SARAH FARRINGTON, JOHN FARRINGTON, PETER LANG and KATHERINE LAPIERRE vs. CAMBRIDGE HISTORICAL COMMISSION; WILLIAM B. KING, BRUCE IRVING, M. WYLLIS BIBBINS, ROBERT G. CROCKER, CHANDRA HARRINGTON, FRANK SHIRLEY, JO M. SOLET, SHARY BERG, JOSEPH V. FERRARA and SUSANNAH BARTON TOBIN, as they are members or alternates of the CAMBRIDGE HISTORICAL COMMISSION; and LESLEY UNIVERSITY

Plaintiffs filed their unverified Complaint (the “Historical Commission Case”) with the Middlesex Superior Court (MICV 2011-00698) on March 4, 2011, pursuant to the provisions of G. L. c. 40C, § 12A, appealing a decision of Defendant Cambridge Historical Commission (the “Historical Commission”) which issued a Certificate of Appropriateness (the “Certificate”) to Defendant Lesley University (“Lesley”) relative to the moving of the North Prospect Congregational Church (the “Church”) to the back of an adjoining vacant lot, lowering the Church approximately five feet to ground level and removing its steeple, the construction of a building for the Art Institute of Boston (“AIB”) on the former Church site and connecting the new building (the “AIB Building”) to the Church by a glass atrium (the “Glass Connector”) (collectively, the “Project”). Both Lesley and the Historical Commission filed their Answers on March 28, 2011. By Order dated March 31, 2011, this case was transferred to the Permit Session of the Land Court (11 PS 448568). A case management conference was held on June 29, 2011.

On April 5, 2011, this court issued a decision in a related case, Farrington v. City of Cambridge, 09 MISC 406520, which held that (1) the City of Cambridge (the “City”) did not engage in spot zoning by enacting a zoning amendment (the “Zoning Amendment”) that extended the Business C District to include the Church Lots (defined infra) and created the Lesley Porter Overlay District (the “LP Overlay District”); (2) the Zoning Amendment did not constitute illegal contract zoning; (3) the Zoning Amendment did not violate the City’s Institutional Overlay District Regulations; (4) the Zoning Amendment did not violate the City’s Massachusetts Avenue Overlay District Regulations and the City did not improperly use the overlay district procedure in enacting the Zoning Amendment; (5) the legislative act permitting the transfer of gross floor area (“GFA”) amongst lots permissibly amends, and does not violate, the Cambridge Zoning Ordinance (the “Ordinance”); and (6) there were no procedural defects in adopting the Zoning Amendment. [Note 1]

Plaintiffs filed their unverified Complaint (the “Planning Board Case”) with the Middlesex Superior Court (MICV2011-01510) on May 3, 2011, appealing pursuant to G. L. c. 40A, § 17, a decision of Defendant Cambridge Planning Board (the “Planning Board”) that granted special permits to Lesley relative to the Project. Lesley filed its Answer on May 20, 2011. By Order dated June 13, 2011, this case was transferred to the Permit Session of the Land Court (11 PS 453301). A case management conference was held on November 1, 2011.

The Historical Commission and Lesley filed their Joint Motion for Summary Judgment in the Historical Commission Case on September 30, 2011, together with supporting memorandum and Statement of Facts. Plaintiffs filed their Motion for Summary Judgment in the Historical Commission Case on October 17, 2011, together with supporting memorandum, and Affidavits of Sarah Farrington, Peter Lang and Thomas Bracken, Esq. On November 3, 2011, Plaintiffs filed an opposition to Defendants’ Motion for Summary Judgment and Lesley and the Historical Commission filed a joint Opposition to Plaintiffs’ Motion for Summary Judgment. On November 22, 2011, the parties filed their Replies.

Lesley and the Planning Board filed their Motion for Summary Judgment in the Planning Board Case on December 12, 2011, together with supporting memorandum and Statement of Facts. On January 9, 2012, Plaintiffs filed their Motion for Summary Judgment in the Planning Board Case, together with supporting memorandum and Supplemental Affidavit of Thomas Bracken, Esq. On the same day, Lesley and the Planning Board filed their Opposition to Plaintiffs’ Motion for Summary Judgment, together with Affidavit of Michael K. Murray, Esq. On January 23, 2012, Plaintiffs filed their Response to the Opposition, together with the Third Declaration of Simeon Bruner. On the same day, Lesley and the Planning Board filed their Reply. A hearing was held on all motions in both cases on January 27, 2012, and the matter was taken under advisement.

Summary judgment is appropriate when there are no genuine issues of material fact and 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).

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

1. In 2006, Lesley purchased property located at 1797-1803 Massachusetts Avenue (the “Church Lots”), containing 28,070 square feet. The Church Lots comprise a parcel containing the Church, and a vacant parcel used as a playground for the Agassiz Pre-School located in the lower level of the Church. Lesley merged with AIB in 1998 and desires to move AIB, currently located in Kenmore Square in Boston, Massachusetts, to the Church Lots.

2. The Church Lots are located within the Business C District, but had previously been located within the Residence B District. On June 22, 2009, the City Council voted to adopt the Zoning Amendment, which extended the Business C District to encompass the Church Lots, allowed Lesley to transfer GFA from its other properties to the Church Lots, and created the LP Overlay District, which includes the Church Lots and properties adjacent to the Church Lots owned by Lesley.

3. Plaintiffs Sarah Farrington and John Farrington own property located at 20 and 22 Roseland Street, Cambridge, Massachusetts, and Plaintiffs Peter Lang owns and Katherine Lapierre own and reside at property located at One Frost Terrace, Cambridge Massachusetts. All these properties are located in the Residence B District and abut the Business C District and the LP Overlay District.

4. On June 10, 2009, the Historical Commission issued its Final Landmark Designation Study Report recommending that the Church be designated as a landmark under the Cambridge Landmark Ordinance (the “Landmark Study”). [Note 2] On June 22, 2009, the City Council voted to accept the Cambridge Historical Commission’s recommendation (the “Landmark Designation Order”), stating that “[t]his designation is justified by the important architectural and historical associations the [Church] embodies as one of the seven extant antebellum churches in Cambridge, the only extant Greek Revival church in the city and the only remaining church in Cambridge designed by architect Isaac Melvin.” The Church is not located in a historic district.

5. The Landmark Designation Order stated that “the issuance of a Certificate of Appropriateness [] shall be required before any construction activity can take place within the designated premises or any action can be taken affecting the appearance of the premises, that would in either case be visible from a public way.” The Landmark Designation Order also stated that “[in] making determinations, the [Historical] Commission shall be guided by the terms of the [Landmark Study], by Section VIII, Standards of Criteria of [the Landmark Study], and by applicable sections of Chapter 2.78, Article III, of the Cambridge Municipal Code [(the “Cambridge Code”)].”

6. The Landmark Study noted that Lesley’s proposal for the Church Lots, “presented to the Historical Commission in May 2008 for the purpose of seeking initial design feedback,” included demolishing the 1872 addition [(the “1872 Addition”)], relocating the church from the corner of Roseland Street to the front of the southern parcel, Lot 18, and lowering the ground floor to approximately 5’ above sidewalk grade. A new three to five story building would be built at the corner of Roseland Street with another two levels below grade, and a sunken, glass-enclosed courtyard between the old and new buildings.

