differences in common meaning underscore that Legislature did not intend terms to be functionally synonymous
How later courts described this case
- differences in common meaning underscore that Legislature did not intend terms to be functionally synonymous
- considering "the plain language" and "the ordinary meaning of the words the Legislature used" in interpreting a statute
Written by the judges who cited it.
The opinion
NOTICE: All slip opinions and orders are subject to formal
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SJC-11865
SJC-11866
ROBERT MacLAURIN1 & another2 vs. CITY OF HOLYOKE & others.3
ROBERT MacLAURIN4 & another5 vs. CITY OF HOLYOKE & others.6
Hampden. September 10, 2015. - August 18, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.7
Fire Prevention. Practice, Civil, Action in nature of
certiorari. Administrative Law, Hearing.
1
Individually and as president of Sylvan, Inc., trustee of
the 215 Chestnut Street Realty Nominee Trust.
2
215 Chestnut Street Realty Nominee Trust.
3
Holyoke Fire Department and Chief of Holyoke Fire
Department.
4
Individually and as president of Sylvan, Inc., trustee of
the 11 Spring Street Realty Nominee Trust.
5
11 Spring Street Realty Nominee Trust.
6
Holyoke Fire Department and Chief of Holyoke Fire
Department.
7
Justices Spina, Cordy, and Duffly participated in the
deliberation on this case prior to their retirements.
2
Civil actions commenced in the Hampden Division of the
Superior Court Department on April 26, 2012, and May 14, 2012,
respectively.
After transfer to the Western Division of the Housing Court
Department and consolidation, the case was heard by Robert
Fields, J., on a motion for judgment on the pleadings.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Thomas D. Moore for the plaintiffs.
Kara Lamb Cunha for the defendants.
The following submitted briefs for amici curiae:
Jason R. Ferenc for Greater Holyoke Rental Housing
Association
Joseph N. Schneiderman for Fire Chiefs Association of
Massachusetts.
Maura Healey, Attorney General, Benjamin K. Golden,
Assistant Attorney General, Steven P. Rourke, Special Assistant
Attorney General, & Peter Senopoulos for the State Fire Marshal.
LENK, J. We are called upon in these consolidated cases to
construe G. L. c. 148, § 26I, the residential sprinkler
provision, one of a number of provisions requiring the
installation of automatic sprinkler systems contained in G. L.
c. 148, the fire prevention act. The residential sprinkler
provision mandates the installation of automatic sprinklers in
new residential buildings of four or more units, and in such
existing buildings when they are "substantially rehabilitated so
as to constitute the equivalent of new construction." See G. L.
c. 148, § 26I.
3
In 2006, the plaintiff, Robert MacLaurin,8 purchased the
second of two vacant apartment buildings in the city of Holyoke
(city), which he intended to rehabilitate and return to
occupancy. As existing residential buildings of four or more
units, the buildings were subject to the residential sprinkler
provision. MacLaurin contends that the renovations he undertook
on the buildings do not meet the statutory standard triggering
the requirement that sprinklers be installed. Concluding, to
the contrary, that the two buildings had been substantially
rehabilitated within the meaning of the residential sprinkler
provision, the city's fire chief ordered, without a hearing,
that automatic sprinkler systems be installed in each building.
The residential sprinkler provision differs from all of the
other automatic sprinkler provisions in the fire prevention act9
in that it contains no statutory right of appeal. After several
agencies had declined jurisdiction, MacLaurin filed complaints
seeking relief in the nature of certiorari and declaratory
8
For convenience, we refer to Robert MacLaurin, both in his
personal capacity and as trustee of both the 215 Chestnut Street
Realty Nominee Trust and the 11 Spring Street Realty Nominee
Trust, as well as the 215 Chestnut Street Realty Nominee Trust
and the 11 Spring Street Realty Nominee Trust themselves, as a
single entity.
9
See, e.g., G. L. c. 148, § 26A ("high rise buildings" of
more than seventy feet in height); G. L. c. 148, § 26G
(commercial buildings of more than 7,500 square feet); G. L.
c. 148, § 26G 1/2 ("[n]ightclubs, dance halls, discotheques,
[and] bars" having capacity of at least one hundred); G. L.
c. 148, § 26H ("[l]odging or boarding houses").
4
judgment, challenging the orders as arbitrary and capricious.
Following a remand of the consolidated matters for
reconsideration in light of additional facts, which the fire
chief concluded had no effect on his decision, a judge of the
Housing Court affirmed the chief's orders, and this appeal
followed.
The statutory standard that installation of automatic
sprinklers is necessary only where an existing multi-unit
residential building has been "substantially rehabilitated so as
to constitute the equivalent of new construction" is not defined
in the residential sprinkler provision or anywhere else in the
fire prevention act, and the language does not appear in any
other section of the fire prevention act. Moreover, there is no
controlling appellate jurisprudence and no applicable Statewide
guidance akin to that which has been developed by entities such
as the automatic sprinkler appeals board, in considering appeals
from the requirement to install sprinklers under other statutory
provisions, all of which do include a statutory right of appeal.
In construing the meaning of the statutory standard that
installation of automatic sprinklers in existing residential
buildings is required only when a building has been
"substantially rehabilitated so as to constitute the equivalent
of new construction," we therefore turn to fundamental
principles of statutory interpretation. See, e.g., Boston
5
Police Patrolmen's Ass'n v. Boston, 435 Mass. 718, 719-720
(2002). In doing so, we consider the ordinary meaning of the
words the Legislature used, in conjunction with their
specialized meaning in certain contexts, the course of the
enactment of the automatic sprinkler provisions within the fire
prevention act, as well as the goals the Legislature intended to
achieve. We conclude that, in order to require the installation
of sprinklers in an existing multi-unit residential building,
the rehabilitation must be so substantial that the physical
structure is rendered "the equivalent of new construction,"
i.e., in essence as good as new.10 Where the rehabilitation is
suitably substantial in this regard, a corollary is that the
cost of installation of automatic sprinklers ordinarily will
approximate the cost of installing sprinklers in a comparable
newly constructed building.
Although the fire chief's decision states that, after the
modifications were complete, the buildings had been
"substantially rehabilitated so as to constitute the equivalent
of new construction," the decision neither contains any explicit
findings of fact nor sets forth the test used to evaluate the
nature of the work done. Given this, coupled with the absence
10
See, e.g., L. Rosenthal & D. Listokin, New or Rehab:
Striking a New Balance Under California's Affordable Housing
Standards, University of California at Berkeley, Program on
Housing and Urban Policy, Working Paper No. W09-002 (Mar. 2009).
