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15-P-1339 Appeals Court
GRAHAM GUND & others1 vs. PLANNING BOARD OF CAMBRIDGE
& others.2
No. 15-P-1339.
Suffolk. October 7, 2016. - July 19, 2017.
Present: Agnes, Maldonado, & Desmond, JJ.
Courthouse. Zoning, Nonconforming use or structure,
Governmental use. Governmental Immunity. County,
Municipal zoning by-laws. Municipal Corporations,
Governmental immunity, By-laws and ordinances.
Civil action commenced in the Land Court Department on
November 19, 2014.
Motions for summary judgment were heard by Robert B.
Foster, J., and entry of separate and final judgment was ordered
by him.
Mark Bobrowski for the plaintiffs.
Kevin P. O'Flaherty for LMP GC Holdings, LLC.
Vali Buland, Assistant City Solicitor, for planning board
of Cambridge.
Adam Hornstine, Assistant Attorney General, for the
Commonwealth.
1
Michael Hawley, Marie Saccoccio, and Roger Summons.
2
LMP GC Holdings, LLC, and the Commonwealth.
2
MALDONADO, J. The Edward J. Sullivan Court House (court
house) was constructed by Middlesex County (county) between 1968
and 1974 on land owned by the county on Thorndike Street in
Cambridge (city). First owned by the county and then, after
1997, by the Commonwealth, the court house was immune from the
local zoning ordinance when it was built, and in the ensuing
years when it housed the Superior Court, the Cambridge Division
of the District Court Department, and associated court offices
through 2009, and a jail facility through 2014. Defendant LMP
GP Holdings, LLC (developer), is a private entity that has
entered into a purchase and sale agreement with the Commonwealth
to purchase the court house and has taken steps to obtain
approvals to redevelop it. The sole issue on appeal is whether
the court house, when it loses its governmental immunity by
transfer to the developer, will constitute a preexisting
nonconforming structure under G. L. c. 40A, § 6, and § 8.22.2(a)
of the relevant zoning ordinance such that redevelopment may be
approved by special permit.3 A judge of the Land Court concluded
on summary judgment in a well-reasoned decision that c. 40A,
3
Whether the redevelopment meets the special permit
criteria is not at issue before us.
3
§ 6, and § 8.22.2(a) of the zoning ordinance govern the
developer's efforts to redevelop the property, and we affirm.4
Background. The background facts are not in dispute and
are largely derived from an agreed statement of facts. On
October 30, 2014, the planning board of Cambridge (planning
board) granted four special permits to the developer authorizing
the redevelopment of the court house to include twenty stories
and 476,303 gross square feet of office, retail, and multifamily
uses.5 One of the special permits, the only one before us, was
issued pursuant to § 8.22.2 of the zoning ordinance, which
authorizes alteration of "pre-existing nonconforming structures"
4
The facts in the record are thin on the plaintiffs'
standing to bring this action, but their complaint asserts that
they are "parties in interest." See G. L. c. 40A, § 11.
Parties in interest entitled to notice under § 11 are entitled
to a presumption of standing to appeal from a zoning decision.
See G. L. c. 40A, § 17; Marinelli v. Board of Appeals of
Stoughton, 440 Mass. 255, 257 (2003). It would appear that the
judge was satisfied that the plaintiffs had made a threshold
showing of standing. After summary judgment entered regarding
the issue before us, the plaintiffs agreed to dismiss the other
counts of the complaint and to request final judgment in
reliance of the defendants' promise not to challenge the
plaintiffs' standing. Such an agreement would not be binding on
us were the plaintiffs' lack of standing plainly apparent. See
Warrington v. Zoning Bd. of Appeals of Rutland, 78 Mass. App.
Ct. 903, 905 (2010) (lack of standing cannot be waived and may
be raised at any stage in proceedings).
5
All existing and proposed uses are permitted as of right
in the business B zoning district in which the court house is
located; thus, no nonconformity as to use is at issue.
4
as set forth in the margin.6 The zoning ordinance defines
nonconforming structure as "[a]ny structure which does not
conform to the dimensional requirements . . . or to the parking
and loading requirements . . . of this Ordinance for the
district in which it is located; provided that such structure
was in existence and lawful at the time the applicable
provisions of this or prior zoning ordinances became effective."
When it was constructed, the court house complied with
zoning ordinance requirements except that it exceeded the
allowed floor-to-area ratio. It now exceeds the floor-to-area
ratio by an even greater amount, as the city has since adopted a
lower floor-to-area ratio, and it exceeds by 200 feet the
eighty-foot height limitation adopted after the court house was
built. The planning board concluded that the court house
6
Section 8.22.2 provides, in pertinent part:
"The following changes, extensions, or alterations of a
pre-existing nonconforming structure or use may be granted
in the following cases after the issuance of a special
permit . . . if the permit granting authority . . . finds
that such change, extension, or alteration will not be
substantially more detrimental to the neighborhood than the
existing nonconforming use.
