Globe Newspaper Co. v. Beacon Hill Architectural Commission

Lynch, J.

(dissenting, with whom O’Connor, J., joins). Because I believe that the Beacon Hill Architectural Commission (commission) exceeded its authority by issuing the “Street Furniture Guideline” (guideline), I dissent from the court’s opinion.

Essential to the court’s decision is the determination that a newsrack is a structure with exterior architectural features. From this the court concludes that the commission has authority to regulate the exterior architectural features of newsracks. In addition, the court reasons, the commission’s authority to regulate the exterior architectural features of newsracks includes the authority to issue a regulation banning street furniture, including newsracks, no matter what their exterior architectural features may be, by promulgating a substantive guideline to that effect.

I disagree with the court’s reasoning, as well as its ultimate conclusion. While I agree with the United States District Court for the District of Massachusetts (District Court) and the United States Court of Appeals for the First Circuit (First Circuit) that the question whether a newsrack is a *592“structure” is a close one,1 I also believe that it is the wrong question. The commission does not have authority, either express or implied, to regulate “structures.” The commission has the authority to regulate “exterior architectural features” of the Historic Beacon Hill District (district).2 Therefore, the pertinent question is whether, by banning newsracks and other street furniture from the sidewalks of Beacon Hill, the commission is regulating the exterior architectural features of the district. I believe the answer to this question must be, “No.”

To hold that a newsrack has “exterior architectural features” expands the commonsense meaning of that term to the point where it would be difficult, if not impossible, to find a physical object which did not fit within the purview of the commission. The “intent of [a] statute is to be ascertained from all its terms and parts and the subject matter to which it relates, and [the statute] should be so construed as to make it an effectual piece of legislation in harmony with common sense and sound reason.” Tilton v. Haverhill, 311 Mass. 572, 577-578 (1942), quoted in McGonigle v. The Governor, 418 Mass. 147, 151 (1994). The court focuses on *593the statute’s reference to “structure” in defining exterior architectural features.3 However, the definition as a whole clearly refers to a particular subset of structures: those which might reasonably be expected to have an “architectural style”; to be composed of “building material”; and to have “doors, lights, signs, and other fixtures.” St. 1955, c. 616, § 3. There is no reason to assume that every “structure” included in the broad statutory definition has “exterior architectural features.” Cf. G. L. c. 143, § 1 (1994 ed.). Indeed, it is more reasonable to conclude that the only structures with exterior architectural features are buildings. I conclude that the commission has no authority to regulate newsracks.

Other factors support this conclusion. As the First Circuit points out, the commission in its own literature “ratifies] the plaintiffs’ interpretation.” Boston Globe Co. v. Beacon Hill Architectural Comm’n, 40 F.3d 18, 21 (1st Cir. 1994). The commission’s own architectural guidelines state that “the statute authorizes the Beacon Hill Architectural Commission to review proposed changes to the exterior architectural features of buildings within the historic district .... Owners contemplating changes to the exterior of any building within the . . . District should be aware that no alteration will be approved that is inappropriate to the historic character, architectural design, and materials of the building . . .” (emphasis added). While not dispositive, the commission’s own interpretation of its statute is entitled to some deference. See Greater Media, Inc. v. Department of Pub. Utils., 415 Mass. 409, 414 (1993).4 Furthermore, as I have stated, it is a close *594question whether newsracks are structures, even under the broad definition provided in G. L. c. 143, § l.5

Moreover, not only did the commission lack the authority to regulate newsracks, but it was also without authority to promulgate any guidelines of the type in question. I believe this to be so because, as the District Court reasoned, the commission does not have the power, either express or implied, to issue substantive rules. As a threshold issue, the proper standard for reviewing a commission guideline is whether “the legislative declaration expressly authorizes it” or whether it “is necessary to effectuate the legislative intent embodied in the statute relied on as the source of municipal power. A reasonable relationship between the [guideline] and the statute is not enough.” (Emphasis in original.) Globe Newspaper Co. v. Beacon Hill Architectural Comm’n, 847 F. Supp. 178, 186-187 (D. Mass. 1994), quoting Greater Boston Real Estate Bd. v. Boston, 397 Mass. 870, 877 (1986).6

*595The statute does not expressly authorize the commission to issue the guideline. The court discerns such authorization in the 1965 amendment to the enabling statute, which provides that the commission may make “rules for the regulation of its affairs and the conduct of its business.” St. 1965, c. 429, § 2. The court’s reasoning is unpersuasive for the following reasons. The rules amendment was added to § 4 of the enabling statute, a section which sets out the makeup and procedures of the commission. St. 1955, c. 616, § 4. This section is the logical place to insert an amendment authorizing procedural rules, but not substantive ones. In addition, cases preceding the date of the amendment indicate that the “phrase was commonly used to refer at most to the internal management of an entity ... if not strictly to matters of procedure.” Globe Newspaper Co. v. Beacon Hill Architectural Comm’n, supra at 185. See Insurance Co. of N. Am. v. Commissioner of Ins., 327 Mass. 745, 749 (1951); Burt v. Municipal Council of Taunton, 275 Mass. 535, 542 (1931); Tapper v. Boston Chamber of Commerce, 249 Mass. 235, 242-243 (1924). I conclude that the rules amendment confirms the commission’s power to issue procedural rules, not substantive regulations. Accordingly, the statute provides no express authority for the commission to issue the guideline.

