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As Ansel Adams said, “It’s horrendous when you have to fight your own government to preserve your environment.”

Opinion boxHe was right. I find myself, unhappily, among a group of plaintiffs in Land Court versus a defense stacked with developer Leggat McCall, our Planning Board, the City of Cambridge and Commonwealth of Massachusetts and represented by the attorney general as the reviled former Edward J. Sullivan Courthouse building in East Cambridge has its day of reckoning.

Here’s what the fight boils down to and why it matters – and why this is a bigger issue than just one crappy old building. You be the judge.

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1. Is the Dark Tower grandfathered because it was built by government?

Is the courthouse “lawfully nonconforming” (“grandfathered”) or is it simply in violation of zoning? That’s the question up for “summary judgment” in court. That means there are no facts in dispute: This is purely a matter of law. The whole case turns on that issue. The answer determines whether the special permit granted by the Planning Board is valid. The defendants say it’s a lawful nonconformity and their permit is valid. The plaintiffs say it isn’t: It violates zoning, the special permit is unlawful and must be revoked, and modification requires a variance.

Here’s a way to think about it.

Suppose, late one night, the government’s mischievous nonconformity trolls snuck into Cambridge, wiped out an entire city block and on that site magically built a massive Dark Tower of Mordor.

Now, as we all know from the “Lord of the Rings” movies, the Dark Tower in Middle Earth is 5,000 feet high with a blazing Eye of Sauron on top, at least 500 feet wide. Needless to say, the Dark Tower does not comply with Cambridge zoning: It’s way taller than the 80-foot height limit, and the “Eye of Sauron” sign would never be permitted by our signage ordinances – not to mention the lava moat, the orc armory, the nursery for giant spiders and other nonsense that might be prohibited under “Business B” zoning or just plain incompatible with the abutting residential district. But while the government was in control, nothing could be done. Immune from local laws, government builds whatever it needs to when and where it needs to without any friction from zoning or permitting.

Okay. Suppose the Dark Tower fell into disrepair, was abandoned, and suppose the site was auctioned as surplus. Should a private developer have the right to rebuild the entire tower even though it soars nearly a mile above the legal limit?

That’s basically what the city, state and developer claim for the courthouse: The state would sell it (reaping $30 million-plus, the maximum price driven by auction), the developer would rebuild it and run it as a commercial property and the city would tax it. They argue that because it was built by government it is “lawfully nonconforming” and the private developer should have the right to reuse and exploit every inch of it, and it really doesn’t matter what zoning or sensible city planning would say.

For that matter, it doesn’t really matter how high the tower is. If you buy their argument, it implies that anything the government builds that might otherwise be prohibited by local laws – not just grossly oversized buildings, but helipads, toxic waste sites, power plants, Eyes of Sauron, you name it – any leftover governmental detritus could be claimed as “grandfathered” and flipped by the government for exploitation by eager developers.

The plaintiffs argue that is wrong, and have asked that the special permit be annulled.

It all boils down to two rubbery words: “lawful” and “immune.”

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https://www.youtube.com/watch?v=tYdJqSG3K6c

2. “Lawful” is not a loophole: Even Nixon knew that.

In Massachusetts, the law that defines “nonconformity” begins by saying the structure must “lawfully exist.” (Behold: section 6 of the zoning laws. Enjoy muscling through.)

What does “lawful” mean?

Generally, it means complying with all regulations under the law (as mere mortals must). But in some cases, it might perhaps mean being exempt from enforcement – above the law, immune from enforcement (as government generally is). Those are two diametrically opposite kinds of “lawful.” One is intended for normal regulatory purposes: lawful because you comply with the law. The other is a “lawful” exemption from compliance: lawful because you are immune to enforcement.

So basically, to be lawfully nonconforming, a building first must conform. Or if there was no zoning at all (which is the case with some big old buildings in Cambridge), it must have been built lawfully at the time. Then, when zoning is changed to become more restrictive, the building falls out of compliance and becomes “lawfully nonconforming.” In general nonconformities are disfavored. The whole idea of zoning law is to help cities make plans that direct long-term growth wisely. You create zoning districts so hospitals and elementary schools aren’t next door to sewage treatment plants. And in general, you want nonconformities – exceptions and mistakes and abandoned dilapidated structures and uses – to go away gradually, making room for designs that are actually suitable with a surrounding plan.

