City of Boston v. Kouns

• Decision Date: 15 July 1986
• Citation: 495 N.E.2d 317,22 Mass.App.Ct. 506
• Parties: CITY OF BOSTON et al. 1 v. Kenneth KOUNS et al. 2
• Court: Appeals Court of Massachusetts

Page 317

495 N.E.2d 317

22 Mass.App.Ct. 506

CITY OF BOSTON et al. ¹ v. Kenneth KOUNS et al. ²

Appeals Court of Massachusetts Suffolk.

Argued April 11, 1986.

Decided July 15, 1986.

Joseph L. Tehan, Jr., Asst. Corp. Counsel, Boston, for plaintiffs.

Robert T. Smart, Jr., Boston, for defendants.

Before GRANT, ARMSTRONG and WARNER, JJ.

WARNER, Justice.

This is another dispute about the scope of the jurisdiction of the Housing Court Department of the Trial Court. It comes to us on an appeal by the plaintiffs from an order of a single justice of this court vacating a preliminary injunction entered by a judge of the Boston Division of the Housing Court Department. See G.L. c. 231, § 118. The single justice concluded that the Housing Court was without subject matter jurisdiction. ³

The jurisdictional question was first presented to the Housing Court judge on a motion by the defendants Kouns and Clifford to dismiss under Mass.R.Civ.P. 12(b)(1), 365 Mass. 755 (1974). ⁴ The motion was denied. We draw the relevant allegations from the complaint. The individual plaintiffs are, respectively, a principal health inspector for the department of health and hospitals of Boston and the commissioner of that department's office of environmental affairs, division of community health services. The defendants Kouns and Clifford are the owners and corporate officers of Kouns and Clifford, Inc., which operates a solid waste (demolition and construction materials) transfer station on property at 22-34 Norfolk Avenue in Roxbury. The site of the facility is about 225 feet from a 774 unit residential housing development known as Orchard Park and its operation is affecting the health, safety and well-being of the residents of that development. The transfer station was being operated without a site assignment and other necessary approvals from the department of health and hospitals and the Massachusetts Department of Environmental Quality Engineering, as required by G.L. c. 111, § 150A, and 310 Code Mass.Regs. 18.00 (1980), and constituted a nuisance. See G.L. c. 111, § 122; 105 Code Mass.Regs. 410.602(A) (1983).

The complaint sought preventive and mandatory injunctive relief. The plaintiffs argue that the Housing Court had subject matter jurisdiction under G.L. c. 185C, § 3. ⁵ This is so, the plaintiffs say, because § 3, as amended by St.1979, c. 72, § 3, is a broad concurrent jurisdictional grant, in express terms, in all criminal and civil actions under "so much of ⁶ ... any ... general or special law, ordinance, by-law, rule or regulation as is concerned directly or indirectly with the health, safety, or welfare of any occupant of any place used, or intended for use, as a place of human habitation....." In addition, the plaintiffs point to the statutory grant of concurrent jurisdiction to the Housing Court "of all housing problems." The plaintiffs then argue that this action fits well within the jurisdictional scheme because it was brought under statutes and regulations which protect the health, safety and welfare of the residents of Orchard Park. The defendants contend that the Legislature has in G.L. c. 111, § 150A, ⁷ vested in the Superior Court exclusive jurisdiction of the laws relating to site assignment of solid waste transfer stations and that, in any event, no aspect of this action involves a sufficient nexus to housing to bring it within the jurisdiction of the Housing Court.

We begin by tracing the judicial construction of the statutory grant of jurisdiction to the Housing Court, both before and after the amendments made by St.1979, c. 72, § 3. See note 5, supra. It is against this backdrop that we must determine the characteristics of the present action. See Haas v. Breton, 377 Mass. 591, 595-596, 387 N.E.2d 138 (1979). In Police Commr. of Boston v. Lewis, 371 Mass. 332, 357 N.E.2d 305 (1976), the court, after comprehensive analysis of the legislative history of G.L. c. 185A, held that § 3, as it then read (see note 5, supra ), did not confer jurisdiction on the Housing Court over an action by tenants in public housing projects to require the provision of twenty-four hour police protection. The court concluded: "In sum, we find no indication in either the statute ⁸ or its legislative history that the seemingly broad, and perhaps ambiguous, language of G.L. c. 185A, § 3, can reasonably be construed to cover the present case. Furthermore, it would be illogical to do so. If we were to accept the defendants' position and conclude that the police conduct complained of in this case [failure to protect against racially motivated attacks] comes within the jurisdiction of the Housing Court, there would be no reasonable limits on that court's jurisdiction. There are many conceivable disputes that affect the 'health, safety or welfare' of occupants of housing, but not all are properly within the ambit of the Housing Court since it is a court of limited jurisdiction. Although we need not at this time delineate the exact scope of the Housing Court's jurisdiction, it is apparent from our prior discussion that police protection and allocation of police resources, despite their significant impact on the welfare and safety of Boston residents, are not sufficiently related to housing to come within the Housing Court's jurisdiction as defined by G.L. c. 185A, § 3." Id. 371 Mass. at 340-341, 357 N.E.2d 305. From the report of the special commission appointed by the Legislature to advise it with respect to the creation of the Boston Housing Court, the Supreme Judicial Court was left with "the unmistakable impression that the role envisioned for the Housing Court with respect to tenants was one of a vigilant enforcer of the laws relating to housing conditions and the physical environment within the immediate vicinity of tenants' homes." Id. at 338, 357 N.E.2d 305.

