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Gund v. Planning Board of Cambridge

Appeals Court of Massachusetts, Suffolk

July 19, 2017

GRAHAM GUND & others [1]
v.
PLANNING BOARD OF CAMBRIDGE & others. [2]

          Heard: October 7, 2016.

         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. 0'Flaherty for LMP GC Holdings, LLC.

          Vali Buland, Assistant City Solicitor, for planning board of Cambridge.

          Adam Hornstine, Assistant Attorney General, for the Commonwealth.

          Present: Agnes, Maldonado, & Desmond, JJ.

          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, § 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" 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 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.

         D ...


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