Treating non-compliant governmental structures as ‘prior lawful non-conforming’ structures under the Massachusetts Zoning Act

Issue November/December 2018 November 2018 By Michael K. Murray and Martin R. Healy
Development and Construction Law Practice Group (Real Estate) Section Review
Article Picture
From left: Michael K. Murray and Martin R. Healy

Should state structures that failed to conform with applicable municipal zoning when built, but were nonetheless lawful when built as a result of state governmental immunity from local zoning constraints, be treated as “prior lawful non-conforming” structures within the meaning of Section 6 of the Zoning Code? In a triumph of the pragmatic over the theoretical, Gund v. Planning Board of Cambridge, 91 Mass. App. Ct. 813, rev. denied, 478 Mass. 1102 (2017), answers that question in the affirmative.

When the commonwealth decided that it no longer needed the iconic Edward J. Sullivan Courthouse and jail (“courthouse”) and that the excess property (22 stories and 280 feet high towering over the neighborhood) should be disposed of for private use, a developer that had signed a purchase and sales agreement to acquire the courthouse sought a special permit for a mixed-use project pursuant to the Cambridge ordinance that applied to the expansion of “prior lawful nonconforming structures” and the first paragraph of G.L. c. 40A, § 6, second sentence (“[p]re-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority or by the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood”). The Cambridge Planning Board, acting as the city’s special permit granting authority, granted the requested relief, and neighbors of the structure appealed. The Land Court upheld the special permit in Hill v. Cambridge Planning Board, Land Court Misc. #14-488217 (Foster, J. May 19, 2015). The Appeals Court affirmed in Gund v. Planning Board of Cambridge, 91 Mass. App. Ct. 813, rev. denied, 478 Mass. 1102 (2017).

When it was constructed, the courthouse exceeded the otherwise allowable floor-to-area ratio (FAR), but as a state building was protected against application of local zoning constraints as a result of state governmental immunity. When the state use ended, and the state sought to sell the building to a private developer for private use, the basis for state governmental immunity ended, giving rise to the question of whether the courthouse should be treated as “illegal,” thus requiring a variance to maintain the FAR violation, or as a “prior lawful nonconforming” structure that could be re-used and modified under a special permit. The planning board concluded that the courthouse constituted a preexisting nonconforming structure as defined in the zoning ordinance, which could be expanded by a showing that the change was not substantially more detrimental to the community than was the existing nonconformity, and granted the special permit. On appeal, the Land Court granted partial summary judgment to the developer on the narrow issue of whether the courthouse constituted a preexisting nonconforming structure.

The Appeals Court noted that, “While a general goal of zoning is the eventual elimination of nonconforming uses in structures,” Section 6 of the Zoning Act and “many local by-laws or ordinances provide protection to lawful conforming uses and structures,” and that, “[W]here, as here, a zoning ordinance largely parroted the protections contained in Section 6, we said that the ‘by-law unequivocally reject[ed] the concept that nonconforming uses or structures must either fade away or remain static.’” 91 Mass. App. Ct. at 815-16 (quoting Titcomb v. Board of Appeals of Sandwich, 64 Mass. App. Ct. 725, 730 (2005). The Appeals Court rejected the plaintiffs’ argument that, because the courthouse did not comply with the FAR limitations that applied at the time the courthouse was built, the courthouse was not a preexisting nonconforming structure, and therefore was not entitled to protection under the second sentence of Section 6 or the local ordinance. The Appeals Court relied, in part, on Durkin v. Board of Appeals of Falmouth, 21 Mass. App. Ct. 450 (1986), in which the Appeals Court ruled that a use that was permissible because of the application of a governmental immunity was “nonconforming in fact.” The Gund court held that there is “no meaningful distinction in terms of the protections afforded nonconforming structures in the zoning ordinance between a structure that becomes nonconforming because of a subsequently enacted stricter ordinance and one that becomes nonconforming because of a loss of statutory immunity.” 91 Mass. App. Ct. at 818.

The Appeals Court rejected the plaintiffs’ argument that Mendes v. Board of Appeals of Barnstable, 28 Mass. App. Ct. 527 (1990) — which held that a use that exists because of a variance issued by a local planning board is not a preexisting nonconforming use under Section 6 — compels a different result. Instead, the court reasoned that, “[A] use or structure that is immune from local zoning regulations because it is owned by the government cannot be equated to a use or a structure that can be allowed because it meets the strict criteria for a variance,” and that a “structure lawful because it is immune from zoning regulations is closer to structures that were constructed prior to zoning regulations being adopted.” 91 Mass. App. Ct. at 818-19.

Finally, the Appeals Court stated that, “[W]hen the court house loses its governmental immunity, nothing in the zoning ordinance or the statutory scheme suggests that the planning board should look back to when the structure was constructed to determine whether it complied with the then-existing zoning ordinance from which it was immune at the time. Nothing in the statutory scheme suggests that we should treat the court house as if its governmental immunity had never existed.” Id. at 819. 

Michael K. Murray is a counsel in Goodwin’s Litigation department, and focuses his litigation practice on land use and zoning, as well as product liability. Murray has worked on a wide variety of land use litigation matters at the trial and appellate level, including cases involving challenges to various permits and approvals, enforcement requests, and zoning amendment challenges. He also has extensive experience in litigating product liability actions involving consumer products in state and federal courts.

Martin R. Healy is a partner in Goodwin’s Real Estate Industry group and leads the firm’s Real Estate Development + Permitting group. He focuses his practice primarily on acquisitions, due diligence and permitting advice for complex development projects, and has worked on many high profile development projects throughout the city. Best Lawyers recognized Healy as Boston’s ”Lawyer of the Year” for Land Use and Zoning in 2018.