Planning Board - Planning Board Meeting

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Meeting Title: Planning Board - Planning Board Meeting
City: Cambridge, MA
Date Published: 2025-07-08

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AI Disclaimer: Summaries and transcripts above were created by various AI tools. By their nature, these tools will produce mistakes and inaccuraies. Links to the official meeting recordings are provided for verification. If you find an error, please report it to somervillecivicpulse at gmail dot com.

Time & Speaker	Transcript
SPEAKER_07	Mary, we are all set with the recording and live streaming.
Mary Flynn	Okay, I just want to let you know, looking at the list of attendees, Patrick Yerby is on that list, so you just need to be aware to let him in when it's time. Okay.
SPEAKER_08	Oh, yes, of course. I can hold him right now. Oh, okay. Great.
Mary Flynn	Good evening, everyone. Welcome to the July 8th, 2025 meeting of the Cambridge Planning Board. My name is Mary Flynn and I am the chair. Pursuant to Chapter 2 of the Acts of 2025, adopted by the Massachusetts General Court and approved by the governor, the city is authorized to use remote participation at meetings of the Cambridge Planning Board. While board members, applicants, and members of the public will state their name before speaking, All votes will be taken by roll call. Members of the public will be kept on mute until it is time for public comment. I will give instructions for public comment at that time. And you can also find instructions on the city's web page for remote planning board meetings. This meeting is being video and audio recorded and is being streamed live on the City of Cambridge online meeting portal and on cable television channel 22 within Cambridge. There will also be a transcript of the proceedings. I'll start by asking staff to take board member attendance and verify that all members are audible.
SPEAKER_17	Jeff? Thank you, Mary. This is Jeff Roberts, Community Development Department. H. Theodore Cohen, are you present? Is the meeting visible and audible to you?
Ted Cohen	Present, visible, and audible.
SPEAKER_17	Thank you, Ted. Mary Lydecker, are you present? And is the meeting visible and audible to you? Not hearing Mary, so maybe we'll go back. Diego Macias, are you present? And is the meeting visible and audible to you? Present, visible and audible. Thank you, Diego. Tom Sieniewicz, are you present? And is the meeting visible and audible to you? Tom is absent. Ashley Tan, are you present and is the meeting visible and audible to you?
Ashley Tan	Present, visible, and audible.
SPEAKER_17	Thank you, Ashley. Carolyn Zern, are you present and is the meeting visible and audible to you?
Carolyn Zern	Present, visible, and audible.
SPEAKER_17	Thank you, Carolyn. Dan Anderson, are you present and is the meeting visible and audible to you?
Dan Anderson	Yes, to all the above, Jeff.
SPEAKER_17	Thank you, Dan. We're to the associate members now. Joy Jackson, are you present and is the meeting visible and audible to you?
Carolyn Zern	Present, visible, and audible.
SPEAKER_17	Thank you, Joy. And I will look again. Yes, it doesn't appear that Mary Lydecker has joined us at this time. Mary Flynn, can you confirm that the meeting is visible and audible to you?
Mary Flynn	It is both visible and audible. I was trying to come online, so she must just be having trouble logging in.
SPEAKER_17	Okay, so thank you to the chair. We do have five planning board members present and two associate members, so we can begin the meeting if you'd like.
Mary Flynn	Thank you very much, Jeff. The first item this evening is an update from the Community Development Department. I'm going to turn back to Jeff for that. And Jeff, if you would also introduce any staff who are present at the meeting tonight.
SPEAKER_17	Thank you, Mary. So once again, I'm Jeff Robertson. I'm the Director of Zoning and Development in the Community Development Department. With me here on my team in Zoning and Development is Swathi Joseph. and we're joined by Megan Bayer, the city solicitor who we'll be hearing from shortly. So just, I'm sorry, Mary Lydecker, are you present and is the meeting visible and audible to you?
Mary Lydecker	Present, visible and audible.
SPEAKER_17	Thank you, Mary. So let the record show that Mary Lydecker is present. And so we have one, whoops, we have six planning board members present and two associate members. Back to the update. Welcome to summer at the Planning Board. The Planning Board does continue to meet throughout the summer. Upcoming meetings, well, this meeting, first of all, we do have just one public hearing, so we'll be getting to that shortly. And as for upcoming meetings, we have one scheduled on July 22nd. That's in two weeks. We're going to do something a little bit different than what we've been doing. This will be a primarily an in-person meeting. We will be conducting it in a hybrid format. It will be Zoom only if you're participating remotely. So you'll have to look for it using the Zoom link and not the regular public video link. It will be in person in our old meeting location, which we haven't been to in a very long time. It's 344 Broadway in the second floor meeting room. And that will be an all general business item meeting. The primary focus of that meeting will be to discuss planning and zoning recommendations that came out of the Massachusetts Avenue Planning Study and going back in time a little bit, the Our Cambridge Street Planning Study. Our goal, and we've discussed this with the city council, is to bring zoning petitions forward for both of those areas based on those planning recommendations to the fall to the city council. And so we wanted to have the opportunity to give the planning board an update just on the kind of high-level zoning recommendations and have a little discussion as we then proceed to get into the details and work on that over the summer. So that should be an interesting meeting. We also expect we may have some, we'll have some BZA cases to review that day because we have an upcoming BZA meeting. Moving forward, we have a couple of meetings planned in August. August 5th, we have a couple of items which I'll just announce quickly. There will be a public hearing on, this will be going back to the usual remote format for public hearings. This one will be also, I believe it will be over Zoom only. So make sure you check the website to make sure that if you want to view that hearing, you're connected. There will be a public hearing on a city zoning petition related to short-term rentals. We'll hear more about that when we get there. And then a design review for an affordable housing overlay development proposed at 28 to 30 Wendell Street. We have a The next meeting would be scheduled for August 19th. So you can put that in your calendar. I won't go through all of the items for that at this point, but we'll update you later on those and we'll have the website updated. So that's it for the planning board. As for just some city council updates, the city council is on a hiatus from their regular meetings. They meet again on August 4th. And as I've been giving some updates on zoning, activity at the city council. Just note that there are still two zoning petitions that are pending that could be voted on at that August 4th city council meeting. And those include the biomed zoning petition that affects the site along Charles Street, which the planning board gave a positive recommendation on. And then the zoning petition that the planning board will be talking about tonight is also up for potential ordination on August 4th. So that's my update unless there are any questions.
Mary Flynn	Okay. Ted, you have a question?
Ted Cohen	Yes. I'm sorry, Jeff. Did you say the next meeting was July 22nd?
SPEAKER_17	Just double-checking.
Ted Cohen	I thought it was July 29th, but I could be wrong.
SPEAKER_17	It is July 22nd.
Ted Cohen	Okay. Thank you.
Mary Flynn	Any other questions on the update? Okay. So our next item is approval of meeting minutes. The board has received a certified transcript for the meeting held on April 15th, 2025. If board members have questions about the minutes, please let me know now. I'm not seeing any hands raised. We're going to take a motion then to accept the transcript as the meeting minutes. This is going to be just for board members only. Someone please make that motion to accept the transcript as the meeting minutes.
Diego Macias	Diego, so moved.
Mary Flynn	Thank you, Diego. Is there a second, please?
Ted Cohen	Ted second.
Mary Flynn	Thank you. And gentlemen, we have a roll call.
SPEAKER_17	On that motion, Ted Cohen. Yes. Mary Lightacre.
Mary Lydecker	Yes.
SPEAKER_17	Diego Macias. Yes. Ashley Tan.
Carolyn Zern	Yes.
SPEAKER_17	Carolyn Zern.
Carolyn Zern	Yes.
SPEAKER_17	Mary Flynn.
Carolyn Zern	Yes.
SPEAKER_17	That's all six members present voting in favor.
Mary Flynn	Thank you very much. Okay, moving on to the main subject of tonight's meeting, which is the continued public hearing on a zoning petition by Mujla Marrazzo et al. to amend the Cambridge zoning ordinance in sections 5.2821, 8.22.1, 8.22.2, and table 5.1. to remove gross floor area and floor area ratio limitations for religious uses, to permit conforming additions to non-conforming structures without limitation for religious uses, and to permit religious uses with the same dimensional DIMENSIONAL LIMITATIONS AS RESIDENTIAL USES EXCEPT THAT IN A RESIDENT C-1 DISTRICT PERMEABLE OPEN SPACE WOULD NOT BE REQUIRED. BUILDINGS WOULD BE PERMITTED UP TO SIX STORIES AND 74 FEET ABOVE GRADE WITHOUT MEETING INCLUSIONARY HOUSING REQUIREMENTS AND BUILDINGS TALLER THAN 35 FEET AND THREE STORIES ABOVE GRADE WOULD NOT BE REQUIRED TO NOTIFY NEIGHBORS AND HOLD A MEETING. So with that, I'm going to turn over to Jeff, who's going to give us an overview as to why this is before us this evening and an update before we proceed with the rest of the evening. Jeff?
