*1
Boston Edison Co. Authority. Redevelopment Redevelopment Company vs. Boston Boston Edison Authority & others. 1977. 21,
Suffolk. March 1977. December 8, & Hennessey, Present: G.J., Quirico, Liacos, Abrams, JJ. Practice,
Redevelopment Land. Administrative Matter. Public Board. Civil, review, Law, Extraordinary Equal pro- Parties. Constitutional Jurisdiction, Civil, land, try Redevelopment tection of laws. To title Contract, Redevelopment office. Boston Rede- Authority. Words, velopment Zoning. “Project,” of land. “Person aggrieved,” utility,” “Public “Public use and benefit.” general principle expected competition that harm from is insufficient plaintiff applicable to confer on a an electric com- standing pany’s challenge Redevelopment Authority’s approval Roston plant the construction of an electric as an renewal generating urban approval project since would cause a direct and ascer- tainable electric company eliminating group loss to the con- company. J., sumers from the market available to [43-44] Quirico, concurring in the result. direct, substantial, An electric company would suffer a and ascer- Authority’s tainable as the result of the loss “person of a was a . . aggrieved” meaning . within the J., concurring St. c. in the result. [44-46] Quirico, In an action in nature of certiorari a decision made challenging Redevelopment Authority pursuant statutory powers
Roston to its 121A, under St. review scope judicial and G. L. c. authority’s was whether there was support substantial evidence to J., decision. in the result. concurring [47-54] Quirico, A corporation’s proposed energy plant construction of an and distribution facility only “project” intended serve members was a within the its [54-57]; of St. G. L. c. 121A the construc- meaning tion violate authorizing plan of c. 652 and c. 121A as such a would not it general principles public utility policy nor would conflict with [54-55]; facility proposed G. L. c. 87 and 88 nor would the §§ [56-57], of c. “public utility" meaning constitute a within
Boston Edison Co. u. Boston Redevelopment Authority. *2 A, 1, The construction of G. c.L. corporation authorize a to con- § struct an energy plant and distribution facility for the use of its mem- deny bers did not an electric company equal protection of the laws by the fact that the c. 121A project would receive tax concessions and might be exempt governmental regulation. [57-58] A determination by Boston Redevelopment Authority that the site of a
proposed project was a decadent or sub-standard area within the 121A, 1, meaning of G. L. c. was supported by substantial evidence. § [58-60] proposed
The construction in a decadent energy plant area and facility distribution by medical, use twelve institutions engaged educational, and charitable functions “public constituted a use and 1960, 652, benefit” within the meaning of St. c. 13. [60-62] Substantial supported evidence a finding by the Boston Redevelopment Authority proposed medical, that a power plant to service various edu- cational, and charitable institutions was a commercial and institu- tional use and not an industrial use. [65-67] Substantial supported evidence a finding by the Boston Redevelopment
Authority that the grant of deviations from the Boston Zoning Code a corporation for the construction of a power plant to be used serv- medical, educational, ice various and charitable institutions would not substantially derogate from the intent and purposes zoning code within the meaning [63-65; of St. c. 13. 67-70] There was no error in a determination the Boston Authority pursuant to St. c. that construction of a medical, educational, power plant to service various in- charitable
stitutions within the Fenway Urban Renewal Area would further the goals objectives of the Fenway Urban Renewal Plan and would not conflict with the city’s Master Plan. [70-72] The approval by the Boston Redevelopment Authority of a project pur-
suant to St. and G. L. c. 121A was not rendered invalid by the applicant’s failure to disclose on its application the amount of additional payments it would make to the city under the provisions 121A, 6A, G. L. c. where the approximate amount of such payments date, disclosed at a hearing and the authority was at a later but prior to the approval,-informed specific amount. [72-74] A plaintiff in an action to challenge a decision of the Redevelop- Boston Authority
ment could not attack the the ground decision on terms of certain -members of the authority expired prior had vote; public right a officer’s to office collaterally. cannot attacked [74-76]
In an action challenging a decision of the Boston Redevelopment Author-
ity, 1960, 652, there was no merit to the s claim plaintiff that St. G. L. c. 121A were unconstitutionally vague and overbroad. [76] Edison Co. Boston Redevelopment Authority. Court on commenced in Superior Civil action 13, January The case was heard on motion to McNaught, J., dismiss. Court for direct Supreme request granted Judicial review.
appellate David R. Pokross H. with for the (Robert Quinn him) plaintiff.
Robert W. Meserve for President and Fellows of Harvard & others Assistant College Lonergan, General (Edward J. Counsel, for Boston Redevelopment Authority, him). *3 Pursuant to St. the c. plain- J. Abrams, tiff Boston Edison instituted a Company (Edison) proceed- in the nature of in certiorari the ing Court to Superior review action taken the defendant Boston by Redevopment under its Authority as set out at (BRA) statutory powers St. and G. L. c. 121A. The action specific which Edison attacks is the BRA’s of a plan pro- — the posed by defendants remaining Citicorp Trans- (1) Inc.; lease, Lashman, L. Edward (2) the Medical Jr.; (3) Area Service Corporation and the President (MASCO); (4) and Fellows of Harvard the College (Harvard) (collectively — for the construction of Applicants) an electric generating and steam an office power plant, and related building, fa- cilities an urban renewal A Court project. Superior judge dismiss, heard on two to one arguments motions filed the by BRA and the other Each of the by motions Applicants. to dismiss that Edison lacked to maintain alleged standing its cause of action. Both motions also in substance alleged failed to a claim on complaint state which relief could be The denied the motions granted. judge challenging Edison’s Thereafter, after full standing. a hearing, rendered a judge thorough well-reasoned opinion which at its conclusion ordered that a judgment dismissing Edison’s complaint BRA’s ac- (and thereby affirming should be entered. Edison filed its tion) claim of duly ap- We allowed Edison’s peal. for direct application appellate review. The did not defendants take a cross from appeal
Boston Edison Co. Boston Redevelopment Authority. adverse on the issue. We affirm ruling standing judge’s decision Court judge. Superior is The facts are as follows. MASCO a charitable corpora- medical, twelve tion established institutions by engaged educational, and functions.1 charitable MASCO’s purpose functions more ef- assist its members these performing ficiently. maintenance
The contemplates operation MASCO, formed pursuant by through corporation and G. L. c. of a which plant energy total water, steam, solid would chilled electricity, provide incineration for MASCO member institutions.2 waste would Harvard The total replace existing energy plant Street, on Blackfan steam presently supplies plant in- steam some MASCO some requirements is or stitutions but which will increasingly inadequate addition, In would meet these requirements. services, free of some nonelectrical charge, provide Park assisted housing Mission Housing publicly Project, the BRA.3 project previously approved to be acres in the located 1.4 plant city power Avenue, Francis in a block bounded Brookline *4 Street, area is Street, and Street. This Peabody Binney Area and is sub- within the Urban Renewal Fenway located Af the The membership following consists of institutions: MASCO’s Women, for Peter Hospitals (consisting Hospital of Boston filiated Center Israel Brigham Hospital), B. Beth and Robert Brigham Hospital, Bent Center, Sidney Farber Cancer Hospital Children’s Medical Hospital, Foundation, Center, Hospital, Diabetes England New Deaconess Joslin School, as well as Harvard Medical Pharmacy, College Massachusetts Medicine, of Public and Harvard School School of Dental Harvard Health. the of the charge project, is the 2Although corporation MASCO the responsible for primarily that Harvard and exhibits indicate record commencement, the project. development, implementation and the approving as a condition require could not this service The BRA Newton, 371 Ry. v&Boston St. Aldermen Middlesex project. See 849, indicating evidence in the record There no approval was so conditioned. the BRA’s Edison Co. v. Boston Redevelopment Authority. Urban Plan Renewal Plan); ap- ject Fenway (Fenway of the Plan a that the Fen- Fenway proval required finding The Urban Renewal Area was a decadent area. area way of the is charac- the site surrounding proposed power plant terized institutional and commercial uses on three sides by and some residential use fourth side. on the Boston,
Edison sells the and its electricity city among customers are twelve MASCO the member institutions whose annual to Edison consumption yields approximately $3,000,000 in revenues. the Construction of total gross will result in loss a Edison’s of this business for energy plant of at least period thirty-five years.
After informal contact between and the Applicants BRA the likelihood of as a regarding plan’s qualifying under St. c. G. L. and c. the BRA project on submitted April a draft environmental impact on report (EIR) submitted project. Applicants BRA a formal for on application approval project 1,1975. 7,1975, July On July of Environmen- Secretary tal Affairs a issued statement EIR draft inade- finding quate. 26, 1975,
On the BRA conducted a August public hearing on the 121A. project, Edison required by participated in this fully filed with the BRA extensive hearing materials forth its views setting proposed project. 29, 1975,
On the BRA submitted its final EIR. September 2, 1975, On October a motion to draft adopt Report tabled, Decision was but on October approving 9, 1975, vote, a four to one BRA Report adopted and Decision Included in the approving project. report were of a under required findings St. G. L. c. 121A. The BRA’svote ap- Boston on proved by mayor December city *5 1975, 17, 1975, and on December BRA’s vote copies and the were clerk. mayor’s approval filed the city 5, 1975,
On November of Environmental Secretary Affairs final found the EIR After the submis- inadequate. 374 37
42
Boston Edison Co. v. Boston Redevelopment Authority.
information,
the EIR was found ac-
sion
supplementary
23,
on
1976.4
Secretary
January
ceptable by
on
Edison
the BRA’s
challenges
project
not con-
that
the total
does
grounds (1)
energy plant
1;
that,
121A,
L. c.
stitute a
as defined G.
