By complaint filed on October 18, 1989, and amended on March 22, 1990 ("Amended Complaint"), the Plaintiffs appeal, pursuant to St. 1956, c. 665, §l0A, inserted by St. 1987, c. 371, §2, from decisions of the Defendant, Boston Zoning Commission ("Zoning Commission"), approving certain amendments ("Amendments") to the text and maps of the Boston Zoning Code ("Code"), which amendments will permit the Defendant, Kingston Bedford Joint Venture, to construct a thirty-seven (37) story mixed-use complex, containing over 950,000 square feet in area, at a site known as One Lincoln Street, in Boston ("One Lincoln Street" or "Locus") (See Exhibits No. 33 and 60). This property lies immediately adjacent to a parcel of land owned by the Plaintiff, Lincoln National Life Insurance Company ("Lincoln National"), located at the intersection of Columbia and Bedford Streets in Boston. Specifically, by Count I of the Amended Complaint, the Plaintiffs assert that the Zoning Commission exceeded its authority in adopting these Amendments, inasmuch as such Amendments violate Section 2 of the Boston Zoning Enabling Act and Articles 1, 3 and 40 of the Code.
By Count II of the Amended Complaint, the Plaintiffs seek a declaration, pursuant to G.L. c. 240, §14A, that the aforesaid Amendments to the Code are invalid, or in the alternative, that they, the Plaintiffs, are entitled as of right under the Amendments, to the benefit of the expanded height, floor area ratio, and other use and dimensional provisions thereof, so as to permit them to construct, on their property, a building measuring up to 465 feet in height, with a floor area ratio of 14.0. [Note 1] By Count III, the Plaintiffs seek a further declaration, pursuant to G.L. c. 231A, §1 et. seq., that, in accordance with the City of Boston's ("City") "Parcel-to-Parcel Linkage Program", construction and development on a parcel of land located at Ruggles Center in the Roxbury District of Boston, known as and hereinafter referred to as "Parcel 18", must take place at least contemporaneously with the aforesaid construction and development at Locus. In addition thereto, the Plaintiffs seek an award of costs, inciuding reasonable attorneys' fees.
On November 28, 1989, the Boston Redevelopment Authority ("BRA") moved to intervene in the action as a Party-Defendant. This motion was allowed on December 8, 1989.
The case was tried on March 26, 27, and 28 and April 10 and 11 of 1990, at which times the Court appointed a stenographer to record and transcribe the proceedings. Prior to the conclusion of the trial on April 11, 1990, all parties stipulated to the bifurcation of the issues presented herein, so as to reserve the issues of bad faith and improper motive for a later date. [Note 2]
Over the course of trial, testimony was offered by Geoffrey Smyth, President of the Westminster Group and General Partner of Bedford Building Associates; Barry Pell, Director of Transportation Engineering and Traffic Planning for Rizzo Associates; Randolph Jones, President of City Design Collaborative Incorporated; Yu Sing Jung, President of Jung/Brannen Associates, Inc., the Project architects; Roger Lang, President of Lang Associates; Alfred Howard, Engineer and Planner for Howard/Stein-Hudson Associates and Robert Green, General Manager of Metropolitan Structures in Boston. Sixty-three (63) exhibits were introduced into evidence and one chalk was presented to assist the Court. The chalk and all of the exhibits are incorporated herein for purposes of any appeal.
Prior to the commencement of trial on March 26, 1990, the parties provided the Court with a statement of certain agreed upon facts (Exhibit. No. 42), the most pertinent of which are incorporated in the findings made below. On March 26, 1990, the Court took a view of Locus, in the presence of counsel.
On March 28, 1990, the Defendants and Defendant-Intervenor filed a motion to dismiss Count I and Count III of the Amended Complaint. At this time, the City, Zoning Commission and BRA moved for an entry of judgment on their behalf, said motion being argued and denied on April 10, 1990.
On all of the evidence before the Court, I find the following facts:
1. The Plaintiff, Lincoln National, an Indiana corporation, owns a 16,477 square foot parcel of land located at the intersection of Columbia and Bedford Streets in Boston.
