COMMONWEALTH COMMONS, LLC vs. WILLIAM TIBBS, THOMAS ANNINGER, H. THEODORE COHEN, HUGH RUSSELL, PATRICIA SINGER, and CHARLES STUDEN, as they are members of THE PLANNING BOARD OF THE CITY OF CAMBRIDGE

Plaintiff filed its unverified Complaint in 08 MISC 382919 on August 22, 2008, appealing, pursuant to G. L. c. 40A, § 17, a decision of Defendant Planning Board of the City of Cambridge (the “Planning Board”) which denied Plaintiff’s application for two special permits. A case management conference was held on December 8, 2008, at which Plaintiff indicated that it would file another Complaint relative to the validity of a section of the Cambridge Zoning Ordinance (the “Ordinance”). On April 8, 2009, Plaintiff filed its unverified Complaint in 09 MISC 397886, challenging the validity of provisions of the Ordinance related to the dimensional requirements of usable open space. On April 21, 2009, this court allowed a motion to consolidate the two cases. Defendant City of Cambridge (the “City”) (together with the Planning Board, “Defendants”) filed an Answer to the second Complaint on April 29, 2009.

Plaintiff filed its Motion for Summary Judgment on September 9, 2009, together with supporting memorandum, Index and Affidavits of Daniel C. Orwig and Shana E. Maldonado, Esq. On October 9, 2009, Defendants filed their Opposition, together with supporting memorandum and Appendix. A hearing was held on the summary judgment motion on November 9, 2009, at which time the motion 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. Plaintiff owns property located at 280-290 River Street, Cambridge, Massachusetts (“Locus”). Locus is currently located partially in a Business A-3 zoning district (the “BA-3 District”) and partially in a Residence C-1 zoning district (the “RC-1 District”), as discussed, infra. [Note 1], [Note 2]

2. On September 19, 2002, residents of the River Street neighborhood (“Riverside”) (which includes Locus) filed a petition (the “Carlson Petition”) with the Cambridge City Council (the “City Council”) requesting certain amendments to the Ordinance affecting Riverside. The Carlson Petition, in part, requested a rezoning of the existing Business A zoning district along River Street to a new Business A-3 zoning district. A separate zoning petition was previously filed with the City Council by the Planning Board (the “Planning Board Petition”) on January 14, 2002. [Note 3] The Planning Board Petition and the Carlson Petition were similar in that they both, in part, proposed changing the Business A zoning district along River Street to a Business A-3 zoning district. Language in the Planning Board Petition noted that the Planning Board agreed with such proposal to “create a new district having regulatory characteristics similar to the RC-1 District but with allowance for the establishment of small retail stores on the ground floor of a residential building.”

3. On March 26, 2003, the Ordinance Committee of the City Council held a public hearing to consider both the Carlson Petition and the Planning Board Petition.

4. After a two-year review process, a study committee authorized by the City Council issued the Riverside Neighborhood Study (the “Riverside Study”) in April 2003, which set forth zoning, transportation, and urban design recommendations for Riverside. [Note 4] While one of the overarching goals of the Riverside Study (with respect to Character/Scale) was to “maintain and enhance Riverside’s residential character,” two specific committee objectives of the Riverside Study concerning River Street (and a portion of Western Avenue) were to: (1) allow small-scale retail use that would not increase traffic and parking problems; and (2) encourage small business development. The Riverside Study stated that the creation of a new zoning district was a “reasonable compromise to preserve existing housing while allowing limited retail activity in the form that currently exists along River Street and Western Avenue.”

5. In a section titled “Issues and Opportunities,” the Riverside Study notes that “Riverside residents . . . treasure parks and open space.” The Riverside Study also contained a cross-reference to a March 2000 report issued by the City which found that more emphasis on open space designed for passive uses was appropriate. Appendix B to the Riverside Study contained an overview of relevant planning and development policies, which included reference to the City’s growth policy as found in a report titled “Toward a Sustainable Future; Cambridge Growth Policy Document” (published in February 1993). Appendix B specifically referred to Policy 1 from Toward a Sustainable Future, which states: “Existing residential neighborhoods, or any portions of a neighborhood having an identifiable and consistent built character, should be maintained at their prevailing pattern of development and building density and scale.” [Note 5], [Note 6]

