MISC 14-488217

May 19, 2015

Middlesex, ss.




These consolidated actions are two appeals from an October 30, 2014 decision of the City of Cambridge Planning Board (the Board) granting special permits with conditions to LMP GP Holdings LLC (the Developer) for the purpose of converting the existing courthouse structure at 40 Thorndike Street, Cambridge—that is, the Edward J. Sullivan Courthouse (Courthouse). The special permits were issued by the Board in accordance with Article 8, Section 8.22.2 (Article 8) of the Cambridge Zoning Ordinance (the Ordinance). The plaintiffs raised many challenges in their respective complaints, but the cross-motions for partial summary judgment at issue focus specifically on the Board’s determination that the Courthouse is a lawful nonconforming structure and should be afforded the protections provided for in G.L. c. 40A, § 6 and Article 8 of the Ordinance. As discussed below, the court agrees with the Developer and the Board that the Courthouse is entitled to the protections of § 6 and Article 8 as a lawful nonconforming structure.

Procedural Background

Daniel C. Hill filed his complaint in 14 MISC 488217 on November 19, 2014, naming as defendants the members of the Board and the Developer. The same day, Michael Hawley, Graham Gund, Marie Saccoccio, and Roger Summons filed their complaint in 14 MISC 488218, naming as defendants the members of the Board, the Developer, and the Commonwealth of Massachusetts. Both complaints are appeals under G.L. c. 40A, § 17, of the special permit granted by the Board to the Developer.

The Defendants’ Motion to Consolidate was allowed on December 16, 2014, and the two actions were consolidated. The case management conference was held on January 14, 2015. At the case management conference, the parties and the court agreed that a threshold issue, namely whether the Courthouse constituted a lawful nonconforming use, would be decided by cross-motions for summary judgment. On February 17, 2015, the parties filed Plaintiffs’ and Defendants’ Agreed Upon Statement of Undisputed Material Facts in Support of Cross-Motions for Summary Judgment. On March 24, 2015, the parties filed (a) Plaintiff Daniel C. Hill’s Motion for Partial Summary Judgment (Hill Motion) and the Memorandum of Law in Support of Plaintiff Daniel C. Hill’s Motion for Partial Summary Judgment; (b) Motion for Summary Judgment by Plaintiffs Hawley, et al. (Hawley Motion) and the Memorandum in Support of the Motion for Summary Judgment by Plaintiffs Hawley, et al.; (c) LMP GP Holdings, LLC’s Motion for Partial Summary Judgment (Developer Motion) and the Memorandum in Support of LMP GP Holdings, LLC’s Motion for Partial Summary Judgment; (d) Defendant City of Cambridge Planning Board’s Motion for Partial Summary Judgment (Board Motion) and the Memorandum in Support of Defendant City of Cambridge Planning Board’s Motion for Partial Summary Judgment; and (e) the Commonwealth’s Motion for Partial Summary Judgment (Commonwealth Motion) and the Commonwealth’s Memorandum in Support of Its Motion for Partial Summary Judgment. On April 2, 2015, the Board filed the Memorandum of Defendant Planning Board of Cambridge in Opposition to Plaintiffs’ Motions for Partial Summary Judgment. On April 3, 2015, the remaining parties filed Daniel C. Hill’s Opposition to Defendants’ Motions for Partial Summary Judgment, the Reply Memorandum of Plaintiffs Hawley, et al., the Opposition of LMP GP Holdings, LLC to Plaintiffs’ Motions for Partial Summary Judgment, and the Commonwealth’s Opposition to Plaintiffs’ Motions for Partial Summary Judgment.

The court heard arguments on the cross-motions for partial summary judgment on April 7, 2015, and took the cross-motions under advisement. This memorandum and order follows.

Summary Judgment Standard

Summary judgment may be entered if the “pleadings, depositions, answers to interrogatories, and responses to requests for admission… together with affidavit … show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c). “Summary judgment is appropriate when, ‘viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Regis Coll. v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). “The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991).