2. The Plaintiffs Blew, Smyth, Standel, Yelton and the Bostan Development Company, Inc. are the general partners of Bedford Building Associates (collectively referred to as "Bedford"), a Massachusetts limited partnership. Bedford is the owner of a fivestory brick building located on Lincoln National's property ("Bedford Building" or "Building") (See Exhibit No. 44).
3. The Bedford Building was built around 1874. In 1982, Bedford made extensive repairs and renovations to both the interior and exterior of the Building. The Building has been placed on the National and State Registries of Historic Places.
4. Locus is a parcel of land of approximately 74,000 square feet, spanning two (2) city blocks. It is bounded by Kingston, Essex, Bedford and Lincoln Streets and the John F. Fitzgerald Expressway, and is immediately adjacent to the Bedford Building.
5. Locus is presently occupied in part by a ten (10) story, 550 car, parking facility owned by the City, known as the Kingston Bedford Street Garage, which as revealed by certain testimony and a view of the premises, is in need of extensive repairs and renovations. At present, such facility cannot be used to its full design-capacity. Locus is also occupied by an office building at 80-86 Kingston Street and two (2) surface parking lots with a combined capacity of approximately 266 cars.
6. The "Parcel-to-Parcel Linkage Program" was announced by the City and the Commonwealth in 1985. According to the "Parcel to Parcel Linkage Development Prospectus", prepared by the BRA on July 31, 1985 (Exhibit No. 1), the first combined project of this kind is "the joint development opportunity of Parcel 18 in the Southwest Corridor [Roxbury] and the Kingston-Bedford Garage and 140 Essex Street surface parking lot in the Financial District [Locus]".
7. On June 30, 1986, the BRA filed an Environmental Notification Form for the Project with the Massachusetts Executive Office of Environmental Affairs (See Exhibit No. 2). Thereafter, on July 9, 1986, the Massachusetts Secretary of Environmental Affairs issued a certificate with respect to the BRA's Environmental Notification Form, noting therein the need for an Environmental Impact Report in connection with the Project.
8. On September 25, 1986, the BRA adopted a resolution regarding disposition policies for the Kingston-Bedford Garage, Essex Street lot and Parcel 18 (See Exhibit No. 40).
9. In the fall of 1986, the BRA began soliciting proposals from minority developers interested in participating in the "Parcel-to-Parcel Linkage Program".
10. In June of 1987, the BRA made a tentative selection of Columbia Plaza Associates, a Massachusetts general partnership, as the minority developer for the combined One Lincoln Street-Parcel 18 Project ("Combined Project"). Thereafter, Columbia Plaza Associates solicited proposals from developers interested in participating in the Combined Project.
11. On or about September 25, 1987, the Zoning Commission amended the Code so as to create the "Downtown Interim Planning Overlay District", said Amendment being codified in Article 27D of the Code. Locus lies within this zoning district.
12. On or about March 1, 1988, Columbia Plaza Associates selected Metropolitan Structures, an Illinois general partnership, as its development partner. Shortly thereafter, on or about March 10, the BRA tentatively designated these entities as the development team for the Combined Project. Around this same time, the BRA established a 120-day "Challenge Track" period, during which time the development team was to prepare and submit a conceptual design for the One Lincoln Street Project (See Exhibit No. 12, Page III-4).
13. In May of 1988, Columbia Plaza Associates and Metropolitan Structures entered into a joint venture agreement, thereby creating the Metropolitan/Columbia Plaza Venture ("M/CP Venture"), a Massachusetts general partnership (all collectively referred to hereinafter as "the Development Team"). [Note 3]
14. From March to early July of 1988, the Development Team and Jung/Brannen Associates, Inc., the Project architects, examined approximately ten (10) design alternatives for the One Lincoln Street Project. Finally, on or about July 11, 1988, the Challenge Track design was submitted to the BRA. The design called for a 397 foot tower, connected to a nine (9) story low-rise building (See Exhibit No. 35).
15. At various times from July to December of 1988, the Development Team, Project architects and engineers met with neighborhood and community groups, including Bedford, the BRA, local historic commissions and other members of the development staff, to discuss concerns and/or comments relative to the proposed One Lincoln Street design.
