Grace v. Town of Brookline

• Decision Date: 23 August 1979
• Citation: 399 N.E.2d 1038,379 Mass. 43
• Parties: Alan J. GRACE, trustee, et al. 1 v. TOWN OF BROOKLINE et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1038

399 N.E.2d 1038

379 Mass. 43

Alan J. GRACE, trustee, et al. ¹ v. TOWN OF BROOKLINE et al. ²

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 8, 1979.

Decided Aug. 23, 1979.

Philip S. Lapatin and Mitchel S. Ross, Boston, for plaintiffs.

David Lee Turner, Town Counsel, Brookline, for the town of Brookline.

Roger R. Lipson, Brookline, for the Rent Control Bd. of Brookline.

S. Stephen Rosenfeld, Asst. Atty. Gen., for intervener.

Before HENNESSEY, C. J., and BRAUCHER, WILKINS, LIACOS and ABRAMS, JJ.

LIACOS, Justice.

A condominium developer, a condominium owner and a potential condominium purchaser challenge, as unauthorized by statute and prohibited by the Massachusetts and the United States Constitutions, two amendments to art. XXXVIII of the by-laws of the town of Brookline. The disputed amendments protect tenants by regulating the procedure for their eviction from apartments converted into condominium units. We uphold their validity.

The plaintiffs filed a complaint in the county court for declaratory and injunctive relief on November 3, 1978. On November 10, 1978, a single justice of this court denied the plaintiffs' request for a preliminary injunction, and allowed a motion by the Attorney General of the Commonwealth to intervene as a party-defendant. ³ The parties subsequently submitted a stipulation of facts, and on March 6, 1979, a single justice reserved and reported the case for decision by the full bench.

The pertinent facts stipulated are as follows. From 1970 until December 31, 1975, the town of Brookline generally regulated and controlled rents and evictions under the general rent control enabling provisions of St.1970, c. 842. On December 16, 1975, a Brookline special town meeting rescinded its approval of c. 842. In its place, under the authority specifically granted to Brookline by St.1970, c. 843, ⁴ the town meeting adopted art. XXXVIII of the Brookline by-laws (referred to hereafter as the "by-law"). Brookline has regulated rents and evictions pursuant to c. 843 and the by-law since January 1, 1976.

Section 9(a) of the by-law enumerates the bases on which the rent control board may issue certificates of eviction with regard to rent-controlled housing units. Prior to July 25, 1978, § 9(a) provided two grounds for eviction of tenants residing in rent controlled apartments which were slated for, or had already undergone, conversion to condominiums. ⁵ Section 9(a)(8) allowed a landlord to obtain a certificate of eviction if he sought to occupy a unit for himself or a member of his immediate family; section 9(a)(10) authorized a landlord to bring an action to recover possession of a unit "for any other just cause." The first of these provisions permitted a purchaser of a newly converted condominium unit who sought occupancy to apply for a certificate of eviction. The second allowed a developer to seek certificates of eviction for an entire building intended for conversion to condominium units. The rent control board of Brookline ⁶ routinely granted developers such certificates upon compliance with particular guidelines it had promulgated.

On July 25, 1978, a special town meeting of Brookline voted ⁷ to amend § 9(a)(8) and (10) of the by-law. ⁸ The effect of the amendment to § 9(a)(10) was to render certificates of eviction unavailable to condominium developers. At the same time, the amendment to § 9(a)(8) preserves, for the condominium purchaser who seeks to occupy the unit, the opportunity to evict a tenant who refuses to vacate voluntarily. However, if the tenant was in possession of the unit when the new landlord acquired ownership, that tenant is protected by a mandatory six-month stay of issuance of a certificate of eviction. The amendment to § 9(a)(8) also provides for an additional six-month delay if the board determines that a hardship exists. ⁹ After approval by the Attorney General, pursuant to G.L. c 40, § 32, both amendments took effect on September 27, 1978.

The plaintiff Grace is a developer of a condominium project in Brookline. On January 13, 1978, he purchased several buildings in order to convert the thirty-five apartments therein for sale as condominiums. After entering into purchase and sale agreements with prospective purchasers who were not tenants and who intended to occupy the units, Grace applied to the board for certificates of eviction. In each case decided before July 25, 1978, on finding compliance with the guidelines, the board granted Grace a certificate of eviction.

Prior to enactment of the by-law amendments, the plaintiff Lonabocker contracted to buy one of the units owned by Grace. She obtained a commitment for mortgage financing and sold her residence, expecting to occupy the condominium. After July 25, 1978, Lonabocker and Grace were disqualified from applying for a certificate of eviction. Because she was unable to obtain occupancy of the unit, Lonabocker's mortgage financing was cancelled. She has not purchased the unit.

