A communication transmitted from Yi-An Huang, City Manager, relative to Council Order No. O-8 of 1/23/2023, regarding (1) whether there is a two year bar on considering repetitive zoning petitions that have been unfavorably acted upon by the Council, (2) if so, whether that bar on repetitive petitions would prohibit the Council from moving forward with a Council initiated lab use zoning petition if there is unfavorable action on the pending Callender, et al. Petition, and (3) if so, what types of changes to zoning petition would be Necessary for it. to no longer be considered a repetitive petition. FINALIZED FEBRUARY 6, 2023

Telephone [phone removed] Facsimile [phone removed] TTY/TTD [phone removed] Nancy E. Glowa Assistant City Solicitors City Solicitor Paul S. Kawai Diane O. Pires Megan B. Bayer Patrick C. Cento Deputy City Solicitor Kate M. Kleimola Sydney M. Wright Elliott J. Veloso Evan C. Bjorklund First Assistant City Solicitor Franziskus Lepionka Public Records Access Officer Seah Levy CITY OF CAMBRIDGE Office of the City Solicitor 795 Massachusetts Avenue Cambridge, Massachusetts 02139 February 6, 2023 Yi-An Huang City Manager Cambridge City Hall 795 Massachusetts Avenue Cambridge, MA 02139 Re: Response to Council Order No. O-8 of 1/23/2023 Re: (1) whether there is a two- year bar on considering repetitive zoning petitions that have been unfavorably acted upon by the Council, (2) if so, whether that bar on repetitive petitions would prohibit the Council from moving forward with a Council initiated lab use zoning petition if there is unfavorable action on the pending Callender, et al. Petition, and (3) if so, what types of changes to zoning petition would be necessary for it to no longer be considered a repetitive petition. Dear Mr. Huang: I am writing in response to Council Order No. O-8 of 1/23/2023 which requests that the City Solicitor provide a legal opinion in response to the above-referenced questions. These questions arose out of the January 4, 2023 Ordinance Committee meeting concerning the Callender, et al. Zoning Petition which seeks to amend provisions in the Cambridge Zoning Ordinance concerning labs. These questions concern the fact that the City Council has been discussing possible amendments to the Zoning Ordinance to address labs, and the provisions in the Callender, et al. Zoning Petition are similar to provisions that the City Council is discussing. Therefore, the City Council is seeking an opinion about how possible action by the Council on the Callender, et al. Zoning Petition could impact possible future efforts to enact similar zoning amendments concerning labs. I will address the specific questions below. 1. Whether there is a two-year bar on considering repetitive zoning petitions that have been unfavorably acted upon by the Council? This first question was addressed by the Deputy City Solicitor at the January 4, 2023 meeting. As explained at that meeting, G.L. c. 40A, §5, and Zoning Ordinance Article I, Section 1.52 provide that a zoning petition that has been unfavorably acted upon by the City Council shall not be considered by the City Council within two years unless the Planning Board recommended adoption. Section 1.52 of the Zoning Ordinance further provides that:

2 The granting of "leave to withdraw" after a proposed amendment has been advertised for a hearing before the City Council shall be considered as constituting unfavorable action. Failure of the City Council to take action on a petition for a zoning amendment within ninety (90) days after the City Council's hearing on said petition shall render the petition inactive. Such failure to act shall not be considered unfavorable action … . “The purpose of the two-year bar is to give some measure of finality to unfavorable action taken by a municipal legislative body so that members of the public shall be able to ascertain the legislative status of a proposed change at all times, and to rely on unfavorable action ... as a complete defeat of the proposal.” Penn vs. Town of Barnstable, 96 Mass. App. Ct. 205, 210 (2019). 2. If so, whether that bar on repetitive petitions would prohibit the Council from moving forward with a Council initiated lab use zoning petition if there is unfavorable action on the pending Callender, et al. Petition? And 3. If so, what types of changes to zoning petition would be necessary for it to no longer be considered a repetitive petition. In determining whether the bar on repetitive petitions would prohibit the Council from moving forward with a Council initiated lab zoning petition if there is unfavorable action on the pending Callender et al. Zoning Petition, it is necessary to examine the degree of similarity between those petitions. The Court has held that “proposed ordinances or bylaws are the same for purposes of G. L. c. 40A, § 5, sixth par., if they share the same fundamental or essential character, with little substantive difference.” Penn vs. Town of Barnstable, 96 Mass. App. Ct. 205, 21 (2019). In the Penn v. Town of Barnstable case, the Town Council sought to enact a parking overlay district. “The overarching purpose of the amendment was to authorize “as of right” operation of commercial parking lots … The amendment then set out site-development standards governing operation of the lots within the [overlay district]; those standards addressed, among other things, the number of parking spaces allowed on the lots, dimensional requirements, and demarcation of emergency-access aisles and property boundaries.” Id. at 206. That zoning petition was voted down. A few weeks later, the Town Council initiated a new zoning petition creating a parking overlay district. “The only differences between the two [petitions] were that [the second petition] clarified that the [overlay district] does not include fully or partially enclosed parking structures, clarified that lot owners could not create more parking spaces by discontinuing other uses on their parcels, and required that lot owners file parking plans with the town.” Id. at 211-212. The second petition passed and was ordained. A lawsuit was brought challenging the zoning amendment and the court held that the two year bar on repetitive petitions precluded the Town Council from considering the second petition, and the Appeals Court upheld the trial court’s decision annulling the zoning amendment. The Court held that the changes from the first petition to the second petition “were amendments that merely facilitated enforcement of

3 [the first petition]. They did not change the fundamental and essential character of the [first petition] -- to allow for as-of-right operation of commercial parking lots through creation of the [overlay district].” Id. The Court also held that whether two zoning petitions share the same fundamental or essential character so as to prohibit action on the second petition is a question of law and there is no deference to the legislative body’s determination that the two petitions do, or do not, share the same fundamental or essential character. Id. at 212. It is difficult to opine whether the bar on repetitive petitions would prohibit the Council from moving forward with a Council initiated lab zoning petition if there is unfavorable action on the pending Callender et al. Zoning Petition without knowing precisely how the Council will propose regulating labs. However, if the Council wants to move forward with the proposed zoning amendment set forth in Calendar Item #3 of 10/3/22 which was referred to the Economic Development and University Relations Committee and the Neighborhood & Long-Term Planning, Public Facilities, Arts & Celebration Committee for review and discussion, it is clear that proposed zoning amendment would be prohibited if there is unfavorable action on the Callender et al. Zoning Petition because the regulation of labs in both is nearly identical. It is also likely that any subsequent zoning petition that seeks to prohibit new lab uses in business and office districts, even if there are some exceptions built in, will be of the same fundamental or essential character as the Callender, et al. Zoning Petition so as to prohibit action on the second petition if there is unfavorable action on the Callender, et al. Zoning Petition. However, a petition that takes a more holistic look at lab use across the city, or adds a special requirement for certain lab uses, may be different enough in character to not be subject to the bar on repetitive petitions. We will need to analyze any further proposed zoning petitions concerning lab use on a case-by-case basis to determine whether the Council can act on them if there is unfavorable action on the Callender, et al. Zoning Petition. In summary, if there is unfavorable action on the Callender, et al. Zoning Petition, the City Council can only move forward with another zoning petition regulating labs if it is not of the same fundamental and essential character. The differences between the petitions would have to be more significant than clarifying changes or slight variations, as explained above. Otherwise, the Council would have to wait two years from any unfavorable action on the Callender, et al. Zoning Petition before adopting a subsequent lab petition. Very truly yours, Nancy E. Glowa City Solicitor