Sunday, July 14, 2024

A nighttime view of the Zinc Apartments from a nearby resident’s balcony in January 2016, before the lights were shut off. (Photo: Marie Saccoccio)

Lawyers for the City of Cambridge and Zinc Apartments told the Massachusetts Land Court last week they were “working cooperatively” to settle the pending lawsuit concerning the city’s order that Zinc’s rooftop lighting remain off. A settlement would involve going back to the Board of Zoning Appeal, Planning Board or both, city lawyer Vali Buland told the court.

On Monday, the zoning board posted notice of a closed-door session to discuss the matter at 6:30 p.m. Thursday. The Planning Board has not scheduled the matter.

Assistant City Solicitor Vali Buland, right, talks with attorney Sarah Turano-Flores before a Land Court hearing last week. (Photo: John Hawkinson)

Zinc, at 22 Water St. in NorthPoint, installed rooftop decorative lighting in 2015, costing several hundred thousand dollars, causing a hue and cry among East Cambridge residents concerned by its brightness and animated style. The development took place under a Planning Board special permit, and the written plan approved by the board in 2010 explicitly promised “no up-lighting or other lighting on the screens or roof of the building.” Cambridge’s building commissioner initially approved the lighting in May 2015, but rescinded his approval in June 2016 after he became aware of the no-lighting provision; Zinc turned off the lights, but also appealed his decision to the zoning board, which hears challenges to decisions of the building commissioner. The board upheld the commissioner’s decision in July, and Zinc filed suit in Land Court in October.

It is Zinc’s position that the promise in the final development plan was not incorporated into the special permit, and that staff confirmed the lighting was in conformance with the special permit before investing the money. Said Michael Sherry, a spokesman for Zinc:

“We believe that pursuant to the terms of our special permit, we followed the appropriate procedure with the City of Cambridge Building Department and Community Development Department to allow for sensible, neighborhood-friendly illumination of the upper floors of Zinc Apartments. We are asking the Land Court to step in and clarify this issue and the process that we followed as required by the City, while we remain committed to working with our neighbors and the surrounding community to come up with a lighting schedule that can work for all parties involved.”

The city disagrees, saying the special permit included the final development plan by reference, and also that Zinc did not follow the procedure to obtain an amendment to the special permit.

But there is talk of settlements.

“Anything short of fully backing up the clearly documented decision of the Planning Board would horrify me,” said Heather Hoffman, an East Cambridge resident who closely follows development. “The city has a history of backing up its boards’ decisions, for good or ill. Whether or not they were good decisions. In this case, it is a good decision. I fully expect the city to back its Planning Board to the hilt.”

“I would be appalled if those lights or any rooftop lights at all were allowed,” said Carol O’Hare, a Cambridgeport resident who has often battled against lighting and signage in testimony before city boards. “I think East Cambridge residents, as well as huge numbers of residents throughout the city, would object as well.”

It’s not clear what sort of settlement might be under consideration, as settlement conversations are confidential.

Chief Justice Judith Cutler held an initial eight-minute hearing on the case Jan. 4, and when told about settlement discussions, speculated about two approaches that might be considered: “One would be to determine that there’s maybe some alternative way of having the lighting which would bring it substantially into compliance with what was approved. And the other alternative is to go back for some kind of modification of that special permit and provide some other form of mitigation of the lighting impacts.”

Lawyers from both sides agreed: “I think that’s right,” said Sarah Turano-Flores of Nutter, McClennen & Fish, representing Monogram Residential, the owners of Zinc. “I think it’s within the range,” said the city’s Buland.

What are the neighbor’s options in the face of secret decisions in closed-door sessions?

Mark Bobrowski, a land use attorney and author of the Handbook of Massachusetts Land Use And Planning Law, said the neighbors do not have standing to intervene in the lawsuit, but that would change if there was a settlement. “If I was representing them I would serve notice to the court that any settlement is being watched intently by the neighbors and should follow a public hearing [process],” he said.

Such a notice would take the form of a letter to the court, and it could be written by a lawyer representing the neighbors, or by the neighbors themselves if they chose to self-represent, Bobrowski said.

With respect to the Thursday hearing, Maria Pacheco, secretary to the zoning board, said she had not received any letters to the board from members of the public regarding the Zinc lighting.