Judge Rules Council Approved Building Limits Improperly

A Middlesex District Court judge yesterday upheld Harvard's contention that the City Council improperly passed a Harvard Square zoning decision last winter.

The council vote on an ordinance limiting the height of buildings in the Square was six yes, two no and one "present."

The City Council voted to interpret councilor Lawrence Frisoli's "present" vote as affirmative, giving the bill the seven votes it needed to pass.

The judge, who did not explain his ruling, apparently agreed with Harvard's lawyer in the case, Lane McGovern '46. "The natural wording and purposes of the act show that it calls for a three-quarters vote, it is construed to mean a three-quarters affirmative vote, and that is how it is across the country," McGovern said yesterday.

Cambridge officials said yesterday they plan to appeal the ruling. "We will pursue this matter until we are satisfied," councilor Mary Ellen Preusser said.

The court ruled "surprisingly quickly" on the case, which lawyers argued Friday morning, city attorney Douglas Randall said yesterday. "With more than 100 pages of material to read, I'm amazed that he finished that quickly," Randall added.

McGovern predicted before the ruling was handed down that the judge might take as long as three weeks to consider the arguments.

A second ruling on a different aspect of the council vote is due sometime in the next few months, Randall said.

The second case poses a larger constitutional question--Cambridge lawyers will challenge Harvard's right as a major land-owner to demand a larger council majority on zoning questions.

Last winter Harvard exercised its right under the state zoning code to require a seventh vote in the council for the bill to pass.

Harvard officials said at the time they opposed the change partly because they were afraid it could saddle their successors with potentially restrictive regulations.

Randall will argue the provision should be struck down because it allows "a landowner to have the same voting strength as 11,000 inhabitants. Based on recent theories of equal representation, that seems wrong," Randall said.

The zoning requirement, on the books pending the outcome of the court challenges, sets the maximum height for new construction at 110 feet.