A pedestrian’s view of a redeveloped East Cambridge courthouse building seen from Cambridge and Third streets, as of developer plans from July. (Image: Leggat McCall)

A former courthouse in East Cambridge is one step closer to redevelopment into an office tower, a judge ruled Tuesday.

Judge Robert Foster of the Massachusetts Land Court ruled on a critical point of law in favor of Legatt McCall Properties, the developer poised to buy the former Edward J. Sullivan Courthouse and redevelop it into a 20-story office tower with 24 units of residential housing and ground-floor retail. In a 12-page decision, Foster determined that the courthouse qualifies as a “lawful nonconforming structure,” and therefore the Planning Board was entitled to issue special permits to Legatt to allow it to convert the building; that conversion will involve tearing the building down to structural steel, removing asbestos and other materials, and reconstructing the building several stories shorter with a new façade.

The court’s decision is not the last word. Based on previous statements, the neighbors who sued are expected to appeal the case. The timeframe for that appeal is not yet clear, because it is not always possible to appeal before the final resolution of a case, and Tuesday’s ruling was only on one very significant part of the case. Depending on what happens at a status conference Thursday, it may be some time before an appeal is possible.

Michael Hawley, who lives across the street from the courthouse and is one of the lead plaintiffs, said “the ruling is a weak attempt to preserve the status quo, and not an enlightened step,” and said he would appeal.

“My client is very pleased that the court found in its favor on this critical and important issue,” said Kevin O’Flaherty, lead attorney for Legatt.

Foster’s ruling comes under a rubric called “summary judgment,” which applies when the parties do not dispute the facts of the case, and ask a judge to determine issues of law. Summary judgment decisions proceed much more quickly than typical court cases. This case was filed in November; both sides filed motions for summary judgment in March; and the judge heard oral argument April 7.

Down to Durkin

Judge Robert Foster of the Massachusetts Land Court will hear the case. (Photo: John Hawkinson)

Much of the legal question the judge was trying to resolve comes down to the validity of one particular 1986 precedent, Durkin v. Board of Appeals of Falmouth. At oral argument, Foster called Durkin “too vague,” saying “it has sloppy language.” He said he would “be sure to read [it] carefully.”

At issue in Durkin was a former federal post office in Falmouth, built in 1959 on land rezoned for residential use in 1966. The property owner wanted to use the building for commercial purposes and appealed to the local zoning board. The board denied the special permit, the case was appealed and the appeals court found the post office “could be regarded” as a lawful nonconforming use because it was built under governmental immunity from zoning.

Mark Bobrowski and Daniel Hill, attorneys for the plaintiffs opposing the courthouse development, had told Foster that Durkin was a much more narrow case than most lawyers thought, and that the appeals court had sent the case back to the Falmouth zoning board for reconsideration rather than simply overturning their decision because the specific facts of the case were important to the determination.

But in his written opinion, Foster found Durkin persuasive. He said that other court cases had relied on Durkin in the same way, and his decision was consistent with the precedents. It is rare for district court judges to overrule legal precedents; that kind of action is much more likely on appeal. Foster wrote:

“Just because a structure like the Courthouse did not comply with the Ordinance when it was built does not make it unlawful. It was lawful, because the law of sovereign immunity that permitted it to be built notwithstanding the [floor area ratio] limit made it lawful. The immunity that exempts government buildings from local zoning is not some kind of state variance from zoning bylaws. Rather, immunity is part of the web of state and local land use law that governs how land may lawfully be used in the Commonwealth. The upshot for this case is simple. The Courthouse was built under immunity from local zoning, and, by nature of that immunity, was lawful. As it did not comply with the FAR requirements of the Ordinance when built, it was a lawful nonconforming structure. Once the immunity ceases, it is subject to Section 6 and Article 8 as a lawful nonconforming structure. The Planning Board acted properly in treating the Courthouse as a lawful nonconforming structure subject to Section 6 and the special permit requirements of Article 8.”

Hill said Wednesday that he would proceed with the rest of the case and reserve his right to appeal.