Moulton v. Brookline Rent Control Board

1981 Mass. App. Div. 8, 2 Mass. Supp. 111, 1981 Mass. App. Div. LEXIS 5
CourtMassachusetts District Court, Appellate Division
DecidedJanuary 7, 1981
StatusPublished
Cited by2 cases

This text of 1981 Mass. App. Div. 8 (Moulton v. Brookline Rent Control Board) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moulton v. Brookline Rent Control Board, 1981 Mass. App. Div. 8, 2 Mass. Supp. 111, 1981 Mass. App. Div. LEXIS 5 (Mass. Ct. App. 1981).

Opinion

Welsh, J.

This is a petition for judicial review of a decision by the defendant Brookline Rent Control Board granting a certificate of eviction to the defendant Babcock Street Associates Trust.

The Brookline Rent Control Board filed an answer denying, inter alia, that its decision was arbitrary, capricious, or unsupported by substantial evidence, or otherwise contrary to the law.2

Babcock Street Associates filed an answer raising certain factual issues concerning whether or not plaintiff s apartment was included in a certain master deed converting the real estate in question into a condominium agreeable to General Laws Chapter 183 A and of notice to the plaintiff of intent to convert to condominium usage.

The trial court, sitting in review of the administrative decision, affirmed the decision of the Rent Control Board, reaching the same conclusion upon somewhat different grounds.

1. We pause to consider the question of whether appellate divisions of the district courts have jurisdiction to review rent control board cases. Rent control boards derive their existences from ordinances or by-laws whereby the municipality accepts the provisions of one or more of the several enabling statutes. The enabling statute typically sets out the manner in which judicial review may be had as regards decisions of rent control boards. Such an enabling statute is found in St. 1970, c. 842. That statute permits municipalities having a population of 50,000 or over to accept its provisions, thereby establishing a rent and eviction control system. It invests the district court in whose jurisdiction lies the rental unit subject to rent control with exclusive original jurisdiction to review the decisions of rent control boards. St. 1970, c. 842, § 10(a). It has been held that under St. 1970, c. 842, appellate divisions do not have jurisdiction to review the decisions of district courts in passing upon actions of rent boards because the party seeking review is compelled to bring the action in the district court. For this reason, the avenue of “appeal”3 is to the superior court and not the appellate division. Gentile v. Rent Control Board of Somerville, 365 Mass. 343, 346, fn.3 (1974);Black v. Zuker, 48 Mass. App. Dec. 156, 161-168 (1972).

The instant case arises out of a rent control board proceeding under a different enabling statute. St. 1970, c. 843 is directed to ward rent and eviction control in the Town of Brookline only. There is an excellent discussion of the genesis of c. 843, which was enacted virtually simultaneously with c. 842, in the case of Marshal House, Inc. v. Rent Control Board of Brookline, 358 Mass. 686, 697-699 (1971). Unlike § 10(a) of c. 842, the language used in § 5 of c. 843 provides that the Municipal Court of Brookline has original jurisdiction concurrently with the superior court of petitions for review brought pursuant to section 14 of Chapter 30A of the General Laws. Since the element of compulsion as to forum for review is absent, we hold that the appellate division has jurisdiction to review the actions of the rent control board which were submitted to the Municipal Court of Brookline for review initially. See: Donnelly v. Montague, 305 Mass. 14, 16(1940). Compare: Hatfield v. Klimoski, 338 Mass. 81, 83-84(1958). We [10]*10perceive no anomaly in the fact that different appellate channels appertain, depending upon the initial choice of forum. See: Sherman v. Rent Control Board of Brookline, 367 Mass. 1, 7, fn. 9 (1975).

2. We proceed to a consideration of the merits. The Supreme Judicial Court, speaking through Justice Kaplan, held that the sort of judicial review in rent adjustment cases is a limited one. “ .. .The court’s proper role is not to take evidence afresh and decide for itself what rent is to be fixed, but is rather to decide whether the board’s decision was supported by the facts before it and was legally justified.” Sherman v. Rent Control Board of Brookline, 367 Mass. 1, 10(1975).That opinion suggests,by way of dicta,that since under c. 843, both eviction and rent adjustment cases are wholly under the State Administrative Procedures Act a limited judicial review pertains. Id. p. 12, fn. 11. The Sherman standard of judicial review was expressly reaffirmed in Zussman v. Rent Control Board of Brookline, 371 Mass. 632, 635 (1976).

The Rent Control Board held a hearing and found that the landlord sought to recover possession of the apartment of the plaintiff to demolish or otherwise remove the unit from housing use. This was the ground relied upon by the landlord in his application and at the hearing. Article XXXVIII of the Rent and Eviction Control By-law, section 9(a)(9), provides, inter alia, that no person shall bring an action to recover possession of a controlled rental unit unless: “(9) the landlord seeks to recover possession to demolish or otherwise remove the unit from housing use.” The board, in effect, determined that its finding of a definite intent on the part of the landlord to remove the unit from housing use obviated any necessity to examine whether the landlord’s purpose conflicted with the provisions and purposes of the rent control by-law.4

In a memorandum, the trial judge affirmed the board’s action, concluding that it could not be said that the board’s action was without adequate support in the evidence and was not unlawful. The judge suggested strongly that certain inconsistencies as to the reason for eviction espoused by the landlord created grounds for doubt as to the veracity of the landlord, but he felt that to invalidate the certificate of eviction would be to countenance an unlawful use.5

In administrative reviews of this sort, determination of the credibility of witnesses or the weight to be accorded their testimony is not for the reviewing court. Nor is it significant that the judge reviewing the action of the agency might well have reached a different conclusion or drawn different inferences from the testimony if he were hearing the matter as a finder of fact for the agency. A full evidentiary adversary hearing apparently took place before the hearing examiner of the board. The sole issues on review are whether or not the board’s decision is supported by substantial evidence in the record, whether or not procedural due process was observed in the conduct of the adjudicatory hearing, and whether or not the findings or conclusion are vitiated by any error of law. See: Sherman v. Rent Control Board of Brookline, 367 Mass. 1, 10. Judicial review of facts in rent control cases does not extend to the taking of evidence de novo. Zussman v. Rent Control Board of Brookline, supra, at 637.

The only issue of law that this record presents for review is whether the board was unduly restrictive in its approach by limiting its consideration to whether or not the landlord possessed a definite intention to demolish or otherwise remove the unit from housing use. This approach was based upon the board’s interpretation that evictions [11]*11under § 9(a)(9) of Art. XXXVIII need not meet the additional requirement imposed by § 9(a)(10), to wit, that the landlord’s purpose not be in conflict with the provisions and purposes of the rent control by-law.

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Related

Kahn v. Brookline Rent Control Board
1982 Mass. App. Div. 111 (Mass. Dist. Ct., App. Div., 1982)

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Bluebook (online)
1981 Mass. App. Div. 8, 2 Mass. Supp. 111, 1981 Mass. App. Div. LEXIS 5, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moulton-v-brookline-rent-control-board-massdistctapp-1981.