SARAH FARRINGTON, JOHN FARRINGTON, PETER LANG, and KATHERINE LAPIERRE vs. CITY OF CAMBRIDGE and LESLEY UNIVERSITY

Plaintiffs filed their unverified complaint on July 23, 2009, challenging the validity of a provision in the City of Cambridge Zoning Ordinance (the "Ordinance") pursuant to the provisions of G. L. c. 240, § 14A and G. L. c. 185, § 1 (j 1/2). On August 17, 2009, Defendants City of Cambridge (the "City") and Lesley University ("Lesley") (together, "Defendants") filed their Answers. A case management conference was held on September 29, 2009. Defendants filed their Motion for Summary Judgment on February 1, 2010, together with supporting memorandum, Joint Statement of Facts, and Appendix. On the same day, Plaintiffs filed their Cross-Motion for Summary Judgment, together with supporting memorandum and Appendix, including Affidavits of Sarah Farrington, John Farrington, Peter Lang, Katherine Lapierre, Gordon Moore and Andrea Wilder. On March 1, 2010, Plaintiffs filed their Opposition to Defendants' Motion, together with Motion to Strike Portions of Defendants' Joint Statement of Facts. Defendants filed their Opposition to Plaintiffs' Cross-Motion on March 3, 2010, together with the Affidavit of Stanley Trecker. On March 12, 2010, Plaintiffs filed their Reply, together with a second Affidavit of Sarah Farrington, and Defendants filed their Reply, together with Opposition to Plaintiffs' Motion to Strike. A hearing was held on all motions on May 24, 2010, and the matter was taken under advisement.

I find that the following material facts are not in dispute:

1. Lesley owns several properties on Massachusetts Avenue in Cambridge near the Porter Square MBTA Station. In 1994, Lesley purchased property located at 1815 Massachusetts Avenue and 27 Roseland Street ("University Hall Lots"), containing 130,380 square feet. The University Hall Lots contain a large building and a parking lot behind the structure. The University Hall Lots are in the Business C District. Also in 1994, Lesley purchased property located at 1826 and 1840 Massachusetts Avenue near Mount Vernon Street (the "Parking Lots"), containing 25,272 square feet. The Parking Lots are in the Business C District.

2. In 2006, Lesley purchased property located at 1797-1803 Massachusetts Avenue (the "Church Lots"), containing 28,070 square feet. The Church Lots contain a parcel containing the North Prospect Congregational Church (the "Church"), and a vacant parcel used as a playground for the Agassiz Pre-School located in the lower level of the church. The Church Lots are located within the Residence B District. [Note 1] The Church Lots abut the University Hall Lots and are located approximately 650 feet from Porter Station. The Church Lots have not been used for residential purposes in over 100 years.

3. Property on Massachusetts Avenue across from the Church Lots are in either the Business C District or the Residence C-2 District.

4. In 2006, the City established the Lesley Neighborhood Working Group (the "Working Group") to discuss Lesley's development in the Porter Square area, including the Church Lots. The Working Group was comprised of neighborhood residents, Lesley representatives, and City representatives appointed by the Cambridge City Manager. [Note 2] The Working Group had numerous meetings from December 2006 to June 2009. During this time Lesley also made presentations at public forums, Town Gown Presentations, the Porter Square Neighborhood Association, and the Agassiz Neighborhood Council. [Note 3]

5. In 1998, Lesley merged with the Art Institute of Boston ("AIB"). Lesley desires to move AIB, which is currently located in Kenmore Square in Boston, MA, to the Church Lots.

6. On October 30, 2008, Lesley filed a zoning petition ("Petition 1") for a zoning amendment with the City. Petition 1 sought to amend the Ordinance by extending the Business C District 160 feet to include the abutting Church Lots and create the Lesley Porter Overlay District (the "LP Overlay District") consisting of the University Hall Lots, the Parking Lots, and the Church Lots. The City Council Ordinance Committee (the "Ordinance Committee") and the Cambridge Planning Board (the "Planning Board") held public hearings on Petition 1, but the time period applicable to Petition 1 expired.

7. On February 26, 2009, Lesley filed a second zoning petition ("Petition 2"), which included re-zoning of the Church Lots, creating the LP Overlay District, and transferring Gross Floor Area from the other Porter Square properties owned by Lesley to the Church Lots.