SPEAKER_17	Thank you, Mary. Jeff Roberts again. So I'm just going to bring everybody up to speed on where we are with this hearing. So just as a reminder, this is a zoning petition. and the planning board's role is to have the public hearing and to make a recommendation to the city council. So this hearing was opened on May 20th and the planning board heard from the petitioners and from the public. After a little bit of discussion, the board continued the hearing and requested a legal opinion from the law department, which is something that the city council had also done. So that legal opinion has now been made available. It was made available back in June, shared with the city council and the planning board and made available to the public. And the ordinance committee had a continued hearing on June 16th with consideration of that legal opinion. They voted to refer the petition to the full city council with no recommendation. And the city council later at their meeting on June 30th passed the petition to a second reading. And that's a necessary procedural step in order to make it possible for the city council to vote on final ordination at the summer meeting on August 4th. So going just back to the ordinance committee discussion, when they were discussing this, they did ask the city, us in the law department, to look at some potential modifications to the petition, particularly around the open space requirement, the neighborhood notification requirement, and some clarifying aspects of the wording around inclusionary housing and height limitations. We'll plan to respond to those questions before the petition comes back to the City Council for final ordination. But today, the planning board's role is to consider the legal opinion, discuss the petition any further, and decide whether to transmit a report to the city council with any considerations they might take into account before taking final action on this. I'm going to turn it over to Megan Bayer, the city solicitor, to provide an update on the legal opinion that was provided. My suggestion to the board is to take any questions or to ask any questions at that time that Megan might be able to answer. The petitioners would then like to provide some additional comments. The board, I think at that time, can take any additional public comment on the new information that's been provided and then proceed to board discussion. So with that, I'll turn it over to Megan.
SPEAKER_06	Thanks, Jeff. So good evening to everyone. So I'm going to just give a high-level summary of some of what's discussed in the opinion. I think everyone's had an opportunity to review the opinion. We met with the City Council and Ordinance Committee and went over the opinion in detail. and answered a number of questions at that time. And I'm happy to answer any questions that the board members have tonight based on this opinion. I wanna preface with saying that some of you may be aware that there is litigation that the city and specifically the BZA is involved in that involves Lubavitch of Cambridge Incorporated. And Lubavitch is also involved in this petition. But this petition is separate and distinct from that litigation. It's not a part of that litigation. This would make changes to the zoning ordinance that would apply across the board, across the entire city for any type of religious use. So we're not discussing specifically the litigation or the two applications that have been before the BZA related to Lubavitch's property on Bank Street. Just wanted to set that expectation off the top. So when you all met previously, you had a number of questions about the petition, and then the council also had had some questions. So I tried to synthesize those questions instead of going through one by one and answering the questions, but to talk about the different themes that came up in both the board's questions and the council's questions. So to start... What I heard from both the council and the board are questions about both state law and federal law. So in state law, we have what's known as the Dover Amendment, which is language in Chapter 40A, Section 3. And as you know, 40A is the Zoning Act. And this language in Chapter 40A, Section 3 provides protections for religious and nonprofit educational uses. And the protections are that no zoning ordinance can prohibit religious and nonprofit educational uses. And also that municipalities can provide impose reasonable dimensional regulations on religious and nonprofit educational uses. Now, back in 1979, the city got special legislation to alter how the Dover Amendment applies in Cambridge. At that time, I understand there were concerns about educational institutions buying up property in residential neighborhoods and expanding. And so the council proposed in the state legislature issued special legislation that said that In Cambridge, the city could restrict or regulate land use, religious and nonprofit educational land use in zoning districts that require a lot area of 1,200 square feet per dwelling unit. So that meant that in the, I think it was just in the A and B districts, residential A and B, that we could have our institutional use regulations that prohibited or regulated religious and nonprofit educational uses. Now that multifamily zoning passed, one of the things that multifamily zoning did was eliminate the lot area per dwelling unit for residential uses citywide. So in the what's now the C1 district, there is no lot area per dwelling unit. So the special legislation would no longer apply because we don't have districts that set a 1,200 square foot lot area per dwelling unit. So there are going to need to be updates to the city's institutional use regulations to reflect this change. We have that working with CBD on our list of changes that we have to do as a result of multifamily housing. And so we are planning on coming back to the council and the planning board with a zoning petition that will make those changes. Even once those changes have been made and even without having the benefit of the special legislation, the city can still impose reasonable dimensional regulations on religious and nonprofit educational uses. What is considered a reasonable regulation has to really be looked at on a case-by-case basis. So We don't have to specifically set dimensional regulations that we think will be reasonable in all circumstances. But if there's a religious or nonprofit educational use that is seeking to develop a piece of property and feels that the dimensional regulations in place are not reasonable as applied to its project, it will be able to seek zoning relief and make the argument that these are not reasonable regulations and it's entitled to relief. Some of the things that courts have looked at to determine whether regulations are reasonable are looking at whether they impede the usefulness of a structure, impose excessive costs on an applicant, impair the character of a proposed structure without significant gain in terms of municipal concerns. So a well-known example of a Dover Amendment case is if you are driving out on Route 2 in Belmont, the Mormon temple that has a taller steeple than would have been allowed under their zoning ordinance they were able to make the argument that the regulations were not reasonable as applied to their structure because for religious purposes, they needed to have that temple that exceeded the height limit that was otherwise in place. So that's state law protection for religious uses and also for educational, nonprofit educational uses. Then we also have RLUPA, which is the Religious Land Use and Institutionalized Persons Act, which is a federal law that provides protection, but just for religious uses. So what RLUPA does for land use says that a government cannot implement a land use regulation that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government carries its burden to show that the regulation furthers a compelling government interest and is the least restrictive means of doing so. There have been a number of cases that have looked at all of these elements. The elements aren't defined in the statute, so we do have to look to how the cases have interpreted them to know what is the substantial burden, what is a compelling government interest, and what would be the least restrictive means of furthering that compelling government purpose. There have been cases that have found that it's a substantial burden when the land use regulations restrict the size of a facility and the facility or the religious institution needs more space to accommodate its religious practice. So a number of cases that have looked at that where the facility wasn't large enough or if a facility needed a special size to accommodate a kitchen that was necessary for its religious practice. So those are examples of where religious use didn't have a large enough building to accommodate its religious practices. And that was found to be a substantial burden. For the city to then, or for any municipality to then come back and say those land use regulations have a compelling government interest, that interest has to be tied to protecting public health, safety, or welfare. So generally the same purposes for which we have zoning in the Cambridge zoning ordinance are found in the beginning in the purpose section. Another example where there was not a compelling government interest was a case in the town of Lenox, in Lenox, Massachusetts. And there, it was for a religious educational use. And there were concerns about traffic and public safety, but those were found to not be compelling government interests because the regulations at issue there would have only applied for the religious educational use and not if it had been a municipal educational use. So it wasn't a compelling interest if some types of educational uses wouldn't be subject to the regulations and some would. And then for looking at what is the least restrictive means of furthering a compelling government interest. So it's possible that concerns like traffic could be a compelling government interest or traffic impacts. However, if it's... The municipality denies a land use permit because of that interest in traffic impacts. That's probably not going to be found to be the least restrictive means because it could be possible to condition some type of land use permit to have traffic mitigation measures put in place to address the traffic concerns. So similar to the Dover Amendment, RELUPA has to be looked at on a case-by-case basis. So it's not necessary that there be separate zoning in place that applies to religious uses. but absent zoning that accommodates religious uses, there has to be that analysis done by inspectional services department, BZA, potentially the planning board. When an applicant comes with a request for religious use, there has to be that case-by-case analysis and make sure that all of those prongs of the analysis are met. Okay. It's also, RELUPA also says that you can't have a zoning ordinance that treats a religious use on less than equal terms as a non-religious use. So you can't discriminate against a religious use in your zoning ordinance. So if, for example, a secular school is allowed, but a religious school is not allowed, that's likely going to violate RELUPA. Similarly, in a case that dealt with allowing an assembly hall for secular purposes, but didn't allow a church, that was a violation of RELUPA because it was treating the religious use on equal footing. So it's really important that municipal land use bodies like the BCA and the planning board and ISD staff, building commissioners, apply RELUPA when there are requests from religious uses, religious institutions, because there are risks associated with a claim brought under RELUPA by a religious institution. If a religious institution is successful, they can be entitled to damages and attorney's fees, and they can invalidate a permit and end up getting the relief they were seeking initially. So the takeaways looking at this particular petition are that this type of petition would help limit potential liability for the city. The city can't prohibit religious uses under the Dover Amendment and only can impose reasonable regulations. And the city has to look at a religious use to see if it's substantially burdened. Does the city have a compelling governmental purpose? And is it being imposed in the least restrictive way? And that has to be done on a case-by-case basis. So that does mean going before either ISD or boards for relief and applying RELUPA. There's an argument to be made that with multifamily zoning allowing certain dimensional requirements and allowing height up to six stories, that this city doesn't have a, could, you know, it could be argued that the city doesn't have compelling government purpose in imposing more restrictive dimensional requirements or heights on religious uses if it has allowed greater density, greater dimensions, and greater height for residential uses. So in some ways, this petition would limit potential future liability by putting religious uses on equal footing as residential uses. Even without this petition and these amendments to the zoning, there could still be building in the city that exceeds what's presently allowed for religious uses because they would have to go for zoning relief or go to the ISD for a building permit and the case-by-case analysis would have to be done. It's also possible that if these amendments are passed, there could be a religious use that is seeking something, you know, additional height. For example, like the Mormon steeple in Belmont, there could be a request for some height that exceeds six stories. And so then there would still need to be the case by case analysis done. So it's not mandatory under RLUPA that this petition be passed, but it would limit potential future liability for the city by making these not purely the discretionary decisions before our land use boards, but putting religious uses on par with residential uses in zoning. So that's a summary of what we looked at to try to answer your questions. And I'm happy to try to answer any additional questions you have.
