Moskow v. Boston Redevelopment Authority

• Decision Date: 17 August 1965
• Citation: 210 N.E.2d 699,349 Mass. 553
• Parties: Abraham MOSKOW et al. * v. BOSTON REDEVELOPMENT AUTHORITY et al. (and four companion cases). **
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 699

210 N.E.2d 699

349 Mass. 553

Abraham MOSKOW et al. ^* v. BOSTON REDEVELOPMENT AUTHORITY et al. (and four companion

cases). ^**

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 9, 1965.

Decided Aug. 17, 1965.

Claude B. Cross, Boston (John M. Reed, Brookline, with him), for Abraham Moskow and others.

Richard Wait, Boston, for New England Merchants Nat. Bank of Boston.

Jason A. Aisner, Boston, for Andrew A. Hunter.

William H. Kerr, Boston, for City of Boston and another.

David Berman, Asst. Atty. Gen., for Director of Division of Urban and Industrual Renewal and another.

Lewis H. Weinstein, Boston (Verne W. Vance, Jr., Boston, with him), for Boston Redevelopment Authority.

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

THE PRINCIPAL BILL FOR DECLARATORY RELIEF.

WILKINS, Chief Justice.

The plaintiffs own as tenants in common a parcel of land with an office building at 10 State Street, Boston, title to which they acquired on July 23, 1964, from State Street Corporation (State Street), a corporation of Massachusetts, of which they were the sole stockholdres, and which on that date they voted to liquidate and dissolve. Also on that date, shortly after the deed to the plaintiffs was recorded, the defendant Boston Redevelopment Authority, a body corporate and politic established under G.L. c. 121, § 26QQ (as amended by St.1957, c. 150 § 1) and given powers and duties unique for a redevelopment authority by St.1960, c. 652, §§ 12-14, voted to take the property. The plaintiffs contend the taking to be invalid and bring this bill in equity pursuant to G.L. c. 231A for a declaratory decree and for injunctive relief. ¹ The controversy alleged is between the plaintiffs and the Authority. The defendants city of Boston, the city council, the Division of Urban and Industrial Renewal, ² and John J. Carney, its 'temporary' director, are made defendants allegedly because of G.L. c. 231A, § 8.Also Also made defendants are New England Merchants National Bank of Boston, having a usual place of business at 28 State Street, and Andrew A. Hunter 'because of their interest in the proceedings.' All the defendants filed demurrers. These were five in number: (1) by the Authority; (2) by the city and the city council; (3) by the Division and Carney; (4) by the bank; (5) by Hunter.

The plaintiffs appealed from interlocutory decrees sustaining the demurrers and from a final decree dismissing the bill.

We summarize the factual allegations of the bill. The primary purpose of the taking was not the public interest but was to provide a site for a new private office building to be occupied by the bank. The taking was made ostensibly in connection with a redevelopment project of the Authority, known as the Government Center Project (the Project), under the powers conferred by G.L. c. 121. Neither the property at 28 State Street nor that at 10 State Street was within a decadent, substandard, or blighted open area within the meaning of c. 121, and the Authority had no power to take those properties on the ground that they were within such areas. The Authority, however, proposed to widen and reconstruct Congress Street on which the bank's building bounded, so as to facilitate access to the Project and to take the bank's property for that purpose. The bank, which had had its principal office on State Street for many years, vigorously protested this proposal on various grounds, among them, that its property was not within a decadent, substandard, or blighted area, and that it was not necessary to take its property to widen Congress Street. After negotiations among representatives of the bank, of the Authority, and of Cabot, Cabot & Forbes Company (Cabot), a developer selected by the bank, an understanding was reached that the bank would withdraw its objections and would endeavor to purchase the property at 10 State Street from State Street; that if the bank should be able to make the purchase, it would cause the existing building at 10 State Street to be demolished and the land to be conveyed to Cabot, which would erect upon the site a new tower building of a design and specifications approved by the bank and the Authority, and would lease the first ten floors to the bank; that in that case the bank would sell its property at 28 State Street to the Authority at the fair value, retaining the right to possession until the new building should be completed and ready for occupancy; that if the bank should be unable to purchase the property at 10 State Street upon acceptable terms, the Authority would include both that and the bank's property in the area which it proposed to take for the Project and would dispose of it to Cabot upon terms satisfactory to Cabot; that Cabot would then proceed to construct the new tower building to be occupied by the bank; but that unil the new building should be ready for occupancy, the band and its tenants might continue to occupy the premises at 28 State Street. The purpose of the understanding was to 'coerce' State Street to sell its property to the bank so that the latter might continue to maintain its principal offices on State Street. To effect that purpose, the administrator of the Authority 'threatened' the officers of State Street that unless it sold to the bank, he would cause it to be included in the urban renewal plan for the Project, and to be taken by the Authority by eminent domain.