You might well ask, how big would a lawfully nonconforming courthouse actually be? Well, if originally built in conformity with zoning (which the government could certainly have done), it would be about eight stories high – not 22. That’s a huge difference. This is because in the 1960s, the biggest building allowed on that site had a 4.0 floor-area ratio, a metric that limits height and footprint – a tall, skinny building can have the same FAR as a short, fat one. Now, nobody seems to agree precisely how big the courthouse actually is, but the city solicitor said it has an FAR of 9.94. Divide by four and you see it’s about 2.5 times bigger than what was allowed under Cambridge zoning, and 22 stories divided by 2.5 equals 8.8. To be on the safe side, it is best to round that 8.8 down, suggesting eight stories would have been less than the maximum limit of 4.0 FAR. Later, in the 1970s, the FAR was reduced to 2.75 and the height was limited to 80 feet, or about six stories. When that happened, an eight-story courthouse would have become lawfully nonconforming. So under the legal definition, a lawfully nonconforming courthouse would be eight stories high. If it helps you visualize, on that site the government could have built a building worth caring about, like the White House (70 feet tall) or the Parthenon (45 feet tall) – either would have been in conformity and remained in conformity.

Now, an eight-story or 80-foot courthouse is obviously not the same as a 280-foot courthouse or a mile-high Dark Tower. But the defense claims this doesn’t matter – because anything the government builds is lawful by definition. It also argues that because government is immune from zoning, it is exactly the same as if zoning never existed. According to them, this means the 22-story courthouse effectively precedes zoning and becomes nonconforming with a subsequent zoning restriction.

The plaintiffs respectfully disagree. I would less respectfully point out that both arguments – on the word “lawful” and the word “immune” – are specious bullshit. The defense is conflating the letter of the law with the spirit of the law. The word “lawful” in the statute is not a loophole. Obviously, the statute is intended to enforce the rules mere mortals must play by. Do we really think it is also intended to be a catch-all to protect whatever mistakes the government leaves behind, including nutty, extreme aberrations such as the courthouse?

There is solid case law backing us up. Mendes v. Barnstable says it’s not merely a question of whether a thing is lawful, “but how and when it became lawful.” In particular, if a building is lawful because it was exempt from zoning – as with a variance – it does not become lawfully nonconforming. That would make no sense. You can’t modify a variance with a special permit; you need another variance. And in the case of the courthouse, government immunity served as a de facto variance: an exemption from zoning. The same rationale should apply. Modifying a formerly government-exempt structure requires a variance. Just ask yourself what would happen if a variance expired (as immunity does when the government goes away): The building would have lost its exemption. It would simply be in violation of zoning.

Moreover, immunity is solely a property of the government – not the building. Immunity doesn’t change the law; it simply suspends enforcement. The doctrine of immunity simply means you generally can’t sue the government. Immunity does not “rub off” on the buildings government builds, nor is that superpower conferred in any way to a private owner. An abandoned government building might comply with zoning, or it might be lawfully nonconforming or it might be in violation of zoning – all three are surely possible — but it is what it is. Once the immune owner is gone, the structure left behind must be regulated on its own terms.

Even Richard Nixon was careful not to overstate this point. When David Frost grilled him, Nixon said: “When the president does it, that means it is not illegal.” That is utterly different from saying “When the president does something, it is lawful and establishes a precedent that private persons may follow.”

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3. Size matters

The defense is fond of saying that when the courthouse was built, there was no height limit at all, and the building complied with all zoning ordinances except for FAR – as if that were but a minor detail. As I’ve already pointed out, the building is roughly 2.5 times bigger than the original zoned limit. At 282 feet it is about 3.5 times taller than the current zoning height limit. Of course, FAR of 4.0 is a theoretical maximum provided the original building was conforming. As a practical matter, the building is eight times taller than the modest homes that abut it, which are limited to just 35 feet in height.

In an attempt to assert that this building does not violate zoning, the defense used a metaphor – they claim a racing ambulance does not “violate” speed limits. Well, as a matter of physical fact, the speeding ambulance does exceed the speed limit; it’s just that it cannot be stopped and ticketed for doing so. It would indeed be in violation, but is immune from enforcement. But let’s play this analogy out.

Suppose there’s a 20 mph street in the school zone of a quiet residential neighborhood. Suppose every day, an ambulance with sirens screaming goes rocketing down the street at 100 mph (to pick a number closer to 2.5 times the norm than eight times). And suppose the ambulance breaks down, costs too much to fix (it was built badly by a corrupt firm) and had to be abandoned on the side of the road, making the neighborhood ugly. And suppose the ambulance was full of nasty stuff – toxic drugs, viruses. And suppose the government auctioned it off as surplus to a private buyer. And now suppose the private buyer proposes to strip the vehicle down to its frame, put in a powerful new engine and rebuild it as a sleek truck. Would the new owner be able to drive it down that road at 100 mph? With sirens wailing? Clearly not.

I am baffled as to why the defense thinks this helps their case.

I would underscore that immunity has no effect on other laws – it simply prohibits enforcement. The fact that zoning couldn’t be enforced is not at all the same as saying zoning doesn’t exist. Think about it. Is there a difference between an ambulance driving 90 mph in a 20 mph school zone and the same ambulance driving 90 mph in a zone with no posted limit? Immunity does not alter the underlying limits, and private people must comply with those limits.

