# Blakeley v. Gorin

> Massachusetts Supreme Judicial Court · July 12, 1974 · 365 Mass. 590

URL: https://www.frixlaw.com/law-library/cases/9706717

## Case

- **Full name:** Gerald W. Blakeley, Jr., & Others, Trustees, vs. Harry N. Gorin & Others
- **Court:** Massachusetts Supreme Judicial Court
- **Decided:** July 12, 1974
- **Citations:** 365 Mass. 590; 313 N.E.2d 903; 1974 Mass. LEXIS 633
- **Precedential status:** Published
- **Opinion:** Dissent by Quirico
- **Judges:** Tauro, Reardon, Quirico, Braucher, Hennessey, Kaplan
- **Cited by:** 14 later opinions in the Frix Law Library

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9706717

## Opinion text

Quirico, J.
(dissenting, with whom Reardon, J., joins). I am unable to agree with the decision of the court. I disagree principally with the decision that G. L. c. 184, § 30, inserted by St. 1961, c. 448, § 1, is constitutional as applied in this case and that in this proceeding, which is brought under the terms of such statute, the respondents may be deprived of valuable property rights and be required or permitted to accept money damages in lieu thereof. I also disagree with certain factual conclusions reached by the court in its opinion.
The Commonwealth Restrictions.
It will be helpful to preface my discussion by a brief restatement of certain facts involved in this case and a summary of the conclusions ultimately reached by the trial judge and this court.
The petitioners as trustees own two parcels of land in Boston which together occupy the entire frontage of the block on Arlington Street between Newbury Street and Commonwealth Avenue, opposite the Boston Public Garden. The beneficial owner of both parcels appears to be *609 Cabot, Cabot & Forbes or an affiliate thereof. A portion of each of the two parcels is subject to a passageway designated as “Public Alley No. 437” (the passageway) which runs from Arlington Street to Berkeley Street, parallel to Newbury Street and Commonwealth Avenue. The dividing line between the petitioners’ two parcels is at the center line of the passageway. Both of the petitioners’ parcels are subject to certain of the Commonwealth Restrictions, as is the respondents’ property.
The new structure the petitioners propose to erect and operate for hotel and apartment purposes in combination with their Ritz-Carlton Hotel would rise to a height of twenty-eight stories on their now vacant parcel and would cover in part the passageway. The structure over the passageway would connect the new building to the present hotel at each of the second through the thirteenth floors. The rear wall of the connecting structure would be of solid masonry located even with the rear wall of the present hotel, and would start thirteen feet above the roadway of the alley and rise to a height of 137 feet. It would have the effect of converting the alley into a tunnel thirteen feet high from a point sixty-five feet west of Arlington Street to the rear wall of the hotel, which is about 134 feet west of the street. The light and air otherwise available to the respondents’ property from the direction of Arlington Street will be diminished by the proposed construction over the alley.
The trial judge concluded that the building proposed by the petitioners would violate the Commonwealth Restrictions with respect to (a) the construction above the passageway, (b) the mercantile operations in the new building, (c) encroachment by construction beyond the set-back line on Commonwealth Avenue, (d) the construction of an underground garage, and (e) the construction below the prescribed bottom level of buildings. The trial judge found that the respondents had an actual and substantial benefit in all of the restrictions but held that they were all obsolete and that therefore the respondents were not entitled to either specific enforcement or money damages. This court holds that there was no error in the judge’s decision that *610 none of the restrictions shall be specifically enforced, although for reasons different from those on which he relied. The court holds that the only restriction which continues to be at issue between the parties is that relating to the passageway. As to this restriction it holds that it is of actual and substantial benefit to the respondents but that the respondents are to receive money damages in lieu of specific enforcement.
I disagree with the court’s treatment of the restrictions relating to the passageway and to the set-back requirement along Commonwealth Avenue. For the reasons discussed below, I would hold that the respondents have an actual and substantial benefit in these two restrictions, that the restrictions have not become obsolete, and that they should be specifically enforced.