“project”
(2)
§
for the
was not
to the BRA’s
site
contrary
findings,
plant
area,” and the
does
a “decadent and/or substandard
project
and benefit” as
constitute
use
“public
required
2;
13,
1
that deviations
c.
and c.
(3)
§§
the BRA substan-
from the Boston
code
zoning
granted
the intent and
purposes
zoning
tially derogate
code;
Plan for
that
conflicts with
Master
plan
(4)
Plan;
vote of the
and with the
Fenway
(5)
BRA is invalid because the failure to disclose
amount
is a violation of
the additional
tax
payment
6A;
A,
of four of the
L.
121
that the terms
G.
(6)
ex-
who voted on the
had
five BRA members
application
invalid.
vote, thus
that action
rendering
pired prior
we con-
Prior to
the merits of these
examining
allegations,
is without
threshold claim that Edison
front the defendants’
suit. That
maintain
present
argument
standing
as a
for the defend-
Court
basis
advanced
Superior
Al-
motions were denied.
motions to dismiss. The
ants’
62, governed
ruled that G. L. c.
judge
4The
Court
Superior
approve
proj
BRA erred in
voting
review of Edison’s claim that the
Edison has not
adequate
no
final EIR.
ect at a time when there was
not before
this issue is
Consequently
in this court.
challenged
ruling
Comm., 370 Mass.
Housing Appeals
v.
Appeals Maynard
us. Board of
America,
Kemp,
Inc.
Mister Donut
(1976).
amended,
though appeal are it not A here. ruling, they precluded raising party who Court on may prevails Superior present appeal which was asserted below in any ground previously support Boston, Boston Police Ass’n Patrolmen’s v. judgment.5 368, 367 Mass. 373-374 We therefore address this (1975). matter at the outset.
1. Standing. 1960, 13, 652, Statute . . . provides “any person who is a vote of the BRA file a aggrieved” by may petition for a writ of certiorari to correct errors against authority of law. Edison contends that its loss of approx- projected $3,000,000 a over the next imately year is thirty-five years of sufficient to confer on injury magnitude it. standing The defendants hand, on the other that business argue, as the result competition action not the governmental type which satisfies the injury standing requirement the statute.
As maintain, the defendants the threat of competition a sufficient generally confer SDK injury standing. Medical Computer Servs. v. Corp. Operating Professional Inc., 117, 371 Management Mass. 123-124 Group, (1976). Boat, Nantucket Inc. Hole, v. Woods & Martha’s Vineyard Auth., Nantucket S.S. 345 Mass. 554 Spring (1963). Ass’n Comm’n, Hotel v. Alcoholic Control Beverages field 338 Mass. 703 v. Colantuoni Selectmen Bel (1959). mont, 326 Mass. 779-780 Circle & (1951). Lounge Grille, v. Boston, Inc. Board 324 Appeal Mass. However, 429 the cases in has proposition been established and from the distinguishable applied instant In those case. cases the deci plaintiffs challenged sions allowing establishments similar to operation 5Although party may defend a. judgment any ground asserted court, the trial failure to take a cross appeal precludes party from ob taining a more judgment judgment favorable it than the entered below. Shalloo, Constr., Inc., See M.L. Inc. & v. Sons Ricciardi 348 Mass. 684 (1965); Turgeon Turgeon, v. Todd (1953); Foster, 140 (1951). Mass. 37
Boston Edison Go. v. Boston Redevelopment Authority. their which would them for business own compete *7 them revenue. Edi thus of to deprive injury possibly son, however, not involve such a loss of does speculative Rather, the business increased through competition. ap the BRA would cause a direct and of proval Edison, this not be the ascertainable loss to and loss would but stem result of for customers would competition of from the market avail elimination of consumers group of Thus while think the Edison’s able to Edison. we question one, is a we conclude that the close general princi standing is insufficient that harm from expected competition ple Can American Compare confer standing inapplicable. Bd., with Circle Co. v. Milk Control 313 Mass. (1943), Boston, Grille, & Inc. v. Board Appeal supra. Lounge of the construction therefore turn to law We concerning to determine whether Edison has aggrieved” “person “The and to maintain action. meaning standing scope be determined . . . must the words ‘person aggrieved’ matter.” the context and Ayer with reference to subject Boston, 242 in on Height Bldgs, Commissioners of c. In standing considering grant (1922). that the “words have stated ‘persons ag- we previously Dodge to be meaning.” comprehensive grieved’ given America, 375, 381 v. Prudential Ins. Co. of however, not, had occasion consider We have in facts such as those presently that statutory phrase light us. before statute of a standing
In scope granting determining our focuses (1) powers a “person inquiry aggrieved,” statute, and as defined (2) of the administrative body directs those the statute that powers the manner which Bd., at Can v. Milk Control supra American Co. exercised. if the relevant 158. If the power great, agency’s opinion a consideration public statute contemplates concep- then a expansive fairly decision making process, an “ascer- In such a situation obtains. tion of standing as a consequence loss proximate tainable property [suffered] to meet alone suffices action” standing of the . . . [agency] Boston Edison Co. v. Boston Redevelopment Authority. review be requirement person seeking “ag- Bd., American Can v. Milk Co. Control
grieved.” at supra 160. 121A was enacted in
Chapter to a de- response legislative termination that the continued existence of blight decay a threat to the posed health and of the inhabitants of safety the Commonwealth. The concluded that such Legislature conditions constituted a their public exigency elimination be in would A, interest. G. L. c. 121 Accordingly Legislature broad granted powers the BRA and to similar bodies the Common- throughout wealth. See G. L. c. 121A and St. c. 652. The BRA *8 alia, inter possesses, power approve plans involving the demolition of and the existing resultant buildings displacement numbers of large persons functioning 13; St. c. enterprises, and the power grant § taxation, exemptions 652, 12, St. c. and G. L. § c. 10.
These are the exercise “extraordinary powers,” of which is “bound to affect not profoundly many persons directly concerned” in the construction of the redevelopment proj- ects. American Can Bd., Co. Milk Control at supra 158-159. “Such . . . powers abuse.” capable grave [are] Id. at 159.
Further, the procedural of the statute call for provisions wide-scale public When a participation. private redevelop- ment submitted, is the BRA plan notice required give and to conduct a public on the St. hearing project. 13. Among of the is the fur- purposes hearing of the BRA with a
nishing reservoir of information so that it can determine whether the of the approval “would be in any way detrimental to the best interests of the public. . . .” Id. The BRA must also and make available to prepare a forth the reasons for its report setting Id. disapproval proposed project. Any person ag- grieved by action seek agency’s review may judicial “whether or not.” Id. a to the previously party proceeding v. Boston
Boston Edison Go. Authority. BRA, in mind the broad powers granted Having taken to its pursuant ap- effects of actions far-reaching and the com- for the provisions public participation, proval, review, we conclude that grant provision prehensive 652, 13, is sufficiently contained St. of standing substan- for review who a alleges to allow by person broad BRA’s See as a direct result of the action. tial injury Bd., at 160. The Can Co. v. Milk Control supra American as a result will suffer loss which Edison undoubtedly direct, substantial, and BRA’s approval Edison is a Thus we conclude that “person ascertainable. 1960, c. of St. . . . within meaning aggrieved” arise that difficult may We recognize questions also meets standard. We are whether alleged injury circumstances, most, if injury aware that in many, remote to make the seeking too party complained may case before But that is not the review a “person aggrieved.” us.6 of this we Edison standing many aspects
While grant of law an area governed when an issue involves appeal, issue is awith standing requirement, statute specific particular the standing requirements governed *9 such as in this of and not a grant standing statute by general 62; 23; 30, 61 and 23B, L. c. c. See, G. case. e.g., §§ § 1975, 808, c. 17, in St. 40A, c. as (formerly appearing § § Crippled Hosp. See also Shriners’ c. 21). Auth., 4 Ct. Mass. App. Redevelopment Children v. Boston 727, 734- Morton, 405 U.S. Club v. Cf. Sierra 551 (1976). Regula v. Students Challenging United States 741 (1972); 669, Procedures, 412 683-690 U.S. Agency tory Review. 2. Scope of maintain the present may that Edison concluded
Having merits of its various argu- examine the action, we proceed Superior pro Court intervened in the than Edison other Persons perfected interveners to us none of the for reasons unknown but ceedings, court. appeal to this Edison Boston Go. v. Authority. of vote. do- merits the BRA’s Before validity challenging so, however, we shall delineate the of ing scope judicial review of BRA proceedings. 652, 13, c.
