Opinion
No. 12–P–1227.
2013-02-4
John FARRINGTON & others v. PLANNING BOARD OF CAMBRIDGE & others. (and a companion case ).
By the Court (GRASSO, KAFKER & MEADE, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from the grant of summary judgments to the defendants in these companion cases involving the issuance to Lesley University (Lesley) of (1) a certificate of appropriateness from the Cambridge Historical Commission (commission) and (2) special permits from the planning board of Cambridge (board) for a project incorporating the North Prospect Congregational Church (church) into a new facility for the Art Institute of Boston (AIB). We affirm.
1. Certificate of appropriateness. In challenging the commission's issuance of the certificate, the plaintiffs contend that the commission failed to make adequate findings, lacked sufficient evidence, improperly delegated its authority, acted contrary to the Landmark Study (study) and criteria established in Cambridge ordinances, and unlawfully rescinded the landmark designation order. For its part, the commission maintained that the plaintiffs lacked standing to challenge issuance of the certificate, and that their arguments also failed on the merits. The motion judge concluded that the plaintiffs had standing to challenge the issuance of the certificate, but rejected the merits of their argument, concluding that the commission's action was not arbitrary, capricious, an abuse of discretion, or in excess of its authority. See Warner v. Lexington Historic Dists. Commn., 64 Mass.App.Ct. 78, 82 (2005). We conclude that the plaintiffs lack standing and affirm on that basis.
The plaintiffs do not have standing under G.L. c. 40C because the church lots are not in an historic district. General Laws c. 40C applies only to the creation of historic districts and determinations concerning properties that are in historic districts.
We disagree with the judge's determination that the plaintiffs have standing because G.L. c. 185, § 3A, as inserted by St.2006, c. 205, § 15, which establishes the special permit session of the Land Court Department, grants the court jurisdiction over appeals relating to “any municipal, regional or state permit, order, certificate or approval” of projects of a defined size. The judge's ruling mistakenly conflates the authority of parties to challenge the commission's action with the court's jurisdiction to entertain appeals brought by properly authorized parties.
As such, the plaintiffs are not “persons aggrieved” under that statute. See G.L. c. 40C, § 12A, as appearing in St.1983, c. 429, § 3.
Although the church is a landmark under Cambridge's landmark ordinance, the church is not located in an historic district, but in a business C district. The plaintiffs' property is located in a residence B district, abutting the business C district.
Similarly, the plaintiffs do not have standing under § 2.78.240 of the Cambridge Code of Ordinances regarding appeal from a commission decision to create an historic district. At issue here is an individualized decision regarding the grant of a certificate of appropriateness, not the creation of an historic district. Moreover, the code limits appeal of an individualized decision to an “applicant.”
Were we to proceed to the merits, we would agree with the judge that the plaintiffs' challenge fails on the merits. For substantially the reasons set forth by the judge, the commission's action was not arbitrary, capricious, an abuse of discretion or in excess of its authority. See Warner v. Lexington Historic Dists. Commn., supra. See also the defendants' brief at pages eighteen to twenty-seven.
2. Special permits. In challenging the grant of special permits, the plaintiffs argued that the board acted improperly because the project did not comply with several criteria of the zoning ordinance. We agree with the motion judge that the board's decision to grant the special permits was well within its authority under the zoning ordinance and was not based on a legally untenable ground, unreasonable, whimsical, arbitrary or capricious. MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 638–639 (1970). We need not repeat the judge's thorough analysis.
The judge did not err in concluding that the touchstone under the zoning ordinance was not whether each individual aspect of the project was compatible with the surrounding residences but whether the project itself was reasonably compatible with the surrounding residences. The board took into consideration whether the plans for the project (1) reasonably minimize adverse impacts on low-density housing; (2) preserve, reuse, and highlight historic structures as integral parts of the overlay district; (3) make proposed setbacks, location of open-space features and building design reasonably compatible with existing residential development; and (4) maintain reasonable levels of privacy for abutters.
To the extent we do not discuss in detail all the arguments advanced by the plaintiffs, they have not been overlooked. We have considered them and find them without merit. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
We discern nothing arbitrary, capricious, or legally untenable in the board's determination that the special permits for the project do not contravene the pertinent sections of the zoning ordinance and take into consideration the general guidelines of the urban design objectives that the project comply with base zoning regulations, not increase motor vehicle usage, be an asset to the community, and be consistent with the intent and objectives of the Lesley Porter overlay district to allow for establishment of an emerging art district.
The plans for the project satisfy all of the zoning amendment's dimensional requirements (indeed the project has a significantly lower gross floor area than is permitted) and are consistent with the study guidelines recommending that, if moved, the church building should be relocated closer to Massachusetts Avenue, lowering the foundation, removing only the less significant portion of the building (the rear shed), and replacing the incompatible tower with a more compatible belfry. The project also satisfies the study guidelines requiring height, width, and depth of the new construction to be reasonably compatible with scale and proportions of the church, massing, and materials used.
Judgments affirmed.