A communication transmitted from Louis A. DePasquale, City Manager, relative to Awaiting Report Item Number 18-60, regarding small business parking pilot

Nancy E. Glowa Assistant City Solicitors Paul S. Kawai City Solicitor Keplin K. U. Allwaters Arthur J. Goldberg TIRES ANTIONS Sean M. McKendry Deputy City Solicitor Megan B. Bayer Brian A. Schwartz Samuel A. Aylesworth Katherine Sarmini Hoffman First Assistant City Solicitor CALED ACTINE Public Records Access Officer Seah Levy CITY OF CAMBRIDGE Office of the City Solicitor 795 Massachusetts Avenue Cambridge, Massachusetts 02139 July 29, 2019 Louis A. DePasquale City Manager Cambridge City Hall Cambridge, MA 02139 Re: Response to Awaiting Report No. 18-60, Policy Order #133 of 5/14/18 Re: Report on a small business parking pilot that would allow temporary on-street employee parking during typical daytime operating hours Dear Mr. DePasquale: We have prepared this legal opinion in response to Awaiting Report No. 18-60, Policy Order #133 of 5/14/18, which requests a report on the feasibility of implementing a small business parking pilot that would allow temporary on-street employee parking during typical daytime operating hours. Specifically, Awaiting Report No. 18-60 requests that the City Manager work with the Traffic and Parking Department and the Economic Development Department to ... determine the feasibility of implementing a program that would allow day or temporary [parking] passes for small business [employees] during daytime operating hours." In my opinion, as discussed further below, allowing employees of local businesses to park in on- street resident-only parking spaces may be found to be contrary to the purposes for which the City's resident permit parking program was established. Therefore, if there is a future challenge to the constitutionality of the City's resident permit parking program, allowing local business employee parking on residential streets could impact the City's defense of the resident permit parking program. The Department of Traffic, Parking and Transportation was established by Special Act, Chapter 455 of the Acts of 1961 (the "Act"), which has been amended on several occasions. In 1972 and 1981, the Act was amended by Chapter 340 of the Acts of 1972 and Chapter 166 of the Acts of 1981, to authorize an exception from parking prohibitions in specified residential areas for vehicles of City residents. This is the legal authority for the residential permit parking regulation that designates certain streets for resident parking only and requires residential parking permits. City of Cambridge Traffic, Parking and Transportation Regulations, Schedule 7B (2014). In 1977, an individual was charged with a parking violation arising out of parking on a City street that was designated for residential parking only, and was found guilty and appealed Telephone [phone removed] TTY/TTD [phone removed] Facsimile [phone removed]

2 the conviction. The defendant challenged the constitutionality of the residential permit parking regulation adopted under the authority of the Act on the basis that "the parking regulation discriminates against him as a nonresident in violation of his right to equal protection of the law," and the case was reported to the Supreme Judicial Court (the "SJC"). Com. v. Petralia, 372 Mass. 452, 455 (1977). The SJC upheld the residential permit parking regulation and found that "the classification made by the regulation bears a rational relation to proper legislative objectives." Id. at 452. In reaching this conclusion, the SJC looked at whether allowing only City residents to park on certain streets, while excluding others from parking on those streets, is rationally related to a legitimate State purpose. The SJC held that the legitimate State purpose furthered by the Act is the "the public interest in reducing highway congestion, in reducing air pollution and in encouraging the use of public transportation in place of private transportation." Id. at 457. The SJC further held that the exclusion of non-residents in favor of Cambridge residents is rationally related to this legitimate State purpose because: [those Cambridge residents most interested in parking in the restricted area are those who live in it. If they leave their cars parked near their homes, they contribute nothing to air pollution or to the congestion of moving traffic on the highways. In general, those Cambridge residents who do not live in the restricted area but are permitted to park in it have a shorter distance to travel and will contribute less to traffic congestion and pollution than will persons driving to the restricted area from other municipalities. Id. at 458. In conclusion, the SJC found that the rational distinction made by the Cambridge regulation is founded on vehicle use, and that place of residence is a reasonable means of measuring that use. Id. at 459. Accordingly, if employees of local businesses were allowed to park in on-street resident- only parking spaces, the City's resident permit parking program could be subject to a challenge on the basis that business employee parking, which necessarily includes residents of other municipalities, weakens the legitimate State interest, i.e., mitigating traffic congestion and air pollution, and encouraging use of public transportation, that is furthered by the resident permit parking regulation. Indeed, allowing local business employees to park in on-street resident-only parking spaces would likely increase the number of cars that are contributing to congestion, air pollution, and private vehicle use, and it would likely reduce parking availability to Cambridge residents who, by leaving their cars on streets nearest their homes and taking public transportation, are not contributing to congestion, air pollution, and private vehicle use. Therefore, if local business employees are allowed to park in on-street resident-only parking spaces, the City's resident permit parking program may be vulnerable to a legal challenge on the basis that the restriction is no longer rationally related to a legitimate State interest. Very truly yours, . Glowa Naney B City Solicitor