Statute that a provides person ag- vote of BRA a file grieved by petition “may or court in Suffolk supreme sitting County judicial superior for a writ certiorari errors correct authority against therein; law and the ... section four of provisions Laws, two hundred and the General chapter forty-nine, shall to said . . . The apply petition. remedy provided by shall be At time enact- exclusive.” paragraph ment of St. c. L. c. G. provided perti- nent “It shall be to the to contend at part: open petitioner upon hearing petition [for certiorari] evidence which formed the basis of the action complained of or the or basis conclusion was as any specified finding matter action, of law insufficient to warrant such or finding conclusion.” The writ of certiorari was abolished Mass. 249, 4, 7The L. text of G. at the time of the enactment of St. was as follows: “A petition for a writ of certiorari to proceedings correct errors in which are not to the according may course of the common be law court, presented to justice judicial the supreme may, and he after notice, hear and determine the It open petitioner same. shall be contend hearing upon petition at the that the evidence formed the basis of the action complained any of or the specified finding basis or action, conclusion was matter of law insufficient warrant such finding or shall petition conclusion. The writ not be issued unless the therefor is presented years within two next after the com- proceedings plained may of. be It issued from the in any county clerk’s office and shall any returnable as court The petition orders. court at time after the is presented may impose upon any may costs party, injunction issue an and, and may order the proceedings brought up; they brought after them, up, order, or may quash may affirm or make such judgment decree as and justice require. law may powers conferred sentence shall for a foregoing apply petition also to a writ of mandamus *10 and to an petition amended for either a writ of of certiorari or a writ man- thirteen, damus under one C chapter subject section of two hundred and appellate judicial case of to the proceedings, authority supreme court to or suspend operation any of decree amend judgment and to any pending appellate provided by order such proceedings equity 37 374 Mass. 48 Boston Edison Go. v. Boston Authority. 841 In accordance with Civ. P. 81
R. (b), 249, 1114, 289, L. c. 1973, c. amended G. this St. change, § for nomenclature of the 4, proceedings by changing § to the version of referred review. The former proceeding § ver- certiorari,” while the latter for a writ of as “a petition of certiorari.” “civil action in the nature used the term a sion 1114, 289, Further, 1973, deleted St. c. provision § to attack any findings to the right petitioner relating were not by the basis that supported or conclusions on they evidence. sufficient 249, 4, to c. that the amendment
The defendants argue § as a basis for evidence challeng- which omitted insufficient action, narrowed substantially the administrative ing 652, 13. under c. They review in a proceeding scope § lack for review is “whether findings the standard claim that made in an arbitrary foundation or are basis or any hand, Edison, contends on the other manner.” capricious 652, 13, not altered of review under c. that the scope § Thus, 249. it claims that to c. the 1973 amendment by the BRA it to attack findings remains avenue open not sufficient by they supported ground Co. Select- Further, on Boston Edison evidence. relying the in- it claims that Concord, (1968), men the “substantial is similar to standard sufficient evidence G. L. c. (e). test.” See (8) evidence § review. scope Edison as proper We agree 121A c. apply- actions under the BRA’s shall evaluate We 1973, St. test. Although evidence the substantial ing 249, 4, did omit c. 289, amended c. § § evi- on insufficient based challenges allowing provision intended af- was not this statute dence, conclude that we project. review accorded type fect the scope As amended and fourteen.” two hundred chapter twenty-two section 1; 1. c. St. c. § St. 249, 4, of c. 652, 13, provision the time directs that Statute pursuant instituted proceeding in a certiorari apply shall *11 49 374Mass. 37 Boston Edison Co. v. Boston Redevelopment Authority.
Rather, of the amendment towas con- purpose primary form the General Laws to the of Massachusetts Rules Civil Procedure, of abolished writ certiorari and estab- lished that there to be “one form of is action.” Mass. R. Civ. 81P. and Rule 733 365 Mass. (1974), (b), The deletion of the (1974). provision permitting challenges based of evidence, insufficiency only statutory review in connection with provision concerning judicial certiorari, writ of designed permit appropriate of review to tailored to the scope substance of the com- Note, See Rule 80B and plaint. Nonstatutory Judicial of Maine, Review Administrative Action in 23 Me. L. Rev. 419 (1971). of abolition the writ of certiorari, which the rules termed the
Reporter
burial of an
antique,
in a “civil
of
action”
availability
relief previously
the writ
sought through
indicate an intention not to carry
over intact all the
doctrines
writs. See
special
surrounding
Carlisle,
Stetson
v.
Selectmen
369 Mass.
758 (1976).
of
Note,
See
80B,
Rule
supra.
generally
We
not inclined to
reintroduce
technicalities under the
of
prior
guise
analy-
of
sis
Davis,
of review.8 See
scope
3 K.C.
Administrative
Law 24.01
Carrow,
(1958);
Relief
Types
Judicial
Action,
Administrative
58 Colum. L. Rev.
1-2 (1958);
Note,
80B,
Rule
supra.
Thus we
do not look to the historic
under the writ
practice
of certiorari in
considering
scope
Rather,
review.
judicial
we determine that the proper ap-
proach
of review to
considering
is
appropriate scope
evaluate the
nature
the action
to be reviewed. See
sought
8
challenged
Edison also
in the lower court the
inclusion
BRA’s
return of the
statement
proceedings which contained additional reasons
for the BRA’s actions and
which was filed
after the
BRA
com
mencement of litigation. Edison’s brief mention of this issue in its argu
ment to this
bring
court
insufficient to
this
properly
issue
before us. See
amended,
Mass. R. A.
(a)
P. 16
(4),
Boston Edison v. Boston Redevelopment Authority. Brookline, Bd. Sherman Rent Control 9-10 *12 of a c. 121A urban renewal characteristics for of such a
and the statutory procedures approval evidence test is the lead us conclude substantial of 121A standard. The features c. both projects, appropriate and when when considered compared independently c. the broader of those of 121B indicate that scope projects, test, evidence rather review substantial by provided standard, than and the “arbitrary capricious” appropri- ate. c. 121A under are privately planned approved
Projects their ex- and are owned and initiated privately throughout G. L. c. 3. Such because they istence. See projects, § of con- tax serve are subsidized by grants public purposes, 121A, 10. these are to be con- G. L. c. If cessions. projects § Boston, to review and they subject ap- structed only of Boston. the BRA and the city by mayor proval Thus, there is some measure St. although a urban and by public agency, supervision participation 121A are conceived of under c. primarily renewal projects which will by private corporations implemented Further, receive these large public them. operate projects such benefits are groups benefits. When provided private aby to much control which are subject supervision broader of review we believe that the scope public agency, See evidence test is required. the substantial provided America, v. Prudential Ins. Co. Dodge Justices, 341 Mass. 381-382 (1961); Opinion of 777-778 (1960). BRA and the
Moreover, regula- the statutory provisions c. 121A in- under tions approval projects governing consideration of the need for detailed an awareness dicate of a c. 121A of those affected by interests 13, to give The BRA is under required project. before and to hold a hearing approving notice public public BRA contain a The internal regulations project. alia, the admission inter concerning, detailed guidelines Go. Boston Edison Redevelopment Authority. evidence and counsel. BRA Rules representation by 652, 13, 9. Under c. the BRA must prepare Regulations, § make written con- public inspection report open the reasons for its decision regarding project. taining review of Finally, expressly provides judicial agency Thus, action.9 our as to the conclusion appropriate scope review is framework statutory supported concerning initiated Our decision is in accord with a privately projects. awareness of the need for detailed legislative appraisal other than the authorities private projects by groups involved. however,
The defendants
that under our
argue,
prior
with urban
cases
the find-
dealing
redevelopment projects,
*13
involved in the
case
ings
present
and thus
“legislative”
review of them
the
is
and
governed by
“arbitrary
capri-
standard.
cious”
Reid v.
Comm’r
the
Acting
Dep’t
136,
362 Mass.
142-143
Affairs,
Mos-
Community
(1972).
v.
553,
kow
349
Auth.,
Boston
Mass.
561
cert, denied,
These do not control our decision in the These case. decisions present all involved redevelopment 9 above, enacted, As noted when it was through its incorporation § of c. allowed challenges alleging that insufficient evidence ex § isted to support the agency’s findings. The insufficient evidence standard 249, 4, of c. equated has been with the substantial evidence test. Boston Concord, Thus, Edison Co. v. Selectmen 355 Mass. at least prior to the amendment c.of 13 authorized the use substantial evidence test. Since we ap have concluded that the proper proach to determine the appropriate standard of review to the consider nature of the action which review do concerning sought, we not rest our conclusion that substantial proper scope evidence test establishes the However, on review the fact that this permitted test was under fact legislation the authors concerning initially the BRA adopted this test further evidences their concern that greater scrutiny be 121A accorded c. projects. Edison Co. v. Boston Redevelopment Authority. 121B, statutes, an- under G. L. c. its predecessor
projects
The
differences
alogous
legislation.10
public housing
nature
and the methods for
be-
projects
121A
tween
under c.
and those under
redevelopment plans
121B
c.
our determinations that different treatment
support
of review is
and
terms of
scope
agency
appropriate
action taken in connection with c. 121A
should
projects
a broader
of review.
subject
scope
Unlike
under c.
urban
projects
redevelopment
121B
conducted under c.
are initiated and
projects
super-
121B
In
vised
under
by
agencies.
general,
involves
establishment and
by
effectuation
appropri-
an
renewal
for a
ate
bodies of
urban
governmental
plan
area,
Fed-
often
plan
conformity
general
being
is initiated
eral
The
the local
standards.
by
redevelop-
plan
and
council
ment
must be
authority
approved
city
of Com-
State
the Department
independent
agency,
redevel-
Affairs. After
local
munity
securing approval,
ac-
then undertake
authority
opment
may
involved
parcels
quiring, clearing,
redeveloping
L.
