West Broadway Task Force, Inc. v. Commissioner of Dept. of Community Affairs

• Citation: 363 Mass. 745,297 N.E.2d 505
• Parties: WEST BROADWAY TASK FORCE, INC., et al. v. COMMISSIONER OF the DEPARTMENT OF COMMUNITY AFFAIRS et al.
• Decision Date: 20 June 1973
• Court: United States State Supreme Judicial Court of Massachusetts

Page 505

297 N.E.2d 505

363 Mass. 745

WEST BROADWAY TASK FORCE, INC., et al. v. COMMISSIONER OF the DEPARTMENT OF COMMUNITY AFFAIRS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 3, 1973.

Decided June 20, 1973.

Robert G. Burdick, Jr., Boston, for plaintiffs.

Brian P. Shillue, Boston, for Boston Housing Authority.

Terence P. O'Malley, Asst. Atty. Gen., for the Commissioner of the Dept. of Community Affairs and others.

Before TAURO, C.J., and REARDON, QUIRICO, HENNESSEY and KAPLAN, JJ.

KAPLAN, Justice.

This suit demanded a declaration and injunction with respect to alleged substandard physical conditions at a State-aided, low rent housing development in the city of Boston. The Superior Court entered interlocutory decrees sustaining demurrers to the bill of complaint without leave to amend, and thereafter entered a final decree dismissing the bill. The plaintiffs appeal from these decrees.

One corporate and eight individual plaintiffs filed the bill on May 19, 1970. The plaintiff West Broadway Task Force, Inc. is a nonprofit corporation composed of certain tenants living in, and elected to represent the residents of, the West Broadway Housing Development (development), one of the housing projects of the Boston Housing Authority (BHA). The eight individual plaintiffs are tenants in that development. It was alleged that the plaintiffs sued on their own behalf and on behalf of all low income persons 'who now are or will become tenants in the Development' and whose common or separate premises 'are not or will not be decent, safe and sanitary.' Named as defendants were BHA and the State Department of Community Affairs (DCA), together with the Commissioner of DCA.

The object of the suit was to have the Superior Court declare and enforce by continuing injunction an obligation on the part of the defendants to maintain the development in sound condition. This duty, the bill averred, had remained unfulfilled over a period of time. A hundred inspections by the Boston housing inspection department had turned up over 300 violations (not particularly specified) of the State Sanitary Code, ¹ and conditions in most apartments and common areas were below the Code standards. Although the defendants knew or should have known of the existence of such conditions, they had failed to eliminate them. The class represented by the plaintiffs had suffered and would in future suffer irreparable harm to their health, safety, morals, welfare, and comfort by reason of this neglect. Alleging in general terms that they had no adequate remedy at law and had exhausted all available administrative remedies, the plaintiffs prayed for a declaration that BHA had a legal duty to maintain the development in decent, safe, and sanitary condition at all times, and that DCA and its Commissioner had a duty to ensure that that condition was maintained; further, the plaintiffs prayed that an injunction issue enjoining the defendants from failing to carry out these duties forthwith and in the future.

The bill relied mainly on G.L. c. 121B, ² the statute setting forth the purposes, powers, and responsibilities of BHA and of DCA and the nature of the relationship between the two agencies, and the bill is to be read in the light of that statute as well as of the practicalities mirrored in it. BHA is established as a local housing authority with operating responsibility and corresponding powers regarding the finances, construction, maintenance, and day-to-day management of housing projects in the city of Boston. ³ DCA is the administrative superior with power to oversee most phases of the operations of the local housing authorities, and to that end it is given various powers of approval and veto of the activities of those authorities together with rule making power and power to demand reports and other information. ⁴ The statute sets before BHA, as operator, and DCA, as supervisor, the goal of providing decent, low cost housing. This note is struck in G.L. c. 121B, § 32, inserted by St.1969, c. 751, § 1, and as amended through St.1971, c. 1114, § 1, where the Legislature says: 'It is hereby declared to be the policy of this commonwealth that each housing authority shall manage and operate decent, safe and sanitary dwelling accommodations' but this is to be done 'at the lowest possible cost' with no thought of profit. Section 32 goes on to provide a specific formula for fixing rents designed to put the housing within the reach of low income tenants, as defined. ⁵ Expenses including carrying charges on borrowed money presumably cannot be met by the rents and so the budget of a local housing authority--which requires approval of DCA--must be supplemented by annual contributions from the Commonwealth through DCA. Physical Financial Assistance' dated December 4, in the budget which must be framed in the light of what the Commonwealth can be expected in fact to appropriate. The level of repair, rehabilitation, and so forth, and the pace at which these measures can be carried out, are thus shaped by a member of management choices involving experience and judgment.

