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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)

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 told the City Council on Monday that her office’s opinions did not address Bobrowski’s arguments and concerns. (Photo: John Hawkinson)

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.

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