29 Mass. App. Ct. 60 | Mass. App. Ct. | 1990
Lead Opinion
The plaintiffs appeal from a judgment upholding a decision of the Cambridge rent control board to issue to the landlord, Massachusetts Institute of Technology (M.I.T.), removal permits for twelve units of rent-controlled housing on Blanche and Green Streets in Cambridge. The removal permits are sought as part of a renewal project of major scope known as the University Park Development. The applications were initially filed four years ago
The dispute concerning the scope of the hearings crystallized early in the proceedings, when the board refused the tenants’ application for enforcement of subpoenas duces te-cum requiring M.I.T. to produce records concerning “the impact of [M.I.T.’s proposed] University Park Development as a whole on the availability of housing for low and moderate income people and elders on fixed income and aggravation of the housing shortage” in Cambridge. This ruling (the “August 29 ruling”) reflected the board’s view that the larger impact of the development on Cambridge’s housing market was more properly the focus of other boards (such as the planning board, the city council, and so forth) and that it would confine its inquiry to the effect of the development on the supply in Cambridge of rent-controlled dwelling units.
We back up to describe the circumstances more fully. In 1986 M.I.T., in connection with a Chicago-based developer, Forest City Rental Properties Corporation, proposed a twenty-seven acre development (comprising office buildings, a retail market area, a hotel and conference center, research and development space, housing, and parking) on a site in
Rent control had been authorized by the Legislature and approved by Cambridge in 1970 in response to a severe housing shortage that was causing inflationary increases in the rental market. Ten years of rent control led to a decline in the supply of controlled rental housing,
The proposed hotel and conference center was to occupy a block at Blanche and Green Streets. Clearance of the block required the demolition or removal of five residences owned by M.I.T. on those streets. The five residences contained the twelve rental units that were the subject of M.I.T.’s applications for removal permits. Of the twelve units, eight were vacant. From around 1978 or 1979, apparently in anticipation of the development project, M.I.T. had neglected the properties and not filled (or perhaps, even, encouraged) vacancies.
In considering whether to grant removal permits, the board is required by § 1 (d) of the removal ordinance to consider three factors:
“(1) the benefits to the persons sought to be protected by the Act and by this section,
*63 “(2) the hardships imposed on the tenants residing in the unit proposed to be removed, including any mitigating provisions made by the applicant, and
“(3) any aggravation of the shortage of decent rental housing accommodations, especially for families of low and moderate income and elderly people on fixed incomes, which may result from the removal.”
M.I.T. proposed a specific plan to respond to the concerns of § 1(d): It would physically move a Green Street residence, containing three of the controlled rent units — all of which have tenants — to a comparably sized lot about 1,000 feet away; and it would move a Blanche Street residence containing three of the rent-controlled units — only one of which has a tenant — to a somewhat larger (although less attractively located) lot about 900 feet away. Each of these residences would be renovated, and M.I.T. would bear the entire cost of moving and renovation without seeking to have the cost reflected in the controlled rent levels ($129 to $138 per month). For each of the four tenants dislocated during the moving work (they were all single), M.I.T. would meet the cost of temporary housing (including kennels for pets) as well as moving expenses and a daily per diem rate ($25 to $40 per day) for incidentals. Three Blanche Street residences — each containing two vacant rent-controlled units — would be demolished, and M.I.T. would replace them with six similarly sized rental units from its stock of exempt rental housing (these are so-called “affiliate” rental units, discussed in more detail below), transferring the present Blanche Street rents ($108 to $167 per month) to the six replacement units and accepting tenants designated by the Cambridge Housing Authority. In addition, M.I.T. would construct six units of new low-to-moderate income housing at Brookline and Pacific Streets, on the perimeter of the development, to be rented at market rates.
At the extensive hearings on the applications the board’s hearing examiner received evidence bearing directly on the hardships to each of the four tenants, the duration of the va-
The hearing examiner recommended that the board deny the removal permits. He perceived in M.I.T.’s relocation plan no “benefit to the persons sought to be protected by the [rent control law]” (§ l[d][l]) to offset “the hardships imposed on the tenants residing in the unit[s] proposed to be removed” (§ I [d] [2]). The exchange of six exempt units for the six units to be demolished would not effect an increase in the number of low-income units. The living space of the twelve rent-controlled units would remain about the same, as would rents. The renovations to the dilapidated units should not count as a benefit, he reasoned, because work along those lines was mandated independently by State and local codes. The six low-to-moderate income market-rate units at Brook-line and Pacific Streets and the additional 250 promised housing units within the development did not count as a benefit for two reasons: first, those parts of the development project could be constructed without reference to the grant or denial of the removal permits (only the hotel and conference center were to occupy the block at Blanche and Green Streets); and, second, the additions to the housing supply logically should not count as a benefit without reference to the increased demand for housing that would be generated by the development, as to which evidence had been excluded under the August 29 ruling.
As to the third factor listed in the ordinance (“any aggravation of the shortage of decent rental housing accommoda-
On March 16, 1988, the board at a public hearing considered the report and recommendations of the hearing examiner.