7. In addition to general standards and criteria for the treatment of landmarks, the Landmark Study suggests review guidelines for site development, including relocation, partial demolition and new construction, and alterations, including the Church’s spire.

8. The Landmark Study’s guidelines for relocation state that:

Proposals to move the church should be evaluated in terms of a) the significance of the building on its current site and b) aspects of the development proposal that may enhance the building and/or provide significant public benefit. Relocation of the church, if permitted, should preserve and preferably enhance the current public view of the front and sides of the original structure from north and south on Massachusetts Avenue and from Arlington Street. The first priority would be to maintain the church in its present position. The second priority would be to maintain the church at the corner of Massachusetts Avenue and Roseland Street. In this case, relocation should be restricted to moving the church closer to Massachusetts Avenue and lowering its foundation in proportion to its forward movement. The church should not be lowered below its original height above grade (approximately five feet). Other possible sites should be evaluated in the context of these priorities.

If the church is relocated, an appropriate setback, such as the average setback of the front wall planes of the adjoining buildings at 1791 and 1815 Massachusetts Avenue, should be maintained.

9. The Landmark Study’s guidelines for partial demolition state that:

[Lesley has] proposed removing the 1872 and 1899 additions to return the church to its original massing. While both additions represent the growth and vitality of the congregation in the 19th century, the 1899 addition [(the “1899 Addition”)] could be considered less significant. The 1872 [A]ddition is not only historically significant but architecturally compatible with the original building to a degree that was exceptional for the period. Proposals to remove the additions should be evaluated in terms of a) the intrinsic significance of the additions themselves and b) aspects of the development proposal that may enhance the remaining building and/or provide significant public benefit.

10. The Landmark Study’s guidelines for new construction state that:

Further development on [the Church Lots] should not have substantial adverse impacts on the church, wherever it is located. An addition or a new building should be sensitive to the siting of the church, both from historical and urban planning perspectives, and should preserve the public views of the portico, steeple, and forward bays of the church. The design should be sympathetic in massing and materials, while being clearly delineated in style. Points of intersection of the historic church and a new building should be minimal and well removed from the front portico. The setback of a new building should be guided by the need to maintain sightlines of the historic building from public ways; an appropriate distance might be the average setback of the front wall planes of the adjoining buildings at 1791 and 1815 Massachusetts Avenue.

11. The Landmark Study’s guidelines for the Church’s spire state that “[t]he 1964 spire, atop the lower portion of the church’s original steeple, is not compatible in proportion, design, or sculptural effect with the rest of the building. Restoration of the original steeple, or the subsequent copper dome, would be considered appropriate.”

12. On February 14, 2011, the Historical Commission issued the Certificate, which approved the work described below and certified that said work was not “incongruous to the historic aspects or architectural character of the building or district”:

13. The Certificate stated that “work is to be carried out as indicated in the plan, elevation, and sections drawings by Bruner/Cott Architects and Planners titled “Cambridge Historical Commission Lesley AIB Project Update,” and dated January 12, 2011 except as superseded or clarified by supplemental drawing sheets submitted on February 3, 2011.” The Certificate also stated that it was granted subject to “[s]taff review and approval of construction drawings, materials samples, and construction details of the new building and connector.”

14. In applying for the Certificate, Lesley submitted a substantial number of plans, drawings, diagrams and renderings (all uncontested) for the relocation of the Church and the construction of the AIB Building, all of which are part of the record. Lesley also submitted as part of the record, an unchallenged declaration from its architect, Simeon Brunner, (“Brunner”) dated September 29, 2011 (the “First Brunner Declaration”).

15. The First Brunner Declaration and the supporting materials state the following about Lesley’s plans for the Church Lots: the AIB Building combined with the Church will be approximately 74,500 of GFA; the Church would be moved closer to Massachusetts Avenue and lowered as close as possible to its original height above grade; the Church’s current steeple and spire would be replaced with a design replicating the Church’s original steeple and copper dome; the 1872 Addition would be preserved and visible through the glass connector while the 1899 Addition would be removed; the AIB Building would be clad in terracotta tile similar to the size and shape of the Church’s clapboards but delineated in style because it would be assembled in a contemporary way; Church would be moved closer to the street but that the AIB Building would be set back from the street edge with both steps designed to ensure the Church’s prominence; and the AIB Building would adjoin the Church through the Glass Connector wall removed from the front portico that would allow views of the Church’s side.

16. On December 20, 2010, pursuant to Section 10.40 of the Ordinance, Lesley applied for three special permits (the “Special Permits”) for the AIB Building based on §§ 19.20 (general project review), 20.504.1 (increased floor area ratio) and 20.504.4 (waiver for parking and loading requirements) of the Ordinance. Lesley’s submissions to the Planning Board included a statement on materials disposal:

Lesley University is committed to meeting all federal, state and local hazardous waste management regulations and has developed and implemented numerous Environmental Health and Safety (EHS) programs to achieve this objective. Instructors and AIB staff receive targeted hazardous materials training and the University has instituted numerous policies, practices, and methods to prevent hazardous material discharges to the environment including: instructing faculty, staff, and students on Lesley University’s environmental discharge prohibition; using wastewater pretreatment systems in the Fine Arts Department; posting signs at sinks to alert and remind students of the University’s sewer discharge prohibition; use of unplumbed sinks and basins to collect hazardous materials generated by equipment cleaning; cleaning materials are collected and appropriately managed as waste; and other strategies.

[. . .]

[AIB] also has a Massachusetts Water Resources Authority (MWRA) General Permit fro Low Flow and Low Pollutant Dischargers. Although this permit allows AIB to discharge small quantities of chemicals to the MWRA systems, AIB has instituted policies and practices to treat, limit, and otherwise prevent discharge of hazardous materials to the sewer.

17. On March 1, 2011, the Planning Board granted the Special Permits with conditions. The Special Permits stated that “[the AIB Building] is consistent with the Urban Design Objectives set forth in Section 19.30.” With regard to § 19.33, the Special Permits stated the following: New air handling systems will be placed on the roof behind a four foot high parapet and away from roof edges. Rooftop units and fans are primarily located on the taller four story building and not on the church structure. The mechanical system design will take advantage of the existing mechanical infrastructure located within and on the roof of the University Hall building. There will also be a mechanical room in the basement of the new building which will house equipment. The fans and stacks on [the AIB Building] are clustered together where appropriate and are located on the roof of the taller four-story building. Screening to minimize impact on the residential neighborhood is provided through equipment location and the height of the parapet.

18. The Special Permits stated that Lesley’s application conformed to the required criteria for special permits in § 20.500, including the following provisions:

20.505.3 Minimize adverse impacts on abutting low-density housing

The [AIB Building] will be 30 feet along its residential edge. The building is also in accordance with the 20-foot setback requirements perpendicular to Roseland Street and with the transitional and height requirements of Section 5.40. It is intended that landscaping and fencing will be designed with input from abutters.

20.505.4 Preserve historic structures

The landmarked church will be restored in accordance with the requirements of [the Certificate].

20.505.9 Scale of new construction to be consistent with existing residential structures

The [AIB Building] does not contain a continuous building wall along its residential edge but rather is broken in to a series of planes with a four-foot variation. The building will be 30 feet along its residential edge.

20.505.10 Maintain a reasonable level of privacy for abutters

The Board finds that the proposed location and size of windows and screening elements is satisfactory. The intention of the proposed floor plans is to locate uses that have minimal typical evening or weekend uses along portions of the building most proximate to existing residential uses. The translucent wall system is used on the Arts Commons wall where it abuts the residential neighborhood which will screen most of the light emanating from the building.

