H.N. Gorin & Leeder Management Co. v. Rent Control Bd. of Cambridge

• Court: Appeals Court of Massachusetts
• Writing for the Court: BROWN
• Citation: H.N. Gorin & Leeder Management Co. v. Rent Control Bd. of Cambridge, 464 N.E.2d 1370, 18 Mass.App.Ct. 272 (Mass. App. 1984)
• Decision Date: 27 July 1984
• Parties: H.N. GORIN & LEEDER MANAGEMENT CO. v. RENT CONTROL BOARD OF CAMBRIDGE.

Page 1370

464 N.E.2d 1370

18 Mass.App.Ct. 272

H.N. GORIN & LEEDER MANAGEMENT CO. v. RENT CONTROL BOARD OF CAMBRIDGE.

Appeals Court of Massachusetts Middlesex.

Argued April 5, 1984.

Decided June 15, 1984.

Further Appellate Review Denied July 27, 1984.

Stuart T. Rossman, Boston, for plaintiff.

Patricia A. Cantor, Dorchester, for defendant.

Before GRANT, CUTTER and BROWN, JJ.

BROWN, Justice.

The plaintiff (Gorin & Leeder) appeals from a summary judgment entered by a judge of the Superior Court in favor of the defendant Rent Control Board of Cambridge (board). We find no merit in any of the plaintiff's contentions and affirm the judgment.

On October 23, 1980, pursuant to Cambridge Rent Control Regulation Series No. 76 (Regulation 76), the board granted a capital improvement increase of three dollars per apartment per month and mailed a notice of rent adjustment to Gorin & Leeder and to the tenants of the premises. The increase became collectible as of December 1, 1980. On or about November 25, 1980, pursuant to Cambridge Rent Control Regulation Series Number 96 (Regulation 96), the board mailed a notice of maximum rent for a 1980 general adjustment to Gorin & Leeder and to the tenants notifying them that an eleven percent increase in the maximum rent level had been granted. Regulation 96 provided that owners of controlled rental accommodations in Cambridge could receive a general rent increase as an adjustment for 1980 real estate tax increases. The adjusted maximum rent level allowed depended upon the ratio between the 1980 real estate tax increase assessed against the property and the maximum rent level for the building in effect on November 5, 1980.

Within three days after receipt of the November 25 notice, Gorin & Leeder notified the board that it believed the allowable rent figures it had received were inaccurate in that the calculation of the total rent collectible as of January 1, 1981, failed to reflect the three-dollar increase for capital improvements. On December 24, 1980, the board mailed a corrected notice of maximum rent for the 1980 general adjustment to Gorin & Leeder and to the tenants, incorporating the three-dollar increase in each rent and confirming the eleven percent increase. Gorin & Leeder then notified the board that it believed that the figures were still inaccurate because the three-dollar increase for capital improvements had been improperly included in the calculation of the November, 1980, maximum rent base for purposes of determining the 1980 general adjustment.

On April 23, 1981, the board mailed a second corrected notice of maximum rent for the 1980 general adjustment to Gorin & Leeder and to the tenants indicating that the allowable rent increase at the premises had been corrected to nine percent. The board subsequently informed the tenants that the nine percent increase was effective for collection as of January 1, 1981, and that they could deduct from their future rent payments any amounts they had paid in excess of the nine percent increase.

1. Denial of Plaintiff's Motion to Dismiss Appeal.

Gorin & Leeder claims that the board's failure to pay a fifty dollar entry fee in a timely manner constituted a forfeiture of the board's right to appeal the decision of the District Court (where relief first was sought) to the Superior Court. We need say only that G.L. c. 231, § 97, controls the instant circumstances. See Freedman v. Rent Control Admr. of Cambridge, 1 Mass.App.Ct. 836, 298 N.E.2d 868 (1973). In a § 97 appeal, unlike cases removed to the Superior Court pursuant to G.L. c. 231, § 104, there is no requirement that a fee be paid prior to entry in the Superior Court. See G.L. c. 231, § 101. See also G.L. c. 231, § 102C.

2. Validity of the April 23, 1981, Recalculation.

The plaintiff argues that the issuance of the April 23, 1981, notice was invalid as matter of law because the board had no authority to recalculate unilaterally rent levels four months after their initial determination. The argument continues that Regulation 96, §§ 06 and 07, provide the only procedure by which the board may make changes in notices of adjusted maximum rent levels, and since the board did not follow those procedures, its actions are void. The plaintiff also argues that the board did not have the inherent authority to recalculate unilaterally the 1980 general adjustment because the action constituted a change in policy or interpretation of the rules after the decision already had been made and implemented.

Gorin & Leeder's initial contention, that the board's decision is prohibited by the regulation, lacks foundation in the text of the regulation. The three-day limit on sending notices of error to the board, as found in § 06(2) of Regulation 96, does not expressly or by implication bar the board from correcting errors on its own initiative. The answer to Gorin & Leeder's other contention is that "[d]ue process does not require that an agency must bind itself to an error in perpetuity irrespective of the public interest." Vitale v. Planning Bd. of Newburyport, 10 Mass.App.Ct. 483, 487, 409 N.E.2d 237 (1980). An agency has the "inherent power ... to correct an inadvertent or clerical error in its decision so that the record reflects its true intention." Huntington v. Zoning Bd. of Appeals of Hadley, 12 Mass.App.Ct. 710, 714-715 n. 4, 428 N.E.2d 826 (1981). ¹

The board is vested with the responsibility of administering controlled rental property. See St.1976, c. 36, § 7(a ). In carrying out this responsibility, it is only appropriate that some degree of flexibility be accorded to the board in light of the purposes behind c. 36 and the inevitable uncertainty and difficulties that the board is bound to encounter within the rent control field. See 2 Davis, Administrative Law § 18.09, at 608 (1958 ed.). Here, the board did not exceed the limits of that flexibility. The trial judge found that Gorin & Leeder's adjustment proceeding before the board was essentially ongoing. Although Gorin & Leeder had been collecting higher rents since January 1, 1981, it had pending before the board a request for correction of the 1980 general adjustment. ²

3. Present maximum Rent Roll.

The last contention raised by Gorin & Leeder is that it was error for the board to include the three-dollar increase allowed on October 23, 1980, for...