A communication transmitted from Yi-An Huang, City Manager, relative to Awaiting Report Item Number PO 2023 #28, regarding a legal opinion on the Doug Brown petition

Nancy E. Glowa Assistant City Solicitors Paul S. Kawai City Solicitor Diane O. Pires Kate M. Kleimola Megan B. Bayer Deputy City Solicitor Sydney M. Wright Evan C. Bjorklund Elliott J. Veloso Franziskus Lepionka Andrea Carrillo-Rhoads First Assistant City Solicitor Public Records Access Officer Seah Levy CITY OF CAMBRIDGE Office of the City Solicitor 795 Massachusetts Avenue Cambridge, Massachusetts 02139 February 13, 2023 Yi-An Huang City Manager Cambridge City Hall 795 Massachusetts Avenue Cambridge, MA 02139 Re: Response to Council Order No. O-15 of 2/6/2023 Re: Legal Opinion to the Council Regarding the Doug Brown Petition. Dear Mr. Huang: I am writing in response to Council Order No. O-15 of 2/6/2023 which requests that the City Solicitor provide a legal opinion to the Council regarding the Doug Brown Petition. Douglas Brown filed a zoning petition with the City Clerk on January 4, 2023 (the "Brown Petition"). At that time, the City Clerk asked the Law Department for a legal opinion as to whether the Brown Petition was a valid zoning petition. Specifically, the City Clerk asked: "Doug Brown filed a landowner zoning petition. He is not the exclusive owner of the land in question. Can he file on his own?" We did not understand all the relevant facts at that time and mistakenly thought that the City Clerk was asking if Mr. Brown could file a petition concerning one parcel of land even if he is not the exclusive owner of that parcel of land. Without understanding all of the facts, we opined that Mr. Brown can file a landowner zoning petition as an owner of the land in question. We further opined as follows: "Under G.L. c. 40A, sec. 5, the petitioner must be, in relevant part, "... an individual owning land to be affected by change or adoption..." The plain language of the statute does not state that the owner of the land must be the exclusive owner of the property in fee simple. Instead, the statute only states that the individual must be an "owner." Based on the statute's plain language, the individual's ownership interest need not be exclusive, but could also include joint ownership arraignments recognized under Massachusetts law, such as tenants in Telephone [phone removed] Facsimile [phone removed] TTY/TTD [phone removed]

common, joint tenants, or tenants by the entirety. As a result, we believe Doug Brown's petition would likely be deemed valid by a Court due to his joint ownership of the land at issue. Therefore, we recommend that Mr. Brown's petition be put on the next available agenda." However, after issuing that initial opinion we learned that the proposed amendments would affect all Residence A-1, A-2, and B Districts. The proposed amendments to Section 4.22.1 and to Article 8.000 would also affect general standards that apply in all zoning districts. It appears that Mr. Brown is a trustee for a trust that owns 35 Standish Street, which is in a Residence B Zoning District. However, the amendments are not limited to affecting Mr. Brown's property or the district in which his property is located. A single citizen cannot initiate a zoning amendment that would affect a zoning district in which the single citizen has no property interest. Bellingham Massachusetts Self Storage, LLC v. Town of Bellingham, 101 Mass.App.Ct. 1108 (2022) (unreported). Accordingly, the Brown Petition cannot be initiated by an individual landowner. It may be permissible as a zoning petition filed by ten registered voters, but that was not the case here. At the Council meeting on February 6, 2022, Councilors compared the Brown Petition to another pending zoning petition that was described as being a petition affecting land in North Cambridge that was filed by a developer who does not even own the land in question. Councilors asked why the Brown Petition is defective if the other petition concerning land North Cambridge is valid. However, the only pending zoning petition affecting land in North Cambridge is the Barrett et al. Petition, which is signed by Patrick Barrett as the first signature, but which is a petition signed by over ten registered voters. For those reasons, it is my opinion that the Council should rescind the vote to refer the Brown Petition to the Ordinance Committee and Planning Board for hearing because the Petition is defective as a matter of law. Very truly yours, City Solicitor 2