19. Among the conditions to the Special Permits were the following:

20. In the Planning Board Case, Lesley submitted plans, diagrams, drawings and renderings (all unchallenged), along with an additional unchallenged declaration from Brunner dated December 9, 2012 (the “Second Brunner Declaration”). The Second Brunner Declaration and the supporting materials state the following about the Project:

(a) The AIB Building will be fifty-five feet at its highest point but will drop to thirty-three feet near the residential edge, which is five feet lower than what the Ordinance allows within fifty feet of a residential district; [Note 4]

(b) The Project conforms to GFA limitations for the LP Overlay District; [Note 5]

(c) The setback along the residential edge will be increased from 8.2 feet to twenty feet as required in the LP Overlay District; [Note 6]

(d) Lesley’s traffic study stated that there would be no significant traffic impacts from the Project;

(e) Lesley conducted a shadow study that found that shadow impacts of the Project would be minimal;

(f) Administrative and faculty offices will be placed along the rear of the building to create a daytime program along the residential edge;

(g) Lesley plans to have an open space to lot area ratio of thirty percent even though the Ordinance requires a ratio of ten percent; [Note 7]

(h) A report by Lesley’s noise consultants does not state that the proposed rooftop mechanicals will violate the City’s noise ordinance but does propose general noise mitigation measures for rooftop mechanicals;

(i) Although Lesley may remove two trees from the residential edge, Lesley plans to plant approximately five new trees on the residential edge and create an eight-foot tall fence on the residential edge; and

(j) The Glass Connector will contain some transparent glass, but translucent glass will cover the clear majority of the Glass Connector, particularly the portion that can be seen above the eight-foot fence.

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With respect to the Historical Commission Case, Plaintiffs argue that the Certificate violates the Landmark Study, as well as the criteria established in the Ordinance and unlawfully rescinds the Landmark Designation Order and allows institutional buildings in a residence district. The Historical Commission and Lesley argue that Plaintiffs lack standing to pursue the action and that Plaintiffs’ arguments fail on their merits.

In the Planning Board Case, Plaintiffs argue that the Project should not have been granted special permits because it violates several sections of the Ordinance, including the Zoning Amendment, which will diminish the Church’s historic and architectural significance and cause adverse impacts in the abutting residential neighborhood. The Planning Board and Lesley argue that Lesley complies with these sections of the Ordinance and that the Planning Board is entitled to significant discretion in this regard. I shall address each case in turn.

A. The Historical Commission Case

1. Standing

Under Chapter 2.78.210 of the Cambridge Code “no structure designated a landmark . . . shall be constructed or altered in any way that affects exterior architectural features unless the Historical Commission . . . shall first have issued a certificate of appropriateness . . . with respect to such construction or alteration.” Therefore, Lesley was required to obtain the Certificate from the Historical Commission prior to beginning work on the Project.

Defendants argue that Plaintiffs lack standing to appeal the Historical Commission’s decision to issue the Certificate because the Church Lots are not in a historic district and G. L. c. 40C applies only to historical commissions’ actions regarding properties in historic districts. Defendants also argue that Plaintiffs lack standing because the Cambridge Code limits appeals of the Historical Commission’s decision to grant a certificate of appropriateness to applicants for such certificates.

Plaintiffs argue that the scope of the appeal procedure for historical commissions’ decisions outlined in G. L. c. 40C, § 12A is not limited by G. L. c. 40C containing provisions applicable to historical districts. Plaintiffs also dispute Defendants’ interpretation of the appeal procedure outlined in the Cambridge Code and argue that it applies to anyone aggrieved by a decision of the Historical Commission.

The parties agree that the Church Lots are not in a historic district. G. L. c. 40C, § 12A does not include language limiting it to properties in historic districts and provides that “[a]ny person aggrieved by a determination of the [historical] commission . . . may . . . appeal to the superior court . . . .” (emphasis added). [Note 8] G. L. c. 40C is titled the Historic Districts Act, which would suggest that it applies only to historic districts. G. L. c. 40C, however, does not state that it applies only to properties within historic districts, but all provisions pertain only to properties in historic districts; for example, “no building or structure within an historic district shall be constructed or altered in any way . . . unless the [historical] commission shall have first issued a certificate of appropriateness . . . with respect to such construction or alteration.” G. L. c. 40C, § 6 (emphasis added). Therefore, it would appear that G. L. c. 40C is limited to properties located in historic districts.

The parties agree that the relevant section of the Cambridge Code that outlines the appeal procedure for a decision of the Historical Commission is Chapter 2.78.240, which provides as follows: Any applicant aggrieved by a determination of a neighborhood conservation district commission or ten registered voters of the City opposing a determination under this article may appeal to the Historical Commission . . . . The Historical Commission may overrule the determination and return it for reconsideration consistent with that finding. If the applicant is aggrieved by the determination of the Historical Commission, or if action is not taken by the Historical Commission within thirty days of filing for review, the applicant may appeal to the superior court . . . . The superior court may reverse a determination if it is not supported by substantial evidence in the record. In all other respects, the appeal shall be made in the same manner as provided under G. L. c. 40C, § 12A.

The parties, however, misinterpret the scope of Chapter 2.78.240. The first sentence of Chapter 2.78.240 limits appeals to the Historical Commission only to applicants aggrieved by determinations of a neighborhood conservation district commission or ten voters opposing a determination by such a commission; it does not include the Historical Commission’s own decisions, which is at issue here. The third sentence allows appeals to superior court only of the Historical Commission’s decision on an appeal of a decision described in the first sentence, i.e. a decision of a neighborhood conservation district commission, and not any other decision of the Historical Commission. This is evidenced by the use of “the determination of the Historical Commission” rather than the more general “a” determination.

The sentence stating that “in all other aspects, the appeal should be made . . . as provided under G. L. c. 40C, § 12A” is somewhat confusing because it is unclear what is meant by “all other aspects.” Plaintiffs argue that “all other aspects” means that any type of appeal not described in the preceding sentences falls under G. L. c. 40A, § 12A; however, the sentence refers to “the appeal” rather than “an appeal,” which would suggest that it refers to appeals discussed in previous sentences and not to other types of appeals. Furthermore, because the previous sentence states the standard of review for the superior court, “all other aspects” could refer to procedural aspects of the appeal aside from the standard of review; however, there is no clear statement as to the meaning of the word “aspects.” As a result, it is unclear whether G. L. c. 40C and Chapter 2.78.240 of the Cambridge Code confer standing upon Plaintiffs.

The Historical Commission case, however, was transferred to the Permit Session of the Land Court. Pursuant to the permit session statute, G. L. c. 185, § 3A, this court has jurisdiction over actions

based on or arising out of the appeal of any municipal, regional or state permit, order, certificate or approval, or the denial thereof, concerning the use or development of real property, including without limitation appeals of such permits, orders, certificates or approvals or denials thereof, arising under or based on or relating to . . . chapters 30A, 40A to 40C, inclusive . . . ; or any local bylaw or ordinance.

The underlying property must also involve the “construction or alteration of 25,000 square feet or more of [GFA].” The Certificate is a municipal certificate and the new structure, the combined AIB Building and the Church, will be approximately 74,500 square feet of GFA. Therefore, I find that pursuant to G L. c. 185, § 3A, Plaintiffs have standing in the Historical Commission case.