In viewing the factual record presented as part of the motion, the court is to draw “all logically permissible inferences” from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). Where, as here, the parties have presented cross-motions relying solely on undisputed recorded instruments, the court may interpret the meaning of these instruments, including the intent of the parties to the instruments, as a matter of law. World Species List – Natural Features Registry Inst. v. Reading, 75 Mass. App. Ct. 302 , 305 (2009); Rivers v. Warwick, 37 Mass. App. Ct. 593 , 596 (1994); see Asian Am. Civic Ass’n v. Chinese Consolidated Benevolent Ass’n of New Eng., Inc., 43 Mass. App. Ct. 145 , 148 (1997).

Factual Background

The parties agree that the following facts are undisputed:

1. The Courthouse was constructed between 1968 and 1974 on approximately 1.37 acres (59,788 square feet) of land then owned by Middlesex County and located at 40 Thorndike Street in East Cambridge, Massachusetts.

2. The Courthouse is located in the Business B zoning district. Multi-family residential, office and retail uses are allowed in the Business B zoning district as a matter of right under the current version of the Ordinance.

3. At the time the Courthouse was constructed it complied with all applicable dimensional requirements of the Ordinance, with the exception of the Ordinance’s maximum allowed Floor Area Ratio (FAR), which at that time was 4.0. At the time it was constructed, the Courthouse had a FAR which was in excess of the allowable FAR.

4. At the time of construction, the Courthouse, as a building of the county government, was immune from the FAR requirement of the Ordinance.

5. After the Courthouse was constructed, Cambridge adopted a more restrictive FAR requirement of 2.75/3.00. The Courthouse pre-existed the FAR requirement provided by the current Ordinance.

6. After the Courthouse was constructed, Cambridge adopted a maximum height limitation of 80 feet for structures in the Business B zoning district. The Courthouse is approximately 280 feet in height. At the time that the Courthouse was constructed there was no maximum height limitation for the zoning district in which the Courthouse was located.

7. In 1997, the Massachusetts Legislature abolished Middlesex County as a governmental entity and transferred ownership of the Courthouse to the Commonwealth of Massachusetts.

8. From 1974 until about 2009, the Courthouse was occupied by the Middlesex Superior Court, the Cambridge District Court, associated Court offices and agencies, and a jail facility.

9. Between 2007 and 2009 the various court programs were relocated from the Courthouse to a new courthouse in Woburn. The Courthouse continued to house a jail facility until the summer of 2014.

10. In or about January 2013, the Commonwealth entered into a purchase and sale agreement with the Developer, for the purchase of the Courthouse.

11. On October 30, 2014, the Planning Board granted the four (4) special permits requested by the Developer with eleven (11) enumerated conditions. The special permits authorized the redevelopment of the Courthouse which will result in a twenty (20) story building with 476,303 square feet of gross floor area to be occupied by office, retail, and multifamily uses.

12. One of the special permits granted to the Developer was a special permit authorizing the alteration of a nonconforming structure pursuant to Article 8, Section 8.22.2a of the Ordinance.


As the parties properly agree, when the Courthouse was built by Middlesex County, it was immune from the requirements of the Ordinance, including its FAR limit. County Comm’rs of Bristol v. Conservation Comm’n of Dartmouth, 380 Mass. 706 , 710-711 (1980). This immunity continued when ownership of the Courthouse was transferred to the Commonwealth. Id. at 708; Medford v. Marinucci Bros., 344 Mass. 50 , 54-56 (1962), and cases cited. As the parties further agree, upon conveyance of the Courthouse from the Commonwealth to the Developer, its immunity from the Ordinance shall cease. Village on the Hill, Inc. v. Massachusetts Turnpike Auth., 348 Mass. 107 , 118 (1964).

The question in these cross-motions for summary judgment is whether or not, once it is no longer immune from the Ordinance, the Courthouse is a lawful non-conforming structure for the purposes of G.L. c. 40A, § 6 (Section 6) and Article 8. In relevant part Section 6 provides that

a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun, or to a building or special permit issued before the first publication of notice of the public hearing on such ordinance or by-law required by section five, but shall apply to any change or substantial extension of such use, to a building or special permit issued after the first notice of said public hearing, to any reconstruction, extension or structural change of such structure and to any alteration of a structure begun after the first notice of said public hearing to provide for its use for a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent . . . . 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 the ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighbourhood.

G.L. c. 40A, § 6. Article 8 is an analogous local ordinance and incorporates the language of Section 6. Article 8, § 8.11. The Ordinance defines “Nonconforming Structure” as:

Any structure which does not conform to the dimensional requirements in Article 5.000 or to the parking and loading requirements in Article 6.000 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.

