Flynn v. City of Cambridge

• Decision Date: 12 March 1981
• Parties: , 21 A.L.R.4th 1075 Herbert T. FLYNN et al. 1 v. CITY OF CAMBRIDGE et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 335

418 N.E.2d 335

383 Mass. 152, 21 A.L.R.4th 1075

Herbert T. FLYNN et al. ¹ v. CITY OF CAMBRIDGE et al. ²

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Jan. 8, 1981.

Decided March 12, 1981.

Robert E. Keane, Cambridge (William Walsh, South Boston, with him) for plaintiffs.

Hans F. Loeser, Boston (Stephen B. Deutsch, Boston, with him) for defendants.

Lauren P. Curry, Cambridge, for Cambridge Committee of Elders, Inc., & others, interveners.

John Niles, Kenneth J. Mickiewicz and Nathanael R. Brayton, Boston, for Cambridge Property Owners Assn., Inc., amicus curiae, submitted a brief.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN and LIACOS, JJ.

HENNESSEY, Chief Justice.

The plaintiffs contest the legal power and authority of the Cambridge city council to enact c. 23 of the Code of the city of Cambridge, Ordinance 926 (ordinance), an ordinance regulating eviction from and condominium conversion of housing subject to rent control (controlled rental units). They contend that even if the ordinance was properly enacted, it so restricts the uses for which their units may be utilized as to amount to an unconstitutional taking of their property. We uphold the validity of the ordinance.

The plaintiffs filed a complaint in the Superior Court on November 9, 1979, seeking a declaration that the ordinance was invalid. They alleged that they were irreparably injured by the operation of the ordinance and sought a preliminary injunction against its enforcement. On December 21, 1979, the Superior Court judge denied the application for a preliminary injunction. On January 17, 1980, the Cambridge Committee of Elders, Inc., and eight tenants of apartments owned by individual plaintiffs, were allowed to intervene as defendants. The parties filed a stipulation and statement of agreed facts on January 30, 1980, and the parties thereafter filed briefs and participated in oral argument. On May 13, 1980, the judge ordered that final judgment be entered in favor of the defendants and that a declaration issue that Cambridge properly complied with all applicable procedural requirements in adopting the ordinance, that its adoption was a lawful exercise of Cambridge's power, that the ordinance is constitutional and valid on its face and does not unlawfully infringe upon the rights of the plaintiffs, is a lawful regulation of controlled rental housing units in Cambridge, is fully effective within Cambridge and may be enforced by the Cambridge rent control board (board). The plaintiffs duly appealed to the Appeals Court and the defendants subsequently filed an application for direct appellate review in this court, which was granted on September 18, 1980.

The pertinent facts stipulated are as follows. Prior to the enactment of the ordinance on August 13, 1979, rents and evictions in Cambridge were controlled pursuant to c. 842 of the Acts of 1970 (c. 842). ³ Chapter 842 was a Statewide general enabling act allowing the regulation of rents and evictions in a substantial number of rental housing units in Cambridge. After being extended for one year by c. 851 of the Acts of 1975, it expired on April 1, 1976. This general enabling act was supplanted by c. 36 of the Acts of 1976 (c. 36). Chapter 36 is a special act entitled "An Act enabling the city of Cambridge to continue to control rents and evictions." The ordinance whose validity is challenged here is entitled "Regulations pertaining to controlled rental housing units." Following an emergency preamble, the ordinance states that "(i)n order to carry out the purposes of (c. 36) ... it is necessary for the Cambridge City Council, in the exercise of its powers under section 6 of the Home Rule Amendment and under section 5(c) of (c. 36), to regulate the removal of controlled rental housing units from the market." Thus the ordinance claims legitimacy from at least two sources, and the judge below found that both c. 36 and the Home Rule Amendment provided authority for the enactment of the ordinance. We do not examine the Home Rule Amendment since we find implicit authority in c. 36 which empowers Cambridge to enact the ordinance.

The plaintiffs claim that the ordinance amounts to a taking of their property since in some circumstances an owner of a condominium will be prohibited from occupying his unit. The ordinance prohibits the removal of any controlled rental unit unless the city rent control board issues a permit. The permit requirements and related provisions of the ordinance are set forth in the margin. ⁴ "Removal from the market" is defined in § 1(b)(4)(i) of the ordinance as including occupation by an owner of a controlled rental unit which is a condominium, if the last previous occupant was a tenant. However, if the "last previous occupant" purchases the condominium, the ordinance then permits him to occupy his unit. In addition, the ordinance does not apply if a purchase and sale agreement was entered into or a unit deed recorded prior to August 10, 1979. In essence, what the ordinance does is require that any unit which is a controlled rental unit on August 10, 1979, remain part of the rental housing stock of the city of Cambridge. It does not prevent an owner from converting his controlled rental units into condominiums, but it does prohibit those condominiums from being used for purposes other than rental housing.

