447 Mass. 408 | Mass. | 2006
Lead Opinion
In 2003, a Superior Court judge (motion judge) declared invalid the second sentence of § 2.46.030(A) of the Revised Ordinances (ordinance) of the city of Springfield (city), which exempted from the authority of the Springfield Historical Commission (commission) “any buildings, structures or properties however owned or controlled by the Springfield Library and Museum Association [(association)] and Roman Catholic Bishop of the Diocese of Springfield [(diocese)].” The motion judge determined that the exemption, based on the identity of a property owner, was not authorized by the Historic Districts Act, G. L. c. 40C (Act). While ruling in favor of the plaintiff, Springfield Preservation Trust, Inc. (trust), with respect to declaratory relief, the motion judge denied the trust’s request for further hearing with respect to any additional remedies. All the defendants appealed (see note 2, supra), and the trust cross-appealed. We transferred the case to this court on our own motion and now conclude that the second sentence of the ordinance is valid to the extent that it applies to property owned or controlled by the diocese or the association at the time the ordinance was adopted. We agree, however, that the second sentence cannot lawfully apply to after-acquired property, and we therefore interpret it as not applying to any such after-acquired property. Here, based on an erroneous interpretation of the ordinance, the commission al
1. Overview of the Act. The Act permits cities and towns to establish historic districts to preserve “distinctive characteristics of buildings and places ... or their architecture.” G. L. c. 40C, § 2. Within a historic district, buildings or structures may not be constructed or altered in a manner that “affects exterior architectural features” without first submitting the proposed construction or alteration for review by the historic district commission.
However, an ordinance or bylaw creating a historic district may provide that the historic district commission shall not have authority over certain “categories of buildings or structures or exterior architectural features,” with the permissible list of such excluded “categories” expressly identified in the Act. G. L. c. 40C, § 8 (a).
Once established, a historic district “may be enlarged or reduced ... in the manner provided for creation of the initial district,” with the historic district commission conducting the investigation, report, and public hearing. Id. If the district is being reduced, notice of the public hearing must be sent to all owners of property in the district. Id. As with the creation of the original district, an ordinance or bylaw “changing the boundaries” of a historic district is not effective until a map setting forth the changed boundaries has been filed with the clerk and recorded in the registry of deeds. Id.
2. Facts and procedural background. In 1972, the city established the Quadrangle-Mattoon Street Historic District (district) by adopting the ordinance.
The ordinance as ultimately adopted established the district with boundaries that would include the Quadrangle, but then, citing G. L. c. 40C, § 8 (b), excluded from the commission’s authority “any buildings, structures or properties however owned or controlled by the [association] and the [diocese].” A map reflecting the district’s boundaries was filed and recorded. That map shows the location of buildings within the district, property lot lines, and names certain of the properties therein (including the library, several museums, St. Michael’s cathedral, St. Joseph’s convent, and the rectory). At no time since the adoption of the ordinance has the city taken the required steps to enlarge or reduce the district.
One Frances M. Donoghue owned a house and land located at 67-69 Chestnut Street (the Donoghue property), a site within the boundaries of the district, and in 1984, she deeded it to the association. In 1991, the commission requested an opinion from the city’s law department with respect to the interpretation of the ordinance’s exclusion of property owned by the association or the diocese, specifically asking whether the Donoghue property had become “exempt” from the commission’s authority as a result of its transfer to the association. The commission’s inquiry noted that if the transfer of property to the association or the diocese rendered that property no longer subject to the commission’s authority, the commission would “repeatedly play ‘musical chairs’ ” with each such transfer and that, hypothetically, the entirety of the district could evade the commission’s review if all the property in it were acquired by either the association or the diocese. Noting that anomaly, the commission asked: “Was this the actual intent of the [ordinance?
