MISC 12-460250

July 15, 2013

Middlesex, ss.

Foster, J.



In civil action no. 12 MISC 460250 (the Land Court Action), Bellis Circle, Inc. (Bellis) filed its Complaint on March 6, 2012, and its Amended Petition to Determine Validity or Extent of Zoning Ordinance (amended petition) against defendants City of Cambridge (City) and Building Commissioner of Cambridge on March 28, 2012. The City’s answer and the Defendants’ Motion to Dismiss All Claims Against the Building Commissioner Pursuant to Mass. R. Civ. P. 12(B)(6) and to Dismiss Count III of the Amended Petition Pursuant to Mass. R. Civ. P. 12(b)(1) (motion to dismiss) were filed on April 6, 2012. Argument was heard on the motion to dismiss on May 16, 2012 and the motion to dismiss was allowed on May 25, 2012.

Bellis filed its complaint in Middlesex Superior Court civil action no. MICV2012-02278 against the City on June 20, 2012 (the Superior Court Action). By an Order of Assignment dated July 9, 2012, I was assigned, pursuant to G.L. c. 211B, § 9, to sit in the Superior Court for the sole purpose of hearing and determining the Superior Court Action, and on July 30, 2012, I ordered the Land Court Action and the Superior Court Action treated as companion cases. The City’s Motion to Dismiss the Superior Court Action was filed on August 7, 2012 and heard on August 22, 2012. The City’s Motion to Dismiss the Superior Court Action was denied on October 2, 2012. The City filed its answer in the Superior Court Action on October 15, 2012.

On December 7, 2012, the City filed (a) Defendant’s Motion for Summary Judgment, (b) Defendant’s Brief in Support of its Motion for Summary Judgment, (c) Defendant’s Concise Statement of Material Facts, and (d) Joint Appendix to Defendant’s Motion for Summary Judgment. On January 7, 2013, Bellis filed (a) Plaintiff’s Opposition and Cross Motion for Summary Judgment, (b) Memorandum in Support of Plaintiff’s Opposition and Cross Motion for Summary Judgment, and (c) additional exhibits to the Joint Appendix. On February 6, 2013, the City filed Defendant’s Opposition to Plaintiff’s Cross Motion for Summary Judgment and Defendant’s Brief in Opposition to Plaintiff’s Cross Motion for Summary Judgment, and on February 12, 2013, Bellis filed its Reply to City’s Opposition to Plaintiff’s Cross Motion for Summary Judgment. I heard argument on the cross motions for summary judgment on February 15, 2013, and took the motions under advisement.

At issue in both actions is the December 5, 2011 amendment of the Cambridge Zoning Ordinance that rezoned Bellis’s property at 41 Bellis Circle, Cambridge from the C1-A zone to Residential C (Amendment). In the Land Court Action, Bellis seeks to annul the Amendment on the grounds (a) that it is arbitrary and capricious and constitutes an abuse of discretion which exceeds the authority of the City Council (Count One), and (b) that it is illegal reverse spot zoning (Count Two). In the Superior Court Action, Bellis claims that by subjecting the Property to reverse spot zoning, the City infringed upon Bellis’s right to equal protection guaranteed by the Fourteenth Amendment to the United States Constitution, in violation of 42 U.S.C. § 1983. For the reasons set forth below, I find that the Amendment did not constitute reverse spot zoning, and, therefore, that the City did not infringe upon Bellis’s constitutional rights. The Defendant’s Motion for Summary Judgment is ALLOWED, and the Plaintiff’s Cross Motion for Summary Judgment is DENIED.

Summary Judgment Standard

Summary judgment may be entered if the “pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with affidavits . . . show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, I am to draw “all logically permissible inferences” from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). “Summary judgment is appropriate when, ‘viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.’” Regis Coll. v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). Where the non-moving party bears the burden of proof, the “burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991); see Regis Coll., 462 Mass. at 291-292.