1. Set-Back Restriction. The portion of the petitioners’ vacant lot which is identified as No. 2 Commonwealth Avenue is subject to the restriction that any building thereon shall be set back twenty-two feet from the street. The remainder of their vacant lot (the portions identified as Nos. 4, 6,8 and 10 Commonwealth Avenue) and each of the other lots in that block of Comonwealth Avenue are subject to a similar set-back restriction although limited to twenty feet. Both restrictions expressly permit steps, windows, porticos and other usual projections in the set-back area.
As to No. 2 Commonwealth Avenue the petitioners’ proposed new building would be set back from the street a distance of twenty feet, thus violating the restriction by two feet. In addition, the petitioners propose to encroach an additional five feet upon the set-back area along the entire Commonwealth Avenue frontage of the building with a structure described as an “arcade,” which appears to be in reality a projection of the new building’s first three stories into the reserved area. It seems clear that the arcade is not one of the “usual” permitted projections qualifying as an exception to the set-back restrictions and it would violate both of them.
The court states that as the respondents made no *611 reference to the set-back restriction 1 either before the trial judge or this court, that aspect of the final decree “declaring this restriction obsolete and unenforceable, may .. ¡ be affirmed without further discussion.” I do not agree.
In petitioning the court under G. L. c. 240, § 10A, for a declaration that the Commonwealth Restrictions at issue here are obsolete and unenforceable, it seems clear that the burden of proof rests on the petitioners. Nothing in that section or in c. 184, § 30, suggests that this general rule governing the burden of proof does not apply in this type of proceeding. Moreover, the case is before us on appeal from all aspects of the final decree entered below except as it related to the restriction on cellar depth,and the evidence is reported. Therefore all questions of law, fact and discretion are open for our review, and we may make findings contrary to those of the trial judge if we find the latter to be plainly wrong. Gordon v. O’Brien, 320 Mass. 739, 740 (1947). Loyal Protective Life Ins. Co. v. Massachusetts Indem. & Life Ins. Co. 362 Mass. 484, 485 (1972). In light of these considerations, I conclude that whether or not the respondents failed to argue the benefit of the set-back restriction, the record and the evidence require a finding that the petitioners have not sustained their burden of proof that this restriction is now obsolete and should not be specifically enforced. Accordingly, I would hold that the judge’s fin ding to the contrary was plainly wrong.
It appears that, as originally conceived, the set-back restriction was primarily intended to insure the continued existence and enjoyment of unobstructed open spaces between the Commonwealth Avenue street lines and the fronts of buildings along the street. Attorney Gen. v. Algonquin Club, 153 Mass. 447, 450-451 (1891). In Attorney Gen. v. Gardiner, 117 Mass. 492, 493 (1875), there is a *612 report by a single justice to the full court describing the history of the development of a plan for the Back Bay by a legislative committee in the following terms: “One of the contemplated streets laid out on that plan was called Commonwealth Avenue, beginning at the street west of the Public Garden, called Arlington Street, and extending westwardly a mile and a half towards Brookline, two hundred feet in width, with ornamental spaces in the middle thereof one hundred and twelve feet wide, and with spaces twenty feet in width left open for turf and shrubbery upon the front of the lots. And the committee devised, as part of said scheme, that all houses built upon this avenue should be set back twenty feet from the front lines of the lots, and that spaces twenty feet in width should be left open for turf and shrubbery in front of the houses.” 2
Commonwealth Avenue as envisioned and planned by the original committee became a reality and to this day, more than a century later, continues to be a broad boulevard 200 feet wide, with an ornamental space in the middle thereof, and with spaces twenty.feet in width left open for turf and shrubbery upon the front of the lots. As the court in its' opinion concludes with respect to the passageway restriction, I believe that the growing urban congestion due to the increasing numbers of buildings and inhabitants make such open spaces more, not less, valuable than when the set-back restriction was first imposed. There is nothing in the record to indicate that this open space of twenty feet has been violated on any lot located in the block of Commonwealth Avenue involved in this case. But by affirming a finding that the restriction requiring the setback is obsolete and unenforceable as to property at the very gateway of Commonwealth Avenue, the court is in effect declaring it to be obsolete and unenforceable all along the avenue. The rights of other parties in future cases may be unnecessarily prejudiced thereby.