6
of controlling authority, the Housing Court judge was not in a
position to ascertain whether the fire chief's interpretation of
G. L. c. 148, § 26I, reasonably reflects the intent and purpose
of the residential sprinkler provision, nor could the judge
have ascertained whether the application of that interpretation
is supported by the facts of record. Accordingly, no
determination properly could be reached as to whether the
decision was legally erroneous or so devoid of factual support
as to be arbitrary and capricious. See State Bd. of Retirement
v. Woodward, 446 Mass. 698, 703-704 (2006). Thus, the judgment
affirming the fire chief's decision must be vacated and, with
the guidance we now provide as to the meaning of "substantially
rehabilitated so as to constitute the equivalent of new
construction," the matter remanded to the chief of the city fire
department for further proceedings consistent with this
opinion.11
Background and prior proceedings.12 The two vacant
apartment buildings at issue here were built in the late 1800s,
11
We acknowledge the amicus briefs submitted by the State
Fire Marshal, the Fire Chiefs Association of Massachusetts, and
the Greater Holyoke Rental Housing Association.
12
The facts are taken from apparently undisputed facts in
the parties' briefs, documents in the record, and statements in
the orders and decisions of the fire chief and the Housing
Court. The fire chief's decision does not include express
findings of fact, and because the matters were considered in the
Housing Court on petitions for certiorari, the Housing Court
judge also made no findings of fact.
7
of wood frame construction with brick facade. One, a three-
story building on the corner of Essex and Chestnut Streets, has
a total of twenty apartments on three floors and two commercial
spaces on the ground floor; the other, a four-story building on
the corner of Main and Spring Streets, has a total of thirteen
apartments on four floors and two commercial spaces on the
ground floor.13 Each has sustained fire damage in the past,
including while empty. MacLaurin purchased both buildings,
which had been boarded and abandoned, with the intent to
rehabilitate them and return them to occupancy. He obtained
building permits, hired contractors, and undertook the proposed
work;14 each portion of the work, such as electrical and plumbing
modifications, was approved by the relevant city inspectors as
it was completed.
The city adopted G. L. c. 148, § 26I, a "local option"
13
The residential sprinkler provision is applicable to
buildings "occupied in whole or in part for residential
purposes." See G. L. c. 148, § 26I.
14
MacLaurin acquired the Essex Street property in July,
2004, and applied for a building permit to "restore and repair
building including walls, floors and ceilings: patch and
replace plaster as needed, and repaint; also reconstruct rear
porches" in November, 2008. The building permit issued in May,
2009.
MacLaurin acquired the Main Street property in June, 2006,
and applied for a building permit in June, 2007. A building
permit issued in September, 2007, to "restore and repair
building including walls, floors and ceilings: patch and
replace plaster as needed, and repair; also reconstruct rear
porches."
8
statute, in February, 1996.15 On its face, the city's general
application form for a building permit requires that a plan for
an automatic sprinkler system be submitted with the application,
and it is undisputed that sprinkler plans,16 and modifications to
one set of plans, were attached to MacLaurin's permit
applications.17 During the course of the several-year period in
which the work was being done, MacLaurin submitted to the
building inspector several reports from licensed structural
engineers stating that the work was not structural, that the
buildings were not being "substantially rehabilitated" within
the meaning of G. L. c. 148, § 26I, and thus that the
requirement for installation of automatic sprinklers had not
been triggered. When the work was essentially complete,
15
A local option statute is applicable only where a
municipality chooses to adopt its provisions. See, e.g., Adams
v. Boston, 461 Mass. 602, 609 (2012), and cases cited; Connors
v. Boston, 430 Mass 31, 37 (1999); 1010 Memorial Dr. Tenants
Corp. v. Fire Chief of Cambridge, 424 Mass. 661, 668 n.4 (1997).
With the exception of high rise buildings, see G. L. c. 148,
§ 26A, the sprinkler provisions in the fire prevention act were
all initially adopted as local option provisions.
16
The plans were apparently "sprinkler narrative letters,"
describing a proposed system in general terms and specifying the
types of components that would be used; they were not diagrams
of the floor plans showing where particular components would be
installed, nor were cost estimates provided in connection with
the plans.
17
The parties dispute whether the submission of such plans
was a prerequisite for the issuance of building permits, and
whether the fire chief made statements to that effect to
MacLaurin.
9
MacLaurin sought inspection by the city in order to determine
what else remained to be done so that certificates of occupancy
could issue. In February, 2012, the city's building
commissioner, the assistant building commissioner, and a fire
department captain made onsite inspections of each building.
The fire chief then issued orders requiring automatic sprinkler
systems be installed in each building.
MacLaurin sought review of the fire chief's orders before
the State fire marshal, the State building code appeals board,
and the automatic sprinkler appeals board; each declined to hear
his appeals, citing a lack of jurisdiction.18 MacLaurin then
filed complaints seeking relief in the nature of certiorari,
G. L. c. 249, § 4, and declaratory judgment, in the Superior
Court. The cases were transferred to the Housing Court on joint
motions of the parties, and then were consolidated. MacLaurin
claimed, among other things, that the fire chief's 2012 orders
contained significant factual errors, particularly concerning
the scope and nature of the work, such as whether substantial
portions of walls and ceilings had been opened so as to have
facilitated sprinkler installation. In light of documents
18
Although the statute provides no route of appeal for
owners of multi-unit residential buildings if the buildings are
less than seventy feet tall, guidance issued by the State board
of building regulations and standards states, without apparent
basis, that such an owner aggrieved by a decision of a
municipality's fire official may appeal to the State fire
marshal.
10
attached to MacLaurin's complaint containing factual information
that apparently had not been before the fire chief, a Housing
Court judge remanded the matter to the city for further
investigation and determination whether automatic sprinklers
were required. Without conducting a hearing, the fire chief
concluded that the additional documents had no bearing on his
decision that automatic sprinklers were required, and, a few
days after the orders of remand, issued essentially the same
orders as he had previously (2013 orders).
In March, 2014, the same Housing Court judge who had
ordered the remand conducted a hearing on the fire chief's 2013
orders, and, in July, 2014, the judge issued a decision
affirming the orders that automatic sprinklers must be
installed. He stated that, "viewed through the lens" of the
deferential standard of review applicable in a petition for
certiorari, the fire chief's determination was not "so devoid of
factual support as to be arbitrary and capricious." The judge
noted that the fire chief's decisions were not constrained by
any controlling authority, the fire department had inspected the
properties, and the fire chief had reached a conclusion based on
the "extent of the renovation, its costs, and its costs relative
to the overall value of the property; all factors that upon
facts which 'reasonable men might deem proper' to support it"
(citation omitted). MacLaurin appealed from the Housing Court
11
judge's affirmance of the fire chief's orders, and we
transferred the case to this court on our own motion.