2. Merits

The standard of review for a historical commission’s decision is analogous to the standard applied to ordinary special permits. See Warner v. Lexington Historical Districts Comm’n, 64 Mass. App. Ct. 78 , 82 (2005) (quoting Gumley v. Bd. of Selectmen of Nantucket, 371 Mass. 718 , 719 (1977)). Under that standard of a review, a decision cannot be disturbed “‘unless it is based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary.’” Gumley, 371 Mass at 723 (quoting MacGibbon v. Bd. of Appeal of Duxbury, 369 Mass. 512 , 515-16 (1976)). The court must first determine whether the reasons given for the decision are facially “insufficient in law to warrant the commission’s determination.” Marr v. Back Bay Architectural Comm’n, 23 Mass. App. Ct. 679 , 683 (1987). If the decision appears insufficient in law, and therefore based on a legally untenable ground, the decision should be annulled. Id. If the decision appears based on legally tenable ground, the court must determine whether the reasons given for the decision are “warranted by the evidence” by taking evidence and making findings of fact similar to an appeal of a special permit. Id. at 684.

i. The Landmark Study Guidelines

Plaintiffs argue that by granting the Certificate and allowing Lesley to relocate and lower the Church and construct a new building, the Historical Commission violated the guidelines in the Landmark Study. Plaintiffs argue that the Certificate is contrary to the Landmark Study, which did not contemplate the Church being moved. Plaintiffs argue that the size of the AIB Building and the relocation and lowering of the Church are all contrary to the Landmark Study, which stated that “future development of Lot 18 should not have substantial impacts on the Church” and stated that existing sightlines and views of the Church should be maintained. Plaintiffs also argue that removing the 1899 additions and “obscuring” the 1872 additions by a glass connector are contrary to the Landmark Study’s finding that these structures are historically significant. Plaintiffs argue that views of the Church’s spire will be eliminated because Lesley plans to remove it.

Defendants first point out that the Landmark Study does not legally bind the Historical Commission’s authority in acting on the application for the Certificate and that the Historical Commission could properly issue the Certificate even if it were inconsistent with the Landmark Study. Defendants also argue that the Landmark Study did not recommend an absolute prohibition against moving the Church, but provided guidelines for the Historical Commission to follow in reviewing any such move. Finally, Defendants argue that views of the Church will not be diminished and will actually be enhanced by relocating and lowering the Church.

First, Plaintiffs’ arguments that the Historical Commission violated the Landmark Study’s guidelines are not persuasive. Defendants are correct that nothing in the Landmark Study appears to bind or limit the Historical Commission’s authority to issue the Certificate; in fact, the Landmark Designation Order states that in issuing the Certificate, the Historical Commission “shall be guided by the terms of the [Landmark Study]” (emphasis added). As a result, it is difficult to see how the Historical Commission could have “violated” the Landmark Study when it was instructed only to use the Landmark Study as a guide in issuing the Certificate.

In any event, there is ample evidence that the Certificate is not inconsistent with the Landmark Study. Although the Landmark Study stated a preference for maintaining the Church in its current position, the Landmark Study did not prohibit or oppose relocating the Church and stated that relocation proposals “should be evaluated in terms of a) the significance of the building on its current site and b) aspects of the development proposal that may enhance the building and/or provide significant public benefit.” [Note 9] The Landmark Study also stated that any allowed relocation should “preserve and preferably enhance the current public view of the front and sides of the original structure from north and south Massachusetts Avenue and from Arlington Street” and suggested a potentially appropriate setback. [Note 10]

Second, Plaintiffs’ arguments that the Landmark Study prohibits the Church from being lowered and that views of the Church’s spire will be reduced because Lesley plans to remove it are not persuasive. The Landmark Study stated that the two priorities for the Church would be to keep it in the same location or to relocate it to the corner of Massachusetts Avenue and Roseland Street, but that “other possible sites should be evaluated in the context of these priorities.” If the Church were relocated to the aforementioned location, the Landmark Study stated that the Church should be moved closer to Massachusetts Avenue and its foundation lowered in proportion to its forward movement but not below its original height above grade of approximately five feet. Although the AIB Building will be located at the corner of Massachusetts Avenue and Roseland Street, the Church is being relocated such that the AIB Building is the only structure between the Church and said corner, and the two such buildings are connected. Moreover, Lesley’s plans are in line with the Landmark Study Report because Lesley will move the Church closer to Massachusetts Avenue and lower the Church to its original grade. Additionally, The Landmark Study specifically stated that the Church’s current spire was not compatible with the rest of the building and restoring the Church’s original steeple would be appropriate. Restoring the Church’s original steeple is exactly what Lesley intends to do.

Third, the record contains many drawings, diagrams and renderings of the Church in its relocated position, all submitted by Defendants. Plaintiffs neither challenge the depictions on said materials nor do they offer their own drawings, diagrams and renderings of the Church in its relocated position. [Note 11] Instead Plaintiffs argue that relocating the Church and the AIB Building’s height mean that views of the Church will be obstructed or blocked and that the new AIB Building is incongruous with the Church in size and materials.

The drawings, diagrams and renderings in the record all show that relocating the Church and constructing the AIB Building as Lesley has proposed will not block views of the Church but will instead preserve views of the Church. Although the AIB Building may restrict views of the main body of the Church from the north side of Massachusetts Avenue, the steeple would still be visible; furthermore, views of the Church from Arlington Street and the south side of Massachusetts Avenue would remain unobstructed. Additionally, the record shows that the AIB Building will be slightly taller than the Church’s main body and, thus, it will not tower over the Church; views of the portico steeple and forward bays of the church will all be preserved as the Landmark Study recommended. Although the Glass Connector is located in the rear, the majority of the AIB Building will be a box-like structure in cream-colored terracotta tile that is similar in color and pattern to the Church’s clapboard siding and, thus, consistent with the Landmark Study’s statement that “design should be sympathetic in massing and materials, while being clearly delineated in style.” Moreover, the AIB Building will be connected only in the rear leaving a substantial open space near the front of the Church, which is consistent with the Landmark Study’s guideline that “[p]oints of intersection of the [Church] and [the AIB Building] should be minimal and well removed from the front portico.”

Finally, Plaintiffs argue that Lesley’s plan to remove the 1899 Addition and obscure the 1872 Addition in the glass connector building are contrary to the Landmark Study, which found that both additions were historically significant. Similar to relocating the Church, the Landmark Study did not prohibit the removal of the 1872 and 1899 Additions. The Landmark Study stated only that “[p]roposals to remove the additions should be evaluated in terms of a) the intrinsic significance of the additions themselves and b) aspects of the development proposal that may enhance the remaining building and/or provide significant public benefit” and that the 1899 Addition was less significant than the 1872 Addition, which was “architecturally compatible with the original building to a degree that was exceptional for the period.” Lesley’s plan to remove the 1899 Addition and preserve the 1872 Addition is not inconsistent with the Landmark Study because removing the less significant 1899 Addition will not affect significantly the Church’s historical nature and the 1872 Addition will be preserved and be visible through the glass connector that allows views of the Church’s side.

