Kelley v. Cambridge Historical Comm'n

• Citation: 993 N.E.2d 1228,84 Mass.App.Ct. 166
• Decision Date: 21 August 2013
• Docket Number: No. 12–P–1309.,12–P–1309.
• Court: Appeals Court of Massachusetts
• Parties: Jacqueline KELLEY & others v. CAMBRIDGE HISTORICAL COMMISSION & others.

84 Mass.App.Ct. 166

993 N.E.2d 1228

Jacqueline KELLEY & others ¹

v.CAMBRIDGE HISTORICAL COMMISSION & others.²

No. 12–P–1309.

Appeals Court of Massachusetts, Middlesex.

Argued May 2, 2013.

Decided Aug. 21, 2013.

Elaine M. Callahan for David Vogel, Peter Fifield, & James J. Carr, Jr.

David T. DeCelles for Jacqueline Kelley.

Timothy J. Roskelley for Oak Tree Development, LLC, & another.

Arthur J. Goldberg, Deputy City Solicitor, for Cambridge Historical Commission.

Annapurna Balakrishna, Assistant Attorney General, for Massachusetts Historical Commission.

Present: MILKEY, CARHART, & SULLIVAN, JJ.

MILKEY, J.

The St. James Episcopal church sits at the intersection of Massachusetts Avenue and Beech Street in North Cambridge. Built in 1888, the church was designed by noted New York architect Henry M. Congdon in a style that has come to be known as “Romanesque revival.” Since 1983, the church has been listed on the National Register of Historic Places, and all parties to this litigation recognize that it has significant historic value. Also at the site are a parish hall that predates the church by four years, and a small park known as “Knights garden” that was designed in 1915 by noted landscape architect John Nolen.³

The church property is owned by the St. James Parish (parish), which is part of the Episcopal Diocese of Massachusetts.⁴ In conjunction with a private developer, the parish has proposed a four-story, mixed-use development at the church site and on an adjacent parcel that the developer owns. Under the proposal, the church itself would remain but the parish hall and Knights garden—at least in the garden's current form—would not.

The plaintiffs are four nearby residents who allege that various historic preservationlaws prevent the project from going forward as proposed. Ruling that their amended complaint failed as a matter of law, a Superior Court judge allowed the defendants' motions to dismiss. We affirm the judgment, albeit on somewhat different grounds than those stated by the judge below.

Background. The 1987 Massachusetts Historical Commission preservation restriction. In 1987, the parish granted defendant Massachusetts Historical Commission (MHC) a preservation restriction on its land. See G.L. c. 184, § 31 (authorizing preservation restrictions). The preservation restriction, which was recorded in the Middlesex County registry of deeds, permanently limited the parish's development rights in certain respects. Specifically, the parish bound itself to secure prior MHC approval for all “alterations ... to the Premises” except for certain exceptions not here relevant.⁵ The express terms of the document make it plain that MHC approval is to be forthcoming only where the agency determines that the proposed alteration to the site “will not impair” “the characteristics which contribute to the architectural, archaeologic[al] or historical integrity of the Premises.” ⁶

The 2005 Cambridge Historical Commission agreement. A 1990 report prepared by staff of defendant Cambridge Historical Commission (CHC) recommended that the church be designated a historic landmark pursuant to the relevant city ordinance. The record does not explain exactly what happened to that recommendation, but the materials attached to the amended complaint indicate that the church was not designated a landmark at that time.⁷

In 2004 and 2005, the CHC again took up the question whether the church should be given landmark status, and it determined that the church met the relevant regulatory criteria. However, in consideration of the MHC preservation restriction already in place, the CHC expressly declined to designate the church a landmark. Instead, the CHC and the parish entered into a written agreement (2005 agreement) purporting to establish a “Statement of Standards ... that should inform future alterations to the premises.” That agreement noted that its “primary intent” was “to protect all publicly-visible exterior architectural features of the church structure from inappropriate alteration.” ⁸ It further provided that “[a]ll construction on the site should preserve open views of the church structure, should be compatible with the church, and should retain the largely free-standing character of the church on its site.”