*613 2. The Passageway. Both the petitioners’Ritz-Carlton Hotel property and their vacant lot are subject to the further restriction that the passageway shall “be kept open.” The petitioners propose a structure which will permanently block a substantial portion of the passageway above the first story of their buildings near Arlington Street.
As early as 1885 this court stated with respect to this restriction: “ [ W] e think the language of the stipulation was designed to signify a separation of sixteen feet at least between the rear portions of the buildings abutting on the passageway. A passageway sixteen feet wide was not merely to be kept open at the ends, but open to the sky throughout its entire length, for the general convenience and benefit. It is easy to see that the rights of others would be lessened, upon any other construction.” Attorney Gen. v. Williams, 140 Mass. 329, 334 (1885). I agree with today’s holding by the court that the restriction with respect to the passageway “was designed to preserve light and air to the properties it benefited,” and that “[a]s this urban area has grown and become ever more congested in the century since this restriction was first imposed, light and air have become more, not less, valuable. The restriction securing the respondents’ rights to them is certainly not obsolete.”
The question then becomes what remedy or relief is available to the parties. This court holds that notwithstanding its findings that the passageway restriction is of actual and substantial benefit to the respondents and that it has not become obsolete, the petitioners have the right, under the terms of G. L. c. 184, § 30, to compel the respondents to receive money damages in lieu of their right to specific enforcement of the restriction. 3 This statute purports to permit this result. The court holds that the statute is constitutional. I disagree with that holding.
*614 Constitutionality of G. L. c. 184, § 30.
General Laws c. 184, § 30, provides that no restriction shall be enforced or declared to be enforceable “unless it is determined... [tobe] of actual and substantial benefit to a person claiming rights of enforcement.” It further provides that even if determined to be of such benefit, a restriction shall not “be enforced or declared to be enforceable, except in appropriate cases by award of money damages,” if any one of five specified sets of facts or circumstances exists. These five grounds for denial of specific enforcement are set out in full in fn. 2 of the court’s opinion.
While acknowledging that the Commonwealth Restrictions are property interests, the court holds that the operation of c. 184, § 30, on the facts of this case does not amount to a taking of private property “in the constitutional sense.” It states that the statute should be viewed not as “effecting a taking but as altering the remedies by which such restrictions may be enforced, in certain circumstances.” It also states that even if § 30 were “viewed as allowing a taking of property in this case, we believe the taking would be constitutional.”
I cannot agree with the court’s analysis of the statute at issue here. It is clear to me that what the petitioners propose to do under the terms of § 30 — and what the court by its opinion permits them to do — constitutes a taking of the respondents’ property rights. Riverbank Improvement Co. v. Chadwick, 228 Mass. 242, 246-249 (1917). Jenney v. Hynes, 282 Mass. 182, 191-192 (1933). See Ladd v. Boston, 151 Mass. 585, 588 (1890). And it seems equally clear that this taking and the statute which governs it violate the Fifth and Fourteenth Amendments to the United States Constitution and art. 10 of the Massachusetts Declaration of Rights which provides in part: “Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws. . . . [B]ut no part of the property of any individual can. with justice, be taken from him, or applied to public uses, without his own consent, or that of the representative body *615 of the people. . . . And whenever the public exigencies require, that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor.”
This language recognizes that private property may be taken pursuant to the sovereign power of eminent domain coupled with the obligation to pay reasonable compensation, but that such power is always subject to the limitation that it may be exercised only when “the public exigencies require” private property to be applied to “public uses.” Absent that public exigency, or public purpose, an attempted taking of private property by the Commonwealth for a private purpose would be in excess of its sovereign powers and would amount to an expropriation, regardless of any provision for payment of damages. It would be no less an expropriation if the same taking were attempted by a private individual to whom a statute purports to give the power to do so.
