Public Law

Updates on Public Law in Massachusetts from Anderson & Kreiger LLP


Appeals Court Settles that an ex-Government Building Constitutes a Preexisting Nonconforming Structure

The Appeals Court recently held that the former Edward J. Sullivan Courthouse in East Cambridge will be a preexisting, nonconforming structure under the Zoning Act when it is bought by a private developer.  This classification will make it easier to redevelop the building.

The courthouse, towering over its neighborhood since it was built around 1970, never complied with the Cambridge Zoning Ordinance.  As a state building, it was immune from zoning.  However, LMP GP Holdings, LLC entered into an agreement to buy the courthouse, and the zoning immunity will terminate when it does so.  The issue in Gund was whether the courthouse will then be considered a preexisting, nonconforming structure, which can be redeveloped with a special permit – obtainable if the redeveloped building would not be substantially more detrimental to the neighborhood than the existing one – or will require variances, which are much harder to obtain.  The neighbors argued that the building cannot be a preexisting, nonconforming structure since it never complied with the zoning ordinance, and that the redevelopment will require variances rather than a special permit.

The Appeals Court rejected that argument, affirming a Land Court decision and holding that the courthouse will become a preexisting, nonconforming structure.  It followed a 1986 Appeals Court decision (Durkin v. Board of Appeals of Falmouth), in which the court had reached the same conclusion regarding a former U.S. Post Office (also immune from zoning).

This situation may continue to arise as governments at all levels sell surplus property.  An analogous situation may arise when religious and school buildings, which are not immune from zoning but are protected in certain respects under Section 3 of the Zoning Act (the Dover Amendment), are sold for redevelopment.  The Gund decision may promote the sale, renovation and reuse of those buildings by reassuring developers that in many cases they can proceed with special permits, rather than variances.

At the time of this post, the neighbors were seeking further appellate review in the Supreme Judicial Court.  Stay tuned.

Gund v. Planning Board of Cambridge, No. 15-P-1339 (July 19, 2017)

About the Author

Arthur P. Kreiger – Partner

Art has more than 30 years of experience in all types of environmental and land use matters.

Posted In: Land Use

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