The assistant city solicitor who responded to the commission’s inquiry found no guidance from the history of the ordinance itself: “Unfortunately, no explanation of this provision is given or recorded as to the intent or scope of the law, which is why the issue is now clouded for the commission.” Because there was “no recorded history to the [ordinance, and therefore, no known intent or scope,” and no case law interpreting the ordinance, the law department recommended a “literal reading” of the provision exempting property of the association and the diocese. Under that “literal” interpretation, the assistant city solicitor opined that property originally subject to the commission’s authority would cease to be subject to that authority if it were acquired by the association or the diocese, and that property exempt from the commission’s authority on account of ownership by the association or the diocese would become subject to the commission’s authority if it were transferred to another party. Accordingly, the assistant city solicitor advised the commission that the Donoghue property was no longer subject to the commission’s authority.
On January 29, 1998, the association wrote to the chair of the commission indicating that the association intended to allow a third party to relocate the house on the Donoghue property to another site. In that letter, the association expressed the view that the Donoghue property was “covered by the exemption” set forth in the ordinance, and asked the commission to “verify this understanding.” After the commission’s consideration of the matter at a subsequent meeting, the chair wrote to the association on February 9, 1998, confirming that the commission agreed that the exemption in the ordinance extended to the Donoghue property.
On December 20, 2000, the association again wrote to the commission, indicating that it needed a formal vote on the issue and the requisite certificate from the commission in order to obtain permits with respect to the disposition of the house.
On February 8, 2001, the trust, a nonprofit charitable corporation organized under G. L. c. 180,
The association filed a motion to dismiss or, in the alternative, for summary judgment, and the trust filed a cross motion for summary judgment. Following an initial hearing at which various procedural issues were discussed, a judge (not the motion judge) issued an interim order reciting the trust’s acknowledgment at that hearing that the “only claim remaining” in the case was the “alleged illegality” of the ordinance.
In his amended memorandum of decision, the motion judge rejected the defendants’ assertions that the trust’s claim was barred by res judicata, and implicitly rejected the argument that the claim was moot following the demolition of the property. Turning to the merits of the trust’s statutory arguments (see note 10, supra), the motion judge analyzed the relevant statutory provisions of the Act, concluding that the exemption was a “flagrant betrayal of the statutory prnpose” because the exemption did not “further the ends of ‘preservation and protection.’ ” Referencing the 1991 opinion of the city’s assistant solicitor, the motion judge noted that the application of the exemption to after-acquired property made possible the acquisition and demolition of build
After the association and the diocese filed notices of appeal, the trust filed an emergency motion to stay the assembly of the record, arguing that it had only moved for partial summary judgment on the underlying legal issue and that it had preserved its rights with respect to remedies in both its complaint and its motion for partial summary judgment. The trust requested a status conference to address the matter of appropriate remedies. After a hearing, the trust’s motion was denied.
3. Discussion. On appeal, the association and the diocese argue that (1) the trust’s claim was barred by the doctrine of res judicata; (2) the trust’s claim is moot; (3) the exemption was authorized by the Act; and (4) even if the exemption was not authorized, the motion judge improperly severed the exemption from the rest of the ordinance. In its cross appeal, the trust argues that the motion judge erred in not allowing it to pursue further remedies. We consider each argument in turn.
a. Res judicata. The diocese argues that the trust’s claim is barred by the doctrine of res judicata because the trust had unsuccessfully challenged the validity of the ordinance in prior litigation. Springfield Preservation Trust, Inc. v. Roman Catholic Bishop of Springfield, 7 Mass. App. Ct. 895 (1979). In that case, a Superior Court judge had concluded that the ordinance was valid and had allowed the defendants’ motions to dismiss. The plaintiffs appealed from the denial of their claim for declaratory relief that the exemption was invalid. Id. The appeal
b. Mootness. The diocese also argues that because the trust did not appeal from the denial of injunctive relief to prevent the house from being demolished, the trust’s claim is moot, and thus, the motion judge erred in considering the trust’s motion for summary judgment. We disagree. In addition to requesting injunctive relief concerning the demolition, the complaint requested, in pertinent part, a declaration that the ordinance is invalid and void. The demolition of the house did not eliminate the controversy between these parties — the association continues to own the Donoghue property; the diocese and the association
c. Validity of the exemption. Local regulations are presumed valid, unless they exceed the authority conferred by the enabling statute or the Home Rule Amendment (art. 89 of the Amendments to the Massachusetts Constitution). Beard v. Salisbury, 378 Mass. 435, 439-440 (1979). A municipality may have powers not expressly granted in an enabling statute, if they are “essential and not merely convenient to the implementation of express powers conferred by statute.” Greater Boston Real Estate Bd. v. Boston, 397 Mass. 870, 877 (1986). Plaintiffs bear a heavy burden in demonstrating that a local ordinance exceeds statutory authority. Grace v. Brookline, 379 Mass. 43, 49-50 (1979).
