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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 bylaw 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-toarea 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-toarea 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.