Admittedly the Legislature may, and on many occasions has, delegated to private corporations the power to exercise rights of eminent domain to acquire easements or other interests in land, and such delegation has been upheld by this court in numerous decisions. See Opinion of the Justices, 330 Mass. 713, 718-719 (1953),and cases cited therein. Although the delegation is often accomplished by special statutes 4 it is also often accomplished by various provisions of the General Laws. 5 The public purpose for which the power is delegated by each of these statutes is clear and unmistakable.
The statute at issue here is very different. In upholding the constitutionality of G. L. c. 184, § 30, in this case I *616 believe the court has placed in the hands of private persons, in this instance the petitioners, the power to take from their neighbors an interest in real estate without the latter’s consent, not for any public use or purpose but solely for the petitioners’ own private gain and profit. I am reminded of the views of the dissenting Justices in Moskow v. Boston Redevelopment Authy. 349 Mass. 553, 572-575 (1965), concerning the character of the taking involved in that case; it seems that the fears they expressed therein have been realized. 6 The fact that compensation is given does not make it any less a taking. It is precisely the type of taking which the court has repeatedly held to be constitutionally impermissible. This constitutional limitation is too well understood and established and has too often been stated and applied to require lengthy general discussion. 7
We have not had any occasion in the past to consider the applicability of this constitutional limitation to c. 184, § 30; in every case but one which has arisen under this section since its enactment in 1961, it has been found that specific enforcement of the deed restrictions involved was still warranted. Walker v. Sanderson, 348 Mass. 409 (1965). Canty v. Donovan, 361 Mass. 879 (1972). Harrod^ v, Rigelhaupt, .Mass. App. Ct. (1973). a Cf. Walker v. Gross, 362 Mass. 703 (1972) (no violation of the restriction found). However, I do not believe it is entirely a question of *617 first impression. In Riverbank Improvement Co. v. Chadwick, 228 Mass. 242 (1917), a statute very similar to c. 184, § 30, was before this court and the same constitutional issue was involved. In that case, Riverbank Improvement Co. petitioned the Land Court to register its land in Boston free and clear of restrictions which prohibited its use for, among others, an apartment house or mercantile purposes. The petition was filed under St. 1915, c. 112, which, as the court states in its opinion, is essentially the same as § 30, permitting the Land Court to deny specific enforcement of a restriction if it found that the enforcement “would be inequitable or injurious to the public interests.”
The Land Court found that the restrictions on the Riverbank case property were “ ‘valid and have not become inoperative, illegal or void,’. . . that there had been no violation of the restrictions within the restricted area,” and that the respondent Chadwick might be damaged by the nonenforcement of the restrictions, but it concluded “that it would be ‘inequitable’ to enforce the restrictions.” Id. at 245. On appeal this court held that St. 1915, c. 112, was unconstitutional as applied in that case because it violated the language I have quoted earlier from art. 10 of the Declaration of Rights.
It is true that in the Riverbank case the Land Court found that the enforcement of the restrictions at issue would “ ‘not be injurious to the public interests’ ” (id. at 247) whereas the trial judge in this case found that “it would be oppressive, inequitable and not in the public interest to give effect to the Commonwealth Restrictions in this factual setting.” Nevertheless, I think that much of the court’s discussion concerning the constitutionality of St. 1915, c. 112, in the Riverbank case is applicable here. The court stated: “The effect of the instant statute as applied to these facts is to extinguish this right as affecting the land described in the petition so far as found to exist in the respondents not for any public use nor to subserve any public end, but merely for the benefit of other private landowners whose estates are less valuable by reason of the *618 existence of the right and who could make more advantageous and profitable uses of their own land if these incumbrances were out of the way. . . . ‘[I]f the statute is merely for the benefit of individual property owners, the purpose does not justify the taking of a right in land against the will of the owner.’ That principle is precisely applicable to the statute at bar. If the use for which the property is taken is not public, it is of no consequence that ample provision is made for compensation to the owner. It may be that it would be wiser for the respondents to receive money damages and submit to the extinguishment of their other property right. But that fact, if it be a fact, is wholly irrelevant.... In the continued enjoyment of.. . [the right under art. 10 of the Declaration of Rights to be protected in the enjoyment of his property] the individual is not obliged to submit to the judgment of court or Legislature that he ought to hand . . . [this property right] over for compensation to some one or more of his fellows in their private interest. He is secure under the Constitution in his right to keep what is his own, even though another wants it for private uses and may be willing to pay more than its value.” 228 Mass. 242, at 247-248 (1917).
