Shriners' Hospital for Crippled Children v. Boston Redevelopment Authority

• Decision Date: 20 September 1976
• Citation: 353 N.E.2d 778,4 Mass.App.Ct. 551
• Parties: The SHRINERS' HOSPITAL FOR CRIPPLED CHILDREN et al. 1 v. BOSTON REDEVELOPMENT AUTHORITY et al. 2 (and a companion case 3 ).
• Court: Appeals Court of Massachusetts

Page 778

353 N.E.2d 778

4 Mass.App.Ct. 551

The SHRINERS' HOSPITAL FOR CRIPPLED CHILDREN et al.

¹

v. BOSTON REDEVELOPMENT AUTHORITY et al. ² (and

a companion case ³).

Appeals Court of Massachusetts, Suffolk.

Argued June 15, 1976.

Decided Sept. 20, 1976.

Robert J. Muldoon, Jr., Boston (Roger D. Matthews, Robert Gardiner Wilson, III, Boston and John F. Mee, Concord, with him), for plaintiffs.

Arthur M. Gilman, Boston (William F. York, Boston, with him), for Walter K. Winchester and another.

Edward J. Lonergan, Asst. Gen. Counsel, Boston, for Boston Redevelopment Authority.

Before HALE, C.J., and KEVILLE and GRANT, JJ.

HALE, Chief Justice.

These are proceedings seeking judicial review, in the nature of certiorari (see St. 1960, c. 652, § 13, as amended through St. 1967, c. 127, § 3; G.L. c. 249, § 4, as appearing in St.1973, c. 1114, § 289; Mass. R.Civ.P. 81(b), 365 Mass. 841 (1974)), of a vote of the defendant Boston Redevelopment Authority (authority) authorizing the redevelopment (G.L. c. 121A; St.1960, c. 652, §§ 12--14) of a parcel of land in the so-called West End of Boston. The cases were tried together in the Superior Court, and judgments were entered for the defendants. ⁴ The plaintiffs have appealed to this court.

On July 22, 1975, the defendants Winchester and Gallagher, as general partners of the Blackstone Company (the developer), a limited partnership (see G.L. c. 121A, § 18C; St.1960, c. 652, § 13A (inserted by St.1965, c. 859, § 3), as amended), applied to the authority for authorization and approval of a redevelopment 'project' (G.L. c. 121A, § 1). The proposed project was and is for the construction, operation and maintenance of a single building on Blossom Street in Boston. The site contains 28,344 square feet (approximately 0.6 acres) of land and is presently occupied by a building known as the Blackstone school, formerly in use but now abandoned and in an advanced state of disrepair.

The developer proposes to erect on the site a fourteen-story building containing 176 dwelling units and 14,000 square feet of commercial space. The dwelling units would be for the use of elderly (including elderly handicapped) persons; the proposed plans for the units incorporate features specifically designed for the needs of such persons. ⁵

A public hearing was held on August 27, 1975. On September 25, 1975, the authority issued a 'Report and Decision' which, in all material respects, approved the application. See St.1960, c. 652, § 13 (sixth paragraph), as appearing in St.1965, c. 859, § 2; G.L. c. 121A, § 6. The authority found that the project area was a 'blighted open area' and a 'decadent area' as those terms are defined in G.L. c. 121A, § 1. It took note of the shortage of suitable housing accommodations for elderly persons of low and moderate incomes. ⁶ It found that the project 'will not cause any significant damage to the environment as defined by Chapter 30, Section 61, of the General Laws . . ..' The authority also granted permission for the developers to deviate from certain requirements of the City of Boston Zoning Code and from the State Building Code, as the developer had requested in its application. See St.1960, c. 652, § 13 (ninth paragraph).

The vote of the authority approving the application was approved by the mayor of Boston on September 30, 1975. On October 1, 1975, the authority filed a certificate of its vote with the Boston city clerk. See St.1960, c. 652, § 13, as amended (penultimate paragraph) (fn. 8, infra). The present actions under § 13 (see and compare G.L. c. 121A, § 6C, inserted by St.1975, c. 827, § 5) were filed on October 30 and 31, 1975.

1. So far as appears from the consolidated record, the plaintiffs in both cases are nearby property owners or lessees. The Shriners' Hospital for Crippled Chidren (hospital) abuts the project site on the north. The individual defendants are the general partners of several limited partnerships which, together with two of the corporate plaintiffs, were organized pursuant to the redevelopment of the West End area of Boston during the 1960's. The other corporate plaintiffs operate certain business establishments in the immediate vicinity of the project site. The record does not indicate which (if any) of the various partnerships (or corporations) own (or lease) land that directly abuts the project site.

