East Cambridge group wants exploration of options in place of courthouse, not park
Dear city councillors, city manager and Community Development Department members,
As you know, the Planning Board is due to deliberate the special permit for the former Edward J. Sullivan Courthouse on Sept. 30. Planning Board members, including the chairman, have expressed concern about a lack of information and direction as to how to decide this special permit. The Planning Board chairman also attended and spoke at the Ordinance Committee meeting on the Carlone petition to state that, despite not recommending the petition, he would welcome input from the council on the courthouse, as it raises very difficult issues.
Similarly, at the last Planning Board hearing, members expressed their desire for an independent legal opinion with respect to the important legal issue that potentially divests the Planning Board of its authority to approve this special permit. This legal issue is the matter of the building’s “legal pre-existing non-conforming” status, as well as the appropriateness of the Planning Board versus the Zoning Board of Appeal in granting the zoning relief.
Since the competing legal opinions are offered by well-respected and recognized leading land-use attorneys (attorneys Martin Healy and Mark Bobrowski), and because the city solicitor, as noted by the Planning Board, reached her opinion without considering the competing arguments, it seems reasonable to ask if Healy and Bobrowski could agree on an attorney to provide an independent second opinion on this matter.
At the July hearing, Planning Board members also asked for legal clarification regarding the implications of the gift of deed for the underlying property – which could also be researched by the independent attorney.
It seems highly irresponsible for the city to not resolve these legal matters in a proactive manner and instead leave it to the residents to file a lawsuit against the city and developer. How embarrassing would it be for the city and the residents to be locked in a lawsuit to resolve serious issues that were flagged by many as needing resolution before the granting of a special permit?
Some city officials have expressed the thought that a lawsuit is the likely outcome, so there is no use for the city to take steps to work toward a solution short of that.
If the city can prevent such a lawsuit aimed at protecting the rights of the community, the city has a duty to do so. The Neighborhood Association of East Cambridge is not advocating for litigation and hopes such an outcome can be avoided.
In March the City Council, by unanimous vote, passed a policy order requesting that the state’s Division of Capital Asset Management and Maintenance and the developer “work together in an expeditious and creative fashion to substantially reduce the height, traffic and environmental impacts of the developer’s proposal.” In response, the developer reduced the height of the 22- story building by two stories. The NAEC does not believe this minor reduction meets the test of “substantially” reducing the detrimental impacts on the neighborhood.
Indeed, as Planning Board chairman Hugh Russell pointed out in his comments at the July 29 board hearing on the special permit, “right now the building is very detrimental and the use is not compatible with most of the surrounding residential areas. And I don’t think we want to see this level of detriment perpetuated.” (To see a transcript of Russell’s comments, see Pages 3-4 of this PDF.)
To be clear, the NAEC is not advocating for a park on the site, as detractors have claimed. We believe that there are viable development options between a park and a 22-story building that are more appropriate from an urban planning and neighborhood preservation perspective (and in line with the guidelines of the East Cambridge Planning Study), that have not been adequately explored. For example, as Russell mentions in his comments, perhaps a building of a 4.0 floor area ratio – the maximum zoning envelope at the time the building was constructed – is legally justifiable. This would produce a building of about 240,000 square feet, less than half the size of the current 500,000 square foot building.
The NAEC has consistently challenged the developer and city to seriously explore the viability of this size building.
We appreciate the Planning Board’s careful consideration of the special permit, and the Neighborhood Association of East Cambridge is hopeful that the city will work with the Planning Board to address the outstanding legal and design issues before any permit is issued.
Abigail Lewis-Bowen, for the Neighborhood Association of East Cambridge
“We believe that there are viable development options between a park and a 22-story building that are more appropriate from an urban planning and neighborhood preservation perspective (and in line with the guidelines of the East Cambridge Planning Study), that have not been adequately explored.”
The options between a park and a 22-story building are pretty vast, but we have yet to hear what the NAEC actually wants. Park? Offices? Residential? 10 stories? 12? 15? Why is it that throughout this entire process, this is the one question your group can not answer: what do you want to see on the 40 Thorndike property?
One of the main reasons that people feel that the Toomey Working Group failed was that there was no alternative plan created… and that is because the NAEC would not budge on anything. The group’s representatives held a hardline “No” stance throughout. Ironically enough, the one group that did come up with an alternative plan were the ones that you are fighting against: the developer.
