Today the Appeals Court decided Gund v. Planning Board of Cambridge.  That case concerns the former location of the Middlesex Superior Court, an asbestos-filled, anomalous sky-scraper near Lechmere in Cambridge.  The building, which does not comply with zoning, has been sold to a developer.  At issue was whether the court house is a preexisting, nonconforming structure under G.L. c. 40A, § 6 and the local zoning ordinance.  If so, it is grandfathered for purposes of zoning and eligible for a special permit for its proposed redevelopment.

The typical case concerning a preexisting nonconforming structure involves a building that was in existence before a zoning change, or before zoning was adopted.  If the building was lawful at that time, it is generally grandfathered from later zoning changes.  The interesting twist in this case was that, as a structure owned and operated by a public entity since it was built, the court house has been immune from zoning.

The parties’ opposing the new project argued that, once the building was sold to a private party and lost its immunity from zoning, it could have been “lawful” and the special permit granted only if the court house would have been in compliance with the zoning in force at the time it was constructed.  They made this argument because the court house did not comply with the floor-to-area ratio then in effect.  By virtue of later zoning changes, the building exceeds that ratio by an even greater amount than it did originally, and it also exceeds a later imposed height limitation.

The Appeals Court rejected this approach.  It held that the court house “has always been lawful because the zoning requirements simply do not apply to it.”  After reviewing a number of other cases, the Appeals Court observed that a structure that is lawful because it is immune to zoning regulations is akin to a structure that was constructed before any zoning regulations were adopted in a municipality.  “[N]othing in the zoning ordinance or statutory scheme suggests that [the special permit granting authority] 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.”  Such a look back would be tantamount to treating the court house “as if its governmental immunity never had existed.”

This decision reflects a common sense application of the grandfathering rule.