Lubavitch of Cambridge, the Orthodox Jewish sect that was denied permission last year to expand its center on Banks Street in Riverside, has already sued the city in federal court and proposed a zoning ordinance that would eliminate many land use restrictions for religious organizations – both responses that would achieve the group’s expansion goal if successful. Now, while awaiting decisions on both efforts, Lubavitch wants permission for a much larger project that would quadruple its current space and create a 70-foot-high, five-story complex along the narrow street.
Lubavitch cited its need for more space in its previous application to expand, which would have almost doubled its indoor space but wouldn’t have increased the three-story building height of 38 feet. This time the religious group justifies its expansion almost completely by citing a federal law that bars local “land use regulations that ‘substantially burden’ religious exercise.” Lubavitch says it’s entitled to approval based on the law.
The Board of Zoning Appeals considers the new application June 12.
Lubavitch also cited the law in its previous application, but gave more emphasis in that attempt to its need for a larger space.
Alan Joslin, a representative of the neighborhood group that opposed the first Lubavitch expansion proposal, the Kerry Corner Neighborhood Association, said the center could have won neighborhood support in the first place “with a more modest variance.”
Instead the group sued the city and its zoning board, accusing the opponents and a Board of Zoning Appeals member of antisemitism, Joslin said. The suit does make those allegations, saying that the neighborhood association’s assertion that an expanded center would change the “character” of the neighborhood was a common complaint from antisemitic groups and that board member Carol Agate’s similar statement was “typical coded language for ‘your kind are not wanted here.’”
Now, with a second zoning variance application for a much larger expansion, Lubavitch “comes back to BZA, with mediation incomplete, and seeks a variance for something over twice the size” of the first application, Joslin said. He referred to the Board of Zoning Appeals and to ongoing mediation in the federal case. A hearing on the status of mediation was held virtually Friday; it was not open to the public because it involved mediation, a court clerk said.
Many people supported Lubavitch’s first application, with some saying the center offered them a home as Jews and others saying they were welcome despite family members who were not Jewish. The zoning board voted 3-2 in favor of the request, but approval needed four votes in favor.
Lubavitch wants to move 48 Banks St. closer to the street and combine it with 38-40 Banks St.; the plan would demolish 54-56 Banks St. The first application would have created 17,307 square feet of indoor space in the two combined buildings, while the new request calls for 40,164 square feet, apparently because of the increased height.
The group received approval from the Historical Commission for its first plan and apparently won’t submit the new application to the commission. Lubavitch says in its new zoning application that the demolition of one building and the “restoration approach” for the other two buildings hasn’t changed.
The laws in question
The law that Lubavitch relies on, the Religious Land Use and Institutional Persons Act, is a central part of the federal case. Lubavitch also cited the law at Planning Board and City Council Ordinance Committee hearings two weeks ago on its zoning ordinance proposal, and at its previous application to expand, with one of its attorneys warning that communities could face big financial penalties if they were found to have violated the law.
The law does prohibit land use rules that substantially burden religious use but gives communities an out if they can show a “compelling need” for the rules or if a religious organization can avoid zoning restrictions, for example by finding a different site. Some court decisions have turned on the issue of whether a use is strictly religious.
The city could face another threat to its ability to regulate religious use – and also projects by educational organizations, such as Harvard and the Massachusetts Institution of Technology. At the Ordinance Committee hearing May 20 on Lubavitch’s proposed new zoning ordinance, city solicitor Megan Bayer acknowledged that some regulatory authority over religious and educational organizations disappeared with the council’s approval in February of a groundbreaking multifamily ordinance allowing multifamily buildings in residential districts throughout the city.
At issue is a state law known as the Dover amendment that was adopted in 1950 to protect agricultural, religious and nonprofit educational organizations from discriminatory local zoning restrictions. Cambridge was worried about universities encroaching into residential neighborhoods and taking away needed housing; the city won an exemption from the law in 1979, but only for residential districts with a minimum lot size of 1,200 square feet per housing unit.
Ending an exemption
By approving the multifamily housing ordinance, Cambridge eliminated minimum lot size, so the exemption is gone. The state law now in effect allows officials to specify some zoning standards for religious and educational organizations, though, such as “bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements,” according to the Massachusetts Municipal Association.
