Opinion of city solicitor backs redeveloper of courthouse, ignores attorney’s warning
Attorney Mark Bobrowski, retained by a group of East Cambridge residents to fight a redevelopment plan at the neighborhood’s former courthouse, presents to the Planning Board on April 29. (Photo: John Hawkinson)
The balance of power over the fate of East Cambridge’s Edward J. Sullivan Courthouse inched closer Monday to the state’s selected developer, Leggat McCall Properties, as the city solicitor issued two opinions favoring the developer’s position on legal questions.
For Leggat McCall to redevelop the courthouse, it requires the Planning Board to grant several special permits according to criteria outlined in the city’s zoning ordinance. The criteria are technical and legal; the specific language of the ordinance matters a great deal, and the board is required to stay within the language of the zoning ordinance.
One of the biggest legal questions was whether the building was a “pre-existing nonconforming structure,” specifically whether it meets the legal definition of “nonconforming.” Typically in zoning, a nonconforming structure occurs when the structure is built legally and the zoning is changed after construction – but that’s not what happened here. Instead, the courthouse was built by the county, and in violation of city zoning. So is it nonconforming?
“It is a lawful nonconforming structure,” writes City Solicitor Nancy Glowa, “because the courthouse structure when built was nonconforming but immune because of its governmental use.” As precedent she cites Durkin v. Board of Appeals of Falmouth, a 1986 case about the sale of a government post office into private hands.
“I think you should beware of relying upon the Durkin case,” land use expert attorney Mark Bobrowski told the Planning Board on April 29. Bobrowski has been retained by a group of East Cambridge residents fighting the courthouse development.
City Solicitor Nancy Glowa sits before the City Council on Monday. (Photo: John Hawkinson)
In a memo to the board and city solicitor, Bobrowski explained that Durkin relied on the fact that the Falmouth post office complied with zoning when it was built, because that zoning allowed structures for “all municipal purposes.” Cambridge’s zoning had no such catch-all.
The city solicitor did not address Bobrowski’s arguments and concerns, which were submitted to her six days before her memo was released.
“I’m not responding to any other lawyer’s position letters,” Glowa said Monday evening, when asked why her memo did not address the Bobrowski concerns. “That’s not our job in our office, to be responding to these other lawyers.”
Glowa declined to confirm whether she had received or read Bobrowski’s letter. “I may have received it,” she said.
City Council queries solicitor
At Monday night’s City Council meeting, Glowa answered preliminary questions from councillors on her opinion. The council tabled the items so they could discuss them with more preparation at its next meeting, May 19, but a few questions were asked that night.
Councillor Craig Kelley and vice mayor Dennis Benzan asked Glowa about her confidence in her opinion, and to confirm “there was no doubt” in her opinion.
“Yes,” she said. “The leading case is remarkably similar in its facts and we believe the holding is quite clear.”
Councillor Nadeem Mazen said he understood Durkin to be based on a significant number of errors by the Falmouth Board of Zoning Appeals, which was why the appeals court granted a “do-over” in the case. He suggested to Glowa that Durkin was therefore poor precedent for the East Cambridge courthouse.
Glowa responded: “The statements that you made about what happened in the appellate court decision in the Durkin case I do not feel are accurate statements, and therefore I disagree with [your] conclusion.”
Planning Board likely to follow solicitor
Members of the Planning Board are likely to follow the city solicitor’s opinion on this question, they said when asked individually by this reporter. Most members said they were obligated to do so, though a few said that in exceptional circumstances they might deviate.
Of course, the question of nonconformity is merely one of many questions the board will consider when it decides the courthouse special permits, which it is tentatively expected to do June 3 (but might do June 17). The outstanding questions include whether the redevelopment would be “more detrimental to the neighborhood” than the existing use; and whether it is “responsive to the existing” developments, or could “impair the integrity of the district.”
Parking garage
Glowa also issued an opinion indicating it was legal for the city to lease the First Street Garage to Leggat McCall. Given that the developer has indicated it may lease space from the Galleria Mall instead, and that the council seems unlikely to permit the lease of the First Street Garage spaces, that opinion was the source of much less attention.
