Ayer v. Commissioners on Height of Buildings in Boston

• Decision Date: 28 June 1922
• Citation: 242 Mass. 30
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: FREDERICK AYER & others v. COMMISSIONERS ON HEIGHT OF BUILDINGS IN BOSTON.

242 Mass. 30

FREDERICK AYER & others v. COMMISSIONERS ON HEIGHT OF BUILDINGS IN BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

June 28, 1922

November 7, 8 1921.

Present: RUGG, C.

J., BRALEY, DE COURCY, CROSBY, & CARROLL, JJ.

Commission on Height of Buildings in Boston. Constitutional Law, Police power. Boston. Words, "Persons aggrieved."

In certiorari proceedings brought by the owner of two lots of land on the easterly side of Clarendon Street between Boylston Street and St. James

Avenue in Boston against two members of the commission on the height of buildings in Boston created by Spec. St. 1915, c. 333, it appeared that by an order filed on November 2, 1916, after notice and public hearings the commission revised the building districts in Boston so that the petitioner's lots, which previously had been in district B and had had a limitation of eighty feet and one hundred feet in the height of the buildings thereon, were included in district A wherein the height of buildings might be one hundred and twenty-five feet, and also certain land adjacent to the Public Library, which formerly was in district B with a limitation of one hundred feet in the height of buildings thereon was included in district A. It also appeared that a petition in the nature of an appeal from this revision was filed by the trustees of the

Public Library which did not refer to the land on Clarendon Street, and which was based upon increased fire hazard to the Publie Library caused by the revision and that a similar petition was filed by Trinity Church, which had a house of worship across the street from the petitioner's lots, objecting that the revision would interfere with the architectural beauty of the church. Without notice to the petitioner and without further hearings, the commission on January 12, 1917 filed a new order changing their former order as to the lines of districts A and B so that the petitioner's lots and the land adjacent to the Public Library were placed in district B as theretofore. Held, that

(1) The trustees of the Public Library and Trinity Church came within the designation, "any person who is aggrieved," as used in Spec. St.

1915, c. 333, Section 2, and had a right to appeal from the order of November 2, 1916;

(2) There was no necessity for notice to the petitioners on the hearing of the appeals;

(3) In being denied a hearing on the appeals, the petitioners were deprived of no right;

(4) It could not be inferred that the commission's order of January 12, 1917, was based exclusively upon aesthetic considerations;

(5) The orders of November 2, 1916, and of January 12, 1917, should be construed as one in their ultimate effect and in combination they constituted the final determination of the commission as to the matters committed to them by the statute;

(6) No inference of individual discrimination in the sense of a violation of rights to due process of law and to equal proteetion of laws as to personal and property rights contrary to constitutional guarantees was warranted from the facts;

(7) The two orders were within the scope of the statutory power conferred upon the commission.

Although aesthetic considerations alone cannot justly form the basis for the exercise of police power to limit the use of private property, they may be taken into account as ancillary to some other main purpose within the appropriate sphere of the police power. The commission on height of buildings in the eity of Boston created by

Spec. St.

1915, c. 333, in the practical administration of its duties is entitled to rational presumptions in favor of the legality of its acts.

Upon an appeal under Spec. St. 1915, c. 333, Section 2, from an order of the commission on the height of buildings in the city of Boston revising the building districts, the commission was not confined in its deliberations to the reasons set forth in the appeal but was bound to give due heed to all public considerations and private interests which they ought to have had in view under the statute in originally revising the division line between the districts created.

PETITION, filed in the Supreme Judicial Court on September 26, 1917, for a writ of certiorari addressed to the commissioners on height of buildings in the city of Boston created by Spec. St. 1915, c. 333, directing them to certify to the court their orders and proceedings in reference to the determination and revision of boundaries of building districts A and B in the city of Boston.

The petition came on to be heard by Jenney, J., upon an agreed statement of facts described in the opinion and, at the request of the parties, he reported the case to the full court for determination.

