Kelley v. Cambridge Historical Commission

Massachusetts Appeals Court, No. 12-P-1309, Aug. 21, 2013: No standing to enforce perpetual restriction or challenge historical certificate of appropriateness.

Four individuals living in the vicinity of St. James Episcopal parish church (but not abutters), challenged actions by the Massachusetts Historical Commission (MHC) and the Cambridge Historical Commission (CHC) in connection with a commercial development on church property. (The nature of the alterations to the church property was not of primary significance to the outcome of the case but the facts were that the church itself, listed on the National Register of Historic Places, would not be physically altered while an adjoining parish hall would be demolished and a small park designed in 1915 by a noted landscape architect would be substantially changed.)

In 1987, the parish granted MHC a perpetual preservation restriction (preservation easement) on its land (under Mass. Gen. Laws c. 184, s. 32, the “perpetual easement statute”), which gave MHC prior approval rights for all “alterations … to the Premises.” MHC approval was to be granted only where it determined that the proposed alteration “will not impair” “the characteristics which contribute to the architectural, archaeologic[al] or historical integrity of the Premises.” The easement did provide enforcement rights to the general public or the plaintiffs.

In 2005, the CHC and the parish entered into a contract (the “2005 agreement”) whereby CHC expressly declined to designate the church a landmark (although it met the relevant regulatory criteria) and in lieu thereof established a “Statement of Standards … that should inform future alterations to the premises.” The 2005 agreement provided (among other things) 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.” The agreement noted that although the parish house was the oldest structure on the site, its historic significance had been substantially diminished by alterations made over the years, and 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 the 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.”

Later, in connection with the proposed development, the developer and the parish negotiated a deal with CHC whereby CHC issued both a “certificate of appropriateness” approving the development and a recommendation to the city council that landmark status be granted to the church. The city council adopted the CHC’s recommendation to designate the church a landmark while allowing the project to proceed. The landmark designation recognized that the CHC had already approved the proposed demolition and construction through issuing its certificate of appropriateness.

Under various legal theories the plaintiffs challenged the approval of the project by MHC and CHC. The plaintiffs appealed after being rebuffed in the lower court, and the defendants CHC and MHC moved to dismiss. For the purposes of considering this motion the court assumed that the project could impair aspects of the church’s historic value and that garden has independent historical value that the project could diminish or destroy.

Preservation Easement: The court held that the plaintiffs lacked standing to bring a case to require enforcement of a perpetual preservation easement under the perpetual easement statute. Citing a 1997 case holding that only the holder of an agricultural preservation easement (granted under the same statute) can enforce it, the court noted that the difference between the two types of easements is immaterial with regard to who may enforce them. Lest this holding be read too broadly, the court went out of its way to say, “None of this is to say … that because a third party lacks a right to enforce a government-held restriction against the owner of restricted land, that party therefore necessarily lacks a right to seek judicial review of an administrative decision made by the holder of the restriction.” The 1997 agricultural easement, the court wrote, “did not address the question whether, under some circumstances, a project opponent might have an available means of seeking such review, as well as standing to do so.” (The complaint in this case did not make that claim.)

The court went on to offer dictum that this case does not present the question whether ten citizens could seek to enforce a preservation restriction under a different statute (M.G.L. c. 214, § 7A) authorizing citizen suits to enforce “a statute, ordinance, by-law or regulation the major purpose of which is to prevent or minimize damage to the environment,” and defining “damage to the environment” to include “destruction of … parks or historic districts or sites”.)

The court rejected plaintiffs’ argument that they should be considered third-party beneficiaries of the easement. The court also rejected the plaintiffs’ argument that MHC’s approval of the project was in effect a “release” of the easement that did not follow the perpetual easement statute’s procedure for releases. The court held that as a matter of law, MHC’s decision was not a release because the preservation easement does not flatly prohibit any particular changes to the site, but instead relies on case-by-case determinations by MHC.

Historic impact review process: Plaintiffs also appealed the trial judge’s determination that Massachusetts’ historic impact review process law (M.G.L. c. 9, s. 27C) doesn’t apply in this case. That law requires MHC to review projects initiated by State agencies, or that require State funding or licensing. The trial court’s ruling was based on the plaintiffs’ failure to allege that the project was initiated by a State agency or was one that required State funding or approval, although the court noted that ruling did not explain why MHC’s approval under the preservation easement would not be a State “license.” Because plaintiffs did not argue that the trial judge erred in that ruling, the appeals court held that the argument had been waived. The court did note, “Whether and how the § 27C [historic impact review] process applies where the MHC itself is the licensing agency is a question that falls in the first instance to the MHC.”

2005 Agreement: The plaintiffs asked the court to enforce the terms of the 2005 agreement between the CHC and the parish. The court agreed with the trial judge that by the actions of CHC and the parish when CHC issued the recommendation for landmark designation and certificate of appropriateness, those parties intended to abrogate that contract. The court also held that the plaintiffs were not intended third-party beneficiaries of the 2005 agreement. The court sympathized with the plaintiffs’ argument that “where, as here, a government body enters into a contract in lieu of utilizing available regulatory vehicles, such a regulatory agreement implicates more than mere contract law, and the modification of such an agreement may not be immune from all judicial review.”  Nevertheless the court declined to take action on that argument because the plaintiffs did not file a timely action seeking review of the 2010 certificate of appropriateness. The court called the issuance of the certificate “the means taken by the CHC to effectuate its decision”, thereby implying something regarding when “the modification of such an agreement” can be said to have taken place.  

Certificate of appropriateness: Plaintiffs challenged CHC’s issuance of the certificate of appropriateness. Under the terms of the applicable City ordinance, the need for a certificate of appropriateness is triggered as to projects that affect designated landmarks or districts, but the ordinance says that only an applicant has a right to challenge a certificate of appropriateness determination by the CHC. Given that, the court found the plaintiffs’ proximity to the site irrelevant and the plaintiffs lack standing to challenge the certificate. (The court noted, “Under particular circumstances, a party might be able to demonstrate standing to challenge a municipal decision regardless of whether the relevant ordinance or by-law affirmatively recognized that right. [Cite] A municipality does not necessarily get the final word regarding who can seek judicial review of its regulatory decisions.” The court also said, however, that most of the plaintiffs’ alleged harms “are not ones that the ordinance was enacted to protect, and hence, as a matter of law, they cannot provide standing” and the alleged harm that does implicate historical values was not unique to the plaintiffs.) [Editorial note: this reader got the impression from the Opinion’s recitation of the facts that MHC issuance of the certificate of appropriateness in fact preceded the city council’s landmark designation. If that’s correct, then it’s not clear to this reader under what legal rubric the certificate was issued and why the limitations in the landmarks ordinance regarding standing should be relevant in this case.]

Decision available at (Presumably it will eventually be available at http://

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