And since the legal opinions brought up above were written by lawyers contacted by the opponents of this building, why should they be the ones trusted to pick an independent counsel? You must know that there is not one single unanimous voice in East Cambridge.
My biggest concern through all of this, and I would add that I see no reason to “fight” for what is essentially going to be an office tower, is that the State which has already thumbed its nose at this city doesn’t simply turn this thing back into a jail or some other governmental use should negotiations with the developer reach a stale-mate or worse the PB decides to deny a special permit for the parking.
Asbestos mitigation is a pain, but who is to say the State would do it quickly? The court house is at best, a real “F U” to the citizens of Cambridge, I’d hate to see it persist because you thought you were fighting the good fight only to realize you let the only people trying to accommodate you walk out the door in favor of the entity that clearly doesn’t give a damn.
Patrick – There are people in this city that have, on record, stated over & over again that they would rather see the fences stay up for years if it means that Leggat McCall does not redevelop the building as currently planned. Do you think they would care if it went back to being a jail?
The city should do everything possible to protect the residents, and to prevent a lawsuit.
I would like to see our city councillors take a position on how they want the courthouse site to be used, as requested by the Planning Board. What do the councillors think of the suggestion by the chair of the Planning Board that there should be a 240,000 sq. ft. building there (4.0 FAR)? (That is the size the building would be if it had followed the zoning at that time.) He also laid out other options the councillors could consider.
I think the Planning Board chair made a good point when he said the legal opinion of the city solicitor does not make good planning sense. That’s a good reason for the city to seek an independent legal opinion.
I hope that an outside legal opinion could assist the city council in taking a clear stance on what should be developed on the site, which would help the Planning Board. I hope the state then will listen to the council’s position and find a different way forward.
I hope residents let city councillors know what they think via and attend the Planning Board meeting about the Courthouse at the Kennedy School, 158 Spring St., Tues. 9/30 at 7PM.
If the law doesn’t make “good planning” sense then you work to change the law, don’t cry about the result. I’m not sure I’ve seen any case where a building was reverted to the existing FAR at the time of construction, but I’d love to see one. To me it seems more akin to a building protected under something like the Dover Amendment…its not like a church has to diminish its footprint when converted to residential use. I also doubt MA has an interest in setting precedent for the reduction in value of their properties. You think Martha or Charlie are going to care about this structure? Doubtful. Like I’ve said before, I see no need to die on a sword for this project, but a stalemate is not going to do the residents of Cambridge any good.
You want an outside legal opinion (Bobrowski?) because you don’t like the result of the thorough one you have in hand because it doesn’t support your opinion. THis is how lawyers make money. However, the building is lawfully built, ch 40a sec 6 & 7 apply. The only “hope” someone interested in blocking construction has is that the planning doesn’t grant an SP. Ok then what? I am really concerned that this will result in the continued existence of a derelict monstrosity in E. Cambridge as the State has shown zero interest in working with Cambridge. In short, I do not think those vehemently against this project fully understand the ramifications of not moving forward. I guess if you’re prepared for the worst ie: return to a prison, then a stalemate it is. I do think the residents of East Cambridge should fight the good fight though, if it were me and I had to witness this thing being built, and live in its shadow I’d fight tooth and nail as well. I just hope you’re looking at this from the top down and thinking this through, because from the sidelines it looks iffy.
Patrick, at what point could the city have brought an enforcement action such as a teardown order? Does the running of a statute of limitations require that the government be able to do something to stop or punish the forbidden action (in this case, building without any permits and not in compliance with zoning)? What I’m getting at is whether the statute of limitations was tolled during the time that the city could not enforce its ordinances and codes.
As to the Dover Amendment, are you aware of any buildings that benefitted from it being converted to a non-covered use? That could be instructive, although the Dover Amendment does allow the municipality to set and enforce basic dimensional requirements to the extent that they allow the religious or educational use.
Finally, why do you think that the 200-year use of this property for courts and a jail (not a prison; the inmates are awaiting trial, not convicted and serving sentences) is so horrible? Yes, there were plenty of complaints about the noise the inmates made, but that was because of the effect of the height of the building. My objection has always been the architectural monstrosity, not the use, which did not interfere with my life most of the time.
My letter to the Planning Board:
Dear Members of the Planning Board:
I will begin this letter as I did my last. Thank you for all of your dedication and hard work. You do not have an easy job and you have been under a great deal of scrutiny lately, but please know that I and others appreciate your work and respect your expertise.
