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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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, […]
Aiello v. Planning Board of Braintree, et al. (Lawyers Weekly No. 11-044-17)
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-1321 Appeals Court ROGER AIELLO, trustee,[1] vs. PLANNING BOARD OF BRAINTREE & others.[2] No. 15-P-1321. Suffolk. October 20, 2016. – April 14, 2017. Present: Meade, Milkey, & Kinder, JJ. Practice, Civil, Zoning appeal, Standing. Zoning, Appeal, Person aggrieved, By-law. Civil action commenced in the Land Court Department on October 14, 2009. The case was heard by Karyn F. Scheier, J. Brian K. Bowen for the plaintiff. Jason W. Morgan for McCourt Construction & another. Carolyn M. Murray (Judy A. Levenson also present) for planning board of Braintree. MEADE, J. In this matter we examine the issue of standing to appeal from a zoning decision in the context of an abutter’s appeal of decision of a local planning board (board) to allow modification of a 1994 special permit to remove conditions that benefited the residential abutter in terms of visual and auditory impacts. We conclude that it was error for the judge to find that the plaintiff lacked standing to appeal from the board’s decision. We address only the merits argued in the plaintiff’s brief and conclude that the board’s decision granting a modified special permit removing the conditions must be reconsidered by the board. Background. a. Aiello’s property. The plaintiff, Roger Aiello, owns fifteen acres of residentially zoned property in Braintree, located directly north of the commercially zoned locus. Aiello’s property consists of a number of parcels; in addition to single and multifamily residential units, it contains a prior nonconforming catering business and a “semi-agricultural use,” a goat pasture. One of Aiello’s single-family residences is located within eleven feet of the locus’s northern boundary. Aiello’s property is at a higher elevation than the locus. The judge found that the Aiello property has a clear view of the structure on the locus and portions of the parking area. The farther away one stands from the boundary line, the more visible the locus becomes. The locus. The locus, now owned by RMT Braintree, LLC, and occupied by McCourt Construction,[3] contains approximately nine acres and is located in both the commercial and watershed protection districts.[4] The locus is long (approximately 2,000 feet), running from east to west, and narrow (approximately 200 feet). It currently is improved with a 675-foot-long commercial structure (sometimes referred to as building). Development of the rear, or […]
Samuelson, et al. v. Planning Board of Orleans, et al. (Lawyers Weekly No. 11-079-14)
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 13‑P‑1418 Appeals Court MARTHA SAMUELSON & another[1] vs. PLANNING BOARD OF ORLEANS & others.[2] No. 13‑P‑1418. July 2, 2014. Subdivision Control, Conditions, Decision of planning board, Planning board. Practice, Civil, Subdivision control appeal. In 1975, the planning board of Orleans (board) approved the subdivision of a large parcel of oceanfront land into six lots. A private road known as Tom’s Hollow Lane provides access to the lots. The 1975 approval imposed various express conditions, including that any further subdivision of the six lots would require both that improvements be made to Tom’s Hollow Lane and that municipal water service be installed.. Thomas R. and Patricia W. Kennedy (the Kennedys) own one of the six original lots on Tom’s Hollow Lane,[3] and they desire to subdivide that lot further into two lots. On June 22, 2010, the board approved the Kennedys’ proposal without requiring them to improve the road or to install municipal services in accordance with the terms of the 1975 approval.[4] Martha and Paul Samuelson (the Samuelsons), who own a lot that abuts that of the Kennedys, appealed the board’s decision pursuant to G. L. c. 41, ‘ 81BB. In a detailed and comprehensive decision, a Land Court judge ruled in the Samuelsons’ favor on summary judgment and vacated the board’s decision. We affirm. The Kennedys do not argue that the board lacked authority to impose the 1975 conditions and, in any event, the time for challenging those conditions has long since passed. Murphy v. Planning Bd. of Hopkinton, 70 Mass. App. Ct. 385, 388-389 (2007). Instead, the Kennedys argue that the conditions expired in 2005 “by operation of G. L. c. 184, ‘ 23, which, generally, limits conditions or restrictions on the title or use of real property to a term of thirty years.” Killorin v. Zoning Bd. of Appeals of Andover, 80 Mass. App. Ct. 655, 657 (2011). We agree with the judge’s conclusion that the conditions imposed here are not subject to that statute. See id. at 657-660. To be sure, as the Kennedys highlight, Killorin involved a condition imposed by a zoning board of appeals in a special permit issued pursuant to G. L. c. 40A, ‘ 9, while the condition here was imposed by a planning board as part of a subdivision approval issued pursuant to G. L. c. 41, ‘ 81U. However, we disagree with the Kennedys that […]
