Opinion
11-P-1192
05-14-2012
SARAH FARRINGTON & others[FN1] v. CITY OF CAMBRIDGE & another.[FN2]
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Plaintiffs Sarah Farrington and Peter Lang appeal a Land Court decision upholding the validity of an amendment to the zoning ordinance of the city of Cambridge (city). The amendment creates an overlay district in the Porter Square area intended to facilitate the expansion plans of Lesley University (Lesley). The plaintiffs contend that the amendment (1) constitutes 'spot zoning,' (2) was adopted under unlawful procedures, (3) misuses the overlay district zoning procedures, (4) violates the city's guidelines for development on Massachusetts Avenue, and (5) violates the regulations of two preexisting overlay districts.
The plaintiffs are landowners whose properties abut the lots at issue.
On cross motions for summary judgment, the judge ruled in favor of the city and Lesley (collectively, defendants). We view the grant of summary judgment under familiar principles, making independent review of the record without deference to the judge's findings. See Bank of N.Y. v. Bailey, 460 Mass. 327, 331 (2011). We affirm.
While we make independent review of the facts, and while no deference is given to the judge's findings, those findings are very often, as here, extremely helpful for us to become efficiently acquainted with the subject matter of the appeal and to assist in an expeditious decision.
1. Background. Lesley owns several parcels of land in the business C district along Massachusetts Avenue, south of the Porter Square station, as well as two lots in the residence B district on which an historic church and a playground are located (church lots). In 1998, Lesley merged with the Art Institute of Boston (AIB), and now Lesley desires to move AIB, which is currently located in Kenmore Square, to the church lots. The amendment creates an overlay district (LP overlay district) purporting to promote the development of arts, education, and retail uses on properties that Lesley owns in the Porter Square area.
The amendment effectuates two basic zoning changes to promote these results. First, it amends the zoning map by extending the business C district 160 feet in an easterly direction along Massachusetts Avenue so as to include the church lots. Second, the amendment makes focused adjustments to the underlying zoning requirements by relaxing some (e.g., the allowable floor area ratio [FAR] may be increased by special permit), and increasing others. In a letter dated June 22, 2009, Lesley's vice president for administration wrote to the city's ordinance committee, describing the 'commitments and benefits' it would 'abide by as part of the adoption of the [LP] Overlay District by the City Council.' The letter listed items that had been the 'subject of discussion and negotiation of the Lesley Working Group' (hereinafter, working group). Among other things, Lesley agreed to provide payment of $500,000 to the city to fund its improvements along Massachusetts Avenue.
Lesley also agreed to provide a construction mitigation plan, a 'neighborhood courtesy parking program,' 'opportunities for neighborhood residents to access certain Lesley facilities,' and biannual formal discussions of neighborhood concerns with representatives of various neighborhood associations. The $500,000 was broken into several installments, some conditioned on certain milestones. Fifty thousand dollars would be paid for Massachusetts Avenue improvements in the area between Harvard Square and Porter Square if the city council adopted the amendment. Two hundred thousand dollars would be paid for improvements along Massachusetts Avenue if a special permit was approved allowing Lesley to construct a building on the church lots. Finally, $250,000 would be paid for improvements along Massachusetts Avenue if a special permit was approved allowing Lesley to construct a building on another lot.
2. Spot zoning. Generals Laws c. 40A, § 4, inserted by St. 1975, c. 808, § 3, states in part, 'Any zoning ordinance . . . which divides cities and towns into districts shall be uniform within the district for each class or kind of structures or uses permitted.' Spot zoning is the singling out of one area of land for different treatment from that accorded to similar surrounding land indistinguishable from it in character, all for the economic benefit of the owner of the rezoned land. See Whittemore v. Building Inspector of Falmouth, 313 Mass. 248, 249 (1943). Nevertheless, a zoning amendment may be undone only if a plaintiff demonstrates 'that the zoning regulation is arbitrary and unreasonable, or substantially unrelated to the public health, safety . . . or general welfare.' Durand v. IDC Bellingham, LLC, 440 Mass. 45, 51 (2003), quoting from Johnson v. Edgartown, 425 Mass. 117, 121 (1997).
The defendants maintain that prior to adopting the amendment, the city engaged in substantial zoning analysis to ensure that the rezoning would be in harmony with the surrounding area. They contend that this analysis resulted in findings that rezoning the church lots and incorporating AIB into Lesley's campus would confer a public benefit to the city.
The record indicates that the city council did not hastily adopt the amendment. In 2006, the working group was formed for the purpose of exploring Lesley's available options for moving AIB to the city. The working group members included not only Lesley officials and city officials, but also various members of the community who believed they might be affected by Lesley's expansion. Additionally, Lesley held three public meetings to present its plans for expansion of the church lots. These public meetings provided a forum for community members to give their input into Lesley's expansion and development, and the record indicates that these meetings were attended by the plaintiffs.
It is significant that after three years of planning, in coordination with the working group, various public meetings, and negotiations with the city, the city's planning board approved Lesley's expansion and the creation of the LP overlay district. Specifically, in its report, the planning board enumerated at least three benefits to the city as a result of the expansion: (1) encourage the development of an arts district by bringing AIB into the Porter Square area; (2) 'create a more predictable scenario for development for 'key' properties in the Porter Square area'; and (3) encourage the eventual elimination of at-grade parking, and its replacement with first floor retail uses that would enhance the area as a lively retail district.
