Ayer v. Cram

• Decision Date: 30 June 1922
• Citation: 136 N.E. 338,242 Mass. 30
• Parties: AYER v. CRAM et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

242 Mass. 30

136 N.E. 338

AYER

v.CRAM et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 30, 1922.

Report from Supreme Judicial Court, Suffolk County.

Proceeding by Frederick Ayer against Ralph A. Cram and others, to review the action of the commission on the height of buildings in the city of Boston. Reported by a single justice to the Supreme Judicial Court. Petition dismissed.

Charles K. Cobb, of Boston (Nathan Matthews, of Boston, of counsel), for petitioner.

Arthur C. Hill, Corp. Counsel, and Samuel Silverman, Asst. Corp. Counsel, both of Boston, for defendants.

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 Sp. 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 125 feet, and the other, called B, wherein buildings were used chiefly for residence or nonbusiness purposes, the height of which was limited to from 80 to 100 feet depending upon conditions not here relevant. By virtue of action taken under these earlier statutes the lots of the plaintiffs were in district B and the height of the building on one of their lots was limited to 100 feet and of that on their other lot to 80 feet. The validity of these limitations is not here in question. The case must be considered on the footing that the plaintiffs' land rightly had become subject to those restrictions. Attorney General v. Williams, 174 Mass. 476, 55 N. E. 77;Id., 178 Mass. 330, 59 N. E. 812, affirmed in Williams v. Parker, 188 U. S. 491, 23 Sup. Ct. 440, 47 L. Ed. 559;Parker v. Commonwealth, 178 Mass. 199, 59 N. E. 634;Welch v. Swasey, 193 Mass. 364, 79 N. E. 745,118 Am. St. Rep. 523, 23 L. R. A. (N. S.) 1160;Id., 214 U. S. 91, 29 Sup. Ct. 567,53 L. Ed. 593. The defendants, pursuant to the authority conferred by Sp. St. 1915, c. 333, gave notice and held public hearings 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 plaintiffs, 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 125 feet might be erected on them. Two petitions in the nature of appeals from this revision were seasonably filed with the defendants. 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 plaintiffs' 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 100 feet in height to be 125 feet in height. The other appeal was by Trinity Church, whose house of worship is across Clarendon street from the lots of the petitioner. 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 plaintiffs from 100 feet to 125 feet and on the other from 80 to 125 feet. Without holding further hearings the defendants 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 plaintiffs 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 plaintiffs' first contention is that neither the trustees of the Public Library nor Trinity Church were entitled to appeal from the order of November 2, 1916. It was provided by Sp. St. 1915, c. 333, § 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 they might ask the commission to reconsider their action. Of course our decision on this point does not affect the scope and meaning of ‘persons aggrieved’ as laid down in numberous other decisions. See, for example, Donham v. Public Service Commissioners, 232 Mass. 309, 328, 329, 122 N. E. 397;Monroe v. Cooper, 235 Mass. 33, 126 N. E. 286; and cases collected in each decision. The altered conditions here presented require a different meaning in this particular statute.

2. There was no necessity for notice to the plaintiffs on the hearing of the appeals. The statute required none. The general notice and public hearings specified by the statute were given. The plaintiffs had ample opportunity to present their views at that hearing. The work of the commission ‘was not legislation, but the ascertainment of facts and the application of the statute to them for purposes of administration.’ Welch v. Swasey, 193 Mass. 364, 375, 79 N. E. 745,118 Am. St. Rep. 523, 23 L. R. A. (N. S.) 1160. The adjustment of the details of the boundary lines of the two districts to the particular circumstances of each parcel of property within a doubtful area demanded the administrative and executive ability of practical men of experience and vision. In being denied a hearing, the petitioners were deprived of no right. No hearing was required by general principles. Commonwealth v. Sisson, 189 Mass. 247, 252, 75 N. E. 619,1 L. R. A. (N. S.) 752, 109 Am. St. Rep. 630;Commonwealth v. Feeney, 221 Mass. 323, 325, 108 N. E. 1068;Burgess v. Mayor and Aldermen of Brockton, 235 Mass. 95, 100, 126 N. E. 456, and cases there collected.

3. The contention that the change made by the commission in its original order of November 2, 1916, by its order of January 12, 1917, was based exclusively upon aesthetic considerations, cannot be supported. There is no statement of this nature in the order. The argument is that an inference to that effect ought to be drawn from all the circumstances. The land here in question is in the immediate neighborhood of Copley Square. The Public Library and Trinity Church both face that square. The New Old South Church is across the street from it. The height of buildings on parts of streets adjacent thereto was limited by St. 1898, c. 452, under the power of eminent domain. That statute was held constitutional in Attorney General v. Williams, 174 Mass. 476, 55 N. E. 77,47 L .R. A. 314, affirmed in Williams v. Parker, 188 U. S. 491, 23 Sup. Ct. 440, 47 L. Ed. 559. It is an open square and public park with adjacent buildings of great public importance and of architectural nobility of design housing works of art, books and manuscripts of extraordinary value.

AEsthetic considerations alone cannot justly form the basis for the exercise of police power to limit the use of private property, but they may be taken into account as ancillary to some other main purpose within the appropriate sphere of the police power. Welch v. Swasey, 193...