I would like to share a few thoughts I have regarding the Sullivan Courthouse. I think we can all agree that this building has been a blight on East Cambridge, and Cambridge in general. We now find ourselves with an opportunity to improve on this mistake. Sadly, the State and DCAMM have not been helpful and in many ways are responsible for this difficult position in which we now find ourselves.
Personally, I do not want to see the Courthouse unoccupied for an extended period of time. I want the building to be renovated and become an asset for our city. Virtually anything would be better than what is there now. My fear, however, is that we are headed toward a long and expensive court battle to decide the various legal issues.
My desire is for you as a body to take all liberties to ensure that you have all of the information you need to make the most informed decision. I know that Chairman Russell expressed concern about the legal standing of the building. If you feel that another legal opinion is warranted then I would support your request. If you feel that we need more information regarding traffic and parking, then let’s get that information before moving forward. Let’s also make sure that we are maximizing community benefits, including community space, housing, retail and open space.
Although development is not my area of expertise, I do know that we have an obligation to get the best result for our city and to make informed decisions. If you feel confident that this building as currently presented is in the best interest of the city and meets the required guidelines then approve the special permit. If, however, you are unsure or want additional information, then don’t be afraid to ask for it. Similarly, if you determine that the developer has not met the burdens imposed by the zoning ordinance, then deny the special permit. This decision is going to be with us for some time, whether the permit is approved or not, so let’s be sure that we can be confident in the decision.
Sincerely,
Marc McGovern
Heather,
To me I always thought the jail was a somewhat incompatible use for the area. The court house itself is a fine use and I’m sure there are many attorneys that would like for it to return. It is the height that bothers me, and if we get to decide what it will turn into, then I would much rather see it converted to mixed-use than revert back to its previous iteration or become the commercial tower it is slated to be. It is just an opinion.
I likened this scenario to the Dover Amendment because of the immunity from certain aspects from zoning that it grants due to religious use. When converted to residential as many churches (strangely) are there is usually no mention of bringing the structure back into conformity due to the resulting change in use. Its not a perfect analogy to be sure, but I heard some mention how what was done is similar to a variance, and to me that didn’t seem appropriate. My point is that other types of immunity exist where there is no requirement to revert to conforming dimensions once the use that was protected subsides. Again…no a perfect analogy but very different from what a variance is.
Lastly, I realize that there was no point at which the local municipality could step in and require conformity. Does this toll the statute or is that simply a consequence of the government exercising its immunity? If the former were correct, then any government structure built where immunity allowed for non-conformity would then be required to be brought back into conformity once the government use ceased. Essentially the value of property held by the State would be significantly decreased; a result I doubt the state would find palatable. It seems to me that this is the purpose of immunity. The local municipalities ability to enact the zoning ordinance is derived from the state; thus it seems reasonable that is some instances the state can giveth and taketh away. What is left behind is a preexisting nonconforming structure; in this case a really crappy one.
Ultimately its anyone’s guess as to the outcome. More than likely the financials will have more sway in this matter than legal precedent, as I expect the developer has a threshold for loss, and the community has a threshold for what they’ll accept. It is an interesting thing to watch unfold.
To my knowledge, the churches that have been converted, at least in Cambridge, predate zoning, so the Dover Amendment wouldn’t apply. They would be perfect examples of pre-existing nonconforming buildings. Also, remember that the Dover Amendment is not complete immunity from zoning; dimensional limitations do apply unless they are found to interfere with the non-profit, protected use. If you know of cases where a structure was new enough to have been built because of the Dover Amendment and has then been converted to a non-protected use, that would be helpful.
Again, as to the sale of nonconforming governmental buildings and the crucial question of whether a governmental building that violated zoning when built under a claim of immunity keeps or loses the advantage of that immunity when it ceases to be used for governmental purposes, your speculation as to what the legislature might or might not mean isn’t nearly as helpful as citing actual caselaw. I have a conceptual problem with citing a statute of limitations as justification for lack of enforceability when there was no legal way to enforce the law during the alleged limitations period; it smacks too much of heads I win, tails you lose.
I don’t think the residents have considered the jail use, which lasted two hundred years, as incompatible. To my knowledge, and I ask my neighbors to chime in, the objection has been to the effect of having a jail at the height of the Sullivan Courthouse.