16. In September of 1988, the Development Team provided the City's Real Property Department with a study of the Kingston-Bedford Parking Garage (See Exhibit No. 18). This study included analyses of the parking supply and demand and the traffic impacts to be associated with the Project.
17. On November 21, 1988, the Development Team furnished the BRA with a Project Notification Form (Exhibit No. 4), said Form serving to notify public agencies of the proposed development of Locus. Thereafter, on December 23, 1988, the Development Team filed its "Schematic Design Submission" with the BRA, said design proposing a taller tower of 465 feet in height, with a connected seven (7) story low-rise building (See Exhibit No. 31).
18. On January 30, 1989, the. Development Team submitted a Draft Environmental Impact Report to the BRA, said Report highlighting the impacts which the One Lincoln Street Project will have on surrounding transportation and traffic (See Exhibit No. 17).
19. In April of 1989, the BRA submitted the Draft Environmental Impact Report for the Project to the Massachusetts Executive Office of Environmental Affairs (See Exhibit No. 5).
20. On April 27, 1989, the Development Team, the City and the Massachusetts Bay Transportation Authority ("MBTA") entered into a "Development Agreement" relative to the Combined Project ("Development Agreement") (See Exhibit No. 25). Pursuant to the terms of the Agreement, development at Parcel 18 was to commence prior to development at Locus.
21. The BRA held a duly convened public hearing on May 25, 1989, at which time it made certain findings and, on the basis thereof, recommended that the Code be amended to establish permanent zoning for the South Station Economic Development Area, which area encompasses the "Parcel-to-Parcel Linkage Development Area".
22. In June of 1989, a Historic Resource Component Report was prepared for use in conjunction with the Final Environmental Impact Report for the One Lincoln Street Project (See Exhibit No. 20).
23. On or about June 6, 1989, the Massachusetts Secretary of Environmental Affairs certified the Draft Environmental Impact Report for the Project.
24. On or about June 19, 1989, the Development Team filed an application with the BRA, seeking a Planned Development Area ("PDA") designation for Locus ("PDA Application") (Exhibit No. 6). Pursuant to the terms of Sections 26A-3 and 26B-3 of the Code, the PDA Application was accompanied by a Development Plan/ Development Impact Project Plan, which plan was entitled, "Revised Developer's Alternative Schematic Design", dated June 1, 1989 ("Revised Design" or "Development Plan-Development Impact Project Plan") (Exhibit No. 33). This design, which was intended to supplement that of December 23, 1988, was updated once again on June 20, 1989 (See Exhibit No. 34). These Plans set out the details of the proposal, including the location and appearance of structures, open spaces and landscaping, proposed uses of the area, densities, proposed traffic circulation, parking and loading facilities, access to public transportation and the proposed dimensions of structures, all in accordance with Sections 3-lA and 40-8 of the Code.
25. The guidelines for PDA approval of projects located within the South Station Economic Development Area are contained in Sections 3-1A, 40-8, 40-10 and 40-11 of the Code. These sections require that the proposed PDA conform to the South Station Economic Development Plan, as well as the requirements of Section 3-1A, and that any PDA located within the "Parcel-to-Parcel Linkage Area" conform to the requirements of the "Parcel-to-Parcel Linkage Program".
26. Before the Development Plan and Development Impact Project Plan are transmitted to the Zoning Commission for consideration, they must be approved by the BRA following a public hearing. The BRA's grant of approval is conditioned on the following findings (See Exhibit No. 61B, Pages B000364-B000365):
1.) That the development plan is in substantial accord with the provisions of Sections 40-10 and 40-11 of the Code;
2.) That the development conforms to the South Station Economic Development Area Plan and the general plan for the city as a whole;
3.) That each proposed project described in the development plan is in substantial accord with the building height and floor area ratio standards of Sections 40-6 and 40-7 of the Code, as applicable;
4.) That, on balance, nothing in the development plan will be injurious to the neighborhood or otherwise detrimental to the public welfare, weighing all of the benefits and burdens; and
5.) That the development plan proposes a plan for development consistent with the goals of the South Station Economic Development Area Plan . . .
