Boston Edison Co. v. Boston Redevelopment Authority

Quirico, J.

(concurring in the result). While I concur in this court’s affirmance of the Superior Court’s dismissal of the complaint in this case, I would accord to Edison a more limited standing to question the actions of the BRA, and I would apply a more limited scope of review of those actions than does this court.

1. Standing.

(a) In part 1 of its opinion, under the heading of “Standing,” the court states that “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.”

In according Edison standing the court seems to stress the fact that as a consequence of the BRA action Edison will suffer a loss of about $3,000,000 a year in revenues for a period of thirty-five years, thus qualifying as an “aggrieved” person under St. 1960, c. 652, § 13.1 agree that in an appro*77priate proceeding before the proper court or administrative tribunal and with all necessary parties participating, Edison would have standing to contest an application by, or the authorization of, another “Electric company,” as defined in G. L. c. 164, § 1, to engage in the business of “making . . . and selling, or distributing and selling, electricity” in any part of the area or territory now served exclusively by Edison, but this is not such a case or proceeding. The BRA cannot give the Applicants authority to operate as an “Electric company” as defined by the statute, and it did not purport to do so.

(b) In part 5 of its opinion, under the heading of “Allowance of Deviations from the Zoning Code,” note 17, the court holds that Edison has no standing to challenge the BRA’s decision allowing deviations from the zoning code. I agree with that holding. Notwithstanding that holding, the court discusses in considerable detail the several zoning deviations allowed by the BRA and concludes that in allowing them the BRA did not exceed its power with respect thereto. I do not believe that this detailed treatment is necessary in view of the holding that Edison has no standing to be heard thereon.

2. Scope of Review,

The court holds that the test to be applied by the court in reviewing certain of the decisions of the BRA is whether they are based on “substantial evidence,” and it concludes that there was “substantial evidence” to support those decisions. I refer particularly to the decision that the area in question was a “decadent area” within the meaning of G. L. c. 121 A, § 1, and the decision that the proposed project “will constitute a public use and benefit” within the meaning of St. 1960, c. 652, § 13.

This court has held in a long line of decisions that the test to be applied in the judicial review of decisions of these types is much less strict than the “substantial evidence” test being applied by the court in this case. It is sufficient to review but a few of our decisions which have applied either a *78“rational basis” test or an “arbitrary or capricious” test commonly applied to legislative decisions.

In Stockus v. Boston Hous. Auth., 304 Mass. 507, 509-510 (1939), we said: “There are, undoubtedly, instances where men of training and experience in special subjects related to construction, sanitation, fire prevention, zoning, public health, social service and other subjects might honestly differ in determining whether a certain district was a slum area. If the question is a debatable one, we have no right to substitute our judgment for that of the defendants acting as the local housing authority, upon whom the Legislature conferred the power ‘To determine what areas within its jurisdiction constitute sub-standard areas.’ ” In Despatches’ Cafe Inc. v. Somerville Hous. Auth., 332 Mass. 259, 261 (1955), we said in upholding a finding of a housing authority that an area was substandard and decadent: “It is not for the court to take over the functions of the board. ... If there is any room for the exercise of discretion the judgment of the board must prevail.” In Bowker v. Worcester, 334 Mass. 422 (1956), the plaintiffs sought to introduce evidence in the trial court to controvert the findings of the housing authority that the area in question was “substandard and decadent.” We held, at 434, that “[s]uch evidence was properly excluded. The Legislature has given these agencies power to make necessary findings in the circumstances of this case. Their findings are not to be retried in our courts.” In Worcester Knitting Realty Co. v. Worcester Hous. Auth., 335 Mass. 19, 21 (1956), we said: “The underlying determinations of the authority are such that, viewing the project area as a whole, it cannot be said that it was arbitrary or capricious to find, based on them, that it is a substandard or substandard and decadent area, within the statutory definitions, or that the making of such findings suggests bad faith” (footnote omitted). In Moskow v. Boston Redevelopment Auth., 349 Mass. 553, 561 (1965), we said: “No attention can be paid to the allegations that the property at 10 and 28 State Street is not within a decadent, substandard, or blighted open area and that the Authority had no power to *79take on such grounds. Courts are not authorized to second guess the Authority in such respects. The allegations, moreover, do not mean that the public bodies designated by statute might not reasonably adjudge otherwise.” In our decision in Reid v. Acting Comm’r of the Dep’t of Community Affairs, 362 Mass. 136, 143 (1972), we cited all of the above cases with approval in concluding that hearings of the type conducted by the authorities involved are not adjudicatory but rather are legislative in nature.

In its decision of the present case the court refers to most of the cases cited above, but concludes that they are not applicable to this case. All of those cases involved the taking of private property by eminent domain for either public housing or urban renewal projects. In no one of those cases did we apply the “substantial evidence” test applied in the present case. I do not believe that a more stringent test should be applied in this case which does not involve the taking of any property by eminent domain than was applied in those previous cases on the issues whether the area in question was a “decadent area” and whether the proposed project “will constitute a public use and benefit.”