Discussion. 1. Standard of review. MacLaurin filed
complaints in the nature of certiorari, G. L. c. 249, § 4, in
the absence of a statutory right of appeal. The purpose of an
action in the nature of certiorari is "to relieve aggrieved
parties from the injustice arising from errors of law committed
in proceedings affecting their justiciable rights when no other
means of relief are open." Figgs v. Boston Housing Auth., 469
Mass. 354, 361 (2014), quoting Swan v. Justices of the Superior
Court, 222 Mass. 542, 544 (1916). The function of judicial
"review in an action in the nature of certiorari is 'to correct
substantial errors of law apparent on the record adversely
affecting material rights.'" MacHenry v. Civil Service Comm'n,
40 Mass. App. Ct. 632, 634 (1996), quoting Commissioners of
Civil Serv. v. Municipal Court of Boston, 369 Mass 84, 90
(1975). "To obtain certiorari review of an administrative
decision, . . . three elements must be present: (1) a judicial
or quasi judicial proceeding, (2) from which there is no other
reasonably adequate remedy, and (3) a substantial injury or
injustice arising from the proceeding under review." Indeck v.
Clients' Sec. Bd., 450 Mass. 379, 385 (2008). In the
12
circumstances, MacLaurin's complaint meets these requirements.19
Because the fire chief's determination was discretionary, a
reviewing court in these circumstances is limited to determining
whether the decision is legally erroneous or so devoid of
factual support as to be arbitrary and capricious. State Bd. of
Retirement v. Woodward, 446 Mass. 698, 703-704 (2006);
Massachusetts Bay Transp. Auth. v. Auditor of the Commonwealth,
430 Mass. 783, 790-791 (2000). See Figgs v. Boston Housing
Auth., supra at 361, quoting Garrity v. Conservation Comm'n of
Hingham, 462 Mass. 779, 792 (2012) (standard of certiorari
review "may vary according to the nature of the action for which
review is sought"). Unlike the ordinary situation in reviewing
an action for relief in the nature of certiorari, however, where
the controlling precedent against which a reviewing court
measures whether a decision is legally erroneous or lacks
relevant factual support is more or less evident, in this case
19
Although there was no adjudicatory hearing, the chief's
investigation and written decisions, based on physical
inspection of the premises and written documentation gathered
from multiple sources, including documents submitted by
MacLaurin and city records, were quasi judicial proceedings.
See Frawley v. Police Comm'r of Cambridge, 473 Mass. 716, 726-
727 (2016) (quasi judicial proceeding where city police chief
determined that retired police officer's application for gun
license did not meet statutory standard). See also Hoffer v.
Board of Registration in Med., 461 Mass. 461, 457 (2012). It is
undisputed that the absence of a statutory right of appeal left
MacLaurin with no other route of appeal, and the injury asserted
reaches, at least according to MacLaurin's documents, into
hundreds of thousands of dollars.
13
there are no appellate decisions involving the statutory
standard of "substantially rehabilitated so as to constitute the
equivalent of new construction." Nor are there interpretations
of that standard by any authoritative Statewide body, given the
absence of a statutory avenue of administrative review. In such
circumstances, deference is to be accorded the fire chief's
decision only if the reviewing court can ascertain whether the
decision comports with apparent statutory purposes.
2. Statutory interpretation. "Our primary duty in
interpreting a statute is 'to effectuate the intent of the
Legislature in enacting it.'" Wheatley v. Massachusetts
Insurers Insolvency Fund, 456 Mass. 594, 601 (2010), S.C., 465
Mass. 297 (2013), quoting International Org. of Masters v. Woods
Hole, Martha's Vineyard & Nantucket S.S. Auth., 392 Mass. 811,
813 (1984). In order to determine whether the fire chief's
conclusion that automatic sprinklers must be installed in
MacLaurin's buildings accurately reflects the legislative
purpose and intent, we first must discern the meaning of
"substantially rehabilitated so as to constitute the equivalent
of new construction" within the residential sprinkler provision.
To do so, we begin with the plain language of the provision.
See Local 589, Amalgamated Transit Union v. Massachusetts Bay
Transp. Auth., 392 Mass. 407, 415 (1984), quoting Bronstein v.
Prudential Ins. Co of Am., 390 Mass. 701, 704 (1984)
14
("[s]tatutory language is the principal source of insight into
legislative purpose").
"Words that are not defined in a statute[, as here,] should
be given their usual and accepted meanings," derived "from
sources presumably known to the statute's enactors, such as
their use in other legal contexts and dictionary definitions."
Seidman v. Newton, 452 Mass. 472, 477-478 (2008), quoting
Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369 (1977). We
interpret the statutory language "according to the intent of the
Legislature ascertained from all its words construed by the
ordinary and approved usage of the language, considered in
connection with the cause of its enactment, the mischief or
imperfection to be remedied and the main object to be
accomplished, to the end that the purpose of its framers may be
effectuated." Boston Police Patrolmen's Ass'n v. Boston, 435
Mass. 718, 719-720 (2002), quoting O'Brien v. Director of the
Div. of Employment Sec., 393 Mass. 482, 487-488 (1984).
Because the fire chief appears to have considered the
meaning of "substantially rehabilitated so as to constitute the
equivalent of new construction" of a residential building of
four or more units to be essentially the same as the meaning of
"major alterations" in the context of renovation of an existing
commercial building, G. L. c. 148, § 26G, we also examine the
15
ordinary meaning of "major alteration."20
To "rehabilitate" something generally means to return it
from disuse or a poor condition to a useable condition.21
"Alteration," on the other hand, implies a less extensive change
to something already in existence. See, e.g., The American
Heritage Dictionary of the English Language 55 (3d ed. 1996)
("[t]he condition resulting from altering; modification"; to
alter is "[t]o change or make different; modify"); Webster's
Third New International Dictionary 63 (2002) ("the act or action
20
Apparently the only case in the Commonwealth to have
addressed the meaning of the statutory standard in the
residential sprinkler provision is a Superior Court judge's
decision in Iodice vs. Newton, Mass. Superior Ct., No. 971098D
(Middlesex County Oct. 1, 1999) (Iodice). While recognizing
that the "substantially rehabilitated . . ." standard is not
identical to the "major alteration" standard of the commercial
sprinkler provision, the judge concluded there that the
legislative purposes underlying the commercial sprinkler
provision and the residential sprinkler provision are similar,
and that the factors applicable to a determination whether a
commercial building has undergone "major alterations" under the
standard established in Congregation Beth Sholom & Community
Ctr., Inc. v. Building Comm'r of Framingham, 27 Mass. App. Ct.
276, 279 (1989) (Beth Sholom), are equally applicable in
determining whether a residential building of four or more units
has been "substantially rehabilitated as to be the equivalent of
new construction." See discussion of the fire chief's decision,
part 3, infra.
21
See The American Heritage Dictionary of the English
Language 1521 (3d ed. 1996) (to rehabilitate is "[t]o restore to
good health or useful life"; "[t]o restore to good condition,
operation, or capacity"); Webster's Third New International
Dictionary 1914 (2002) (rehabilitation is "the restoration of
something damaged or deteriorated to a prior good condition); 8
Oxford English Dictionary 381 (1978) (rehabilitation is "[t]he
action of replacing a thing in, or restoring it to, a previous
condition or status").
