MARK ROSENBERG, individually and as trustee of the R&R REALTY TRUST, LAZARUS PAVLIDIS, ANTHONY DIMEO, LLOYD ROSENTHAL, and JESSICA LUCCIO v. CITY OF BOSTON and CITY OF BOSTON ZONING COMMISSION

This case came before the Court on the parties' cross-motions for summary judgment. Plaintiffs' Mark Rosenberg, Individually and as Trustee of the R & R Realty Trust, Lazarus Pavlidis, Anthond DiMeo, Lloyd Rosenthal, and Jessica Luccio (collectively, "Plaintiffs"), filed a verified complaint on April 8, 2008, seeking to annul Amendment Number 346 ("Amendment") to the Boston Zoning Code ("Code") which redefined the term "family" in Article 2, Section 2-1 and Article 2A, such that only "five or more persons who are enrolled as full-time undergraduate students at a post-secondary educational institution" are excluded for the purpose of determining who can live in a dwelling unit. Plaintiffs filed an Amended Verified Complaint on May 13, 2008 adding two additional counts.

On April 28, 2008, Plaintiffs filed a motion for preliminary injunction and supporting documents seeking to enjoin the City of Boston and its Zoning Commission from enforcing the Amendment, and from enforcing the Amendment as it applied to Plaintiffs' current leases and leases commencing on or about September 1, 2008. The Court (Trombly, J.) Denied Plaintiffs' motion in an Order entered May 29, 2008.

Defendants filed a motion for summary judgment and supporting documents on September 23, 2009. Plaintiffs filed an opposition to Defendants' motion, a cross-motion for summary judgment, and supporting documents on November 23, 2009. The motions were argued and taken under advisement on January 26, 2010 and are the matters currently before the Court.

A Decision has been issued today allowing, in part, Defendants' motion for summary judgment and denying Plaintiffs' motion for summary judgment. Count IX of the Complaint, alleging a violation of the "open meeting law", was dismissed for lack of subject matter jurisdiction. In accordance with that Decision, it is

ORDERED and ADJUDGED that Amendment Number 346 to the Boston Zoning Code, which redefines the term "family" in Article 2, Section 2-1 and Article 2A-1 such that only five or more persons who are enrolled as full-time undergraduate student at a post-secondary educational institution" are excluded for the purposes of determining who can live in a dwelling unit, is constitutionally valid, does not violates Plaintiffs' federal or state constitutional or statutory rights, is not arbitrary or capricious, and was a valid exercise of the authority of the Boston Zoning Commission.

By the Court (Trombly, J.)