The Planning Board last week voted to send to the City Council a proposed zoning amendment for Cambridge that would greatly expand the rights of religious organizations to build or change their property, allowing them to develop projects up to six stories high almost anywhere in the city without restrictions on how much floor area can be built on a given lot size. Members voted July 8 to transmit the amendment with no opinion but expressed significant misgivings about the proposal.
Individual board members said they were concerned about adopting such a radical change without giving residents a chance to express their opinion, in contrast to the long public discussion about the multifamily housing ordinance – the model for the zoning amendment. “This petition expands [the multifamily housing ordinance to religious groups] in a way that the community did not advocate for,” member Mary Lydecker said.
If the Lubavitch zoning change is adopted Aug. 4, it will have been only 4.5 months since its introduction in Mid-March – about 20 weeks, or 139 days.
By comparison with recent zoning changes mentioned by the board members, a multifamily housing ordinance was introduced in early May 2024 and was approved Feb. 10 – a span of nine months, or 40 weeks or 278 days. Affordable Housing Overlay amendments were introduced Nov. 21, 2022, and were approved Oct. 16, 2023, a span of 11 months, or 47 weeks or 329 days.
With the Lubavitch change, members said, religious groups would be able to build six stories without any contribution to affordable housing, in contrast to residential projects that cannot exceed four stories unless the developer includes low-income housing.
They also said the amendment would allow property for religious uses to serve many more people than the same-size residential building, increasing “intensity of use.” A lawyer for the proponent of the amendment contested that, saying that it could be difficult to compare the impact of many people coming to a religious service once a week to the effect of a residential building that fewer people use all the time.
The vote sets the stage for potential approval of the zoning amendment, proposed by a Jewish group that sued the city over the denial of an expansion request and won a $540,000 settlement plus a much bigger expansion. City officials haven’t revealed the full settlement agreement, but city solicitor Megan Bayer has said the zoning amendment isn’t part of it.
In June the council’s Ordinance Committee, which consists of all city councillors, made a similar decision to send the zoning amendment onward with no opinion. The committee called for changes that would require religious groups seeking to change or develop property to meet with neighbors if the project is more than three stories high, similar to the requirement for residential property developers. Another modification would require that at least half the open space in a development be permeable, also similar to requirements for residential projects.
The Planning Board endorsed both changes in the proposal, and an attorney for the proponent, Lubavitch of Cambridge, said it is “likely” that language exempting religious groups from the requirements for a neighborhood meeting and for permeable open space will be removed from the proposal before a final vote by the City Council.
The decision by the Planning Board enables the City Council to approve the amendment at its next meeting, Aug. 4, if councillors wish. Under city rules, the Planning Board and Ordinance Committee must hold hearings on any proposed zoning amendment and send their decision to the council with a favorable, unfavorable or no opinion before the council can act.
Settlement details emerge
Lubavitch of Cambridge, also known as Harvard Chabad, has held religious services, served meals and offered other religious programs at its center on Banks Street since the late 1990s. Last year the Orthodox group sought to double its indoor space, saying it needed to serve food outside under a tent even in winter because indoor facilities weren’t adequate. A neighborhood organization opposed the expansion because it would bring too many people to the small neighborhood off Mount Auburn Street, the group said. The Board of Zoning Appeals denied the permit; members voted 3-2 in favor but approval needed four votes.
Lubavitch sued the city and the zoning board, asserting that the denial violated a federal law that forbids land use rules that “substantially burden” religious worship unless a locality has a compelling interest and the rules are the least restrictive way of accomplishing that. The suit also accused the board and the neighborhood opponents of antisemitism. The parties almost immediately began mediation, even before the city and the board answered the suit.
The outline of a settlement began to emerge over the last two months. Lubavitch applied for another permit, this time asking to quadruple its space and to build a five-story, 90-foot high structure instead of the original plan that would not have increased the three-story height. After the zoning board approved the plan without discussion, the city revealed that the decision was part of a settlement.