Undisputed Facts

With its statement of undisputed facts, the City submitted the following documents: (a) the Zoning Ordinance Amendment Petition dated June 2, 2011 (the Runkel Petition), (b) City Council referral of the Runkel Petition to Ordinance Committee and Planning Board, dated August 1, 2001, (c) Minutes of the September 14, 2011 public hearing of the Ordinance Committee, (d) Rules of the City Council (2010-2011), (e) Laura Runkel’s presentation in support of the Runkel Petition given to the Council Ordinance Committee at its September 14, 2011 public hearing (Runkel Presentation), (f) Memorandum from CDD Staff to Ordinance Committee dated October 13, 2011, (g) Minutes of the October 13, 2011 public hearing of the Ordinance Committee, (h) Transmittal of Planning Board recommendation (with Planning Board recommendation attached) by City Manager Robert W. Healy to the City Council, dated November 21, 2011, (i) the Amendment as ordained on December 5, 2011, (j) Cambridge Zoning Ordinance Article 1.30 Preamble/Purpose, (k) Cambridge Zoning Ordinance Article 3.10 Division of the City into Zoning Districts, and (l) Cambridge Zoning Ordinance Article 5.31 Residential Districts. Bellis submitted the following additional exhibits: (m) Deposition of Stuart Dash (Dash Deposition), with exhibits marked at the deposition, (n) Affidavit of James M. Curley, Jr., with exhibits (Curley Affidavit), and (o) Affidavit of John R. Mullin, with exhibits (Mullin Affidavit).

Before setting forth the undisputed facts agreed to by the parties and drawn from these documents, I must resolve an evidentiary issue. Bellis has objected to many of the exhibits submitted by the City: specifically, the Runkel Petition, the September 14, 2011 minutes, the Runkel Presentation, the October 13, 2011 CDD Memorandum, the October 13, 2011 minutes, and the Amendment as ordained on December 5, 2011. Bellis does not challenge the authenticity of these documents, but rather argues that they “are not competent to prove the facts contained therein,” citing Devine v. Zoning Bd. of Appeals of Lynn, 332 Mass. 319 (1955) and Building Inspector of Chatham v. Kendrick, 17 Mass. App. Ct. 928 (1983). These cases stand for the proposition that, in zoning appeals, minutes of board meetings or board decisions are not evidence of the truth of the matters before the board. See Devine, 332 Mass. at 321 (decision is not evidence); Building Inspector of Chatham, 17 Mass. App. Ct. at 931 (minutes not evidence). These cases concern appeals under G.L. c. 40A, § 17 or its predecessor or reviews of an enforcement request under c. 40A. Such appeals are reviews of quasi-judicial or administrative actions, in which the court is obligated to review the board’s decision de novo. Here, Bellis is challenging a legislative action of the City Council—its amendment of the City’s Zoning Ordinance. Whether the Amendment is valid turns on questions of what information and considerations were before the City Council, and this analysis necessarily requires a review of the sorts of documents—minutes, petitions, votes, and the like—that the City has submitted in support of its motion.

There is a further reason that the materials submitted by the City will be considered. Bellis has submitted, and relies upon, the Dash Deposition and the Mullin Affidavit. It has included with the Dash Deposition the exhibits marked at that deposition that were the subjects of Mr. Dash’s examination. These exhibits include all the documents objected to by Bellis, except for the Runkel Presentation and the Amendment. Given that Bellis submitted these documents in support of its Cross Motion for Summary Judgment, it cannot oppose the City’s reliance upon these same documents. As for the Runkel Presentation, it is probative of the kind of information that was before the City Council as it considered the proposed Amendment. Finally, the Amendment itself must be considered, as it is the very legislative action of which Bellis complains.

Based on the pleadings and the documents submitted with the cross-motions for summary judgment, I find that the following facts are undisputed.

1. Bellis is a Massachusetts corporation that owns the property at 41 Bellis Circle, Cambridge (the Property). The Property is a vacant 40,383 square foot lot currently used as a parking lot.

