A Harvard lecturer and her husband have filed suit against the University and the Cambridge Board of Zoning Appeal claiming that the expansion of Harvard's Biological Laboratories (biolabs) at 16 Divinity Avenue was illegal.

Maila Walter, a lecturer in the History of Science, and her husband, Edward Walter, allege that Harvard's $2.4 million expansion project should not have been approved by the city because the new building does not meet the prerequisites established by the zoning board.

The building, they claim, creates additional noise and violates city regulations for height increases.

"It vibrates my house," Walter said in an interview yesterday. "No matter where I go in the house it's there. There's different noise at night."

The suit also claims that Harvard tried to conceal the height increase of the new structure in order to get the expansion approved by the zoning board.

The Walters say they been concerned about increases in the noise level created by the new biolabs ever since they were completed last year.

In a November 1993 letter to Margaret H. Marshall, Harvard's Vice President and General, Counsel, Maila Walter wrote, "Ever since the construction of a large greenhouse on the roof of the building I have been subjected to a relentless stream of noise coming from the fans at the biology labs."

Zoning Board Decision

On December 31, 1992, the city zoning board unanimously approved Harvard's petition for a special permit to replace the approximately 5,000 square foot greenhouse area on the roof of the building with research space and to add 3,100 more feet for a new greenhouse.

Since the president biolabs building does not conform to the city's zoning ordinance--and is considered a "non-conforming structure"-- the board's 1992 approval of the expansion was based on a set of prerequisites: the expansion should not create additional traffic, neighbors should not be adversely affected and occupants of the new structure should not endangered.

In addition, the expansion could not impair the integrity of the existing district and the extension of the nonconforming structure could not be "subtantially more detrimental" than the existing structure, according to the board's approval.

After the completion of the project, the Walters appealed the initial ruling, claming that the structure did not fact meet the qualifications because it constituted an increase in height and because it created increased noise and vibrations. The appeal was denied March 17 of this year.

Lawsuit

The Walters filed their lawsuit against the city on April 5 in the Middles County Superior Court.

Their suit alleges that the structure has created increased noise from the biolabs, which are located near the Walters' house at 21 Francis Ave.

The suit claims that the noise comes from "the installation of at least one new large fan, replacement and/or alteration of several existing fans and installation of new air conditioners."

When Harvard began testing the fans and air conditioners, the suit alleges, the Walters experienced "loud noises emanating from the fans and air conditioners and they experienced severe vibrations of their home."

The lawsuit cites tests which show that since the new biolabs have been in use, decibel levels at and around the Walters' house have increased significantly, at times exceeding the state's legal limit.

The suit also cites the Noise Control Ordinance, which defines vibrational motion as a type of noise disturbance.

Because of the noise, the suit alleges, the expansion adversely affects neighbors, impairs the integrity of the zoning district, and is "substantially more detrimental" to the neighborhood than the original structure--thus violating the zoning board's original prerequisites in approving the expansion.

The suit also argues that it was not legal for Harvard to add the greenhouse on the sixth floor of the building because the property was zoned under a category which did not allow height increases.

The Walters allege that Harvard attempted to mislead the zoning board into premitting the expansion by trying to conceal the fact that it constituted a height increase.

A notice sent to nearby residents advising them of the first zoning hearing states that the petition was for a "special permit: to enlarge existing non-conforming structure for green house use and alter/renovate portion of fifth floor research faculty." No mention is made in the notice of adding as sixth floor, the lawsuit states.

Harvard's application to the Board of Zoning Appeal said "petitioner also seeks to add a 3100 gross square feet green house to the sixth floor," implying a sixth floor already existed.

Regarding the alleged concealment, Edward Walter said yesterday, "I expect the judge to read the record and tell them to tear [the structure] down."

Failed Zoning Board Appeal

The Walters have resorted to a lawsuit because the zoning board rejected their contentions in their February appeal.

In the appeal, the Walters asked that the board reverse its decision based on Harvard's alleged failure to conform to the conditions on which initial approval was based.

But the board denied the appeal on the basis that it had already approved the structure's expansion.

John Miller, chair of the board, said at the appeal hearing, "it's my belief...that we really have no authorization to re-hear the case, or [open] up the case that we heard prior to this hearing."

In its decision to deny the appeal, the board also denied that Harvard had misled it with regard to the height increase.

The decision states, "Board members stated that the Board had known that the greenhouse addition constitute a new sixth floor, that Harvard's presentation had not been misleading, and that the Board had understood what the project involved."

The board's decision also cites studies showing that the sound levels from the bolas are below the legal limits and are, therefore, not excessive.

At the hearing, Harvard officials also decried extensive efforts to iron out the difficulties with the Walters.

"Harvard representatives have spoken with the Walters literally dozens of times on this issue," Harvard Director of Planning Kathy A. Spigelman said at the hearing. "[Harvard representative] have experimented on more than one occasion in [the Walters'] presence to try to identify the exact sources of the sounds to which Walter objects."

C. James Ciotti, director of the biolabs, also stated at the appeals hearing that specific efforts had been made to address the concerns of the Walters.

Ciotti said in an interview yesterday that he was continuing to try to address their concerns.

"I promised that I would do certain things by certain dates, and I've done those," he said. "We're trying to answer her complaints."

Maila Walter said yesterday that although some of Harvard's efforts have been helpful, not enough has been done. Walter said she has resorted to legal action because she does not trust that Harvard will adequately address the increased noise level.