Lawsuit on courthouse is called ‘inevitable’ even as developer offers to cut two stories
A lawsuit is all but inevitable in the redevelopment of East Cambridge’s former courthouse, public officials said Monday, despite ongoing talks between neighbors and builder Leggat McCall that have resulted in a promise to take two floors off the tower.
Robert Dickey, an executive vice president and partner at the firm, revealed the offer – surprising even some councillors – and described it and other design changes as the result of more than six weeks’ of discussion with residents in a working group organized by councillor Tim Toomey. The group meets again Thursday.
Dickey confirmed that the company had “begun exploring possibilities” to lease parking spaces somewhere other than the city’s First Street Garage, but told councillors “our very strong preference remains to enter into a mutually beneficial agreement with the city” on parking, reminding them that City Solicitor Nancy Glowa had affirmed it was legal for the city to lease the space, that the city’s Traffic, Parking and Transportation Department had said the city could spare 420 of 1,100 spaces (and ground-floor space intended to be a grocery store) and that the council had agreed unanimously to, in the words of an October letter from City Manager Richard C. Rossi, “declare the 420 parking spaces and the first floor retail space at the First Street Garage available for disposition on terms and conditions satisfactory to the city.”
Ongoing opposition in the community, unhappiness with the state sales process and the introduction of contrary legal opinions has complicated development, though.
Called a “monstrosity”
Leggat McCall’s plans have evolved since December 2012 when it was the winner among seven bidders for the 40 Thorndike St. space., but its pitch has been for the 22-story, three-basement former Edward J. Sullivan Courthouse to become 460,000 square feet of office space, some retail and 24 to 48 units of housing. Only some 90 parking spaces fit onsite.
A common term for the building is “monstrosity,” and neighbors have been unhappy with its presence, including its bulk, shadow, imposition on street parking needs and Middlesex Jail prisoners hooting at them from the top four floors, since before construction began in 1966. The surrounding neighborhood is mostly residential, rising no more than two or three stories.
HYM, the neighbors’ favored bidder for the courthouse, promised to lop off those top four floors, but until its offer to the working group two weeks ago, Leggat McCall’s position was that it needed the building’s full height to make back its investment on buying the building, clearing it of asbestos and rebuilding it.
Questioning city response
There were some 17 people who used the council’s public comment period to talk about the courthouse, including several union construction workers who wanted the project to go forward because it could bring them jobs. Others cited what they saw as flaws in the plans and in the city’s response.
“After months of wrangling, we citizens were able to analyze the city’s actual parking data. It shows without any doubt that the garage is headed for full occupancy even without any development at the courthouse. How could your department have gotten this basic fact so wrong?” asked Seth Teller, head of an group called the Neighborhood Association of East Cambridge, in a letter read Monday that blasted officials citywide as offering no “pushback” to questionable Leggat McCall data and cited Glowa’s work in particular. “There is no more polite way to say it: This is dereliction of duty.”
Teller’s letter stated flatly that the Planning Board didn’t have the right to issue a special permit to Leggat McCall and referred to “myriad technical objections and serious legal objections as well.”
The legal questions hinge mainly on how the tower can go on standing as it switches to private use from government use. (An in-depth look at these issues is here.) The demands of county and state government overrode city law in the 1960s, but opponents argue that the exemption dies when the building passes into the hands of a private developer. The state’s sale process to Leggat McCall explicitly excluded local concerns.
“For the state to completely wash its hands of this and say ‘We don’t care about you, we’re just in it for the money,’ well, you know what? We’ve lived with their mistake for going on 50 years … why is it up to the city of Cambridge to balance the state budget?” resident Heather Hoffman said during public comment. “Other cities and towns get treated like equal partners.”
Glowa sat in on the meeting to take questions on her legal opinions, and she took the opportunity to clarify that she had read a letter from attorney Mark Bobrowski, who has been retained by a group of East Cambridge residents fighting the courthouse development, and that she did represent the council, despite an earlier comment interpreted as saying she represented the city but not the council – when, in fact, she simply doesn’t represent the citizens of Cambridge. “I did use the word ‘corporate,’” Glowa said. “I regret that comment, which I did not intend to create that impression.”
Despite pointing out that her “corporate” comment had been followed by an explanation that included the council among those she represented, Glowa spent time Monday reassuring councillors that she represented them and that there was nothing in the law suggesting the body could retain separate, outside counsel.
She continued to face uncertainty on her legal opinion citing Durkin v. Board of Appeals of Falmouth, a 1986 case about the sale of a government post office sold to a private business, including that the Falmouth post office complied with local zoning when it was built and was a far smaller building considered less detrimental to the neighborhood – a concern Glowa said was irrelevant in case law.
Not an advocate
Councillor Marc McGovern was eager to avoid leaving the building vacant for years, which was the likely result of a court case, but others said they expected to wind up on the witness stand. “Clearly there will be a lawsuit of one sort or another,” Toomey said, and Dennis Benzan called litigation “inevitable.”
Glowa said she “would not characterize this as pending litigation.”
And she agreed with an earlier quip that when you got 20 lawyers in a room, each would have a different opinion, although she also told councillors her role was to offer legal advice “as fairly on the law as we can be, not to be advocating for any particular position.”
Leggat McCall’s Dickey offered a spirited defense of Glowa’s work:
What I find troubling in discussion of this issue is the reckless assertion that because Ms. Glowa’s opinion is consistent with the opinion of our counsel and not that of an attorney for a nearby condominium association that opposes our project, that the Law Department is merely ‘parroting’ what the developer’s attorney has concluded. I think that most of you have had enough experience with the city’s Law Department to recognize that such as the accusation is an insult to the professionalism and capability of the city solicitor.
The work of John Hawkinson contributed to this report.