Benevolent & Protective Order of Elks, Lodge No. 65 v. Planning Bd. of Lawrence

• Decision Date: 13 December 1988
• Docket Number: No. E-4808,E-4808
• Citation: 531 N.E.2d 1233,403 Mass. 531
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: BENEVOLENT & PROTECTIVE ORDER OF ELKS, LODGE NO. 65, et al. 1 v. PLANNING BOARD OF LAWRENCE, et al. 2 (and two companion cases 3 ).

Page 1233

531 N.E.2d 1233

403 Mass. 531

BENEVOLENT & PROTECTIVE ORDER OF ELKS, LODGE NO. 65, et al.¹

v.

PLANNING BOARD OF LAWRENCE, et al. ² (and two companion cases ³ ).

No. E-4808.

Supreme Judicial Court of Massachusetts,

Essex.

Argued Sept. 15, 1988.

Decided Dec. 13, 1988.

Philip M. Cronin (Roger D. Matthews, Boston, with him), for plaintiffs.

Andrew P. Hier (Stephen Raube-Wilson, Boston, with him), for the city of Lawrence & others.

Richard M. Brunell, Asst. Atty. Gen., for Secretary of the Executive Office of Communities and Development.

Joyce Frank, Boston, for Allen E. Koenig & another.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

HENNESSEY, Chief Justice.

The plaintiffs commenced actions ⁴ seeking to enjoin the taking by eminent domain, pursuant to the Riverfront Urban Renewal Project (project), of their land in Lawrence (city), and seeking damages for violation of their civil rights. The plaintiffs assert constitutional deficiencies and violations of statutory requirements in proceedings before local authorities ⁵ under G.L. c. 121B, § 48 (1986 ed.), and in the review and approval of the project by the Secretary of the Executive Office of Communities and Development (EOCD) under § 48. Additionally, EOCD raises an issue of jurisdiction.

General Laws c. 121B (1986 ed.) provides a comprehensive scheme for the approval of an urban renewal plan. Section 46 places on a local urban renewal agency ⁶ the responsibility for determining what areas within its jurisdiction are decadent, substandard, or blighted open areas. The urban renewal agency is required to prepare an urban renewal plan in order to begin the process of redeveloping and improving these areas. After the urban renewal plan has been prepared, the local planning board must find that the plan is based on a local survey and conforms to a comprehensive plan for the area as a whole. Approval of the plan by the city council then is required after a public hearing. After local approval, the Department of Community Affairs (department), reviews the plan. The department must concur in the local planning board's findings, and determine that the urban renewal plan is sufficiently complete and the project area is an appropriate subject for renewal. When the department gives its approval, the local urban renewal agency may undertake the project. See G.L. c. 121B, §§ 46-48. ⁷

The project consists of three major parcels: (1) a park of approximately forty-seven acres fronting the Merrimack River to be created by the Department of Environmental Management; (2) a parcel designated for educational and recreational use of some eighty-five acres running from the park parcel to Andover Street. Emerson College has an agreement with the redevelopment authority to purchase this parcel; (3) a new major transportation connector between the new riverfront park and college campus and downtown Lawrence, to be built by the city. ⁸ The proponents of the plan state that by improving a large tract of riverfront land "the Riverfront Urban Renewal Project is expected to address the problems of a blighted open area and provide a catalyst for development and economic revival in Greater Lawrence."

It is undisputed that Lawrence, as compared to other Massachusetts cities, has had serious economic difficulties. Unemployment has been and continues to be above the State and Federal averages and welfare caseloads continue to be on the rise despite the efforts of the State government.

The plaintiffs sought review in the Superior Court of the approval of the project by the local authorities and the EOCD. After a trial commenced, the judge in the Superior Court granted summary judgment on the civil rights claims for the defendants in the third action. Trial concluded on the remaining claims and the judge entered judgments for all defendants. The plaintiffs appealed. We granted their application for direct appellate review, and now affirm the judgments.

1. Jurisdiction.

We first address the EOCD's claim that the Superior Court lacks jurisdiction to review the approval of an urban renewal plan. We have consistently stated that courts may review the purpose for which land is taken. Luke v. Massachusetts Turnpike Auth., 337 Mass. 304, 308, 149 N.E.2d 225 (1958). McAuliffe & Burke Co. v. Boston Hous. Auth., 334 Mass. 28, 30-31, 133 N.E.2d 493 (1956). Burnham v. Mayor & Alderman of Beverly, 309 Mass. 388, 390, 35 N.E.2d 242 (1941). Here, the plaintiffs claim the taking was not for a public purpose, the redevelopment of a blighted open area, but instead was for the purpose of relocating Emerson College. Judicial review is available for such a claim.