See G.
other urban renewal
by initiating
activity.
Moreover,
121B,
46-48.
unlike
con-
again
projects
§§
Acting
particularly rely
cases of Reid v.
defendants
*14
Boston Edison Go. v. Boston Redevelopment Authority. A, ducted under no benefits in the form of tax are concessions interests which provided private may 121B, become in c. 121B involved See c. 16. projects. amount of large participation by public agencies, together with the absence tax benefits for interested private differentiates these groups, initiated publicly projects conducted under c. 121A. Because is projects there less par- bodies in connection with 121A ticipation by public proj- ects and because there are tax benefits involved with large such a broader plans, review than that accorded scope action in agency connection with initiated is publicly plans Since review of decisions in- required. involving publicly itiated is plans governed by “arbitrary capricious” standard, of the substantial evidence application test to initiated is privately plans appropriate.
Moreover, the statutory provisions governing approval these initiated do not publicly the number projects provide of procedural in c. contained 13. Pro- safeguards before the ceedings Affairs in Department Community initiated approving publicly under c. 121B projects do not notice aor require unless a public hearing public hearing by department requested involved or municipality by twenty-five 121B, G. L. c. taxpayers. There is also no express ac- statutory provision for review of the judicial tion of the The absence of these department. provisions, when with their compared in c. in- presence dicates a legislative scheme less providing judicial when scrutiny initiated publicly involved. Thus projects our decision to the substantial evidence 121A apply test to c. projects consideration of entire supported by statu- framework. tory
Further, use of the substantial evidence standard is consistent with a to review in developing more tendency the decisions of depth urban renewal See agencies. Daye, Role of the Judiciary Community Development *15 Method, A 52 Law Housing: Analytical Urban Suggested J. 689 McGee, Urban in Renewal the Crucible (1975); of Judi- Review, cial 56 Va. L. 826 Rev. (1970).
54
Boston Edison Go. v. Boston Redevelopment Authority. test to The substantial evidence understood commonly must rest “such evidence findings agency upon require as to a as a reasonable mind accept adequate support might Boston, See, conclusion.” Bunte v. e.g., Mayor of 71, 74 Review under the standard entails scrutiny (1972). the whole record to determine whether substantial evidence v. Board in Phar See, exists. Cohen e.g., Registration macy, test, evidence with these ac-
The substantial generally of review thus establishes cepted components, scope in the which we shall accord the BRA’s action present case. Plan Is a “Project.”
3. Determination that the Proposed in Edison maintains that the BRA erred finding G. a within the L. meaning “project” proposed plan c. St. c. 652. Edison construing argues the construction c. 121A and c. as authorizing violate of the total would plant general operation energy rests on policy. principles public utility argument MASCO and the draft contract between assertion that since various of Boston grant permits city obligates city with the proposed connection which may required result in the would as project plan, approval plan scheme drafted carefully regulatory circumvention of it is ex- electric for distribution of power, particularly 87 and G. L. pressed §§ “In town that: General Laws provides manufacture or sale of where a person engaged use, or erect, no shall maintain other person lay, electricity, town, such streets, or under the lanes highways over wires electricity transmission of except wires any without for heat power, used street railway companies after or selectmen of the aldermen granted consent Ac- and a hearing.”11 interested notice all parties by the “Any person aggrieved provides: General Laws c. section], selectmen, preceding . . . under of the aldermen or [the decision decision, therefrom appeal of said thirty days after notice may, within
Boston Edison Co. o. Boston Redevelopment Authority. contract, to terms the draft of Boston cording city has itself and its boards “under Sec- obligated appropriate licenses, tion 14 of 121A ... such Chapter grant permits or be as in connection with the con- approvals may required struction, maintenance of the Distribution operation as described System Application.” would result in a argument plan conflict with c. 164 is without merit. Neither the BRA nor of Boston city to deviate possesses requisite authority from the of c. 87 or 88. The provisions Applicants, § concede, as are bound to they with these comply provisions, to the extent that If the they contractual applicable. were aimed at the need provision for such com- eliminating it could However, effect. pliance, this contrac- given tual relates the BRA’s obligation apparently power to deviate grant health, permission zoning, building, and fire St. regulations.
Edison next that G. L. c. 121A argues cannot be con- strued in such a way as include the total energy plant within the definition of In G. “project.” L. pertinent part, 1, defines as “any con- “project” undertaking sisting construction in a decadent blighted or open, decent, sub-standard area of safe and residential, sanitary commercial, industrial, institutional, recreational or gov- ernmental . . . include as inciden- buildings. A‘project’may tal . installation, thereto . . construction, and recon- (d) struction of public private ways, utilities and services, and site improvements essential to the preparation of a decadent blighted or sub-standard area for bene- open, ficial or development redevelopment.”12 the . . . Utilities], [Department Public which shall thereupon due give interested, notice and parties hear all and its decision shall be final.” 121A, 1, 12The full definition of a as “project,” set out in G. L. c. is: . any . undertaking consisting of the a blighted open, construction in decent, residential, decadent or sub-standard area of safe and sanitary commercial, industrial, institutional, recreational governmental buildings and such appurtenant or incidental facilities shall be v. Boston Edison Co. Redevelopment Authority. related The BRA found power plant, proposed other incidental facilities constituted office building, and institutional facilities and thus that they commercial *17 Edison, out in c. fell within the definition set however, not definition does en- statutory argues to erect because MASCO intends plan compass proposed a be maintain a and such facility may and “public utility” valid when it is “incidental” to otherwise approved only redevelopment project. cannot be characterized The total plant energy properly “ used, a a utility’
as As commonly ‘public public utility.13 a or service which is in business engaged regularly supplying or service conse- commodity with some public public . . .” 64 Am. as water. such electricity, quence, gas, [or] 2d, a Public Utilities at If (1972). corporation Jur. members, its test used furnishes such services to the general is whether it serves or is in if it a utility determining public area in its the entire within the serve public willing confines its service facilities are located. If corporation out as or hold itself own members and does serve its it is not See utility. serve a public willing public, Elec. Membership Power Co. Cullman County v. Alabama Lake, Inc. 396, 401 Corp., Cherry 234 Ala. (1937); interest, buildings of such and operation and the and maintenance thereto may A include incidental ‘project’ facilities after construction. — assembly following: (a) acquisition and any one or more thereon, if buildings improvements and structures and other land (and area; (b) or clearance open, decadent sub-standard any) blighted within a area; ac- (c) decadent or sub-standard blighted open, land a within land, or structures not assembly buildings clearance of quisition, and decadent, inclusion is sub-standard if their or blighted, themselves clearance, or reconstruction rehabilita- redevelopment, necessary for area; installa- (d) or sub-standard and open, tion a decadent blighted construction, tion, ways, public of public private reconstruction services, improvements preparation essential and site utilities develop- or sub-standard area beneficial decadent blighted open, a redevelopment.” ment or plant, power Blackfan Street indicates that the Nothing in record plant, energy of the total consumers proposed which serviced some of utility.” “public considered Co. v. Boston Redevelopment Authority. Edison Kearce, 157 Fla. 490-491 Schumacher v. (1946); Comm’n, Railroad 185 Wis. proposed will service identified only specifically group consumers, the MASCO member institutions and the public MASCO will not offer its services to housing project. any other institution. Therefore the total person energy plant be cannot considered a and the “public utility,” argument could as incidental only approved another must fail. redevelopment project
Further, while earlier statutes redevelopment restricted their definition to the construction or projects rehabilita- 1; tion of see St. St. housing, 1, the statute, Legislature, chose enacting present to utilize a far wider of rede- language encompassing variety *18 The definition velopment now contained in plans. 1, is sufficiently broad to cover the proposal presently
before us. The BRA found that the total and its energy plant related facilities constituted commercial and institutional of buildings; definition a “project” includes specifically construction of such Even if Edison’s buildings. characteri- of zation as industrial were to be plant for the accepted of this purposes argument only, is still a present proposal within the definition. The statutory construction of industrial is also buildings included within the specifically definition of a “project.”