When read in relation to the statute, the bill in effect asks the court to find and declare that the defendant agencies failed to do all that they could to carry out a general statutory policy or aim, and, further, to order the agencies so to exercise their operational and suprevisory powers as to do more in the future to fulfil the policy. In argument counsel disclaimed the idea that under the injunction prayed for sanctions could be imposed for discrete defects in the housing, but in his view sanctions could be imposed for general deficiencies; this superintendence by the court was apparently to be exercised without any definite limit of time. Whether the law envisages such a relationship between these agencies and the court is the main question posed by the appeal. We conclude that it does not, unless, perhaps, more normal remedies have been attempted and shown to be unavailing to improve conditions as far as they are reasonably capable of being improved within the limiting factors already mentioned.

Tenants might have difficulty securing judicial review of a policy of a local housing authority while there was still a fair prospect that DCA would attempt to correct that policy by administrative methods and ultimately by suit under § 29 ⁶ or § 34(c). ⁷ See Sullivan v. Fall River Housing Authy., 348 Mass. 738, 205 N.E.2d 701 (involving a proposed rent increase). ⁸ In the present case, however as both BHA and DCA are alleged to be delinquent, we may assume that affected tenants are not technically barred from applying to a court of equity for relief. Nor would such an avenue be closed to tenants by the fact that the statute does not expressly grant them a right to seek judicial review of the agencies' behavior. ⁹ See Stockus v. Boston Housing Authy., 304 Mass. 507, 512, 24 N.E.2d 333; Worcester Knitting Realty Co. v. Worcester Housing Authy., 335 Mass. 19, 21--22, 24, 138 N.E.2d 356. Cf. Leedom v. Kyne, 358 U.S. 184, 189--190, 79 S.Ct. 180, 3 L.Ed.2d 210; Abbott Labs. v. Gardner, 387 U.S. 136, 139--141, 87 S.Ct. 1507, 18 L.Ed.2d 681; Environmental Defense Fund, Inc. v. Hardin, 138 U.S.App.D.C. 391, 428 F.2d 1093, 1098; Hahn v. Gottlieb, 430 F.2d 1243, 1249 (1st Cir.); Jaffe, Judicial Control of Administrative Action, 336--376.

The question of the proper occasions for judicial intervention upon the suit of affected tenants would remain. A challenge to agency action as being unconstitutional, ¹⁰ or offensive to a specific statutory command or prohibition, ¹¹ would be such an occasion. A charge of arbitrary or capricious action by the agency, like a charge that the agency was exceeding its 'jurisdiction,' could also present a plausible situation for appeal to an equity court. ¹² Even in a field in which the agency is acknowledged to have latitudinous discretion, a court would not be excluded if the agency appeared to have been actuated by clearly inapposite or unreasonable considerations. ¹³ And it may be granted that for purposes of the availability of judicial review, inaction by an agency over a period of time could count as the equivalent of a final refusal to act. ¹⁴

The instant bill does not allege facts which would bring this case into any of the categories described. Nearest is the set of cases holding even discretionary behavior accountable to the canons of reason, but the bill here does not assert that BHA or DCA is pursuing specific policies or being moved by specific considerations that are beyond rational justification. The case as alleged rather resembles those more commonplace situations in which courts have regularly resisted the temptation to substitute their initiative or judgment for that of agencies charged, as the defendant agencies are here charged, with primary responsibility for discretionary choices. See Stockus v. Boston Housing Authy., 304 Mass. 507, 509--511, 24 N.E.2d 333; McAuliffe & Burke Co. v. Boston Housing Authy., 334 Mass. 28, 31--32, 133 N.E.2d 493; SCHOOL COMM. OF SPRINGFIELD V. BOARD OF EDUC., MASS., 287 N.E.2D 438.^A The reluctance is deepened by the traditional and still understandable distaste expressed by the court for undertaking the continuing superintendence of the management or repair or rehabilitation of properties. See CHANNEL FISH CO., INC. V. BOSTON FISH MKT. CORP., MASS., 268 N.E.2D 683^B.

Courts, however, have been keen to override traditional limitations and scrutinize agency action when health or life was at stake, see Wellford v. Ruckelshaus, 142 U.S.App.D.C. 88, 439 F.2d 598, 602--603, and the present bill unmistakably and properly announces this theme. So we might be impelled to require the Superior Court to accept the bill, with the burden of supervising agency management as implicitly demanded by the prayers of the bill, if we were not persuaded that more effective, albeit less heroic, procedures are...