Settlement of $540,000 is only the beginning concerning religious group’s win on a project

Denying a Jewish sect’s bid to expand last year will be expensive for Cambridge. The city has agreed to pay $540,000 to Lubavitch of Cambridge to settle a lawsuit filed by Lubavitch after the Board of Zoning Appeals rejected the organization’s application to almost double its indoor space.

City manager Yi-An Huang is asking the City Council to approve taking the money from “free cash,” the city’s surplus fund, at Monday’s council meeting, according to the meeting agenda published June 18. That was the first public sign that an announced settlement of the suit has financial terms.

Money isn’t the only aspect of the agreement. The zoning board approved a much larger expansion for Lubavitch on June 12: quadrupling Lubavitch’s indoor size and allowing the organization to build a five-story, 70-foot-high structure along Banks Street where Lubavitch has its religious center and synagogue. Lubavitch has said it needs more space to serve its growing congregation; it now must serve some meals to members – part of its religious ceremonies – in a tent outdoors even in winter. The approval reversing the previous decision was also part of the settlement, city officials said.

The complete agreement between Lubavitch and the city has not been made public, though pieces such as the $540,000 payment are dribbling out. City spokesperson Jeremy Warnick said Thursday the settlement won’t be disclosed until it is “final,” and that won’t happen until Lubavitch wins a building permit for its project. Earlier, Yehudah Buchweitz, a lawyer for Lubavitch, also said the agreement isn’t final and Cambridge must do “several things” in the “coming months” before it is complete.

He wouldn’t say what the city must do except that enough meetings must be scheduled to act on a separate zoning ordinance amendment filed by Lubavitch that would exempt all religious organizations in Cambridge from many space, density, height and other zoning restrictions, similar to what the city’s groundbreaking multifamily housing ordinance did for homebuilding. The new zoning allows residential buildings of up to four stories or six stories with affordable units in all residential districts.

Lubavitch’s proposed zoning amendment would allow up to six stories for religious uses without an affordable housing requirement.

Turnaround in a year

All of these events – the lawsuit, approval of the much bigger Lubavitch expansion, and the request to substantially liberalize zoning for all religious land uses – have occurred in the year since the Board of Zoning Appeals denied Lubavitch’s first application to enlarge its space on June 20, 2924. Three of the five board members actually voted in favor of the proposal but the measure needed four votes.

A neighborhood organization, the Kerry Corner Neighborhood Association, continues to oppose the expansion, advocating a smaller increase in size because members believe the more than 1,600 people the new building is designed to serve would overwhelm the neighborhood on Banks Street. Lubavitch has said it wouldn’t conduct activities simultaneously so it would never occupy the entire space; last year it said it needed room for about 250 congregants who attended events then.

The council’s Ordinance Committee held its second meeting to consider Lubavitch’s proposed zoning amendment Wednesday. City solicitor Megan Bayer said the lawsuit settlement doesn’t require the council to take any particular action on the amendment.

“Just for the record, whatever the council does with this zoning petition is not the subject of that litigation and is not the subject of any potential settlement of that litigation. So the council is a legislative body, and your actions are in that role as the legislative body, and we can’t control what the council does,” Bayer said.

The committee, which consists of all nine councillors, voted to send the amendment to the council with no recommendation for or against. They also voted for two changes that Bayer said would not modify the “character” of the proposal.

There are no indications that other religious groups besides Lubavitch want to expand or make other changes to their property that would be affected by the amendment if it’s approved. Director of zoning and development Jeff Roberts said he had not heard of such plans, “though I am one person.” Roberts said in a memorandum that new religious buildings are “relatively rare” and most changes in the past 20 years have involved property switching from religious to residential use. He also said churches, synagogues and temples were dispersed throughout the city.

During the discussion, there were signs that councillors faced substantial pressure to approve the amendment. Councillor Patricia Nolan asked Bayer to address “some questions raised about individual liability for member bodies, including the BZA or even the council.” 