I believe that the same basic constitutional defect which this court found in the operation of St. 1915, c. 112, on the facts in the Riuerbank case, pervades G. L. c. 184, § 30. That defect is the total absence of any public use or public purpose to support giving the petitioners the right to take away the respondents’ property rights embodied in the restrictions. 8 The court in the case before us relies heavily on the trial judge’s finding that it would not be in the public interest to enforce the Commonwealth Restrictions both in upholding the constitutionality of G. L. c. 184, § 30, and in *619 distinguishing the Riverbank case. However, I do not believe the finding disposes of either problem, for our cases make clear that acts which are in the “public interest” or constitute a “public benefit” do not without more constitute a “public purpose.” It is only when the latter is found to exist that a taking of private property can be justified.
Nevertheless, the court appears to equate these terms throughout its opinion, as is seen particularly in its emphasis on the “beneficial effect” that the petitioners’ project will have on Boston’s tax base. 9 1 think it is clear that the taking of private property in order to expand the real estate tax base would not be a taking for a public purpose, even if accomplished by a public body. In Opinion of the Justices, 332 Mass. 769, 783-784 (1955), relating to a plan to develop the area now occupied by the Prudential Center, this court said: “[T]he primary design of the bill is to provide for the acquisition of the area by the use ... of substantial sums of public money and... to formulate a plan for development, including the devoting of some portions of the area to truly public uses, and the return of the remainder to private ownership to be rented or sold for private profit, with the expectation that adjacent areas and the city as a whole will benefit through the increase of taxable property and of values. But this kind of indirect public benefit has never been deemed to render a project one for a public purpose. This aspect of the matter was thoroughly covered in the leading case of Lowell v. Boston, 111 Mass. 454 , at page 461 [1873],cited and quoted in Opinion of the Justices, 211 Mass. 624, 625 [1912].” The language thus referred to *620 includes the following: “The promotion of the interests of individuals, either in respect of property or business, although it may result incidentally in the advancement of the public welfare, is, in its essential character, a private and not a public object. However certain and great the resulting good to the general public, it does not, by reason of its comparative importance, cease to be incidental. The incidental advantage to the public, or to the State, which results from the promotion of private interests, and the prosperity of private enterprises or business, does not justify their aid by the use of public money raised by taxation.” Ill Mass. 454, 461 (1873); and 211 Mass. 624, 626 (1912). 10
It seems clear to me, therefore, that the inclusion of the words “the public interest” does not cure the constitutional defect I perceive to exist in G. L. c. 184, § 30. Nor do any of the considerations set forth as factors in the other four provisions of the section change the basic character of the petitioners’ taking from one for their own private benefit and profit to one for a public purpose. It is my opinion that even if there were findings of all the facts necessary to satisfy any or all of the five provisions of § 30, the section as applied in this case would still purport to authorize an unconstitutional taking of private property.
In reaching this conclusion, I am not, as the court implies, exalting “the discretionary remedy” of specific performance “into a constitutional right,” and thereby limiting or removing the traditional and inherent discretion of the equity court. I, of course, recognize that specific enforcement is not a remedy that is “invariably and automatically” granted and, in particular, I do not mean to suggest that the Commonwealth Restrictions must be enforced in perpetuity against all lots in the Back Bay area to which they were made applicable more than a *621 century ago. Even before the passage of G. L. c. 184, § 30, and G. L. c. 240, §§ 10A-10C, equitable restrictions found to be of no continuing value because of changed conditions would not be specifically enforced. See, e.g., Jackson v. Stevenson, 156 Mass. 496, 500-503 (1892). But c. 184, § 30, presents a very different situation. The statute explicitly prohibits the granting of specific enforcement even as to a restriction which is of actual and substantial value to a person claiming its benefit when any one of a broad range of factors is found to exist. It is the statute itself which is setting new limits on the sound discretion of the trial judge as well as effecting a radical — and to my mind, unconstitutional — change in the substantive law of property.