2. The Property abuts a railroad track on the north (which is located in an industrial zoning district), abuts Sherman Street on the east (which runs through an industrial zoning district and Residence C1-A and Residence B zoning districts), and abuts to its west a smaller parcel located partially in a Residence C1-A zoning district and partially in a Residence B zoning district as set forth in the Cambridge Zoning Ordinance (Zoning Ordinance).

3. On the south, the Property abuts Bellis Circle. Bellis Circle is a two-lane, u-shaped road off of Sherman Street. The Property runs the entire length of the northern section of Bellis Circle. Except for the Property and the smaller parcel abutting the Property that is partially in a Residence C1-A zoning district, all the remaining parcels on Bellis Circle are in a Residence B zoning district.

4. Before 2001, the Property, like most of the area along the railroad track, was classified as within the Industrial A-1 District as set forth in the Zoning Ordinance. A 1993 planning document entitled “Cambridge Growth Policy Document: Toward a Sustainable Future” (Growth Policy Document) addressed planning for the properties along the rail corridor:

New Housing in New Neighborhoods

As the opportunities for significant new housing construction were foreclosed in the existing residential neighborhoods through the successive rezonings adopted in the 1970s and 1980s, the 1980s demonstrated the feasibility of new housing construction, if sometimes at higher densities, in traditionally non residential areas. Several factors, including effective planning, as demonstrated in East Cambridge, relatively benign locations as in the narrow industrial corridors along the railroad right-of-way in North Cambridge, and a very vigorous market which seemed to guarantee the sale of any unit that could be built, contributed to the construction of large numbers of housing units in areas which had been optimistically zoned for residential use in the late 1970s.

Growth Policy Document 28. [Note 1] Later, the Growth Policy Document provides:

Many factors quite beyond the control of the City of Cambridge determine where people choose to live and how they commute to work; but the more benign options from Cambridge’s perspective: living close to work, taking the “T”, or walking to the job, will become increasingly less likely or possible if some measure of new housing is not constructed along with the new additions to the commercial and industrial component of the city’s land use. Cambridge’s role as a regional employment center undoubtedly means that a perfect match between job creation and housing will not be achieved; but a reasonable approximation can be attempted. Tough policy choices are not always inevitable. East Cambridge has shown that housing can be a significant component of a mixed-use district that also generates many new jobs and significant City revenues. In other areas of the city, as along the old railroad corridors in North Cambridge, the industrial zoning is an anachronism that does not offer the potential for significant new jobs or City revenue but does offer the potential for appropriate new housing construction. Many techniques have been employed in zoning to encourage housing in non residential areas or as a component of mixed use development. Those efforts, in the right real estate market have proven quite successful. Similar and more creative techniques should be employed in the future.

Id. at 89. According to Stuart Dash, Director of the Community Planning Division of the City’s Community Development Department (CDD),

our growth policy document sort of lays out in a way a Socratic form of looking at those kinds of situations where it’s often not an answer, yes, here; no, here. It’s often, “Here’s the kind of things we should be considering.”

So on the one hand we may have a city policy of encouraging housing, we may have a city policy of encouraging transition from old industrial properties to newer uses. And we almost always have a city policy of trying to have a reasonable consistency with nearby neighborhoods and to protect the older scale of old-scale neighborhoods in the city. And that’s probably—that’s pretty much a constant context for our planning work is to sort of have a—have the low scale existing in the old—very old neighborhoods in the city be protected from sort of inappropriate development nearby them but to find out—to then meet also the other goals, kind of thing, which there are many.

Dash Deposition 47-48.

