The recent Massachusetts Appeals Court decision in Kelley v. Cambridge Historical Commission is noteworthy less because of its novel legal findings as much as a documentation of the delays incumbent in the development process.

Developer Oak Tree Development, LLC acquired property adjacent to a historic church in North Cambridge with the intention of working with the church to develop both its and part of the church’s property. The church, its outbuildings, and a park/garden on the property are of historical significance and over the years were protected by restrictions entered into by the church with the Massachusetts Historical Commission (MHC) and a written agreement with the Cambridge Historical Commission (CHC) governing how any development of the property could proceed. With the church and its property in disrepair and in need of financial support to maintain the historic structure, the church agreed to allow redevelopment of part of its property in conjunction with the demolition of an adjacent car wash into 46 residential condominium units with retail space, a rebuilt parish hall, and a reconfigured garden area.

Several neighbors opposed the project, seeking designation of the church as a landmark. However, when the developer and the church supported the designation provided the project was allowed to move ahead and that proceeds from the project would fund maintenance and preservation of the church building from an endowment, the CHC recommended both the project and the landmark designation to the Cambridge City Council, which approved both. A modification to the project to relocate the entrance to the parking garage kicked off another round of complaints and ultimately a lawsuit challenging the project.

Despite some exasperation with the plaintiffs’ inartfully drawn complaint, the court nonetheless demonstrated the judiciary’s willingness to (re)interpret the challengers’ claims. The court stated that,

Before turning to the plaintiffs' individual claims, we frame the overall merits. The amended complaint is thirty-three pages long, and it incorporates several hundred pages of attachments. The complaint is written in a discursive, stream of consciousness style, it lacks any organizational coherence, and it is riddled with overblown language and inappropriate ad hominem attacks. As a result, the specific legal theories on which the plaintiffs purport to rely are not readily discernible. We appreciate the difficulties the motion judge faced as he diligently tried to make sense of the plaintiffs' alleged causes of action. We attempt to do the same, mindful that we should not provide the plaintiffs the undue benefit of arguments they did not fairly raise.

The Superior Court and ultimately the Appeals Court dismissed each of the plaintiffs’ possible theories in turn:

• The plaintiffs lack standing to enforce the terms of a preservation restriction entered into between the church and the MHC. The Appeals Court distinguished the Court’s holding inRosenfeld v. Zoning Bd. of Mendon, 78 Mass. App. Ct. 677 (2011) that held that “an owner of land that adjoins the restricted land is entitled to enforce a deed restriction, whether or not the instrument imposing the restriction contains an express statement that the adjoining land is intended to benefit from the restriction.” The Appeals Court noted the different statutory schemes, the narrowness of the issue in Rosenfeld, and the fact that the plaintiffs are not even adjacent to the church site. However, the Appeals Court noted that it remains unresolved (and the plaintiffs fail to raise here) what whether a party lacks a right to seek judicial review of an administrative decision made by the holder of the restriction just because it lacks the right to enforce the government-held restriction itself.

• The property is not in a Historic District under Chapter 40C and the “plaintiffs’ suggestion that the area is a ‘de facto Historic District’ relies on a concept that the law does not recognize.” As a result, the “adverse effect” standard of M.G.L. c. 40C, § 27C plays no role.

• The plaintiffs cannot demonstrate as a matter of law that they are intended third-party beneficiaries of the agreement between CHC and the developer and the church regarding development of the property. However, the Appeals Court noted again a lost potential opportunity for the plaintiffs, acknowledging that where “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.” However, the Court said that the plaintiffs lost their chance because the plaintiffs never filed a timely action seeking review of the 2010 certificate of appropriateness (the means taken by the CHC to effectuate its decision).

The Appeals Court affirmed the lower court’s dismissal, demonstrating the difficulties and pitfalls for developers and challengers in effectively litigating appeals of decisions in project development.