MA Appeals Court Holds Courthouse would be Considered a Preexisting Nonconforming Use when it Losses its Governmental Immunity

The Edward J. Sullivan Court House was constructed by Middlesex County between 1968 and 1974 on land owned by the county on Thorndike Street in Cambridge. The court house was immune from the local zoning ordinance when it was built, and in the ensuing years when it housed the Superior Court, the Cambridge Division of the District Court Department, and associated court offices through 2009, and a jail facility through 2014. Defendant LMP GP Holdings, LLC (developer), was a private entity that entered into a purchase and sale agreement with the Commonwealth to purchase the court house, and had taken steps to obtain approvals to redevelop it. The sole issue on appeal is whether the court house, when it loses its governmental immunity by transfer to the developer, would constitute a preexisting nonconforming structure under G. L. c. 40A, § 6, and § 8.22.2(a) of the relevant zoning ordinance such that redevelopment may be approved by special permit.

The record reflected that the court house was immune from the floor-to-area ratio when it was constructed, and the provisions of the zoning ordinance would not become effective as to the court house until the structure lost its governmental immunity, which would occur when the property was conveyed to the developer by the Commonwealth. Here, the court house was existence long before the zoning ordinance would become effective as to it. Accordingly, the court held that the court house would become a preexisting nonconforming structure when it loses its governmental immunity.

Gund v Planning Bd. of Cambridge, 91 Mass. App. Ct. 813 (7/19/2017)