5. In or about 2001, the Property was rezoned from the Industrial A-1 Zoning District to the Residential C1-A Zoning District under the Zoning Ordinance. Mr. Dash described the reasons for the zoning change as follows:

And so the notion was to provide for zoning that would slowly encourage the change of this area, of those areas, both the IA-1, the C-1A, to become residential along that edge. . . . When that—zoning was put into place and it was—some of it was going the citywide zoning in 2000, the notion was sort of a medium-density residential that would be—felt like it was—be an incentive for someone to actually change their property, because the properties along the railroads typically were old industrial properties. And we have dealt with these before where industrial uses on the whole at some point in Cambridge feel like they’re not really the best match for Cambridge and yet they don’t have the—they don’t have the incentive or the money to move elsewhere. So you sort of—you’re trying to provide the best balance of an incentive for that change to occur. . . . We looked to identify areas that were—we didn’t feel were appropriately zoned at that time. And we had been through a period of time already where these old parcels along railroad tracks were—had already been in discussion. And so we sort of looked to identify areas that we thought should take the next step in their evolution of moving towards—being focused on moving towards residential, whereas an IA-1 designation, what you see up above, is basically saying, “We think it’s okay if it goes either way.” And in fact it’s, you know, generally okay if it goes—stays industrial or goes industrial. Whereas we feel like that’s—we don’t want to be saying that about that parcel anymore.

Id. at 20-22.

6. On or about July 13, 2011, Laura Runkel and other residents of Bellis Circle, Sherman Street, and other streets in Cambridge filed the Runkel Petition with the City. The Runkel Petition petitioned the City to amend the Zoning Ordinance by rezoning the Property from its designation in a Residence C1-A district to a designation in a Residence C district. Before filing the Runkel Petition, Runkel met with Mr. Dash. Dash discussed the petition with Runkel and provided her with a density analysis of the number of housing units that could be developed on the Property under its C1-A designation and the proposed C designation. This density analysis was incorporated into the Runkel Petition.

7. On or about August 1, 2011, the City Council received the Runkel Petition and referred it to the Planning Board and to the Council Ordinance Committee (Ordinance Committee). The Ordinance Committee is a “committee of the whole consisting of the mayor and eight City Councillors,” one of whose several stated purposes is to “consider the merit of any ordinance presented to the City Council and to consider the form and legality thereof.”

8. The Ordinance Committee held a public hearing to consider the Runkel Petition on or about September 14, 2011. Ms. Runkel gave the Runkel Presentation to the Ordinance Committee. She discussed the difference between the floor area ratio (FAR) existing on the majority of the parcels in the Bellis Circle neighborhood and the FAR permitted under the C1-A designation on the Property, which allowed a unit density four to five times higher than that of the majority of parcels on Bellis Circle. She presented photographs of buildings on Bellis Circle and neighboring streets. She stated that the neighbors were unaware of a plan to develop the Property at that time, but they were concerned about the size of a recent development on Bolton Street, just across Sherman Street. She argued to the Committee that the Property was part of Bellis Circle, that future development should match the existing development on Bellis Circle, that development permitted under the existing C1-A designation would overwhelm the Bellis Circle neighborhood, and that the proposed rezoning of the Property to Residence C would strike a balance between compatibility with the neighborhood and development potential.

9. At the meeting, the Committee asked Mr. Dash and the CDD about other zoning district options and inclusionary zoning affordable housing bonuses and their impacts on FAR calculation. Dash discussed with the Committee the zoning history of the Property, and suggested that the Committee consider rezoning the Property to Residence C-1, which allows more dense housing than Residence C. The Committee asked that the CDD give it a report about recent projects that might be comparable to what could be developed on the Property under the Residence C1-A zoning designation. The Committee then heard public comment on the Runkel Petition and closed the meeting.

10. CDD staff prepared a memorandum to the Committee dated October 13, 2011 (CDD Memo). The CDD Memo described several prior residential projects in the Bellis Circle area: 39 Bellis Circle, an 11,006 square foot lot with 6 dwelling units; 177 Pemberton Street, a 42,173 square foot lot with 20 dwelling units; and 61-69 Bolton Street, a 19,567 square foot lot with 20 dwelling units. The CDD Memo compared the size and density of these projects to the dimensional requirements and number of dwelling units that would be permitted to be constructed on the 40,383 square foot Property under the existing C1-A zoning designation (52 units), the C-1 zoning designation (34 units), the proposed C designation (28 units), and the B designation that applies to the other residential parcels on Bellis Circle (14 units).