On March 25, 1988, the board announced its decision. By a three-to-two vote, it adopted the hearing examiner’s findings (except for a portion of finding 56) and his recommendation to deny the removal permits. By a further three-to-two vote, however, the board decided to issue the removal permits subject to several conditions. The most important for purposes of this appeal was condition 5:
“M.I.T. shall within one year of the date of its acceptance of the conditions of this notice of ruling build six new housing units on the corner of Brookline and Pacific Streets. These units shall contain at least two bedrooms and shall be at least as large as the six units to be demolished on Blanche Street. These units will be rent-controlled units for so long as rent control exists within the City of Cambridge, and the legal maximum rent for each unit shall be set within the range of the present median rent range for four-to-five room unheated units, which range is $325 to $350 per month. These units shall be rented to low and moderate income persons identified by the. Cambridge Housing Authority.”
M.I.T. accepted the conditions, and on April 15, 1988, the board by a further ruling ordered issuance of the permits subject to the conditions detailed on March 25. The tenants appealed to the Superior Court.
In retrospect, the form of the March 25, 1988, ruling was unfortunate. It led to a year of delay. The appeal came on for hearing in the autumn of 1988. A judge of the Superior
The board took the position on remand that the effect of the 250 new units to alleviate the housing shortage had played no part whatever in its earlier decision,
A judge of the Superior Court affirmed this decision on December 21, 1989, and the plaintiffs have appealed from the resulting judgment.
1. Scope of the hearings. When the rent control board initially determined that the general effect of the University Park Development on the Cambridge housing market was irrelevant to its decision on the twelve removal applications (the August 29 ruling), it implicitly based its decision on the scope of its role under § 1(d) of the removal ordinance, rather than on the alternate basis that arose from the findings of the hearing examiner (i.e., that the development would proceed whether the removal permits were issued or not, all that was involved being the precise location of the hotel-conference center). The board’s determination to so limit its consideration was not erroneous in any event.
The board did not err in construing the scope of its inquiry under § 1(d) in accordance with the over-all objective of the removal ordinance to mitigate further depletion in the numbers of rent-controlled dwelling units. Compare Martin v. Rent Control Bd. of Cambridge, 19 Mass. App. Ct. 745, 748-749 (1985). The tenants’ more expansive view of the board’s role would empower the board to veto any development that, in its view, has a potential to aggravate the housing shortage — provided, that is, that the development necessitated removal of a rent-controlled unit, thereby giving the board jurisdiction. Unless such a unit were involved, the board would clearly have no say in plans to bring new business or industrial facilities into Cambridge, no matter how predictable or drastic the impact on the demand for housing.
The tenants argue that the words of § 1(d)(3), “aggravation of the shortage of decent rental housing accommodations,” compel the board to undertake inquiry into the total effect of the development plan on the Cambridge housing market. But those words are limited by the words that follow, “which may result from the removar (emphasis supplied). The focus is thus on the effect of the removals and not on the effects of the total development plan of which the removals are a part. The board’s interpretation of its role was, thus, solidly grounded in the words of § 1(d) as well as the over-all objective of the removal ordinance. As such, its interpretation is entitled to deference from a reviewing court. Polednak v. Rent Control Bd. of Cambridge, 397 Mass. 854, 858 (1986). H.N. Gorin & Leeder Mgmt. Co. v. Rent Control Bd. of Cambridge, 18 Mass. App. Ct. 272, 276 (1984). Amari v. Rent Control Bd. of Cambridge, 21 Mass. App. Ct. at 604-605. The judge correctly sustained the board’s decision to confine its inquiry to the effects of the removals on the tenants involved and on preventing or minimizing the depletion of controlled rental units.
2. The “affiliate” units. The Cambridge rent control act contains an exemption for “rental units in any . . . college or school dormitory operated exclusively for . . . educational purposes.” St. 1976, c. 36, § 3(6)(5). In 1972 the rent con
The tenants, contending that the removal permit ordinance was self-executing (see, e.g., Lamb v. Rent Control Bd. of Cambridge, 17 Mass. App. Ct. 1038, 1039 [1984]), offered evidence that M.I.T. had converted thirty-seven controlled units to affiliate use without removal permits between August 10, 1979, the effective date of the removal permit ordinance, and the adoption of regulation 48-07 in 1984. The matter was germane, the tenants argued, because M.I.T.’s proposal treated the restoration of affiliate units to rent control as if it were a concession.
The status of affiliate housing generally was a collateral issue; the board was not required to resolve it in this removal permit proceeding. At the heart of the tenants’ position is the assumption that, to be eligible for removal permits, M.I.T. must show a net benefit to persons intended to be protected by the ordinance.
3. Recusal of the chairman. Relying on cases that have little if any similarity to this one,
Members of administrative boards combine, in varying degree, three roles: those of fact-finder, regulator, and prosecutor. As fact-finders they are expected to act without bias, on the basis of evidence adduced at a hearing; but as regulators, entrusted with the administration of a specialized area of law, they are expected to bring to adjudication extensive knowledge of conditions in the community to which that law applies and to fashion (by decision or by regulation) practical policies to further the basic objectives of that law. As prosecutors they are necessarily partisan, empowered to investigate and to proceed against violations of the law; but, like their counterparts in criminal law enforcement, they are vested with discretion that, properly used, brings fairness and common sense to the application of the law. In adjudication board members are expected to act without self-interest or personal animus, but they are not expected to be free from preconceptions grounded in the policies of the law they administer or from knowledge of conditions in the community to which that law applies. The procedural law recognizes this multiplicity of roles, by making members of adjudicatory boards, unlike trial judges, parties to appeals from their own decisions.