In fairness to Glowa, she also pointed out that the entire debate over whether Durkin is a valid precedent is actually moot. There’s a statute of limitations in effect here. The building’s been up since 1974 – more than the limits of six or ten years for enforcement actions. Cambridge didn’t object. So it stays.
Bobrowski conveniently omitted mention of the statute of limitations from his letter – perhaps because including it would’ve blown his clients case out of the water. He’s a good attorney. He made the strongest case he could, under the circumstances. It was rhetorically effective, it just can’t withstand close scrutiny.
And that’s one reason why the City Council and the Planning Board tend to rely on the City Solicitor, who’s responsible for protecting the interests of the citizens of Cambridge, and not on third-party attorneys hired by advocacy groups, no matter how persuasive their letters may appear on the surface.
This may be legally true, and why nothing can be done. But in a common-sense way that could yet be valid in court, the idea that Cambridge missed a “statute of limitations” is nonsense. The city and its residents were dragged into having this building and have been protesting basically since before construction began in 1966 – but resistance was futile, as municipal rights were superseded by county and state rights. It would take a lot of forethought for a city to register a formal protest by 1984 for a building that still hasn’t lapsed from use four decades after it opened for business.
Also, the responsibilities of the city solicitor don’t really signify that the person in that position and the staff supporting him or her are worth a damn. Our Law Department has made some pretty bad calls in recent years. The most striking examples are among the series of discrimination lawsuits the city has lost or settled with the help of not just the Law Department, but some very expensive outside law firms it worked with.
Commenter: I don’t think the statue of limitations is a huge factor here. It prevents an enforcement action to remove the building, but that is not what is being contemplated here.
The building needs substantial renovation before it can be used, because of the asbestos issue, at a minimum. The redevelopers have therefore applied for a §8.22.2(a) special permit to alter a pre-existing nonconforming structure.
The statute of limitations does not, in my reading, have bearing on the issuance of that special permit. The question of lawful nonconformity does. As does whether the alteration is “more detrimental to the neighborhood.”
Do you read this differently?
John, I’ve gone back and re-read the letter, and I owe you an apology. You’re right; it claims only that the statute of limitations prevents enforcement actions under Section 7, it doesn’t claim that this affects the structure’s status as a pre-existing conforming use under Section 6.
But that’s not the end of the story. The Massachusetts Bar Association (citing Bobrowski, ironically enough) suggests that Durkin and other precedents might be read even more broadly. Specifically:
In other words, the MBA’s position is that precedents “support the hypothesis” that once a structure survives the statute of limitations, it graduates to a status equivalent to a pre-existing nonconforming use. That’s a much broader claim than anything Glowa outlines in her letter, though, and it remains only partially tested in the courts.
One other thing to note here. You correctly point out that the proposed scheme of development requires special permits for a variety of reasons – and that’s true whether or not it’s a pre-existing nonconforming structure. But what if the developers merely wanted to remove the asbestos, conduct internal renovations, and reglaze the building? I’m not a zoning expert, but on the face of the Ordinance, those acts wouldn’t seem to trigger Special Permit requirements, so long as the existing shell of the building remained in place. What would trigger them, I think, is a change in use. That, by my reading, also triggers parking requirements. But if Leggat-McCall can find its spots at the Galleria, all it’ll have to do is demonstrate that the new use isn’t substantially more detrimental to get its special permit for a change of use. Or, at least, I think that’s the case. So the statute of limitations does matter here. Glowa writes that the statute of limitations means that the existing “courthouse structure can…house any lawful use.”
My fear continues to be that Leggat-McCall will end up doing too little, not too much. I want the housing. I want the pedestrian-friendly rebuilding of the pedestal, and the advent of retail uses. They’ve already got the building, and they’re going to try to recoup their investment. By my reading, Section 7 gives them a comparatively easy path to apply for a change of use, provided they stay within the existing, hideously-ugly shell of the building. Section 6, at the moment, seems to offer a much better outcome for all concerned, but it’ll be far more difficult to secure all the necessary approvals. So the statute of limitations may matter, because it gives Leggat McCall a fallback option for recovering its investment. And if it takes that option? Everyone loses.
