With the Planning Board poised to vote on the fate of a special permit to redevelop the former Edward J. Sullivan Courthouse at its 7 p.m. meeting today, the city’s top lawyer has released a late-breaking legal opinion in response to questions asked by the board in July.
In an eight-page opinion dated 1:58 p.m. Tuesday and released to the press at at 3:42 p.m., City Solicitor Nancy Glowa addressed two technical legal questions that might influence the board’s decisions tonight: whether there is an existing restriction on the property that might prevent its being sold to a private developer; and whether another land use court precedent, Mendes v. Barnstable, might prevent the board from granting a permit to allow redevelopment of a currently nonconforming property.
Mendes has been cited repeatedly by those opposed to the East Cambridge courthouse redevelopment as the more proper precedent, rather than Durkin v. Falmouth. Mendes suggests a special permit cannot be used to expand a nonconforming use that has been allowed through a variance, Glowa writes.
But because the courthouse was a government structure and thus immune from zoning, Glowa said, it is not the same as authorized by variance. “Therefore, I believe the Mendes case is inapposite and does not change my prior opinion,” she writes.
With respect to deed restrictions, Glowa says that the question of a potential deed restriction – such as from the original founding gift of the courthouse property from Andrew Craigie hundreds of years ago – is not for the Planning Board to consider: “The Planning Board is not properly the arbiter of private property disputes.”
Beyond that, Glowa said a court would be unlikely to find a deed restriction that would prevent redevelopment, because “deed restrictions are extinguished after 50 years unless they are re-recorded or a public trust is created,” and neither of those conditions appear to have been satisfied.
Eminent domain taking
Separately, the state filed Monday notice of a taking of the 40 Thorndike St. courthouse property by eminent domain, from itself and to itself. Under the heading of “confirmatory order of taking,” the state said the land was being taken “for the purpose of perfecting title to such land in order that the EJS Courthouse may be sold and disposed of.”
A spokeswoman, Meghan M. Kelly, said in an email that the taking was “to avoid potential delay tactics,” but was not specific in what she meant. Kelly said that “this is a routine procedure which other state agencies also follow to formally confirm the property title with the registry of deeds. This does not affect the status of the disposition of the property.”
Kelly said later that the state’s concern was about a potential restriction from Andrew Craigie, but that “any restriction was removed under a general law that says that such restrictions are not enforceable after 50 years.” State law causes all deed restrictions before 1962 to sunset after 50 years unless extensions are filed every 20 years.
The state, she said, “believes that we are on firm legal grounds with respect to this transaction.”