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12/21/77 BOSTON EDISON COMPANY v. BOSTON

December 21, 1977

BOSTON EDISON COMPANY
v.
BOSTON REDEVELOPMENT AUTHORITY & OTHERS



Suffolk. Civil action commenced in the Superior Court on January 13, 1976. The case was heard by McNaught, J., on a motion to dismiss. The Supreme Judicial Court granted a request for direct appellate review.

Hennessey, C.j., Quirico, Liacos, & Abrams, JJ. Quirico, J., Concurring in the result.

SYLLABUS BY THE COURT

Redevelopment of Land. Administrative Matter. Public Board. Practice, Civil, Extraordinary review, Parties. Constitutional Law, Equal protection of laws. Jurisdiction, Civil, Redevelopment of land, To try title to public office. Boston Redevelopment Authority. Contract, Redevelopment of land. Zoning. Words, "Person aggrieved," "Project," "Public utility," "Public use and benefit."

The opinion of the court was delivered by: Abrams

The general principle that harm from expected competition is insufficient to confer standing on a plaintiff was not applicable to an electric company's challenge to the Boston Redevelopment Authority's approval of the construction of an electric generating plant as an urban renewal project since approval of the project would cause a direct and ascertainable loss to the electric company by eliminating a group of consumers from the market available to the company. [43-44] Quirico, J., Concurring in the result.

An electric company which would suffer a direct, substantial, and ascertainable loss as the result of the Boston Redevelopment Authority's approval of a project was a "person . . . aggrieved" within the meaning of St. 1960, c. 652, § 13. [44-46] Quirico, J., Concurring in the result.

In an action in the nature of certiorari challenging a decision made by the Boston Redevelopment Authority pursuant to its statutory powers under St. 1960, c. 652, and G. L. c. 121A, the scope of judicial review was whether there was substantial evidence to support the authority's decision. [47-54] Quirico, J., Concurring in the result.

A corporation's proposed construction of an energy plant and distribution facility intended to serve only its members was a "project" within the meaning of St. 1960, c. 652, and G. L. c. 121A [54-57]; the construction of c. 652 and c. 121A as authorizing such a plan would not violate general principles of public utility policy nor would it conflict with G. L. c. 164, §§ 87 and 88 [54-55]; nor would the proposed facility constitute a "public utility" within the meaning of c. 121A, § 1 [56-57].

The construction of G. L. c. 121A, § 1, to authorize a corporation to construct an energy plant and distribution facility for the use of its members did not deny an electric company equal protection of the laws by the fact that the c. 121A project would receive tax concessions and might be exempt from governmental regulation. [57-58]

A determination by the Boston Redevelopment Authority that the site of a proposed project was in a decadent or sub-standard area within the meaning of G. L. c. 121A, § 1, was supported by substantial evidence. [58-60]

The proposed construction in a decadent area of an energy plant and distribution facility for use by twelve institutions engaged in medical, educational, and charitable functions constituted a "public use and benefit" within the meaning of St. 1960, c. 652, § 13. [60-62]

Substantial evidence supported a finding by the Boston Redevelopment Authority that a proposed power plant to service various medical, educational, and charitable institutions was a commercial and institutional use and not an industrial use. [65-67]

Substantial evidence supported a finding by the Boston Redevelopment Authority that the grant of deviations from the Boston Zoning Code to a corporation for the construction of a power plant to be used to service various medical, educational, and charitable institutions would not substantially derogate from the intent and purposes of the zoning code within the meaning of St. 1960, c. 652, § 13. [63-65; 67-70]

There was no error in a determination by the Boston Redevelopment Authority pursuant to St. 1960, c. 652, § 13, that construction of a power plant to service various medical, educational, and charitable institutions within the Fenway Urban Renewal Area would further the goals and objectives of the Fenway Urban Renewal Plan and would not conflict with the city's Master Plan. [70-72]

The approval by the Boston Redevelopment Authority of a project pursuant to St. 1960, c. 652, and G. L. c. 121A was not rendered invalid by the applicant's failure to disclose on its application the amount of additional payments it would make to the city under the provisions of G. L. c. 121A, § 6A, where the approximate amount of such payments was disclosed at a public hearing and the authority was at a later date, but prior to the approval, informed of the specific amount. [72-74]

A plaintiff in an action to challenge a decision of the Boston Redevelopment Authority could not attack the decision on the ground that the terms of certain members of the authority had expired prior to the vote; a public officer's right to office cannot be attacked collaterally. [74-76]

In an action challenging a decision of the Boston Redevelopment Authority, there was no merit to the plaintiff's claim that St. 1960, c. 652, and G. L. c. 121A were unconstitutionally vague and overbroad. [76]