State Street was unwilling to sell to the bank at the price which the bank offered. Accordingly, the administrator of the Authority, pursuant to the understanding set forth above, caused an Urban Renewal Plan to be prepared which included both the property of the bank and that of State Street. These properties were designated on the Plan as Parcel 8, and the specifications of land uses required that a tower building conforming generally to the specifications previously approved by the bank, the Authority, and Cabot be erected thereon. On April 2, 1963, the Authority gave notice of a hearing upon the proposed plan to be held on April 17, 1963. On June 5, 1963, the Authority voted to approve the Plan.

The Authority first submitted the Plan to the city council for approval in June, 1963. On July 22, 1963, after a public hearing at which State Street appeared by counsel, the Committee on Urban Redevelopment, Rehabilitation, and Renewal of the city council reported that a majority of the committee were in favor of the Project with the boundaries which had been earlier defined, but were opposed to the inclusion of Parcel 8. Thereupon the council rejected the Plan by a vote of five to four. On July 29, 1963, the council again voted to reject the Plan.

During August, September, and October, 1963, the mayor and others, including a director of the bank, attempted to make the approval of the Plan a political issue in the November election of members of the city council. The director headed a group which recommended a slate pledged to vote for approval of the Plan including Parcel 8 and solicited campaign contributions to promote their election. George F. Foley and Barry Hynes were on that slate. Frederick C. Langone publicly pledged his support before the election. None of the three had heard the evidence introduced in the hearings before the council. On or about November 18, 1963, after the election the defendant Hunter sent George F. Foley and Barry Hynes each a check for $29 as his share of the unexpended surplus of contributions received as their agent.

On April 13, 1964, the mayor resubmitted the Plan to the city council. On May 7, 8, 12, and 13, 1964, the council held hearings on the Plan at which the plaintiffs' counsel appeared and proposed objections to the approval of the Plan including Parcel 8. The plaintiffs' counsel suggested that Foley, Hynes, and Langone be disqualified on the ground that they had publicly pledged themselves during the campaign, and Foley and Hynes on the additional ground that they had received compensation for their pledges. During the hearing the plaintiffs' counsel requested Langone to disqualify himself on the additional ground that a member of his immediate family had a financial interest in the Project in that such member was conducting a funeral home in the area, paying rent, and seeking to relocate in the area. All three declined to disqualify themselves and were in the majority on May 25, 1964, when the council approved the Plan by a vote of five to four.

At the hearing the plaintiffs' counsel requested perminssion to cross-examine withnesses and to call other witnesses on the ground that the proceedings were quasi judicial and that due process required this as a matter of right. The council refused such permission, ruling that the proceedings were legislative and not quasi judicial. At the hearing the plaintiffs also objected to the council reconsidering the Plan including Parcel 8 on the ground that it had been twice submitted and rejected in 1963 with finality, that it was again submitted without modification or other action by the Authority, and that the determinations of fact made by the council in 1963 were res judicata and not to be set aside by members of the council thereafter elected. On May 25, 1964, the council by a vote of five to four approved the Plan including Parcel 8.

On May 26, 1964, the Authority submitted the Plan to the Division of Urban and Industrial Renewal for approval. On June 12, 1964, at the request of more than twent-five taxable inhabitants of Boston, the Division held a public hearing at which State Street appeared by counsel. Although the proceeding was one in which State Street was directly involved and there were issues of fact upon which State Street had a constitutional right to be heard, the Division by its temporary director, Carney, denied State Street a fair hearing and refused to permit it to intervene, or to call and examine or to cross-examine witnesses, and to issue...