Ordinance, Art. 2.00, at 2-7. Under the Ordinance, a landowner may seek a special permit to alter a lawful nonconforming structure. Ordinance, Art. 8, § 8.22.2.

As the Courthouse stands today, it fails to conform to the current Ordinance in two ways:

(1) the height of the building exceeds the height limitation by about 200 feet; and (2) it greatly exceeds the FAR requirement. There was no height requirement in place in Cambridge when the Courthouse was built and it is undisputed that that aspect of the building is a lawful pre-existing non-conformity. G.L. c. 40A, § 6; Ordinance, Art. 2.00, at 2-7. The FAR requirement that was in place when the Courthouse was built was 4.0 and has since been reduced to 2.75/3.00. The Courthouse exceeded the 4.0 FAR requirement when it was built and even further deviates from the current requirement. The structure therefore does not appear to meet the literal definition of a lawful nonconforming structure with respect to the FAR limit.

The Developer and the Commonwealth argue that because the Courthouse was by law immune from the application of the then-existing Ordinance when it was built, its failure to comply with the then-existing and current FAR requirements make it a lawful nonconforming structure with respect to those requirements once that immunity ceases. The Board agrees, and it issued the special permit to allow the Developer to make alterations to the Courthouse even though it fails to conform to the height requirements and FAR requirements outlined in the Ordinance. The plaintiffs argue that an immune structure does not become a lawful nonconforming use when the immunity is lifted. Rather, they maintain, the structure is akin to one built pursuant to a variance issued under G.L. c. 40A, § 10, or one that is no longer subject to zoning enforcement under the six-year statute of limitations of G.L. c. 40A, § 7. In neither of those situations would the Courthouse qualify as a lawful nonconforming structure. See Bruno v. Board of Appeals of Wrentham, 62 Mass. App. Ct. 527 , 536 (2004) (“we decline to construe the expiration of the six-year limitation period set out in § 7 as converting an initially unlawful use to a lawful use, as if by a belated or constructive grant of right”); Mendes v. Board of Appeals of Barnstable, 28 Mass. App. Ct. 527 , 531-532 (1990) (“we do not think the Legislature intended in G.L. c. 40A, § 6, to authorize the expansion of uses having their genesis in a variance to the more generous standard applicable to a special permit”).

While the answer is not necessarily self-evident, the court follows what it reads as the holding in Durkin v. Board of Appeals of Falmouth, 21 Mass. App. Ct. 450 , 451 (1986). At issue in Durkin was a post office constructed in 1959 by the Federal government on land that it was leasing from a private owner. Id. at 450-451. The land was in an agricultural zone in which, under the town’s zoning bylaw at that time, government uses other than municipal uses were not allowed. Id. As the Appeals Court noted, the town nevertheless made no objection to the use of the parcel for a post office, “perhaps because it was assumed that zoning laws could have no application to the Federal use of the locus for a proper government purpose.” Id. at 451. In 1966, the land was rezoned to a residential zone. Id. at 450. In the 1980s, the plaintiff sought a special permit to convert the building to professional and business uses, arguing that his proposed use was a permissible extension or change of a pre-existing nonconforming use. Id. at 451-452. The ZBA denied the special permit on the same grounds argued by the plaintiffs here: “that a constitutionally immune use could not be treated as a lawful non-conforming use.” Id. at 452.

The Appeals Court was “of the opinion that the board too narrowly interpreted the term ‘nonconforming’ (with respect to uses of the locus) in appraising its powers” under the town’s bylaw. Id. The Appeals Court’s discussion of the proper scope of the application of the lawful nonconforming use doctrine is worth quoting:

A use of the locus under a lease for a proper Federal purpose may have been immune from application of the town by-law. See e.g., Thanet Corp. v. Board of Adjustment of Princeton, 108 N.J. Super. 65, 66-67 (1969). If in substance, however, a post office use was not a permitted use within the particular zoning district because immune, it still would have been a use of the locus forbidden by the by-law, and thus “nonconforming” in fact. This would have been so even though the by-law could not have been enforced against it because of the Federal immunity. . . . If the use beginning in 1959 could then have been regarded as nonconforming, but immune because of the Federal use, it was a lawful use.

