Rogers Street, LLC v. MBA-Rogers Street LLC

26 Mass. L. Rptr. 249
CourtMassachusetts Superior Court
DecidedAugust 19, 2009
DocketNo. 064917BLS2
StatusPublished

This text of 26 Mass. L. Rptr. 249 (Rogers Street, LLC v. MBA-Rogers Street LLC) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rogers Street, LLC v. MBA-Rogers Street LLC, 26 Mass. L. Rptr. 249 (Mass. Ct. App. 2009).

Opinion

FabricaNT, Judith, J.

INTRODUCTION

This action presents a dispute regarding the calculation of rent due from the plaintiffs, Rogers Street, LLC and BMR-Rogers Street (tenant) to the defendants MBA-Rogers Street LLC, MBA-Cambridge LLC, and O&T Realty, LLC (landlord), under certain provisions of a commercial ground lease (lease). Before the Court are cross motions for summary judgment. For the reasons that will be explained, the tenant’s motion will be denied, and the landlord’s motion will be allowed in part and denied in part.

BACKGROUND

The record before the Court establishes the following facts as undisputed for the purposes of these motions. Defendants MBA-Cambridge and O&T Realty hold the fee interest in two properties located at 304-322 Binney Street and 301 Bent Street, with a total around area of 165,118 square feet (the property).3 On March 30, 1999, they entered into a lease agreement for a term of 62 years with plaintiff Rogers Street.4 The lease contemplated that the tenant would demolish the existing, antiquated industrial buildings on the site, construct new buildings (the project), and sublease space in the new premises to third parties. Under §6.03 of the lease, the tenant was required to obtain the landlord’s express approval of all schematic design plans prior to any construction or improvement on the property, and prior to any application for a building permit. Should the landlord disapprove of any aspect of the plans, it was required to so inform the tenant and state the grounds for disapproval. The lease provided for an annual “Fixed Ground Rent” set forth in an appended exhibit, designated “Exhibit E.”

In the fall of 1999, the tenant proposed to apply to the City of Cambridge Board of Zoning Appeals (BZA) for a permit to allow telecommunications use on the property. The landlord refused to approve the proposal, claiming that only uses permitted “as of right” could be built under the lease. This dispute resulted in a December 15, 1999, arbitration agreement and an amendment to the lease5 to include, among other things, a revised Exhibit E, which provided as follows:

The annual Fixed Ground Rent for the Premises for each Rent Year shall be an amount equal to the total of (i) the Maximum Floor Area for the Properties up to 375,000 square feet multiplied by the sum of $4.00 plus (ii) the Maximum Floor Area for the Properties in excess of 375,000 square feet, if any, multiplied by the sum of $2.50, which amounts shall be increased as provided below. However, under no circumstances shall the Fixed Ground Rent for any Rent Year be less than $1,500,000, which amount shall be increased as provided in the next sentence. All of (a) the $4.00 and $2.50 amounts specified, respectively, in items (i) and (ii) above, and (b) the $1,500,00.00 amount specified in the preceding sentence shall be increased annually on January 1st of each year on a cumulative basis, by 3%, with the first such increase to be made on January 1, 2001.

The lease defines the Maximum Floor Area as “the reasonable maximum gross floor area (as defined in the Cambridge Zoning Ordinance) permitted by applicable zoning and land use regulations for the Property.”

Under the Cambridge zoning ordinance, gross floor area is measured by multiplying the length of each story of each building by its width, and adding the results for all stories. The zoning ordinance limits the gross floor area that can be built on a particular lot. The limit under the ordinance is calculated by multiplying the lot area of the property by the floor area ratio (FAR) applicable to the district in which the property lies. The applicable FAR, therefore, determines the maximum gross floor area of any structure that can be built on that lot. During the relevant period, the property was located in an Industry B -1 district, with a base FAR limit of 3.0. The ordinance allows certain [250]*250bonus FARs for properties used for housing, with a certain percentage allocated to affordable housing; these bonus provisions were not applicable to the property at the time the lease was executed, because housing was not allowed either as of right or by special permit in an Industry B-l district.

Beginning in August 1999, the tenant submitted to the landlord, and the landlord approved, a series of plans for the project.6 On October 6, 1999, Cambridge advertised Ordinance 1234 (known as Larkin).7 Larkin proposed an eighteen-month moratorium on the issuance of permits for any building, renovation, addition or demolition of any structure within an area that included the property. Despite the possible moratorium, the tenant on November 5, 1999, applied for special permits to build a telephone exchange (telecom building). In the meantime, the tenant and other developers negotiated for an amendment to Larkin, which would provide an exemption to the moratorium for any project over 100,000 square feet that consisted of a telecom building as well as at least twenty units of housing, if and when housing became a permitted use. The City adopted Larkin on January 24, 2000, including that exemption. The net effect of Larkin, as amended, was that the tenant was required to build at least twenty units of housing should housing be permitted prior to occupancy. On January 28, 2000, the BZA granted the tenant’s application for special permits to build structures with a maximum gross floor area of 495,330 square feet. The tenant began construction in July 2000.

On June 19,2000, Cambridge passed Ordinance 1240 (known as Housing in Industrial Districts or HID). HID allowed multi-family housing in Industry B-l districts, subject to the issuance of a special permit by the Planning Board should the proposed development exceed 50,000 square feet of gross floor area. HID increased the 3.0 FAR normally allowed for that area by 30%, provided that all additional gross floor area attributable to that bonus must be allocated to housing, with half of that to affordable housing as defined in the zoning ordinance. Thus the total FAR allowable for the property after June 19, 2000, was 3.9 (the base FAR of 3.0 plus 30%).

On June 27,2001, Cambridge advertised ordinance 1253 (referred to as ECAPS). ECAPS proposed to downzone the district from Industry B-l to Industry A-1. This had the effect of reducing the FAR.8 On June 28, 2001, and consistent with the requirements of Larkin, the tenant obtained an amended permit to add 41 units of housing to the already existing office and laboratory space, with a gross floor area for the entire project of 506,904.9 The City adopted ECAPS on October 15, 2001. Nonetheless, because the tenant had obtained the telecom permits in January 2000, it retained the right to build under the original base FAR of 3.0.10 Finally, on April 18, 2002, after Larkin had expired, the tenant applied for a special permit to allow all or part of the gross floor area for which it had received permits for telecommunications use to be developed for laboratory/research and development uses.11 The Planning Board allowed the permit on May 29, 2002, with the gross floor area remaining at 506,904.

The tenant started paying rent on the original 495,330 square feet in February 2000, before beginning construction in July of that year. Thereafter, the tenant increased its rent payments each year by an amount equal to 3% of the first year’s rent.

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Cite This Page — Counsel Stack

Bluebook (online)
26 Mass. L. Rptr. 249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rogers-street-llc-v-mba-rogers-street-llc-masssuperct-2009.