27. As shown on the Revised Design, and as reflected by a scaled model (Exhibit No. 60), the One Lincoln Street Project, as presently proposed, is a mixed-use development containing approximately 990,000 gross square feet. It consists of a brick office building with a thirty-seven (37) story tower of at least 465 feet in height, located on the southeastern side of One Lincon Street, approximately ten (10) feet from the Bedford Building, and a connected and integrated seven (7) story low-rise building, of 100 feet in height, located on the northwestern side of One Lincoin Street (the site of the existing Kingston-Bedford Street Garage). The base of the structure will contain office space, with the ground floor being set aside for retail uses. In addition, there will be a five (5) story, 920 car, underground parking garage, serving the parking needs of both the general public and the tenants of the building, and an interior five (5) bay loading dock. The floor area ratio for the One Lincoln Street Project is approximately 13.75.
28. Shortly after submitting the Revised Design to the BRA, the Development Team submitted a shadow analysis for the One Lincoln Street Project (Exhibit No. 26). Further shadow studies were made and submitted in January and February of 1990 (See Exhibits No. 29 and 30).
29. At a duly advertised public hearing held on June 29, 1989, the BRA considered the Development Plan/Development Impact Project Plan, making lengthy and detailed findings, including generally, but not limited to, the following (See Exhibit No. 61B, Pages B000365 et. seq.):
1.) . . . the Site is a significantly underutilized and underdeveloped area which returns to the City relatively little in terms of tax revenue, employment or other public benefits . . .;
2 ) . . . the PDA/DIP Plan adequately sets forth the [aforesaid] required elements . . . of Sections 3-1A and 26A-3 and Article 40 of the Code . . . (See Finding No. 28);
3.) . . . from a design standpoint, the Project is in harmony with the design philosophy and history of the South Station Economic Development Area, that massing, setbacks and materials are coordinated to relate to those of the surrounding neighborhood . . . and that the buildings in the Project will have heights and gross floor areas not in excess of those permitted in the PDA/DIP Plan . . .;
4.) . . . the Project will provide the city with additional commercial space and public parking facilities, while retaining the historical and architectural integrity of the area . . .;
5.) . . . the resulting design represents a commitment on the part of the applicant to preserve open air, pedestrian and vehicular access, to strengthen and reinforce historic patterns of buildings and to mitigate detrimental environmental effects the Project may have had on the area . . .;
6.) . . . by turning a significantly underutilized site into a first-class, mixed-use development, the Project will direct downtown development in a way that promotes balanced growth for Boston, will channel growth away from congested areas . . . ;
7.) . . . With its proximity to Washington Station and South Station, [the Project] is at the hub of the regional transit system, where subway, light rail, commuter rail, and express buses converge . . . ;
8.) . . . the Project will convert an underdeveloped downtown site into a physical and financial asset, and will improve land values and provide economic stimulus . . . ;
9.) . . . with respect to this Project, the balance is tipped heavily in favor of benefits to the neighborhood, the City and the public [ie. employment opportunities, increased tax revenues, revenue from purchase price, jobs linkage/housing linkage contributions, on-site child care facilities, contribution to community development fund, planning and matching grants, community participation, community benefits, reduction in traffic congestion, etc.] . . . ;
30. Following the public hearing, the BRA recommended that the Zoning Commission designate Locus as a PDA (See Exhibit No. 11).
31. On or about August 18, 1989, the BRA petitioned the Zoning Commission to approve the Development Plan for the One Lincoln Street Project and to amend the Code, so as to designate Locus a PDA, and to add Article 40 thereto (See Exhibits No. 27, 36 and 41). These matters were considered by the Zoning Commission at a duly advertised public hearing held on August 23, 1989.
32. The purpose, goals and objectives of the proposed Article 40 of the Code read in pertinent part as follows (See Exhibit No. 8) :
The purpose of this article is to establish the zoning regulations for the comprehensive plan for the South Station Economic Development Area ("EDA") as required by the provisions of the Downtown Interim Planning overlay District, Article 27D of this code. The goals and objectives of this article, which constitutes the South Station EDA Plan, are to direct downtown development in a way that promotes balanced growth for Boston; to channel growth away from congested areas and toward underutilized sites in the Bedford-Essex corridor and along the Fort Point Channel; to permit redevelopment which provides significant community benefits . . . to create a mixed-use district which includes office, retail, hotel, research and development, and biomedical uses; to provide an area of the downtown to enhance the expansion of Boston's biomedical and research and development sectors; to create a complex of facilities and services which will foster economic growth in Boston and throughout the region; to increase the number of jobs in those sectors of the economy likely to employ Boston residents; to promote the creation and incubation of new research and development businesses and uses along with facilities supporting such uses; to create a transition of uses and character between the downtown and Chinatown and Leather Districts; to utilize existing transit centers; and to improve vehicular access to the city by establishing parking facilities near major commuter arteries.