Pursuant to St. 1960, c. 652, § 13, the plaintiff Boston Edison Company (Edison) instituted a proceeding in the nature of certiorari in the Superior Court to review action taken by the defendant Boston Redevopment Authority (BRA) under its statutory powers as set out at St. 1960, c. 652, and G. L. c. 121A. The specific action which Edison attacks is the BRA's approval of a plan proposed by the remaining defendants -- (1) Citicorp Translease, Inc.; (2) L. Edward Lashman, Jr.; (3) the Medical Area Service Corporation (MASCO); and (4) the President and Fellows of Harvard College (Harvard) (collectively the Applicants) -- for the construction of an electric generating and steam power plant, an office building, and related facilities as an urban renewal project. A Superior Court Judge heard arguments on two motions to dismiss, one filed by the BRA and the other by the Applicants. Each of the motions to dismiss alleged that Edison lacked standing to maintain its cause of action. Both motions also alleged in substance that the complaint failed to state a claim on which relief could be granted. The Judge denied the motions challenging Edison's standing. Thereafter, after a full hearing, the Judge rendered a thorough and well-reasoned opinion which at its Conclusion ordered that a judgment dismissing Edison's complaint (and thereby affirming the BRA's action) should be entered. Edison duly filed its claim of appeal. We allowed Edison's application for direct appellate review. The defendants did not take a cross appeal from the Judge's adverse ruling on the standing issue. We affirm the decision of the Superior Court Judge.

The facts are as follows. MASCO is a charitable corporation established by twelve institutions engaged in medical, educational, and charitable functions. *fn1 MASCO's purpose is to assist its members in performing these functions more efficiently.

The project contemplates the operation and maintenance by MASCO, through a corporation formed pursuant to c. 652 and G. L. c. 121A, of a total energy plant which would provide electricity, steam, chilled water, and solid waste incineration for the MASCO member institutions. *fn2 The total energy plant would replace the existing Harvard steam plant on Blackfan Street, which presently supplies some of the steam requirements of some of the MASCO institutions but which is or will be increasingly inadequate to meet these requirements. In addition, the project would provide some nonelectrical services, free of charge, to the Mission Park Housing Project, a publicly assisted housing project previously approved by the BRA. *fn3

The power plant is to be located on 1.4 acres in the city of Boston in a block bounded by Brookline Avenue, Francis Street, Binney Street, and Peabody Street. This area is located within the Fenway Urban Renewal Area and is subject to the Fenway Urban Renewal Plan (Fenway Plan); approval of the Fenway Plan required a finding that the Fenway Urban Renewal Area was a decadent area. The area surrounding the site of the proposed power plant is characterized by institutional and commercial uses on three sides and by some residential use on the fourth side.

Edison sells electricity in the city of Boston, and among its customers are the twelve MASCO member institutions whose annual consumption yields to Edison approximately $3,000,000 in gross revenues. Construction of the total energy plant will result in Edison's loss of this business for a period of at least thirty-five years.

After informal contact between the Applicants and the BRA regarding the likelihood of the plan's qualifying as a project under St. 1960, c. 652, and G. L. c. 121A, the BRA on April 30, 1975, submitted a draft environmental impact report (EIR) on the project. The Applicants submitted to the BRA a formal application for approval of the project on July 1, 1975. On July 7, 1975, the Secretary of Environmental Affairs issued a statement finding the draft EIR inadequate.

On August 26, 1975, the BRA conducted a public hearing on the project, as required by c. 121A. Edison participated fully in this hearing and filed with the BRA extensive materials setting forth its views on the proposed project.

On September 29, 1975, the BRA submitted its final EIR. On October 2, 1975, a motion to adopt a draft Report and Decision approving the project was tabled, but on October 9, 1975, by a four to one vote, the BRA adopted a Report and Decision approving the project. Included in the report were the findings required for approval of a project under St. 1960, c. 652, and G. L. c. 121A. The BRA's vote was approved by the mayor of the city of Boston on December 8, 1975, and on December 17, 1975, copies of the BRA's vote and the mayor's approval were filed with the city clerk.

On November 5, 1975, the Secretary of Environmental Affairs found the final EIR inadequate. After the submission of supplementary information, the EIR was found acceptable by the Secretary on January 23, 1976. *fn4

Edison challenges the BRA's approval of the project on the grounds (1) that the total energy plant does not constitute a "project" as defined in G. L. c. 121A, § 1; (2) that, contrary to the BRA's findings, the site for the plant was not a "decadent and/or substandard area," and the project does not constitute a "public use and benefit" as required by c. 652, § 13, and c. 121A, §§ 1 and 2; (3) that deviations from the Boston zoning code granted by the BRA substantially derogate from the intent and purposes of the zoning code; (4) that the plan conflicts with the Master Plan for Boston and with the Fenway Plan; (5) that the vote of the BRA is invalid because the failure to disclose the amount of the additional tax payment on the project is a violation of G. L. c. 121A, § 6A; and (6) that the terms of four of the five BRA members who voted on the application had expired prior to the vote, thus rendering that action invalid.

Prior to examining the merits of these allegations, we confront the defendants' threshold claim that Edison is without standing to maintain the present suit. That argument was advanced in the Superior Court as a basis for the defendants' motions to dismiss. The motions were denied. Although the defendants did not take a cross appeal from that ruling, they are not precluded from raising it here. A party who prevails in the Superior Court may present on appeal any ground which was previously asserted below in support of the judgment. *fn5 Boston Police Patrolmen's Ass'n v. Boston, 367 Mass. 368, 373-374 (1975). We therefore address this matter at the outset.