16
of altering"; "the quality or state of being altered"; to alter
is "to become different in some respect: undergo change usu.
without resulting difference in essential nature"); 1 Oxford
English Dictionary 255 (1978) ("[t]he action of altering or
making some change in a thing"; to alter is "[t]o make [a thing]
otherwise or different in some respect; to make some change in
character, shape, condition, position, quantity, value, etc.
without changing the thing itself for another; to modify, to
change the appearance of"). Cf. 28 C.F.R. § 36.402(b) (2010).
"Major" is defined as "greater in . . . rank, importance, or
interest: superior"; "notable or conspicuous in effect or
scope"; "the greater. . . of two things, species, etc. that have
a common designation"; "being greater than the rest." See
Webster's Third New International Dictionary 1363 (2002); 6
Oxford English Dictionary 57 (1978). See also The American
Heritage Dictionary of the English Language 1084 (3d ed. 1996).
"Substantial" is commonly understood as something "[t]hat is,
constitutes, or involves an essential part, point, or feature;
essential, material"; "of or relating to the main part of
something"; "to a large degree or in the main." See 10 Oxford
English Dictionary 54-55 (1978); Webster's Third New
International Dictionary 2280 (2002). See also The American
Heritage Dictionary of the English Language 1791 (3d ed. 1996)
These differences in common meaning underscore that the
17
Legislature did not intend "major alteration" and "substantially
rehabilitated" to be functionally synonymous. See Commonwealth
v. Williamson, 462 Mass. 676, 679 (2012), quoting Commonwealth
v. Young, 453 Mass. 707, 713 (we "presume, as we must, that the
Legislature intended what the words of the statute say"
[citation omitted]); City Bank & Trust Co. v. Board of Bank
Incorporation, 346 Mass. 29, 31 (1963) ("The distinction between
'may' and 'shall' is not lightly to be held to have been
overlooked in legislation"). Where "different words with
different meaning" are used in different sections of a statute,
see Commonwealth v. Millican, 449 Mass. 298, 301 (2007), citing
Champigny v. Commonwealth, 422 Mass. 249, 252-253 (1996), "they
cannot be construed interchangeably, but must be construed in
relation to one another." Commonwealth v. Millican, supra.
Moreover, in electing to use the phrase "substantially
rehabilitated," which is a term of art in certain contexts,22 the
22
See Fifth Edition of the Massachusetts State Building
Code (1990), 780 Code Mass. Regs.; User's Guide to the Fifth
Edition, Secretary of the Commonwealth; United States Department
of Housing and Urban Development, Nationally Applicable
Recommended Rehabilitation Provisions (May 1997); United States
Department of Housing and Urban Development, The Status of
Building Regulations for Housing Rehabilitation -- A National
Symposium, at iii, 3, 16-17, 24-25 (Aug. 1995); Boca National
Fire Prevention Code, 1990: Model Building Regulations for the
Protection of Public Health, Safety, and Welfare, National Fire
Prevention Association (9th Ed.) (1990). Cf. Handbook of Injury
and Violence Prevention, 6.4.1.2.2, at 104-105; 6.4.1.3.2, at
105-106 (2007). See also D. Madrzykowksi & R.P. Fleming,
National Fire Sprinkler Association, Review of Sprinkler
18
Legislature clearly incorporated a very specific degree of
modification which is considerably more extensive than what is
required to constitute a "major alteration." In the context of
building construction, the phrase "substantial rehabilitation"
has been used since at least the late 1960s to describe a
building that has been modified so extensively that it has been
rendered essentially "as good as new," with a concomitant
extension of its expected useful life.23 Similar terms are used
by the United States Department of Housing and Urban Development
(HUD) in providing low-cost financing for creation of affordable
housing;24 by State agencies, builders, and housing advocates;25
Systems: Research and Standards, NISTIR 6941, at 16 (rev. Dec.
2002); The Fire Protection Research Foundation, 2013 Cost of
Residential Sprinkler Final Report (Sept. 2013), at 4.
23
Section 235(R) of the National Housing Act, 12 U.S.C.
17152, Pub. L. 90-448 (Aug. 1, 1968) (no longer in effect),
defined "substantial rehabilitation" as
"the improvement of a unit in substandard condition to a
decent, safe and sanitary level . . . . Units are in
substandard condition when, while they may be structurally
sound, they do not provide safe and adequate shelter, and
in their present condition endanger the health, safety, or
well-being of the occupants. . . . The defects are either
so critical or so widespread that the structure should be
extensively repaired. . . . The rehabilitation should be
of such scope that, when completed, all the components in
the house are operable and should not be anticipated to
require any work or major expense over and above normal
maintenance for the first one-fourth to one-third of the
mortgage term."
24
See Eidson v. Pierce, 745 F.2d 453, 457, 463 (7th Cir.
1984); Rehabilitation Guidelines 1980, no. 3, Statutory
19
and in State26 and Federal tax law,27 rent control law, and
certain historic preservation and environmental laws.28 See
Community For Creative Non-Violence v. Reid, 490 U.S. 730, 739
Guideline for Building Rehabilitation (1980). See, e.g., L.
Weiss, States and Urban Strategies. California's Urban Strategy,
U.S. Department of Housing and Urban Development (Sept. 1980).
See generally, W. Duncan, Substantial Rehabilitation & New
Construction (Springer Science & Business Media, Nov. 11, 2013).
25
See D. Listokin & B. Listokin, United States Department
of Housing and Urban Development, Barriers to the Rehabilitation
of Affordable Housing, vol. I, at 19 (May 2001) ("Minor rehab
refers to repairs [activities short of replacements that
maintain the home] and improvements [activities that enhance the
residential structure] of a minor nature, such as replacing or
refinishing cabinets, fixtures, and finishes. Moderate rehab
involves more extensive improvements, such as new wiring and
heating and cooling systems, as well as new cabinets, fixtures,
and finishes. Substantial rehab entails removal of all interior
walls and mechanical equipment and installation of a new space
plan"). See id. at 7 n.7 ("with substantial rehab, the entire
[house] is often gutted").
26
See, e.g., Eilbott, P. and W. Kempey, New York City's tax
abatement and exemption program for encouraging housing
rehabilitation, Public Policy 26 (Fall 1978) at 571-597.
27
See, e.g., 24 C.F.R. § 235.1206; 24 C.F.R. part 971,
Appendix (no longer in effect); 12 U.S.C. § 1709(k) (2012). See
generally Cheverine & Hayes, Rehabilitation Tax Credit: Does It
Still Provide Incentives?, 10 Va. Tax. Rev. 167 (1990); Ramsey,
Broder, Chiavieollo, Duffly, Dunnels, Larson, Sterling, &
Vernon, The Cranston-Gonzalez National Affordable Housing Act --
An Overview, 28 Real Prop. Prob. & Tr. J. 177 (1993).