Mary Flynn	Thank you very much, Megan. That was a very detailed analysis. We appreciate it. Board members, do you have questions for Megan at this time? Should be here throughout the meeting, but just in case, let's start off with those. Ashley, let's start with you, please.
Ashley Tan	Thank you, Madam Chair. I don't know if this is a question for Megan or for Jeff, but I feel like I was reading somewhere about, was it the ordinance committee that passed a order asking the staff and the city manager to look at you know, changes to, I think it was this amendment, but specifically to like footnote one and 37. And can someone kind of detail that? And was that, I wasn't, I was unclear if that was like passed or not since they gave a recommendation of what is it? No, I don't know wording, but.
SPEAKER_06	I'm happy to start and Jeff can jump in. So they, yes, at the ordinance committee, they did make a motion to ask staff to look at these few things. And Jeff has mentioned this, touched on this in his introduction. So one of the elements was to look at adding in a non-binding NEIGHBORHOOD REVIEW LIKE WE HAVE WITH THE MULTIFAMILY ZONING. ANOTHER ONE WAS TO ADD IN THE PERMEABLE OPEN SPACE REQUIREMENT THAT EXISTS FOR MULTIFAMILY ZONING. AND THEN THE THIRD WAS TO CLARIFY THE PETITION PROPOSES TO ALLOW UP TO SIX STORIES BUT WITHOUT AN INCLUSIONARY HOUSING REQUIREMENT. And the council wanted clarification or for staff to add clarifying language to make it clear that it would only be not having the inclusionary requirement would only be the case for religious uses and other types of mixed uses that went up to six stories would still be subject to the inclusionary requirement. Does that capture it, Jeff?
SPEAKER_17	I think so. I think the main theme is that, you know, the primary kind of thrust of this petition is that it says that religious uses follow the same dimensional limitations as residential uses in the Residency 1 district. But there were these different things that were called out where the petition, you know, adds. So there's a provision in Residency 1 that says in addition to the required percentage of open space, at least half of the requirement has to be private open space, what's called private open space, and half it has to be permeable, which is basically meant for occupants of the building and meet certain dimensional requirements. And then at least half it has to be permeable open space. And, you know, and then there's also the provision for if it's above three stories, it has a neighborhood notification, meaning the petition, you know, proposed to, to kind of give an exception to religious uses. And the city council asked, well, is that something that would, you know, be considered a substantial burden when we should ask us to look at that a little bit further, just to, to ask the question of whether the same requirements that would apply to residential will be reasonable, um, to continue to apply in that case. So those are the, and, um, On the inclusionary, it's because of the, if you look at the wording of the petition, it says that if the building, if the use of the building is primarily residential, it must comply with the inclusionary requirements. And there were some questions as to whether that could be construed in a different way than was intended. So that's how that works.
Mary Flynn	Okay. Ashley, did you have a follow-up?
Ashley Tan	Sorry, no, I meant to say thank you.
Mary Flynn	Oh, okay, very good. All right, Ted, let's go to you next.
Ted Cohen	Actually, it's just a follow-up on Ashley's question and Jeff's response. So if it were not a residential use in the C1 district, what would be the inclusionary housing requirement?
SPEAKER_17	So in inclusionary, I can sort of take that to start off with. Inclusionary applies to residential uses. It applies to developments which create at least 10,000 square feet of residential use or at least 10 dwelling units. And so it wouldn't normally apply to a religious use or another non-residential use. the place where it gets confusing is that the zoning, if you think back to the multifamily zoning that was adopted back in February, it says that in a residency one district, the height limit is for residential use is four stories above grade, but it can be six stories above grade if the project is compliant with the inclusionary housing requirements. So now sort of taking that taking that provision and applying it to non-residential uses creates a little bit of confusion that we want to make sure is extremely clear because, you know, there are some non-residential uses in residential districts. They're allowable under different types of institutional uses or other uses that might be allowable by special permit or something. So we just want to make sure that this wouldn't be construed to say that you could, you know, allow six stories if the other non-residential uses were applied, which would then not be subject to inclusionary housing. Similarly, I think also just the fact that it's worded to say that if the use is primarily... I had it just in front of me. Primarily... residential, then there's sometimes a question of, well, what does primarily mean? And if a building is partly residential, but partly something else, would the inclusionary requirements apply or not? So that's another issue that we would need to make sure is clear in the final wording. Does that answer the question?
Ted Cohen	Yes. Thank you.
Mary Flynn	Are there questions for staff at this point?
Carolyn Zern	Carolyn. Thank you. A question on the, well, I think a question for Megan. Regarding the discrimination against religious uses and passing of this petition lowering the risk to the city of litigation, My understanding is that Cambridge is, I guess, two questions. One is my understanding is that Cambridge is facing a housing crisis and affordability crisis. Is there any similar religious space crisis of any kind that has come before you or that you're aware of in the city?
SPEAKER_06	So I'm not aware of... whether there has been you know some type of hardship with religious uses expanding in the city generally um you know specific religious institutions may have had difficulties but i'm not aware of a sort of an analogous situation to the housing crisis We do have a variety of religious uses spread throughout the city presently. But yeah.
SPEAKER_17	And I can, and this is Jeff, and I'll just add, we did cover that somewhat in the CDV memo that was shared originally where we commented on, we usually, with zoning petitions, we start by looking at our planning and one of the one of the points that we made is there's in our planning, there really isn't that much discussion of, you know, do we need to allow for more religious uses or fewer? Do they need to be, you know, located in particular areas? It is, it's simply, it's a use that's allowed and under, you know, under the circumstances under which it's allowed. And it's, you know, tends to be, we had a map that showed that it was fairly distributed throughout the city and not necessarily concentrated in particular areas.
Carolyn Zern	Thank you. Good reminder. I appreciate that. I did read that. And I guess the other question that I have is similar. And this may very well be a dumb and obvious question. Megan, in the presumption that passing this would mitigate litigation risk, it's because there would be fewer case-by-case cases, so to speak, case-by-case petitions brought to the board or any other city institution rather than mitigating discrimination.
SPEAKER_06	Exactly. No, that's a good question. Yes, it would eliminate, not eliminate, potentially reduce the need for religious institutions to seek zoning relief. So reducing the number that are coming before the planning border, BZA. It's particularly given the argument that the city allows a certain height and density dimensional requirements for residential uses. So it then is harder to make the argument that the city has a compelling government purpose in reduced dimensional requirements, reduced height, reduced density for religious uses.
Mary Flynn	Okay.
Dan Anderson	Thank you.
Mary Flynn	All right. Let's go to Dan next.
Dan Anderson	Thank you, Madam Chair. So I guess this is all So height is the most kind of pertinent issue here, I think, in a lot of ways. And I'm looking at it in terms of, is there a less restrictive means of furthering height impact, which typically is due to light air, shadow, livability, things that zoning typically addresses? Is there a less restrictive way in which to mitigate height?
SPEAKER_06	Right. So, you know, if the compelling government purpose is, for example, blocking light, and a way of furthering that purpose is setting a height restriction of some certain height, I'm not sure what a less restrictive way would be. But what I think it can be hard to argue that we have a compelling government interest in preserving light for one type of use, but we allow another use in the same district to be, so I'm not articulating this well, but if we allow, we already allow some structures in a Residence C-1 district go up to six stories, it's harder to argue that we have a compelling government interest in protecting light on abutting properties that means that a religious use should not be allowed to go up to six stories.
Dan Anderson	So even if it's conditional, in other words, the relief granted to residential use is a compelling government issue to allow more affordable housing. is there an analogous provision that would say, hey, we're trying to prevent excessive shadowing and promote air and light and there's reasonable zoning pieces and that religious institutions or any nonprofit institution would be allowed likewise to have relief on that height limit provided that. either that they also included housing or other non, you know, I'm also struggling for the right way to think about this. Cause this is, I'm not an attorney and I'm just looking at it and saying, you know, it's, we're only allowing this height for residential as a particular type because we need housing. So maybe echo some of Carolyn's questions or like, six stories for residential or institutional use because there's such a compelling need for those additional religious uses that it can't somehow be accommodated within a height restriction.
SPEAKER_06	I think what's hard is the impacts are similar. Even though housing is addressing the housing shortage that we have in the city and in the state, the impacts on things like light, air, privacy are the same or similar whether the height is six stories of residential or six stories of another type of use.
Dan Anderson	I think that answers my question. Thank you.
Mary Flynn	Any other questions for staff before we move on? Okay. Ted.