Although G.L. c. 121B does not expressly grant the Superior Court jurisdiction to review the actions of the EOCD and local authorities, ⁹ this absence of an express grant does not immunize these actions from judicial scrutiny, as the EOCD contends. See Boston Edison Co. v. Boston Redevelopment Auth., 374 Mass. 37, 53, 371 N.E.2d 728 (1977); West Broadway Task Force, Inc. v. Commissioner of the Dep't of Community Affairs, 363 Mass. 745, 750, 297 N.E.2d 505 (1973). Similarly, the legislative nature of the findings by the local authorities and the EOCD, see, e.g., Reid v. Acting Comm'r of the Dep't of Community Affairs, 362 Mass. 136, 143, 284 N.E.2d 245 (1972), and the absence of a statutory requirement that the EOCD explain its findings, see G.L. c. 121B, § 48, do not indicate a legislative intent to preclude review. These factors indicate a legislative scheme which provides for less rigorous judicial scrutiny, rather than no judicial scrutiny. See Boston Edison Co., supra. Cf. Reid, supra; Moskow v. Boston Redevelopment Auth., 349 Mass. 553, 561, 210 N.E.2d 699 (1965), cert. denied, 382 U.S. 983, 86 S.Ct. 558, 15 L.Ed.2d 472 (1966); Worcester Knitting Realty Co. v. Worcester Hous. Auth., 335 Mass. 19, 21-22, 138 N.E.2d 356 (1956); Bowker v. Worcester, 334 Mass. 422, 434, 136 N.E.2d 208 (1956); Despatchers' Cafe, Inc. v. Somerville Hous. Auth., 332 Mass. 259, 261-262, 124 N.E.2d 528 (1955); Stockus v. Boston Hous. Auth., 304 Mass. 507, 509-511, 24 N.E.2d 333 (1939).

The EOCD's reliance on our decision in Cummings v. Secretary of the Executive Office of Envtl. Affairs, 402 Mass. 611, 524 N.E.2d 836 (1988), is misplaced. Although in Cummings we stated that the Superior Court lacked jurisdiction to review the Secretary's actions absent express statutory authority, we based our decision on a close reading of G.L. c. 214, § 7A, and G.L. c. 30, § 62H (1986 ed.). Cummings, supra at 613, 618, 524 N.E.2d 836. Such an analysis does not apply to a case, such as this one, where the plaintiffs challenge the validity of a taking. McAuliffe & Burke Co., supra. Luke, supra. Burnham, supra. We therefore conclude that the Superior Court had jurisdiction over the plaintiffs' claims.

2. Standard of Review.

The LRA, planning board, and city council are not "agencies" for the purposes of G.L. c. 30A (1986 ed.) (see § 1 ), and are not required by the provisions of G.L. c. 121B, §§ 46-48, to furnish an adjudicatory, "trial-like" procedure. See Sherman v. Rent Control Bd. of Brookline, 367 Mass. 1, 7-8, 323 N.E.2d 730 (1975). Also, a proceeding before the EOCD is not an "adjudicatory proceeding" as defined in G.L. c. 30A, § 1(1). Reid, supra 362 Mass. at 142, 284 N.E.2d 245. Therefore, c. 30A, § 14, which provides the standard of review for an appeal from an agency's adjudicatory proceeding, does not apply.

The "arbitrary and capricious" standard generally governs judicial review of the specific statutory findings required by § 48. Boston Edison Co. v. Boston Redevelopment Auth., 374 Mass. 37, 52-53, 59 n. 15, 371 N.E.2d 728 (1977). We stated in Boston Edison Co. that review of decisions in c. 121B redevelopment projects under the "arbitrary and capricious" standard is appropriate because such projects require active participation by public agencies and lack the tax benefits of c. 121A projects. Boston Edison Co., supra at 53, 371 N.E.2d 728.

The plaintiffs argue that we should judge the public agencies' actions by the substantial evidence test. They argue generally that the "arbitrary and capricious" standard is too deferential to agencies involved in urban renewal decisions and argue specifically that the influence of consultants and the incentives the project offered to Emerson College nullified G.L. c. 121B's scheme of checks and balances and require application of the substantial evidence test. The agency decisions challenged in this case were not made after adjudicatory hearings, and thus there are no agency records to which the substantial evidence test could be applied in its traditional form. We are not at all certain in the circumstances of this case that there is a significant difference between agency action that is arbitrary and capricious because its decision was not supported by facts, and agency action not supported by substantial evidence. Here, the judge applied the "arbitrary and capricious" standard (and ruled it was met) and further ruled that, in any event, the challenged findings of the planning board, the LRA, and the EOCD ¹⁰ satisfied what he described as the more rigorous substantial evidence standard, based on the material that was before each agency when it made its determination. Even if we were to accept the plaintiffs' arguments that there was error in the judge's rulings as to standard of review, clearly there was no prejudicial error in the judge's application of the standard of review.

3. The LRA's Finding of a Blighted Open Area.

Exercising the power of eminent domain is improper unless the taking is for a public purpose. Sellors v. Concord, 329 Mass. 259, 261, 107 N.E.2d 784 (1952). See Papadinis v. Somerville, 331 Mass. 627, 629, 121 N.E.2d 714 (1954); art. 10 of the Massachusetts Declaration of Rights. Taking for redevelopment an area which is a "blighted open area" as defined by G.L....