Zahavi v. Rent Control Board of Brookline

1992 Mass. App. Div. 186
CourtMassachusetts District Court, Appellate Division
DecidedSeptember 29, 1992
StatusPublished

This text of 1992 Mass. App. Div. 186 (Zahavi v. Rent Control Board of Brookline) 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
Zahavi v. Rent Control Board of Brookline, 1992 Mass. App. Div. 186 (Mass. Ct. App. 1992).

Opinion

Dolan, P J.

The plaintiff Haim Zahavi (“Zahavi") applied to the Rent Control Board of Brookline (“Board") for an exemption from rent control on the basis that his property at 526 Harvard Street, Brookline, was an owner-occupied three-family house and was therefore exempt from rent control according to Article XXXVIII, section 3 (b) (5) of the By-Laws of the Town of Brookline [“section 3 (b) (5) ”]. Cambridgeport Savings Bank was allowed to intervene. The Board denied that application, finding 526 Harvard Street to be part of a six-unit building; and plaintiffs sought judicial review. The court upheld the Board’s decision, citing “substantial evidentiary support" for denying the exemption. This division affirms the court’s ruling.

The plaintiffs’ argument has five central claims: 1) there is a lack of substantial evidence to supporttheBoard’s decision; 2) theoriginal “purpose” of the construction of 524 and 526 Harvard Street was to create two separate buildings, and the Board is bound to honor that purpose; 3) the restriction on exemption from rent control contained in section 3(b) (5) ofthe Brookline By-Laws does not apply to the structure at 526 Harvard Street; 4) the plaintiff Zahavi bought the property at 526Harvard Street relying, in good faith, on public records which treat 524 and 526 Harvard Street as separate properties; and 5) the Board’s failure to exempt 526 Harvard Street runs against the stated purpose of the rent control by-law (i.e. art. XXXVIII).

1. Section 3 (b) (5) exempts from rent control “the rental unit or units in an owner-occupied two-family or three-family house; provided that, this exception shall not apply to abuilding which was afour or more unit building and which became an owner-occupied two-family or three-family house after August 20, 1982.” Zahavi sought to have his property at 526 Harvard Street classified as an owner-occupied threefamily house, thereby qualifying for an exemption from rent control. The Board held two hearings, after which the Board declared the property at 526 Harvard Street to be a [187]*187section of a six-unit building, the remainder of which is numbered 524 Harvard Street. Accordingly, the Board denied the application for rent control exemption.

As the plaintiffs correctly point out, the relevant standard for determining whether the Board acted properly is whether there is “substantial evidence” to support the Board’s decision. Moulton v. Brookline Rent Control Board, 385 Mass. 228, 233 (1982). “Substantial evidence” is defined in G.L.c. 30A, §1(6) as “such evidence as a reasonable mind might accept as adequate to support a conclusion.” The Board made the following findings of fact, among others, in support of its ruling that the properties at 524 and 526 Harvard Street are part of a single building rather than two separate buildings: a) the properties at524 and 526 Harvard Street share a common front door; b) the two properties share a common internal stairway; c) there is an open passageway, without a door, linking the basements of the two properties; d) 524 and 526 Harvard Street give the outward appearance of one building; e) 524 and 526 Harvard Street “were constructed simultaneously to form one building”; f) the two furnaces and two water heaters which service the two properties are all located at 526 Harvard Street; g) a single chimney, located at 526 Harvard Street, handles all of the oil and gas heat exhaust from both properties; and h) all electric meters and fuse boxes for the two properties are located at 526 Harvard Street.