6. The Carlson Petition and the Planning Board Petition were re-filed in June 2003, and the Ordinance Committee held another hearing on July 30, 2003. On August 5, 2003, the Planning Board submitted its recommendation to the City Council, in which it favored the Planning Board Petition. [Note 7]

7. On October 27, 2003, the City Council voted unanimously to rezone a portion of Riverside from Business A to the BA-3 District, with such portion extending to a depth of 125 feet on either side of River Street. This depth did not extend to the rear lot line of most of the properties in the district, resulting in small portions of most of the properties lying in the surrounding Residence C and C-1 zoning districts. In the BA-3 District, Table 5-1 (Table of Dimensional Requirements - Residential Districts) requires a minimum ratio of usable open space to lot area of 30%, thereby implicating Section 5.22.1 of the Ordinance. [Note 8] Section 5.22.3, while applicable to the RC-1 District, was not imposed upon the BA-3 District. [Note 9]

8. In 2005, the Cambridge Inspectional Services Department (“ISD”) issued building permits for the construction of twenty housing units (the “Project”) at Locus: 280 River Street (4-unit building) and 286 River Street (5-unit building) were approved as-of-right as multifamily units and a total of eleven units were approved as-of-right as townhouse units at 282 (3 units), 284 (3 units), 288 (2 units) and 290 River Street (3 units). [Note 10] Thereafter, Plaintiff began construction on the Project.

9. On November 14, 2007, Plaintiff filed an application with the Planning Board for two special permits. Plaintiff applied for a townhouse development of more than twelve units with respect to 280 River Street and 286 River Street (the “Townhouse Special Permit”). The Townhouse Special Permit sought to convert the designation of some of the multifamily units in the Project to townhouse units pursuant to section 11.12.2 of the Ordinance. [Note 11] Plaintiff also applied for a ten-foot minimum dimension for the required minimum usable open space pursuant to section 11.15.5 of the Ordinance (the “Dimensional Special Permit”). [Note 12]

10. A public hearing on the two special permits was held on January 8, 2008. A large number of Cambridge residents appeared at the public hearing and voiced opposition to the special permits. The public hearing was closed the same day. At the public hearing on the special permits, Lester Barber, Director of Zoning for the City (“Barber”), stated:

In crafting the Business A-3 District, the drafter, who happened to be me, forgot about [the savings provision of Section 5.22.3] and actually, in transferring all of the C-1 requirements to the Business A-3, simply transferred the thirty percent requirement, which says that all of the at open space has to have a fifteen foot dimension. So, had we been aware and thinking about it, we would have had the provision that half of that not be required to have the fifteen foot dimension.

11. On January 17, 2008, the ISD issued a stop work order requiring Plaintiff to cease work on all construction at 280-290 River Street until the issuance of the Townhouse Special Permit. At that time, construction was complete on the four multifamily units comprising 280 River Street, the three townhouse units comprising 284 River Street and the three townhouse units comprising 290 River Street. The buildings at 288 and 286 River Street were under construction and 282 River Street had not yet been constructed.

12. The Planning Board continued discussions of both special permits on May 6, 2008, and July 15, 2008. At the July 15, 2008, meeting, the Planning Board voted to deny both special permits (the “Planning Board Decision”). With respect to the Dimensional Special Permit, the Planning Board Decision stated, in part, that (1) there is no “compelling peculiarity of the lot that justifies a reduction in the open space dimension” and (2) “a waiver of the ten foot dimension will not result in a superior design.” [Note 13] The Planning Board Decision denied the Townhouse Special Permit because the criteria for the Townhouse Special Permit could not be met without the Dimensional Special Permit.

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Plaintiff argues that the Planning Board Decision was arbitrary, capricious and unreasonable. Plaintiff also claims that the open space minimum dimensional requirement in the Ordinance applicable to the BA-3 District violates the uniformity requirement of G. L. c. 40A, § 4, is unconstitutional under both the United States Constitution and the Commonwealth of Massachusetts Constitution because it bears no reasonable relationship to a legitimate zoning purpose, and that the term “superior design” in Section 11.15.5 of the Ordinance is unconstitutionally vague. Defendants assert that the Planning Board Decision was not unreasonable. Moreover, Defendants argue that the Ordinance’s minimum open space requirement is constitutionally valid and in compliance with the uniformity requirement of G. L. c. 40A, § 4, and the term “superior design” as used in Section 11.15.5 of the Ordinance is not void for vagueness. I will look at each of these issues in turn.