In my opinion there always has been, and there continues to be, a constitutionally permissible way to eliminate restrictions which continue to benefit those entitled to enforce them. There is no constitutional obstacle to the elimination of any or all of the restrictions by the proper exercise of the power of eminent domain. By the words “proper exercise” I mean the exercise of that power for a public use or public purpose. Restrictions and easements are no more beyond the reach of the sovereign power of eminent domain than are fee interests in real estate. 11
Application of G. L. c. 184, § 30 in this Case.
Even on the assumption, as the court holds, that G. L. c. 184, § 30, is constitutional, I do not agree with the ultimate conclusion that under § 30 the respondents’ relief should be limited to money damages rather than specific *622 enforcement of the restriction relating to the open passageway. 12
1. The court relies in part on its conclusion that “the properties and the neighborhood have drastically changed [since the restrictions were imposed]. Single-family residences have been replaced by moderately high-rise buildings for apartments and institutional use.” See c. 184, § 30, provision (1). I do not consider this change to be drastic. It seems clear to me from the record that Commonwealth Avenue in the block between Arlington and Berkeley streets, with its unique architectural and physical features, is one of the few remaining residential boulevards in the city, providing a welcome oasis amidst the skyward push of Boston’s newer commercial buildings. Contrary to the court’s conclusion, I believe that the erection of a twelve-story bridging structure at the very entrance of this block does constitute “an arbitrary and unnecessarily large intrusion” which is not justified by any change in the ch aracter of the area.
2. The court also relies on the existence of a variety of public controls over the use which may be made of the petitioners’ two parcels and of Public Alley No. 437. See fns. 4 and 5 to the court’s opinion. The existence of these “public controls of land use or construction” does not constitute a basis for limiting relief for violation of the restrictions to money damages rather than specific enforcement unless it is found that they “reduce materially the need for the restriction or the likelihood of the restriction accomplishing its original purposes or render it obsolete or inequitable to enforce except by award of money damages.” § 30, provision (1). I do not believe the record in this case will support such a finding, particularly with reference to the restriction that the passageway shall “be kept open.” There is no showing that any public control will ever insure *623 to the respondents the full benefits to which they are entitled under that restriction.
The existence of public controls, in whatever form, is no substitute for the respondents’ rights under the Commonwealth Restrictions. The restrictions are property rights not ordinarily subject to the changing views of legislative bodies or the discretionary decisions of administrative officers. The respondents have a right to enforce the restrictions by their own action. Moreover, the record in this case demonstrates that the public controls applicable to the petitioners’ premises have been changed from time to time with a frequency and in a manner which makes them of value to those premises but often to the detriment of the respondents’ premises. These changes will be identified below.
3. The court concludes its discussion of reasons for its decision with the following statement: “In the circumstances both the balance of equities between the parties and a consideration of the public interest require that the respondents accept money damages by way of enforcement of this restriction [relating to the public alley].” I have already quoted from several decisions of this court pointing out the important differences between “public interest” and “public use” or “public purpose.” I now reach the question whether “the balance of equities between the parties” requires that the respondents accept money damages rather than specific enforcement, or whether, in the language of provision (5) of § 30, “enforcement, except by award of money damages, is for any other reason inequitable.” I would answer both questions in the negative.