8. On April 7, 2009, the Planning Board held a public hearing on Petition 2 and voted unanimously to recommend adopting it. On April 28, 2009, the Planning Board issued a report (the "Planning Board Report") to the Cambridge City Council, which stated,

The Planning Board enthusiastically recommends adoption of the zoning change proposed in the Petition. The Petition will facilitate the relocation of [AIB] to Porter Square as part of the Lesley University campus and create a new Lesley Porter Overlay District. In addition, the relocated [AIB] and an expanded Lesley University academic presence will provide new opportunities to enhance the Porter Square community bringing more arts and cultural activities to this urban neighborhood.

The Planning Board indicated that it supported the re-zoning of the Church Lots "regardless of whether Lesley University's plans for the site move forward as anticipated" because "the [Church Lots are] not likely to be used for a single or two-family house that could be developed under the current zoning." The Planning Board noted that developing the Parking Lots "with ground floor retail would be a significant improvement to the streetscape along [Massachusetts] Avenue in that location."

9. The Ordinance Committee held public hearings on Petition 2 on April 14, 2009, May 27, 2009, and June 17, 2009. The Ordinance Committee submitted a substitute petition ("Petition 2-A") to the City Council that reflected changes to Petition 2 based on comments made at Ordinance Committee hearings. Among other things, Petition 2-A included (a) clarifying the transfer of a maximum of 25,000 square feet of gross floor area from the parking lot on the University Hall Lots; (b) prohibition of dormitory use on the University Hall Lots and the Parking Lots; (c) imposing a 7.5 foot front yard setback for one of the lot lines on the Church Lots; and (d) increasing the open space requirement for the parking lot on the University Hall Lots from 20 percent (20%) to 25 percent (25%).

10. A number of written statements from the community were presented to the Ordinance Committee. Indicative of the statements was one from a Working Group member:

The new overlay district is the result of the three neighborhood groups in a working group asking Lesley to let us understand the university's overall build out potential on their current property. This was in reaction to locating the [AIB] on Mass. Ave. Over almost two years, the community has requested and Lesley has responded positively crafting a zoning district that balances future development on both sides of Mass. Ave. It takes the long range view of properties at Porter Square . . . By including the church property at Roseland and Mass. Ave., the zoning district corrects a flaw in the continuity of overall B district that starts at Harvard and goes out to Arlington.

Another comment states,

Lesley's approach of working with neighborhood groups toward a long-range planning vision for all their properties within their Porter Campus provides this community with a desired predictability about future development. The added density within walking distance of public transportation is both an appropriate smart growth approach, and in keeping with the City of Cambridge's goals toward sustainable design and planning.

11. On May 22 and May 26, 2009, Sarah Farrington filed with the City written protests against the re-zoning signed by eighty-two owners of seventy-eight parcels located within 300 feet of the LP Overlay District. On June 15, 2009, Sarah Farrington submitted to the City seven additional written protests of owners within 300 feet of the LP Overlay District.

12. By letter dated June 22, 2009, Lesley committed funds of $500,000 for improvements along Massachusetts Avenue with respect to re-zoning.

13. The City Council met on June 22, 2009, and voted 8-1 to adopt Petition 2-A (the "Zoning Amendment"). The Zoning Amendment amended the Cambridge Zoning Map to extend the Business C District 160 feet along Massachusetts Avenue to encompass the Church Lots and created the LP Overlay District, which includes the Parking Lots, the University Hall Lots, and the Church Lots. The LP Overlay District included the following:

20.504.1 Floor Area Ratio Limitations.

20.504.2 Height.

20.504.3 Setbacks, yards

20.504.4 Parking and Loading

20.504.5 Open Space Requirements

Prior to the vote, the Cambridge City Clerk (the "City Clerk") reported to the City Council that less than twenty percent (20%) of qualified property owners had signed a written protest pursuant to G. L. c. 40A, § 5 that would have required the City Council to approve the Zoning Amendment by a seventy-five percent super majority vote. [Note 4] The Zoning Amendment states as its purpose:

It is the purpose of this Section to augment existing zoning regulations to respond to issues associated with institutional uses and unique planning opportunities immediately adjacent to Porter Square's MBTA station. These regulations are intended to allow for the establishment of an emerging art district associated with [Lesley], to enhance the vitality of Massachusetts Avenue by encouraging ground floor uses that will serve the needs of abutting neighborhood residents and enhance the established streetscape, to create a more harmonious and consistent character for the development along Massachusetts Avenue and where such development faces or abuts low density residential districts, and to encourage the retention and appropriate reuse of buildings of historic value.