28
See, e.g., National Historic Preservation Act of 1966, as
codified in 54 U.S.C. §§ 300101, 3060103 ("substantially
altered"); 26 C.F.R. § 1.48 ("qualified rehabilitated
building"); Georgia Trust for Historic Preservation, The
application of building and fire codes to existing buildings
(1985); Tosi v. Boston Rent Control Bd., 13 Mass. App. Ct. 921
(1982) (landlord not entitled to tax exemption for substantial
renovation of rent controlled units because units were not as
good as new after renovation). Cf. St. 1970, c. 842, § 1.
20
(1989) quoting National Labor Relations Bd. v. Amax Coal Co.,
453 U.S. 322, 329 (1981) ("It is . . . well established that
'[w]here Congress uses terms that have accumulated settled
meaning under . . . the common law, a court must infer, unless
the statute otherwise dictates, that Congress means to
incorporate the established meaning of these terms'"); G. L.
c. 4, § 6, Third ("Words and phrases shall be construed
according to the common and approved usage of the language; but
technical words and phrases and such others as may have acquired
a peculiar and appropriate meaning in law shall be construed and
understood according to such meaning"). Furthermore, by the
addition of the phrase "so as to constitute the equivalent of
new construction," to modify the term "substantially
rehabilitated," the Legislature emphasized, for those unfamiliar
with the term of art, its intent that, to meet the statutory
standard, an existing residential building must have been
rendered "as good as new."
That the Legislature intended "substantially rehabilitated
so as to constitute the equivalent of new construction" to mean
something more than a "major alteration" is also apparent in the
structure of the automatic sprinkler provisions within the fire
prevention act, the process of their enactment, and the history
of the enactment of the residential sprinkler provision.
First, the residential sprinkler provision was enacted on
21
January 2, 1990, see St. 1989, c. 642, § 1, eight months after
the Appeals Court's decision in Congregation Beth Sholom &
Community Center, Inc. v. Building Comm'r of Framingham, 27
Mass. App. Ct. 276, 279 (1989) (Beth Sholom), construing the
meaning of "major alteration" under G. L. c. 148, § 26G, with
respect to installation of automatic sprinklers in existing
commercial buildings.29 Thus, when the Legislature was
considering the proper statutory language to describe the extent
of work necessary to require automatic sprinklers in existing
29
Like the residential sprinkler provision, the language in
the commercial sprinkler provision establishing when
modifications are sufficiently extensive so as to trigger the
requirement for installation of automatic sprinklers is not
defined in the provision or elsewhere in the fire prevention
act. In concluding that "'major alterations' would include any
work, not repairs, which is 'major' in scope or expenditure, and
which results in changes affecting a substantial portion of the
building," the Appeals Court turned to the several legislative
objectives of the commercial sprinkler provision:
"The automatic sprinkler requirement . . . is a fire
safety measure. The Legislature obviously intended . . .
to give some protection to owners of older buildings
against the large expense of installing sprinklers. Fire
safety concerns would predominate, however, when, because
of certain changes to an older building, imposition of the
sprinkler requirement would be reasonable. This could
occur . . . when such significant work is being done to it
that the extra cost of installing sprinklers would be
moderate in comparison to the total cost of the work
contemplated. It would also occur when the physical work
being done is of such scope that the additional effort
required to install sprinklers would be substantially less
than it would have been if the building were intact."
Beth Sholom, supra at 279.
22
residential buildings of four or more units, it had before it
the Appeals Court's then recently issued decision defining the
extent of the work that had to be undertaken in order to require
installation of automatic sprinklers in existing commercial
buildings of more than 7,500 square feet. Yet it chose not to
adopt the "major alteration" language. See Boehm v. Premier
Ins. Co., 446 Mass. 689, 691 (2006), quoting Selectmen of
Topsfield v. State Racing Comm'n, 324 Mass. 309, 313 (1949)
("[T]he Legislature is presumed 'to know the preexisting law and
the decisions of this court'").
Second, the structure of the fire prevention act, and the
course of enactment of the various automatic sprinkler
provisions within the fire prevention act, indicate that each
automatic sprinkler provision is applicable to a particular type
of structure, being used for a specific purpose, and is intended
to address the perceived risks of fire in uses of that type.
The provisions expanding the types of buildings in which
automatic sprinklers must be installed were added incrementally
over a period of years, each following a widely publicized,
devastating fire in a building of that type. The provisions do
not contain the same language, do not reference each other, and
do not incorporate a common set of definitions.
Consistent generally with the national pattern of automatic
23
sprinkler legislation,30 the mandate that automatic sprinklers be
installed in a particular type of structure, being used for a
particular purpose, was extended over time under the fire
prevention act. The mandate moved from covering larger
structures and more dangerous uses that the Legislature deemed
to create greater risks of harm, to smaller buildings and less
dangerous uses, where fewer lives were perceived as being at
risk.31 At the same time, reflecting the concern that owners of
existing buildings be afforded some protection from prohibitive
30
See M. Bromann, The Design and Layout of Fire Sprinkler
Systems 1-8 (2d ed. 2001); R.P. Fleming, National Fire Sprinkler
Association, The Fire Sprinkler Situation in the United States,
(2002); Shelhamer, How Fire Disaster Shaped the Evolution of the
New York City Building Code, International Code Council,
Building Safety Journal, vol. VIII, no. 6 (2010). See also T.
Wieczorek & Perdu, The Debate About Residential Fire Sprinklers,
PM Magazine, vol. 93, no. 7 (International City/County
Management Association, Aug. 2011); The Network for Public
Health Law, Residential Sprinkler Systems: Consideration of
Policy and Litigation Strategies for Reducing Residential Fire
Injuries, Residential Sprinkler Systems, Issue Brief (updated
Dec. 2011); Fire Sprinkler History -- NFSA, NFPA & Tyco, 4 The
Station House 1 (Feb. 2005); The History of the National Fire
Sprinkler Association, http://www.nfsa.org/?page=NFSABIO
[https:/perma.cc/65G4-2NMK]. Cf. Adomeit, The Station Nightclub
Fire and Federal Jurisdictional Reach: The MultiDistrict,
MultiParty, Multiforum Jurisdiction Act of 2002, 25 W. New Eng.
L. Rev. 243 (2003).
31
Legislation requiring the installation of automatic
sprinklers first appeared, nationally, in the early 1900s,
following a devastating fire in a clothing factory in New York
in 1911 that resulted in more than one hundred deaths, see,
e.g., Behrens, The Triangle Shirtwaist Company Fire of 1911: A
Lesson in Legislative Manipulation, 62 Tex. L. Rev. 361 (1983),
and is today governed by Federal requirements under the
Occupational Safety and Health Administration. See 29 C.F.R.