Therefore, I find that the Landmark Study did not bind or limit the Historical Commission’s authority in issuing the Certificate and that in any event, the Certificate was not inconsistent with the Landmark Study’s guidelines.

ii. Cambridge Code 2.78.220

Plaintiffs argue that the Certificate is invalid because it fails to address the requirements of Chapter 2.78.220 of the Cambridge Code, which states that the Historical Commission

shall consider, among other things, the historic and architectural value and significance of the site or structure, the general design, arrangement, texture and material of the features involved, and the relation of such features to similar features of structures in the surrounding area. In the case of new construction or additions to existing structures a commission shall consider the appropriateness of the size and shape of the structure both in relation to the land area upon which the structure is situated and to structures in the vicinity, and a Commission may in appropriate cases impose dimensional and setback requirements in addition to those required by applicable provision of the zoning ordinance.

Specifically, Plaintiffs argue that that the Historical Commission failed to make a finding, let alone mention, that Lesley’s plans were consistent with the Church’s historic and architectural value or that new construction was appropriate in size and shape in relation to the Church. Plaintiffs argue that the Certificate’s statement “the work described below is not incongruous to the historic aspects or architectural character of the building or district” is not a finding that the criteria of Chapter 2.78.220 have been met. Plaintiffs argue that the Landmark Study clearly shows that relocating the Church and constructing the AIB Building are incongruous with the Church’s historical and architectural value for many of the same arguments discussed earlier, including that the 1872 Addition will be obscured by the glass connector, the relocated and lowered Church will lose its prominence and views of the Church will be reduced by the AIB Building, which is too large and tall to coexist with the Church.

Plaintiffs’ arguments are again unpersuasive because, as Defendants point out, there is no authority in Chapter 2.78.220 or anywhere else requiring the Historical Commission to make findings, let alone state findings in the Certificate itself. In fact, Chapter 2.78.220 is titled “Factors considered by Commissions.” (emphasis added). Even though the standard of review for a historical commission’s decision may be similar to that for ordinary special permits, an analogous standard of review cannot create a need for findings. Under that standard of review, a decision is annulled if it is “insufficient in law” or if it is based on legally tenable ground but the reasons given for the decision are not warranted by the evidence. See Marr v. Back Bay Architectural Comm’n, 23 Mass. App. Ct. 679 , 683-84 (1987). In this case, the record clearly warrants granting the Certificate. In conducting the Landmark Study and subsequently recommending the Church for landmark status, the Historical Commission fully analyzed and recognized the Church’s historical and architectural value. The Historical Commission received a substantial amount of documents (all of which are part of the record) regarding the relocation of the Church and the size, shape and materials of the AIB Building. Furthermore, as established in the previous section on the Landmark Study’s guidelines, the Certificate is consistent with the very study that recognized the Church’s historical and architectural significance. Plaintiffs provide no evidence that the Historical Commission failed to consider any of the aforementioned factors. As a result, I find that the Certificate does not fail to address the considerations in Chapter 2.78.220. [Note 12]

iii. Other Arguments

Plaintiffs argue that the Certificate violates Sections 4.50 and 4.55 of the Ordinance, which cover the Harvard-Radcliffe Lesley Overlay District and provide that residential neighborhoods should be protected from unlimited institutional expansion, such that buildings for educational uses are not permitted in residential districts. Plaintiffs argue that Lesley should not be allowed to circumvent these provisions by reclassifying the Church Lots from a residential district to a business district. These provisions of the Ordinance no longer apply to the Church Lots because the Church Lots are no longer in a residential district and are governed by the provisions in the Zoning Amendment, which contemplate the Church being moved. This court has already upheld the Zoning Amendment’s validity and rejects the arguments to the contrary that Plaintiffs now make. Therefore, I find that the Certificate does not violate Sections 4.50 and 4.55 of the Ordinance.

Second, Plaintiffs argue that in allowing the Church to be moved and lowered and building a new structure that will block its views, the Historical Commission effectively rescinded or amended the Landmark Designation Order, an, action that only the City Council may take. See Cambridge Code § 2.78.180F. Plaintiffs argue that because the City Council never approved or rescinded the Landmark Designation Order, the Historical Commission’s decision allowing the Church to be moved and lowered has no effect. Plaintiffs appear to be arguing that the Certificate will somehow change the Church in a way that would alter its status as a landmark; however, nothing in the record indicates anything to that effect. In fact, the justifications put forth by the City Council for designating the Church as a landmark will not be affected by relocating the Church. [Note 13] As a result, I find that the Historical Commission did not effectively rescind or amend the Landmark Designation Order.

Therefore, I find that the Certificate is valid and that the Historical Commission’s action in issuing the Certificate was not arbitrary, capricious, an abuse of discretion or in excess of its authority. As a result of the foregoing, in the Historical Commission Case, I DENY Plaintiffs’ Motion for Summary Judgment and ALLOW Defendants’ Motion for Summary Judgment.

B. The Planning Board Case.

Plaintiffs argue that the Planning Board’s decision to grant the Special Permits violates several provisions of the Ordinance, specifically those that were enacted as part of the Zoning Amendment, as well as the general criteria for issuing special permits and the North Massachusetts Avenue Urban Design Guidelines Handbook (the “Guidelines Handbook”). Plaintiffs argue that the conditions attached to the Special Permits are unlawful because they impermissibly delegate the Planning Board’s authority to other municipal offices. Defendants argue that the Project complies with the aforementioned sections of the Ordinance, that the Project meets the general criteria for issuing special permits and that the conditions attached to the Special Permits were not unlawful. I shall address each issue in turn.

Under G.L. c. 40A, § 17, decisions of a special permit granting authority are given de novo review. Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 485 (1999); see also 39 Joy St. Condominium Ass’n v. Bd of Appeal of Boston, 426 Mass. 485 , 488 (1998); Bicknell Realty Co. v. Bd. of Appeal of Boston, 330 Mass. 676 , 679 (1953). Judicial review, however, is circumscribed in that a special permit granting authority’s decision “cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). “[T]he court finds the facts de novo and measures the legal sufficiency of the [board’s] decision against the court’s findings of fact rather than against those found by the board.” Tisbury Fuel Serv., Inc. v. Martha’s Vineyard Comm’n, 68 Mass. Ap. Ct. 773, 776 (quoting Green v. Bd. of Appeals of Provincetown, 26 Mass. App. Ct. 469 , 473 n. 6 (1988)). So long as “any reason on which the board can fairly be said to have relied has a basis in the trial judge's findings and is within the standards of the zoning by-law and The Zoning Enabling Act, the board’s action must be sustained regardless of other reasons which the board may have advanced.” S. Volpe & Co. v. Bd. of Appeals of Wareham, 4 Mass. App. Ct. 357 , 360 (1976).

1. Failure to Meet Ordinance Criteria.

Plaintiffs argue that the Special Permits violate Sections 20.505(3), 20.505(4), 20.505(9) and 20.505(10) of the Ordinance. Those provisions are found in Section 20.505 of the Ordinance and provide that:

In granting a Special Permit [in the Lesley-Porter Overlay District], in addition to the other criteria specified in Section 10.40, the Planning Board shall take into consideration the following and make appropriate findings related thereto:

[. . .]

3. Minimize adverse impacts on abutting low-density housing by appropriately designing and programming new structures’ location on the lot, massing, scale, use and operations.

4. Preserve, reuse and highlight historic structures as integral, publicly accessible parts of the overlay district.

[. . .]

