Leventhal v. Buehler

• Decision Date: 03 June 1963
• Citation: 346 Mass. 185,191 N.E.2d 128
• Parties: Robert LEVENTHAL et al. v. George BUEHLER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 128

191 N.E.2d 128

346 Mass. 185

Robert LEVENTHAL et al. v. George BUEHLER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 8, 1963.

Decided June 3, 1963.

Rudolph Kass, Boston, for plaintiffs.

William A. McDermott, Asst. Corp. Counsel, for defendant City of Boston.

Frederick W. Roche, Thomas J. Carens and Robert J. Sherer, Boston, for defendants George V. Buehler and another.

Richard Wait, Boston, for Arnold W. Hunnewell, amicus curiae.

Before WILKINS, C. J., and WHITTEMORE, CUTTER, SPIEGEL and REARDON, JJ.

SPIEGEL, Justice.

The plaintiffs bring this bill in equity under G.L. c. 231A for a decree declaring that the defendants Buehler and Keating 'are not relieved from their obligations' under certain contracts because of any breach by the plaintiffs 'of their warranties in said contracts that apartment buildings up to a height of one hundred fifty-five feet may be built on the premises numbered 99, 109 and 111 Commonwealth Avenue in the City of Boston.' Because the validity of an ordinance of the city of Boston is in issue, the city has been made a party to the suit pursuant to G.L. c. 231A, § 8. A judge of the Superior Court ruled favorably to the plaintiffs and reported the case to this court for a determination on the 'substantial questions of law' involved. The facts have been stipulated by the parties.

The plaintiffs are the owners of various parcels of land and the buildings thereon located at 99 through 111 Commonwealth Avenue, Boston. On October 25, 1962, the plaintiffs entered into purchase and sale agreements with Buehler and Keating involving the above properties. In each of these agreements the plaintiffs 'warranted and represented that an apartment building up to the height of 155 feet, if otherwise complying with the Zoning Regulations of the City of Boston (St.1924, Chapter 488 as amended), and restrictions of record, may be built on the premises described in each agreement.' Although the premises in question are 'in a general residence one hundred fifty-five foot district,' all of the defendants have taken the position that for this particular part of Commonwealth Avenue no apartment building may be constructed to a height exceeding seventy feet. Buehler and Keating contend that they are thus relieved from their obligations under the contracts. In support of their position, they make two arguments.

1. They point to St.1896, c. 313, § 1, which reads: 'The board of park commissioners of a city or town may, in the manner and in accordance with and subject to the provisions of chapter four hundred and sixty-two of the acts of the year eighteen hundred and ninety-three, establish a building line, at no point more than twenty-five feet distant from any exterior line of a parkway, boulevard or public way on which a park border; and the extreme height to which buildings may be erected upon such parkway, boulevard or public way shall be seventy feet, or such other height as the city council of a city or the inhabitants of a town may from time to time determine.' The parties are agreed that such a building line was 'accepted' by a vote of the board of park commissioners of the city of Boston on May 18, 1896. Similarly agreed is the fact that the Parks and Recreation Commission of the City of Boston, on October 18, 1962, passed an order which reads as follows: 'Ordered:--That this Commission, having passed the order of notice relating to the public improvement hereinafter described, and having caused a copy of said order to be published * * * [in] daily newspapers published in the City of Boston, and having given the public hearing, notice of which was given in said order, and being of the opinion that public convenience and public interest so require, does hereby order the discontinuance of the existing building line on each side of Commonwealth Avenue from Arlington Street to Beacon Street, established by vote of the Board of Park Commissioners of the City of Boston on August 3, 1896, pursuant to the provisions of Chapter 462 of the Acts of 1893 and Chapter 313 of the Acts of 1896, and recorded with Suffolk Deeds, Book 2386, page 11, for the purpose, among others, of eliminating the 70-foot height restriction resulting therefrom.' Buehler and Keating maintain, however, that although the park commissioners may have had the authority to establish a building line 'no authority is given to them to discontinue a building line once established.' This argument is untenable. It will be noted that St.1896, c. 313, provided that the establishment of the building lines which it authorized was to be accomplished 'in the manner and in accordance with and subject to the provisions of chapter four hundred and sixty-two of the acts of the year eighteen hundred and ninety-three.' This chapter comes down to us as G.L. c. 82, § 37, the last portion of which provides: 'A building line established under this section may be discontinued in the manner provided for the discontinuance of a highway or town way. * * *' We construe this language as conferring upon boards of park commissioners the same powers and duties over building lines on parkways as is conferred upon city and town officials over building lines on public highways. See St.1906, c. 393. The October 18, 1962, vote of the Parks and Recreation Commission of the City of Boston effectively discontinued the 1896 building line with its attendant 70 foot height restriction. The city of Boston concedes this result in its brief.

2. The remaining argument is a valid one. The existence of a 70 foot limitation in the area in question is grounded upon Rev.Ords. of Boston (1961) c. 19, § 10. When originally enacted this ordinance was c. 5 of the Ordinances of 1922 and it provided: '...