Ted Cohen	Yeah, Megan. I'm just curious about what constitutes religious use. So if hypothetically a religious organization decided to build housing, puts its name on it, but does not restrict the housing to its congregants or to a particular people who are members of that religious organization, does that in and of itself make it a religious use?
SPEAKER_06	No, I don't think it does. So, yes, it is possible to have some housing that is a religious use. So, you know, we're familiar with... The words are escaping me now, but the type of building that nuns and the Catholic religion live in. So there are types of housing that are religious. But just because it's being developed and has the name on it of a religious institution doesn't make it a religious use. So in the Dover Amendment context, for example, there are a number of cases that have looked at whether something actually is an educational use. And I think there have been cases that have looked at summer camps And there have been cases with Regis College. I think there was a case where it was planning on adding housing for senior citizens on the campus and was trying to make the argument, and I can't remember ultimately which side was successful, but arguing that It would provide hands-on learning for some of the nursing students to work with the senior citizen population. So does that make it an educational use? And then also under the Dover Amendment, there's a case out of, it might be Attleboro or somewhere in that area, where there is a... it's a shrine that has a, does like a large Christmas display and sort of a tourist attraction. And so looking at what parts of it are actually religious uses and what parts might be some other type of use, but it happens to be conducted by a religious institution. So there has to be also in those situations, a case by case analysis, you know, really factual, fact dependent on whether something is a religious use. So just because a religious institution is seeking to build something doesn't automatically give it relief under Lupa or the Dover Amendment, there has to be some analysis of whether it is actually a religious purpose.
Ted Cohen	Thank you.
Mary Flynn	Okay. Well, we can return to questions if the board members have additional ones later on. But for the sake of time, let us move to the presentation this evening by the petitioner. This evening, the group is being represented by Patrick Yerby. Patrick, if you would please introduce yourself and any other speakers that you have with you. Please, you have up to 30 minutes to present regarding any new information that has been forthcoming since the beginning of the hearing in May. And please be as concise as possible. Thank you. I'll turn it over to you.
SPEAKER_15	Thank you. Again, Patrick Kirby from the firm Timon Davis and Duffy. We represent Lubavitch of Cambridge, which is one of the proponents of the proposed amendment. So we would like to present or begin our presentation with my colleague, who I believe is in the waiting room, Christopher Hall. He said that he might be listed as New York 32E. if it would be possible to elevate him to be on the panel.
SPEAKER_08	He has been added as a panelist now.
SPEAKER_15	Oh, great. So I'll turn it over to Christopher Hall then, if he's ready to begin the presentation.
SPEAKER_11	Thank you very much, Patrick, and thank you to all of you. It's a pleasure to be talking to you all again. I think we're here primarily to answer questions. We have a very short presentation that mostly just summarizes the things you've already been told. Ms. Bayer did an excellent job presenting out legal issues and the RLUPA side of this. Patrick, I believe you are in charge of the slides.
SPEAKER_15	Yeah, let me see if I can share my screen here. Sorry, one moment. No, no rush at all. Can everyone see?
Mary Flynn	Yes, we can. It's not the full screen, though. It shows the, you know, all of the slides to the left and then... Okay.
SPEAKER_15	Sorry, I'm not quite sure how to get rid of that.
Dan Anderson	Go to slideshow and hit present. Slideshow. Top menu bar.
Mary Flynn	Next to animate. About halfway through on the top... Top bar?
Dan Anderson	From left to right, it goes File, Home.
Mary Flynn	There we go.
SPEAKER_15	Sorry, where? I'm sorry. Can you say that again?
Dan Anderson	Yeah, so your top menu bar starts on the left-hand side with File, and if you go over about six or seven spaces, it says Slideshow, and under there, you can hit
SPEAKER_15	I just don't see the top. I don't see a top menu bar. Christopher, is there any way you could pull this up?
SPEAKER_08	I can do that, Patrick.
SPEAKER_15	Okay, thank you.
SPEAKER_11	Thank you. So while that's being pulled up, I just wanted to take a moment to follow up on two of the questions that I noted just to provide some extra clarification. so the there's a great question about uh the compelling government interest in traffic public safety light air shadow the classic zoning ordinance concerns and specifically in the ralupa context there is a case uh from the town of lennox uh minn city roman catholic diocese which basically says that those may be compelling government interests, but they can't be pointed to as compelling government interests if a non-religious use that had the exact same impacts on traffic, on public safety, on light and air would have been allowed in that space, but a religious use was not. So that sort of addresses that. The second question about, again, a great question about how this would function to reduce liability, is, yes, it would eliminate a lot of the case-by-case guesswork that would be necessary. We can go to the next slide, please. Eliminate a lot of the case-by-case guesswork that would be necessary because RELUPA applies and the substantial burden test of RELUPA applies even if there's no discriminatory intent. If the religious use is substantially burdened, that is sufficient. So you don't have to be intending to substantially burden religious use. This would remove a lot of those opportunities and smooth that process. So this is an update largely similar to what was already provided. I would like to draw your attention in particular to the third bullet point that the final zoning petition as highlighted will likely not contain those proposed amendments to footnotes one and 37. meaning that any future religious purpose use under this amendment would have to abide by permeable open space requirements, and the applicants would be required to do that non-binding meeting with the butters and neighbors. So those are going to be addressed. You can go to the next slide, please. This is just some of the highlights of the city solicitor's memo, things that we thought stood out to us. This amendment, again, only applies to religious uses. Obviously, the Massachusetts Dover Amendment sweeps more broadly than the federal law, RELUPA. But in light of the fact that religious uses have that extra protection under RELUPA, that institutional uses and educational uses do not. And in light of the fact that Cambridge has a very unique relationship with educational uses that it does not have with religious uses. If you go to the next slide, please. The Community Development Department's memo highlighted this, and this goes to another question about how educational uses have been the primary focus of institutional planning in Cambridge. Religious uses have been less so. Indeed, many of them have been converted to residential uses, alleviating some of that burden of the housing crisis. and religious uses are spread out throughout the city new buildings are relatively rare but when they are built they do have those protections under lupa and under the dover amendment so this proposed amendment would help manage the city's liability and would smooth the process of reviewing these applications by putting them on equal footing with residential uses To that end, my colleague Patrick over at Tymon Davis and Duffy can speak if you want to about the specifics of the amendment. Nothing has changed since the last time we were before you with the exception of that open space and meeting requirements likely being removed. And then as they were discussing earlier, the additional clarification around the fact that it would be religious uses that would be permitted to rise to six stories without having inclusionary housing and not, you know, standard mixed use. But other than that wordsmithing and those changes, it is, again, the same proposed zoning amendment that we previously went before you with. So to that end,
Mary Flynn	if you would like Patrick to discuss any details about that please let us know and we'd be more than happy to otherwise we are again more than happy to answer any questions you may have thank you very much um do board members have questions for the petitioner at this time or do you want further clarification on the um the petition as as it's We still have an opportunity for questions later on, but let us move on then to public comment. As we mentioned, this is public hearing. Any members of the public who wish to speak should now click the button that says raise hand. If you are calling in by phone, you can raise your hand by pressing star nine. As of 5 p.m. yesterday, the board had received additional written comments on this petition from Helen Walker. Written communications received after 5 p.m. yesterday will be entered into the record. So let's take a look at what we have. We have a couple of people. who would like to say something. So I'm going to ask staff to unmute speakers one at a time. Please begin by saying your name and address and staff will confirm that they can hear you. After that, you'll have three minutes to speak before I ask you to wrap up. I would also ask that you continue target your comments towards any changes that have happened that we've discussed this evening changes since the last time or the original petition but this is about the zoning petition so if you could focus on that we would appreciate appreciate it very much and with that I'm going to turn to Jeff to manage public comment thank you Mary this is Jeff so I'm just going to
SPEAKER_17	Looks like we have several speakers and I'm just gonna go through them. Please remember to say your name and address. The first two names are Deborah Epstein, but might not both be Deborah Epstein. So I'll unmute the first of those and you can start by giving your name and address, please.
SPEAKER_13	Hi, can you hear me?
SPEAKER_17	Yes.
SPEAKER_13	Deborah Epstein, 36 Bank Street. As a Cambridge resident who has followed the Lubavitch of Cambridge's proposals for the last 20 months, I was present at the June 18th meeting where the city solicitor advised the ordinance committee on the case of the petitioner's proposed zoning amendment. I was also present at the June 23rd city council meeting. I was dumbstruck that the city solicitor was turning to the petitioner's lawyer, the lawyer who is representing the petitioner in a suit against the city for legal interpretation and advice. Where is the city's expert in defending municipalities against RELUPA claims? Apparently nowhere for the city of Cambridge. The firm that Cambridge hired to support them in this effort, while a reputable firm, has strong experience in discrimination, but in employment law, not RELUPA. The residents of the city of Cambridge are without experienced legal representation in a very specific area of law. So the residents do feel that the city solicitor has invited the fox to guard the hen house. The residents feel unrepresented and unnecessarily left in harm's way. For instance, what about the compelling government interest of the intensity of use of an institutional building versus a residential use? THAT PER THE INTERNATIONAL BUILDING CODE, AN INSTITUTIONAL BUILDING CAN HAVE AN OCCUPANCY OF TEN TIMES THE OCCUPANCY OF A RESIDENTIAL BUILDING THE SAME SIZE. SO 2,000 PEOPLE IN AN INSTITUTIONAL BUILDING WHERE A RESIDENTIAL BUILDING WOULD HAVE AN OCCUPANCY OF 200. Until now, we have only heard about RLUPA cases that municipalities lost. I implore the planning board to get better information regarding the possibilities via the case law of how RLUPA has been decided in so many cases in favor of the municipality. The city has so much more latitude than has been represented by the city solicitor. These decisions have a serious impact on the lives of the residents of Cambridge. Thank you.