11. The Committee held a second public hearing on October 13, 2011. Mr. Dash presented the CDD Memo to the Committee. After some questions to Dash and comments from the public, the Committee voted to refer the Runkel Petition to the City Council with a favorable recommendation.

12. On November 21, 2011, the City Manager transmitted to the City Council the recommendation of the City’s Planning Board, dated November 1, 2011 (Planning Board Recommendation), in which the Planning Board did not recommend adoption of the Runkel Petition pending further study. In its Recommendation, the Planning Board raised two concerns:

First, the Board does not find it appropriate to consider only this single site for potential rezoning when there are adjacent sites that remain zoned Residence C-1A (see attached map). This would result in a “piecemeal” zoning approach that could impair the uniformity and rationality of the zoning map. The Board would recommend that the Community Development Department, in consultation with the Planning Board, be directed to study the entire C-1A district in this area and investigate a rational and uniform zoning approach.

Secondly, while Board members believe a case could be made that the area is “overzoned,” in the sense that the currently allowed scale and density of development is greater than what the Board would consider permitting, Board members also believe that a Residence C designation may result in the area being “underzoned” by being too restrictive. Prior developments that have been built or permitted in the area, including the 61-69 Bolton Street project and the townhouses adjacent to 41 Bellis Circle (which are partially in the C-1A district as well), were designed to a scale that is acceptable to the neighborhood although they are greater in density that would be allowed under Residence C regulations. Given this past experience, it may be appropriate to investigate a set of zoning regulations that is less restrictive than Residence C while still addressing concerns about scale and neighborhood character.

13. At its December 5, 2011 meeting, the City Council voted to adopt the Amendment as Ordinance Number 1343, amending the Zoning Ordinance and its zoning map to change the classification of the Property from Residence C1-A to Residence C.

14. It is the opinion of Bellis’s appraiser, James M. Curley, Jr., “that the zoning change creates an economic obsolescence resulting in loss in value of $1,593,000 to the subject property.”


At issue is whether the City Council’s adoption of the Amendment “was a valid exercise of local zoning power.” Rando v. Town of North Attleborough, 44 Mass. App. Ct. 603 , 604 (1998). “In general, a municipality is given broad authority to establish zoning districts regulating the use and improvement of land within its borders.” Andrews v. Town of Amherst, 68 Mass. App. Ct. 365 , 367 (2007); see Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339 , 359 (1973). The exercise of the City’s broad legislative powers in adopting the Amendment is limited by whether the Amendment violated the Zoning Enabling Act, G.L. c. 40A, or any constitutional protections. Andrews, 68 Mass. App. Ct. 368 ; Van Renselaar v. City of Springfield, 58 Mass. App. Ct. 104 , 108 (2003).

