New law adds twist to two years’ litigation over fate of East Cambridge courthouse
Among spectators Friday at the at the Massachusetts Appeals Court was attorney James Rafferty and Cambridge residents Steve Kaiser, Heather Hoffman, Nina You and, obscured, Michael Hawley, the case’s lead plaintiff. (Photo: John Hawkinson)
Residents and developers clashed once again this morning, now at the Massachusetts Appeals Court for the latest round of litigation surrounding the redevelopment of the former Edward J. Sullivan Courthouse in East Cambridge. The litigation has been ongoing for two years, starting in the Land Court.
The case has so far focused on whether the 22-story property, out of scale with the surrounding two-story homes and noncompliant with zoning, qualifies as a preexisting nonconforming structure. If so, the Planning Board was allowed to issue the special permit for redevelopment by Leggat McCall Properties, the developer selected to buy the property from the state in 2012.
The company plans a 20-story, red terra cotta office tower, with 24 units of housing: eight affordable, eight middle-income and eight market-rate.
Litigation so far has focused on whether one particular precedent, Durkin v. Board of Appeals of Falmouth, covers the current situation.
But there’s a twist. Gov. Charlie Baker signed a law Aug. 4, “An act relative to non-conforming structures,” changing the rules. It provides that certain kinds of zoning lawsuits are permitted only within the first 10 years of a zoning violation, and that structures that have existed for longer “shall be deemed, for zoning purposes, to be legally non-conforming.”
https://youtu.be/KQHWtXSIfGw
“By its plain terms, it essentially guts plaintiff’s case,” Assistant Attorney General Adam Hornstine told the court.
But the neighbors’ attorney, Mark Bobrowski, disagreed: “I think it buttresses the case … to become non-conforming, you have to have an act of the Legislature.”
Kevin O’Flaherty of Goulston & Storrs, representing Leggat McCall, was reserved on the new law. While he drew the court’s attention to it by letter last month and said it “bears directly upon the issue,” he was silent on its direct applicability.
Justice Peter Agnes was quick to ask both sides about the new law, focusing on whether it was yet in effect or kicks in 90 days after it was signed, as is the case for most laws. It seemed clear the three-judge panel, made up of Agnes, Diana Maldonado and Kenneth Desmond, hoped to resolve the case on the relative clarity of the new law and not have to tease apart the tricky questions of precedent involving Durkin.
Attorneys for both sides cautioned that it is difficult to tell how a court will decide from questioning at oral argument, but Agnes – who dominated the questioning – seemed more skeptical of the neighbors’ position, and interrupted Bobrowski frequently during his 15 minutes.
Mark Bobrowski argues the neighbors’ case Friday before judges Diana Maldonado, Peter Agnes and Kenneth Desmond. (Photo: John Hawkinson)
On the developers’ side, 12 minutes were allotted to O’Flaherty. Attorneys for Cambridge and the state were left to divide the remaining three minutes.
O’Flaherty’s argument remained what it was at the Land Court and in the briefs: “So what’s the legal status of such a structure when it stops being owned by the government and that immunity, if you will, evaporates? And the question is answered by Durkin, clearly. Mr. Bobrowski says Durkin is sort of sloppy mess of a decision. I don’t think it is.”
Several times during argument, Agnes reminded the attorneys that the judges had read the briefings, and Durkin, very carefully: “You can assume we know the facts. I think we’ve all read it forwards and backwards,” he said.
Joking that he was allowed only 18 seconds to speak, Hornstine emphasized what he termed the public policy issue: “An adverse decision in this case would have profound effect on the vested property rights of the commonwealth and its taxpayers. It will prevent the commonwealth from reselling its property or reusing its property at a fair market value, thus diminishing the overall capital assets of the commonwealth, and essentially resulting in a number of eyesores that are undevelopable or need to be razed in order to be resold.”
Asked after the argument whether he would take the case to the Supreme Judicial Court if he did not prevail, Bobrowski declined to commit, but added: “I’m not going to appeal if we win.”
O’Flaherty and Rob Dickey, an executive vice president at Leggat McCall, declined to comment.
This post was updated Oct. 11, 2016, to add an audio recording of oral argument and refine a photo caption.
I was absolutely appalled by the Commonwealth’s argument as stated by the Attorney General’s office. I understand that Leggat McCall’s lawyer dealt with the main legal issues, but what does it say that all the Commonwealth could muster was that not being able to do whatever they want and who cares about the neighbors would cost the Commonwealth money? Not that this is the legal issue in the case, but there is a lot of asbestos in the courthouse that someone has to deal with, and the Commonwealth wants it to be someone else. That’s part of what they think the people who live and work near the property they consider surplus should just suck up because they can’t be bothered to spend the money. The nicest thing you can say about this argument is that it’s disgustingly cynical. If that’s all they could come up with, they should have said nothing.
Thanks, Heather. Right on.
I would add: the new law surely is not applicable to “lawful” structures. It’s a statute of repose, which is like a statute of limitation, and essentially it says: after ten years pass, a noncompliant structure becomes a lawful nonconforming structure automatically, provided there was no legal complaint as to an alleged zoning violation.
Obviously, if a structure is “lawful” there cannot be any alleged violation, and this statute does not apply. Consider a structure that is noncompliant but exempt under a variance. You can’t complain about the noncompliance: the variance makes it “lawful.” There is no violation. If this were not the case, then zillions of ten-year-old variances would suddenly dissolve, and the noncompliant structures they protected would convert into garden-variety lawful nonconformities. That is clearly not the intent of this law. Same logic applies if it is a religious exemption, or the exemption due to sovereign immunity. If the structure is lawful, either by complying with all zoning regulations or being lawfully exempt from them, then it is exempt from this statute, too.
You know you understand the new law when you can answer the question: Suppose government builds a noncompliant structure and then sells it after five years. What happens then?
Peace and Sanity Be Unto You:
The elitist are again at work hiding the truth from the publics at large. The federal government is also at fault, it failed to enforce its housing mandates that included the rights of the homeless, poor, and other marginalized and disenfranchise segments of our community to be hosed at that the abandon Sullivan Court House building and property. This whole matter is typical of an elitist cover up, pertaining to discrimination and housing segregation violation, as it pertains to our community’s most vulnerable populations
I said it before, and I’m saying it again, you are all guilty of circumventing the real issue, because of vested interests. It is and has been a case of exclusion of the homeless sector and mosaic, from poverty housing in a high opportunity area. The Commonwealth is at fault for not respecting its Five Year Consolidation Planning mandates, etc., as it pertains to poverty housing for the most vulnerable of it population and priorities.The Commonwealth has failed, by hiding these facts from the public at large. Also being covered up is the fact that violations of the Fair Housing Act, its Disparate Impact Amendments, and a quasi – mixture of Civil Rights violations, etc., when and where it comes to failing to plan and secure poverty housing at the Sullivan Court House.
This trial is part and parcel of a farce and cover up, in support of elitist anxieties and mistakes, as long as it continues to exclude and negate the right of our area’s poor, to have housing conversion at the Sullivan Court House.
Yours In Peace,
Mr. Hasson J. Rashid
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