"a. In [a Business] District the Board of Zoning Appeal
may issue a special permit for the alteration or
enlargement of a nonconforming structure, not otherwise
permitted in Section 8.22.1 above, or the enlargement (but
not the alteration) of a nonconforming use, provided any
alteration or enlargement of such nonconforming use or
structure is not further in violation of the dimensional
requirements in Article 5.000 or the off street parking and
loading requirements in Article 6.000."
5
constitutes a preexisting nonconforming structure as defined in
the zoning ordinance and ultimately granted a special permit
under § 8.22.2(a) of the zoning ordinance. On appeal, the Land
Court judge granted partial summary judgment to the developer on
the narrow issue whether the court house constitutes a
preexisting nonconforming structure, and concluded that the
planning board acted properly in treating the court house as
such.
Discussion. "We start with the proposition that 'a [board]
is entitled to "all rational presumptions in favor of its
interpretation of its own by-law, [provided] there [is] a
rational relation between its decision and the purpose of the
regulations it is charged with enforcing."'" Titcomb v. Board
of Appeals of Sandwich, 64 Mass. App. Ct. 725, 730-731 (2005),
quoting from Building Commr. of Franklin v. Dispatch
Communications of New England, 48 Mass. App. Ct. 709, 713
(2000). In addition, while a general goal of zoning is the
eventual elimination of nonconforming uses and structures,
Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley,
461 Mass. 469, 484 (2012), at the same time, the Zoning Act,
c. 40A, § 6,7 and many local by-laws or ordinances provide
7
General Laws c. 40A, § 6, inserted by St. 1975, c. 808,
§ 3, provides in pertinent part:
6
protection to lawful nonconforming uses and structures. Where,
as here, a zoning ordinance largely parroted the protections
contained in § 6, we said that the "by-law unequivocally
reject[ed] the concept that nonconforming uses or structures
must either fade away or remain static." Titcomb v. Board of
Appeals of Sandwich, supra at 730. Indeed, we have noted that
pursuant to the second sentence of § 6, a preexisting
nonconforming structure that has lost grandfathering protection
because of a proposed reconstruction, extension, or structural
change of such structure, or alteration of a structure for its
use for a substantially different purpose, "'may be extended or
altered' if the proper local authority makes a finding 'that
such change, extension or alteration shall not be substantially
more detrimental than the existing nonconforming [structure or]
use to the neighborhood.'" Welch-Philippino v. Zoning Bd. of
Appeals of Newburyport, 86 Mass. App. Ct. 258, 261 (2014),
"Except as hereinafter provided, a zoning ordinance or by-
law shall not apply to structures or uses lawfully in
existence . . . , but shall apply . . . to any
reconstruction, extension or structural change of such
structure and to any . . . alteration of a structure
. . . . Pre-existing nonconforming structures or uses may
be extended or altered, provided . . . that no such
extension or alteration shall be permitted unless there is
a finding by the permit granting authority or by the
special permit granting authority designated by ordinance
or by-law that such change, extension or alteration shall
not be substantially more detrimental than the existing
nonconforming use to the neighborhood."
7
quoting from Barron Chevrolet, Inc. v. Danvers, 419 Mass. 404,
412 (1995).
The plaintiffs focus their argument that the court house is
not a preexisting nonconforming structure on the definition of
"nonconforming" in the zoning ordinance and not on the language
of c. 40A, § 6. To be considered nonconforming, the zoning
ordinance requires the structure to be "in existence and lawful
at the time the applicable provisions of this or prior zoning
ordinances became effective." They contend that when the
structure loses its governmental immunity, the planning board
was required to look back at the existing floor-to-area ratio
requirement in place when the court house was built, and only if
the court house met that criterion can it now be considered
nonconforming under the zoning ordinance. In other words, the
plaintiffs argue that the only way the court house can be
considered a preexisting nonconforming structure is if it
complied with the zoning requirements when it was constructed
and now fails currently to comply because the city adopted a
stricter zoning ordinance since the construction of the court
house.
8
The parties all agree that the court house was immune from
the zoning ordinance8 at the time it was built and at all times
since while it has been held and operated by a public entity.
See G. L. c. 40A, § 3; County Commrs. of Bristol v. Conservation
Commn. of Dartmouth, 380 Mass. 706, 713 (1980); Inspector of
Bldgs. of Salem v. Salem State College, 28 Mass. App. Ct. 92, 95
(1989). As such, the court house was immune from the floor-to-
area ratio when it was constructed, and the provisions of the
zoning ordinance do not become effective as to the court house
until the structure loses its governmental immunity, which the
parties agree will occur when the property is conveyed to the
developer by the Commonwealth. Therefore, the court house will
have been properly in existence long before the zoning ordinance
becomes effective as to it. In the circumstances, we agree with
the planning board's conclusion that the court house becomes a
preexisting nonconforming structure when it loses its
governmental immunity.