1. Standing.

Statute 1960, c. 652, § 13, provides that "any person . . . who is aggrieved" by a vote of the BRA may file a petition for a writ of certiorari against the authority to correct errors of law. Edison contends that its projected loss of approximately $3,000,000 a year over the next thirty-five years is an injury of sufficient magnitude to confer standing on it. The defendants argue, on the other hand, that business competition as the result of governmental action is not the type of injury which satisfies the standing requirement of the statute.

As the defendants maintain, the threat of competition is generally not a sufficient injury to confer standing. SDK Medical Computer Servs. Corp. v. Professional Operating Management Group, Inc., 371 Mass. 117, 123-124 (1976). Nantucket Boat, Inc. v. Woods Hole, Martha's Vineyard & Nantucket S.S. Auth., 345 Mass. 551, 554 (1963). Springfield Hotel Ass'n v. Alcoholic Beverages Control Comm'n, 338 Mass. 699, 703 (1959). Colantuoni v. Selectmen of Belmont, 326 Mass. 778, 779-780 (1951). Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 429 (1949). However, the cases in which this proposition has been established and applied are distinguishable from the instant case. In those cases the plaintiffs challenged decisions allowing the operation of establishments similar to their own which would compete with them for business and thus possibly deprive them of revenue. The injury to Edison, however, does not involve such a speculative loss of business through increased competition. Rather, the approval of the project by the BRA would cause a direct and ascertainable loss to Edison, and this loss would not be the result of competition for customers but would stem from the elimination of a group of consumers from the market available to Edison. Thus while we think the question of Edison's standing is a close one, we conclude that the general principle that harm from expected competition is insufficient to confer standing is inapplicable. Compare American Can Co. v. Milk Control Bd., 313 Mass. 156 (1943), with Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, supra.

We therefore turn to the law concerning the construction of "person aggrieved" to determine whether Edison has standing to maintain this action. "The scope and meaning of the words 'person . . . aggrieved' must be determined with reference to the context and the subject matter." Ayer v. Commissioners on Height of Bldgs. in Boston, 242 Mass. 30, 33 (1922). In considering the grant of standing of c. 652, § 13, we have previously stated that the "words 'persons aggrieved' are to be given a comprehensive meaning." Dodge v. Prudential Ins. Co. of America, 343 Mass. 375, 381 (1961). We have not, however, had occasion to consider that statutory phrase in light of facts such as those presently before us.

In determining the scope of a statute granting standing to a "person aggrieved," our inquiry focuses on (1) the powers of the administrative body as defined in the statute, and (2) the manner in which the statute directs that those powers be exercised. American Can Co. v. Milk Control Bd., supra at 158. If the agency's power is great, and if the relevant statute contemplates a consideration of public opinion in the decision making process, then a fairly expansive conception of standing obtains. In such a situation an "ascertainable property loss as a proximate consequence of the . . . action" standing alone suffices to meet the requirement that the person seeking review be "aggrieved." American Can Co. v. Milk Control Bd., supra at 160.

Chapter 121A was enacted in response to a legislative determination that the continued existence of blight and decay posed a threat to the health and safety of the inhabitants of the Commonwealth. The Legislature concluded that such conditions constituted a public exigency and that their elimination would be in the public interest. G. L. c. 121A, § 2. Accordingly the Legislature granted broad powers to the BRA and to similar bodies throughout the Commonwealth. See G. L. c. 121A and St. 1960, c. 652. The BRA possesses, inter alia, the power to approve plans involving the demolition of existing buildings and the resultant displacement of large numbers of persons and functioning enterprises, St. 1960, c. 652, § 13; and the power to grant exemptions from taxation, St. 1960, c. 652, § 12, and G. L. c. 121A, § 10.

These are "extraordinary powers," the exercise of which is "bound to affect profoundly many persons not directly concerned" in the construction of the redevelopment projects. American Can Co. v. Milk Control Bd., supra at 158-159. "Such powers . . . capable of grave abuse." Id. at 159.

Further, the procedural provisions of the statute call for wide-scale public participation. When a private redevelopment plan is submitted, the BRA is required to give notice and to conduct a public hearing on the project. St. 1960, c. 652, § 13. Among the purposes of the hearing is the furnishing of the BRA with a reservoir of information so that it can determine whether the approval of the project "would be in any way detrimental to the best interests of the public. . . ." Id. The BRA must also prepare and make available to the public a report setting forth the reasons for its approval or disapproval of the proposed project. Id. Any person aggrieved by the agency's action may seek judicial review "whether previously a party to the proceeding or not." Id.

Having in mind the broad powers granted to the BRA, the far-reaching effects of actions taken pursuant to its approval, the provisions for public participation, and the comprehensive provision for review, we conclude that the grant of standing contained in St. 1960, c. 652, ยง 13, is sufficiently broad to allow for review by a person who alleges a substantial injury as a direct result of the BRA's action. See American Can Co. v. Milk Control Bd., supra at 160. The loss which Edison will undoubtedly suffer as a result of the BRA's approval of the project is ...


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