Yet the defense seems to be saying that when the government puts up a building, its immunity effectively obliterates local zoning. That’s like saying that the speeding ambulance erases the local speed limit so others can drive just as fast. That’s obviously wrong. It is simply that local limits are suspended while the government is in operation. Once the courthouse building is abandoned, it’s a little like a used, surplus ambulance. Local limits apply and should be enforced.

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4. How do you feel about grandfathered corruption?

The courthouse offers one more thing for us to contemplate.

It was a notorious fiasco. It cost taxpayers hundreds of millions of dollars in direct and indirect damage. It could well have been the poster child for the Ward Commission report – a three-year investigation that produced a 12-volume study and blew the lid off corrupt government building practices. The report famously began: “The final report of the commission tells in detail a sad and sordid story … In the award of contracts for the construction of state and county buildings, corruption has been a way of life.” Indeed, the same crooks involved in overseeing construction and investigation of the courthouse – state senators and builders at a company called McKee-Berger-Mansueto – went to jail for corruption in a scandal over the University of Massachusetts at Boston.

How costly was the courthouse corruption? It’s hard to say exactly, but it played a major role in bankrupting Middlesex County, causing the state to abolish the county altogether, and then the rest of county governance. Only one-third of the courthouse project was built before the state scrapped plans for the rest. Even the piece that was built (the tower) took five times as long and cost more than six times what was originally budgeted. Workers at the courthouse sued the state over asbestos hazards and won. Prisoners in the jail sued the state for deplorable conditions and won. And all of this stupidity was paid for by public tax dollars. After the courthouse had to be abandoned, Mitt Romney’s gubernatorial administration intended to renovate, but the cost was budgeted at $394 million – whoops. And when the state offered the building to Cambridge, City Manager Robert W. Healy said, “I think it truly is best imploded.” Here are several dozen news articles over the years detailing the fiasco.

Everyone agrees this courthouse isn’t merely ugly and oversized, and it isn’t just a small mistake: It is a monument to corruption and a planning catastrophe. It is a dismal failure. And the detriments dumped on poor East Cambridge are incalculable. How can you possibly compensate a neighborhood for 50 years of this sort of misery and devaluation?

So. If you agree with the plaintiffs that the idea of grandfathering government buildings is wrong, how do you feel about the idea of grandfathering corrupt failures?

I think it would be cosmically wrong.

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5. The best-laid urban plans

Finally, at one point in a hearing on the case, the defense argued that it represented the best interests of the taxpayers of Massachusetts – after all, it’s collectively the city, state and a developer – while the plaintiffs are only in it for themselves.

I can’t speak for all the plaintiffs. But I firmly believe this issue is more important than whatever happens to the crummy Sullivan Courthouse, and that’s why I joined the case. I believe city planning is one of the most important things a society can do. Cities need to be able to make and enforce wise plans, and I hope all of us aspire to best practices for designing cities that future citizens will be proud to inhabit. Shouldn’t we insist on best plans?

The defense’s argument essentially says: When government builds something, it cannot be questioned; government buildings obliterate city zoning; and we should allow government to continue laying eggs like this one to be flipped to private owners and, somehow, just suck it up and live with these albatrosses forever.

Raise your hand if you think urban planning should be done by governments dumping toxic eggs like the Sullivan Courthouse in the middle of towns and cities? Anybody?

I’m sure we all agree our government should do what it needs to within reason, but after a government function is gone, shouldn’t cities be allowed to get back to great planning? Or should all unwanted government messes become permanent?

As you can tell, my conclusion is simple. I see little legal or rational basis supporting the defense arguments. The courthouse structure is in violation of zoning – period. It was protected while under government control, but that protection does not “rub off” onto the building and cannot be grandfathered. The developer is not buying the grandfathered right to a 22-story tower. Rather, it is buying a parcel that happens to be burdened with a grossly oversized, abandoned, asbestos-filled failure, in violation of zoning, on a site for which height is limited to 80 feet. The structure violates zoning. It must be brought into compliance.

It is time the courthouse was put out of our collective misery, with the site cleaned up and returned to a better public use for which the three-block founding nucleus of East Cambridge was always envisioned. This could again be a wonderful public place and a beautiful amenity for the dense urban growth clustering around us, and might, in some small way, begin to compensate the neighborhood for 50 years of darkness and detriment. To paraphrase Andrew Craigie, who gave us those three blocks in the first place, whatever is ultimately built on that site should be in conformity, harmonizing with the surrounding family neighborhood, and if there are inferior buildings (such as the courthouse), we should pull them down and build something exemplary.

You be the judge. Here are all of the briefs, and some of the relevant cases. Decide for yourself, clicking on each to read it.

There are five briefs (three from the defendants, two from the plaintiffs) laying out the arguments.

From the developer:

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From the Planning Board:

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From the state:

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Briefs of the plaintiffs (Hawley et al.):

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Briefs of the plaintiffs (Hill):

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The following reply briefs were submitted in response.

Three from defendants:

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And from the plaintiffs:

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