Opinion of the Justices to the Senate and the House of Representatives

• Citation: 341 Mass. 760,168 N.E.2d 858
• Parties: OPINION OF THE JUSTICES TO THE SENATE AND THE HOUSE OF REPRESENTATIVES.
• Decision Date: 09 August 1960
• Court: United States State Supreme Judicial Court of Massachusetts

Page 858

168 N.E.2d 858

341 Mass. 760

OPINION OF THE JUSTICES TO THE SENATE AND THE HOUSE OF

REPRESENTATIVES.

Supreme Judicial Court of Massachusetts.

Aug. 9, 1960.

To the Honorable the Senate and the Honorable the House of Representatives of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit these answers to questions in an order adopted by the Senate and by the House of Representatives on July 21, 1960, and transmitted to us on July 22, 1960. The order recites the pendency before the General Court of a bill, duplicate of a bill printed in Senate No. 634, a copy of which is transmitted with the order. The bill is entitled, 'An Act concerning the development or redevelopment of blighted open areas, decadent areas and sub-standard areas by urban redevelopment corporations with special provisions for projects in the city of Boston.' Senate No. 634 is a communication from the Attorney General which states that the bill is submitted to meet objections to a previous bill relating to the so called 'Prudential center.' See Opinion of the Justices, Mass., 167 N.E.2d 745. ¹

The bill consists largely of amendments to G.L. c. 121A, entitled 'Urban Redevelopment Corporations.' Section 1 strikes out § 1 of c. 121 A, as originally enacted by St.1945, c. 654, § 1, and as amended by St.1947, c. 15, St.1953, c. 647, § 1, and St.1954, c. 73, §§ 1 and 2, and substitutes a new set of definitions. The former limitation of 'Blighted open area', to one 'which is to be developed for predominantly residential purposes,' has been eliminated. A fundamental requirement, retained in substance, now reads, 'a predominantly open area which is detrimental to the safety, health, morals, welfare or sound growth of a community because it is unduly costly to develop it soundly through the ordinary operations of private enterprise.' Also retained in substance are enumerated possible grounds of undue cost. Among them are physical conditions, such as ledge, rock, and unsuitable soil; the expense of excavation, fill, grading, retaining walls, waterproofing structures, drainage, or flood control; 'tax and special assessment delinquencies'; and 'substantial change in business or economic conditions or practices.' To these have been added expense of foundations, protection of adjacent properties and the water table therein, 'building around or over rights of way through the area,' and 'an abandonment or cessation of a previous use or of work on improvements begun but not feasible to complete without the aids provided by this chapter, or by reason of any combination of the foregoing or other conditions.'

'Decadent area' is defined as one 'which is detrimental to safety, health, morals, welfare or sound growth of a community' because of the deteriorated condition of buildings; 'because much of the real estate in recent years has been sold or taken for nonpayment of taxes or upon foreclosure of mortgages'; because buildings have been razed and their replacement is improbable; 'because of a substantial change in business or economic conditions, or because of inadequate light, air, or open space, or because of excessive land coverage, or because diversity of ownership, irregular lot sizes or obsolete street patterns make it improbable that the area will be redeveloped by the ordinary operations of private enterprise, or by reason of any combination of the foregoing conditions.' The references to 'sound growth of a community' ² and the next to the last clause relating to the improbability of redevelopment by private enterprise are new.

'Sub-standard area' is defined as one 'wherein dwellings predominate which, by reason of dilapidation, overcrowding, faulty arrangement or design, lack of ventilation, light, or sanitation facilities, or any combination of these factors, are detrimental to safety, health, morals, welfare or sound growth of a community.' The only new language is the words 'welfare' and 'sound growth of a community.' 2

'Project' is 'any undertaking consisting of the construction in a blighted open, decadent or sub-standard area of decent, safe and sanitary residential, commercial, industrial, institutional, recreational or governmental buildings and such appurtenant or incidental facilities as shall be in the public interest, and the operation and maintenance of such buildings and facilities after construction.' Formerly the definition was limited to 'dwellings.'

It will be noted that the definitions in the bill of 'blighted open area,' 'decadent area,' and 'sub-standard area' differ from the definitions in G.L. c. 121, § 26J, in the housing authority law, as amended through St.1957, c. 613, § 1.