I. Uniformity Requirement.

Plaintiff first argues that Section 5.22.1, as applied to Locus in the BA-3 District, violates the uniformity requirement found in G. L. c. 40A, § 4, which states, in part, that “[a]ny zoning ordinance or by-law which divides cities and towns into districts shall be uniform within the district for each class or kind of structures or uses permitted.” Plaintiff claims that the increased open space minimum dimension requirement of Section 5.22.1 has not been and can not be applied to any other lot other than Locus in the same zoning district because of the density of the neighborhood and because there are no other undeveloped lots in the BA-3 District. This, they reason, was caused by the omission of the Savings Provision in the BA-3 District. [Note 14], [Note 15] Defendants note that the BA-3 District applies to more properties than Locus and claim that Locus was not singled out, but, rather, that Plaintiff is the first property owner to seek zoning relief from Section 5.22.1.

Essentially, Plaintiff’s claim is that Locus is the subject of illegal reverse spot zoning. See W. R. Grace & Co.-Conn., 56 Mass. App. Ct. 559 , 569 (2002) (“Amendments that impose more restrictive treatment on given parcels than is imposed on other parcels in the same zoning district are often characterized as ‘reverse spot zoning.’”). In support of this claim, Plaintiff cites to Canteen Corp. v. City of Pittsfield, 4 Mass. App. Ct. 289 (1976). In Canteen the Appeals Court addressed the validity of a zoning ordinance amendment that reclassified land from business to residential. Id. at 291. In discounting the City of Pittsfield’s argument that the amendment was part of a comprehensive zoning revision, the Appeals Court found such scheme irrational in that a single portion of the new zoning district (consisting of twelve contiguous parcels along Yorkshire Avenue) extended to the rear lot lines, while substantially similar parcels were treated differently. Id. at 293. Canteen is not controlling in the case at bar, where the zoning scheme for the BA-3 District was thoroughly researched and vetted as a planning objective of the City, had a direct relationship to, and is centered upon, River Street, and had a sound basis for allowing light retail community business uses in a densely developed residential area. Moreover, unlike in Canteen, where the challenged zoning amendment changed a business district to residential, the BA-3 District along River Street was previously zoned Business A. Finally, the BA-3 District requirements (including the absence of the Savings Provision) apply to every lot in the BA-3 District, which extends across eleven city blocks.

Plaintiff also argues that, because of the omission of the Savings Provision in the BA-3 District, townhouses are the subject of stricter open space dimensional requirements than other multifamily dwellings. However, Defendants claim, and this court agrees, that it is not unconstitutional to treat townhouses differently from other multifamily buildings as townhouses are different, as demonstrated by their different definitions in the Ordinance. See supra note 11. Notwithstanding this, townhouses are treated the same as multifamily units in the BA-3 District. [Note 16]

As a result of the foregoing, I find that Section 5.22.1 of the Ordinance does not violate the uniformity provision of G. L. c. 40A, § 4, and, thus, does not constitute a denial of Plaintiff’s right to equal protection under the United States Constitution and the Commonwealth of Massachusetts Constitution.

II. Legitimate Zoning Purpose.

Plaintiff also argues that Section 5.22.1 is unconstitutional in that it bears no reasonable relationship to a legitimate zoning purpose. Specifically, Plaintiff asserts that the fact that the Savings Provision applies to the RC-1 District, yet remains inapplicable in the BA-3 District, is the essence of “arbitrary and unreasonable.” Defendants, on the other hand, claim that Section 5.22.1 enjoys a presumption of constitutional validity and should be upheld even if its reasonableness is fairly debatable. Defendants also argue that Section 5.22.1 was adopted for a legitimate zoning purpose and that there were a number of studies made relative to the dual goals of encouraging small, local business development while still preserving the largely residential nature of the neighborhood in anticipation of this zoning change.

