A communication transmitted from Louis A. DePasquale, City Manager, relative to legal opinion received from City Solicitor Nancy Glowa, regarding the question of repetitive zoning petitions, specifically relative to the Brown Petition

Nancy E. Glowa Assistant City Solicitors NILOVIS City Solicitor Paul S. Kawai Samuel A. Aylesworth Arthur J. Goldberg Keplin K. U. Allwaters Deputy City Solicitor Sean M. McKendry Megan B. Bayer Vali Buland Brian A. Schwartz First Assistant City Solicitor CCO RAGININE Public Records Access Officer Jennifer Simpson CITY OF CAMBRIDGE Office of the City Solicitor 795 Massachusetts Avenue Cambridge, Massachusetts 02139 September 17, 2018 Louis A. DePasquale City Manager Cambridge City Hall 795 Massachusetts Avenue Cambridge, MA 02139 Re: Douglas Brown, et al., Zoning Petition - Repetitive Petitions Dear Mr. DePasquale: We have prepared this legal opinion in response to Mayor Marc McGovern's request for an opinion as to whether unfavorable action on the Douglas Brown et al., Zoning Petition (the "Petition") will bar future zoning amendment petitions initiated by the City within two years that address some of the same subject matter. No appellate court has interpreted the two-year bar on repetitive petitions and whether it applies to a specific proposal repetitively filed by the same proponent, or a different proposal concerning the same subject matter submitted by a different proponent. As this is an open question, a petition concerning the same subject matter acted upon by the City Council within two years may be subject to challenge. However, in my opinion, the more substantial the differences in the petition, the more likely the petition would withstand challenge. General Laws c. 40A, §5, and 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. Here, the Planning Board has voted not to recommend the adoption of the Petition. No appellate court has yet to interpret this provision and to determine whether the two-year bar on a repetitive petition applies only to an identical petition brought by the same proponent, or whether it is a bar on all identical petitions or all petitions that address the same subject matter. We have previously opined in a legal opinion relating to two zoning petitions that were pending at the same time and were both related to the same issue of short-term rentals that the two-year bar on resubmitting a proposed ordinance only pertained to a specific proposal brought by a proponent, and not to a different proposal concerning the same subject matter, because while the two petitions concerned the same Facsimile [phone removed] Telephone [phone removed] TTY/TTD [phone removed]

2 subject matter, the petitions were substantively different, and brought by different proponents. Massachusetts Zoning Manual §3.5.7 (Mass. Cont. Legal Educ. 5'' ed. 2015). A recent Land Court case analyzed this issue, and while it does not set precedent and is not binding on other courts, it is informative as to how another court may interpret this issue. In Penn v. Town of Barnstable, 2018 WL 2085547 (Land Ct. 2018), the Barnstable Town Council filed a proposed zoning amendment creating an overlay district. The Barnstable Planning Board voted not to recommend it, and the Town Council's vote on the zoning amendment failed. Thereafter, within the same year, the Town Council filed a new zoning amendment petition that was identical, with the exception of three provisions that were modified. The Town Council adopted the new zoning amendment, but it was challenged in court. The Land Court analyzed the differences in the two zoning amendment petitions by looking to an analogous situation of whether amendments made to a zoning petition on the floor of a town meeting, or by a town or city council, are "changes in a zoning amendment that are within the scope of the original proposal [that] do not require further notice." The Land Court found that "changes in the degree and not in the type of the regulations imposed, and relatively minor changes" are within the scope of the original proposal and do not have to re-noticed pursuant to G.L. c.40A, §5, before the legislative body votes. The Land Court then applied the opposite reasoning to the question of whether a subsequent zoning amendment petition brought within two years is barred. The Land Court concluded that if the only changes in the second petition would be within the scope of the first petition, such as "changes in the degree and not in the type of the regulations imposed" or other minor changes, the second petition is a repetitive petition that is barred for two years pursuant to G.L. c.40A, 85. In Penn v. Town of Barnstable the Land Court found that the changes between the two petitions submitted by the Town Council were only "minor adjustments" and not changes such as changes to the overlay district's boundaries, and therefore, the second petition was barred as a repetitive petition. The Town of Barnstable has appealed from judgment in this case, and that appeal is pending. The outcome of that appeal could change our analysis of this issue. The Land Court's analysis supports our previous advice that two proposals that address the same subject matter, but in different ways, are likely not barred by the two-year bar on repetitive petitions. For example, the Petition seeks to expand the Flood Plain Overlay District, and it is possible that as a result of the City's Climate Change Vulnerability Assessment and Climate Change Preparedness and Resiliency ("CCPR") planning efforts the City could also seek to change the Flood Plain Overlay District. Following the Land Court's reasoning in Penn, if the City's proposed changes expand or amend the Flood Plain Overlay District to cover more or less, or different, geographical area that the Petition, the City's subsequent proposal would likely not be barred as a repetitive petition. Likewise, the City is presently developing two neighborhood-scale plans for Alewife and The Port to inform the citywide CCPR plan, and if as part of that work the City seeks to submit a zoning amendment petition that incorporates some aspects of the Petition but only within Alewife and the Port, the City's proposal that is limited to those areas would likely not be barred as a repetitive petition.

3 On the other hand, if any proponent submitted a new zoning amendment petition that addressed all of the elements of the Petition, but only made changes such as reducing the required tree canopy in the Flood Plain Overlay District from the 30% proposed by the Petition to some lesser percentage, and other changes that are minimal and only a change to the degree of a requirement, the new petition would likely be barred Therefore, as we have previously opined, we recommend that the determination of whether a petition is barred by this provision will depend upon who the proponents are of each petition, the specific content of the petition and the general subject matter of the petition, in order to determine how similar the petitions are. However, the Land Court's decision in Penn v. Town of Barnstable offers some guidance for making those case by case determinations, and supports our opinion that a petition that regulates the same subject matter in different ways is likely not barred. Very truly yours, %. Glow Nancy City Solicitor