§ 1910.159 (1981).
24
costs, the Legislature required automatic sprinklers first in
new construction, then in existing buildings, and first in
commercial buildings, where costs are more readily recouped,
then in larger residential buildings.32
Under the fire prevention act, automatic sprinklers were
first required in 1972, in new high rise buildings throughout
the Commonwealth, for buildings built after March 1, 1974. See
G. L. c. 148, § 26A; St. 1973, c. 395, § 1.33 In 1982, following
a deadly fire in Fall River,34 the commercial sprinkler
provision, applicable to new nonresidential buildings of more
than 7,500 square feet, and existing such buildings when they
underwent "major alterations," was adopted. See St. 1982,
c. 545, § 1.35 In 1986, following a rooming house fire that
32
In the past several years, bills to extend the automatic
sprinkler requirement to new one- and two-family buildings have
been introduced several times, but have not been released from
committee. See, e.g., 2015 House Doc. No. 3475.
33
This provision was enacted following a fire in a luxury
high rise hotel that killed nine firefighters.
34
See A Monumental Tribute: Notre Dame's WWI Statue
Survived Fire, Herald News, Aug. 2, 2009; Fire Destroys Landmark
Church, N.Y. Times, May 12, 1982.
35
Although initially a local option provision, in 2009 the
commercial sprinkler provision became a Statewide mandate. See
St. 2008, c. 508, § 1. While the revised language eliminated
most of the waiver provisions that had been added to it, see St.
1986, c. 284, § 1; St. 1986, c. 526; G. L. c. 148, § 26G, fourth
par.; St. 1989, c. 416, § 2, the provision for waivers or
reasonable alternatives in buildings having "architectural or
historical significance" was retained. See St. 2008, c. 508,
25
resulted in multiple deaths, sprinklers were required in new and
existing lodging and rooming houses. See G. L. c. 148, § 26H.
Again in 1986, after a major fire in the Prudential Center in
Boston, sprinklers were required in existing, and not just new,
high rise buildings across the Commonwealth, G. L. c. 148,
§ 26A 1/2, with a ten-year phase-in period. St. 1986, c. 633,
§ 2. In 1989, the lodging house sprinkler provision of G. L.
c. 148, § 26H, was modified to include a five-year phase-in
period after a municipality adopted it, St. 1989 c. 330, and,
separately, to contain a statutory right of appeal. St. 1989,
c. 557, § 2. One week after the then Governor signed the
provision adding the phase-in period, a lodging house fire in
Lynn resulted in numerous fatalities. After unsuccessful
efforts to repeal the phase-in period,36 the residential
sprinkler provision was enacted. Explicitly incorporating
lodging and rooming houses, already covered by the provisions of
G. L. c. 148, § 26H, amongst an enumerated list of residential
buildings, it became effective on January 2, 1990, less than six
months after the fire in Lynn. See G. L. c. 148, § 26I;
St. 1989, c. 642, § 1.
§ 1.
36
See Task Force, State House News Service (Aug. 21, 1989);
Coakely, New Law Diluted Sprinkler Regulation, Boston Globe,
Aug. 10, 1989; Preventable Deaths in Lynn, Boston Globe,
Editorial, Aug. 15, 1989.
26
The language of the residential sprinkler provision has
remained virtually unchanged since its enactment. For
municipalities choosing to adopt it, the provision requires
sprinklers in a wide variety of buildings:37 new multi-unit
residential apartment buildings of more than four units; new
residential buildings such as fraternities, dormitories, hotels,
motels, and group homes; and existing buildings of these types
if they are substantially rehabilitated so as to constitute the
equivalent of new construction. Unlike any other provision of
the fire prevention act, the residential sprinkler provision did
not include a phase-in period immediately following its
enactment, and does not afford a statutory right of appeal.
Also unlike the other sprinkler provisions, it does not contain
any mechanism for waivers, alternatives, or acceptable
modifications to the sprinkler requirement.
37
"In a city, town or district which accepts the provisions
of this section, any building hereafter constructed or hereafter
substantially rehabilitated so as to constitute the equivalent
of new construction and occupied in whole or in part for
residential purposes and containing not less than four dwelling
units including, but not limited to, lodging houses, boarding
houses, fraternity houses, dormitories, apartments, townhouses,
condominiums, hotels, motels and group residences, shall be
equipped with an approved system of automatic sprinklers in
accordance with the provisions of the state building code. In
the event that adequate water supply is not available, the head
of the fire department shall permit the installation of such
other fire suppressant systems as are prescribed by the state
building code in lieu of automatic sprinklers. Owners of
buildings with approved and properly maintained installations
may be eligible for a rate reduction on fire insurance." G. L.
c. 148, § 26I.
27
Finally, in 2004, following a widely publicized fire with
multiple fatalities at a Rhode Island nightclub, sprinklers were
required to be retrofitted in existing nightclubs, bars,
discotheque and dance halls, and other places designed or used
for "similar entertainment purposes" with a capacity of more
than one hundred people. See G. L. c. 148, § 26G 1/2; St. 2004,
c. 304, § 5. This legislation effectively created a retrofit
requirement for small establishments, because larger such venues
already were required to have sprinklers under the terms of the
commercial sprinkler provision. Certain uses of structures
within this category -- "a house of worship, restaurant, lecture
hall, auditorium, state or local government building,
educational function facility, or other similar place of
assembly" -- were apparently perceived as being less dangerous
and were exempted from the sprinkler requirement. G. L. c. 148,
§ 26G 1/2, fourth par.
While phase-in provisions were adopted for other types of
existing buildings, only the commercial sprinkler provision and
the residential sprinkler provision contain a two-part standard
requiring automatic sprinklers in new buildings and when a
certain level of modification is made to an existing structure,
reflecting their shared legislative objective of enhancing fire
safety, while at the same time affording protection to owners of
existing buildings. By requiring the installation only when
28
building modifications are of a specific order of magnitude (a
"major alteration" or "substantially rehabilitated so as to
constitute the equivalent of new construction"), owners of such
existing buildings are spared the significant costs of sprinkler
installation when performing what amounts to ordinary, even if
costly, upkeep of their buildings.
At the same time, however, the differences in statutory
language, and the Legislature's recognition of the varying
degrees of dangerousness amongst different types of buildings,
indicate the legislative intent to impose distinct thresholds
for requiring installation of sprinklers in existing qualifying
commercial buildings38 rather than in existing qualifying
38
Large existing commercial buildings may present the risks
inherent in a "funnel effect," where many people try to reach
few exits through narrow corridors or doorways. In addition,
certain aspects of the construction of many commercial
buildings, such as open ducts that are used for heating and
cooling systems, allow fire to spread rapidly throughout the
building. By the same token, however, the costs of sprinkler
installation may be significantly lower in such a building than
in an older residential building, because the large open spaces
and construction techniques such as dropped ceilings tend to
facilitate installation. See D. Madrzykowksi & R.P. Fleming,
Review of Residential Sprinkler Systems: Research and
Standards, NISTIR 6941 (rev. Dec. 2002). See also M. Bromann,
The Design and Layout of Fire Sprinkler Systems, at 15 (2d ed.