SPEAKER_17	Thank you. And I apologize for mispronouncing your name. The next speaker is also listed as Deborah Epstein, but you can begin with your name and address.
SPEAKER_00	Yeah, can you hear me? Yes. Yes, can you hear me? Yes. Thank you. Yes, I did want to stress that the solicitor
SPEAKER_17	I'm sorry, I apologize for interrupting. Can you start by giving your name and address, please?
SPEAKER_00	My name is Alan Joslin. I'm a resident at 36 Bank Street. The one thing that the solicitor has not offered you is compelling government interest. that is that is probably the most important one and that's the intensity of use intensity of use was the concern that drove cambridge to limit institutional development in residential neighborhoods through their exclusion from the dover amendment they understood that when you built an institutional building you were having the potential of bringing in many more people than a residential structure would bring into a neighborhood As was pointed out, when you build a 40,000 square foot residential structure by code it can house approximately 200 residents when you build a 40 000 square foot institutional or religious assembly building by code it can house as many as 2 000 patrons that's 10 times intensity of use this is not an issue of height restriction which seems to be the the focus that the solicitor has put on this but rather far that is guided by intensity of use appropriate to residential neighborhoods Please don't accept a zoning amendment that ignores this fact. The second thing I'd like to point out is some people have mentioned that this is not a big deal because there will likely not be that many religious structures seeking this relief. Please do not be lulled into complacency. The Chabad community currently owns well over 10 properties across that city. Should their zoning amendment be approved, each of those properties would be open to radical change in FAR. Why do you think Chabad is investing so heavily in this change even though they've received support for their Bank Street project? Please understand this is a serious implication. As the solicitor has suggested, you are able to review each claim on a case-by-case basis. And I believe that the city should be allowed to do that. And the city needs to produce zoning that is related to institutional development and institutional development that is equal in terms of what a religious facility can build as well as an educational institution. And thus, that will provide the city the greatest protection. Thank you.
SPEAKER_17	Thank you. The next speaker is Helen Walker. will be followed by Heather Hoffman.
SPEAKER_14	Thank you. Can you hear me?
SPEAKER_17	Yes.
SPEAKER_14	Helen Walker of 43 Linnean Street. You have my letters, so I won't repeat that. I'll be brief. PDD has talked several times about updating the institutional use regulations to show that Cambridge no longer has any zoning districts which qualify under the exemption from the Dover Amendment. What many of us would like to know is not whether you are changing the institutional use regulations to reflect this fact that we've lost our exemption, but rather whether you're putting your heads together and trying to find out a different ground for an exemption from the Dover Amendment. That was a very useful piece of legislation. And we know many city councilors have answered community letters saying, yeah, we're working on it. but we haven't heard anything positive from the city about whether they're working on it and what kind of basis they think they might have for finding a new exemption for us. We hope to hear something about that tonight. Thank you.
SPEAKER_17	Thank you. And the next speaker is, and the final speaker so far, so if anyone... hasn't spoken yet and intended to speak, please push the raise hand button. But next is Heather Hoffman. I believe you're still muted.
SPEAKER_18	Hello, Heather Hoffman, 213 Hurley Street. First of all, I was quite stunned that the city solicitor stated the until very recently zoning law of the city where I would think that she might be more of an expert incorrectly. In C1 district where I live was also covered by the exemption from the Dover amendment. because we had a 1500 square foot per dwelling unit minimum lot area. So I move on from that to my continuing discuss that no one thinks that the first amendment should matter. The first amendment does indeed have the part that everybody loves now, the free exercise clause, but it also has the establishment clause. And that is extremely implicated by this proposal. And given that Cambridge is the site of one of the most important establishment clause cases, the Grendel-Den case, I am truly truly mystified that no one wants to talk about that. So let me read you an important part from that case. And no, a statute cannot supersede the Constitution of the United States. This court has consistently held that a statute must satisfy three criteria to cast muster under the Establishment Clause. First, the statute must have a secular legislative purpose. Second, its principle or primary effect must be one that neither advances nor inhibits religion. Finally, the statute must not foster an excessive government entanglement with religion. Now I'm gonna say that this proposal so clearly has a primary effect with advanced religion that I can't imagine how anyone would see it otherwise. So I hope that at some point someone who's not me will talk about the Establishment Clause because the fact is that it's still part of the Constitution, it still applies, and the city of Cambridge of all places should care about it and should follow it. Thank you.
SPEAKER_17	Thank you. And we have one more speaker, Marilee Meyer.
SPEAKER_02	Hi, Marilee Meyer, 10 Dana Street. And I was not going to speak because it's such a complicated issue, but I have so many questions and I will say for me, I am a little resentful that we are in this position without a real due process of equal understanding. And that also comes from talking to neighbors and including people. I've been following a lot of these cases and I'm just really perplexed that an organization doesn't think it has to talk to neighbors. And one of the comments at another meeting was we don't have to talk to them because they are NIMBYs or they're anti-Semitic. If they don't want our project, they are anti-Semitic. And so the city in general is being put on the defense with this kind of pattern. And it is a pattern and reading some of the other cases of how, I don't want to get into trouble here, but it does seem to be a pattern of how moving forward. And I also think that the city is, their deliberation is based on fear because of the innuendos made during COVID-19. presentation of subtle threats of lawsuits. That is not fair and not straightforward. And I have a question on substantial burden. If the original Bank Street project was for three stories and it got turned down, and now they are entitled to six stories, how is that a substantial burden? It's a windfall because of the way the case unfolded. And this organization also has actually more than 10 properties. I think we counted up like 19 properties. So how many schools, how many classrooms, how many community centers, how many, et cetera, et cetera, that could not be put in another property too. I do not want to see this as a citywide zoning. It's not fair case by case. Thank you.
SPEAKER_17	Thank you. So that concludes the list of speakers. I'll turn it back to the chair.
Mary Flynn	Thank you. We're now going to move from public comment to board discussion. For the record, additional written comments may be submitted after this hearing. Again, we are joined by various city staff, both CDD and the law department. So before we begin with deliberations, are there any other questions for either Megan or Jeff. Diego.
Diego Macias	I had a follow up question about one of the public comments, which is something I was thinking about was the intensity of use. And if I understand it correctly, the proposed change would allow, as of right, a religious use up to six stories. And they could theoretically have an assembly that has more people, more occupants, right? But if we don't pass this, then if it was a case-by-case basis, then you could say it was a compelling government interest not to have that many occupants, right? But if we do pass this, we're kind of removing the opportunity for the city to use that case-by-case sort of compelling government interest. Does that question make sense?
SPEAKER_06	I think so. So yes, if this zoning amendment passes, then religious use would be allowed with these dimensions in place so that there wouldn't be a case-by-case analysis made. And so that's a policy decision for the planning board to think about whether to recommend or not and for the council to ultimately decide whether to adopt or not zoning that as of right allows something that would enable this intensity of use or not. And if not, then it would still need to be done on a case by case basis if there was a request to construct or to develop that type of use.
SPEAKER_10	Thank you.
Mary Flynn	Okay Mary let's go to you next.
Mary Lydecker	Well I have two questions. So the first one I think really is to the city and the applicant and it really follows up on Diego's question. I also noticed that in the in the write-up and some of the comments and even the applicant talked about intensity of use. Are you interpreting that the intensity of use of a religious institution is the same as intensity of use of a residential use? And I say this because there's that phrasing of, well, if the impacts on light, air, traffic, parking, and intensity of use are all the same, how could you restrict it? So talk to me about how these are the same intensity of use.
SPEAKER_11	I'm happy to jump in on that from the petitioner side. So we're not saying that religious uses and religious uses have identical intensities of use. One thing to note is that what the public comments were saying is what is theoretically allowed under international building codes, not actually how any religious institution or residential building actually engages in living or worshiping in a space. As a practical matter, for example, in the Chabad house that will be built for Lubavitch of Cambridge, they will not be, as a practical matter, in the shul, in the synagogue, and at the same time serving Shabbat meals, and at the same time having a speaker come and present. that may be theoretically allowed under the International Building Code, but it's not how a religious institution, how a church, how a synagogue, how a mosque actually uses their space. So, and as a follow-up to that, RELUPA applies regardless of whether or not this amendment passes, obviously. Same for the Dover Amendment. So all of these considerations, for example, to go to Mr. Macias' question, all of these uses if a religious institution needs to expand because their congregation is too large to fit in their existing church let's say and it violates the religious mission to turn people away from the church this is a real case then that counts as a substantial burden if they are not allowed to expand whether or not they're allowed to expand as of right that just removes the opportunity for that institution to be substantially burdened, removes the potential for a lawsuit, makes the whole process much smoother. But they still are, it would still be a substantial burden on that religious use if they were not able to grow to serve their community in that way. So hopefully that answers your question that the so to say so to speak intensity of use is not necessarily going to be identical with a religious building for one thing there's not people living there 24 7. there's not you know 200 to 400 cars uh in a parking garage which is required by you know many zoning codes uh and you know there's but the loop applies regardless if this is passed or not and that has to be factored into any decision
Mary Lydecker	So maybe a question back to the city is, would it basically mean that religious institutions could choose whatever intensity of use they want? And it basically would not be regulated intensity of use.