14. Plaintiffs Sarah Farrington and John Farrington own property located at 20 and 22 Roseland Street, Cambridge, Massachusetts, which are located in the Residence B District and abut the LP Overlay District. Plaintiff Peter Lang owns, and lives with his wife Plaintiff Katherine Lapierre, at property located at One Frost Terrace, Cambridge, Massachusetts, which is located in the Residence B District and abuts the LP Overlay District.

15. The LP Overlay District is superimposed over a portion of the Massachusetts Avenue Overlay District.

16. The Business C District has more lenient zoning controls than the Residence B District.

17. On June 10, 2009, the Cambridge Historical Commission issued its Final Landmark Designation Study Report recommending that the Church Lots be designated as a landmark under the Cambridge Landmark Ordinance. On June 22, 2009, the City Council voted to accept the Cambridge Historical Commission's recommendation.

18. Article 2.000 of the Ordinance, which contains definitions, defines floor area ratio ("FAR") as "[t]he ratio of gross floor area of a structure to the total area of the lot." Article 2.000 defines a lot as "[a] parcel of land in identical ownership throughout, bounded by other lots or by streets, which is designated by its owner to be used, developed or built upon as a unit."

19. In the Business C District, the maximum FAR for educational buildings is 1.25 and the maximum building height is thirty-five feet (within fifty feet of a residential district line) and fifty-five feet elsewhere. In the Residence B District, the maximum FAR is 0.5 and the maximum height is thirty-five feet. The LP Overlay District increases the FAR in the Business C District to 2.5.

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Plaintiffs filed a Motion to Strike Portions of Defendants' Joint Statement of Facts, specifically Paragraphs 37 and 38. Plaintiffs argue that the Zoning Amendment constitutes spot zoning and that the Zoning Amendment also conflicts with other provisions of the Ordinance. Finally, Plaintiffs argue various procedural defects in the Zoning Amendment. Defendants argue that there is a strong presumption in the validity of the Zoning Amendment, and that the Zoning Amendment has a significant public objective of encouraging the emergence of an arts district. Defendants also contest each procedural defect alleged by Plaintiffs. I shall examine each of these issues in turn. [Note 5]

A. Plaintiffs' Motion to Strike Portions of Defendants' Joint Statement of Facts.

Paragraphs 37 and 38 of Defendants' Joint Statement of Facts includes excerpts of letters from citizens regarding the Zoning Amendment. Plaintiffs argue that the statements should be excluded because "private views, desires, or motives of individual citizens are immaterial" in a "proceeding to determine the validity of a zoning . . . ordinance." Barrett v. Bldg. Inspector of Peabody, 354 Mass. 38 , 43 (1968). Plaintiffs argue that Defendants cite this very same case in Count VI when Defendants argue that the protest of neighbors is irrelevant to determining the validity of the Zoning Amendment. Defendants argue that the statements were not offered to prove private views, desires or motives but instead were presented to show plausible bases for Petition 2-A and supported the City Council's stated reasons for its approval as presented in the purpose section of the Zoning Amendment. Moreover, they point out, several statements were from members of the Working Group, which was the group established by the City to review the re-zoning.

In Barrett, however, the Supreme Judicial Court (the "SJC") stated that although there was no prejudice from admitting a petition containing signatures of people favoring a zoning change, such evidence was "of no consequence in a proceeding to determine the validity of a zoning by-law or ordinance." Barrett, 354 Mass. at 43. Therefore, the statements in Paragraphs 37 and 38 are not relevant to this proceeding. [Note 6] As a result, I shall strike Paragraphs 37 and 38 of Defendants' Joint Statement of Facts.

