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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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, […]