Marshal House, Inc. v. Rent Review and Grievance Bd. of Brookline

• Decision Date: 18 June 1970
• Citation: 260 N.E.2d 200,357 Mass. 709
• Parties: MARSHAL HOUSE, INC. v. RENT REVIEW AND GRIEVANCE BOARD OF BROOKLINE et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 200

260 N.E.2d 200

357 Mass. 709

MARSHAL HOUSE, INC. v.RENT REVIEW AND GRIEVANCE BOARD OF BROOKLINE et al.¹

Supreme Judicial Court of Massachusetts, Norfolk.

Argued May 8, 1970.

Decided June 18, 1970.

James D. St. Clair, Boston (Stephen H. Oleskey, Boston, with him) for petitioner.

Eric Verrill, Boston (Acheson, H. Callaghan, Jr., Boston, with him), for Rent Review and Grievance Board of Brookline and another.

Joseph J. Hurley, First Asst. Atty. Gen., and Edward L. Schwartz, Asst. Atty. Gen., for the Atty. Gen.

Before SPALDING, CUTTER, KIRK, SPIEGEL, REARDON, and QUIRICO, JJ.

CUTTER, Justice.

The plaintiff(Marshal House) owns more than ten units of housing accommodations in Brookline.It seeks dclaratory relief against the board and the town concerning art. XXV(the by-law) of the Brookline by-laws, entitled 'Unfair and Unreasonable Rental Practices in Housing Accommodations.'The pleadings, by agreement of the parties, constitute a case stated.The case has been reported without decision by a Superior Court judge, who granted (by an interlocutory decree from which the board and the town appealed) a preliminary injunction preventing the distribution to landlords in the town of certain forms requesting information mentioned below.

The town on June 24, 1969, purported to adopt the by-law, which has been approved by the Attorney General.The by-law (§ 1) recites 'that a serious public emergency exists with respect to the housing of * * * citizens of the town due to a substantial shortage of low and moderate income rental housing accommodations; that unless a rent review and grievance board is established to investigate * * * complaints of unfair and unreasonable rental practices * * * and * * * is empowered to order such practices to cease * * * and to make such other orders as it may deem just and proper, which may include an order that the landlord not * * * receive rent for the * * * occupation of specified housing accommodations in excess of an amount which it shall determine to be fair and reasonable under the circumstances, such emergency * * * will produce serious threats to the public health, safety and general welfare of the citizens of the town.'

Section 3(a) creates a board of seven members (the town's assessor and its building commissioner, three 'representatives of the public interest,' one 'representative of landlords,' and one 'representative of tenants') to deal with rent review matters.The board may receive complaints and review proposed rent increases (see§ 3(b)(b) and (c)), and make studies on rent levels.See§ 3(e).The board may determine what rent is 'fair and reasonable under the circumstances.'²

The present controversy is most directly concerned with § 3(f) which reads: 'The (b)oard may, no more than once each year, require all landlords whose aggregate holdings exceed ten * * * units of housing accommodations * * * to file with the (b)oard, upon a form supplied by the (b)oard, information concerning their housing accommodations, including the rent currently being charged for each unit, the number of rooms in each unit, the number of persons occupying each unit, and whether * * * the tenancy is under a written lease.'A form provided for filing ('under penalty of perjury') information under § 3(f) directs each landlord to give the address of each building, the date of its construction or last substantial renovation, the date of its acquisition, the number of floors and rentable units, and the '(u)tilities supplied by the landlord without charge.'It also requires, for each apartment, its number, size, monthly rent (as of October 1, 1969), lease expiration date, term of lease (and whether the lease, if any, contains a tax clause), the parking provided, and the type of occupancy.

The principal contentions of the town and the board are (a) that the town has been given by art. 89, § 6, of the Amendments to the Constitution of the Commonwealth very broad legislative power, subject only to the Legislature's power to supersede local legislation by general laws; (b) that these powers under § 6 include the power to adopt a rent control by-law without further authorization (by the Legislature or otherwise) than is found in § 6; and (c) that nothing in art. 89, § 7, so limits the power granted to the town by § 6 as to preclude the adoption of the by-law or to impair its validity.The Attorney General makes substantially similar contentions.Marshal House, on the other hand, takes the position that the by-law is invalid because of art. 89, § 7, which states that nothing in art. 89 grants to 'any * * * town the power * * * (5) to enact private or civil law governing civil relationships except as an incident to an exercise of an independent municipal power.'This case thus requires our decision of issues concerning which, in Answer of the Justices, 356 Mass. ---, ^a250 N.E.2d 450, we gave no advice because of the absence of a 'solemn occasion.'Seeart. 85 of the Amendments to the Constitution of the Commonwealth.