When the total becomes it energy will, plant operational, extent, to a limited in activities similar to those engaged — Edison engaged and distribution of production electric Edison power. maintains that violates the clause of the equal Four- protection teenth Amendment to the United States Constitution be- cause, while Edison is subject governmental regulation and taxation, the total would be energy plant exempt such and would receive regulation14 tax concessions. 14Whether the Department of Public Utilities it considers that has a regulatory utility function over projects which serve a limited number of consumers general rather than the is public not raised this proceeding. The Department Public Utilities is not a to this party proceeding 374 37
58 Mass. Boston Edison Co. o. Boston Redevelopment Authority. reasonable The clause does prevent equal protection Opinion classification legislation. subjects Justices, 341 difference Mass. (1960). however, related treatment, must be reasonably legislative Commonwealth v. Henry's to a legitimate public purpose. Co., McGinnis v. 545 (1974). Drywall 263, 270 have 410 U.S. We previously (1973). Royster, L. 121A “is a to G. stated that pursuant redevelopment Justices, Mass. Opinion public purpose.” (1956). dif
Further, that a rational basis exists for any we find the total treatment Edison and energy ference in accorded taxa in the matters regulation governmental plant is to sell tion. Edison a public corporation obliged at The MASCO to the community large. electric power hand, other will on the only supply total energy plant, institutions and of its member requirements energy needs of housing nonelectrical previously approved within Moreover, the located proposed project project. determined to which has been quali area the community claim Thus Edison’s protection for redevelopment. equal fy Gen., Bank v. See First Nat'l Attorney must fail. Dist. School San Antonio Independent 793-794 (1977); 1, 44-45 411 U.S. Rodriguez, *19 Is in a Decadent Site Proposed 4. Conclusions Project and that the Proposed Substandard Area and/or Use and Constitutes a Public Benefit. an that when applica- provides
Statute initiated project tion for a redevelopment privately after BRA, the Authority, is submitted to of Boston city determinations “shall . . . make such notice and hearing be, hun- . one of . . by chapter provisions may required A determination required A.” major dred and twenty-one in a is site for such that the c. 121A is proposed by Thus, we functions. express its views its opportunity has not had do not or decide issue. reach Edison Co. Boston Redevelopment Authority. decadent or G. L. sub-standard area.” “blighted open, A, c. 121 1. The BRA found that area in which the pro- be total located is “decadent and/or energy plant posed sub-standard.” Edison that this erroneous argues finding because it is not substantial evidence. We supported by disagree. A, 1,
General c. 121 Laws defini- provides following area,’ tions: “‘Decadent which is area detrimental health, morals, welfare or sound safety, of a com- growth because the existence of which are out munity buildings deteriorated, unfit for repair, human habita- physically tion, obsolete, or or in need of maintenance or major repair, or because much of the real estate recent been has years or sold taken for of taxes or foreclosure non-payment upon or because have been torn down mortgages, buildings and not and in under replaced it is conditions existing that the will be or because improbable buildings replaced, of a substantial or conditions, business economic change air, or because of inadequate or or light, open space, because of excessive land or because coverage, diversity sizes, lot irregular or obsolete street ownership, patterns make it that the area improbable will redeveloped ordinary operations or reason of private enterprise, combination of the any conditions.” foregoing area,’ “‘Sub-standard an area wherein dwellings which, predominate by reason of overcrowd- dilapidation, or lack ing, faulty arrangement ventilation, design, light, or facilities, sanitation factors, any combination these health, morals, detrimental to safety, welfare or sound of a growth community.”
As a basis for its site satisfied these finding definitions, the BRA relied in on the statutory fact that part area was located within the boundaries proposed project Area, Urban Renewal which had been found Fenway in 1965 be a decadent area. Such a prior finding by BRA is a determination.15 legislative *20 15We wish to at emphasize point today, this that our decision applies substantial evidence test to BRA in determinations connection
Boston Edison Co. v. Boston Authority. conclude that finding, We legislative although in whether conclusive, is entitled to great weight evaluating the substantial evidence to indicate that there is presently If a site is in a decadent or substandard area. determination be- in with a made connection comprehensive plan long the commencement initiated fore any privately projects, However, determination is entitled to weight. great has been made in which such a determination cases prior earlier, or the some some data information concerning years also contained in characteristics of the site should present the the evidence test. In the record substantial satisfy had it evidence con- case, the BRA before extensive present current condition of the area. The BRA con- the cerning BRA the evidence submitted at the and the sidered hearing, construction site. members viewed personally proposed examination BRA condition also evaluated building staff, its from which and classification conducted by survey area the BRA concluded project buildings deteriorated were “out of or dilapidated, repair, physically habitation, obsolete, detri- and therefore unfit human health, morals, and welfare sound mental safety, of the community.” growth have examined total record proceedings
We BRA, determina- and we conclude that prior before decadent, Area tion that the together Fenway site, the view of at hearing, evidence presented evidence substantial survey, support- provides building that the area of the BRA’s determination proposed ing See Save Bay, is decadent and/or substandard. Utils., 684-685 Pub. Inc. Department of 13, further directs the BRA Statute use will constitute a “the determine whether law that determinations prior not alter the 121A does projects, with c. legislative or projects are plans initiated publicly connection with stand- arbitrary capricious are reviewed under findings that such ard.
374Mass. 37
Boston Edison Go. v. Boston Redevelopment Authority. authority benefit,” proposed and “[i]f finds that the project public . . will benefit, . not constitute a use it disapprove project.” pro- shall The BRA found that the posed plant energy public total constituted such a use and benefit. c. 652
While does not enumerate the relevant criteria on might finding proposed project which be a based “public pro- constitutes a benefit,” use and 121A, 2, public exigency vides: “[A] use, exists which makes the ac- quisition, planning, rebuilding clearance, rehabilitation or blighted open, of such decadent or substandard areas for residential, commercial, industrial, institutional, recrea- governmental buildings appurtenant tional or or inci- provided dental public facilities herein a use and benefit private property may acquired for which eminent do- regulated by main or wholesome and orders, reasonable argues laws and statutory directions.” Edison that this lan- guage requires project “public that a must constitute a use and benefit” aas result of its elimination of the conditions decadent, render an any area and not as a result of project following function of the construction. Thus Edison maintains that since the energy construction of the total plant would not result elimination the conditions preven- which characterize an area as decadent and in the tion of the recurrence conditions, of such the BRAerred in proposed its determination that the a constitutes public use and benefit. building
We conclude that the mere of a new structure in an area that has been determined to be with the decadent, prior resultant elimination of the conditions, decadent is in- building public sufficient to constitute such a use and bene- “public However, fit. we also conclude that use and benefit” is not to be read so as to render consideration of the proposed future uses of the Rather, construction irrelevant. particular determination a whether constitutes public use and benefit should include an evaluation of both blight through the elimination of construction and the purposes proposed project. nature of the to be served
Boston Edison Co. v. Boston Redevelopment Authority. and benefit if it would thus constitute use A project and re- substandard conditions would result eliminating useful and beneficial them something placing *22 America, 343 Co. See v. Prudential Ins. Dodge public. 341 Justices, 383-384 the Mass. (1961); Opinion of 760, 777 (1960). the site of the The BRA found proposed properly Con- area. was a decadent and/or substandard plant power eliminate the substandard of the would thus struction plant the will also further in the area. The conditions project of the MASCO member institutions by charitable purposes efficiency them serve public greater allowing serve beneficial at cost. These project less aspects the deca- will eliminate Since purposes. project public site and it will beneficial dent conditions at its since provide a services, constitutes total energy plant proposed and benefit.” use “public cannot however, that our
Edison further inquiry argues, be- the BRA’s action It us to hold invalid end here. urges did not find not claim and the BRA did cause Applicants of sub- was elimination that a purpose proposal or decadent conditions. standard the members of a rede the motives of We have held that rele not a a project authority approving velopment whether vant consideration determining v. Boston Redevelopment Moskow properly approved. cert, denied, 382 U.S. Auth., 349 Mass. (1965), Auth., Hous. Somerville Inc. (1966). Despatches’ Cafe has provided Since Legislature is to determine which the BRA standards by specific rede as an urban qualifies whether proposal particular Justices, 341 Mass. see Opinion project, velopment with the motives be concerned we need not 776 (1960), ascertaining limited to Our 121A inquiry of c. applicants. conclude We therefore with those standards. compliance to eliminate substandard if a project an effect in pro of the conditions, applicants purpose decadent Additionally, requir- irrelevant. is wholly the project posing Boston Edison Co. v. Boston Redevelopment Authority. the BRA to state that the effectuation
ing proposal it will eliminate substandard or decadent conditions after has determined that site be already proposed may characterized as substandard or decadent would not add substance which the BRA is now anything findings to make.16 required
5. Allowance Deviations Code. Zoning from provides Statute that “the authority with the of Boston shall have exclu- approval mayor sive both before power, and after the of a project, from time to time grant for the to devi- permission law, ate code, from such ordinance or if it finds regulation that such without permission may granted substantially from the law, code, intent and of such derogating purposes *23 ordinance or After that to do so regulation.” concluding would not from the intent and substantially derogate pur- of the poses code, the BRA zoning granted Applicants use, to permission deviate from the and height, yard provi- sions of the code. Edison claims that the BRA’s con- zoning clusion that such deviations would not dero- substantially from the gate of the code is purposes erroneous.17 We dis- agree. report The of the plan BRA states that approving energy the total
plant will further the
purposes
charitable
of the MASCO institutions.
Because the plan
Street,
contemplates use of the roadbed
Peabody
Edison claims
BRA’s
violates art.
of the Consti
§
tution of the Commonwealth which prohibits
appropriation
or use of
public money or property to
any hospital
aid
or institution which is not
publicly
operated
owned and
exclusively by governmental authorities.
record, however,
The
does not
pay
disclose MASCO will not
for the
property.
circumstances,
Under such
no violation of the above-cited con
Boston,
stitutional provision necessarily obtains.