Lubavitch filed its new, bigger plans May 21, the day after Bayer’s legal opinion to the Ordinance Committee.
City zoning director Jeff Roberts mentioned the Dover amendment exemption issue at meetings of the Housing Committee and the Planning Board last fall during discussion of the multifamily zoning proposal. Councillors and planning board members were focused on height restrictions in the proposed ordinance and did not ask questions about the impact of ending minimum lot sizes on regulation of religious and educational land uses.
The state law, plus the Religious Land Use and Institutional Persons Act, came to the fore at the May 20 committee hearing on the Lubavitch zoning petition. Bayer promised to give councillors a legal opinion on both issues and to tell them whether they are required to approve the zoning ordinance Lubavitch proposed.
The Lubavitch movement
Lubavitch is a worldwide movement that emphasizes outreach to Jews whether or not they are Orthodox. In the United States the group has a special focus on college students. Lubavitch of Cambridge is also known as Harvard Chabad because of its ties to Harvard University; its rabbi, Hirschy Zarchi, is a Jewish chaplain at Harvard, though the organization is not part of the university.
Lubavitch not only conducts religious services, but provides meals and other programs to congregants. It says it’s forced to serve meals in a tent outside its buildings even in winter, because there’s no room for its growing attendance. In a hearing on its first expansion application to the zoning board, Lubavitch said it sized the project to meet its current demand of up to 250 people. This conflicted with the neighborhood group’s calculation that, based on the architectural drawings for the project, it could handle 820 people.
The project architect said that would be accurate only if Lubavitch conducted worship, meals and other programs simultaneously, something the group would never do.
Joslin of Kerry Corner Neighborhood Association said the problem with Lubavitch’s expansion plan “is less an issue of bulk and appearance – as some council members seem to think is the issue under debate – and more one of intensity of use (number of people), which brings with it the significant environmental disturbances to residential neighborhoods.”
“The results of this case will set a very influential precedent that Cambridge educational and religious institutions will seek to follow,” he warned.
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This piece concisely and effectively describes a very complicated situation. Good job.
What is the additional space for?
The full implications of passage of the new housing ordinance regarding religious and educational institutions should have been fully discussed rather than just “mentioned” by the city zoning director. The history of various institutions riding roughshod over neighborhoods in the city has been well documented and experienced by residents. The statement that neighborhood efforts to curtail the possible over expansion of this institutional development must be “antisemitism” is yet another example of how difficult it is to publicly hold certain institutions accountable for their actions.
I am amazed at the arrogance and entitlement of this change of plan and thumbing at the many residents who are Jewish. They are conflating the nuts and bolts of Cambridge zoning, safety, permits and variances with as-of-right because of religious status. The historical commission treated this case like any other, asking for changes and at one point asking if they talked to the neighbors. The answer was “we don’t have to… they don’t want us here anyway”. They BULLIED the commission into approval after a stalemate which sent the project to the BZA. The overriding statement was ” if you are against this project, you are anti-Semitic and NIMBY”. Now they are suing the city, circumventing any mediation while simultaneously trying to change city-wide zoning in their favor equating their institutional right with that of multifamily residential zoning which this is not. they feel entitled to 6 STORIES (instead of the 4 stories + 2 inclusionary stories). this is not the same.
Zoning reform is essential for creating more equitable, affordable, and sustainable cities.
The opposition to Lubavitch of Cambridge’s expansion—and to broader zoning reform—relies heavily on subjective arguments about “neighborhood character” and “intensity of use”. These terms that have historically been used to exclude new residents and affordable housing from desirable neighborhoods.
Such arguments perpetuate exclusion and drive up housing costs by restricting supply.
After re-reading the ordinance language I agree with pete’s conclusion. The height bonus is granted to IZ projects, not residential projects across the board, seemingly squaring it with the Dover Amendment.
This seems fine to me, but for those upset about it, the fault is not with the Council’s 8-1 decision to end exclusionary zoning. The fault is with laws that tie unrelated uses together, such that relegalizing housing also necessarily entailed legalizing other uses.
If you want to decouple them, decouple them, but the desire to keep some uses off-limits should not be used as an excuse to keep outdated zoning laws in place which prevent the creation of desperately needed housing. I’m glad that didn’t happen here; good job by the City Council reflecting resident priorities for more housing and not letting the perfect be the enemy of the good.