Even if the court house does not meet the literal
definition of a preexisting nonconforming structure contained in
the zoning ordinance, the case of Durkin v. Board of Appeals of
8
Nonetheless, the structure complied with the zoning
ordinance when it was built with the exception of the floor-to-
area ratio, discussed supra.
9
Falmouth, 21 Mass. App. Ct. 450, 452-453 (1986), is instructive.9
There, a planning board determined it lacked authority to grant
a special permit because a constitutionally immune use could not
be treated as a lawful nonconforming use under the local by-law.
Id. at 452. We rejected the argument, stating that such an
interpretation of the local by-law was too narrow. Ibid. We
explained that a use permissible because of immunity from
application of the local by-law still would have been a use
"forbidden by the by-law, and thus 'nonconforming' in fact."
Id. at 453. Similarly, to the extent the court house here,
strictly speaking, never fully satisfied zoning ordinance
requirements, it has always been nonconforming. However, it has
always been lawful because the zoning ordinance requirements
simply did not apply to it. Ibid. Compare Bruno v. Board of
Appeals of Wrentham, 62 Mass. App. Ct. 527, 536-537 (2004)
(expiration of six-year limitation period to enforce by-law does
9
The plaintiffs' efforts to distinguish Durkin on its facts
are unavailing, as we are persuaded that the analysis is correct
when applied to the facts of this case. We recognize that there
was some question whether the structure at issue in Durkin was
immune from zoning requirements which, in part, required remand.
21 Mass. App. Ct. at 454. However, we answered the question as
to the planning board's authority if, upon remand, it determined
the structure had been immune. Id. at 453-454. Furthermore, we
cannot countenance the plaintiffs' efforts to establish, by
citation to the briefs in Durkin, that the facts of Durkin were
different from those stated in the published opinion. If there
were a material issue with the facts as stated, that was for the
parties to address in Durkin and not for this court to reexamine
in the context of another appeal.
10
not convert unlawful nonconforming use into lawful,
nonconforming use; it merely prevents town or others from
bringing action to enforce by-law). We discern no meaningful
distinction in terms of the protections afforded nonconforming
structures in the zoning ordinance between a structure that
becomes nonconforming because of a subsequently enacted stricter
ordinance and one that becomes nonconforming because of a loss
of statutory immunity. Compare Rourke v. Rothman, 448 Mass.
190, 197-198 (2007) (whether lot became unbuildable because of
increase in dimensional requirements or by repeal of exemption
from dimensional requirements immaterial when considering
whether lot qualified for protection under fourth par. of G. L.
c. 40A, § 6). In Rourke, the Supreme Judicial Court said that
focusing on an arbitrary distinction between once-buildable lots
based solely on the linguistic mechanism by which they became
unbuildable highlights a distinction without a difference. Id.
at 194.
Finally, the case of Mendes v. Board of Appeals of
Barnstable, 28 Mass. App. Ct. 527 (1990), does not require a
different result. In Mendes, we held that a use that exists
because of a variance issued by a local planning board is not a
nonconforming use under c. 40A, § 6. Id. at 528-529. We noted
that a variance presupposes the prohibition of the use or
structure sought and is granted sparingly under demanding
11
criteria that are difficult to satisfy. Id. at 531. In
contrast, the special permit power presupposes the allowance of
certain uses, with review by the local permit-granting authority
under more flexible criteria. Ibid. We concluded that the
Legislature did not intend in c. 40A, § 6, to authorize the
expansion of uses having their genesis in a variance by virtue
of "the more generous standard applicable to a special permit."
Id. at 531-532. A use or structure that is immune from local
zoning regulations because it is owned by the government cannot
be equated to a use or structure that has been allowed because
it meets the strict criteria for a variance. Ibid. A structure
lawful because it is immune from zoning regulations is closer to
structures that were constructed prior to zoning regulations
being adopted.
While we did explain in Mendes, supra at 529-530, that a
§ 6 use "achieves the status of nonconformity for statutory
purposes if it precedes the coming into being of the zoning
regulation which prohibits it," we also said the focus is on how
and when a use, or structure, became lawful. Id. at 531. The
unique facts of this case were not before the court in Mendes.
But, applying the so-called "how and when" test articulated in
Mendes, we note again that the court house lawfully preceded the
application of any zoning regulations to it. When the court
house loses its governmental immunity, nothing in the zoning
12
ordinance or the statutory scheme suggests that the planning
board should look back to when the structure was constructed to
determine whether it complied with the then-existing zoning
ordinance from which it was immune at the time. Nothing in the
statutory scheme suggests that we should treat the court house
as if its governmental immunity never had existed.
Judgment affirmed.