In Chakrabarti v. Marco S. Marinello Associates, 377 Mass. 419, 386 N.E.2d 1248 (1979), the court, resting its decision on a "specific legislative exclusion" in G.L. c. 185B, § 3 (at 423), rejected the argument that G.L. c. 93A is a "general law ... concerned with the health, safety or welfare of [housing] occupant[s]." Id. at 422, 386 N.E.2d 1248. In Haas v. Breton, 377 Mass. 591, 387 N.E.2d 138 (1979), the court held that the Housing Court (under G.L. c. 185B, § 3) lacked subject matter jurisdiction over an action by buyers of a home against the seller-contractor for negligent damage and improper repairs to the septic tank system. After another comprehensive review of the legislative history leading to the creation of housing courts, the Supreme Judicial Court reiterated the view expressed in Police Commr. of Boston v. Lewis, supra, that the Housing Court was one of limited jurisdiction and added: "[The defendant's] actions affected the health and welfare of the plaintiffs in some sense, but not in the same sense intended by the Legislature in establishing the Housing Court. To uphold the power of the court to entertain ordinary negligence actions between homeowners and contractors would be to dilute the expertise of that court and to delay the resolution of disputes properly before it. As the special commission appointed in 1966 to study the Boston Housing Court put it, 'the activity of slumlording and its attendant problems are subtle crimes which must be faced constantly and without interruption by other types of cases to produce maximum judicial effect.' We cannot approve the court's departure from its fundamental purpose and jurisdiction" (emphasis original, citation omitted). Haas, 377 Mass. at 600-601, 387 N.E.2d 138.

In swift response to Chakrabarti and Haas, the Legislature enacted the amendments to G.L. c. 185C, § 3, which appear in St.1979, c. 72, § 3. (See note 5, supra. ) See Goes v. Feldman, 8 Mass.App.Ct. 84, 87, 391 N.E.2d 943 (1979). Those amendments seem to have given to the Housing Court subject matter jurisdiction over the kinds of disputes involved in Chakrabarti and Haas and have been said to have "greatly expanded" its jurisdiction. Tedford v. Massachusetts Housing Fin. Agency, 390 Mass. 688, 693 n. 7, 459 N.E.2d 780 (1984). The 1979 amendments did not, however, make the Housing Court one of general jurisdiction. Cf. Patry v. Liberty Mobilehome Sales, Inc., 15 Mass.App.Ct. 701, 704-705, 448 N.E.2d 405 (1983). We do not read the Legislature's expansion of jurisdiction as an attempt to obliterate the vital and specialized character of the court by sweeping within its jurisdiction every "conceivable dispute[ ] that affect[s] the 'health, safety or welfare' of occupants of housing...." Police Commr. of Boston v. Lewis, 371 Mass. at 340, 357 N.E.2d 305. We think the Housing Court is still one of limited jurisdiction and that its subject matter jurisdiction is only over those matters set forth in G.L. c. 185C, § 3, which are sufficiently and particularly related to housing.

Here, the thrust of the statutes and regulations invoked by health officials of the city of Boston is to protect the health and welfare of all residents, workers, and the public in general. While the problems associated with solid waste transfer operations may have more significant impact on those residing nearby, we do not think those conditions are so particularly and "sufficiently related to housing to come within the Housing Court's jurisdiction as defined by G.L. c. 185[C], § 3." Police Commr. of Boston v. Lewis, 371 Mass. at 340-341, 357 N.E.2d 305. Contrast Harker v. Holyoke, 390 Mass. 555, 557-558, 457 N.E.2d 1115 (1983). To hold otherwise would be to fail to heed the admonition of Lewis that there must be "reasonable limits on [the] court's jurisdiction" (371 Mass. at 340, 357 N.E.2d 305), and that of Haas v. Breton, 377 Mass. at 601, 387 N.E.2d 138, to be wary of statutory interpretation that "would...