Id. at 452-453. Durkin provides that a structure or use, immune from a zoning ordinance that would otherwise bar the structure or use, is both nonconforming as a matter of fact—meaning, it does not conform to the requirements of the local zoning ordinance—and lawful. In other words, an immune structure or use is a lawful nonconforming structure or use.

The plaintiffs correctly point out that the Appeals Court did not, as a result of this holding, remand the matter to the ZBA with instructions to find a lawful nonconforming use and make a determination of substantial detriment under Section 6. Relying on the briefs filed in Durkin and the proceedings at the ZBA, the plaintiffs argue that the Appeals Court in fact did not decide the immunity question but rather remanded for a broader consideration of all the issues by the ZBA. While not entirely clear from the opinion, it appears that the Appeals Court did instruct the ZBA to determine several issues: whether the post office use was a lawful nonconforming use due either to immunity or the 1966 rezoning to residential use, and whether the new proposed use might be protected by the six-year limitations period of G.L. c. 40A, § 7. Id. at 453-454. The Appeals Court instructed the ZBA to consider these questions because it had failed to consider them initially, resting its decision entirely on its erroneous belief that an immune use could not be treated as a lawful nonconforming use. Nothing about the remand, including the references “to some generally relevant (but not controlling) authorities . . . set out in the Appendix,” id. at 454, changes the Appeals Court’s holding that a structure or use immune from local zoning as a governmental structure or use is both lawful and nonconforming.

Indeed, the court is not alone in interpreting Durkin this way. Both the Appeals Court and previous decisions of this court have viewed Durkin as having resolved the issue. See Bruno, 62 Mass. App. Ct. at 535 n.13; Currier v. Smith, 9 LCR 371 , 375 (2001); Tsouvalas v. Town of Danvers Zoning Bd. of Appeals, 6 LCR 252 , 254 (1997). An immune structure or use that does not conform to local zoning is a lawful nonconforming structure use under Section 6 and Article 8. [Note 1]

In this way, immune structures or uses are different from structures or uses built or made under a variance or that are protected from enforcement under § 7’s six-year (or ten-year) limitation period. In both of the latter situations, the structures or uses were never lawful under the applicable zoning regime. As the Appeals Court noted in Mendes, the use at issue required “the after-the-fact dispensation of a variance” precisely because it was not lawful under the town’s zoning bylaw. Mendes, 28 Mass. App. Ct. at 530. That is the textbook definition of a variance: “an administrative authorization to use property in a manner otherwise not allowed by the zoning ordinance.” J.C. Juergensmeyer & T.E. Roberts, Land Use Planning & Development Regulation Law § 5.14 (2d ed. 2007).

Similarly, a structure or use needs protection from enforcement by § 7 precisely because it was unlawful under zoning when it began. Section 7 does not convert an unlawful structure or use to a lawful structure or use; it simply bars the zoning enforcement office from enforcing the applicable zoning bylaw against it. Bruno, 62 Mass. App. Ct. at 535-536; see also Cumberland Farms, Inc. v. Zoning Bd. of Appeals of Walpole, 61 Mass. App. Ct. 124 , 127 n.9 (2004).

In contrast, as discussed above, just because a structure like the Courthouse did not comply with the Ordinance when it was built does not make it unlawful. It was lawful, because the law of sovereign immunity that permitted it to be built notwithstanding the FAR limit made it lawful. The immunity that exempts government buildings from local zoning is not some kind of state variance from zoning bylaws. Rather, immunity is part of the web of state and local land use law that governs how land may lawfully be used in the Commonwealth. The upshot for this case is simple. The Courthouse was built under immunity from local zoning, and, by nature of that immunity, was lawful. As it did not comply with the FAR requirements of the Ordinance when built, it was a lawful nonconforming structure. Once the immunity ceases, it is subject to Section 6 and Article 8 as a lawful nonconforming structure. The Planning Board acted properly in treating the Courthouse as a lawful nonconforming structure subject to Section 6 and the special permit requirements of Article 8.


For the foregoing reasons, the Developer Motion, the Board Motion, and the Commonwealth Motion are each ALLOWED. The Hill Motion and the Hawley Motion are each DENIED.



[Note 1] Because Massachusetts case law is squarely on point, there is no need to consider the out-of-state cases offered by the parties.