33. On September 11, 1989, after giving due consideration to the numerous, detailed findings of the BRA, the Zoning Commission adopted Article 40 (Text Amendment No. 123) (Exhibit No. 8) and Map 1C of the Code (Map Amendment No. 230) (Exhibit No. 9), as well as an amendment to Map 1C, which established a PDA Overlay District, within the South Station Economic Development Area, for Locus (Map Amendment No. 232) (Exhibit No. 10). At this time, the Zoning Commission also approved the Development Plan/Development Impact Project Plan for the One Lincoln Street PDA (See Exhibit No. 11). These Amendments were signed by Mayor Flynn, and went into effect, on September 13, 1989.
34. In adopting the Amendments to the Code, the Zoning Commission established new zoning for the South Station Economic Development Area (See Exhibits No. 1 and 14), which zone encompasses the "Parcel-to-Parcel Linkage Development Area" ("Parcel No. 2" on Exhibit No. 1). In Parcel No. 2, the maximum height permitted as of right for proposed projects is 465 feet and the maximum floor area ratio permitted as of right is 14.0 (See Code, Article 40, Section 40-6). In addition, the Zoning Commission's action resulted in the designation of Locus as a PDA Overlay District (See Code, Article 40, Sections 40-8, 40-9, 40-10 and 40-11).
35. On November 30, 1989, the Development Team submitted the Final Environmental Impact Report for the One Lincoln Street Project (Exhibit No. 12) to the Massachusetts Executive Office of Environmental Affairs. Thereafter, on December 11, 1989, the BRA was given the Final Project Impact Report (Exhibit No. 37).
36. The Massachusetts Secretary of Environmental Affairs certified the Final Environmental Impact Report on January 17, 1990 (See Exhibit No. 38).
37. On or about February 8, 1990, the BRA granted approval to the final designation of the M/CP Venture as the Development Team for the combined one Lincoln Street-Parcel 18 Project.
A. Count I of the Amended Complaint
Insofar as this Court is concerned, this is a case is of first impression. The substantive issue presented herein for review is whether the Defendant Zoning Commision exceeded its authority in approving those Amendments to the Boston Zoning Code which establish the zoning regulations for the South Station Economic Development Area and which designate Locus as a Planned Development Area. The Plaintiffs assert that, inasmuch as the adoption of these Amendments is inconsistent with the Purpose Clause of the Boston Zoning Enabling Act and Sections 1, 3 and 40 of the Boston Zoning Code, they should be annulled. Pursuant to St. l956, c. 665, §l0A, inserted by St. 1987, c. 371, §2, it is the duty of the reviewing court in this instance to hear all pertinent evidence, determine the facts and, upon the facts as so determined, annul such decision if it is found to exceed the authority of'the Zoning Commission.
Inasmuch as this is the first appeal to be decided pursuant to the 1987 amendment, I ruled at the commencement of trial that, rather than requiring the Defendants to relitigate their case before the BRA as urged by the Plaintiffs, I would accept the BRA findings as prima facie authority for the actions of the Zoning Commission. These findings were not, however, to be considered as conclusive and the Plaintiffs were free to challenge any such finding they chose.