SPEAKER_06	So they... If they complied with the zoning requirements, the dimensional regulations, and they complied with the building code, and they were, in fact, fulfilling a religious use, they would be allowed to operate that use in whatever way they needed to.
Mary Lydecker	And then my second question is, there's obviously this discussion that there was this exemption, obviously with the 1200 minimum size that obviated it, it got rid of it. Can you talk a little bit about the the process about what the city's thinking about potentially reestablishing that, and would that ultimately have a relationship to what this petition would be putting forward, or would it, if that makes sense, that, you know, how would these relate to each other ultimately?
SPEAKER_06	sure so um i personally have not heard um discussions about trying to seek new special legislation to have you know a similar ability to prohibit religious or non-profit educational uses in certain districts it's possible that there are counselors considering this and we might see it before the council i have not heard anything I DO KNOW INTERNALLY WITH THE LAW DEPARTMENT AND CDD, OUR DISCUSSIONS HAVE BEEN ON FUTURE ZONING PETITIONS WE'LL HAVE TO PUT BEFORE THE COUNCIL TO MAKE SURE THAT THE ZONING ORDINANCE IS UPDATED TO REFLECT THAT WE CAN'T HAVE THE PROTECTION THAT SPECIAL LEGISLATION PROVIDED. So if there was new special legislation, if it was similar to what had been in place, it didn't address dimensional requirements. It just addressed that in those districts that qualified with that dimensional restriction of 1200 square feet per dwelling unit, that in those districts that had that requirement, the city could prohibit or regulate religious or non-profit educational uses. So that meant that in those districts, the city could say that there could be no more non-profit educational uses established or otherwise regulate them. So in places in the city where back while that was in place in the places in city where religious and nonprofit educational uses were allowed. They still were their dimensions were still regulated under the zoning ordinance, but it's still possible that they could argue that those were not reasonable regulations and that they should not be applied to a particular use.
Mary Flynn	Do you have any follow-up, Mary? Are you okay? No, that's great. Thank you.
Dan Anderson	Very good.
Mary Flynn	Thanks. Dan?
Dan Anderson	Yeah, Madam Chair. So this is a follow-up to Ted's questioning and several of the, I guess there was a mention from the comments in the public that there are multiple sites. applicant to maybe respond to and the city solicitor as well. But so let's say that, you know, the project moves forward. congregation is growing and there's a need for administrative offices to further the staffing and administration of this organization. And they choose to do that on another site in C1 and ask for a six-story administrative office building that's specifically for staff and administration for the furtherance of that religious institution. Would that be regulated in the same way? Or likewise, if it were you know, a residence hall or a parish hall for housing of educators, staff, et cetera, may be welcomed, those be exempted from housing affordability requirements? They're kind of two similar but unrelated, semi-related questions and just sort of curious how the applicant might view that as necessary religious activities for furthering the practice or and how our solicitor might look at that.
SPEAKER_11	So again, happy to jump in from the petitioner side. So From a RELUPA standpoint, while in the Catholic context, for example, a parish hall or a Catholic religious school would both qualify as religious uses and do qualify as religious uses in RELUPA cases, the religious institution would still need to show that they are substantially burdened It seems unlikely that a religious institution would be large enough to require a six-story office space for all of its various members. If so, they're doing very well, and that's good that that's what they need. But as a practical matter, I think that's very unlikely. This specific zoning change, and this may also be something that you would want to hear more from the law department and from my colleague Patrick, speaks to religious purpose uses within Cambridge, which is a specific subset and may have slightly different contours than religious uses as defined in federal RELUPA case law.
Mary Flynn	Megan, do you want to?
SPEAKER_06	Sure, yeah, I'll add. So if this zoning petition was passed, any religious use would be able to avail itself of these dimensional requirements. whether it's for religious office space or religious housing and it's a you know it'd be a determination for inspectional services to make when there's a building permit application to confirm that it is a religious use that qualifies under the zoning if there was housing You asked about whether the inclusionary requirement would apply, and it wouldn't if it is a religious use, if the housing is part of the religious use. And so, for example, if it's housing for the religious leaders of the church or the synagogue, it wouldn't apply. be a compatible use to have inclusionary units that are open to the public where the housing that's the religious use isn't open to the public, it isn't open to anyone to buy or rent a unit and it's just housing being made available to the religious leaders.
Mary Flynn	Diego, let's go to you next.
Diego Macias	Yeah, mine was just kind of a follow up to my question previously and the response by the proponent, which is a great response. I guess my question is to the staff more so in that. We, you know, what's the role of the planning board here with respect to like liability? Like am I, when I'm listening to these comments and I'm thinking about this intensity of use and I'm thinking about planning for a building that's gonna have and I understand that not necessarily all churches function a certain way, but I know back when I was drafting an architecture and drawing floor plans, we had clients that really wanted to put a lot of people in a space. So I kind of understand the community's concern about packing a lot of people, right? So as a planning board member, I'm thinking, should we think about an analysis for that kind of thing? Or do we think about sort of the city's liability on whether or not this goes through the zoning amendment? And this is a case by case, you know, all these terms that we're sort of hearing today, which are fascinating and interesting. But I'm just curious, am I supposed to be considering those liability things or like, I don't know, maybe I'm just speaking out of turn here, but hopefully that makes sense.
SPEAKER_06	So, you know, the planning board's role in this is to advise the council from a planning perspective. The council has, you know, potentially other interests that they also look at when they look at petitions that are before them. But I think the planning board, you know, strictly as the planning body for the city, you know, should be looking at the petition from that perspective.
Mary Flynn	Well, so I have a question, Megan, or maybe Jeff, to that point, and that is the four stories is sort of the... what's allowed baseline for multifamily. And then obviously you can go to six if you do the inclusionary zoning units. In this case, the petitioner may or may not be doing that. But I think the concern that has been voiced, again, is the intensity of use. If it's if it's not two floors of housing and just provides for a larger assembly space. As Diego said, it might not always apply, but there may be some organizations that do want something like that. So I guess my question is, would it be possible for the zoning ordinance to require a special permit for religious institutions or educational institutions. I'm not sure exactly how they would be affected in all of this, but to go from the four to the six stories so that the public interest or the government interest in terms of the impact of those two floors, whether it be traffic or whatever, could be considered and it could be mitigated then by, you know, say, you know, transportation enhancements or things like that, you know, traffic reduction measures or whatever. Is that something that's possible or would that be seen as singling out the religious institutions?
SPEAKER_06	I think that's something that is possible. If there is a rational reason for why with religious uses or other uses that are other than residential, why there is a need for the special permit requirement for exceeding four stories. It doesn't mean though that or it's still possible that a religious youth could argue and successfully argue that that's a substantial burden the special permit requirement and they could seek a variance on that basis or they could still seek a special permit but you know argue that that's a substantial burden and still that they're entitled to that there isn't a compelling government interest or that the compelling government interest isn't being applied in the least restrictive way. And so they're still ultimately entitled to additional height.
Mary Flynn	Okay. Okay. But it does give the city, I think, the opportunity to at least look at those instances where it might generate you know, more traffic, both foot and automobile, whatever, you know, whatever the case may be. I think what it does is it at least gives the city a chance to look at that and address those issues with a proponent as opposed to, and, you know, and ultimately maybe the proponent would say that it was, you know, harmful to them and should not be applicable. But again, at least it gives, I think, neighborhoods and then the city some sense that there's opportunity at least for discussion along those lines. Anyway, that's just my thought as one possible way of taking a look at it. It's a tough issue. I'm so glad I'm not a lawyer. because these are very, very difficult issues. All right. Not seeing any other hands for questions, then let's hear from the board as to how you would like to proceed. Tonight, what we can do is decide to make a recommendation that the petition would be adopted or not adopted. We could provide comments on the petition without providing a positive or a negative recommendation. Or if you have concerns, we could continue, you know, concerns or questions that you want either legal or CDD to look into, we could continue the hearing to a future meeting for further discussion. So what is the pleasure of the board? Let's hear what people were thinking. I know it's not an easy one. Ashley.