The ordinance itself cites § 8 (b) of the Act as authority to enact the exemption. Section 8 (b) allows a historic district commission itself to exempt “categories of exterior architectural features, colors, structures or signs,” including but not limited to the categories itemized in § 8 (a). Here, the commission did not adopt the exemption at issue — it was stated in the ordinance itself — and the exemption of entire buildings and properties goes far beyond an exemption of “exterior architectural features, colors, structures or signs.” Nor can the exemption be authorized by § 8 (a). Although § 8 (a) pertains to exemptions that may be set forth in the ordinance, the list of permissible exemptions is quite specific, and would not cover the exemption at issue here (see note 4, supra).
The association argues that § 10 (i) offers the actual authorization for the exemption. We disagree. Section 10 (i) grants a municipality the authority to give additional powers or
However, the Act gives municipalities unfettered discretion whether to establish a historic district and, if so, what lands, buildings, and structures to include in that district. G. L. c. 40C, § 3. No matter how great its historic or architectural significance, nothing compels a municipality to include a particular property within a historic district, and nothing in the Act limits the permissible reasons for placing a particular property or properties outside the district. Properties may be excluded from a historic district either by the placement of the boundary lines pursuant to § 3, or they may be made exempt from review based on whether they can be seen from particular locations pursuant to § 8 (c). Thus, when a historic district is created, the municipality may vote to exclude or exempt whatever properties it wishes, and its reasons for doing so — i.e., on account of who owns a particular property — are beyond review.
Here, the initial proposals for the district included a proposal for different boundaries (which would have excluded the entire Quadrangle, and the association’s properties located in the Quadrangle) and a proposal with limitations based on lines of sight (which would also have exempted much of the Quadrangle and the association’s properties). Ultimately, the city council determined that it did not want the district to include specific properties, namely, the specific properties owned or controlled by the diocese or the association. Those properties could unquestionably have been excluded from the district or from the commission’s authority by either drawing irregular boundaries or by crafting complex sight-line determinations and measurements. In short, the city council’s determination that it did not want these properties to be in the district or subject to the commission’s authority was a perfectly lawful one, and the statute permitted the district to be created in a fashion that reflected that determination.
The trust correctly points out that the map of the district, as filed and recorded, delineates the physical boundaries of the district, and that properties of the diocese and the association are within those boundaries. While certain properties of the association and the diocese are identified on that map with titles (e.g., the “Museum of Fine Arts,” “St. Michael’s Cathedral”), making it readily determinable that they would be covered by the exemption, the exemption itself is not reflected on the map in any fashion, nor, from titles alone, could one necessarily identify the entirety of properties owned or controlled by the diocese or the association. In that sense, the map does not completely and accurately reflect the terms of the ordinance.
That it does not do so, however, does not operate to override or invalidate the exemption. To begin with, the map of a historic district will not necessarily reflect all of the pertinent exclusions — for example, if portions of a district have been excluded from a historic district commission’s authority pursuant to § 8 (c) (based on the fact that architectural features may not be seen from identified locations), nothing on the map of the district will necessarily reflect that certain buildings or properties have been exempted from review by the historic district commission.