Section 2 strikes out old § 2, as appearing in St.1953, c. 647, § 1, and substitutes a new section. It declares, in substantial repetition of old § 2, that 'the redevelopment of land not only in sub-standard areas but also in blighted open and decadent areas in accordance with a comprehensive plan to promote the sound growth of the community is necessary in order to achieve permanent and comprehensive elimination of existing slums and sub-standard, decadent and blighted conditions and to prevent the recurrence of such slums or substandard, decadent or blighted conditions or their development in other parts of the community or in other communities; and that the redevelopment of blighted open areas promotes the clearance of sub-standard and decadent areas and prevents their creation and occurrence; that the menace of blighted open, decadent or sub-standard areas is beyond remedy and control solely by regulatory process in the exercise of the police power and cannot be dealt with effectively by the ordinary operations of private enterprise without the aids herein provided.' Both the old and new sections state that 'the necessity in the public interest for the provisions hereinafter enacted is hereby declared as a matter of legislative determination.' The revised section declares in great detail the respects in which blighted open, decadent, or substandard areas are injurious to the public interest and retard 'the provision of residential, commercial and industrial buildings and other improvements.' It also refers to the existence of 'a shortage of decent, safe and sanitary buildings for residential, commercial, industrial, institutional, recreational, or governmental purposes.' The declarations of the old section, in these respects, primarily deal with the effect of blighted open, decadent, or substandard areas in retarding the provision of dwellings and upon an existing shortage of dwellings. There is an obvious misprint in line 1 of [341 Mass. 766] new § 2, which should read, 'It is hereby declared that,' and so forth.

Section 3 amends old § 3, as appearing in St.1953, c. 647, § 1, by providing that in the case of a corporation formed for the carrying out of a project in the city of Boston, the project would be authorized and approved by the Boston Redevelopment Authority. A project in any other city or town would be authorized and approved by the State Housing Board, as is the case everywhere, including Boston, under old § 3. Section 4 of the bill amends old § 5 by confining applications to the State Housing Board to projects in municipalities other than Boston.

Section 5 inserts in G.L. c. 121A a new section § 6A. This states that once a project has been approved by the housing board, the corporation and the municipality 'shall contract for the carrying out of such project in accordance with the application, the provisions of this chapter, and the rules, regulations and standards prescribed by the housing board for such project. Such contract may provide that, without mutual consent, any subsequent amendment of any such provisions, rules, regulations and standards shall not affect the project.' The intended scope of this last sentence is not clear. Our interpretation of its meaning will be given in our discussion of questions 7 and 9. 'Nothing in section ten [of c. 121A which provides for exemption of projects from local taxation under G.L. c. 59] shall prevent such contract from further providing for such corporation to pay to the city or town with respect to one or more years such specific or ascertainable amount in addition to the excise prescribed by section ten as may have been stated in the application.'

By § 14 of the bill the term 'housing board' in § 6A, as to projects in the city of Boston, means the Boston Redevelopment Authority.

Section 6 of the bill strikes out old § 8, inserted by St.1945, c. 654, § 1, and inserts a new section. Construction of buildings shall be inspected by persons appointed by the housing board. 'Every such corporation shall be deemed to have been organized to serve a public purpose, ³ and shall remain at all times subject to all reasonable rules and regulations applicable to its project. All real estate acquired by any such corporation and all structures erected by it shall be deemed to be acquired or erected for the purpose of promoting the public health, safety and welfare and shall be subject to the provisions of this chapter.' If the housing board shall find that a corporation has violated any provision of c. 121A or the requirements as to the construction and financing of a project, or payments therefor, or the applicable rules and regulations, or that a project is not maintained in such a way as to carry out the purpose for which it was designed, or that there has been waste caused by unreasonable use, it may institute a proceeding in equity in its own name.

Other sections of the bill seek to amend c. 121A, § 18, which deals with projects which insurance companies may undertake with the approval of the commissioner of insurance. Section 7 would allow an insurance company to undertake a project 'on land owned or to be acquired by it.' Section 8 would amend § 18(e), as appearing in St.1953, c. 647, § 8, so that the term 'housing board' in c....