Charles River Park, Inc. v. Boston Redevelopment Authority

• Decision Date: 10 July 1990
• Docket Number: No. 88-P-1008,88-P-1008
• Citation: 28 Mass.App.Ct. 795,557 N.E.2d 20
• Parties: CHARLES RIVER PARK, INC. v. BOSTON REDEVELOPMENT AUTHORITY.
• Court: Appeals Court of Massachusetts

Page 20

557 N.E.2d 20

28 Mass.App.Ct. 795

CHARLES RIVER PARK, INC. v. BOSTON REDEVELOPMENT AUTHORITY.

No. 88-P-1008.

Appeals Court of Massachusetts Suffolk.

Argued June 1, 1989.

Decided July 10, 1990.

Saul A. Schapiro, Boston, for defendant.

Robert J. Muldoon, Jr. (David A. Guberman, Boston, with him) for plaintiff.

Rudolph F. Pierce, David M. Abromowitz & Rebecca J. Benson, Boston, for Planning Office of Urban Affairs, Inc., amicus curiae, submitted a brief.

Before BROWN, DREBEN and FINE, JJ.

BROWN, Justice.

In this action for specific performance, Charles River Park, Inc. ("CRP"), claims the right to develop the last remaining undeveloped parcel of land in the West End Land Assembly and Redevelopment Project, an urban renewal project. The case is before this court on a report by a judge of the Superior Court of a grant of summary judgment in favor of CRP and against the Boston Redevelopment Authority ("BRA"), the moving party. Upon review of the entire record, we conclude that the judge erred and that summary judgment should have been granted to the BRA. ¹

1. Background. ² The parcel in question, now referred to as Area E, is a portion of what was originally designated as parcel 1E, one of seven parcels of land which CRP was to lease and develop, under a master leasehold agreement ("MLA"), executed March 2, 1960, between CRP and the BRA. ³ The land was to be developed in accordance with the West End Land Assembly and Redevelopment Plan (the "West End Plan"), first drawn up in 1956 and revised in 1959. CRP was designated developer in 1957.

Unlike the usual agreement to lease with an option to purchase, the MLA had as a primary purpose not simply an exchange of property for money but also a public goal: the redevelopment of land in an urban renewal area in accordance with a redevelopment plan drawn up by a public agency, here the BRA.

Under the schedule set out in § 204(b) of the MLA, the final two parcels, Parcels 1F and 1E, were originally scheduled for conveyance to CRP by March 7, 1964, and March 7, 1965, respectively. Various factors, however, contributed to delay in transferring these last two parcels. Two of those factors were the proposed taking of 40,000 square feet from Parcel 1F and the subsequent requests (in November, 1962, and October, 1963) by CRP, pursuant to § 801 of the MLA, to add Parcel 2 ⁴ to Parcels 1E and 1F to offset the loss of area from Parcel 1F. According to letters sent to the BRA by CRP, those changes required a redrawing of the boundary lines of Parcels 1E and 1F and apparently necessitated revisions of the site plans for the parcels in question. As a result of ongoing uncertainty over the boundaries of the parcels, CRP did not submit revised site plans in 1965.

In March, 1966, a new architect took the place of the original architect, whom CRP had discharged. A May, 1966, BRA status report stated that CRP had been informed that the boundaries of Parcels 1E and 1F would be revised to include the 40,000 square foot area and Parcel 2 and that CRP had been advised to prepare a new site plan for the parcels as revised. On June 11, 1968, the Boston public facilities commission voted to release Parcel 2 to the BRA for development, and the BRA board then voted, on June 20, 1968, to include Parcel 2 in Parcels 1E and 1F for development by CRP. ⁵

CRP submitted revised site plans for Parcels 1E, 1F, and 2 in 1966, 1967, and 1968. None of the plans submitted, however, complied with the land use restriction (multifamily residential) for Parcels 1E and 1F set out in the West End Plan: the proposed plans submitted by CRP all included commercial and recreational as well as residential uses. ⁶ In October, 1967, the BRA executive director wrote Mr. Jerome Rappaport, counsel for CRP, stating that the board had instructed him to inform CRP "to comply with the land use controls in the ... Plan with respect to Parcels 1E and 1F, namely, that these two parcels are restricted to residential use only."

On June 20, 1968, the BRA voted "to approve the preliminary plans of [CRP] ..., subject to later review on specific variances that may be required and subject to the review of the final plans by the [d]esign [r]eview [o]ffice." ⁷ At the same meeting, the BRA rejected a request by CRP for immediate delivery of Parcels 1E and 1F. ⁸ CRP continued to submit plans with nonresidential components. On August 22, 1968, CRP's architect submitted to the BRA director of urban design two proposals for the project which included, in addition to residential towers, a five-story office building. Further plans were submitted in May, 1969.