Here the chairman of the rent control board suggested a modification to the plan that would, in her mind, put to rest any concern raised by the hearing examiner’s findings that the removals would operate to the detriment of persons sought to be protected by the ordinance or would aggravate the shortage of controlled rental housing. The suggestion was grounded solely in the policy of the rent control law. The parties were given ample opportunity to comment on the suggestion, at least after remand. There was no impropriety by the chairman, and, especially in light of the remand, there
Other points separately touched on by the tenants either are covered by what has been said above or are without sufficient merit to require discussion.
Judgment affirmed.
The applications for the removal permits for the nine units of Blanche Street housing were filed in March, 1986. Those for the three units of Green Street housing were filed about a year later.
Rent control had come to Cambridge under St. 1970, c. 842, and applied generally to dwelling units constructed before January 1, 1969.
The first section of the removal permit ordinance (No. 966) declared that over ten percent of controlled rental units that existed in 1970 had by 1981 been removed from the housing market and that the vacancy rate among those that remained was less than one percent.
More explanation of affiliate housing appears infra at 70-72.
The record does not contain a transcript of the hearing, but an affidavit was furnished by one of the tenants, William Noble, detailing what he regarded as procedural irregularities in the hearing. The quotes were taken from tape recordings, and it is not suggested that they were inaccurate. We have assumed the truth of the affidavit, although it is not pivotal to our decision.
The board had, it pointed out, adopted the hearing examiner’s findings that the new housing construction was not dependent on issuance of the removal permits.
A single justice of this court expedited the hearing of the appeal but denied a stay of the judgment. We are informed that the three vacant Blanche Street residences marked for demolition have now been demolished, but M.I.T. has acknowledged its obligation to replace them should the judgment after appeal so require.
We do not suggest that the board acted improperly in requiring M.I.T. to subject the six new units at Brookline and Pacific Streets-to rent control as a condition of issuance of the permits. The board there acted within the confines of the plan, based on findings that the plan would otherwise deplete the latent supply of rent-controlled housing (by using up affiliate units), and its proposed condition was commensurate to the harmful impact. Conditions, to be valid, must be reasonable in degree, and they must be related to the potential evils that led to the creation of the permit-granting power. Compare Middlesex & Boston St. Ry. v. Aldermen of Newton, 371 Mass. 849, 851-853 (1977), and Lovaco, Inc. v. Zoning Bd. of Appeals of Attleboro, 23 Mass. App. Ct. 239, 241-243 (1986). By that standard condition 5 was not inappropriate.
In the words of the tenants’ brief (at 42): “The Ordinance requires a ‘benefit’ and not just an even trade.”
Not separately discussed is the tenants’ argument that the board should have exacted a penalty from M.I.T. to punish it for having failed to maintain the controlled rental units on Blanche Street and for having failed to fill (or, in the tenants’ words, “refused to fill”) vacancies. This matter also lay in the sound discretion of the board (which in its decision pointed out that the failure to maintain the Blanche Street units was the subject of another proceeding still pending).
Preston v. Peck, 271 Mass. 159 (1930)(judge announces his finding on the contested issue of fact before hearing the evidence), Ott v. Board of Registration in Medicine, 276 Mass. 566 (1931)(board members make sarcastic and insulting comments towards attorney for physician), and Beauregard v. Dailey, 294 Mass. 315, 324-325 (1936)(involving a master who was acting as attorney, in unrelated proceedings, for one of the parties in the case heard by him).
Concurrence Opinion
(concurring). I concur in the majority opinion. I write separately in this instance, however, not because of the manners and mores of those involved in commerce, see, e.g., Doliner v. Brown, 21 Mass. App. Ct. 692, 699 (1986) (Brown, J., concurring in part and dissenting in part), which do here seem to warrant a firm rebuke,
It appears in this case that the giant — M.I.T. — held the cards, but nevertheless played the game in a reasonable manner. In my view of the case, it seems unfortunate that the interests of the individual tenants (only two of whom are parties to this appeal) may have become subordinate to the interests of the groups who were given “party status” by the board in these proceedings. Cf. N.A.A.C.P. v. Button, 371 U.S. 415, 462 (1963) (Harlan, J., dissenting). Perhaps greater gains could have been obtained for the individual tenants if both (or all) of them had been represented by counsel who were not also representing the neighborhood and city-wide groups. See generally Bell, Serving Two Masters: Integration Ideals and Client Interest In School Desegregation Litigation, 85 Yale L.J. 470, 488-516 (1976).
If M.I.T. did intend to circumvent the purposes of the Rent Control Law (i.e., by allowing its properties to become substandard and stay vacant), I am obliged to indicate my disgust and disappointment.