2001).
Similarly, studies have shown that the use of modern
construction materials in new residential buildings has resulted
in fires that combust and spread much more quickly than in older
structures, because of the more volatile nature of the materials
used. Older residential buildings, on the other hand, tend to
be built of materials such as stone, brick, and plaster, which
29
residential buildings. Accordingly, establishing that an
existing residential building has undergone modifications
significant enough to qualify as "major alterations" is not
sufficient to show that the building has been substantially
rehabilitated so as to constitute the equivalent of new
construction.
We conclude that the residential sprinkler standard under
G. L. c. 148, § 26I, is satisfied when rehabilitative work is so
extensive that the building itself, considered as a whole, has
been rendered "the equivalent of new construction," whether in
terms of the materials and construction techniques used, the
building's systems, its market value, its expected future useful
life, or other comparable measures of equivalence to new
construction. See United States Department of Housing and Urban
Development, Nationally Applicable Recommended Rehabilitation
Provisions (May 1997). This understanding of the statutory
standard is consistent with the dual legislative purposes of
enhancing fire safety and protecting property owners of existing
residential buildings from the disproportionate costs of
automatic sprinkler installation when attempting to perform
are fire-retardant. Likewise, while newer residential buildings
often have air conditioning ducts that allow fire to spread
rapidly, older residential buildings generally do not. See
Roman, New Fires, New Tactics, National Fire Protection
Association Journal (Dec. 29, 2014). Thus, the need for
sprinklers in a new residential building may be greater than in
an older one.
30
desirable ordinary repairs and maintenance, even if extensive in
nature, to retain a building in a habitable condition.39 See,
e.g., 1010 Memorial Dr. Tenants Corp. v. Fire Chief of Cambridge
& another, 424 Mass. 661, 664-665 (1997). This, in turn,
furthers the ancillary goals of retaining and adding to existing
housing stock, as well as avoiding an increase in abandoned
residential buildings,40 which themselves present an increased
risk of fire.
3. Fire chief's decisions. With this standard in mind, we
examine the fire chief's decisions to ascertain whether they
comport with the statutory objectives. Here, in reaching his
determination that MacLaurin's buildings had been substantially
39
See Bukowksi & Babrauskas, Developing Rational,
Performance-based Fire Safety Requirements in Model Building
Codes, Fire and Materials, vol. 18, at 173, 176, 180-181 (1994);
D. Madrzykowski & R.P. Fleming, Review of Residential Sprinkler
Systems: Research and Standards, National Fire Sprinkler
Association, NISTIR 6941, at 5, 16 (rev. Dec. 2002). See also
R.P. Fleming, The Fire Sprinkler Situation in the United States
(2012).
40
In 1983, then Governor Michael Dukakis announced that
homelessness was his highest social service priority, pointing
to estimates that Massachusetts had somewhere between 5,000 to
10,000 homeless residents. Among other initiatives during his
term in office, public assistance requirements were amended so
that homeless persons could receive benefits, the Legislature
enacted a stringent condominium conversion law requiring four
years' notification to tenants, and funding was obtained to
create thousands of new and rehabilitated housing units for low
income residents. See J. Alter, S. Doherty, N. Finke Greenbert,
S. Agrest, V.E. Smith, G. Raine, Homelessness in America,
Newsweek, Jan. 2, 1984, at 12-13, in Housing the Homeless, J.
Erickson and C. Wilhelm, eds. (Rutgers, 1986), republished with
a new introduction by J. Erickson (2012).
31
rehabilitated so as to be the equivalent of new construction,
the chief stated that he looked to decisions of the automatic
sprinkler appeals board (construing G. L. c. 148, § 26G), and to
provisions in the State building code. While the decisions do
not state so explicitly, they suggest the fire chief's
familiarity with Beth Sholom, supra at 279, the only appellate
decision to have construed the "major alteration" standard in
the commercial sprinkler provision, requiring installation of
sprinklers in existing commercial buildings of more than 7,500
square feet whenever construction is extensive enough to be a
"major alteration." The chief also appears to have been
cognizant of a 1999 Superior Court judge's decision construing
the residential sprinkler provision. See note 20, supra.
The fire chief, however, did not rely expressly on any
identified interpretation of the statutory standard, nor did he
set forth such an interpretation.41 If anything, the decisions
suggest rather that the "major alteration" and "substantially
rehabilitated so as to constitute the equivalent of new
41
The February, 2012 (Main Street), and March, 2012 (Essex
Street), orders generally relied on the same factors: reported
observations from the inspections in February, 2012; various
municipal records, including fire department records; and
documents that had been submitted by MacLaurin to the building
inspector during the course of construction. In the 2013
orders, the fire chief noted also that he had sought guidance in
decisions of the automatic sprinkler appeals board and the State
building code, both with reference to the commercial sprinkler
provision.
32
construction" standards were viewed as functionally equivalent.
The decisions neither make clear what facts the fire chief found
and applied, nor how he weighed their relative importance.42
While expressing some skepticism as to the validity of
MacLaurin's total project cost and sprinkler installation
estimates, the decisions do not reflect any assessment of the
relative costs of sprinkler installation compared with total
project costs,43 a factor that is identified in both Beth Sholom,
42
The fire chief stated, without discussion, that the work
included upgrades to "all major systems" (plumbing, electrical,
and gas); that each building, which had sustained previous fire
damage, was of a "balloon" construction with a wooden frame that
would allow a fire to move rapidly between floors; that the
actual work undertaken would have facilitated the installation
of automatic sprinklers; and that, at least as to Essex Street,
MacLaurin had submitted automatic sprinkler plans in conjunction
with his initial applications for building permits. The chief
commented that he viewed the submission of these plans as an
indication that, from its inception, MacLaurin had considered
the project to be a substantial rehabilitation (a view MacLaurin
disputes).
43
While the fire chief stated that he considered the cost
of the projects, the particular work involved, and the relative
cost of sprinklers in each building, his 2012 orders questioned
the accuracy of MacLaurin's claimed total project costs of
$207,062 (Essex Street) and $178,353 (later adjusted to
$186,851) (Main Street), and of his projected costs to install
automatic sprinklers of $124,800 (Essex Street) and $133,700
(Main Street), suggesting that the total project costs were too
low and the sprinkler installation estimates were too high. The
fire chief did not provide alternative figures.
The 2013 orders adopted MacLaurin's figures without
comment, and did not address the costs of sprinkler
installation. Those orders contain no discussion of the costs
of sprinklers, other than a comment that the costs of
installation would have been "substantially less" had sprinklers
33
supra at 279, and Iodice vs. Newton, Mass. Superior Ct., No.