1. The Amendments' Furtherance of the Purpose Clause of the Boston Zoning Enabling Act
The well-established test for determining the validity of zoning amendments is whether there has been shown any substantial relation between the amendments and the furtherance of any of the general objectives of the zoning enabling statute. Lanner v. Board of Appeals of Tewksbury, 348 Mass. 220 , 228 (1964); Decoulos v. City of Peabody, 360 Mass. 428 , 430 (1971); Canteen Corporation v. City of Pittsfield, 4 Mass. App. Ct. 289 , 291-292 (1973); Collura v. Town of Arlington, 367 Mass. 881 , 885 (1975); Fogelman v. Town of Chatham, 15 Mass. 585 , 588 (1983). Such amendments are presumed to be valid, 122 Main Street Corp. v. City of Brockton, 323 Mass. 646 , 649 (1949), and will be upheld unless found to be arbitrary and unreasonable, having no substantial relationship to the public health, safety, morals or general welfare. MacNeil v. Town of Avon, 386 Mass. 339 , 340 (1982); Anderson v. Town of Wilmington, 347 Mass. 302 , 303 (1964); Schertzer v. City of Someville, 345 Mass. 747 , 751 (1963); Moss v. Town of Winchester, 365 Mass. 297 , 299 (1974). So long as the reasonableness of the zoning amendments is fairly debatable, the judgment of the local authorities who gave them their being will be sustained. MacNeil at 341; Crall v. City of Leominster, 362 Mass. 95 , 101 (1972); Turnpike Realty Company, Inc. v. Town of Dedham, 362 Mass. 221 , 233 (1972). The petitioners bear the burden of proving otherwise beyond a reasonable doubt. MacNeil at 340; Sturges v. Town of Chilmark, 380 Mass. 246 , 256 (1980); Collura at 885; Turnpike Realty at 233. I am not persuaded that the Plaintiffs herein have met this burden of proof.
As set forth in the Amended Complaint, the Plaintiffs challenge the legitimacy of the zoning Commission's decision to adopt the Amendments, on the grounds that the Project, among other things, impairs the Bedford Building's access to light and air, increases adverse wind and shadow conditions, heightens pedestrian and vehicular congestion, deprives the Bedford Building of the use of Columbia Street and imperils the value of the Building and the land on which it sits. Applying the foregoing principles to the instant matter, the Plaintiffs, to prevail, must prove that the subject Amendments run afoul of Section 2 of the Boston Zoning Enabling Act, which Section describes the purposes of the Act as follows:
SECTION 2. For the purposes of promoting the health, safety, convenience, morals or welfare of its inhabitants, the city of Boston may, by a zoning regulation adopted by its zoning commission, regulate and restrict the height, number of stories, and size of buildings and structures . . . the density of population, and the location and use of buildings, structures and land . . .
A zoning regulation shall be designed among other purposes to lessen congestion in the streets; to conserve health; to secure safety from fire, panic and other dangers; to provide adequate light and air; to prevent overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements; to conserve the value of land and buildings; to encourage the most appropriate use of land throughout the city; and to preserve and increase its amenities.
Here, the Zoning Commission's decision to adopt the subject Amendments to the Code was made after giving due consideration to the lengthy and detailed findings of the BRA. For the following reasons, I find that, contrary to the Plaintiffs' assertions, the decisions of both legislative bodies are in furtherance of the objectives of the Enabling Act.
The record before the Court is replete with schematic designs, plans, photographs, technical studies and reports relative to the One Lincoln Street Project (hereinafter referred to generally as "the Project"). Considering such evidence in conjunction with the expert testimony offered at trial, it is clear that the Project bears a substantial relationship to the public welfare, which is chief among the purposes of the enabling statute. See Lanner at 228. A view of Locus and the surrounding area confirms testimony that the Project will serve to enhance and improve the present state of the site. Additionally, inasmuch as the massing and materials to be utilized in the design of the Project have been coordinated with those of the surrounding neighborhood, and with the adjacent Bedford Building in particular, the Project will retain the historic character of the area. Further, the Project will heighten development in an area of the City which is in a close and convenient proximity to public transportation and which is presently underutilized and underdeveloped. I thus find that these factors advance the purposes of the Enabling Act, specifically, "to conserve the value of land and buildings", "to encourage the most appropriate use of land throughout the city" and "to preserve and increase [the city's] amenities". Although, as a rule, such aesthetic considerations should only play an incidental or ancillary role in the determination of the validity of a zoning amendment, See Barney & Carey Co. v. Town of Milton, 324 Mass. 440 , 448 (1949), I find, in addition thereto, that the development process of the Project itself has, and will continue to, advance the public welfare in a variety of other ways. First, the Project stems from ongoing interaction and communication by and between members of minority communities, surrounding neighborhoods and abutters, the city, BRA and the Development Team, as well as their agents and representatives. By collecting and implementing the input of so many diverse groups, the Project clearly incorporates the public interest and furthers the general welfare. Additionally, throughout the construction phases of the Project, and into the ultimate opening of One Lincoln Street, countless employment opportunities will arise. Further, the City will derive significant tax revenues upon the building's opening and commencing operation.
