominant use in those districts that we probably should no longer allow industrial use, so the Residence C-1A District was created as a purely housing analog to the Industry A-1 Zoning District.

Barber stated that the Residence C-1A District was

applied to areas that were previously zoned Industry A-1, and they, for the most part, were located either sort of in a linear fashion within a neighborhood or at the edge of a neighborhood . . . the Industry A-1 District wasn’t itself a transition district at the time it was created, so the C-1A option sort of implemented and continued that.

[Note 3] The rest of the Industry A-1 District was left unchanged as a result of the Amendment. Barber testified that

[Locus] is uniquely situated in relationship to the neighborhood. So I think the notion is that that was a more critical transition point that would be appropriately encouraged to be housing in the future . . . the distinguishing feature of [Locus] . . . was its unique physical relationship to the neighborhood that it really was the next most abutting to the neighborhood. And given its physical form, was most easily converted to housing.

[Note 4] Pursuant to the Amendment and consistent with an analysis prepared by the CDD, 128 units could be built on Locus, subject to a special permit from the Planning Board.

[Note 5] During this public hearing, various neighbors testified as to issues of traffic, parking, and density.

The summary judgment record includes the minutes of numerous public hearings held by the Planning Board, Ordinance Committee of the City Council, and the City Council, relative to both the Petition and the Compromise (as hereinafter defined). The record shows that at these various hearings, members of the public spoke in favor of and in opposition against both the Petition and the Compromise.

[Note 6] In addition to the detailed narrative analysis that the Planning Board provided to the City Council, the Planning Board report included various attachments that were meant to assist the City Council in its deliberations. These attachments included the following: a description of neighborhood structures including their respective uses and existing FAR; a table comparing the potential dwelling units available in IA-1, C-1A, C-1, and C zoning districts; information on Locus (consisting of a comparison of zoning regulations and definitions); a table showing the maximum development permitted at Locus under a range of zoning districts; a table showing the density of adjacent neighborhood residential blocks; a table comparing completed developments located in the City; and a section of the Ordinance discussing the purpose of the Mixed Use Residential Overlay District.

[Note 7] Pursuant to Section 20.21 of the Amendment, one purpose of the Mixed Use Residential Overlay District is to modify residential districts such that existing non-residential activities may continue.

[Note 8] The parties disagree as to Barber’s involvement with the Compromise. Defendant states that the Compromise was drafted by CDD staff including Barber, whereas Plaintiffs deny that the record supports that Barber drafted the Compromise. The minutes of the August 7, 2006, City Council meeting include a statement by the City Council in which the CDD and Barber, in particular, was thanked for attending meetings and assisting in “put[ting] the amendment together . . . .” However, this court agrees with both parties that the extent of Barber’s involvement is not material to whether the Compromise is valid.

[Note 9] In his deposition, Barber stated that there had been no changes in Locus’ neighborhood since 2001 that would have justified a rezoning at the time of the Compromise. However, in context of the Compromise, Barber also stated that it was reasonable for the City Council to conclude differently than the Planning Board.

[Note 10] In an effort to clarify the process by which Defendant enacted the Compromise, this court summarizes the involvement of the City Council, the Ordinance Committee of the City Council, and the Planning Board with respect to the Petition and the Compromise.

The summary judgment record before this court indicates that the Petition was filed with the City Council on March 13, 2006. Thereafter, the City Council referred the Petition to its Ordinance Committee and the Planning Board. While the record does not indicate any action taken by the Ordinance Committee with respect to the Petition, the Planning Board held a public meeting on the matter and eventually recommended against the Petition in its report to the City Council dated June 26, 2006. The City Council did not vote on the Petition.

Rather, the record indicates that shortly after the Planning Board sent its letter to the City Council, the Ordinance Committee took up the Petition issue and discussed the Compromise at a meeting on July 11, 2006. At such time, the Ordinance Committee forwarded the Compromise to the full City Council with a favorable recommendation. The City Council then held a public hearing on the Compromise on August 7, 2006, at the conclusion of which, it voted to adopt the Compromise. The Planning Board did not comment on the Compromise.

In his deposition, Barber testified that it was not uncommon for the Planning Board to make a recommendation to the City Council, which then modified such recommendation without further communication with the Planning Board.

[Note 11] “More recent Supreme Court cases have articulated the test somewhat differently, using the more familiar language of the rational relation standard.” Zuckerman, 442 Mass. at 516 n.12 (citing Schad v. Mount Ephraim, 452 U.S. 61, 68 (1981)).

With respect to challenges to a zoning ordinance provision, this court (Piper, J.) has stated that

Zoning power derives from communities’ police power to protect the health, safety and general welfare. Zoning is not, however, intended to protect the economic value of property. . . . It follows that there is no absolute right to have one’s land zoned for one discrete use as opposed to another, and no right to zoning ensuring the most profitable use.

Roberts v. Natick Planning Bd., 12 LCR 365 , 371-72 (2004) (Misc. Case Nos. 283125, 273910) (Piper, J.) (citation omitted).

[Note 12] In their summary judgment brief, Plaintiffs argue that a desire to alleviate traffic concerns is not a persuasive justification for the Compromise. In context of the Compromise’s validity, however, this argument appears unnecessary as Defendant does not claim that the Compromise was enacted in response to traffic concerns. As such, this court need not review whether concern about traffic (which can be a legitimate zoning purpose) reasonably justifies the Compromise.

[Note 13] To the extent that Plaintiffs object to the motives of the Woodford Group, “[t]he validity of the zoning amendments does not turn on the motives of their supporters.” W.R. Grace & Co.-Conn. v. City Council of Cambridge, 56 Mass. App. Ct. 559 , 568 (2002).

[Note 14] In addition to the detailed narrative analysis that the Planning Board provided to the City Council, the Planning Board report included various attachments that were meant to assist the City Council in its deliberations. See supra note 6.

[Note 15] Cf. W.R. Grace, 56 Mass. App. Ct. at 560, in which the Appeals Court addressed the validity of an ordinance provision that effectively froze development rights for twenty-three months. The Appeals Court noted that the trial judge applied appropriate criteria (including the absence of evidence that the neighborhood had not changed) in concluding that the zoning amendment was valid, and further stated that “[t]he judge correctly recognized that no single factor was determinative, and that the factors he enumerated were not necessarily the only ones that might be applicable in a zoning analysis.” Id. at 570-71.

[Note 16] Further distinguishing the case at bar from National Amusements is that the Compromise amends the intensity of use allowed on Locus. Contrastingly, National Amusements involved a change in use from business to residential. 29 Mass. App. Ct. at 308.