Boston Edison Co. o. Boston Redevelopment Authority. The standard for variance under granting zoning that the deviation will not dero- substantially from the intent and code, gate purposes zoning very similar to one of the standards for the of a variance grant from the However, code under G. L. c. 10.18 zoning of the BRA to variances power is less circum- grant scribed than under permit granting authority 40A, 10, G. L. c. since the exercise of the BRA’s authority is conditioned on fulfillment of this one criterion. See only Justices, Opinion pur- code are “to health, poses zoning promote safety, convenience, morals welfare of the inhabitants of the the most City, use of land encourage appropriate land; throughout City; prevent overcrowding conserve the value of land and to lessen buildings; conges- streets; tion in the to avoid undue concentration of popula- tion; air; to secure provide adequate light safety fire, and other panic to facilitate dangers; adequate provi- sion for water, schools, transportation, sewerage, parks other public and to and increase the requirements; preserve amenities of Code, I, art. 1-2. City.” Zoning residential, commercial, cant that no or institutional abutter appealed has However, BRA’s decision to grant zoning deviations from the code. since the parties have fully argued and briefed this issue before this court *24 below, and the court we express College our views. v. Wellesley Attorney Gen., 731 (1943). 18 pertinent 40A, 10, 1975, 808, In part, G. L. c. in St. appearing 3, provides: permit “The authority have the ... granting power shall to grant upon or appeal upon petition respect particular land or structures a variance from the applicable zoning terms of the ordinance or by-law where such permit granting authority specifically finds that owing conditions, relating circumstances to the soil or shape, topography of such land or especially structures and such land or structures but affecting located, not affecting the generally zoning district in it which a literal enforcement of provisions of the ordinance or would involve by-law otherwise, substantial hardship, financial or petitioner appel to the or lant, and that desirable relief may granted detri without substantial ment public good nullifying substantially without or from the intent or derogating purpose of such ordinance by-law.” See also c. (3), prior 15 as in effect to St. c. 808. 37 65 Mass. Edison Co. Boston
Boston Redevelopment Authority. v. mind, in these we turn to an With general principles evaluation of the of the BRA’s propriety granting permission the use code. The deviate from restrictions zoning site was located within two districts estab- proposed zoning lished code. one-third of the zoning Approximately site in an was situated L-l district zoning (local business); in area an H-3 district remaining lay zoning (apart- in district which may ments), hospitals operate. Code, art. 8-7. The area is
Zoning characterized institutional, commercial, and primarily some residen- tial uses. While office to be building constructed con- with the total because junction it was to be energy plant, zone, use, erected the L-l was an allowed Boston Zoning Code, 3-1, 8-7, art. the remainder of would §§ deviation require of code. provisions zoning The BRA determined that the consisted of proposed project “commercial and institutional buildings appurtenant facilities,” and it deviate from granted permission established uses.19
Edison first
argues
consti-
proposed power plant
tutes an
cases,
industrial use. It refers us to a line of
Benja-
min v.
Swansea,
Board
66 374 Mass. Boston Edison Co. v. Boston Authority. area,
the
the
the
information
application,
the view of the site. From these data there was substantial
an
to conclude that the
was
evidence
power
proposed
plant
could
institutional
since
evidence
facility, particularly
be found to
conclusion that
plant
support
power
of the
would be an
of the institutional activities
integral part
v.
MASCO members.
Center
Cf. Children’s
Medical
Hosp.
Boston,
Mass. 35
Assessors
353
(1967).
of
Moreover, we do not believe that the cases cited support
Instead,
those
se rule which Edison
on us.
per
urges
cases indicate that when an area is zoned for residential pur-
the district has retained its
residential
poses
essentially
character, a
of commer-
variance
introduction
allowing
which
cial
is improvidently
enterprise
granted.
inquiry
of the non-
these cases
is whether the introduction
require
use “would
alter the essential
conforming
unquestionably
character of an otherwise residential
Ather-
neighborhood.”
Bourne,
v.
at
ton
455. See Benja-
Board Appeals
supra
of
of
261-262;
Swansea,
min
at
supra
Board
Appeals
of
of
v. Board
Phillips
Bldg. Dep’t
Spring-
Appeals
of
of
of
Thus,
than
a
at 471-472.
rather
establishing
supra
field,
law,
rule of
these cases indicate
ap-
rigid
proper
be
a variance should
for
whether
proach
determining
of the
uses existing
involves consideration
property
granted
new use
in
area in relation
specific
proposed.20
20
Edison,
Moreover,
as
relied on here by
we note that the line
cases
very
argument,
below
second
rested
support
well
that cited
in
its
to be in
heavily
sought
the fact that the area into which a new use
in
case.
present
is not the situation
troduced was residential. This
proposed project,
of the
Although there are some residences
area
such
and institutional uses. When
site is also characterized
commercial
area,
determining
whether
mixed
standard
present
uses
See
strictly applied.
seems to be less
granted
variance should
often
Cambridge,
Appeal
Kairis v. Board of
of
another
cases,
Ap-
line
DiRico v.
Board
argues
Edison also
Appeals
v. Board
(1961), Cary
peals
Quincy,
Bank, Mass.
Worcester,
and Hunt v. Milton Sav.
(1960),
of a
that the introduction
proposition
App.
(1974),
Ct. 133
establishes
is in
adjacent
property
value of
use
will cause
reduction
cannot
zoning
code. We
purposes
derogation
substantial
*26
Boston Edison Co. v. Boston Authority. maintains, however, Edison further that the deter- actual mination that deviations would not substan- proposed from the of the code tially derogate was not purposes zoning substantial evidence.21 supported See v. Norcross Board Boston, Appeal Bldg. Dep’t of We (1926). disagree.
In that the construction of the finding total energy plant at the site would not proposed substantially derogate of the code, the purposes BRA considered the in- zoning formation recited The BRA also made several sub- supra. in of its sidiary findings determination. support The BRA found that construction of the total energy “will enable the plant existing powerhouse provides [which steam], located in the center of the medical area sen- among sitive uses, institutional to be removed from operation,” thus disturbances, deliveries, diverting to an area including closer to the periphery institutional area. This result would advance clearly several of the purposes zoning perceive any such inflexible Instead, rule emerging from these cases. these cases again instruct that inquiry should focus on the particular factual cir- cumstances obtaining at the time a variance sought. Even if we were bound to accept the rule urged on by us Edison as a controlling principle law, we would nevertheless difficulty face it to the applying present case. The record is devoid any evidence demonstrating adjacent property values will decline as a result of the construction of the proposed plant. 21In support its argument that the BRA’sdetermination sup was not ported evidence, by substantial Edison relies on its contention that there expert uncontradicted testimony supporting proposition deviations would substantially derogate from the intent and purposes of the code. Edison then argues that disbelief of such testimony cannot create substantial evidence to the contrary. We agree with Edison that such dis belief cannot create affirmative evidence. Cohen Board Registration Pharmacy, However, 251-252 disbelief Edi expert son’s was not the only support basis of for the BRA’sconclusion. Rather, text, as we have noted in the substantial sup affirmative evidence porting the BRA’sdetermination is found in the record. Edison also relies on this argument concerning expert disbelief of testimony in connection case, with other issues involved in present particularly the issue con cerning conflict with the Master Plan. What we have said ap here is also plicable to this contention in the context of these other issues.
Boston Edison Co. v. Boston Redevelopment Authority. code, as it would the most use of encourage appropriate land, prevent lessen From overcrowding, congestion. it, the data available to there was sufficient evidence from which the BRA could have concluded that the construction *27 of the would have this effect. project
The BRA also found that the construction of the proposed would further one of the plant basic of the goals Fenway Plan: “to set the framework for the institutions to con- solidate their facilities order to make more efficient use of scarce land resources.” Such an effect would also further the itself, of the code purposes encour- zoning example, by the most use of land and aging appropriate by facilitating more efficient of medical services. substan- provision Again, tial evidence was available in of this support finding.