So what would be more detrimental to the community? That leggat removes the asbestos or that they do not? There is no use issue here.
I agree with Commenter. I have been following the issue closely. Glad to see this is project hopefully moving forward.
I was speaking with my neighbor about this the other day. We all know the building will not be torn down by the city or the state. We can’t have a building sitting there dark. I hope the City passes the approval for the building and grocery store/garage
Section 7 is irrelevant. It deals with protection of unlawful buildings via statute of limitations. How would that ever apply to a government immune structure, which was legally built via government supremacy and could never be attacked for noncompliance while immune? Durkin is not applicable, as the lengthy commenter above would realize if he/she read Mr. Bobrowski’s thorough analysis. A bogus argument doesn’t magically become less bogus by repeating it. Maybe I should say that again: a bogus argument doesn’t magically become less bogus by repeating it.
What the Developer argues, and what Nancy Glowa parroted, is that there’s no difference between a public building built in violation of zoning laws by government immunity, and a private building built legally that became nonconforming after zoning changed. They argue that once a government-immune structure is sold, it is as if it were never government-immune at all. That all the benefits attained by that immunity can pass trivially to a developer by getting a rubber stamp on a special permit. This ignores the fact that, in this case, the Sullivan Courthouse could only have been built via government supremacy. Only the State could have bulldozed an historic public property. Only the State could have bungled the construction of a grossly noncompliant building without accountability. Only the State could effectively louse up a piece of property given forever to the people of this vicinity by civic founders, and flip it for private development. And yet what Ms. Glowa is saying is that not only should the Sullivan Courthouse automagically be granted protection just like any other nonconforming structure, but it might as well be a model for how the State should do things. In other words, it’s not enough that the Sullivan Courthouse stands as a monument to corruption and government bungling — let’s make it a precedent and repeat this sort of fiasco over and over again.
Here’s a different way to think of it. A government-immune noncompliant building is logically more analogous to a building built with a variance. Both are rare and special exemptions. There are strict requirements on extension or alteration of variances, and you cannot just take a building built via variance and grease through more alterations using a special permit. So, why should all the benefits of a government immune building be similarly rubber stamped on a special permit for the profit of a private developer? It would be one thing if the community resoundingly approved, or didn’t pay attention, but in this case, much of the community is up in arms.
Concerning the parking, daily data from the Municipal Garage clearly indicates that the garage will be fully saturated in perhaps a year. Available space in that facility has been below 300 spaces for the last couple years, and shrinks by about 100 spaces per year. And yet the Developer glibly asked to lease 420 spaces from the City (probably a lowball number), and the City’s Traffic & Parking office essentially said “Sure.” Ms. Glowa’s legal opinion on parking flatly stated that the City could lease more than 500 spaces to rent out the entirety of the garage if it wanted to. What’s the point of having a “municipal garage” if it’s essentially a private facility for leaseholders, most of whom are businesses? Just because it may technically be legal to do something certainly doesn’t mean it’s a good idea.
And through both of these legal opinions, Ms. Glowa has made it quite clear that she and her staff of eight publicly-supported lawyers don’t serve the public at all. As she put it: “We don’t represent the public. We represent the Corporation.” Does that sound like an swell use of your tax dollars?
Of course, all of this foolishness has caused the City to waste an inordinate amount of time and energy on things like policy orders urging the Developer (Leggat McCall) to substantially reduce the height and impact of the building by pushing back firmly on things like parking. As we have seen, the Developer simply shrugged it off and began to seek parking arrangements at the Galleria Mall instead. In other words, the Developer is saying that the City Council’s orders don’t matter. They’ll just get their special permit rubber stamped come hell or high water.
This passes for Urban Planning as practiced in the City of Cambridge?