While the primary focus of the 2005 agreement was the church itself, the agreement also discussed the parish house and Knights garden. It noted that although the parish house was the oldest structure on the site, its historic significance had been substantially diminished by alterations that had been made over the years. Indeed, the 2005 agreement specifically recognized that “if at some point the church desires to construct a new parish house or other parish-related structure on the site,” then “[c]onsideration should be given to allowing the removal of the parish house.” With respect to Knights garden, the agreement recognized that the garden itself had historic value and it stated that “[i]nsofar as is practicable, the Garden should be maintained as a historic landscaped open space [and] [e]ncroachment on the garden should be avoided or minimized.” ⁹

The development plans take shape. In 2008, defendant Oaktree Development, LLC (Oaktree), purchased a parcel adjacent to the church property on which a car wash was located. It then approached the parish about pooling the two parcels and jointly proposing a development on them. Under Oaktree's proposal, the church itself would remain in place, but the existing parish house would be razed. A new “L-shaped” building would surround the church on two sides. Four stories in height, that building would be taller than the church except for its tower. The new building would house forty-six residential condominium units, some retail spaces, and the parish's hall. The development would displace Knights garden as such, but there would be new, publicly-accessible open space in the same general location. The plaintiffs allege that the new open space would be significantly smaller in size ¹⁰ and of a markedly different character (a mere “courtyard” or “interior plaza” sandwiched between the new building and the church, not a “garden” that served as an “oasis” from the encroaching city).

The parish eventually endorsed Oaktree's proposal and effectively became a joint developer of the project. The documents appended to the amended complaint indicate that the parish came to view the project as presenting several advantages for it. Most notably, the project would create a fund that could be used toward renovating and maintaining the church, and it would relieve the parish of its maintenance obligations for the old parish house while providing a new parish hall.

Concern over the project's historic impacts. The project engendered opposition from at least some of the residents in the area, and that opposition focused in part on historic impacts. Ten citizens formally petitioned the CHC to designate the church a landmark. As documented in a memorandum dated October 29, 2009, the executive director of the CHC expressed concerns about the project's historic impacts that echo those of the plaintiffs. According to him, “[t]he design [of the project] treats the church as a subsidiary building, crowds it too closely, and seriously interferes with the character of the adjoining streetscapes ... [and] does not seem to incorporate the goals agreed to by the church in 2005.” He also “expressed concern that the entire parish house would be razed and about 1/3 of the garden would be lost.” His memorandum concluded by recommending that the CHC “consider whether the nature of the proposed project sufficiently honors the intent of the 2005 agreement with the church,” and that “[i]f not, initiation of a landmark designation study may be warranted.”

The city's landmark designation. Although some of the specific details are not clear, the record indicates that the CHC considered the merits of the project and whether to designate the church a landmark in tandem. At some point in that process, Oaktree and the parish offered their support for landmark designation of the church so long as their project was allowed to go forward. The CHC eventually endorsed that proposal and issued two documents to effectuate it. One was a “certificate of appropriateness,” issued on November 4, 2010, that endorsed the proposed construction and demolition activities. The other was a recommendation to the Cambridge city council that landmark status be granted to the church, subject to the project's being allowed to go forward.

On January 26, 2011, the city council held a hearing to consider the CHC's recommendation. The CHC's executive director testified at the hearing, and he explained why the CHC had come to the view that the project, on balance, was in the public interest. Specifically, he focused on the agreement by Oaktree and the church “that part of the proceeds from the project would be used to establish an endowment fund to ensure the maintenance and preservation of the church building, which is a fragile structure.” Through allowing that dedicated income stream to be achieved while obtaining formal landmark status, the CHC “sought to ensure that the church would be protected for the foreseeable future.” Notably, the executive director specifically acknowledged that the project would have some negative historic impacts, but stated that these would be outweighed by the availability of the new income stream. As his comments were summarized in city council minutes, he stated: “Yes, there is a loss, but it is balanced by the preservation of the church.” ¹¹

The city council adopted the CHC's recommendation to designate the church a landmark while allowing the project to proceed. The landmark designation order recognized that the CHC had already approved the proposed demolition and construction through issuing its November 4, 2010, certificate of appropriateness.

The modification of the project. After the church had...