We quote (emphasis supplied) pertinent portions of art. 89.Section 1 provides, in part, 'It is the intention of this article to reaffirm the * * * traditional liberties of the people with respect to the conduct of their local government, and to grant and confirm to the people of every * * * town the right of self-government in local matters, subject to the provisions of this article and to such standards and requirements as the general court may establish by law in accordance with the provisions of this article.'Section 6 contains a broad grant of powers to cities and towns, 'Any * * * town may, by the adoption * * * of local * * * by-laws, exercise any power * * * which the general court has power to confer upon it, which is not inconsistent with the constitution or laws enacted by the general court in conformity with powers reserved to the general court by section eight, and which is not denied * * * to the * * * town by its charter * * *.'The powers, which at first glance seem to be granted by § 6, are limited substantially by § 7, which reads: 'Nothing in this article (89) shall be deemed to grant to any * * * town the power to (1) regulate elections * * *; (2) to levy * * * taxes; (3) to borrow money or pledge the credit of the * * * town; (4) to dispose of park land; (5) to enact private or civil law governing civil relationships except as an incident to an exercise of an independent municipal power; or (6) to define and provide for the punishment of a felony or to impose imprisonment as a punishment for any violation of law; provided, however, that the foregoing enumerated powers may be granted by the general court in conformity with the constitution and with the powers reserved to the general court by section eight * * *.'Section 8 defines certain legislative powers reserved to and possessed by the General Court.No contention appears to be made that there is any basis of authority other than art. 89, § 6, for the town's action in enacting the by-law.

1.Ambiguity exists (as we pointed out in Answer of the Justices, 356 Mass. ---, ---^b), 250 N.E.2d 450 concerning the meaning of the italicized language in § 7(5).This ambiguity is not substantially clarified by examination of the historical back-ground of art. 89.See1965 Senate Doc. No. 950, pp. 9, 21, 114, 131;1966 Senate Doc. No. 846, p. 20; American Municipal Assn., Model Constitutional Provisions for Municipal Home Rule(1953);Fordham, Home Rule--AMA Model, 44 Natl.MunicipalRev. 137, 142; Sandalow, The Limits of Municipal Power under Home Rule, 48 Minn.L.Rev. 643, 674--679; Gere and Curran, Home Rule (Bureau of Pub. Affairs, Boston College and Bureau of Govt. Research, U. of Mass.), 33.³There is no very clear discussion of what is now art. 89, § 7(5).The most complete analysis is that of Professor Sandalow (at pp. 676--677) and even that discussion, which attempts thoughtfully to resolve the ambiguities, seems to raise more questions than it answers.⁴Professor Fordham, in his discussion of the particular language, also leaves the uncertainty unresolved.See44 Natl. Municipal Rev. 137, 142, supra.He says, 'This is a phase of home rule which has not generally been adequately considered.Obviously, we do not wish to give our cities the power to enact a distinctive law of contracts, for example.On the other hand, the exercise of municipal powers is very likely to have important bearings upon private interests and relationships.The approach of the * * * (language now in § 7(5)) is to strike a balance by enabling home rule units to enact private law only as an incident to the exercise of some independent municipal power.'This court, as with respect to other parts of art. 89(seeOpinion of the Justices, 356 Mass. ---, --- - ---, ^c250 N.E.2d 428;Opinion of the Justices, 356 Mass. ---, --- - ---, ^d250 N.E.2d 547;Opinion of the Justices, --- Mass. ---, ---), ^e258 N.E.2d 731, thus is faced with interpreting novel and very general language concerning which there exist only inconclusive indications concerning the intentions of the draftsmen.

2.It is within the power of the Legislature, where there is reasonable basis in fact for such a determination, to conclude that an emergency exists in certain areas with respect to residential housing and to take action 'in the exercise of its police power,' including provisions for rent control, to relieve the emergency.'Having adopted a policy of rent control by * * * emergency legislation it may also delegate to * * * towns as governmental agencies the administration of its details in respect to matters peculiarly affecting local interests.'SeeRussell v. Treasurer & Recr. Gen., 331 Mass. 501, 506--507, 120 N.E.2d 388.⁵We recognized in Answer of the Justices, 356 Mass. ---, ---, ^f250 N.E.2d 450, 452--453, that the language of 's 6 * * * standing by itself, is broad enough to authorize a * * * (town) to enact a rent control * * *...