Then on June 23 city manager Yi-An Huang asked the council for $540,000 from the city’s surplus funds, saying the payment was for a settlement of the lawsuit. City spokesperson Jeremy Warnick later said the agreement would not be revealed until it is “complete,” and that won’t occur until Lubavitch gets a building permit for its expansion project.
Group seeks to equal housing
Meanwhile Lubavitch sought the zoning amendment, which would essentially give religious land uses the same freedom from zoning restrictions that residential developers won when the city approved its multifamily zoning ordinance – allowing multifamily housing to be built in most areas of the city. Lubavitch cited the same federal law at the basis of its lawsuit.
Bayer submitted a legal opinion to the Ordinance Committee and the Planning Board outlining the federal law, called the Religious Land Use and Institutionalized Persons Act, as well as a state law called the Dover amendment that bars communities from rejecting religious and nonprofit educational projects but allows “reasonable” restrictions on height, density and other zoning issues.
Cambridge won an exemption from the law in 1979 that allowed the city to regulate religious and nonprofit education projects in districts where the minimum lot size was at least 1,200 square feet per dwelling unit. The city’s main worry then was preventing educational players such as Harvard and MIT from expanding into residential areas and reducing housing.
The multifamily housing ordinance eliminated minimum lot sizes, so the city no longer is exempt from the state law, Bayer said. Zoning officials intend to correct the zoning rules to reflect the change.
Board shows uncertainty
Bayer’s legal opinion noted that the city doesn’t have to adopt the Lubavitch zoning amendment. Nevertheless, the federal law will apply to zoning decisions and the zoning amendment will reduce the chance of a suit by allowing some religious land uses by right, so religious organizations won’t have to seek zoning relief for their projects.
One Planning Board member, Diego Macias, asked: “Am I supposed to be considering these liability things” or planning issues?
Planning issues, Bayer replied. “The Planning Board’s role in this is to advise the council from a planning perspective,” she said. “The council has, potentially, other interests that they also look at when they look at petitions that are before them.”
Lydecker also referred to the liability issue. The push to give religious organizations the same zoning relief that residential developers got with the multifamily housing ordinance “feels like it’s understandably being concerned about a litigious, you know, culture that we’re living in, right?” she said.
The relatively quick time frame for considering the amendment concerned Macias. “With the [Affordable Housing 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,” he said. “And this feels a little rushed, and I would appreciate maybe more time from a planning perspective without considering the liability issues.”
A stronger
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It is a shame that a religious institution has their argument, approach, process down where the same formula has been used in several similar cases, suing towns if they don’t get their way, calling defendants anti-Semitic and NIMBYs. It also happened in Litchfield, CT after purchasing in a historic district. They sued after being denied an oversized addition. this has nothing to do with religion. This same group also has at least 9 properties in Cambridge. No wonder they want to move fast w/o abutter meetings. Remember- they want to re-zone the entire city for religious groups, how many others are there and what constitutes a religious group? Council’s lazy, ignorant and shallow work on the MFZ brought this on, even as knowing people protested – housing is being lost for private benefit. In seems evident there is always a subtle threat of law suit regardless how basic the issue is. Now council is scared to challenge them.
actually, I think they wanted to tear down the house in CT. I can’t help but think the author (s?) of this MF zoning understood all this. How is 6 stories of residential units equivalent to institutional use when two stories are added for inclusionary? How is that equitable? And they continue to threaten law suits, maybe me included.
The First Amendment still has the Establishment Clause. This proposal favors religious uses over all other uses, and I’d argue that, in the home of Grendel’s Den (successful litigant in a landmark Establishment Clause case), the City Solicitor and the City Council shouldn’t be so dismissive of a legal challenge on the grounds that this is an unconstitutional establishment of religion. The only argument I’ve ever heard is that a particular religious use has shown that it is eager to sue at the drop of a hat.