We need not review each reason individually remaining the BRA’s conclusion that the deviations supported would not from the stated substantially derogate purposes of the code. The statutes do not re- zoning redevelopment number of reasons which inde- quire any specific might the BRA’s ultimate conclusion. pendently support Moreover, BRA, information before the general par- site, its view of the additional evidence ticularly provides the BRA’s determination. In supporting viewing project area, that, its members could not have avoided recognizing code, its classification in the notwithstanding zoning area consisted of commercial and institutional uses. largely BRA, data available with the BRA’s coupled thus sufficient evidence to subsidiary findings, provide sup- its determination that the use deviation did not port from the of the code. substantially purposes zoning derogate Edison also attacks the BRA’s determination that devia- tions from several of the of the dimensional requirements code would not from its substantially pur- zoning derogate In of its conclusions these devia- poses.22 support concerning even injury grant 22Edison’s claim of from the of these deviations is These dimen involving more indirect than its claim the use deviations. only sional are more the concern of abutters. Thus we properly deviations briefly our views on the issue of these deviations. express Boston Edison Co. v. Boston Redevelopment Authority.
tions, on the BRA relied generally subsidiary findings above, discussed as well as characteristics specific each The BRA found the deviation deviation. properly from the restriction of the code was minor.23 height zoning The deviations from the front and side yard requirements minimal, were characterized properly goals these were served other of the requirements aspects proj- ect’s These characteristics of the dimensional design.24 23Two-thirds of the per located in H-3 zone which no has portion tinent height restrictions. A (one-third) is located the L-l thirty-five zone where there is a foot Zoning restriction. Boston 13-1, B, Code art. plant Table art. 16-1. The roof of the Thus, most, will be 42.5 above ground feet level. at one-third plant will deviate from the applicable L-l limitation feet. (local business) by 7.5 The BRA found this deviation to be agree minor. We deviation *28 properly characterized as minor. See Miller v. Hous. Emergency Comm’n, 693, the (1953). To extent that the towers cooling beyond extend the proper height, the properly BRA found this feature to the exempted by code the from of a See computation building’s height. Code, 2, 16, Boston 2-1 Zoning art. art. 16-2. (23), and Boston Zoning § § Code, art. 2-1 (23), provides: ‘“Height of building,’ the vertical § highest roof, distance of the of the point excluding roof structures normal built ly above the roof not to occupancy, devoted human above the mean grade of the sidewalk at the line of street or streets on abuts, or, street, building in the of a building abutting case not on a above the mean of the grade ground between building and whichever of the nearer, following is a line feet namely, twenty from the the lot building or line; but in no event shall the mean grade ground such be taken to be more than five feet or above below the mean of the im grade ground Code, mediately contiguous to building.” Zoning Boston art. 16-2, provides: “The 16-1 shall provisions Section not to apply § belfries, domes, monuments, towers, cupolas, spires, church water obser towers, towers, towers, windmills, vation radio chimneys, transmission silos, smokestacks, masts, derricks, aerials, conveyors, flag poles, elevator headhouses, tanks, monitors, water signs normally other structures built above the roof and devoted not to human but such struc occupancy, areas, tures shall to only only be erected such heights, cover such as necessary accomplish they the purpose (em are intended to serve” phasis added). encroach, The construction would at the intersections Street, of Francis Street with and Binney upon Brookline Avenue an area required by the to be zoning visibility code unobstructed in order assure BRA, for traffic. vehicular Code art. 18-3. Zoning The however, concluded that the would not interfere with suitable tx Boston
Boston Edison Co. Authority. discussed deviations, with subsidiary findings together the BRA’s substantial evidence above, supporting provide deviations did not substantially determination that these code.25 from the intent and purposes zoning derogate of the BRA in mat- sum, we In think experience Boston, city coupled ters redevelopment involving case, the BRA it in this the evidence before permitted deviations would not of these find that granting the intent and purposes substantially derogate evidence, Where, here, there is substantial code. zoning action, BRA’s we will believed, if support entrusted for that of the substitute our agency judgment the determina- with the making statute responsibility tion. Did Not Project
6. Determination that Proposed Plan. with the Master Conflict that the total the BBA found As required Plan for the with the Master would not conflict energy plant be inconsistent further, it would not Boston, and city 1965- The of the city.26 suitable development with the most is the official Mas- of Boston 1975 General Plan for the city Plan is a detailing Plan for the city. Fenway ter permitted by deviation contests the Similarly, Edison visibility. traffic with a minimum yard there be a front requirement BRA from in the L-l zone. Boston which is situated feet in that area depth of ten 13-1, B, At the street Code, art. 18-1. Table art. Zoning *29 depth provide greater which would mall pedestrian level there would be in necessary only regard deviation was required; the open space than that The BRA concluded construction. proposed stories of the upper the Other by the mall. were satisfied yard requirement the purposes the Binney and along Francis requirements open space from the deviations the BRA. allowed properly Streets were of 1.15 million storage underground that the 25Edison also contends improperly district was the H-3 restricted within gallons of oil before the use. The data appurtenant accessory as an or characterized that the conclude from which it could evidence provided BRA substantial use. accessory appurtenant an the oil was such storage of such con project . . . whether shall determine authority . . . 26“[T]he inconsistent it city . . . whether plan for the is] with the master [and flicts city.” St. of the development suitable with the most Mass. 37 Boston Edison Go. o. Boston Authority. to be in with
Master Plan and is stated conformity expressly the Plan. The in that devia- Master parties agreement tion from the Plan constitutes a conflict with the Fenway Master for the and is inconsistent with the most city Plan suitable development city.
The attack the heart Edison’s on BRA’s that finding is its does conflict the Master Plan conten- tion that land use is industrial nature. contemplated Since the General Plan no industrial expan- contemplates sion the area of the and since the proposed plant proposed land uses under the Plan exclude use at industrial Fenway the site of the of a in- project, approval plan involving However, dustrial use would both conflict with plans. BRA found that the use involved should be classified as in- and commercial, stitutional we have sustained this therefore, does not violate finding. proposed project, Further, of either any express provision plan. Fenway Plan use of the site for commercial in- contemplates stitutional purposes.
Moreover, as a basis for its that the construction finding Plan, would not conflict with the power plant Master the BRA determined that would effectuate stated of the Master Plan. The BRA goals concluded that “anticipates consolidation of certain plan medical facili- ties with the intent of other protecting communities encroachment.” addition, In the BRA deter- unnecessary mined “the locational needs of en- special proximity interaction courage medical institutions so as to among make available a full of medical services.” range in essence of Master Plan
Contending aspect the BRA relied in re- these ascertaining policies lates medical serv- consolidation of only surgical ices, Edison of the BRA’s disputes propriety finding such is advanced the construction of an purpose energy We note that the Master drawn Plan was plant. up by BRA and that the BRA is the governmental agency charged with the it out. We have stated carrying responsibility *30 that the of a legislative agency interpretation policy Edison Co. v. Boston Redevelopment Authority. in broad terms is entitled to Cf. only great weight.
expressed Consolidated, Health, Pub. v. Department Cigar Corp. think We that principle ap- More- under consideration. in the situation presently plies over, Edison claims the BRA erro- section which very for . . . commercial serv- relied states neously “[l]and medical institutions should ices which customarily support . . Given this declared be made available . .” purpose also to the which we of the Master Plan and weight give Plan, we find that the of the Master BRA’s interpretation the BRA can be con- of the Master Plan considered by goals to consolidation integration power strued referring members. facilities for the MASCO that the BRA should have made Edison also contends not conflict with the that the would express finding not that such a Plan. Since the statute does require Fenway made, find no merit in this contention. More- we finding would find that construction of over, plant the BRA did Plan further the stated Fenway goals objectives the institutions to “set the framework for that it would (1) efficient in order to make more their facilities consolidate a workable resources,” and “provide use of scarce land (2) institutional framework for necessary growth.” to Be Made Additional Payments 7. Failure to Specify to 6A. Pursuant § 121A, redevelopment exempts
General Laws
excise taxation and
and State
from local property
projects
a reduced rate.
excise tax at
them
to a
only
special
subjects
6A,
St.
inserted by
Laws c.
General
ten shall prevent
section
“[njothing
provides
for such
further
[redevelop-
contract from
providing
such
to one
to the
. . . with
city
respect
pay
corporation
ment]
in addi-
amount
or ascertainable
or more
such specific
years
been
ten as
have
section
tion may
excise
prescribed
added).
(emphasis
stated
application”
total
energy
While
application
make such addition-
would
stated
Applicants
plant
the amount
6A, it
did
specify
al
pursuant
payments
*31
Boston Edison Co. v. Boston Redevelopment Authority. that, of such Edison contends since the BRA payments. could not consider the amount of the in its deter- payments mination of the reasonableness the tax concession in rela- interest, tion to the the vote the public approving project defective. fatally 6A we conclude that Although the disclo- contemplates sure of the amounts of additional tax payment ap- made, if such to be we plication payment do believe that the omission of the amount renders the BRA’s approval invalid. In Justices, Opinion 760, 787 we stated that additional (1960), payment “[a]n factor, would be a factors, with other type along proper which . . . should take into account in Authority passing upon for the ...” applications See projects. America, v. Prudential Dodge Ins. Co. BRA could Concededly, not consider this factor
by examination of the or the application draft contract which the application because the purportedly incorporated amount of the was not payment either specified docu- Nevertheless, ment. amount was disclosed approximate at 1975,27 a public on hearing and on August October 1975, the BRA was informed city’s coun- corporation sel that the and the had city Applicants agreed specif- ic amount of tax additional and the manner in payments were to be made. Thus they the BRA had the oppor- of which the tunity, itself, return indicates it availed to con- sider this factor prior its vote approving October
Since the disclosure have purposes been requiring served, we conclude that the technical noncompliance the disclosure of 6A should not affect the provision validi- ty BRA’s vote.