B. Spot Zoning (Count I).

G. L. c. 40A, § 4 states in part that "any zoning ordinance . . . which divides cities and towns into districts shall be uniform within the district for each class or kind of structures or uses permitted." Spot zoning is the singling out of one lot for different treatment from that accorded to similar surrounding land indistinguishable from it in character, all for the economic benefit of the owner of that lot. See Whittemore v. Bldg. Inspector of Falmouth, 313 Mass. 248 , 249 (1943), citing Leahy v. Inspector of Buildings of New Bedford, 308 Mass. 128 , 133-134 (1941). Spot zoning therefore violates the uniformity requirement of G. L. c. 40A, § 4. "The enactment of a zoning bylaw ... is not only the exercise of an independent police power; it is also a legislative act ... carrying a strong presumption of validity." Durand v. IDC Bellingham, LLC, 440 Mass. 45 , 50-51 (2003). A zoning amendment may be undone only if a plaintiff demonstrates "that the zoning regulation is arbitrary and unreasonable, or substantially unrelated to the public health, safety . . . or general welfare." Id. (quoting Johnson v. Edgartown, 425 Mass. 117 , 121 (1997)).

Plaintiffs allege that the City failed to engage in a comprehensive zoning reevaluation prior to adopting the Zoning Amendment, an action that Plaintiffs claim is required by G. L. c. 40A, § 4. Moreover, Plaintiffs argue that the City engaged in illegal spot zoning practices by "plucking" the Church Lots out of a comprehensive zoning plan. Plaintiffs assert that the City has a zoning plan encompassing the entire city and that the City illegally changed the zoning of specific lots owned by Lesley, thereby deviating from the comprehensive, city-wide zoning plan. Plaintiffs complain that the City singled out the Church Lots for re-zoning all for the economic benefit of Lesley with no rational relation to the public benefit or general welfare of the City.

Although there is a strong presumption of the validity of a zoning amendment, Defendants primarily rely on the premise that the Zoning Amendment serves a valid public purpose. Defendants maintain that prior to implementing the Zoning Amendment the City engaged in substantial zoning analysis to ensure that the re-zoning would be in harmony with the surrounding area. Moreover, Defendants argue that the City's zoning analysis resulted in findings that re-zoning the Church Lots and incorporating AIB into Lesley's Cambridge campus would confer a public benefit to the City. Defendants respond to Plaintiffs' argument that the Zoning Amendment is inconsistent with a uniform plan by pointing out the non-residential use of the Church Lots and the proximity of the Church Lots to the Business C District.

Plaintiffs cite several cases that purport to require a comprehensive zoning analysis before the legislative body may amend a zoning ordinance or by-law. See Mitchell v. Bd. of Selectmen of South Hadley, 346 Mass. 158 , 161 (1963) ("We see nothing in the record to justify a conclusion that the amendment was predicated upon a reexamination of the zoning districts and a consequent decision that the area constituted an appropriate commercial area"); Beal v. Bldg. Comm'r of Springfield, 353 Mass. 640 , 644 (1968) ("[t]he proposed amendment is not a part of any general reevaluation or realignment of the zoning plan of the city."); W.R. Grace Co.-Conn. v. City Council of Cambridge, 56 Mass. App. Ct. 559 , 570 (2002) "[t]he vice is the 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 v. City of Boston, 29 Mass. App. Ct. 305 , 310 ("[W]hat is striking about the record is the absence of analysis of land use planning considerations by municipal authority before the decision to change the zoning was taken") (emphasis added).

Plaintiffs point out that in 1982, the last time the City made changes to its zoning map, a comprehensive zoning reevaluation was completed prior to implementing the zoning changes. In the cases cited by Plaintiffs, courts have held that the lack of any zoning analysis completed by cities and towns resulted in no plausible public justification for a change to a zoning ordinance or by-law. In the case at bar, however, the Working Group, the City Council Ordinance Committee, and other neighborhood groups in the Porter Square area were actively involved in the re-zoning planning process.

The record indicates that the City Council did not hastily enact the Zoning Amendment. Indeed, Lesley, in conjunction with various community groups and city officials considered the best means possible for Lesley to incorporate AIB into Cambridge. In 2006 the Working Group was formed for the purpose of exploring Lesley's available options for moving AIB to Cambridge. The Working Group members included not only Lesley officials and City officials, but also various members of the community who believed they might be affected by Lesley's expansion. Additionally, Lesley held three public meetings to present its plans for expansion to the Church Lots. These public meetings provided a convenient forum for community members to give their input into Lesley's expansion and development, and the record indicates these meetings were attended by Plaintiffs.

