391 Mass. 328 | Mass. | 1984
The plaintiffs challenged an ordinance adopted by the city of Fall River (city) which purports to regulate the conversion of rental apartments to condomin
On May 19, 1982, chapter 13A of the Revised Ordinances of the city (ordinance) became effective.
The plaintiffs argue, and the judge below ruled, that the ordinance is invalid because it is a private or civil law governing civil relationships, thus violating § 7 (5) of the Home Rule Amendment, art. 89 of the Amendments to the Constitution of the Commonwealth, replacing art. 2 of those Amendments (HRA);
1. Private or civil law governing private relationships. An ordinance which affects the landlord-tenant relationship is a “private or civil law governing civil relationships.” CHR
The city attempts to distinguish the ordinance from the condominium conversion law found invalid in CHR Gen., Inc. v. Newton, supra, because, as it argues, the Newton ordinance was very detailed and placed specific restrictions on the landlord’s relation with his tenant. The Fall River ordinance simply requires the issuance of a permit before property may be removed from the rental market.
2. Incident to the exercise of an independent municipal power. An ordinance which governs a civil relationship may be valid despite the proscription of § 7 (5) if it is “incident to an exercise of an independent municipal power.” HRA § 7 (5). The city does not claim that the ordinance should be upheld as incident to the exercise of its zoning power (see CHR Gen., Inc. v. Newton, supra at 355), but claims the ordinance is valid as incident to its power to operate the water and sewer system, its power to regulate traffic and city streets, and its general supervisory power over public health. Furtherance of the general public welfare is insufficient justification for an ordinance which otherwise violates § 7 (5) because such an ordinance would not be based on an “individual component of the [city’s] police power.” Marshal Home, Inc., supra at 718. Nor can the ordinance be justified as incident to either of the other two powers enumerated by the city. Whether a particular unit of housing is owned or rented would affect neither the water and sewer system nor the traffic patterns of the neighborhood. Cf. CHR Gen., Inc. v. Newton, supra at 356-357 (conversion ordinance not valid as exercise of city’s zoning power because there is no difference in use between condominium units and apartments). The holding in Goldman v. Dennis, 375 Mass. 197 (1978), that a conversion by-law was justified by the town’s zoning power, is not persuasive as applied to this case. In that decision, conversion would turn a “cottage colony” rented out only during the summer season into year-round housing. See CHR Gen., Inc. v. Newton, supra at 357. There is no evidence that apartment conversion in Fall River would have an effect of this kind. There is no independent power by which the city can justify the ordinance.
For the foregoing reasons, we conclude that the ordinance is invalid.
Judgment affirmed.
Chapter 13A provides:
“Section 1: Housing Conversion Board
There shall be created within the City of Fall River, a Housing Conversion Board consisting of three (3) persons appointed by the Mayor, who shall serve for a period of three (3) years.
“Section 2: Purpose
The purpose of the Housing Conversion Board is to grant or deny permits after hearing, and may issue, order and promulgate regulations to effectuate the purposes of this by-law, and to establish procedures for applications, notices and hearings regarding 'multi-family conversions to condominiums.
“Section 3: Conversion Permit Required
The provisions of General Laws, Chapter 30A shall apply to the Housing Conversion Board as if the same were an agency of the Commonwealth of Massachusetts. No owners of multi-family dwellings or other person shall remove from rental use any rental unit in a residential complex of twelve (12) or more residential housing units which is not owned or operated by the United States, Commonwealth of Massachusetts or any other sub-division, without first having obtained from the Housing Conversion Board a conversion permit authorizing such removal from rental use of said rental unit. In deciding whether or not to grant conversion permits, under this Chapter, the Housing Conversion Board shall consider the potential effects of said conversion from rental housing use on the supply of rental housing and the stability of neighborhoods in the City.
“Section 4: Penalty .
Violation of this Chapter shall be an unlawful act for any person who materially participates in the same and whosoever violates this Chapter may be punished by a fíne of not more than Fifty ($50.00) Dollars, and each day of continued unlawful removal for rental of such unit or of continued disregard or contravention of each order shall constitute a separate violation.”
The HRA, § 7 (5), reads in pertinent part: “Nothing in this article shall be deemed to grant to any city or town the power to . . . (5) enact private or civil law governing civil relationships except as an incident to an exercise of an independent municipal power . . . .”
The Legislature recently enacted St. 1983, c. 527, an act enabling any city or town in the Commonwealth to regulate the conversion of rental property to condominium units by ordinance or by-law. There was no Statewide enabling legislation in effect at the time the ordinance was passed. Whether the ordinance would be found valid if adopted pursuant to the new legislation is not before us.
The ordinance in CHR Gen., Inc. v. Newton, supra at 352, required that tenants be given the right of first refusal to purchase their unit and that the property owner submit an adequate tenant relocation plan subject to the approval of the board of aldermen. The ordinance also provided that the owner could not regain possession for two years from the date of issuance of the permit, five years if the tenant demonstrated hardship.