Ashley Tan	Thank you. I'm happy to start, and if I ramble, cut me off. But I actually think your idea, Madam Chair, is an interesting one and one to consider. And I just wanted to start off by saying, and I think, Diego, you're kind of hinting at this, but You know, I appreciate the discussions about risk of litigation, but at some point, you know, all of us as board members, particularly the zoning board, everything they see is at risk of an appeal. And, you know, everything they do, everything we do is a case-by-case basis at some point. I don't know proportionately if a scenario of someone building or proposing a building between four to six stories in Res C1 is how that weighs to everything else. But say, for example, the proponent wanted to build a seven-story building in Res C1 or somewhere else, and they would have to get relief, and that is when... probably the donning board would have to step in on a case by case basis and, you know, give their, use their discretion, use their professionalism to grant or deny it. And I did want to point out, I think someone in the public comment did mention this, but I went down the rabbit hole of looking up all the cases that the law department did, you know, quote in the memo was super helpful. And And it's actually, you know, I'll quote one of the cases, which is, this is like the Westchester Day School, and it says that courts, court challenges to zoning restrictions rarely find a substantial burden to satisfy, even when the resulting effect is to completely prohibit a religious congregation from building a church on its own land. And that to say, yeah, you know, it goes both ways. A lot of the cases I looked at where the courts found out the substantial burden test was met, it was very clear that the city, regardless whether it's the boards or city officials, you know, tried to discriminate against the the religious uses or as a result of actions discriminated. And I think we should have enough faith in our boards and our staff and our officials to treat things that come on a case by case basis to be treated equally. And so that might be a cop out to say, YOU KNOW, EITHER WAY IS FINE. YOU KNOW, WE SHOULD TRUST THAT OUR BOARDS ARE VERY PROFESSIONAL AND I'M GRATEFUL FOR LIVING IN A CITY WHERE OUR BOARDS ARE VERY PROFESSIONAL AND THERE'S A FULL STAFF AND THE TEST FOR WHETHER OR NOT THESE REGULATIONS ARE ALLOWED IS, YOU KNOW, ARE THEY NEUTRAL? AND IS THERE A, I THINK IT WAS CALLED LIKE TRACEABLE, IS IT TRACEABLE TO MUNICIPAL INTERESTS? That's to say, you know, I agree with the ordinance committee where I think their push was to have the proponent not go forward with the changes to footnote one and footnote 37 about open space and noticing to neighbors because that is the most neutral thing to do is to keep everyone on the same page. line instead of giving an advantage to religious uses by having them not comply with these regulations. And then, you know, that footnote two is tricky. What is the neutral thing to do? I don't know. I think Mary's idea is worth thinking about. I think either way is I THINK FROM A LAND USE POINT OF VIEW, IT WOULD BE GOOD TO REVIEW THE ACTUAL IMPACT AND I THINK REGARDLESS, I THINK OUR BOARDS CAN ADEQUATELY MAKE AN EQUAL AND FAIR DETERMINATION IF THAT IS NEEDED.
Mary Flynn	All right, so Ashley, just so I am clear. So I know you stated that you kind of agree with the ordinance committee on the open space and that neighborhood notification issue. I'll say that I do too. Probably some of the other board members too will find that out. But in general, are you saying to... for us to stay neutral on this as well and just send in comments rather than a specific recommendation, positive or negative.
Ashley Tan	That's a good question. I didn't think about that. I think maybe staying neutral somewhere would.
Mary Flynn	Just do the comments.
Ashley Tan	All right.
Mary Flynn	Well, we can come back to that. I just want to get a sense of where everybody stands before we figure out what motion we're making. All right. So you can certainly chime in again later on. Mary, let's go to you next.
Mary Lydecker	Thank you. Well, like Diego, I am also not a lawyer, so super happy that there are lawyers on the planning board. But following up on that concept that Diego brought up, that, okay, so we're here to share our planning perspective for council to take into consideration. My interpretation, which I feel like other board members also have been walking around, is that the multifamily housing concept changes were overwhelmingly due to community advocacy and push for affordable housing to manage housing crisis in the city, the region, state, really the nation. And so I think what's fair is that I think the community with a lot of, we had a lot of conversations, council had a lot of back and forth on what's the proper massing and impacts knowing that it is different than what exists and that it does impinge on people's light, air, quality of life, open space. And so from a planning perspective, I would reflect that this petition expands that in a way that the community did not advocate for, just to make that clear. I'm not saying whether it's a good thing. It's not good or bad. It's just reflecting that they're the reasons for that um as we know were about affordable housing and not everyone was comfortable going up to six stories so just to know that wasn't like an easy yeah let's definitely do it so to expand that without community input feels um uh like it's understandably being concerned about a litigious culture that we're living in, right? So that's from the planning perspective, I think, is just keeping in mind why the multifamily housing changed for council to take that into consideration. I would say probably I'm more into remaining as a board neutral, sharing comments, perspectives, but I don't feel equipped to posit one way or the other, also because I'm not a lawyer. I will say I'm also very pleased to see Pleased is maybe the wrong word. I'm relieved to see the minor changes to open space, meeting with the butters, that it's about religious institutions, not all institutions. It was very troubling to see those included, which really speaks, obviously, to experiences that everyone's having. But I think to Ashley's point, not only do I hope and aspire that we have a civic environment, culture and community where we do trust boards to support and help decision making. I also hope that we are living in a city that aspires to communicate with our neighbors and obviously that might be difficult. I'm not opining on why that is or isn't, but as a landscape architect, the open space feels like it's just a little bit stunning that something like that would be pulled out. So I'm pleased by those but was also quite disappointed that that was part of the original petition to begin with.
Mary Flynn	Great. Thank you very much.
Dan Anderson	Good comments.
Mary Flynn	Dan.
Dan Anderson	Thank you, Madam Chair. So I'm going to agree with a bit of what's gone on before. As I said before, I would prefer that the regulations match up more equally with the residential and that there might be some compelling benefit to the community for the additional height, particularly the way that the affordable housing component was added. To Mary's point, was a lot of time and effort spent with a lot of community input um that uh it's it's hard from a planning perspective to um have an amendment go through that has potentially as many unintended consequences as the you know the uh zoning change to see one for all residential um this this being just one of them at the moment um so um i'd like a more timely and cautious approach. I do like, Madam Chair, your suggestion of a special permit, although that is over and above what's being asked for the residential use. I do think that it's particularly hard when there's an intensity of use that's coming along with this. What came to my mind was there's a lot of great religious spaces, which are very tall and cathedrals and other things that would, you know, certainly not benefit from not having the height. But, you know, six stories of classrooms and office space is a much different entity for a neighborhood. And so I'm grappling with how to somehow manage that within this context. And I think it would be important for COMMUNITY TO KIND OF UNDERSTAND WHAT THAT INTENSITY OF RELIGIOUS USE IS. SO I GUESS I'M A LITTLE LESS NEUTRAL IN SAYING I'D LIKE THE CITY COUNCIL TO REALLY TAKE BOTH LEGAL AND CIVIC INPUT ON THIS TO REALLY UNDERSTAND WHAT THAT what this petition brings up I don't think that any of us are looking to curtail religious freedom or to we're just looking to do this with balancing the responsibility of ourselves as planners and the city with the needs of of everyone it does I think that's probably where I'll leave it and ask for a recommendation of thoughtfulness
Mary Flynn	Yeah, when I say neutral, I don't mean that we don't have a position or, you know, a planning concern. It's more that, you know, I just mean we're not taking a positive or a negative. We're basically saying here are the concerns that we have about the petition. That's all I mean by neutral.
Dan Anderson	No, I guess thanks for clarifying. I think that this, because of the intensity of use that this opens up, There's a real potential negative to this petition. I guess I'd go on record of saying I would not want this to preclude religious freedom, but I think there's a balance in here that says this opens up planning concerns that maybe there are come up with those. We've had some discussion around it, but height and intensity of use both seem only to be regulated by zoning in this case.
Mary Flynn	Okay, thank you, Dan. Diego.
Diego Macias	Yeah, that was interesting, Ben's comment and your response, I believe. I was going to say I was going to be neutral, but but I also have the same sort of planning concerns that Dan brought up. So I don't know where that, I don't know if that helps at all in any way, but my biggest concern is the intensity of use and the planning of that intensity of use for a neighborhood or a street or for the community. And I would also say that I just, you know, with the AHO overlay and the multifamily zoning, we had so much time and so much discussion with those topics, and it felt like there was a lot of time that we had to process it, and this feels a little rushed. And I would appreciate maybe more time from a planning perspective without considering, like, the liability issues.
SPEAKER_10	Mm-hmm.
Diego Macias	Not to say that I would push to have another meeting, but just to express the planning concerns to the City Council.
Mary Flynn	Yeah, no, I understand what you're saying. So I guess going back to you and Dan, would you want to give a negative recommendation to the petition and then explain why that it's based on these concerns that we have about intensity of use and uh you know potential planning impacts that weren't anticipated by the multi-family use changes so it's really just a question of that and you don't have to answer it right now but it's just a question of you know do you want to take a negative or do you want to just send comments so i'll let you ponder that and we'll we'll come back for a final round uh carolyn
Carolyn Zern	Thank you. Thanks. So Mary summed up a lot of the concerns that I have very well. And Ashley made a great point that I think we do have very strong boards and committees and organizations within the city that can, on a case-by-case basis, I think, take RELUPA very seriously and manage any of those, you know, manage the concerns that come up on a case-by-case basis. I am somewhere between being neutral and recommending a negative review of this, but because of all the reasons that have been brought up up until now. And I don't have a... I lean negative, but...
Mary Flynn	Okay.
