Trustees of the Cambridge Point Condominium Trust v. Cambridge Point, LLC, et al. (Lawyers Weekly No. 10-014-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12327 Trustees of the Cambridge Point Condominium Trust vs. Cambridge Point, LLC, & others.[1] Middlesex. October 5, 2017. – January 19, 2018. Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ. Condominiums, By-laws, Management, Common area. Real Property, Condominium. Public Policy. Civil action commenced in the Superior Court Department on April 3, 2014. A motion for partial summary judgment was heard by Rosalind H. Miller, J.; a motion for reconsideration was considered by her; and motions to dismiss were heard by Peter B. Krupp, J. The Supreme Judicial Court granted an application for direct appellate review. Edmund A. Allcock for the plaintiffs. John F. Gleavy for CDI Commercial Development, Inc., & another. David Aleksic, for Frank Fodera & another, was present but did not argue. David T. Keenan, for Anahid Mardiros, was present but did not argue. Henry A. Goodman & Ellen A. Shapiro, for Community Associations Institute, amicus curiae, submitted a brief. Cailin M. Burke, Julie B. Heinzelman, Diane R. Rubin, Thomas O. Moriarty, & Kimberly A. Bielan, for Real Estate Bar Association for Massachusetts, Inc., & another, amici curiae, submitted a brief. GANTS, C.J. In this action, a condominium trust’s board of trustees has filed suit against the developers of the condominium for damages arising from various design and construction defects in the condominium’s common areas and facilities. The condominium bylaws, however, provide that the trustees cannot bring any litigation involving the common areas and facilities against anyone other than a unit owner unless they first obtain the consent of at least eighty per cent of the unit owners. The issue on appeal is whether this bylaw provision is void, either because it violates the Condominium Act (act), G. L. c. 183A, or because it contravenes public policy. We conclude that it is void because it contravenes public policy.[2] Background. In 2007, Cambridge Point, LLC, as the declarant of a predominantly residential forty-two-unit condominium in Cambridge, filed in the Middlesex South District registry of deeds a master deed, a declaration of trust, and the bylaws of the Cambridge Point Condominium Trust (trust). The trust’s board of trustees (trustees) is responsible for administering the affairs of the trust. Among the powers and duties committed to the trustees is the authority under § 1(o) of […]
Gund, et al. v. Planning Board of Cambridge, et al. (Lawyers Weekly No. 11-091-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-1339 Appeals Court GRAHAM GUND & others[1] 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. 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, […]
Weiss v. City of Cambridge (Lawyers Weekly No. 11-093-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-1439 Appeals Court MIKEL WEISS vs. CITY OF CAMBRIDGE. No. 15-P-1439. Middlesex. May 12, 2016. – July 28, 2016. Present: Rubin, Milkey, & Neyman, JJ. Negligence, Motor vehicle, Pedestrian, Contributory, Violation of statute. Statute, Construction. Practice, Civil, Instructions to jury, New trial. Civil action commenced in the Superior Court Department on February 14, 2013. The case was tried before Peter B. Krupp, J., and a motion for a new trial was considered by him. Keplin K. U. Allwaters, Assistant City Solicitor, for the defendant. Christopher C. Mathers for the plaintiff. MILKEY, J. During the evening rush hour of December 7, 2011, Mikel Weiss was walking across 2nd Street in Cambridge, at its intersection with Binney Street. Before she reached the other side, Weiss was struck by a truck that was making a left-hand turn onto 2nd Street from Binney Street. The driver of the truck (driver) was an employee of the city of Cambridge (city), who was completing a ten-plus hour shift.[1] As a result of the accident, Weiss suffered serious long-term injuries to both knees, incurred significant medical bills, and missed several weeks of work. In the personal injury action that Weiss brought against the city in Superior Court, the main disputed issue was the relative degree of fault between pedestrian and driver. Weiss was in a marked crosswalk when she was struck, but there was evidence that she was not obeying the pedestrian signal at the time. The jury found Weiss thirty-five percent at fault, and therefore her damages award was reduced by that percentage.[2] On appeal, the city challenges the instructions the judge gave to the jury regarding the responsibilities that drivers face pursuant to G. L. c. 89, § 11, to yield to pedestrians in marked crosswalks. The city argues that under its plain language, the statute does not apply to the circumstances of this case. We disagree and therefore affirm. Background. The accident. According to undisputed trial testimony, Binney Street is a “major traffic artery” that is four to five lanes wide at its intersection with 2nd Street. For its part, 2nd Street is “more of a side street” that measures only twenty-four feet across. At the intersection, there is both a crosswalk across 2nd Street and a pedestrian signal (commonly known […]
