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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.
