Heard: October 7, 2016.
action commenced in the Land Court Department on November 19,
for summary judgment were heard by Robert B. Foster, J., and
entry of separate and final judgment was ordered by him.
Bobrowski for the plaintiffs.
P. 0'Flaherty for LMP GC Holdings, LLC.
Buland, Assistant City Solicitor, for planning board of
Hornstine, Assistant Attorney General, for the Commonwealth.
Present: Agnes, Maldonado, & Desmond, JJ.
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. A judge of the Land Court concluded
on summary judgment in a well-reasoned decision that c. 40A,
§ 6, and § 8.22.2(a) of the zoning ordinance govern
the developer's efforts to redevelop the property, and we
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. 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" as set
forth in the margin. 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
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
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.