TOWN OF CHELMSFORD & others vs. ELIO DIBIASE & another, trustees, & others (and a companion case ).

TOWN OF CHELMSFORD & others [Note 1] vs. ELIO DIBIASE & another, trustees, & others [Note 2] (and a companion case [Note 3]).

370 Mass. 90

February 4, 1976 - April 6, 1976

Middlesex County

Present: REARDON, BRAUCHER, KAPLAN, & WILKINS, JJ.

A taking of land by eminent domain by a town in good faith and for a public purpose was valid notwithstanding a pending application to the board of appeals for a comprehensive permit to build low and moderate income housing on the land pursuant to G. L. c. 40B, Sections 20-23, which after the taking was denied by the board but granted by the Housing Appeals Committee on appeal; the committee's grant of a permit was void. [93-95]

TWO BILLS IN EQUITY filed in the Superior Court on August 8, 1972, and December 18, 1973, respectively.

The suits were heard by Brogna, J.

The Supreme Judicial Court granted a request for direct appellate review.

Charles G. Kadison, Jr. (Louis N. Levine with him) for Elio DiBiase & another, trustees, & another.

Clement McCarthy, Town Counsel, for the town of Chelmsford & another.

Danielle E. deBenedictis, Special Assistant Attorney General, for the Housing Appeals Committee in the Department of Community Affairs.

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BRAUCHER, J. An application was filed with the board of appeals of Chelmsford (board) for a comprehensive permit to build low and moderate income housing on a tract of about forty-eight acres, pursuant to G. L. c. 40B, Sections 20-23, inserted by St. 1969, c. 774, Section 1, sometimes called the Anti-Snob Zoning Act. See Rodgers, Snob Zoning in Massachusetts, 1970 Ann. Surv. Mass. Law Section 18.2. Shortly thereafter a special town meeting voted to take the tract by eminent domain for conservation purposes, and an order of taking was made and recorded. A judge of the Superior Court has found that the taking was made in good faith and for a public purpose. He ruled that the filing of the application did not prevent the subsequent taking, and judgments were entered declaring that the tract was legally taken. Under G. L. c. 40B, Section 20, the board and the Housing Appeals Committee in the Department of Community Affairs (HAC) had authority to override local "requirements and regulations," including zoning by-laws, if not "consistent with local needs." Board of Appeals of Hanover v. Housing Appeals Comm. in the Dep't of Community Affairs, 363 Mass. 339 , 354-355 (1973) (Hanover case). But we now hold that "requirements and regulations" do not include a taking made in good faith and for a public purpose, and affirm the judgments. If the power of eminent domain, granted by the Legislature, is to be overridden in this way, the Legislature must confer the necessary authority.

The cases were heard on the pleadings and a statement of agreed facts, and the judge made findings, rulings, and an order for judgments. The warrant for a special town meeting on June 28, 1971, proposed that the town take the tract by eminent domain for conservation purposes, but the meeting was adjourned for want of a quorum. A second special town meeting voted on November 22, 1971, to take the tract for conservation purposes, but town counsel ruled that the vote was invalid. On December 6, 1971, the owner of the tract was D & B Builders, Inc. (D & B), and the trustees of the Riverside Realty Trust (Riverside) were the owners by agreement; on that day Riverside for the

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first time submitted to the board its application for a comprehensive permit. Notice of a public hearing before the board on the application was published on December 16, 1971; on the same day the selectmen of the town posted a notice for a special town meeting to be held December 27, 1971, for the stated purpose of taking the tract for conservation purposes. The town meeting was held as advertised and the taking voted; an order of taking was executed by the selectmen immediately after the meeting and recorded the next morning.

The board held its hearing on the Riverside application on January 5, 1972, as advertised, despite town counsel's opinion that the tract belonged to the town. The board denied the permit on February 9, 1972, and Riverside took a timely appeal to HAC. HAC denied a motion to dismiss the appeal, held hearings, and on May 10, 1974, granted the comprehensive permit to Riverside. HAC did not decide the issue of the validity of the taking, but left questions relating to title to the courts. The board did not seek judicial review of the HAC decision under G. L. c. 30A, as permitted by G. L. c. 40B, Section 22.

Meanwhile, on August 8, 1972, the town and the board sought a declaratory judgment in the Superior Court to determine title to the tract and to determine the jurisdiction of HAC. That court denied an application for a temporary injunction against the HAC hearings. The defendants in that action were Riverside, D & B, a mortgagee of the tract and HAC. On December 18, 1973, Riverside and D & B brought a suit against the town and the selectmen for a declaratory judgment determining that the taking by the town was void or that the time for filing a petition for assessment of damages was stayed until six months after final determination of the two suits. The two suits were consolidated by consent, and were decided together on May 30, 1975.