Moreover, to the extent that a map is inaccurate or incomplete, it does not appear that the map would trump the terms of the ordinance itself. Indeed, the filing and recording of a map is a prerequisite to the effectiveness of the ordinance under § 3, and it could be argued that the consequence of filing and recording
While we conclude that the identifiable properties owned or controlled by the association or the diocese as of the date of the 1972 ordinance were lawfully excluded, we agree with the motion judge that an automatic exclusion of properties based upon their subsequent acquisition by either the association or the diocese does not comport with the Act. The Act provides that a historic district may not be reduced in size without following the steps required for the original creation of the district, i.e., an
The question whether the exclusion should be interpreted to apply to property subsequently acquired by the diocese or the association is one that has vexed the commission itself for many years. And, from the first of the commission’s inquiries to the city’s law department in 1991, the law department has acknowledged that that question of interpretation is a difficult one, unassisted by any record of the city council’s intent at the time the ordinance was passed, and has therefore recommended a purely “literal” interpretation of the wording. According to the city’s law department, that “literal” interpretation of the exclusion has the effect of extending it to after-acquired property. We reject that interpretation for several reasons.
If the city council had intended that the exclusion apply to after-acquired property, it could easily have said so. As originally worded back in 1972, the exclusion applied to property “however owned or controlled by” the association or the diocese. It did not specify whether it encompassed property “now” so owned or controlled, or whether it encompassed property “now or hereafter” so owned or controlled. Nor does the term “however” equate with “whenever” — rather, in context, “however owned or controlled” refers to control or ownership in either a direct or indirect form. It does not add a temporal component to the exclusion. Thus, the wording of the exclusion is ambiguous on this point, as its words may logically refer only to property that was in ownership or control of the association or the diocese at the time, or it may also refer to and include property that later becomes subject to such ownership or control. Accordingly, we must resolve that ambiguity.
Just as we interpret statutes in a manner that avoids rendering
Similarly, where a literal reading of the terms of a statute or municipal bylaw would lead to an absurd or unreasonable result, we reject that literal interpretation in favor of one that comports with the purpose of those terms. See Champigny v. Commonwealth, 422 Mass. 249, 251 (1996), quoting Attorney Gen. v. School Comm. of Essex, 387 Mass. 326, 336 (1982); Green v. Board of Appeal of Norwood, 358 Mass. 253, 258 (1970); Lehan v. North Main St. Garage, 212 Mass. 547, 550 (1942). Cf. Greater Boston Real Estate Bd. v. Boston, 428 Mass. 797, 802, 804 (1999) (court will not rewrite offending provision where invalid ordinance provisions too embedded to allow severance from valid provisions; redrafting ordinance is task for municipality). Here, as the commission observed long ago, applying the exclusion based on the transfers of property subsequent to the adoption of the ordinance makes the exercise of its authority a game of “musical chairs,” and could lead to the elimination of its authority anywhere in the district, effectively abolishing the district in its entirety. This is indeed an absurd and unreasonable result, and the commission long ago proffered the more logical interpretation that would avoid such a result, i.e., interpreting the exemption to apply only to property owned or controlled by the association or the diocese at the time the ordinance was adopted.
We resolve the ambiguity in the exclusion in a manner that avoids violating the Act and avoids absurd and unreasonable consequences, and thus conclude that it applies only to properties owned or controlled by the association or the diocese at the time the ordinance was adopted, unaffected by any later transfers of ownership or control to or from the association or the diocese.
d. Trust’s cross appeal. The trust claims that the motion judge erred in denying its request for further hearings on the issue of remedies, arguing that in addition to seeking a preliminary injunction to prevent the demolition of the house and a declaration that the ordinance was invalid, its complaint also requested “such other and further relief as this Court deems just and proper.” A fair reading of the transcript of the hearing before the judge who issued the interim order narrowing the legal issues to be considered shows that the trust did not waive its rights to request further remedies. While it acknowledged that the only remaining legal issue was its claim that the exemption was invalid, it did not thereby state or intimate that it would only seek a declaration to that effect. To the contrary, counsel for the trust noted the concern that the association still owned the Donoghue property, that the property was not exempt, and that an injunction with respect to future construction on that property might be appropriate. The judge stated that he would “issue an interim order that acknowledges some of the things that have been said here and the manner in which the issues have been limited” (emphasis added), and thereafter issued the interim order reflecting the trust’s agreement that its only “claim” was “the alleged illegality” of the exclusion.