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 17] “More specifically, due process requires that a zoning bylaw bear a rational relation to a legitimate zoning purpose.” Id. In arguing that Section 5.22.1’s open space requirements are unconstitutional, as applied to the BA-3 District, Plaintiff is encumbered with a heavy 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).

In this task, Plaintiff is unsuccessful. The summary judgment record discloses that Section 5.22.1 is rationally related to a legitimate goal in light of planning by the City under the Riverside Study, the Carlson Petition, and the Planning Board Petition. Preventing the overcrowding of land is a valid objective for which zoning may be enacted. MacNeil v. Avon, 386 Mass. 339 , 341 (1982). This sentiment is echoed in Section 1.30 of the Ordinance (Preamble, Purpose), which states, in part, that “[i]t shall be the purpose of this Ordinance to lessen congestion in the streets; . . . to provide adequate light and air; to prevent overcrowding of land; to avoid undue concentration of population; . . .” In a section titled “Issues and Opportunities,” the Riverside Study specifically addressed open space, noting that “Riverside residents . . . treasure parks and open space.” The Riverside Study also contained a cross-reference to a March 2000 report issued by the City which found that more emphasis on open space designed for passive uses was appropriate. Moreover, Appendix B to the Riverside Study contained an overview of relevant planning and development policies, which included reference to the City’s growth policy as found in a report titled “Toward a Sustainable Future; Cambridge Growth Policy Document” (published in February 1993). Specifically, Appendix B referred to Policy 1 from Toward a Sustainable Future, which states: “Existing residential neighborhoods, or any portions of a neighborhood having an identifiable and consistent built character, should be maintained at their prevailing pattern of development and building density and scale.” [Note 18] In light of the above, Defendants are reasonable in crafting a zoning provision that seeks to balance residential development with the need to encourage neighborhood business. As a result, I find that Section 5.22.1 of the Ordinance bears a rational relation to a legitimate zoning purpose.

III. “Superior Site Design” Provision.

Plaintiff argues that the term “superior design” in context of Section 11.15.5 of the Ordinance is undefined and unconstitutionally vague because it has no standards for interpretation. [Note 19] In addition, Plaintiff cites the deposition of Barber, in which he states that the term “superior design” is “a determination the Board would make in each context probably changing from application to application,” as an example of how vague the section is. Defendants claim that the meaning of the word “superior” is clear to most and, thus, not void for vagueness. While Defendants admit that the term allows for some judgment on the part of the Planning Board, they claim that such discretion does not rise to the degree that would invalidate Section 11.15.5.

This court would invalidate Section 11.15.5 as unconstitutionally vague if Plaintiff demonstrates “that [people] of common intelligence must necessarily guess at its meaning and differ as to its application.” Bd. of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339 , 363-64 (1973) (quoting Commonwealth v. Carpenter, 325 Mass. 519 , 521 (1950)). “Such vagueness would permit ‘untrammeled [administrative] discretion’ . . . and arbitrary and capricious decisions in violation of the due process clause of the Fourteenth Amendment to the Constitution of the United States and of art. 10 of the Massachusetts Declaration of Rights.” Id. (internal citation omitted).

The fact that the Planning Board may change its determination in each application of the term, however, does not mean that the term is vague or unreasonable, as “[a] law is not unconstitutionally vague simply because it presents some questions as to its application in particular instances.” See Fogelman, 15 Mass. App. Ct. at 589 (noting that “[c]ourts and administrative boards draw lines and resolve ambiguities every day.”). It is reasonable and expected that each determination would be based on new facts and new circumstances. Moreover, the term “superior” is well known and has an ascertainable definition. Black’s Law Dictionary defines “superior” as “higher; elevated; . . .” BLACK’S LAW DICTIONARY 1451 (7th ed. 1999). The American Heritage College Dictionary defines “superior” as “[o]f a higher nature or kind,” and “[o]f great value or excellence; extraordinary.” THE AMERICAN HERITAGE COLLEGE DICTIONARY 1385 (4th ed. 2002).