Another significant factor is that after three years of planning, in coordination with the Working Group, various public meetings, and negotiations with the City, the Planning Board enthusiastically gave its approval for Lesley's expansion and the creation of the LP Overlay District. Specifically, in the Planning Board Report, the Planning Board apprised the City Council of at least three legitimate benefits to the City as a result of the expansion: 1) encourage the development of an arts district by bringing AIB into the Porter Square area; 2) create a more predictable scenario for development for "key" Porter Square properties; and 3) encourage the eventual elimination of at-grade parking, and its replacement with first floor retail uses that will enhance the area as a lively retail district.

The City did not act in an arbitrary, unreasonable or hasty manner in adopting the Zoning Amendment. The case at bar can be distinguished from National Amusement, where there was nothing in the record indicating any zoning analysis by the City or that the new development and amendment would confer a benefit to the public. In this case, the Planning Board, and the City Council through its adoption of the Zoning Amendment, recognized the above articulated benefits that are to be conferred upon the City at large.

Plaintiffs further argue, however, that a change in the zoning of the Church Lots is inconsistent with the notion of a comprehensive, uniform zoning plan. Plaintiffs point out that in 1982 when the City last considered its zoning plan, the Church Lots remained zoned in a residential district. [Note 7] It follows, they argue, that a residential zoning classification is most consistent with the use of the Church Lots. Moreover, they point out, the Cambridge Historical Commission recommended to the City Council that the Church Lots be designated as an historical landmark, a recommendation which the City Council promptly adopted. Plaintiffs contend that these facts are evidence that the Church Lots must remain zoned residential in conformity with a uniform zoning plan and the Church Lots' designation as an historical landmark.

Plaintiffs' argument falls short, however, as a result of an analysis of the surrounding zoning and the use of the Church Lots over the past 100 years. Massachusetts Avenue, which stretches approximately four miles, traversing the entire City of Cambridge, is zoned Residence B in only .28 of a mile (including the Church Lots). [Note 8] The Church Lots abut the Business C District, which indicates that extending the Business C District to the Church Lots is not at all inconsistent with a uniform zoning plan. [Note 9] Extending the Business C District 160 feet to include the Church Lots can hardly be classified as violating principles of uniform zoning. This is especially true considering that nearly all properties fronting Massachusetts Avenue, excepting the Church Lots, are zoned either Business C or are part of the Massachusetts Avenue Overlay District.

Additionally, the Church Lots have not been used for residential purposes for over 100 years. Plaintiffs contend that the use of the Church Lots as a pre-school is consistent with a residential zoning district. [Note 10] It is inconsistent to argue, however, that residential use is the intended and best use of the Church Lots when they haven't been used as such for more than a century. Moreover, the Planning Board indicated that the Church Lots were ripe for re-zoning to Business C "regardless of whether Lesley University's plans for the site move forward as anticipated." This court will not speculate as to the City's reasoning for maintaining these lots as residential.

The City and its residents took many steps to analyze the harmony between the LP Overlay District and the surrounding area. There is no doubt that the LP Overlay District and the proposed development by Lesley will confer a benefit upon the general public. The City Council acted reasonably when adopting the Zoning Amendment to extend the Business C district to the Church Lots and create the LP Overlay District. As a result, I find that the City did not engage in spot zoning by enacting the Zoning Amendment, which extended the Business C District to include the Church Lots and created the LP Overlay District.

C. Illegal Contract Zoning.

Challenges to zoning enactments on the basis that they are products of contract zoning provoke two questions: (1) was the action "contrary to the best interest of the city and hence offensive to general public policy"; and (2) did it involve extraneous consideration "which could impeach the enacting vote as a decision solely in respect of rezoning the locus?" Sylvania Elec. Prod. Inc. v. Newton, 344 Mass. 428 , 434 (1962); Rando v. North Attleboro, 44 Mass. App. Ct. 603 , 609 (1998). Illegal contract zoning "involv[es] a promise by a municipality to re-zone a property either before the vote to re-zone has been taken or before the required [G. L. c. 40A, § 5] process has been undertaken [and] evades the dictates of G. L. c. 40A." Durand, 440 Mass. at 53. Moreover, in Durand, the SJC held that there is "no persuasive authority for the proposition that an otherwise valid zoning enactment is invalid if it is in any way prompted or encouraged by a public benefit voluntarily offered." Id. at 57.