Doherty v. Planning Board of Scituate (Lawyers Weekly No. 10-053-14)
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‑11401 MARYANN DOHERTY vs. PLANNING BOARD OF SCITUATE. Suffolk. December 3, 2013. ‑ March 21, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Zoning, Flood plain, Littoral property, By‑law. Planning Board. Municipal Corporations, Planning board, By‑laws and ordinances. Words, “Subject to flooding.” Civil action commenced in the Land Court Department on August 5, 2008. The case was heard by Harry M. Grossman, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Brandon H. Moss for the defendant. Leonard M. Singer (Michael D. Bliss with him) for the plaintiff. IRELAND, C.J. The plaintiff, MaryAnn Doherty, owner of two adjacent unimproved lots on a barrier beach peninsula in the town of Scituate (town),[1] applied for special permits from the town’s planning board (board) to construct new residential dwellings on the lots, which are located in a flood plain and watershed protection district (FPWP district). The board denied the applications, concluding that Doherty had not demonstrated that her lots were “not subject to flooding” within the meaning of § 470.9 of the zoning bylaw. Doherty sought review pursuant to G. L. c. 40A, § 17, where after a bench trial, a Land Court judge entered a judgment affirming the board’s decision and dismissing Doherty’s complaint. In an unpublished order and memorandum pursuant to its rule 1:28, the Appeals Court reversed, concluding that the phrase “subject to flooding” has a specific meaning derived from a map setting forth the FPWP district and based only on elevation from sea level. We granted the board’s application for further appellate review. Because we conclude that the Appeals Court adopted an incorrect definition of the phrase “subject to flooding,” and we agree with the meaning adopted by the Land Court judge, we affirm the judgment entered by him. 1. Background. The judge found the following facts, which we occasionally supplement with undisputed facts in the record. See Wendy’s Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 383 (2009) (Wendy’s) (on appellate review, judge’s factual findings will not be set aside unless clearly erroneous or where there is no evidence to support them). The unimproved lots in question are located at 114 and 118 Edward Foster Road, in the […]
Downtown Waterfront Planning Begins March 13
The city will kick off its latest round of waterfront development planning with a series of public meetings and tours in mid-March. This newest planning process, which is expected to last 18 months to two years, involves the redevelopment of the Downtown Waterfront area, from Long Wharf down to the Evelyn Moakley Bridge (Seaport Boulevard) and the James Hook & Co. lobster business, said Chris Busch, waterfront planner for the Boston Redevelopment Authority. “The events in March are sort of a kick-off, an introduction and orientation,” Busch said. “Then we’ll get into monthly meetings to develop the municipal harbor plan specific to the downtown waterfront area between Long Wharf and Hook Lobsters.” Over the past 20 years, the city has developed a number of municipal harbor plans for areas including East Boston, Charlestown, South Boston and Fort Point, Busch said. The most recent plan was done in 2009 for about 100 acres on the South Boston side of the Fort Point Channel. This latest planning effort will build upon the BRA’s 2010 Greenway District planning study and will result in a new municipal harbor plan for the Downtown Waterfront and zoning recommendations for the Greenway District, according to an event flier posted on the BRA website. The first event in the Downtown Waterfront project will be a project overview meeting, scheduled Wednesday, March 13 from 6:30-8 p.m. at the New England Aquarium IMAX Theater, 1 Central Wharf. At that meeting—which is open to the public along with the other two events—the BRA will introduce consultants from Utile Inc. and discuss the scope, process and timeline of the planning project. Planners will be looking at a range of features along the waterfront, including the Harbor Walk, streetscapes, plazas, areas extending into the water such as docks, water transportation offerings and programming opportunities, Busch said. Zoning issues for the area will also be addressed. Through the planning process, the city hopes to “enhance and build on what’s already out there and what’s been successful,” Busch said, as well as find ways to better connect the waterfront area with the Greenway and surrounding neighborhoods. The second event is a series of three walking tours of the Downtown Waterfront area that will be addressed in the planning project. The tours are scheduled for Thursday, March 14 at 10 a.m., 11:30 a.m. and 1 p.m., starting at Christopher Columbus Park in the North End and extending down to the Hook & Co. site. The third event, the “Waterfront Activation and Public Realm Visioning Charrette,” will be held on Friday, March 15 from 8-11 a.m. at the Boston Harbor Hotel, 70 Rowes Wharf, in the Atlantic Room. […]