Frawley v. Police Commissioner of Cambridge (Lawyers Weekly No. 10-028-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11903 JOSEPH F. FRAWLEY, JR. vs. POLICE COMMISSIONER OF CAMBRIDGE. Middlesex. November 5, 2015. – March 4, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Lenk, & Hines, JJ. Firearms. Police, Firearms, Retirement. Public Employment, Police. Declaratory Relief. Practice, Civil, Summary judgment, Injunctive relief, Relief in the nature of certiorari. Civil action commenced in the Superior Court Department on November 13, 2012. The case was heard by Douglas H. Wilkins, J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Samuel A. Aylesworth, Assistant City Solicitor, for the defendant. James F. Lamond (Dennis M. Coyne with him) for the plaintiff. SPINA, J. When Joseph F. Frawley, Jr., retired on March 4, 2004, from his position as a sergeant with the Cambridge police department (department), the police commissioner for the city of Cambridge (city) issued him a “retired officer identification card” (ID card) that had no expiration date. On December 22, 2011, Frawley applied for the issuance of a replacement ID card because the one in his possession had broken. The successor police commissioner (commissioner) denied the application, stating that Frawley “ha[d] not met the standard set by the Department.” On November 28, 2012, Frawley filed an amended complaint for declaratory and injunctive relief in the Superior Court. He sought a declaration that the commissioner had breached his duty under 501 Code Mass. Regs. §§ 13.00 (2008) (regulations), which set forth the standards for identification cards for retired law enforcement officers, by refusing to issue Frawley a replacement ID card. The ID card, together with a so-called “Law Enforcement Officers Safety Act Training and Certification Card” (training certification card), allows the holder to carry a concealed firearm in accordance with the provisions of the Law Enforcement Officers Safety Act of 2004 (LEOSA), Pub. L. No. 108-277, 118 Stat. 865 (2004), codified insofar as relevant here at 18 U.S.C. § 926C (2012). See 501 Code Mass. Regs. § 13.04(2)(a). After determining that Frawley had standing to seek declaratory relief, a judge allowed Frawley’s motion for summary judgment, declaring that he was entitled to receive a replacement ID card because he had retired “in good standing.” Id. at §§ 13.02, 13.03. The commissioner appealed, and we transferred the case to […]
Kelley, et al. v. Cambridge Historical Commission, et al. (Lawyers Weekly No. 11-105-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1309 Appeals Court JACQUELINE KELLEY & others[1] vs. CAMBRIDGE HISTORICAL COMMISSION & others.[2] No. 12‑P‑1309. Middlesex. May 2, 2013. ‑ August 21, 2013. Present: Milkey, Carhart, & Sullivan, JJ. Historic Preservation. Massachusetts Historical Commission. Real Property, Restrictions. Practice, Civil, Motion to dismiss, Complaint, Standing. Administrative Law, Judicial review, Standing. Contract, Third party beneficiary. Civil action commenced in the Superior Court Department on June 13, 2011. Motions to dismiss were heard by Bruce R. Henry, J. Elaine M. Callahan for David Vogel, Peter Fifield, & James J. Carr, Jr. David T. DeCelles for Jacqueline Kelley. Timothy J. Roskelley for Oak Tree Development, LLC & Episcopal Diocese of Massachusetts. Arthur J. Goldberg, Deputy City Solicitor, for Cambridge Historical Commission. Annapurna Balakrishna, Assistant Attorney General, for Massachusetts Historical Commission. MILKEY, J. The St. James Episcopal church sits at the intersection of Massachusetts Avenue and Beech Street in North Cambridge. Built in 1888, the church was designed by noted New York architect Henry M. Congdon in a style that has come to be known as “Romanesque revival.” Since 1983, the church has been listed on the National Register of Historic Places, and all parties to this litigation recognize that it has significant historic value. Also at the site are a parish hall that predates the church by four years, and a small park known as “Knights garden” that was designed in 1915 by noted landscape architect John Nolen. The church property is owned by the St. James Parish (parish), which is part of the Episcopal Diocese of Massachusetts. In conjunction with a private developer, the parish has proposed a four-story, mixed-use development at the church site and on an adjacent parcel that the developer owns. Under the proposal, the church itself would remain but the parish hall and Knights garden — at least in the garden’s current form — would not. The plaintiffs are four nearby residents who allege that various historic preservation laws prevent the project from going forward as proposed. Ruling that their amended complaint failed as a matter of law, a Superior Court judge allowed the defendants’ motions to dismiss. We affirm the judgment, albeit on somewhat different grounds than those stated by the judge below. Background. The 1987 Massachusetts Historical Commission preservation restriction. In 1987, the parish granted defendant […]
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AMBER ALERT: Police Find Missing Boston Child in Cambridge, Suspect Still At Large
A 13-year-old Boston teenager believed abducted by his father was found by Cambridge police Tuesday night. Massachusetts State Police issued an Amber Alert for 13-year-old Jonathan Moore, whom they believe was abducted by his father Tuesday night. According to the alert, police were searching for 36-year-old Jonathan Moore senior, the child and a woman. Police are looking for a red 1997 Toyota Camry, license plate 634 RH4. The suspected abductor, Moore senior, is black, 36 years old, six feet, three inches tall, with black hair and brown eyes. There was no description of Moore senior’s clothing. According to the alert, Moore senior is considered armed and dangerous. While the younger Moore is safe with Cambridge Police, there is no word on the whereabouts of Moore senior. South End Patch