Subsequently, in its motion for partial summary judgment,
At this juncture, the trust has prevailed in part on that claim, in that the exemption may only be applied to property owned or controlled by the association or the diocese at the time of the 1972 adoption of the ordinance, and not to after-acquired property like the Donoghue property. The Act makes clear that the fashioning of any remedies for violations of the Act, or for erroneous rulings by the commission, is a matter of equity, G. L. c. 40C, §§ 12A and 13, and is thus subject to the full panoply of equitable considerations and equitable defenses. We express no opinion as to what remedies (if any) would be equitable and appropriate at this juncture, or what equitable considerations or defenses might justify the denial of any further relief or remedy. We agree, however, that the trust has not waived its right to pursue remedies, and that the motion judge erred in cutting off the trust’s right to be heard on its request for remedies beyond the declaration itself. And, now that we have interpreted the ordinance in a manner different from the motion judge, and have mled that the exclusion so interpreted is valid, all parties should be given the opportunity to address the issue of what remedial steps (if any) should equitably be ordered to implement that interpretation and enforce the ordinance as so interpreted.
4. Conclusion. For the reasons set forth above, we conclude that the second sentence of § 2.46.030(A) of the Revised Ordinances of the city of Springfield applies only to property however owned or controlled by the Springfield Library and Museums Association, Inc., or the bishop of the Roman Catholic diocese of Springfield at the time the ordinance was adopted;
So ordered.
following its review, a historic district commission may issue a certificate of appropriateness, nonapplicability, or hardship with respect to the proposed construction or alteration. G. L. c. 40C, § 6.
Specifically, an ordinance may exclude from review temporary structures or signs, terraces, walks, driveways, sidewalks, walls, fences, storm doors and windows, screens, window air conditioners, lighting fixtures, antennae, color of paint, color of roofing materials, signs of a certain size, and the reconstruction of substantially similar exterior design of features destroyed by fire, storm, or other disaster. G. L. c. 40C, § 8 (a) (l)-(8).
The ordinance also established a historic district commission, as well as other historic districts.
A demolition permit for a building in a historic district may not be issued until the applicant has obtained a certificate of appropriateness, a certificate of
The city solicitor’s letter added that although the ordinance cited G. L. c. 40C, § 8 (b), as the authority for the exemption, the actual authority for the exemption stemmed from the grant of powers and authority set forth in G. L. c. 40C, § 10 (z) (“The commission shall have, in addition to the powers, authority and duties granted to it by this act, such other powers, authority and duties as may be delegated or assigned to it from time to time by vote of the city council or town meeting”).
One of the purposes of the trust is the preservation of the city’s historic property.
The original complaint included an additional claim that the certificate of nonapplicability had been issued without the requisite majority vote. That claim was waived, as reflected in the interim order.
The original compliant had also claimed that the ordinance exemption denied the plaintiffs (see note 1, supra) equal protection of the laws. In its motion for summary judgment, the trust expressly “abandoned the claim that [the] ordinance is unconstitutional.” Its remaining claim that the ordinance exemption was invalid was based exclusively on the theory that the exemption was not authorized by (and was indeed violative of) G. L. c. 40C. Thus, by the time of the trust’s summary judgment motion, the sole ground of “alleged illegality” was that the ordinance did not comply with the enabling statute.
Specifically, the trust had failed to join the city of Springfield as a necessary party and to notify the Attorney General of the suit, as required by G. L. c. 231 A, § 8. Springfield Preservation Trust, Inc. v. Roman Catholic Bishop of Springfield, 7 Mass. App. Ct. 895 (1979).
