Posted by: Patricia Salkin | December 18, 2013

MA Appeals Court Finds No Standing to Enforce a Perpetual Restriction or to Challenge a Historical Certificate of Appropriateness

This case concerns the St. James Episcopal Church on Massachusetts Avenue and Beech Street, North Cambridge, Mass., which was constructed in 1888 and added to the National Register of Historic Places in 1983. The Romanesque revival church itself was designed by noted architect Henry M. Congdon and its “Knights garden” was designed in 1915 by noted landscape artist John Nolen. Now owned by the St. James Parish of the Episcopal Diocese of Massachusetts, the church was the subject of a four-story mixed use development proposal which, with the help of a private developer, would involve the preservation of the church itself but the removal of the parish hall and the Knights garden.

The Massachusetts Historical Commission (MHC) was granted a preservation restriction on the land there in 1987, which permanently restricted the parish’s rights to develop the property, and required that any alterations to the property be submitted to the MHC for approval. Where the MHC determines that the proposed site alteration will not impair “the characteristics which contribute to the architectural, archeological, or historical integrity of the premises,” the MHC will generally approve a project. In 2004 and 2005, the parish and the Cambridge Historical Commission (CHC) entered into another agreement in lieu of making St. James an official local landmark, which limited alterations to the exterior of the church, and urged the parish to, to the greatest extent practicable, maintain the Knights garden.

In 2008, Oaktree Development LLC purchased an adjoining parcel to St. James Episcopal Church and approached the parish about combining the parcels to create an L-shaped building which would surround the church on two sides, and would be taller than the church except for its tower. This building would house 46 residential condominiums, retail space, and the parish hall. The Knights garden would be displaced, but a new open space would be constructed to replace it. The parish endorsed the proposal and eventually became a joint developer of the project.

Upon learning of the proposed project, CHC reviewed its 2005 agreement with the parish and also considered whether to officially designate the church a local landmark. Oaktree and the parish agreed to support landmark designation in exchange for the CHC’s support in allowing the development project to move forward. CHC determined that the project, in balance, was in the public interest, a recommendation which the CHC then passed along to the City Council in January 2011. One component of the CHC’s support was the developers’ promise to use proceeds from the project to create an endowment fund to support the maintenance and preservation of St. James Episcopal Church itself. Despite the loss of the parish hall and Knights garden, the CHC felt the project would help to protect the church in the future. The City designated the church as a landmark and the CHC approved the development project via a November 2010 certificate of appropriateness.

A group of neighbors challenged the approvals given to the project by the CHC, the City, and MHC, though the plaintiff neighbors did not provide the court with information about what approvals were given by MHC or copies of those decision. The parish and the developer were also named defendants in the suit. A motion to dismiss was made by the defendant group, challenging the neighbors’ standing. The trial court granted the motion to dismiss. The neighbors here appeal.

On appeal, the Court affirmed that the neighbors lacked standing. First, as to the plaintiffs’ attempts to enforce MHC’s preservation restriction, the Court noted that that restriction was MHC’s to enforce, and the plaintiffs had provided no reason why they should have standing to enforce that restriction. Plaintiffs attempted to argue that they had a right to enforce the restriction as third party beneficiaries to the contract, but the Court held that nothing in the agreement indicated an intent to benefit any third parties in such a way that would be actionable. Further, the Court held that any administrative challenge the plaintiffs might have been able to make to MHC’s approvals was outside the scope of the case, since the plaintiffs had pinpointed no approval for which they sought judicial review.

Second, regarding the plaintiffs’ attempts to enforce the 2005 agreement between the parish and the CHC, the Court again found that the agreement had been superseded by the city’s decision to designate the Church as a local landmark, and that the CHC’s issuance of a certificate of appropriateness for the project was a signal that the parties intended to abrogate the contract. However, even if those facts had not existed, plaintiff neighbors had no standing, including no third party standing, to enforce that contract either. The court noted that the neighbors might have been able to challenge the 2010 certificate of appropriateness itself, but that it had not done so in a timely manner, and was thus precluded.

Finally, because the plaintiffs could cite no other statute or basis for their standing to bring these claims, beyond their mere proximity to the site, the Court held there was no standing. The group alleged other harms, such as increased traffic and aesthetic impacts, but these harms were not within the scope of interests protected by the state’s Historic Preservation laws, and were not distinct from the harms suffered by the public at large, and thus could not confer standing either. The lower court’s decision to grant the defendants’ motion to dismiss was affirmed.

Kelley v. Cambridge Historical Commission, 84 Mass. App. Ct. 166 (Mass. App. Ct. 8/21/13)

The opinion can be accessed at:

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