The judge pointed out that none of the pleadings in either case raised any issue as to whether the taking was for a legitimate public purpose or was not in good faith and for a public benefit, and that there were no facts alleged

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or agreed on which to base a finding or ruling that the taking was not for a public purpose or was not in good faith. He therefore found that the taking was made in good faith and for a public purpose. Judgments were entered in both cases declaring that the tract was legally taken by the town on December 28, 1971, that the HAC grant of a comprehensive permit to Riverside was void, and that the time for filing a petition for assessment of damages under G. L. c. 79, Section 18, is extended until six months after the final determination of these cases. Riverside, D & B, the mortgagee and HAC appealed, and we allowed an application for direct appellate review.

The parties present to us the single issue whether G. L. c. 40B, Sections 20-23, prohibited the town from making the taking during the pendency of the application for a comprehensive permit. The parties agreed that since the enactment of the statute in 1969 no unit of low and moderate income housing had actually been constructed pursuant to the statute in the face of opposition by a local zoning board. Two projects in this category, totaling 194 units, were under construction in April, 1975. There had been forty-two appeals to HAC from decisions of local zoning boards; twenty-four had been decided by HAC, and fourteen of those had been appealed to the courts. Exercise of the eminent domain power, it is argued, prevents the construction of low and moderate income housing, contrary to a valid determination that such prevention is not "consistent with local needs." Like exclusionary zoning practices, therefore, the taking frustrates the statutory policy.

The parties do not contest the finding that the taking was made in good faith and for a public purpose. Nor could they. Cf. Poremba v. Springfield, 354 Mass. 432 , 434-435 (1968). The board noted that the conservation commission had had the acquisition of the tract under consideration for more than ten years, and HAC recognized that the tract adjoins 100 acres of town forest. The developer had been negotiating with the town for other types of development since 1968, and did not turn to the present proposal until after the second abortive effort in 1971 to obtain a town

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meeting vote authorizing a taking for conservation purposes. Such a taking is authorized by G. L. c. 40, Section 8C, but only by a two-thirds vote of a town meeting. An order of taking by the selectmen was made pursuant to G. L. c. 79, Sections 1, 2, and State reimbursement of fifty per cent of the cost is authorized by G. L. c. 132A, Section 11. See MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 641 (1970).

We held in the Hanover case "that c. 774 confers on boards of appeals and the Housing Appeals Committee power to override local `requirements and regulations,' including zoning ordinances or by-laws, which are not `consistent with local needs.'" 363 Mass. at 355. Neither in that case nor in the comprehensive description of the statute by one of its principal draftsmen, however, is there any suggestion that similar power exists to override the exercise of the eminent domain power. See Rodgers, Snob Zoning in Massachusetts, 1970 Ann. Surv. Mass. Law Section 18.2. Boards of appeals ordinarily have nothing to do with the taking of land for a public purpose. G. L. c. 40A, Section 15. "Requirements and regulations" is an apt phrase to describe limitations on an owner's use of his property. When they are overridden, he is set free; he is not compelled to act under a comprehensive permit once granted, but may abandon the project, and dispose of the property or divert it to another lawful use. A taking is quite different; it is not in any usual sense a requirement or a regulation, but a transfer of ownership. If it is overridden, the effect is not to remove limitations on the rights of the owner but to change the ownership.

"The taking of property by eminent domain is an attribute inherent in sovereign power. It cannot be contracted or bartered away . . . . It `must continue unimpaired in the State. It is impliedly reserved in every grant. It cannot be abridged so as to bind future legislation.'" Burnes v. Metropolitan Dist. Comm'n, 325 Mass. 731 , 734 (1950), quoting from Eastern R.R. v. Boston & Me. R.R., 111 Mass. 125 , 131 (1872). A power in a local board of appeals or HAC to prevent the taking of land for any public use would be a far-reaching power, and we see no basis for distinguishing

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conservation purposes from other municipal purposes. If the Legislature had intended to confer such a power, doubtless it would have considered whether there should be exceptions or safeguards. In the absence of any indication of any such intent or consideration, we are not authorized to extend the power granted by balancing one public purpose against another. We are not to be understood as passing on a situation in which good faith or public purpose is negated.

Judgments affirmed.

FOOTNOTES

[Note 1] Members of the board of appeals of Chelmsford.

[Note 2] Members of the Housing Appeals Committee, Department of Community Affairs; D & B Home Builders, Inc.; Salem Five Cent Savings Bank.

[Note 3] Elio DiBiase & another, trustees, & another vs. Town of Chelmsford & others.