9. Where proposed construction abuts existing residential development, special attention should be paid to proposed setbacks, location of open space features, and building design to ensure reasonable compatibility between the scale and extent of new construction and the scale and character of the existing pattern of residential development. Use of variable height and variable setback planes, reduction in the length of continuous building walls, amount of landscaping, etc. should be employed to achieve these objectives.

10. The Board shall consider the impact of the development on residential neighbors as it may affect privacy. Location and size of windows, screening elements, decks, entries and other aspect of the design shall be reviewed to maintain reasonable levels of privacy for abutters. The Board shall also consider the nature of the uses contained in the buildings constructed.

[. . . .]

i. § 20.505(3) of the Ordinance

Plaintiffs argue that the Special Permits do not satisfy § 20.505(3) because the AIB Building does not minimize adverse impacts on abutters for a number of reasons. Plaintiffs argue that the AIB Building, a four-story building with rooftops mechanicals, cannot be in scale with surrounding two and three story residences and that the two-story element of the AIB Building near residence lines is a token effort to comply with § 20.505(3). Plaintiffs also argue that their open views of the Church Lots will be blocked; their privacy will be diminished by the glass windows on the AIB Building’s rear wall, which will also lead to light pollution; the Project will overwhelm the surrounding area with pedestrian and vehicular traffic; and that rooftop mechanicals and a ground level transformer will cause excessive noise and violate the City’s noise ordinance. Plaintiffs argue that the Board failed to consider the issue of shadows and did not explicitly find that the AIB Building was in scale with surrounding buildings and found only that the shadow impacts would be mitigated by relocating the church and making the AIB Building shorter near the residential line. Plaintiffs acknowledge that the Planning Board found that the AIB Building meets height and setback requirement but argue that this does not show that the building is in scale with abutting housing. Plaintiffs argue that the Planning Board’s decision states that the AIB Building drops to two-story frontage of thirty feet near the residential edge but ignores the fact that the rest of the AIB Building is fifty-five feet tall. [Note 14]

Defendants argue that the record shows that the project does indeed mitigate adverse impacts on low-density housing, specifically that all height and setback requirements are satisfied, the AIB Building’s height drops to thirty-feet near the residential edge, landscaping with design input from abutters will minimize impacts, the Church will be moved closer to the ground, administrative and faculty offices will be placed along the rear of the building to create a daytime program along the residential edge and the Project conforms to GFA limitations for the LP Overlay District. Defendants also argue that the Planning Board has significant discretion under § 20.505 to determine whether a project has minimized adverse impacts on abutting housing. Finally, Defendants argue that none of the adverse impacts alleged by Plaintiffs will occur and that in any event, § 20.505(3) does not prohibit such impacts.

First, any insinuation by Plaintiffs that § 20.505 requires the Planning Board to specifically find that the Project minimizes adverse impacts on abutting housing is incorrect. Section 20.505 instead requires the Planning Board “take into consideration [whether the Project minimizes adverse impacts on abutting housing] . . . and make appropriate findings related thereto.” (emphasis added). Therefore, the Planning Board must only make findings that support such a conclusion. Second, the plain language of § 20.505(3) states that the Planning Board must consider whether a Project “minimizes” such adverse impacts; there is no requirement that these adverse impacts be eliminated. As a result, the Planning Board has discretion in determining whether the Project minimizes adverse impacts.

Despite alleging a myriad of adverse impacts, Plaintiffs fail to produce any evidence or studies to support their allegations and rely on speculation. Plaintiffs produced no studies or reports on traffic, shadows, noise or light to support their allegations of shadowing and excessive traffic, noise and light pollution. To the contrary, Lesley’s traffic study stated that there would be no significant traffic impacts from the Project and Lesley’s shadow study stated that shadow impacts would be minimal. Plaintiffs do not dispute the accuracy of any of these studies. Moreover, Plaintiffs alleged that Lesley’s noise consultant’s report states that the mechanicals will violate the City’s noise ordinance; however, the report says no such thing and only suggests mitigation measures for mechanicals.

The record shows that the Project minimizes adverse impacts. Although views of open space from areas of Plaintiffs’ property bordering the Church Lots will be diminished, the AIB Building’s height will be thirty feet at the residential edge, five feet lower than the maximum height allowed under the Ordinance. Furthermore, the setback along the east residential edge will be increased from 8.2 feet to twenty feet. Plaintiffs dispute none of this. Additionally, the record shows that Lesley does plan to locate offices toward the rear of the AIB Building to reduce the use of that portion of the building outside of daytime hours and Plaintiffs provide no evidence to the contrary. Furthermore, the AIB Building will be four stories tall at its highest and surrounding residences are two and three stories in height; Plaintiffs are hard-pressed to argue that the AIB Building is grossly out of proportion with surrounding residences. Although the AIB Building includes the Glass Connector, the record shows that it will be mostly clad in terracotta tile, which is similar to the Church’s clapboard siding.

In concluding that the Project would minimize adverse impacts on abutting housing, the Planning Board specifically found that the AIB Building would be lower in height along the residential edge, would satisfy the setback and height requirements and that landscaping and fencing would be designed with input from the abutters. The record evidences ample support for these findings and, therefore, I find that the Special Permits are not contrary to § 20.505(3) of the Ordinance.

ii. § 20.505(4) of the Ordinance

Plaintiffs argue that the Special Permits do not comply with § 20.505(4) of the ordinance because Lesley has failed to “preserve, reuse and highlight historic structures as integral, publicly accessible parts of the LP Overlay District.” Plaintiffs make the same arguments here as in the Historical Commission case, namely that lowering and relocating the Church and constructing the AIB Building will block or reduce views of the Church and diminish the Church’s prominence, all in violation of the Landmark Study. This court has already rejected Plaintiffs’ arguments in the Historical Commission case and established that the Certificate was actually in accord with the Landmark Study’s guidelines. Moreover, the Special Permits explicitly found that the Church would be restored according to the Certificate. As a result, I find that the Special Permits are not contrary to § 20.505(4) of the Ordinance.

iii. § 20.505(9) of the Ordinance

Plaintiffs argue that the Special Permits violate § 20.505(9) of the Ordinance because the AIB Building will not “ensure reasonable compatibility between the scale and extent of the new construction and the scale and character of the existing pattern of residential development.” Specifically, Plaintiffs argue that the building design, height, the Glass Connector and the rooftop mechanicals of the AIB Building are not compatible with the surrounding residences and that the AIB Building will eliminate views of open space from Plaintiffs’ properties. [Note 15] Plaintiffs argue that part of Lesley’s landscaping plan calls for removing trees that provide shade and screening and replacing them with new trees that will not mature for years and that the service drive of the AIB Building will be used for trucks, which would preclude any beneficial landscaping. [Note 16]

Defendants argue that Plaintiffs fail to introduce any evidence that the AIB Building is not reasonably compatible with the surrounding residences or that there will be a meaningful lack of open space. Defendants point out that the AIB Building complies with all setback and height requirements and will not have a continuous building wall and that Lesley will widen sidewalks and open the proposed arts plaza to the public. [Note 17] Defendants also argue that Plaintiffs’ claim that there is no meaningful open space is false because § 20.504(5) of the Ordinance requires an open space to lot area ratio of ten percent and Lesley’s plans have a ratio of over thirty percent.