(a) The equitable enforcement of restrictions such as the Commonwealth Restrictions is granted in part for the reason that a person purchasing land with notice that it is subject to such restrictions not only acquires their benefits but assumes their burdens as well. Linzee v. Mixer, 101 Mass. 512, 529-530 (1869). Bailey v. Agawam Natl. Bank, 190 Mass. 20, 23 (1906). Riverbank Improvement Co. v. Chadwick, 228 Mass. 242, 246 (1917). In the present case *624 the restrictions were duly recorded. As this court has stated in several similar cases, “[T]he great increment in the value of the land of the defendant which will arise from refusal to enforce this restriction is of slight if any consequence. The restriction was matter of record in the chain of the defendant’s title and the defendant was bound by notice thereof.” A llen v. Massachusetts Bonding & Ins. Co. 248 Mass. 378, 387 (1924). Jenney v. Hynes, 282 Mass. 182, 193 (1933). This observation is applicable to the situation in which the petitioners find themselves. They are not shown by the record to have been anything other than experienced willing buyers with notice of limitations on the land they were purchasing; the limitations would ordinarily be a factor influencing informed buyers and sellers of land in fixing its purchase price.
(b) There is nothing in the record before us to indicate that the respondents have violated the Commonwealth Restrictions in any manner, or, as mentioned, that such violations exist anywhere on the same block.
(c) The vacant lot now owned by the petitioners appears to have had the benefit of so much special and preferential treatment from public authorities, both before and after its purchase by the petitioners, that it is not possible for me to agree with any claim that it is entitled to still more benefits by the further balancing of equities in its favor to the detriment of the respondents. This special and preferential treatment is indicated by the following matters of public record.
i. St. 1954, c. 418. Section 1 of this statute declared that the vacant lot now owned by the petitioners had become decadent through “unoccupancy of certain of the buildings thereon” to an extent detrimental to the area, that its rehabilitation was thwarted by existing limitation on the height of buildings which could be built thereon, that a building on the adjacent lot (the Ritz-Carlton Hotel) was 155 feet high, and that the construction of a building to that height would enable the lot to be put to its most beneficial use without detriment to the public good. Section 2 then authorized the erection of a building on the lot to *625 a height of 155 feet. The statute was signed with an emergency preamble.
This statute evolved from House Nos. 1816 and 1817, both of which were caused to be filed by Irving Saunders who then owned the vacant lot now owned by the plaintiffs.
ii. St. 1961, c. 179. This statute authorized designated officers of the city of Boston to issue “a permit to construct a structure or structures bridging a portion or portions of public alleys and public ways in said city at a place where said person or persons own the land with the buildings thereon on opposite sides of such public alley or public way, for the purpose of connecting said buildings.” This statute evolved from House No. 1507.
iii. St. 1961, c. 323. By § 1 of this statute the Commonwealth released the lands in the Back Bay district of Boston from the restriction concerning the level of cellar floors of buildings erected thereon. Section 2 of the statute released the specific portion of Public Alley No. 437 running between the petitioners’ two parcels from the Commonwealth Restriction requiring that the passageway “be kept open.” The rights were released “to the extent necessary to permit a structure not over fifteen feet high or wide.” These sections were passed pursuant to House Nos. 892 and 894, respectively. The releases in both sections of this statute were made “subject to the rights, if any there be, of parties other than the commonwealth.”
iv. Ordinances of Boston (1965) c. 8, § 1. In 1965, the building height limitation for the petitioners’ present vacant lot and for the lot on the opposite comer of Arlington Street and Commonwealth Avenue was increased to 285 feet “for a distance of one hundred feet running westerly along Commonwealth avenue from . . . Arlington Street.” The same ordinance amendment fixed the height limitation for buildings at certain corners of the intersection of Commonwealth Avenue with Berkeley, Clarendon and Dartmouth streets at 200 feet.
v. 1971 Amendment of Building Height Limit. The instant case was tried in March, 1971. At the trial the parties proceeded on the assumption that the petitioners’ *626 vacant lot was subject to a building height limitation of 285 feet. The respondents now state in their brief that “it should be noted that by amendment proposed by the Boston Redevelopment Authority and adopted by the Zoning Commission and approved by the Mayor, effective February 17, 1971 . . . the Boston zoning ordinance was amended to carve out of the entire Back Bay (otherwise an H-5-70 [i.e., imposing a 70-foot maximum height limitation] district) one small district, consisting solely of petitioners’ land and known as H-5 District, subject to no (zoning ordinance) limitation of height at all.” The respondents suggest there may be some question of the validity of this action, but we are not required to pass thereon.