Plaintiffs argue that Lesley's commitment of $500,000 toward mitigation measures along Massachusetts Avenue upon the creation of the LP Overlay District constitutes illegal contract zoning. Plaintiffs point out that of this amount, Lesley commits only $50,000 for improvements to Massachusetts Avenue in the area between Porter Square and Harvard Square but will make contributions of $200,000 and $250,000 "for improvements [elsewhere] along Massachusetts Avenue." Plaintiffs argue that Lesley does not commit any funds to specifically mitigate the adverse impacts of its development in the Porter Square area. As a result, Plaintiffs contend that Lesley's cash payment improperly influenced the City.

The SJC's decision in Durand stands for the proposition that if a zoning amendment is valid on other grounds, i.e. the zoning amendment was enacted pursuant to the zoning statute and the amendment serves a public purpose, then a voluntary payment made by the developer to the municipality, standing alone, cannot invalidate a legislative act. As detailed, supra, the Zoning Amendment is valid on the fact that there is sufficient evidence to find that the Zoning Amendment is in the best interest of the City, and thus under Durand, Lesley's offer to commit funds for improvements to Massachusetts Avenue does not invalidate the Zoning Amendment. Furthermore, there is no evidence that the City Council agreed to approve the Zoning Amendment before it voted to do so on June 22, 2009. Accordingly, I find that the Zoning Amendment does not constitute illegal contract zoning.

D. Violation of Institutional Overlay District Regulations (Count II).

Plaintiffs point out that the Institutional Use Regulations in Article 4.50 of the Ordinance prohibit construction of buildings for private educational use in a Residence B District. [Note 11] Plaintiffs also point out that Article 4.52 of the Ordinance states that one purpose of the Institutional Use Regulations is "to protect lower density residential neighborhoods from unlimited expansion of institutional activities." Plaintiffs argue that the Church Lots are not located within an Institutional District and the use of the Church Lots as an institutional use violates Article 4.52 of the Ordinance. Defendants counter, arguing that the Church Lots are no longer zoned as Residence B, and as a result the institutional use to which the Church Lots will be put cannot violate Article 4.52 of the Ordinance.

The Zoning Amendment extends the Business C district 160 feet to include the Church Lots, thereby removing the Church Lots from Residence B. Article 4.52 does not afford the same institutional use protection to the Business C District as it does the Residence B District. As Defendants point out, pursuant to the Home Rule Amendment, the City is free to amend the Ordinance, including making changes to or superseding existing zoning legislation, where doing so may plausibly be said to advance the public welfare. See Durand, 440 Mass. at 50 - 51. In the case at bar, the Zoning Amendment advances the public welfare, thus the City was free to amend the Ordinance. Thus, Plaintiffs' argument has no merit because the Church Lots were removed from Residence B to Business C and are no longer encumbered by the Institutional Use Regulations imposed upon Residence B lots. As a result, I find that the Zoning Amendment does not violate the Institutional Overlay District Regulations.

E. Violation of Massachusetts Avenue Overlay District Regulations and Improper use of Overlay District Procedure (Counts III and IV).

Plaintiffs argue that the Ordinance does not permit one overlay district to be superimposed over another. Moreover, Plaintiffs argue that the purpose of an overlay district is to impose more restrictive zoning requirements than the underlying zoning. In support of these contentions, Plaintiffs point to various provisions of the Ordinance, as well as case law. First, Plaintiffs argue that Article 3.12 of the Ordinance, which permits the City to create overlay districts, does not contemplate that one overlay district may be superimposed over another. Second, Article 20.102 of the Ordinance states, "It is the purpose [of the LP Overlay District] to augment base zoning regulations in the district to create a more harmonious and consistent image for the development along [Massachusetts] Avenue and adjacent areas." Finally, Plaintiffs contend that "overlay districts typically achieve their objectives without amending the underlying zoning by employing a technique in which new, more restrictive zoning is 'laid over' an existing zone in order to further regulate or restrict certain permitted uses.... The typical overlay district is not an independent zoning district but simply a layer that supplements the underlying zoning district regulations.'" KCI Management Inc. v. Board of Appeals of Boston, 54 Mass. App. Ct. 254 , 259 (2002) (emphasis added), citing Salsich & Tryniecki, Land Use Regulation 167 (1998).