'The enactment of [zoning] . . . is not only the exercise of an independent police power; it is also a legislative act . . . carrying a strong presumption of validity.' Id. at 50-51. Thus, the amendment here is entitled to '[e]very presumption . . . in favor of . . . its validity.' Vagts v. Superintendent & Inspector of Bldgs. of Cambridge, 355 Mass. 711, 713 (1969). Where there is a reasonable basis to support the amendment, it must be sustained, even if there are contrary arguments that make the 'reasonableness of a zoning regulation . . . fairly debatable.' National Amusements, Inc. v. Boston, 29 Mass. App. Ct. 305, 309 (1990). We are not persuaded that the plaintiffs have sustained their burden of proving that the 'challenged measure bears [no] rational relation to any permissible public object which the legislative body ' may plausibly be said to have been pursuing." W.R. Grace & Co.-Conn. v. City Council of Cambridge, 56 Mass. App. Ct. 559, 566 (2002), quoting from Sturges v. Chilmark, 380 Mass. 246, 256 (1980).
3. Contract zoning. Illegal contract zoning 'involv[es] a promise by a municipality to rezone a property either before the vote to rezone has been taken or before the required [G. L. c. 40A, § 5,] process has been undertaken [and] evades the dictates of G. L. c. 40A.' Durand, 440 Mass. at 53. In Durand, the court held that there is 'no persuasive authority for the proposition that an otherwise valid zoning enactment is invalid if it is in any way prompted or encouraged by a public benefit voluntarily offered.' Id. at 57. Challenges to zoning adoptions on the basis that they are products of contract zoning require the court to consider whether the action was 'contrary to the best interest of the city and hence offensive to general public policy' and whether it involved extraneous consideration that 'could impeach the enacting vote as a decision solely in respect of rezoning the locus.' Sylvania Elec. Prod. Inc. v. Newton, 344 Mass. 428, 434 (1962).
The plaintiffs argue that Lesley's commitment of $500,000 toward mitigation measures constitutes illegal contract zoning. The plaintiffs point out that of this amount, Lesley commits only $50,000 for improvements to Massachusetts Avenue in the area between Porter Square and Harvard Square, but will contribute $200,000 and $250,000 for improvements along Massachusetts Avenue generally. The plaintiffs argue that Lesley does not commit any funds specifically to mitigate the adverse impacts of its development in the Porter Square area. As a result, the plaintiffs contend that Lesley's offer of payment improperly influenced the city.
If a zoning amendment was adopted pursuant to the zoning act, i.e., pursuant to c. 40A, and the amendment serves a public purpose, then a voluntary payment made by a developer to a municipality, standing alone, cannot invalidate the legislative act. See Durand, 440 Mass. at 53-55. Here, there is no evidence that the city council improperly agreed to approve the amendment before voting to do so, and, as discussed, supra, the amendment is valid on the abundant evidence that it is in the best interests of the city. Therefore, under Durand, Lesley's offer to commit mitigation funds does not invalidate the amendment. See ibid.
4. Overlay district regulations. The plaintiffs point out that the institutional use regulations in article 4.50 of the city's zoning ordinance prohibit construction of buildings for private educational use in a residence B district. The defendants contend that the church lots are no longer zoned as residence B, and as a result, the institutional use to which the church lots will be put cannot violate article 4.52. Pursuant to the Home Rule Amendment, see art. 89 of the Amendments to the Massachusetts Constitution, the city is free to amend the zoning ordinance, which would include changing or superseding existing zoning legislation, where doing so plausibly may be said to advance the public welfare. See id. at 50-51. As discussed supra, the amendment advances the public welfare, thus the city was free to amend the zoning ordinance. The church lots were removed from residence B to business C and no longer are encumbered by the institutional use regulations imposed upon residence B lots.
The plaintiffs also argue that the zoning ordinance does not permit one overlay district to be superimposed on another. They contend that the purpose of an overlay district is to impose more restrictive zoning requirements than the underlying zoning. Article 3.12 of the zoning ordinance states only that 'overlay districts may be established from time to time' and that they 'have special regulations which shall be applicable in lieu of or in addition to [the underlying zoning regulations].' The zoning ordinance is silent as to whether one overlay district may be imposed on another. Absent such a restriction, we owe deference to the legislative act of the city and will not read such a restriction into the zoning ordinance where one does not explicitly exist. Moreover, the language in the zoning ordinance ('in lieu of' the underlying zoning regulations) indicates that any legal overlay district may substitute, rather than supplement, existing zoning regulations.
Article 20.503.1 of the zoning ordinance explicitly states that the LP overlay district restrictions supercede any inconsistent provisions of the zoning ordinance, and article 3.12 permits zoning restrictions within an overlay district to substitute for the existing zoning regulations. As a result, any restrictions in the amendment may be more restrictive or less stringent than the underlying zoning regulations, so long as the amendment is a legitimate exercise of legislative power, which it is.
Finally, there is no case law requiring that an overlay district impose more stringent zoning requirements than the underlying zoning area. The plaintiffs' reliance on KCI Mgmt., Inc. v. Board of Appeal of Boston, 54 Mass. App. Ct. 254 (2002), is of no avail. The court in that case reflected on the characteristics of a 'typical' overlay district, but did not incorporate this discussion in its holding because the issue whether overlay district regulations must be more stringent than the underlying zoning regulations was not before the court. Id. at 259-261.
Thus, the plaintiffs' complaints with respect to the amendment's relaxation of FAR standards is unsupported. See ibid. In addition to the language in article 3.12 of the zoning ordinance allowing the creation of an overlay district with special regulations, other provisions of the zoning ordinance indicate that the FAR may be transferred and used on other lots in the same or a different zoning district. Articles 17.17 and 17.81.5 are both examples of permissive FAR transfers between lots regardless of their contiguity or ownership. Therefore, the amendment did not violate the Massachusetts Avenue overlay district regulations.
We decline the defendants' request for costs.
Judgment affirmed.
By the Court (Mills, Meade Rubin, JJ.),