In these actions, Bellis claims that the Amendment was not a valid exercise of the City’s zoning power because it constitutes reverse spot zoning. Reverse spot zoning occurs when a zoning change singles out one lot or a small area for more restrictive treatment than that imposed on other parcels in the same zoning district. W.R. Grace & Co.-Conn. v. Cambridge City Council, 56 Mass. App. Ct. 559 , 569 (2002). “Selective zoning of that kind violates the uniformity requirements of G.L. c. 40A, § 4, and ‘constitutes a denial of equal protection under the law guaranteed by the State and Federal Constitutions.’” Van Renselaar, 58 Mass. App. Ct. at 108, quoting Rando, 44 Mass. App. Ct. at 606. Whether the Amendment constitutes spot zoning and thereby denies Bellis its right to equal protection under the law “turns not on what parcel has been singled out, or even on the effect on the parcel, but rather on whether the change can fairly be said to be in furtherance of the purposes of the Zoning Act.” W.R. Grace & Co.-Conn., 56 Mass. App. Ct. at 369. In making that determination, I must give the Amendment every presumption in its favor. Crall v. Leominster, 362 Mass. 95 , 101-102 (1972); Andrews, 68 Mass. App. Ct. at 369. Thus, Bellis faces the “heavy burden,” id., of proving “by a preponderance of the evidence that the [Amendment] is arbitrary and unreasonable, or substantially unrelated to the public health, safety, morals, or general welfare.” Johnson v. Edgartown, 425 Mass. 117 , 121 (1997); Van Renselaar, 58 Mass. App. Ct. at 108. “If the reasonableness of [the Amendment] is fairly debatable, the judgment of the local legislative body (here the [City Council]) should be sustained and the reviewing court should not substitute its own judgment.” National Amusements, Inc. v. City of Boston, 29 Mass. App. Ct. 305 , 309 (1990); see Crall, 362 Mass. at 101; Caires v. Building Commr. of Hingham, 323 Mass. 589 , 594-595 (1949); Andrews, 68 Mass. App. Ct. at 369.

Based on the summary judgment record, summary judgment in favor of the City is appropriate because Bellis has not met its “’heavy burden’ of proving ‘facts which compel a conclusion that the question of whether the [A]mendment falls within the enabling statute is not even fairly debatable.’” W.R. Grace & Co.-Conn., 56 Mass. App. Ct. at 571-572, quoting Crall v. Leominster, 362 Mass. 95 , 103 (1972). The City Council’s Ordinance Committee, consisting of the members of the City Council, held two hearings to consider the proposed Amendment. It considered the Runkel Petition and heard the Runkel Presentation, both of which presented details on the current zoning of the Property and its permitted density for housing, the zoning of the adjacent Bellis Circle neighborhood and its density, the relation of the Property to the Bellis Circle neighborhood, and the density of the proposed Residence C zoning. It heard from Mr. Dash of the CDD on the zoning history of the Property and alternatives to the proposed Residence C zoning. It received the CDD Memo on relative densities of other housing developments in the area. It asked questions of Ms. Runkel and Mr. Dash. It favorably recommended the Runkel Petition to the City Council, which then considered the Planning Board Recommendation before voting to approve the Amendment.

Based on all the information before it and drawing presumptions in its favor, Andrews, 68 Mass. App. Ct. at 369, the City Council could reasonably have found that the geography of the Property, abutting railroad tracks to the north and the entire length of the northerly third of Bellis Circle to the south, makes the Property more a part of the Bellis Circle neighborhood than are neighboring properties. It could further have reasonably found that the City’s Growth Policy Document expressed the policy preference that industrially-zoned parcels along railroad tracks, such as the Property, be rezoned to residential zones with higher permitted density than traditional residential zones in order to balance the need to encourage housing with the need to promote consistency with nearby neighborhoods, and that, consistent with this policy, the Property had been rezoned to its C1-A classification. It could further have reasonably found that because the Property abuts the Bellis Circle neighborhood along a substantial part of Bellis Circle, and because that neighborhood is zoned Residential B, a much less dense residential district than C1-A, it was important for the Property to be rezoned to a district providing for a density more consistent with the density of the Bellis Circle neighborhood. Finally, the City Council could reasonably have made the judgment that the Property should be rezoned to a district with an interim density, one that provides for less density than the existing C1-A but still providing for more density than the Residence B of Bellis Circle. The Residence C classification to which the Property was rezoned serves both those goals.