Plaintiffs point out that various provisions of the LP Overlay District, which is superimposed over the Massachusetts Avenue Overlay District, impose less stringent regulations than both the underlying Business C zoning and the regulations of the Massachusetts Avenue Overlay District. For example, The Massachusetts Avenue Overlay District incorporates the Large Scale Project Review Procedures (the "LSPRP") into its zoning restrictions. [Note 12] Article 20.109 of the Ordinance requires that all projects containing more than 2,000 square feet of GFA but less than 50,000 square feet of GFA, located within the Massachusetts Avenue Overlay District, be subject to the LSPRP. On the other hand, the Zoning Amendment contains no reference whatsoever to LSPRP, notwithstanding that the LP Overlay District permits up to 25,000 square feet of GFA in any single building. Plaintiffs also cite that the LP Overlay District increases the maximum FAR for educational use from 1.25 to 2.5, and eliminates certain setback requirements for historic buildings.

Plaintiffs' factual assertions are correct; however, they err as a matter of law. Defendants point out that Article 3.12 of the Ordinance states only that "[O]verlay Districts may be established from time to time" and "have specific regulations which shall be applicable in lieu of or in addition to [the underlying zoning regulations]." The Ordinance is silent as to whether one overlay district may be imposed over another overlay district. Absent such a restriction this court owes deference to the legislative act of the City and will not read such a restriction into the Ordinance where such a restriction does not explicitly exist. Moreover, the language in the Ordinance ("in lieu of" the underlying zoning requirements) indicates that any legal overlay district may substitute, rather than supplement, existing zoning regulations.

Further, Article 20.503.1 of the Ordinance explicitly states that, where regulations differ among the several applicable zoning districts, the restrictions contained in the LP Overlay District shall apply, i.e. the Zoning Amendment supercedes the restrictions of other zoning regulations, including the Massachusetts Avenue Overlay District zoning regulations. The plain language of the Ordinance and the Zoning Amendment is clear. Article 3.12 permits zoning restrictions within an overlay district to substitute for the existing zoning regulations. Article 20.503.1 explicitly states that the LP Overlay District restrictions supercede any inconsistent provisions of the Ordinance. As a result, any restrictions in the Zoning Amendment are free to either be more restrictive or less stringent than the underlying zoning, so long as the Zoning Amendment is legitimate exercise of legislative power, which it is.

There is no case law requiring that an overlay district must impose more stringent zoning requirements than the underlying zoning area. Plaintiffs' reliance on KCI Management, Inc. is of no avail. The dispute in KCI Management, Inc. arose out of a challenge to the validity of an overlay district that allowed single family residences by a conditional use permit, whereas the underlying zoning regulations allowed for such use as of right. The Appeals Court's dicta, quoted supra, citing secondary authority, expounds on the general theory of an overlay district. That court reflected on the characteristics of a "typical" overlay district, but did not incorporate this discussion into its holding. The Appeals Court held that imposing more stringent zoning requirements, i.e. single family use by conditional use permit rather than as of right, was a legitimate legislative act, but overturned the City's rejection of the conditional use permit because the developer had met all of the conditions imposed by the overlay district regulations. The issue of whether overlay district regulations must be more stringent than the underlying zoning regulations was not before the court in KCI Management, Inc. The dicta of the Appeals Court, stating that "typically" overlay district regulations are more stringent than the underlying zoning, is not binding authority. [Note 13]

There is no question that the Zoning Amendment is at least rationally related to the public welfare of the City. As a result, the Zoning Amendment was a valid legislative act and did not constitute spot zoning. Pursuant to the Ordinance, the City was free to create the LP Overlay District and impose less stringent zoning restrictions (in some cases) or more stringent zoning restrictions in others. [Note 14] Moreover, as discussed, supra, there is no case law mandating that each and every zoning regulation proscribed by an overlay district impose more stringent regulations than the underlying zoning. As a result, I find that the Zoning Amendment does not violate the Massachusetts Avenue Overlay District Regulations and that the City did not improperly use the overlay district procedure in enacting the Zoning Amendment. [Note 15]

F. Improper Transfer of FAR (Count V).

Plaintiffs argue that provisions of the Zoning Amendment permit the transfer of FAR from one lot to another. Plaintiffs point out that the Ordinance allows the owner of property in the LP Overlay District to consider the combined area of two or more lots as one lot for the purpose of determining FAR. Defendants argue that the City was free to amend the Ordinance as it deemed appropriate, so long as such amendment is rationally related to the public welfare of the City, i.e. that it did not constitute spot zoning.