Neither does the statute provide the commission with implied authority for substantive rulemaking. There is no indication that such power is “necessary to effectuate the legislative intent embodied in the statute,” Globe Newspaper Co. v. Beacon Hill Architectural Comm’n, supra at 186, quoting Greater Boston Real Estate Bd., supra at 877. The commission is empowered to determine, on a case-by-case basis, “whether the proposed construction, reconstruction or altera*596tian of [a particular] exterior architectural feature . . . will be appropriate to the preservation of the . . . district.” St. 1955, c. 616, § 7. The statute continues:

“In passing upon appropriateness, the commission shall consider, in addition to any other pertinent factors, the historical and architectural value and significance, architectural style, general design, arrangement, texture, material and color of the exterior architectural feature involved and the relationship thereof to the exterior architectural features of other structures in the immediate neighborhood” (emphasis added). Id.

Inferring a legislative intent to give the commission power to ban entire classes of structures by promulgating substantive rules would eviscerate the statutory command that the commission must decide the appropriateness of each case individually. Under the contested guideline, on the other hand, the commission may “bar every newsrack without regard to the distinctive exterior architectural features of any particular newsrack.” Globe Newspaper Co. v. Beacon Hill Architectural Comm’n, supra at 185. There is no indication that the Legislature intended to confer such “unfettered discretion” on the commission. Id. at 188. Therefore, I conclude that the commission did not have implied authority to issue the guideline.7

In summary, then, because the commission did not have authority to regulate newsracks nor did it have express or implied authority to issue the “Street Furniture Guideline,” I *597respectfully dissent. I would answer the certified question, “No.”

See Globe Newspaper Co. v. Beacon Hill Architectural Comm’n, 40 F.3d 18, 22 (1st Cir. 1994) (“a close question”); Globe Newspaper Co. v. Beacon Hill Architectural Comm’n, 847 F. Supp. 178, 183 (D. Mass. 1994) (“a close and rather curious question”).

The provisions of the enabling legislation, taken in their entirety, make it clear that the commission’s purview is not “structures” but “exterior architectural features,” as the following excerpts indicate:

“[E]very person about to apply to the building commissioner for a permit to construct any structure in the Historic Beacon Hill district or to reconstruct, alter or demolish any structure now or hereafter in said district shall deposit with the secretary of the commission his application for such permit .... [T] he commission . . . shall consider such application . . . and determine whether any exterior architectural feature is involved. If it is so determined that no exterior architectural feature is involved, the secretary of the commission shall . . . return the application ... to the applicant.” St. 1965, c. 429, § 3, amending St. 1955, c. 616, § 6.
“No person shall construct any exterior architectural feature in the historic Beacon Hill district, or reconstruct or alter any such feature now or hereafter in said district, until [a certificate of appropriateness is received].” St. 1955, c. 616, § 7.

Statute 1955, c. 616, § 3, defines “[ejxterior architectural feature” as: “[T]he architectural style and general arrangement of such portion of the exterior of a structure as is designed to be open to view from a public way, including kind, color and texture of the building material of such portion and type of all windows, doors, lights, signs, and other fixtures appurtenant to such portion.”

The court points out that the commission has also had a long-standing prohibition against freestanding signs. I would not defer to the commission on this point for the following reasons: First, the validity of the freestanding sign regulation is not before us. Second, the commission may not promulgate regulations that exceed its statutory authority. Thus, I agree with *594the District Court that the guideline prohibiting freestanding signs is of dubious validity. See Globe Newspaper Co. v. Beacon Hill Architectural Comm’n, supra at 189.

General Laws c. 143, § 1 (1994 ed.), in relevant part, defines “[structure” as “a combination of materials assembled at a fixed location to give support or shelter, such as a building, framework, retaining wall, tent, reviewing stand, platform, bin, fence, sign, flagpole, recreational tramway, mast for radio antenna or the like.”

The “necessary implication” standard applies in this case where we are investigating the authority of a municipal entity which could not act without explicit legislative authorization. See Greater Boston Real Estate Bd. v. Boston, 397 Mass. 870, 877 (1986). The court concludes that the commission is an “agency created by the State,” see ante at 583, simply because it required an act of the Legislature to create it, and therefore that the reasonable relationship standard applies. See Consolidated Cigar Corp. v. Department of Pub. Health, 372 Mass. 844, 855 (1977). I disagree.

The text of the legislation makes clear that the commission is a body entirely contained within the city of Boston and under the control of the mayor of Boston. See, e.g., St. 1955, c. 616, § 4, as amended by St. 1965, c. 429, § 1 (“There shall be in the building department of the city a board, known as the Beacon Hill Architectural Commission .... Any commissioner . . . may be removed by the mayor” [emphasis added]); St. 1982, c. 624, § 1 (“There shall be in the city of Boston a department known as the *595environment department which shall provide support staff and resources to enable the following city commissions to carry out their responsibilities as required by law . . . Beacon Hill architectural commission . . .” [emphasis added]).

For a discussion of the standard of review of regulations, see Arthur D. Little, Inc. v. Commissioner of Health & Hosps. of Cambridge, 395 Mass. 535, 557 (1985) (Lynch J., dissenting).

The court suggests that allowing the commission to promulgate substantive rules will ensure effective judicial review of the commission’s actions. I find this argument unpersuasive for the following reasons. First, the statute clearly provides for appeals from and judicial review of commission decisions, see St. 1955, c. 616, § 10, as amended by St. 1965, c. 430, § 7. There is no reason to believe that the review of individual applications is not an effective way to ensure compliance with the statute. Cf. Parker v. Beacon Hill Architectural Comm’n, 27 Mass. App. Ct. 211 (1989). Second, even if substantive rulemaking power did make review more effective, that is not a reason to read such power into the statute where it does not exist.