26 Mass. App. Ct. 661 | Mass. App. Ct. | 1988
This is an appeal by the rent control board of Cambridge (board) and tenants from a judgment of the Superior Court which determined that the twelve rental units owned by the plaintiff at 9 Magazine Street (property) are not subject to St. 1976, c. 36, the Cambridge rent control act (Act).
We recite the undisputed relevant facts. For many years, the property, a three-story building, had been operated as a thirty-three room rooming house with shared bathroom facilities. In 1975, the then owner was given permission by the Cambridge board of zoning appeal to convert the property
In October, 1977, the plaintiff began work to convert the property to twelve three- and four-room apartments. An occupancy permit was issued by the city building department on May 10, 1978, and the job was completed in June, 1978.
In December of 1981, and January of 1982, hearings were held by a hearing officer of the board to determine the rent control status of the property. The hearing officer did not complete his task, the case was not considered by the board, and consequently no ruling was made. In May of 1986, pursuant to “special case” requests by hearing officers of the board, a hearing was held on the status of the twelve rental units. Thereafter, the hearing officer recommended, and the board ruled, that the units are subject to rent control. The plaintiff appealed to the Superior Court where a judge, after consideration of the administrative record, see St. 1976, c. 36, § 10, as appearing in St. 1985, c. 399, § 3; G. L. c. 30A, § 14; Amari v. Rent Control Bd. of Cambridge, 21 Mass. App. Ct. 598, 600 n.6 (1986), filed a memorandum and order in which he concluded that the board’s decision was erroneous 'as matter of law. See G. L. c. 30A, § 14(7)(c). It is from the ensuing judgment that the board and the tenants appeal.
The Superior Court judge concluded that the board’s focus on the lack of novelty of some parts of the rehabilitated property was misplaced. Rather, he said, the relevant inquiry should have been whether new rental units had been created. Under the plain language of § 3(¿>)(2), the judge held, it is the rental unit which must be newly created and not the building in which it is located. On this foundation, the judge reasoned that at the time of the plaintiff’s purchase there were no rental units in the property because it was then uninhabitable for reasons not the fault of the plaintiff or the prior owner.
The board and the tenants say that the “complete rebuilding” standard has long been followed and that it is applied on a case-by-case basis. While we give great weight to the interpretation of the Act by the board, see Amari v. Rent Control Bd. of Cambridge, 21 Mass. App. Ct. at 604-605, that principle is one of “deference, not abdication.” Vincent v. Rent Control Bd. of Cambridge, 23 Mass. App. Ct. 927, 927 (1986), and cases cited. “[Cjourts will not hesitate to overrule agency interpretations of [statutes] when those interpretations are arbitrary, unreasonable or inconsistent with the plain terms of the [statute] itself.” Polednak v. Rent Control Bd. of Cambridge, 397 Mass. 854, 858-859 (1986).
Here, the judge concluded that the board’s ruling contradicted the plain language of § 3(b)(2). The board and the tenants argue that the judge’s reasoning and conclusion are inconsistent with the decisions in Rent Control Bd. of Cambridge v. Cambridge Tower Corp., 394 Mass. 809 (1985), Chicago Title Ins. Co. v. Cambridge, 24 Mass. App. Ct. 285 (1987), and Moller v. Rent Control Bd. of Cambridge, 24 Mass. App. Ct. 934 (1987). None of the cases is apposite. First, Chicago Title involved only the question whether a structure containing five residential units qualified as a townhouse development within the meaning of the Cambridge zoning ordinance. 24 Mass. App. Ct. at 285.
The board and the tenants go to some length to distinguish Vincent v. Rent Control Bd. of Cambridge, 23 Mass. App. Ct. 927 (1986), a case involving the application of a different exemption in § 3(b)(2) of the Act regarding conversion from non-housing to housing use after January 1, 1969. Contrary to the board’s and the tenants’ assertion, the judge did not rely on that case other than to support a statement of the manifest purpose of the § 3(b)(2) exclusions. To the extent that Elma Realty Co. v. Woods, 169 F.2d 172 (1st Cir. 1948), a case arising under the Federal Emergency Price Control Act of 1942, has any application at all, it is readily distinguishable. There, apartments damaged by fire were repaired to make them fit for habitation, and the units remained subject to rent control even when uninhabited. No new rental units were constructed.
In summary, at the time when the rooming house units ceased to be offered for rent — 1977 — no restriction on unit removal existed. The triggering event of removal occurred through no fault or subterfuge of the owners.
Judgment affirmed.
The board of zoning appeal noted in its decision that the owner had maintained an active lodging house to the date of decision but, in the spring of 1974, the building had suffered heavy fire loss, and the owner faced financing problems “because of the type of tenants attracted to lodging houses.” We infer that the property was in' some fashion repaired after the 1974 loss, but the record offers no specific information.
The board now has what its counsel describes as a “built from the ground up” rule. Regulation 13-01, effective February 18,1988, provides in relevant part: “Rental units the construction of which was completed on or after January [1, 1969,] . . . shall mean the creation of additional housing units by building a housing unit where none exists.”
The judge noted that at the relevant times there was no removal permit requirement for rent-controlled units. See Slade v. McLaughlin, 402 Mass. 432, 433 n.3 (1988).
Each unit had its own kitchen, bathroom, living room and one or two bedrooms.
The decision does recite factual background helpful to full understanding of the related Moller case, which dealt with the question whether certain of the units were subject to rent control.
In Slade v. McLaughlin, supra, some time prior to 1975 the owner deliberately removed a rental unit from the market by not offering it for rent and “therefore... placed [it] outside of the reach of the Act.” Id. at 436.