Article 2.000 of the Ordinance defines FAR as the ratio of GFA of a structure on a lot to the total area of the lot. Article 2.000 then defines Lot as, "A parcel of land in identical ownership throughout, bounded by other lots or by streets, which is designated by an owner to be used, developed or built upon as a unit." Article 20.504.1.1.0 of the Ordinance (a provision of the Zoning Amendment) states:

Notwithstanding the definition of Lot in Article 2.000, a development project in this Lesley Porter Overlay District may consist of non-contiguous lots and lots separated by streets, which lots are held in common ownership. In calculating the gross floor area (GFA) permitted for a development consisting of educational institutional uses, the area of noncontiguous lots held in common ownership within the Overlay District may be combined. For those lots located easterly of Massachusetts Avenue, the resulting permitted Gross Floor Area may be located on the individual University Hall or Church Lots or transferred in part from the University Hall Lot to the Church Lots in an amount not to exceed 25,000 square feet. All transferred Gross Floor Area shall be located below grade.

Thus, the Ordinance purports to redefine the term "Lot", and allows the area of noncontiguous lots in the LP Overlay District to be combined. As a result, the denominator of the FAR will be increased, thereby providing the property owner the right to build a larger structure, on any lot within the LP Overlay District, than otherwise would be permissible.

This argument advanced by Plaintiffs is similar to those arguments articulated in paragraph E, supra. Plaintiffs again argue that it is impermissible for the City to relax the underlying zoning requirements by means of an overlay district. As discussed, supra, KCI Management, Inc. did not hold that existing zoning may not be amended or made less restrictive by creating an overlay district. Article 3.12 of the Ordinance states that an overlay district may be created with "special regulations which shall be applicable ... in lieu of applicable regulations in the base zoning." (Emphasis added). Moreover, other provisions of the Ordinance indicate that FAR may be transferred and used on other lots in the same or different zoning district for, among other reasons, "to facilitate the implementation of urban design and other planning objectives . . . ." Articles 17.17 and 17.81.5 are both examples of permissive FAR transfers between lots regardless of their contiguity or ownership. [Note 16] By allowing the transfer of GFA, the City determined that this was the most feasible way to facilitate development that the City deemed to be in the best interest of the public. As a result, I find that the legislative act permitting the transfer of area and GFA amongst lots permissibly amends, and does not violate, the Ordinance.

H. Procedural Defects in Adopting the Zoning Amendment (Count VI).

G. L. c. 40A, § 5 provides in part that

[I]f in a city or town with a council of fewer than twenty-five members there is filed with the clerk prior to final action by the council a written protest against [the zoning amendment], stating the reasons duly signed by owners of twenty per cent or more of the area of the land proposed to be included in such change or of the area of the land immediately adjacent extending three hundred feet therefrom, no such change of any such ordinance shall be adopted except by a three-fourths vote of all members.

Cambridge has a City Council of nine members. Thus, if 20 percent (20%) of the immediate abutters or property owners within three hundred feet of the land subject to the Zoning Amendment file a written opposition with the City Clerk, then the City Council would have to pass the Zoning Amendment by a super majority vote of 3/4 of its members. [Note 17] The Zoning Amendment, passed by an 8-1 margin, exceeding the 3/4 super majority required by the statute. It is pure speculation to assume that if the City Council had been informed that the twenty percent threshold of eligible property owners had been met, then at least two City Councilors would have changed their mind and voted against the Zoning Amendment. [Note 18]

Plaintiffs maintain that 20% of the eligible abutters filed a written opposition, thus they had the power to force a 3/4 super majority vote. [Note 19] The purpose of G. L. c. 40A, § 5 is not to inform Council Members of public protest, but to provide property owners affected by the Zoning Amendment an opportunity to force the City Council to adopt the amendment by a higher percentage of its membership than is typically required. See Parisi v. City of Gloucester, 3 Mass. App. Ct. 680 , 683 (1975) "[statutes requiring super majority votes] are designed to give affected landowners some leverage" in the adoption or rejection of the proposed amendment).

Whether or not 20% of the eligible abutters filed a written opposition is irrelevant, given the facts. The Zoning Amendment passed by an 8-1 margin, thus the super majority requirement has been satisfied. As a result of the foregoing, I find that there were no procedural defects in adopting the Zoning Amendment. [Note 20]

I. Conclusion.

I ALLOW Defendants' Motion for Summary Judgment and DENY Plaintiffs' Cross Motion for Summary Judgment. Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: April 5, 2011