The City Council’s analysis and resulting legislative action was reasonable. Before voting on the Amendment, the City Council conducted a reasonable inquiry, including an inquiry into the zoning history of the Property, and found a reasonable basis for rezoning the Property. See Andrews, 68 Mass. App. Ct. at 373-374. It considered the location and size of the Property, its uses, and the uses of the adjoining Property. National Amusements, Inc., 29 Mass. App. Ct. at 310. It especially considered that the Property abuts a different, less dense zone, an especially important factor in any rezoning decision. See W.R. Grace & Co.-Conn., 56 Mass. App. Ct. at 571 (spot zoning less likely at the borders of districts). By taking into account these considerations, the Amendment resulted in a more coherent and consistent range of density. See Van Renselaar, 58 Mass. App. Ct. at 104 (rezoning of locus to use consistent with adjacent mixed uses results in coherent and consistent zoning). The more balanced density benefited the public, especially the residential neighborhood abutting the Property. See Rando, 44 Mass. App. Ct. at 606 (rezoning not spot zoning where public benefits).

That the Amendment was prompted by a citizen petition and not by a formal study is not a basis for finding that it constituted spot zoning where, as here, the petitioners provided evidence and information sufficient to support and justify the rezoning. Andrews, 68 Mass. App. Ct. at 373 n.13. Moreover, even assuming that the Amendment was not in strict accordance with the terms of the Growth Policy Document, the City Council was within its discretion to consider the Growth Policy Document and to conclude, as it did, that the rezoning of the Property was consistent with Document’s goals and purposes. See Rando, 44 Mass. App. Ct. at 612 (“Neither the master plan itself nor the law requires that zoning be in strict accordance with a master plan. . . . . The most that can be though required is an analysis by town officials before the zoning decision of land use planning considerations.”). Finally, that the City Council did not follow the Planning Board Recommendation that further study of the entire C1-A district was needed before any rezoning of the Property does not make the Amendment invalid. “The decision regarding sensible zoning is for the planning board to recommend and for the city council to make.” W.R. Grace & Co.-Conn., 56 Mass. App. Ct. at 568. In its Recommendation, the Planning Board stated that “it may be appropriate to investigate a set of zoning regulations that is less restrictive than Residence C while still addressing concerns about scale and neighborhood character.” The City Council acted well within its authority in deciding that the Residence C zoning best addressed the concerns about increased density and scale and neighborhood character.

In essence, Bellis’s claim is that the Amendment was poor land use planning, enacted with insufficient study. But given the broad authority of municipalities to legislate zoning changes and the deference to which such legislative decisions are entitled, poor planning is not the same as spot zoning. This case comes to down to a difference of opinion as to the appropriate zoning classification for the Property. As the court in Andrews held, however, “[a]lthough reasonable minds may differ, the [Amendment] has not been shown to be substantially unrelated to the public health, safety, or general welfare, nor arbitrary or unreasonable. Rather, the enactment of the [A]mendment constituted a valid exercise of the [City’s] police power.” Andrews, 68 Mass. App. Ct. at 376. Because the City Council’s enactment of the Amendment was valid, it was not spot zoning. Summary judgment must be entered for the City, dismissing Bellis’s claims of spot zoning in the Land Court Action.

Bellis’s claims in the Superior Court Action are that the Amendment denied Bellis its right to equal protection guaranteed by the Fourteenth Amendment, thereby violating 42 U.S.C. § 1983. The sole basis for Bellis’s constitutional claim is that the Amendment was spot zoning. Because the Amendment was a valid exercise of the City’s police power and therefore not spot zoning, Bellis was not denied its right to equal protection. Summary judgment must be entered in the City’s favor dismissing Bellis’s claims in the Superior Court Action.


For the foregoing reasons, Defendant’s Motion for Summary Judgment is ALLOWED, and the Plaintiff’s Cross Motion for Summary Judgment is DENIED. Separate judgments shall enter dismissing both the Land Court Action and the Superior Court Action with prejudice.

Judgment accordingly.


[Note 1] The Growth Policy Document itself was not put in evidence. The excerpts from the Growth Policy Document in this Decision are quoted in the Mullin Affidavit. The City has not challenged their accuracy.