We also note that the prior litigation concerned the demolition of St. Joseph’s convent, property owned or controlled by the diocese at the time the district was created in 1972. That case did not address, even before the lower court, whether the ordinance should be interpreted to apply to property acquired by the diocese or the association after the adoption of the ordinance, or whether such an interpretation of the ordinance would violate the Act. As discussed infra, the distinction between property owned by the diocese or the association at the time the ordinance was adopted and property later acquired by those parties is a crucial one.
General Laws c. 40C, § 10 (z), states: “The commission shall have, in addition to the powers, authority and duties granted to it by this act, such other powers, authority and duties as may be delegated or assigned to it from time to time by vote of the city council or town meeting.”
The dissent misconstrues the significance of the map by suggesting that, once properties are “included” on the map, the ordinance may not say anything contrary to the map. See post at 426, 428, 429. The dissent has it backward: a historic district is “establish[ed]” “by ordinance or by-law adopted by two-thirds vote” (G. L. c. 40C, § 3) — it is not created or established by the map. The filing and recording of a map is a prerequisite to making the “ordinance or by-law creating” a historic district “effective.” Id. Whatever the map says, we must give “effect” to the “ordinance or by-law,” and it is the terms of the “ordinance or by-law” that define and govern the historic district they have created. Errors or omissions in the map cannot operate to rewrite the ordinance or to place in the historic district properties that were not voted to be part of the historic district. Using the history of this ordinance as an example, suppose that the city council had voted in favor of the option that did not include the Quadrangle within the historic district, but that someone had then mistakenly filed and recorded the wrong map from the option that did include the Quadrangle. We would surely not conclude that the Quadrangle had thereby become part of the historic district. Unless there is the requisite two-thirds vote for an ordinance that places property in a historic district, property does not become part of a historic district merely by its inclusion on a map that is contrary to the terms of the ordinance.
Nor, for that matter, may property that is not in a historic district be added to the district without following these steps, as the requirements of § 3 also pertain to any enlargement of a historic district.
The dissent, while acknowledging that the ordinance is ambiguous,
Concurrence in Part
(concurring in part and dissenting in part, with whom Spina and Co win, JJ., join). I concur in the court’s conclusion that Springfield Preservation Trust, Inc., is entitled to a hearing on further remedies. I write separately because I disagree with the court’s conclusion that the exemption contained in § 2.46.030(A) of the Revised Ordinances of the city of Springfield (ordinance) is valid for property owned by the Springfield Library and Museums Association, Inc. (association), and the bishop of the Roman Catholic diocese of Springfield (diocese) at the time the Quadrangle-Mattoon Street Historic District (district) was created in 1972. Rather, I believe that the court should have affirmed the motion judge’s decision to strike the entire exemption as contained in the second sentence of the ordinance.
A historic district must be determined by the legislative branch of a municipality through the creation of a map depicting the boundaries of the district. G. L. c. 40C, § 3. Contrary to the court’s holding today, there is nothing in the statute that states that a municipality can include properties within a map of a historic district yet exempt them through the language of an ordinance, as was done here. I believe that the city exceeded its authority under the Historic District Act, G. L. c. 40C (Act), when it created the exemption without excluding those properties from the requisite map. See Beard v. Salisbury, 378 Mass. 435, 439-440 (1979). See also Greater Boston Real Estate Bd. v. Boston, 397 Mass. 870, 877 (1986) (municipality may have powers not expressly granted in enabling statute, if they are “essential and not merely convenient to the implementation of express powers conferred by statute”).
The ordinance itself cites § 8 (b) of the Act as authority to enact the exemption. I agree with the motion judge that § 8 (b)
The association argues that § 10 (z) of the Act offers the actual authorization for the exemption. I disagree. As the court notes, ante at 418-419, § 10 (z) grants a municipality the authority to increase the power or duties of a historic district commission beyond those set forth in the statute. However, because the exemption here excludes property within the district from the power of the Springfield Historical Commission (commission) to review, it is a reduction of the power and duties of the commission, not an increase.