The plaintiff Ehrenworth purchased a unit from Grace on October 20, 1978, in order to occupy it as his residence. At the time of the purchase, the unit was occupied by a tenant. Ehrenworth filed an application for a certificate of eviction which was approved by the board on December 19, 1978. As of March 2, 1979, the date of the parties' stipulation, the board had not issued a certificate of eviction, by virtue of the operation of § 9(a)(8), as amended. Since purchasing the unit from Grace, and until at least March 2, 1979, Ehrenworth received rent from the tenant occupying the unit. ¹⁰ The rental receipts, however, were insufficient to offset the monthly carrying charges incurred by Ehrenworth on the unit. Grace agreed to bear the difference between the rents collected and the costs incurred for a period of one year from the passage of title. ¹¹

On November 14, 1978, a Brookline special town meeting voted to amend the by-law further by imposing a general six-month moratorium on the issuance of any certificate of eviction against a tenant who was in possession of an apartment when it was purchased as a condominium unit. The moratorium, which was approved by the Attorney General on December 28, 1978, bore an expiration date of June 15, 1979. ¹²

The plaintiffs contend that the by-law amendments (1) are inconsistent with St.1970, c. 843; G.L. c. 183A; and G.L. c. 239, and (2) deny them due process of law and equal protection of the laws. We address the statutory arguments first, followed by consideration of the constitutional issues raised.

A. Statutory Issues.

1. Referring to St.1970, c. 843, in Marshal House, Inc. v. Rent Control Bd. of Brookline, 358 Mass. 686, 698, 266 N.E.2d 876, 885 (1971), we recognized that once the Legislature has adopted a policy of rent control by emergency legislation, it "may also delegate to the cities and towns as governmental agencies the administration of its details in respect to matters peculiarly affecting local interests." Chapter 843 explicitly grants to Brookline the option to regulate the eviction of tenants by by-law. St.1970, c. 843, § 6. Until December, 1975, when Brookline adopted art. XXXVIII, § 9, of its by-laws, that enabling provision lay dormant. The plaintiffs now challenge the amendments to § 9 of the by-law as exceeding the scope of delegation intended by c. 843.

The plaintiffs bear an onerous burden in seeking to invalidate the by-law amendments. We have consistently stated that in the judicial review of municipal by-laws and ordinances "every presumption is to be made in favor of their validity, and that their enforcement will not be refused unless it is shown beyond reasonable doubt that they conflict with the applicable enabling act or the Constitution." Crall v. Leominster, 362 Mass. 95, 102, 284 N.E.2d 610, 615 (1972), and cases cited. In seeking to meet their burden, the plaintiffs rely heavily on our decision in Zussman v. Rent Control Bd. of Brookline, 367 Mass. 561, 326 N.E.2d 876 (1975), where we struck down eviction restrictions similar to those presented here. Zussman, however, is distinguishable in at least one critical respect. The court in Zussman ruled invalid emergency regulations ¹³ promulgated by the Brookline rent control board under authority that the board presumed had been granted by St.1970, c. 842, a statute of Statewide application. According to the court, by enacting regulations which tend to discourage condominium conversion, the Board had accorded insufficient recognition to the policy, implicit in c. 842, of encouraging home ownership. The regulations foundered on that single premise.

The by-law amendments under consideration here face no such obstacle. Unlike the regulations in Zussman, the by-law amendments were enacted under authority granted in c. 843 especially to Brookline for the purpose of enabling that town to confront, singularly, its housing difficulties. The two chapters differ in crucial respects. As we noted in Marshal House, Inc. v. Rent Control Bd. of Brookline, supra 358 Mass. at 697, 266 N.E.2d at 884: "Chapter 843 states that 'a serious public emergency exists in the town of Brookline with respect to the housing of a substantial number of the citizens of said town.' It goes on to describe the emergency as created in part by an 'expanding student population . . . (and) a substantial elderly population,' causes not assigned in the comparable statement of emergency in c. 842. Chapter 843 under § 2 grants the town broad general regulatory powers, unencumbered by the various restrictions and exemptions contained in § 3 of c. 842, to deal with its particular housing crisis. It is apparent from a comparison of §§ 1 and 2 of c. 843 and comparable sections of c. 842 that the problem in Brookline was unique . . .." Furthermore, none of the provisions cited in Zussman as indicating the c. 842 policy of encouragement of home ownership is present in c. 843. See Zussman, supra 367 Mass. at 566-567, ...