The standard to be applied is whether the AIB Building is reasonably compatible with the surrounding residences, which does not require each individual aspect of the AIB Building to be compatible with the surrounding residences. Although an institutional building cannot be completely compatible with residences, the evidence outlined in previous sections shows that the record contains ample support for the conclusion that the AIB Building is reasonably compatible with surrounding residences. The AIB Building will be fifty-five feet tall at most but will be thirty feet tall at the residential edge, five feet lower than the maximum height allowed under the Ordinance, and the setback along the east residential edge will be increased from 8.2 feet to twenty feet. The AIB Building will be four stories tall at its highest and surrounding residences are two and three stories in height and, thus, the AIB Building is not grossly disproportionate to surrounding residences. Although the AIB Building includes the Glass Connector, the record shows that it will be mostly clad in terracotta tile, which is similar to the Church’s clapboard siding. Furthermore, Lesley contemplates using thirty percent of the Church Lots as open space, well in excess of the ten percent requirement.

In concluding that the Project would “ensure reasonable compatibility between the scale and extent of the new construction and the scale and character of the existing pattern of residential development,” the Planning Board specifically found that the AIB Building would not contain a continuous building wall along the residential edge but would be “broken into a series of planes with four-foot variations” and would be thirty feet along the residential edge. The record evidences ample support for these findings and, therefore, I find that the Special Permits are not contrary to § 20.505(9) of the Ordinance.

iv. § 20.505(10) of the Ordinance

Plaintiffs argue that the Special Permits are contrary to § 20.505(10) because they do not “maintain reasonable levels of privacy for abutters.” Plaintiffs argue that their privacy will be adversely affected by the combination of transparent and translucent glass in the Glass Connector and large bay windows on the rear of the AIB Building and a new doorway in the Church providing access to the rear of the lots. Plaintiffs argue that Lesley failed to propose screening to mitigate the loss of privacy from faculty and students in the AIB Building being able to look out on to Plaintiffs’ properties. Plaintiffs also argue that two large trees on their property that currently provide screening will be pruned to the property line, thereby eliminating any screening. [Note 18]

Defendants argue that Lesley’s submissions show that the Project maintains reasonable levels of privacy for abutters. Specifically, Lesley argues that the translucent glass on the Glass Connector will reduce light emanating on to Plaintiffs’ property, windows on the rear of the AIB Building will have coverings and lighting designs to reduce light emanating from the AIB Building, light sensors that turn off lights when not in use and new fencing and landscaping will all ensure reasonable levels of privacy.

Similar to other sections of the Ordinance, the standard imposed by § 20.505(10) is that the Project “maintain reasonable levels of privacy for abutters” (emphasis added). As a result, some amount of intrusion is acceptable. In addition to Defendants’ arguments above, the record provides substantial other evidence for the conclusion that reasonable levels of privacy will be maintained. Contrary to Plaintiffs’ assertion, Lesley has proposed screening elements. Although two trees may be removed, Lesley’s landscaping plan indicates that approximately five new trees will be planted and that an eight-foot tall fence will be built on the residential property line. The Glass Connector will contain some transparent glass but Lesley’s plans indicate that translucent glass will cover a clear majority of the Glass Connector. [Note 19] As stated before, Plaintiffs provide no light study or report to support their allegations. The record shows that Lesley plans to locate offices toward the rear of the AIB Building to reduce the use of that portion of the building outside of daytime hours, and Plaintiffs provide no evidence to the contrary.

In concluding that reasonable levels of privacy for abutters would be maintained, the Planning Board found that the proposed location and size of windows and screening elements was satisfactory, that Lesley intended to minimize evening and weekend use along the residential edge and that the translucent wall would screen most light emanating from the AIB Building. The record evidences ample support for these findings and, therefore, I find that the Special Permits are not contrary to § 20.505(10) of the Ordinance.

2. Urban Design Objectives

Section 19.25.2 of the Ordinance states that the Planning Board may grant a special permit only if it finds that a project is consistent with the Urban Design Objectives listed in §§ 19.30 - 19.37 of the Ordinance, that the Planning Board may be guided or make reference to “urban design guidelines . . . that may have been developed for specific areas of the city” and should apply the standards in a reasonable manner to “non-profit educational organizations in light of the special circumstances applicable to . . . educational activities.” Section 19.30 lists the Guidelines Handbook as one of the urban design guidelines developed for a specific area.

Plaintiffs argue that the Special Permits were issued contrary to the Guidelines Handbook. Plaintiffs point out that the Guidelines Handbook states that a strong residential presence would be important “to insure compatibility between the activities of [Massachusetts] Avenue and those of the neighborhood beyond,” that one goal is to “[e]ncourage any new development to be compatible in scale and character with abutting residential neighborhoods” and that a strategy to maintain the area “includes the use of small scale architectural elements such as balconies, porches and roof forms to maintain compatibility with the neighborhood behind . . . .” Plaintiffs also add that the Guidelines Handbook includes drawings of small-scale houses. Plaintiffs essentially restate their previous arguments that the new AIB Building is not compatible with surrounding residences based on its size, character and building materials. Plaintiffs also argue that the Special Permits violate one of the seven Urban Design Objectives, namely § 19.33 of the Ordinance, because they allow for rooftop mechanicals on the AIB Building, which § 19.33 prohibits. Plaintiffs argue that the Planning Board failed to explain how clustering mechanicals would mitigate noise and that an electrical transformer owned by NSTAR and located at-grade outdoors is also contrary to § 19.33. [Note 20]

Defendants argue that the Urban Design Objectives are meant only to serve as considerations through which a project can be evaluated, that the Guidelines Handbook is a guide and not a rigid standard, and that the provisions of the Ordinance relating to the LP Overlay District should govern. Defendants argue that the AIB Building is not inconsistent with the Guidelines Handbook and is compatible in scale and character to the neighborhood for the same reasons offered previously in response to Plaintiffs’ arguments to the contrary. Defendants also argue that the Ordinance does not prohibit rooftop mechanicals and that the goal of § 19.33 is to reduce environmental impacts, for which Lesley has taken ample measures relating to the mechanicals.

Contrary to Plaintiffs’ arguments that Lesley has violated the Urban Design Objectives, the Ordinance is clear that the Urban Design Objectives are not rigid criteria:

The Urban Design Objectives establish more general guidelines which . . . can assist property owners as they consider alternate uses for their property. Where a special permit is required from the Planning Board, the Urban Design Objectives . . . serve as considerations through which the merits of a proposal are judged.

[ . . . ]

In reviewing any development proposal of a nonprofit educational or religious organization, the reviewing body shall apply the standards herein contained in a reasonable manner in light of the special circumstances applicable to nonprofit religious and educational activities. Ordinance, § 19.10 (emphasis added).

The Ordinance is also clear that the Urban Design Objectives are subject to variations and need not all be met:

It is intended that proponents of projects, and city staff, the Planning Board and the general public, where public review or approval is required, should be open to creative variations from the detailed provisions presented in this Section as long as the core values expressed are being served. A project need not meet all the objectives of this Section 19.30 where this Section serves as the basis for issuance of a special permit. Rather the permit granting authority shall find that on balance the objectives of the city are being served. Ordinance, § 19.30 (emphasis added).

Moreover, the Ordinance is clear that the Guidelines Handbook has little force beyond being a discretionary guideline because § 19.25.2 states that in reviewing the Urban Design Objectives, “the [Planning] Board may be guided or make reference to urban design guidelines . . . that may have been developed for specific areas of the city” (emphasis added). As a result, the Planning Board has broad discretion to determine whether the Urban Design Objectives have been satisfied. Even still, as detailed earlier, the record provides ample support for the conclusion that the AIB Building is compatible in scale and character with the abutting residential neighborhood.