The BRA’s internal rules and that an regulations require amount, contain if to be application any, paid “[t]he 27Because disclosure at occurred held hearing approximately vote, six prior weeks had the proposed Edison notice of additional amount of payment tax as well as the if opportunity objections to voice its it so desired. Mass. 37
Boston Edison Co. Authority. Boston, under 6A of to contract Section City pursuant . 121A . . and the in which it Chapter year years O. Edi- BRA subdivision Rules Regulations, paid.” that the failure to disclose amount of son further argues this rule. For the violated reasons additional payment *32 above, with this we have discussed technical noncompliance of rule result in the invalidation the BRA’s vote. does not Moreover, Rules themselves the BRA’s pro- Regulations “if an applica- vide that consent given upon tion, shall be deemed to have been submit- such application BRA ted in with these rules conformity regulations.” l.28 Rules and Regulations, §
8. Terms Had Ex- the BRA Members Whose Authority of Plan. the the Prior to Vote Approving Proposed pired to us determine in this have Edison attempts proceeding the BRA held office validly public whether the members of us, and it cannot in 1975.29This issue is not before properly be decided in this proceeding. and title
It well established that a
officer’s
public
right
in a direct
but
collaterally,
only
to office cannot
attacked
of
her ti-
to determine
his or
validity
brought
proceeding
See,
Hill v. Trustees
Glemoood
tle to the office.
e.g.,
388,
Walsh,
393
v.
323 Mass.
(1948); Brierley
Cemetery,
DiStasio, 297
292, 295
v.
299 Mass.
Commonwealth
(1938);
cert, denied,
683, and 302
347, 350-352,
302 U.S.
Mass.
Lizotte,
Boston Edison Co. v. Boston Redevelopment Authority. of this rule is to ensure that officials purpose public have a full defend in a opportunity against challenge where the merits of matter proceeding particular public Case, are also at issue. Sheehans DiStasio, See v. Commonwealth at 350-351. supra Moreover, to insti- Legislature placed authority tute of- proceedings against public persons allegedly holding fice without credentials within the discretion proper largely See Walsh, General. v. at Attorney Brierley supra 295; v. Haupt 170 Mass. 72-76 Rogers, (1898); Attorney Sullivan, Gen. L.G. (1895); St. appearing By requiring the Attorney General to institute direct proceedings, has Legislature sought protect members rights who, to do necessity, business compelled with an officer who is the duties and exercising privileges *33 an office under color of at the same right, time protect officials of public lawsuits on based indi- multiplicity vidual interests rather than on the public interest. We think this scheme Further, sound.30 we legislative have recently reiterated the that in this principle Commonwealth actions on of behalf the interest are committed to the Attor- General. See ney Administration ir Secretary Fin. v. At- of Gen., 367 Mass. 163 See torney also v. (1975). Feeney Commonwealth, 373 249, 9, Mass. 359 G. L. c. (1977); c, St. appearing 292.31 We no perceive reason to from this rule. depart
Since issue of the of the BRA members is not authority before us in this we no properly views proceeding, express 30The Attorney General has not participated in this The proceeding. record any does reflect effort by Edison to secure his assistance or join the members of the individually. BRA 31 warranto, The quo abolition of the writ of see Mass. R. P. 81 (b), Civ. 365 (1974), 841 did Mass. not eliminate the relief formerly available un der the writ. See Municipal Commissioners Civ. Serv. v. Court of of Boston, City 369 Mass. 90 See (1975). also St. We emphasize that civil rules affected the procedure obtaining relief, not the nature extent of the relief available.
76 374 37 Mass.
Boston Edison Co. v. Boston Redevelopment Authority. issue L. the merits of this or on of G. applicability 121B, 5,32 to the facts of this case. c. 652 and c. Edison’s 121A Finally, argument merits and overbroad no discus- unconstitutionally vague sion. have statutes in We considered these already light these contentions and have their sustained constitutionality. America, Ins. Prudential Co. Dodge Justices, (1961). Opinion of of the to reach conclusions Edison failure BRA urged by does not render unconstitutional statutes under which agency operating. Court dismiss- Accordingly, Superior judgment is affirmed. ing complaint
Judgment affirmed. I While concur (concurring result). J. Quirico, Court’s dismissal court’s affirmance Superior case, more in this I would accord Edison a complaint I BRA, the actions of limited question standing actions would a more limited review those apply scope than does this court.
1. Standing. of “Stand- under the In of its heading part opinion,
(a) we the court states “while think question ing,” one, close conclude that the Edison’s is a we gener- standing *34 is insuf- al from that harm expected competition principle to confer ficient standing inapplicable.” to the court seems stress In Edison according standing action Edison will fact as a BRA consequence $3,000,000 a in revenues for pe- suffer a loss of about year thus riod of thirty-five qualifying “aggrieved” years, that in 1960, 652, c. 13.1 an appro- under St. agree person § 426, 121B, pro St. c. through Laws c. as amended General BRA.], re unless sooner “Every member part: in relevant vides [of moved, qualification serve his successor.” shall until
Boston Edison Co. v. Boston Redevelopment Authority. before the court or administrative priate proper proceeding tribunal and with all Edison necessary parties participating, to would have contest an or the standing application by, of, authorization another “Electric as defined in company,” G. L. in . . . business engage “making or selling, selling, distributing electricity” any of the area or now served part territory by exclusively Edison, but this is not such a case The BRA proceeding. cannot as an give Applicants “Elec- authority operate statute, tric as defined and it company” did pur- to do so. port In 5 of its under the
(b) part opinion, “Allow- heading Code,” ance Deviations note Zoning court holds that Edison has no challenge standing BRA’s decision deviations from the I allowing code. zoning with that agree holding. Notwithstanding holding, court discusses in considerable detail the several de- zoning viations allowed the BRA and concludes that in allowing them the BRA did not exceed its thereto. power respect I do not believe that this detailed treatment necessary view the that Edison has holding no to be heard standing thereon. Review,
2. Scope of The court holds that the test the court in applied by certain of the reviewing decisions of the BRA is whether they evidence,” based on “substantial and it concludes that there was “substantial evidence” to those deci- support sions. I refer to the decision that the particularly area in was a question “decadent area” within the meaning A, 1, G. L. c. 121 and the decision that the proposed proj- ect “will constitute a use and benefit” within of St. meaning
This court has held in a line of decisions that the test long to be review of applied decisions of these judicial is much less strict types than the “substantial evidence” test the court in this case. It being applied by is sufficient to re- view but a few of our decisions which have either applied
78
Boston Edison Co. o. Boston Authority. or test com- “rational basis” test or “arbitrary capricious” decisions. to monly applied legislative Auth., Boston Hous. v. 304 Mass. 509-510 Stockus In are, “There instances where we said: undoubtedly, (1939), to men in related experience special subjects training construction, sanitation, fire prevention, zoning, dif health, service and other honestly social subjects might district was a slum fer in whether a certain determining one, we have no to If the is debatable right area. question for that of the defendants acting substitute our judgment whom the the local authority, upon Legislature housing within its ‘To determine what areas conferred power ” In Despatches’ areas.’ constitute sub-standard jurisdiction Auth., 259, 261 Inc. Somerville Hous. v. Mass. Cafe aof author said in a finding housing we upholding (1955), “It is not for and decadent: that an area was substandard ity the board. ... If there take the functions of the court to over for the of discretion room exercise any judgment Worcester, 334 Mass. In Bowker board must prevail.” to evidence in the introduce sought (1956), plaintiffs authori of the housing trial to controvert findings court and deca was “substandard the area in question ty held, evidence properly at dent.” We “[s]uch to has these power given agencies excluded. Legislature case. circumstances make findings necessary In courts.” retried our are not be Their findings Auth., v. Worcester Hous. Co. Knitting Worcester Realty deter “The 19, 21 we said: underlying (1956), that, viewing are such minations of the authority or it arbitrary said that was whole, it cannot be area as them, or find, that it is a substandard based capricious area, defini the statutory and decadent within substandard bad faith” tions, of such findings suggests or that making v. Boston Redevelopment Moskow In omitted). (footnote attention we said: “No Auth., (1965), 10 and 28 at property the allegations can paid substandard, decadent, within a Street is not State no had power the Authority area and that blighted open *36 v. Labor Relations Commission Boston Teachers 66. Union, Local take on such Courts are not authorized to grounds. second in such guess Authority more- respects. allegations, over, do not mean that bodies by stat- public designated ute In might otherwise.” our deci- reasonably adjudge sion in Reid Comm’r Acting Dep’t Community of Affairs, we cited all of the above (1972), cases with in concluding hearings type conducted the authorities involved are not by adjudicatory but rather are in nature. legislative
In its decision case the court present refers to most above, of the cases cited but concludes are not that they ap- to this case. All of those plicable cases involved the taking eminent domain for private either property hous- public or urban renewal In one ing no projects. those cases did we the “substantial evidence” test apply applied pres- ent I case. do not believe that a more test should be stringent in this case which applied does not involve the taking any eminent property domain than was in those applied pre- vious cases on the issues whether the area awas question “decadent area” and whether the proposed “will constitute a use and benefit.”
Labor Relations Commission vs. Boston Teachers
Union, Local & others. Suffolk. March 1977. December Hennessey, Present: & C.J., Braucher, Wilkins, Liacos, Abrams, JJ. Contempt. Association, Public Employment, Labor dispute. Voluntary
Labor union. A contempt petition alleging that the named union officials “authorized 150E, ratified” a strike and other conduct proscribed by G. L. c. (a), 9A such conduct was in violation of outstanding court insufficiently specific give
orders was the defendants notice that their in failing conduct disavow sanction sheet distributed to union members formed the basis the contempt citation. [87-88]