The Project itself has been designed and redesigned so as to address concerns of interested parties in the areas of traffic impact, building design and shadow effects. Although it is elementary that any large scale development will raise concerns about traffic, parking, wind and the like, See Manning v. Boston Redevelopment Authority, 400 Mass. 444 , 453 (1987), the Development Team, over a period spanning approximately two (2) years, made many changes in the original Project design, all in response to these concerns. A review of these large and small scale design alterations indicates a willingness on the part of the Development Team to mitigate adverse impacts in these areas, so as to provide adequate light and air and to lessen congestion in the streets (i.e. the size of both the building and tower have been altered, sidewalks running along both sides of the street and pedestrian walkways are to be provided and new and efficient public parking facilities are to be constructed).
I further note that the Plaintiffs' contentions that the Project will imperil the value of the Bedford Building, and the land on which it sits, offers little persuasion on the issue of whether the Amendments should be annulled. Zoning amendments which, as here, are in accordance with the purposes of the Zoning Enabling Act, may be sustained even if their enactment may result in some hardship to certain landowners by depriving them of some beneficial use of their land or by adversely affecting the value of their property in some newly established zone. See Canteen Corporation at 292; Caires v. Building Commissioner of Hingham, 323 Mass. 589 , at 594 (1949).
Accordingly, it is the opinion of the Court that not only do the Amendments adopted by the Zoning Commission advance the general objects of the Boston Zoning Enabling Act, but they are consistent with the underlying purpose, goals and objectives of the subject Article 40, which include channeling growth away from congested areas and toward underutilized sites, permitting redevelopment which provides significant community benefits, utilizing exising transit centers and improving vehicular access to the City by establishing parking facilities near major commuter arteries (See Exhibit No. 8), and, for these reasons and all of the above, should be sustained.
2. The Amendments' Consistency with Sections 1, 3 and 40 of the code
The Plaintiffs further contend that the Zoning Commission exceeded its authority in adopting those Amendments to the Code which designate Locus as a PDA, inasmuch as the Amendments are inconsistent with Code Sections 1, 3 and 40.
As discussed above, Sections 3-lA and 40-8 of the Code set forth the procedure which the BRA must follow in establishing a Planned Development Area. Pursuant to these sections, the BRA is required to find that, on balance, weighing all of the benefits and burdens, the proposed Development Plan will not be injurious or otherwise detrimental to the public welfare. See Manning at 452-454. The Plaintiffs assert that, in adopting the BRA's ultimate finding that the benefits of the One Lincoln Street Project do outweigh its burdens, the Zoning Commission exceeded its authority. On the evidence before the Court, I decline to make such a finding.
The foregoing facts reveal that the BRA conducted an in-depth and exhaustive review of the One Lincoln Street Project, which culminated in a determination that, on balance, the benefits which the Project will bring to the community and the City as a whole will outweigh any burdens it may create. In particular, the BRA, made detailed findings as to the positive impacts of the Proiect (See Finding No. 30). Although the BRA did concede that, practically speaking, such a large scale development project is bound to carry with it some burdens, it found that these positive impacts, coupled with the mitigating measures incorporated into the Project, tip the scales sharply in favor the Project.
Contrary to the BRA's findings, however, the Plaintiffs assert that the overall benefits of the Project do not exceed its adverse impacts. Specifically, the Plaintiffs offered expert testimony regarding the Project's architectural design and its impact on traffic and historic resources. I decline to find that such evidence is persuasive in showing that, on balance, the Project's harms so far outweigh its benefits, that the Zoning Commission exceeded its authority in approving the Project. In fact, certain of the expert testimony offered by the Plaintiffs is in concurrence with the BRA's finding that, overall, the Project will serve to improve the present state of Locus. Accordingly, I find that the Zoning Commission acted within the scope of its authority in adopting the BRA's findings relative to the One Lincoln Street Project and that its decision must be upheld.