The plain language of § 19.33 does not prohibit rooftop mechanicals, but rather suggests a preference to avoid rooftop mechanicals:

The building and site design should mitigate adverse environmental impacts of a development upon its neighbors. Indicators include:

(a) Reasonable attempts have been made to avoid exposing rooftop mechanical equipment to public view from city streets. Among the techniques that might be considered are the inclusion of screens or a parapet around the roof of the building to shield low ducts and other equipment on the roof from view.

[. . .]

(c) Placement of mechanical equipment at locations on the site other than on the rooftop (such as in the basement), which reduces the bulk of elements located on the roof; however, at-grade locations external to the building should not be viewed as desirable alternatives. (emphasis added).

The record contains numerous measures proposed by Lesley to mitigate adverse environmental impacts of rooftop mechanicals, including locating mechanicals fifty feet from the residential property line, screening mechanicals with parapets, using sound barriers for exhaust fans and outfitting mechanicals with double wall casings that act as sound barriers. This same information was supplied to the Planning Board. In fact, the Planning Board specifically found that “[s]creening to minimize impact on the residential neighborhood is provided through equipment location and the height of the parapet.”

Although § 19.33 does not view at-grade externally-located mechanicals as desirable, it does not prohibit such mechanicals, including the electrical transformer owned by NSTAR, which Lesley’s plans indicate will be screened by plantings and a masonry wall. Plaintiffs argue that Lesley has not shown that parapets and clustering fans are an effective noise buffer. Plaintiffs, however, offer no evidence to the contrary. In fact Plaintiffs have produced no evidence regarding noise impacts from the AIB Building and offer only speculation as to noise impacts. Therefore, I find that the Special Permits are not contrary to the Urban Design Objectives and that the Planning Board correctly found that the Lesley had complied with the Urban Design Objectives, including § 19.33 of the Ordinance.

3. Failure to Meet Special Permit Issuance Criteria

Plaintiffs argue that the Special Permits fail to comply with the general criteria for issuing a special permit, specifically that a special permit may not be granted if “nuisance or hazard would be created to the detriment of the health, safety and /or welfare of the occupant of the proposed use or the citizens of [Cambridge].” Ordinance, § 10.43(d). Plaintiffs argue that the AIB Building may use photography development labs and other visual art workspaces that use chemicals that can pose threats to human health and safety if not properly handled, contained and disposed of and that Lesley’s failure to produce a hazard waste plan and the Planning Board’s failure to address this means that the Special Permits are invalid.

As Defendants correctly point out, no provision of the Ordinance states that a use is prohibited if it involves the use of chemicals that if not properly disposed of may threaten human health and safety. Plaintiffs cite no provision of the Ordinance that requires Defendants to submit a “hazardous waste plan” or the Planning Board to consider a hazardous waste plan. [Note 21] Moreover, if the possible misuse of chemicals created a nuisance or hazard, many businesses or even single-family homes would be considered hazards or a nuisance. In any event, Lesley did submit to the Planning Board a summary of its hazardous waste management policies, practices and methods and the Planning Board had sufficient information to conclude that Lesley had satisfied the general criteria for the Special Permits to issue. As a result, I find that the Special Permits are not contrary to § 10.43(d) of the Ordinance.

4. Unlawful Special Permit Conditions

Plaintiffs argue that certain conditions to the Special Permits are unlawful. Condition 2 states that there shall be continuing design review by the [CDD] and the Historical Commission and Condition 4 requires Lesley to prepare a construction management plan prior to the issuance of a building permit for review and approval by the CDD. Plaintiffs argue that these are improper delegations of the Planning Board’s approval authority and that Lesley failed to comply with § 18.20 of the Ordinance, which Plaintiffs claim requires a construction management plan be submitted for approval to the permitting body before a special permit is issued.

“‘A permit granting authority. . . may not delegate to another board, or reserve to another board, or reserve to itself for future decision, the determination of an issue of substance, i.e., one central to the matter before the permit granting authority.’” Chambers v. Building Inspector of Peabody, 40 Mass. App. Ct. 762 , 766 (1996) (quoting Tebo v. Bd. of Appeals of Shrewsbury, 22 Mass. App. Ct. 618 , 624, (1986)); see also Weld v. Bd. of Appeals of Gloucester, 345 Mass. 376 , 378-79 (1963). Having other municipal bodies review matters not central to the board’s decision is permissible. See Chambers, 40 Mass. App. Ct. at 765-766 (allowing community development department review of “final design and building plans”); Ranney v. Bd. of Appeals of Nantucket, 11 Mass. App. Ct. 112 , 118 (1981) (decision on roof shingles’ type and color referred to historic districts commission was not an impermissible delegation of a matter of substance). Plaintiffs argue that these conditions delegate more than approval of final plans but instead delegate the design concept and selection of materials for the AIB Building, which is central to the determination that the Planning Board must make regarding the AIB Building’s compatibility with the size and scale of the neighborhood. Conditions 2 and 4 make no such delegation. Condition 2’s use of the phrase “continuing design review” says nothing about granting approval authority to municipal bodies to alter the design concept and selection of materials. Rather, the “continuing design review” is to ensure compliance with the design that the Planning Board approved in granting the Special Permits. Similarly the construction management plan referenced in Condition 4 is for “construction authorized by this permit” and review of such plan is only to ensure compliance with the authorized construction. Plaintiffs state that § 18.20’s clear implication is that a construction management plan be submitted before a special permit is issued; however, this provision states only that “[w]here a construction management program is required as a condition of approval of any special permit the applicant shall submit such a program . . .” (emphasis added). More importantly, Condition 4 only requires a construction management plan to be submitted “[b]efore issuance of a Building Permit for construction authorized by this Special Permit” and not as an approval to receive the Special Permits themselves.

Condition 6 requires Lesley to continue to resolve mitigation recommendations with the Traffic, Parking and Transportation Department as outlined in a previous letter to the Planning Board. Plaintiffs argue that Condition 6 is too vague to be enforceable, but do not provide any reasons for this argument. The plain language of Condition 6 is quite clear that Lesley should resolve mitigation recommendations made by the Traffic, Parking and Transportation Department, particularly the bicycle improvements recommendations, as outlined in a previous letter. Cf. Shalbey v. Bd. of Appeal of Norwood, 6 Mass. App. Ct. 521 , 528-29 (1978) (upholding “imprecise[ly]” worded condition that “adequate drainage” be provided); Planning Bd. of Falmouth v. Bd. of Appeals of Falmouth, 5 Mass. App. Ct. 324 , 326 (1977) (upholding conditions requiring “a staggered line of trees” and “adequate but shielded lights” even though these conditions “were not stated with desirable clarity”). As a result, I find that Conditions 2, 4 and 6 of the Special Permits are valid and enforceable.

Therefore, I find that the Special Permits are valid and that the Planning Board’s action in issuing the Special Permits was not arbitrary, capricious, an abuse of discretion or in excess of its authority. As a result of the foregoing, in the Planning Board Case, I DENY Plaintiffs’ Motion for Summary Judgment and ALLOW Defendants’ Motion for Summary Judgment.

Judgment to enter accordingly.