The Superior Court determined that the plaintiffs had no standing to challenge the action of the authority in approving the project but held that the plaintiffs did have standing to challenge the authority's action with respect to the deviations granted from the City of Boston Zoning Code and the State Building Code, and with respect to the issue of compliance with G.L. c. 30, §§ 61 and 62, regarding environmental impact. ⁷ We are of the opinion that the hospital has standing to challenge all of the actions of the authority leading to the approval of the project, and as it will not affect the outcome of the cases, we need not decide whether the other plaintiffs have like standing. For the purposes of this case, we assume that they have. Section 13 of St.1960, c. 652, as amended, ⁸ provides that within thirty days following the filing of the vote of the authority, 'any person, whether previously a party to the proceeding or not, who is aggrieved by such vote . . . may file a petition . . . for a writ of certiorari against the authority to correct errors of law therein.' It is settled that the term 'person aggrieved' is 'to be given a comprehensive meaning.' Dodge v. Prudential Ins. Co., 343 Mass. 375, 381, 179 N.E.2d 234, 239 (1961) (construing § 13). See Marotta v. Board of Appeals of Revere, 336 Mass. 199, 204, 143 N.E.2d 270 (1957) (construing analogous language appearing in G.L. c. 40A, § 21). The property on which the hospital is situated abuts the development site; shadows cast by the proposed structure will fall upon parts of the hospital, and any other impact on the environment would be likely to affect directly the hospital property and the persons occupying it; the variances from the city zoning code and deviations from the State building code granted to the developers are subjects of proper concern to the hospital for the reason stated by the trial court--erroneous action in these areas would cause direct injury to the property interests of the hospital.

2. The plaintiffs submit that the authority abused its discretion in selecting the Blackstone Company as the developer of the site. Their argument on that point is based not on the qualifications of the developers or on alleged inadequacies of the proposal but rather on the fact that the size of the parcel (approximately 0.6 acres) is so small that a decision to develop the site pursuant to c. 121A violates the intent and purpose of the redevelopment laws. The short answer to that contention is that this court will not 'sit in review on the size of a particular project area.' Berman v. Parker, 348 U.S. 26, 35, 75 S.Ct. 98, 104, 99 L.Ed. 27 (1954). Our review of G.L. c. 121A and of St.1960, c. 652, §§ 12 and 13, discloses no indication of a legislative intent to prescribe a minimum (or maximum) size of an area which may be redeveloped thereunder. See especially the definitions and declaration of public necessity set forth in G.L. c. 121A, §§ 1 and 2. To the contrary, the clear intent of the statutes is to permit the appropriate redevelopment agency, within the broad and comprehensive guidelines delineated, to approve (or disapprove) proposed projects for any area, provided that the area is found to be a 'blighted open,' 'decadent,' or 'substandard' area, and provided also that the proposed project meets the 'public use' requirement of G.L. c. 121A, § 2. See Stockus v. Boston Housing Authy., 304 Mass. 507, 509--510, 24 N.E.2d 333 (1939); Moskow v. Boston Redevelopment Authy., 349 Mass. 553, 561, 210 N.E.2d 699 (1965), cert. den. 382 U.S. 983, 86 S.Ct. 558, 15 L.Ed.2d 472 (1966). See also Allydonn Realty Corp. v. Holyoke Housing Authy., 304 Mass. 288, 291, 23 N.E.2d 665 (1939). In the present cases it is undisputed that the proposed project--the construction of a substantial number of dwelling units for elderly persons with low and moderate incomes--serves a public purpose and is designed to fulfill a demonstrated need.

The statutory framework enables the appropriate redevelopment agency to consider the unique characteristics of each site in making its determinations. Several unique characteristics of the Blackstone site should be noted. The site is irregularly shaped; the building currently on the site--a school building--is abandoned, and has been unused for many years; the site abuts (and part of it was originally included within) the West End Land Assembly and Redevelopment Project, a comparatively large area previously found by the authority to be a blighted open, decadent, and substandard area. Thus, the redevelopment of the Blackstone site can be seen, not as the isolation of one small parcel for redevelopment but as a slight expansion of a larger redevelopment site, reflective of changed conditions in the area.

3. The plaintiffs challenge the sufficiency of the findings made by the authority in its report. The substance of their argument is that the findings (which are reproduced in the margin ⁹) amount to little more than 'a mere repetition of the statutory words. . . .' Prusik v. Board of Appeal of Boston, 262 Mass. 451, 457--458, 160 N.E. 312, 314 (1928). Having carefully reviewed the entire consolidated record, we agree with the determination of the Superior Court that the findings are supported by the record and are sufficient to permit redevelopment under G.L. c. 121A.

An analysis of the subsidiary findings reveals that they are not extensively detailed and that they do in fact incorporate language from the definitions of 'Blighted open area' and 'Decadent area' appearing in G.L. c. 121A, § 1. Such incorporation, standing alone, would, as ...