In Entis v. Rent Control Board of Brookline, 399 Mass. 158, 162-163 (1987), the court accepted as substantial evidence for the physical separateness of two buildings the facts of separation by a twelve-inch brick party wall, separate entrances, and separate heating systems. By contrast, 524 and 526 Harvard Street lack two of these three elements: there is a common entrance, and the heating systems share a common exhaust system. Even the one similarity, the brick party wall, has a difference. According to BLACK’S LAW DICTIONARY, 5TH EDITION (1979), a “party wall” is defined as “A wall erected on a property boundary as a common support to structures on both sides, which are under different ownership.” In Entis, deeds which date back to the 1930’s for two properties separated by a brick wall make specific reference to a party wall. Originally, the properties were in separate ownerships. In the instant case, the Board issued as findings of fact: a) that the brick wall separating 524 and 526 Harvard Street is both a party wall and a fire wall; and b) that the first party wall agreement for that wall was recorded in 1986. Since 524 and 526 Harvard Street were under the same ownership at all times from 1902 until 1986, it is not unreasonable to infer that the brick wall was not built as a “party wall.” Instead, its original function was to act as a fire wall. In addition, this division accepts the Board’s findings of fact as presented in the Board’s report, since it is not the role of the court to challenge the fact-finding prerogative of an administrative agency. Gnerre v. Massachusetts Commission Against Discrimination, 402 Mass. 502, 509 (1988); Smith College v. Massachusetts Commission Against Discrimination, 376 Mass. 221, 224 (1978).

While the Board did receive some evidence which tends to support the plaintiffs’ claim of the separateness of 524 and 526 Harvard Street, “the court should be slow to decide that a public board has acted unreasonably or arbitrarily. The court should cast aboutto discover, if possible, some ground which reasonable men mightdeem proper on which the action can rest.” Cotter v. Chelsea, 329 Mass. 314, 318 (1952); Moulton v. Brookline Rent Control Board, 385 Mass. 228, 233 (1982). It is the opinion of this division that there was substantial evidence before the board which warranted the decision to classify 524 and 526 Harvard Street as a single building.

2. The plaintiffs argue from Martin v. Rent Control Board of Cambridge, 19 Mass. App. Ct. 745, 748 (1985), thatthecourtmustconsidertheoriginal purpose of abuilding in determining how it should be viewed by the Board: “the purpose for which a structure is built... is the determinative fact in deciding the structure’s classification under a zoning by-law.” The plaintiffs assert that by this line of reasoning, the Board should have accepted the facts that 524 and 526 Harvard Street are situated on separately assessed lots and were built with a twelve-inch wall between them as [188]*188sufficient proof that the original purpose was for 524 and 526 Harvard Street to exist as separate buildings. The first problem here is that art. XXXVIII is a rent-control bylaw and not a zoning by-law. Even if one allows that the extension of the principle of abuilding’s original purpose suggested in Van Arsdale v. Provincetown, 344 Mass. 146, 147-148 (1962), applies to rent control as well as zoning, there is still the issue of determining the original purpose of524 and 526 Harvard Street. The claim of intended separateness based on the wall and the separate lots is severely weakened by the Board’s finding of fact number thirty-seven, which states in part, “524 and 526 are sections of asix unit building.

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Related

Moulton v. Brookline Rent Control Board
431 N.E.2d 225 (Massachusetts Supreme Judicial Court, 1982)
Cotter v. City of Chelsea
108 N.E.2d 47 (Massachusetts Supreme Judicial Court, 1952)
Martin v. Rent Control Board of Cambridge
477 N.E.2d 426 (Massachusetts Appeals Court, 1985)
Gnerre v. Massachusetts Commission Against Discrimination
524 N.E.2d 84 (Massachusetts Supreme Judicial Court, 1988)
College v. Massachusetts Commission Against Discrimination
380 N.E.2d 121 (Massachusetts Supreme Judicial Court, 1978)
Van Arsdale v. Town of Provincetown
181 N.E.2d 597 (Massachusetts Supreme Judicial Court, 1962)
Fioravanti v. State Racing Commission
375 N.E.2d 722 (Massachusetts Appeals Court, 1978)
Entis v. Rent Control Board
503 N.E.2d 640 (Massachusetts Supreme Judicial Court, 1987)

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Bluebook (online)
1992 Mass. App. Div. 186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zahavi-v-rent-control-board-of-brookline-massdistctapp-1992.