Moreover, as in any review of a local ordinance or bylaw, context is relevant in a vagueness inquiry as “[z]oning ordinance terms ‘should be interpreted in the context of the [ordinance] as a whole and, to the extent consistent with common sense and practicality, they should be given their ordinary meaning.’” City of Worcester v. Bonaventura, 56 Mass. App. Ct. 156 , 168 (2002) (quoting Hall v. Zoning Bd. of Appeals of Edgartown, 28 Mass. App. Ct. 249 , 254 (1990)). While both parties focus their arguments on the scope of the term “superior design,” it is relevant to consider that Section 11.15.5.1 actually states that a minimum open space special permit relies, in part, on whether the smaller dimension will result in a “superior site design.” (emphasis added.) [Note 20] Considering the full phrase of the ordinance provision assists in providing context to applicants. Similarly, that such phrase in included within the Ordinance’s open space regulations provides further guidance.

As a result of the foregoing, this court cannot conclude that Section 11.15.5’s use of the term “superior site design” results in people of common intelligence necessarily guessing at its meaning and differing as to its application, and I find that the term “superior site design” in Section 11.15.5 of the Ordinance is not unconstitutionally vague.

IV. Special Permits.

Plaintiff argues that in denying the Dimensional Special Permit and the Townhouse Special Permit, the Planning Board Decision was arbitrary, capricious and unreasonable because they were based on abutter opposition and not on the merits of the case. [Note 21] Defendants claim that Plaintiff’s special permit applications failed to demonstrate a peculiar site or superior design, and, as such, the Planning Board Decision was valid.

Plaintiff was entitled to a reduction in the dimensional requirement of open space to a length or width of ten feet if 1) peculiarities of the site warrant reduction, 2) a reduction would result in a superior site design, and 3) the total open space was not reduced. The Planning Board has agreed that the total open space was not reduced. Plaintiff has argued that the term “superior site design” is ambiguous and does not contain standards for review. As discussed, supra, this court has held that the term is not so vague as to be unconstitutional, and that the Planning Board is entitled to discretion in its interpretation of the term. Moreover, even though Plaintiff argues that there would be sufficient open space under the Dimensional Special Permit and landscaping would make the site attractive, such argument does not mean that the Planning Board’s decision that the Dimensional Special Permit design is not superior to other proposals is unreasonable. With respect to peculiarities of Locus, even though Plaintiff has argued that Locus is unique because it is a partially developed site, the evidence indicates that Locus is reasonably regular in size and shape with no topographical abnormalities, and the fact that Plaintiff wanted to add more buildings is irrelevant to the issue of a peculiar site.

Moreover, the dismissal by the Planning Board of the two special permits is entitled to discretion. Plaintiff, citing Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003), argues that the Planning Board Decision is only entitled to “some measure of deference.” The phrase “some measure of deference,” as used in Britton, refers to the first step of a two-step inquiry (the “Britton Test”) relevant to the appeal of special permits under G. L. c. 40A, § 17. 59 Mass. App. Ct. at 72-74 (in context of an appeal of the denial of a special permit seeking to increase a nonconformity pursuant to G. L. c. 40A, § 6). In the first inquiry, courts are called upon to “decide whether the board’s decision was based on ‘a legally untenable ground,’ or, stated in a less conclusory form, on a standard, criterion, or consideration not permitted by the applicable statutes or by-laws.” Id. at 73. Notably, and particularly relevant to the case at bar, the second step in the Britton Test is “different” and more deferential, in that courts must determine “whether the board has denied the application by applying those criteria and standards in an ‘unreasonable, whimsical, capricious or arbitrary’ manner.” Id. at 74.

This court is not convinced that the Planning Board looked to a standard or criterion not permitted under the Ordinance, and, as such, will defer to the Planning Board “[i]f reasonable minds could differ on the seriousness of a problem in relation to the issuance of a special permit, . . .” ACW Realty Mgmt., Inc. v. Planning Bd. of Westfield, 40 Mass. App. Ct. 242 , 246 (1996) (quoting Kinchla v. Bd. of Appeals of Falmouth, 11 Mass. App. Ct. 927 (1981)). In the case at bar, as discussed, supra, this court has found that the Planning Board has made a reasonable determination in connection with the denial of the two special permits in light of the facts in this case, and that such denial was consistent with the Ordinance.

As a result, I find that the Planning Board Decision was not arbitrary, capricious or unreasonable.

As a result of the foregoing, I DENY Plaintiff’s Motion for Summary Judgment.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: September 16, 2010