971098D (Middlesex County Oct. 1, 1999) (Iodice), as being
relevant to the determination whether work undertaken is a
"major alteration." Further, nothing in the decisions indicates
consideration of the dual statutory objectives, and whether the
modifications undertaken were so substantial that they
constituted "the equivalent of new construction."
The difficulty of judicial review is enhanced by the
absence of express findings of fact as to key points, certain of
which MacLaurin disputes. For example, in addition to the
record being unclear as to what the project costs and sprinkler
installation cost estimates were determined to be, the record is
at least as unclear as to specific aspects of the scope and
nature of the actual physical work performed. Significantly,
given its importance relative to the costs and difficulty of
automatic sprinkler installation, the fire chief made no
findings as to the contested issue of the extent of the walls
and ceilings that were opened, replaced, or repaired by being
covered with gypsum board.44
been installed when the permits issued. The only discussion of
costs in the 2013 orders compares the total project costs with
the (extremely low) assessed values of the buildings.
44
In particular, as to the Essex Street building, the fire
chief noted that "substantial portions of both walls and
ceilings throughout the entire building were opened up," a point
that MacLaurin disputes as incorrect and inconsistent with
34
In light of the foregoing, the Housing Court judge was not
in a position to review the fire chief's decisions under G. L.
c. 148, § 26I, and a remand for further proceedings, with the
guidance we provide, is necessary. On remand, after taking such
additional evidence as may be appropriate, and applying the
standard we have identified, the fire chief should clearly
determine and identify the particular facts on which he bases
his conclusion whether the rehabilitative work undertaken on
each building was so substantial as to be the equivalent of new
construction.
4. Whether a hearing was required. MacLaurin also argues
that the fire chief acted arbitrarily and capriciously in
failing to conduct an evidentiary hearing in order to allow him
to present evidence and be heard. MacLaurin contends that such
a hearing was necessary to establish an acceptable record for
review on appeal, based on written findings of fact and a
clearly articulated rationale for the decision made. He
maintains as well that an evidentiary hearing is
constitutionally mandated before an order may issue requiring a
residential property owner to pay for a potentially cost
prohibitive sprinkler system, and that the decision to require
documentation for the project. Moreover, with respect to the
Main Street building, as to which the fire chief also concluded
that sprinkler installation would have been facilitated by
virtue of the work done there, the record does not reflect any
mention of walls or ceilings being similarly "opened up."
35
installation of automatic sprinklers without a hearing was a
violation of his due process rights.
As noted, the residential sprinkler provision is the only
section of the fire prevention act requiring the installation of
automatic sprinklers that does not contain language affording a
statutory right of appeal.45 In support of his contention that a
hearing was constitutionally mandated, MacLaurin points to the
Appeals Court's decision in Yerardi's Moody St. Restaurant &
Lounge v. Selectmen of Randolph, 19 Mass. App. Ct. 296, 302-304
(1985) (Yerardi's), citing Milligan v. Board of Registration in
Pharmacy, 348 Mass. 491, 495-496 (1965) (Milligan). In the
Yerardi's case, citing Konstantopoulos v. Whately, 384 Mass.
123, 132 (1981), the court held that a restaurant owner was
entitled to a hearing when a city board denied his application
for a later closing hour, which had been permitted to other
nearby restaurants, even though the licensing statute contained
no right to a hearing after the denial of a request to expand
closing hours.46 Without determining whether the denial of an
45
Amendments to the residential sprinkler provision that
would provide a statutory right of appeal have been introduced a
number of times; none have come to a vote. See, e.g., 2015
House Doc. No. 2143; 2013 House Doc. No. 982.
46
As here, other provisions of the statute applicable in
Yerardi's Moody St. Restaurant & Lounge v. Selectmen of
Randolph, 19 Mass. App. Ct. 296, 299-300 (1985), such as an
order to reduce licensed operating hours, did provide a right to
a hearing.
36
extension of licensing hours was of constitutional dimension,
the court in the Yerardi's case concluded that the aggrieved
restaurant owner was nonetheless entitled to notice and a
hearing under a long-standing common law "ethic that pervades
our legal system" "where government exerts power upon an
individual in a matter of consequence." Yerardi's, supra at
303, citing Milligan, supra.
The situation here is, to some extent, similar, and we need
not reach the question whether the fire chief's decision was of
constitutional dimension to conclude that, in the circumstances
here, a hearing would have been appropriate.47 There was no
47
Consideration might well have been given to holding such
a hearing early in the project, when adjustments could be made
most cost-effectively, or another form of fire prevention system
instead deemed sufficient, the types of resolutions that the
automatic sprinkler appeals board is authorized to make. See
discussions in Iodice, supra, and Beth Sholom, supra. We note
that many of the factors relied upon to determine that
sprinklers are necessary in this case (the age of the buildings,
the type of construction, the history of a previous fire) were
known when the building permits issued. A hearing early in the
process might have allowed resolution of material factual
questions, such as the extent and scope of the project
(particularly the extent to which walls and ceilings would be
replaced) and the cost of installation of a particular sprinkler
system, which are of significance in determining whether
sprinklers are required.
Here, for example, an expert report indicated some
question, with respect to the Main Street building and its
connection to the street, as to whether water pressure from the
street would be adequate in the building to support a sprinkler
system. Were the water supply thereby inadequate, MacLaurin
might be statutorily exempt from any requirement to install
sprinklers. See G. L. c. 148, § 26I.
37
controlling decisional authority as to the applicable standard,
key facts were in dispute, and there is no statutory avenue for
review. The fire chief's orders clearly "exert[ed] power upon
an individual in a matter of consequence." Yerardi's, supra at
303, citing Milligan, supra at 495-496. While determinations
such as these are made in the exercise of discretion, that
discretion is not unlimited. "[B]esides the unreviewable
elements in [such] decisions, there are other elements
submissible to the test of elementary justice that is invoked by
the words 'arbitrary or capricious.'" Id. at 301. In these
particular circumstances, an appropriate opportunity for
MacLaurin to be heard was warranted.
Conclusion. The matter is remanded to the Housing Court
for entry of an order vacating the judgment affirming the fire
chief's determination that automatic sprinklers are required in
the buildings at 213-215 Chestnut Street/108-116 Essex Street
and 268-272 Main Street/11 Spring Street, and remanding the
matter to the Holyoke fire department. On remand, the head of
the fire department shall consider anew, consistent with this
opinion and after evaluation of the existing record and such
additional information as may be submitted by either party,
whether the properties have been substantially rehabilitated
within the meaning of G. L. c. 148, § 26I, so as to require the
installation of automatic sprinkler systems. Thereafter, if
38
necessary, further proceedings consistent with this opinion will
be had in the Housing Court.
So ordered.