In June, 1969, CRP submitted revised general plans for Parcels 1E, 1F, and 2. In a cover letter accompanying the June, 1969, submission which referred to the possible adoption by the BRA board of variances and revisions, CRP requested that a proposed third residential tower shown on the plans be made optional. In a letter sent to CRP in response, counsel representing the BRA requested "a clear and unequivocal answer" to the question whether CRP would agree either to construct all three residential towers within a specified time or, if not, to construct the two towers and have excluded from the land conveyed to CRP the portion allocated to the third tower. CRP's response, which could not be termed unequivocal, stated, e.g., "we obviously hope and expect to be able to build the third tower.... We are merely requesting the right not to go forward with it."

On July 31, 1969, the BRA board adopted a resolution to amend the West End Plan to change the land use restrictions for Parcels 1E, 1F, and 2 to multifamily residential with complementary commercial and recreational uses, conditional upon the execution by CRP by August 15, 1969, of an attached amendment to the MLA which would have (1) set a schedule for submission of plans and commencement of construction, (2) provided that if CRP failed to construct the third residential tower it would reconvey that portion of the land to the BRA, and (3) increased the purchase price for the portion of the parcel to be used for a proposed office building. The resolution accompanying the vote noted that § 204(e) of the MLA directed that the parties make their best efforts to speed the schedule of commencement of the lease terms in order to achieve early completion; that change of circumstance had "operated to decelerate the schedule of commencement of the lease terms for ... 1E and 1F," the change of circumstance being CRP's October, 1963, request to add Parcel 2 to Parcels 1E and 1F and the resulting negotiations with other parties; that the BRA had voted on June 20, 1968, to include Parcel 2 with 1E and 1F; that CRP's obligation to construct on Parcels 1E and 1F in accordance with the plans approved in 1960 was not implemented because of the aforementioned change in circumstance; that it was now feasible and desirable to amend the West End Plan; and that the BRA wished to proceed expeditiously based on the "concept of the preliminary plans submitted" by CRP. CRP did not execute the proposed amendment to the MLA.

On August 18, 1969, CRP again submitted proposed site plans calling for three residential towers, an office building, shops, a parking garage, and townhouses. In response, the BRA director wrote CRP on August 21 that the BRA could not approve the proposed plans because they indicated land uses for Parcels 1F and 2 not permitted under the West End Plan and because the proposed plans were not in sufficient detail to permit the BRA to determine the number and nature of variances ⁹ from the regulations and controls in the West End Plan which might be required. The letter also referred to the BRA's insistence on the execution of the proposed amendment to the MLA to ensure, "among other things, adequate design review control...." ¹⁰

A January, 1970, letter from the BRA director to CRP referred to a proposal by CRP to submit by February 5 "a firm and detailed proposal" for Parcels 1E, 1F, and 2 for consideration by the BRA and to "accelerate development" of the parcels. On February 17, the BRA director wrote a follow-up letter stating that the BRA was still awaiting the response which had been due February 5. Mr. Rappaport, as counsel for CRP, replied in a letter, dated February 23, that the proposal was not yet ready. The BRA director sent another follow-up letter on May 13, 1970.

On June 4, 1970, the BRA board voted to authorize the director to serve formal notice on CRP that, pursuant to § 701 of the MLA, CRP was in breach of the leasehold agreement and that, if the breach was not cured within sixty days, the BRA would consider the agreement null and void. The vote stated that CRP had failed to accept delivery of certain parcels when due, had failed to submit general plans and specifications, and had failed to use its best efforts to speed the schedule of commencement of the lease terms. CRP responded by saying there had been no tender of delivery and by requesting such delivery, and subsequently sent a check to the BRA for the initial quarterly rental payment. The BRA returned the check. On August 6, 1970, the BRA board voted to declare CRP in default and the agreement terminated. The board also voted to commence a declaratory judgment action (filed December 9, 1970) to clear title for conveyance to another developer.

Subsequent negotiations between CRP and the BRA resulted in withdrawal of the lawsuit. CRP submitted new plans for development of the parcels, which included two residential towers, a hotel, a parking garage, an office building and low and moderate income housing for the elderly.

At a BRA board meeting on February 25, 1971, the board voted to approve the plans for two portions of Parcel 2-1E-1F, specifically excluding Area E, and to authorize execution of a lease for the approved portions on the condition that CRP sign an attached amendment to the MLA approved by the board. The amendment (which...