B. Count II of the Amended Complaint
The Court having found that the Zoning Commission did not exceed its authority in adopting the subject Amendments to the text and maps of the Code, the Plaintiffs seek alternative relief in the form of a declaration, pursuant to G.L.c. 240, §14A, that they are entitled, as of right under the Amendments, to the expanded height, floor area ratio and other use and dimensional provisions therof, so as to permit them to construct a building of up to 465 feet in height, with a floor area ratio of 14.0, on their property.
In the instant matter, the Deyelopment Team expended much time, money and effort in securing the approval of the BRA and, in turn, the Zoning Commission, relative to the designation of One Lincoln Street as a Planned Development Area. This lengthy and demanding PDA approval process was limited in scope to Locus, with only incidental consideration being accorded the Bedford Building. In fact, although the Bedford Building is located within the "Parcel-to-Parcel Linkage Area", it is not included within the One Lincoln Street PDA and, accordingly, may not enjoy the expanded use and dimensional regulations applicable thereto. To hold otherwise would yield the inequitable result of allowing the Plaintiffs to circumvent the PDA approval process, while at the same time deriving all of the benefits associated with an actual PDA designation. This is not to say, however, that the Plaintiffs cannot take advantage of their location within the Parcel-to-Parcel Linkage Area, should they wish to follow the appropriate procedures.
C. Count III of the Amended Complaint
By the final count of the Amended Complaint, the Plaintiff seeks a declaration, under G.L. c. 231A, §1, that, pursuant to the "Parcel-to-Parcel Linkage Program", construction and development at Parcel 18 in Roxbury must take place at least contemporaneously with construction and development at Locus. Notwithstanding the Land Court's questionable jurisdiction in entertaining this claim, I find no evidence in the record to substantiate the Plaintiffs' contentions. The Development Agreement (See Finding No. 20) requires "development" at Parcel 18 to commence prior to "development" at Locus. The Agreement is silent as to the timing of "construction" at the two sites. Accordingly, applying the terms of the Agreement to the present facts, it is clear that "development", in the broad sense of the word, has been commenced at Parcel 18 prior to "development" at Locus. The evidence illustrates that not only has a design been proposed and approved for Parcel 18, but the public approval process therefor has been completed as well. In addition, marketing and leasing activities are currently in progress.
For the above reasons, I find that the Plaintiffs' final claim for relief is without merit and must be dismissed. Further, in view of the findings and rulings made herein, I dismiss the Plaintiffs' claim for costs, including reasonable attorneys' fees.
In consideration of all of the foregoing, I rule in summary that the Boston Zoning Commission acted within the scope of its authority in adopting the subject Amendments to the text and maps of the Boston Zoning Code and, accordingly, its decision must be affirmed. I further rule that the Plaintiffs are not entitled to the expanded use and dimensional regulations of the One Lincoln Street PDA and that, contrary to the Plaintiffs' contentions, the "Parcel-to-Parcel Linkage Program" does not dictate that construction and development at Parcel 18 take place at least contemporaneously with construction and development at One Lincoln Street.
The Plaintiffs, the Defendants Metropolitan Structures, Columbia Plaza Associates and Metropolitan/Columbia Paza Venture, and the Defendant-Intervenor, have all filed requests for findings of fact and rulings of law, which I have considered. Certain of these requests are incorporated herein. I have taken no action with respect to the remainder, as I have made my own findings and rulings as to those facts and rules of law which I deem most pertinent hereto.
[Note 1] The term "floor area ratio" connotes the proportion which the square footage of the floors in a building bears to the land area on which the building sits.
[Note 2] The Defendants, Metropolitan Structures, Columbia Plaza Associates and Metropolitan/Columbia Plaza Venture, assert the defenses of bad faith and improper motive in their Answer to the Plaintiffs' Amended Complaint.
[Note 3] On January 31, 1989, these three entities formed a Massachusetts general partnership known as the Kingston Bedford Joint Venture (See Exhibit No. 24).