The association and the diocese correctly point out that the Act gives municipalities the discretion whether to establish a historic district and to determine its composition. However, there is no basis to their arguments that the statute grants municipalities broad discretion to create the exemption based on ownership or control. Their argument is based on the selective focus on individual words of the statute, particularly in §§ 3 and 8, which are taken out of context.
“[The Act] grants the [c]ity the power to create historic districts, as well as the power to exempt from the requirements of those districts one or more of a finite set of categories. The power to exempt categories based on ownership or control is not explicitly granted, nor is it necessary to carry out the express powers conferred by the . . . Act. The [c]ity can create, reduce, expand, and otherwise maintain its historic districts without the power to exempt based on ownership or control. . . . [Thus,] the*428 failure to infer this particular power from the ones expressly granted would not impair the [c]ity in its exercise of authority, nor would it decrease the effectiveness or longevity of the [c]ity’s preservation efforts.”
See Greater Boston Real Estate Bd. v. Boston, supra at 878 (invaliding ordinance essentially precluding condominium conversion as not essential to carrying out rent control enabling statute). Cf. Flynn v. Cambridge, 383 Mass. 152, 158-159 (1981) (city had implied power to regulate removal of rental units from housing market pursuant to statute allowing rent control).
What is critical here is that property owned by the association and the diocese are included within the map delineating the boundaries of the historic district, as was the property that was demolished. Once a historic district is created, all property within the district is subject to the procedures for alteration contained in the Act, e.g., report, study, notice, and public hearing. G. L. c. 40C, § 3. As the motion judge stated, these procedures show that the Legislature recognized “that any departure from the [Act’s] guiding purpose of ‘preservation and protection’ must be undertaken with care and deliberation. The exemptions [here] . . . permit the [district to be whittled away with almost no deliberation whatsoever (simply by receiving a certificate of non-applicability from the [commission), and with no investigation, report, or public hearing. . . . Permitting the reduction of the [district by such casual, near-ministerial means violates both the letter of § 3 and the purpose of the [Act].”
The association and the diocese argue that case law, particularly Opinion of the Justices, 333 Mass. 783 (1955), and Opinion of the Justices, 333 Mass. 773 (1955), supports their position that the statute allows exemptions to be based on ownership or control. These advisory opinions are not apt. They were decided before G. L. c. 40C was enacted, and in each
However, even assuming that the statute does not prohibit municipalities from including properties on an official historic district map and then excluding those same properties through the language of an ordinance, I still conclude that this particular exemption should be struck. Validating the exemption requires the court implicitly to add (or substitute) missing qualifiers to the phrase “however owned or controlled” to the exemption, to reach the conclusion that the city wanted the exemption to the apply to the property the association and diocese owned in 1972. As the court concedes, however, there is no record of what the city council intended by the language of the exemption as written in 1972, and the words “however owned or controlled” are ambiguous. Ante at 422. If the city had wanted the ordinance to apply to those properties owned by the association and diocese in 1972, it easily could have provided language (such as the word “presently”) indicating that intent.
We have declined to do such rewriting of ordinances in the
Given the statutory scheme as I read it, the lack of any indication of the city’s intent concerning the exemption, the ambiguity in the language of the exemption itself, and our past case law, I cannot indorse the court’s interpretation of the exemption. Therefore, I respectfully dissent from that part of the court’s opinion.
I likewise reject, as without merit, the association’s argument that the “unfettered ability of the [association] to administer its properties correlates with” the statute’s purpose. The association would have us selectively focus on the words in the first part of G. L. c. 40C, § 2, which states that the statute’s purpose is to “promote the educational, cultural, economic and general welfare of the public,” and ignore the clarifying clause that follows directly thereafter, “through the preservation and protection of the distinctive characteristics of buildings and places.”
The motion judge also noted that the certificate of nonapplicability was issued “despite the fact that only two of the [c]ommission’s seven members voted to issue the certificate.” General Laws c. 40C, § 11, requires a vote of a majority of commission members to issue a certificate.