I. The Authority of the City Council to Enact Ordinance 926.

The declaration of emergency in § 1(a) of the ordinance states: "(a) serious public emergency continues to exist in the City of Cambridge with respect to the housing of a substantial number of its citizens, as declared by Chapter 36 of the Acts of 1976, for the reasons stated in the Act. The emergency has worsened since 1976 because of the removal of a substantial number of rental housing units from the market by condominium conversion, demolition, and other causes." The plaintiffs do not contest that the city council could reasonably have made these findings, and they likewise do not contest that the city council could reasonably have concluded that the challenged provisions of the ordinance would alleviate these conditions. In the declaration of emergency in § 1 of c. 36, the Legislature found that "unless residential rents and eviction of tenants are regulated and controlled, such emergency and the further inflationary pressures resulting therefrom will produce serious threats to the public health, safety and general welfare of the citizens of Cambridge ...." Chapter 36 itself provides restrictions on evictions from controlled rental units, and it expressly states that "(r)ecovery of possession in order to convert an apartment unit to a condominium unit shall not be a valid reason to recover possession of a controlled rental unit." § 9(a)(10). The ordinance provides additional restrictions, all consistent with c. 36. ⁵ The plaintiffs' contention, though, is that the city council lacked authority to enact the ordinance.

It is beyond question that c. 36 enables Cambridge to control rents and evictions. In addition to the express powers ⁶ conferred by c. 36, however, certain powers are implied. When analyzing a grant of power to a municipal government we must keep in mind that "a grant of an express power carries with it all unexpressed, incidental powers necessary to carry it into effect." 3 C. Sands, Sutherland Statutory Construction § 64.02 (4th ed. 1974). This doctrine has been applied, albeit in a slightly narrower fashion, in earlier cases in the Commonwealth. See Higginson v. Treasurer & School House Comm'rs of Boston, 212 Mass. 583, 585, 99 N.E. 523 (1912); Cambridge v. Commissioner of Pub. Welfare, 357 Mass. 183, 185, 257 N.E.2d 782 (1970). It appears that this doctrine has been expanded in its recent applications in other jurisdictions. See generally Triangle Oil, Inc. v. North Salt Lake Corp., 609 P.2d 1338 (Utah 1980) (cities have powers expressly set forth and those necessarily implied therefrom which are essential to carrying out duties and purposes of city government); Port of Seattle v. Washington Utils. & Transp. Comm'n, 92 Wash.2d 789, 597 P.2d 383 (1979) (in addition to those powers necessary or fairly implied in or incident to express powers, grant of power includes those powers essential to the declared objects and purposes of municipal corporation); Hinesburg Sand & Gravel Co. v. Hinesburg, 135 Vt. 484, 380 A.2d 64 (1977) (municipality has those powers and functions specifically authorized by Legislature as well as such additional powers and functions as may be incident, subordinate or necessary to exercise of express powers). In order to determine whether the city council was empowered by c. 36 to enact the ordinance, we must decide whether the city's ability to regulate the removal of rental housing stock from the market is an "unexpressed, incidental power necessary to carry (c. 36) into effect." We conclude that it is.

If the power to control rents is to be anything more than an interim measure effective for only the short period needed to convert the entire rental housing stock, it must include by implication the power to make reasonable regulations governing removals from the rental housing market. "It is no coincidence that many cities facing the most serious conversion problems are rent control cities, and as the rent control movement spreads, condominium conversion problems are likely to follow." Comment, The Condominium Conversion Problem: Causes and Solutions, 1980 Duke L.J. 306, 312. In 1979 there were 20,115 controlled rental units in Cambridge. In the seven-year period 1970 to 1976, inclusive, condominium master deeds were filed with respect to a total of 445 residential rental units. The conversion rate escalated, however, from January 1, 1977, to August 13, 1979, the effective date of the ordinance. In this thirty-one month period condominium master deeds were filed with respect to 1,554 residential units: 80.6 per cent of these...