N. Matthews, (C.

H. Baesler with him,) for the petitioners.

A. D. Hill, (S.

Silverman with him,) for the respondents.

RUGG, C. J. This is a petition by the owners of the real estate on the easterly side of Clarendon Street between Boylston Street and St. James Avenue against the members of the commission on height of buildings in the city of Boston. That commission was created by Spec. St. 1915, c. 333, for the purpose of relocating the boundaries of districts in Boston within which under earlier statutes buildings had been restricted as to height. Under authority conferred by St. 1904, c. 333, as amended by St. 1905, c. 383, Boston had been divided into two districts, one called A, wherein buildings were used chiefly for business, the height of which was limited to one hundred and twenty-five feet, and the other called B, wherein buildings were used chiefly for residence or non-business purposes, the height of which was limited to from eighty to one hundred feet depending upon conditions not here relevant. By virtue of action taken under these earlier statutes, the lots of the petitioners were in district B and the height of the building on one of their lots was limited to one hundred feet and of that on their other lot to eighty feet. The validity of these limitations is not here in question. The case must be considered on the footing that the petitioners' land rightly had become subject to these restrictions. Attorney General v. Williams, 174 Mass. 476 , S. C. 178 Mass. 330, affirmed in Williams v. Parker, 188 U.S. 491. Parker v. Commonwealth, 178 Mass. 199 . Welch v. Swasey, 193 Mass. 364; S. C. 214 U.S. 91. The respondents, pursuant to the authority conferred by Spec. St. 1915, c. 333, gave notice and held public bearings and thereafter on November 2, 1916, made and caused to be recorded an order revising the boundaries of districts A and B whereby, amongst many other and extensive changes, the two lots owned by the petitioners, having been previously in district B, were placed in district A, so that, if it stood as a final determination, buildings to a height of one hundred and twenty-five feet might be erected on them. Two petitions in the nature of appeals from this revision were seasonably filed with the respondents. One by the trustees of the Public Library of the city of Boston related to property adjacent to the Boston Public Library and did not refer to the petitioners' land. It recited at length reasons, based chiefly upon increased fire risk to that building and its priceless contents, why the revision of November 2, 1916, was improper in that it placed adjacent land in district A instead of district B as theretofore, and permitted thereby buildings previously limited to one hundred feet in height to be one hundred and twenty-five feet in height. The other appeal was by Trinity Church, whose house of worship is across Clarendon Street from the lots of the petitioners. That appeal in its statement of reasons refers chiefly to the architectural beauty and dignity of the church and sets forth the harm likely to be done it in this respect by permitting an increase in the height of the building upon one lot of the petitioners from one hundred feet to one hundred and twenty-five feet and on the other from eighty to one hundred and twenty-five feet. Without holding further hearings, the respondents on January 12, 1917, filed a new order changing the lines of districts A and B so that land adjacent to the Public Library was placed in district B as it theretofore had been and the two lots of the petitioners were put back in district B; that is to say, they were left in respect to height of buildings as they were for years before the revision of November 2, 1916.

1. The petitioners' first contention is that neither the trustees of the Public Library nor Trinity Church was entitled to appeal from the order of November 2, 1916. It was provided by Spec. St. 1915, c. 333, Section 2, that "any person who is aggrieved by said order [of the commission revising the boundaries of the districts] may appeal to the commission for revision within sixty days after the recording thereof." The scope and meaning of the words "person who is aggrieved" must be determined with reference to the context and the subject matter. The statute relates to a change in the laws respecting heights of buildings, a subject of direct financial interest not only to owners of land shifted from one district to the other but to adjacent and nearby owners whose property values well might be affected by changing uses permitted to other adjacent and nearby estates. Moreover, the appeal permitted is not to a court but to the commission itself. Doubtless it was designed to enable anybody, whose property rights were immediately affected by the lines, to call special facts to the attention of the commission. It seems plain to us that both these corporations were so affected that within the meaning of this statute t...