“It is possible that if a land use board improperly denied a permit or denied a permit or variance that they could face some individual liability,” Bayer said. She did not give examples of cases where an individual faced a penalty.

Reducing the risk of liability

Bayer noted in a legal opinion she provided that accepting the Lubavitch proposal would reduce the risk of future lawsuits. “It would decrease the risk that the BZA, Planning Board or [Inspectional Services Department] would apply the zoning ordinance in a way that could be found to be a substantial burden on religious use and not the least restrictive means furthering a compelling government purpose,” she said. “Therefore passing the petition may reduce the risk of liability to the city.”

She was quoting from the Religious Land Use and Institutionalized Persons Act, a federal law that bars zoning rules that “substantially burden” religious practice unless a locality can show there’s a “compelling interest” to have the rules and they are the least restrictive way to protect that interest. Lubavitch cited the federal law in its lawsuit; the organization also warned the zoning board about the law and referred to it in arguing for its proposed zoning amendment.

If councillors don’t approve the amendment, Bayer said, the zoning board and other city agencies that weigh applications for a variance from zoning will have to consider the law on a case-by-case basis. She gave examples of legal decisions that showed how difficult it might be to prove a compelling interest, such as a decision involving the town of Lenox in Western Massachusetts that rejected the argument that a religious project would affect traffic and public safety. The town lost because a nonreligious use would have been allowed at the same site, Bayer’s opinion said.

Open space concern

Bayer also described several decisions recognizing that a religious entity would be burdened by not having enough space, similar to Lubavitch’s claim.

Councillors showed that they understood.

“We’re here because of Rluipa, which is a federal law that cannot be ignored and must be followed,” councillor Patricia Nolan said, using the acronym for the federal law. “Now, we can choose to say we’re going to continue to follow it on a case-by-case basis or we can say we’re going to actually amend the zoning so we’re not going to do it on a case-by-case basis … Let’s make it so we don’t throw more work onto the BZA and others. Because if we’re going to, frankly, approve all those cases because we’re required by federal law to do that, it makes sense to me to do it in the thoughtful way that protects our interests.”

Still, Nolan and other councillors wanted some changes to the Lubavitch proposal. Nolan objected to a footnote that exempted religious organizations from designing half of their open space to be permeable. That made religious uses “privileged” compared with residential projects, which must follow the permeable space requirement, she said; the requirement helps prevent flooding. “I’m concerned about it,” she said.

Neighborhood meetings

Vice mayor Marc McGovern and councillor Paul Toner objected to an item exempting religious organizations from telling neighbors of their proposals and holding neighborhood meetings if they want to build higher than three stories. The councillors pointed out that the neighbors had no power to stop a project. “It’s really just a nice thing to do,” Toner said. Residential developers must hold the meetings.

Benjamin B. Tymann, a lawyer for Lubavitch, defended the exemption by saying that if neighbors “articulate comments that are evidencing discrimination, and then that proposal is denied, those comments would certainly be a part of any case, and would certainly factually strengthen any case.”

McGovern was far from convinced. “If a religious organization wanted to sue, I would be fine with continuing to require” the neighborhood meeting, he said. “And I would just say that whatever religious organization is listening who might have ideas about doing this, you should want to hold one community meeting that is nonbinding, where no one can force you to do anything. You have a responsibility to the community to let them know what’s going on.”

“That’s the least we can do. You know, obviously our hands are kind of tied in a lot of ways with this, and it’s a federal law,” McGovern said.

Councillors approved removing the exemptions for permeable open space and neighborhood meetings from the Lubavitch proposal before voting to send the zoning amendment to the council. The Planning Board will also consider the amendment July 8 and could vote for other changes. 

In response to questions from councillor Sumbul Siddiqui, city staff will also examine a provision that’s intended to exempt religious organizations from providing inclusionary housing – affordable units – if they want to build five- and six-story buildings. Bayer said the city could not require inclusionary housing in nonresidential developments, but she and councillors were concerned that the wording of the Lubavitch proposal might inadvertently prevent requiring affordable units in housing projects.

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