Carolyn Zern	I'm not committed to that.
Mary Flynn	Okay. All right. We'll come back to you then. Did you have anything else you wanted? I don't want to like rush you. So if there's anything else. Ted, let's hear from the other lawyer. The other lawyer in the room.
Ted Cohen	Ex-lawyer. I think I come down to making no recommendation, but sending comments. It's obviously a very difficult question and one that while we are just looking at it from a planning point of view, it's hard to remove it completely from the possibility of litigation arising from it and the impact on the city. Accepting city solicitors' letter, I think there are things that, whether we like it or not, I think that Relupa and the Dover amendments say we can't accept and that some things like, you know, the height and the gross floor area, if we have as we have accepted the affordable housing overlay and the multi-family zoning. I think it becomes hard to say that those are allowed, but there would be a substantial imposition on a religious organization. Now, having said that, I think the idea of intensity of use and what it means is significant. You know, but the, you know, trying to parse it, you know, whether it's 200 people living on a day to day basis in one building versus maybe 2000 people appearing once a week or once a month or once a year. is difficult to deal with. I do think that the issue of permeable open space and the requirement for non-binding meetings from my point of view could certainly be justified again on a case-by-case basis. So, so much will come down to a case-by-case basis, but with always the understanding that the relupa and the dover amendment are there and uh you know whether we like them or not or want to impose our planning points of view upon them or not makes it very difficult to really determine uh what should be done and clearly We're not the political people. The City Council are the political people who are weighing the impact on the city as a whole. You know, yes, saying let's just not amend it. and let it just go on a case-by-case basis is going to put an incredible burden on this board, the BZA, inspectional services to try to parse it on every single case. And whether that's what the politicians think should happen or not, I guess that's up to them. So my feeling is that there are things that we need to address because of RELUPA and the Dover Amendment and that maybe we didn't think about them. uh when we went when we adopted multi-family uh certainly the idea of addressing the non-religious educational uses is something that i think you know the city has to take up and deal with as soon as possible um the rest i'm you know In the same quandary, everybody else is, you know, but I think it does the cases and my understanding of the cases push me to say we ought to do something, but we don't have to do everything. And so I think what has been purported is what the city council has done at the ordinance committee and whether they're going to do that in full committee or not, I don't know. But I guess I come down on the no recommendation one way or the other. But extensive comments to the City Council, which I know Jeff has been taking careful note of, of what we think. From a purely planning point of view, We might have one position, but taking into account what the state and the federal government have said has to be addressed puts us and the city council in a difficult position. And I'm happy that they, with the advice of the city solicitor, will make an appropriate decision.
Mary Flynn	Great. Thank you. Appreciate those comments. All right. So let's do, if there's more comments, this will be the last round and then we'll decide what the motion looks like. Okay. Dan, let's go to you.
Dan Anderson	Yeah. So just in response, Madam Chair, to your question, I'm always happy to listen to SAGE legal advice, especially coming from Ted. I don't certainly mind just passing along comments. I'm a non-voting I can basically take my comments for what they're worth, but I do think from a planning perspective, that making some comments about the potential impacts Council would be an appropriate comment for us to make with the let's say more neutral than negative comment that there are potentially a lot of unanticipated consequences that could come from this my sense you know I have a lot of people say hey well zoning says you can go to six stories but that doesn't mean you have to I have yet to come up with a client that doesn't so you know I stories of office space, but it's remarkable how you allow it and it comes. So I would really just strongly suggest that we relay potential, very much unintended consequences around this. And maybe preferably so, it is a more lenient zoning ordinance for the religious institution than for housing. a quandary as well. We're not on equal footing. We're allowing more intensity of use with less restrictions.
Mary Flynn	Good point. All right. Any other comments? Oh, the proponent. Would you like to say something? Yes.
SPEAKER_11	Yes. Thank you. Just a quick note on the intensity of use, because that's something that's been discussed a lot. And I think Mr. Cohen had an excellent point here, which is we reject the assumption, the underlying assumption, that a religious institution will have at all a more intense use than a residential building and that particularly that it would be extensively more intense, which seems to be the background assumption here. Having several hundred people living permanently in one location and having cars with them and family members and the entire 24-7 surroundings of people living in one location is very different than, as Mr. Cohen pointed out, having potentially much more people show up for religious services once a week or, say, twice a week. You know, compare a local church or a local synagogue or a mosque or whatever is in your neighborhood with the nearest large residential building on, say, Mass Ave. And I think you will note that the vast majority of the time, the religious institution is much less intensely being used and is a much, a source of much less traffic, foot traffic, vehicular traffic, et cetera, than the residential building. So to throw that out there for what it's worth, is uh we reject the contention that it is necessarily more intense and even if you know it might be more intense at certain points uh that it would be substantially different when everything is ironed out over the you know the course of a week month year etc all right well thank you for your your point of view it's appreciated um okay so let me see if i can um
Mary Flynn	figure out where we are. I think we're sending comments on the proposed petition and those include support for the city council or the ordinance committee's recommendation on the open space and I'm sorry, I'm blanking all of a sudden. Oh, and public notification requirements that those be eliminated. And I think we want to include Mary's comments about the whole nature of the multifamily housing amendments and how they came about, what the intent was in terms of what it was intended to address. the concerns that the community had over that additional height and what a difficult decision that was. Many people did not agree with, but the city went forward because of the need for affordable housing. So again, it goes to the planning issues. I think Dan's point about, in some ways, being more lenient for religious uses and that it has no additional requirements to get from the four stories to the six stories. And so there's no public benefit coming back as a result of the additional stories. but I think we also do need to note all of the other, the legal concerns and challenges and that, you know, again, our boards and commissions, I think as have been noted, I think people do their very best and they, they have the ability to make fair and well-reasoned decisions in cases like this, but it could be a burden as Ted, as Ted mentioned that, you know, it's, it, It puts a lot, I think, you know, potentially a lot more cases in front of the BCA. I'm not so sure about us. But I think we do want to mention, you know, Ted's points about the concern that is the council's concern. So we have the planning concerns, the legal concerns, which are not so much ours, but that we recognize what they are. The intensity of use. clearly the point and we, or at least some of us have a different point of view on that. But I think it's it's a point that that needs to be made. Because it is different, and it's not regulated at all under this. So, you know, following up on the comments that we've made just summarizing those in the in the report to the City Council, Jeff, am I missing any major point that anybody made? right so let's see then um all right so then could we have a motion um to uh provide the comments um that the board made at this evening's meeting on this petition um uh to the city council um stressing the planning concerns that have been raised while noting the legal issues as well. Jeff, does that suffice from your point of view? I know you have been taking notes, but do you need anything else?
SPEAKER_17	No, thank you. I thought that was a good summary, and I'm just kind of trying to read quickly back over my notes, and it seems like it covers all the main points. Just wanted to clarify for the record. So this is a set of comments made with no positive or negative recommendations. recommendation yes that's what it would be thank you thank you i'm sorry can you say can you say that again i i think the audio cut out a second i just want to make sure i i read it right yes yes that is what i was intending uh just comments with no positive or negative recommendation yeah um thanks yeah okay i should be able to work with that
Dan Anderson	Good, okay. Madam Chair, did you want to include your suggestion of considering a special permit as part of the... Well, I'm happy to do that if a number of people are, you know, think it's worth taking a look at. I know somebody did mention that it was. Maybe a suggestion as a possible approach to go from four to six stories, given that there's no other threshold. Okay.
Mary Flynn	Yeah. Yeah, unless either Jeff or Megan have some reason for us not to include it. I'm happy to do that if everybody else on the board is in agreement. Okay, not hearing any objections from them. So we'll add that into the discussion of a possible special permit option. Okay. So that's the motion. Same comments without a positive or negative and those comments have been summarized. So would someone please make that motion?
Ted Cohen	Ted, I'll make the motion.
Mary Flynn	Thank you. Appreciate that. All right. I need a second, please.
SPEAKER_08	Actually second.
Mary Flynn	Thank you, Ashley. All right. Jeff, maybe we have a roll call vote.
SPEAKER_17	Yes. On that motion, Ted Cohen? Yes. Mary Lydecker?
Mary Lydecker	Yes.
SPEAKER_17	Diego Macias? Yes. Ashley Tan?
SPEAKER_10	Yes.
SPEAKER_17	Sorry. Okay. I wasn't sure. I'm never sure if it's me freezing or someone else. So Ashley Tan was a yes. Carolyn Zirn?
Carolyn Zern	Yes.
SPEAKER_17	And Mary Flint.
Carolyn Zern	Yes.
SPEAKER_17	So that's all six members present voting in favor.
Mary Flynn	All right. Thank you very much. And thank you both to the proponent for your additional comments and presentations this evening. And thank you to the members of the public who provided their input as well. It's much appreciated. All right, that then concludes the business on our agenda this evening. Are there any other additional comments from staff? I know you've given us a good overview of what's to come, Jeff.
SPEAKER_17	Yep, we'll see you back here in the building on July 22nd.
Mary Flynn	Okay, very good. Anything from board members before we leave? No, all right. Well, then the meeting is adjourned. Thank you all very much. And I'll see you on the 22nd.