This summary of successive acts by various government agencies and officials spans a period of twenty years. It started with St. 1954, c. 418, declaring the petitioners’ now vacant lot decadent and increasing the applicable building height limitation to 155 feet, coupled with an emergency preamble suggestive of such great urgency that even the usual short delay before the statute would otherwise take effect could not be permitted. It ends now, in 1974, apparently with no building height limitation since 1971, with no building on the lot, and with yet another request for further special treatment to enable the petitioners to accomplish their current objectives for the use of the lot by eliminating the property rights of the respondents arising out of the Commonwealth Restrictions. On this history and the record before us, I do not agree with the court’s conclusion that it would be inequitable to deny the petitioners the relief which they seek.
There is some reason to believe that none of the parties presently before the court is in a strong position to request the benefit of a balancing of the equities in his favor 13 but, *627 despite that observation, I cannot be unmindful of the precedential effect which the court’s decision of this case will have on a large part of the Back Bay of Boston, far beyond the several parcels of land owned by these particular litigants.
Conclusion.
I would order that the final decree be reversed and that a new decree be entered to the effect that the Commonwealth Restriction requiring the open passageway is specifically enforceable as to both parcels of land owned by the petitioners, and that the restriction requiring a setback from Commonwealth Avenue is specifically enforceable as to the petitioners’ vacant lot described in paragraph 2 of their petition.
In its discussion the court refers to only one “restriction requiring a specified setback . . although there are, as explained, two set-back restrictions involved in this case. As my disagreement with the court’s treatment of the set-back requirement does not turn on the two-foot difference between the two restrictions, I will refer hereafter to “the set-back restriction” in my discussion.
The full court held in the Gardiner case that it was a violation of the set-back restriction to build underground coal bins which projected three feet above the existing level of the street, within the set-back limit, and ordered the structure removed.
In relegating the respondents to money damages the court relies entirely on this statute. Thus we are not concerned with cases such as Jackson v. Stevenson, 156 Mass. 496, 500-503 (1892), where on general principles of equity, apart from any statute, specific enforcement of an equitable deed restriction was denied and relief limited to money damages.
See the collection of such statutes in Opinion of the Justices, 330 Mass. 718, fn. 1 (1953).
See e.g., G. L. c. 160, § 80, relating to railroads; G. L. c. 161, § 58, relating to street railways; G. L. c. 164, § 72, relating to electric companies; G. L. c. 164, § 75C, relating to natural gas pipe line companies. See also the following statutes delegating this power to governmental subdivisions: G. L. c. 40, § 14, to cities and towns; G. L. c. 121, § 26P, to housing authorities; G. L. c. 121, § 26RR, to redevelopment authorities; St. 1952, c. 354, § 5, to the Massachusetts Turnpike Authority.
.. [The taking by the Boston Redevelopment Authority] is the taking... of land with building of private persons so that other private persons may construct, for their own use and benefit, a different building on the land taken. . . . Transcending the effect of the balding of the majority in the present case are its implications for the future [IJtis not difficult to conceive of situations wherein economically powerful private interests, shielded by the opinion of the majority and working behind the facade of a public authority which has the power of eminent domain, will be enabled to become the real beneficiaries of the exercise of that power in contravention of Article X of the Declaration of Rights of the Constitution of the Commonwealth.” 349 Mass, at 573, 574-575 (1965). It is worth noting that under c. 184, § 30, it is not even necessary to work “behind the facade of a public authority” to accomplish the taking.
Many of our opinions and decisions on this subject are collected and discussed in Allydonn Realty Corp. v. Holyoke Housing Authy. 304 Mass. 288, 292-297 (1939), and later in Opinion of the Justices, 332 Mass. 769, 781-784 (1955).
298 N. E. 2d 872 .
The constitutional doubts cast on § 30 by the Riverbank case, supra, have been considered and discussed by the statute’s drafters and other commentators. See Blood, Obsolete and Uncertain Restrictions and Riverside Improvement Co. vs. Chadwick, 228 Mass. 242 , A Constitutional Discussion, 45 Mass. L. Q. (No. 2) 43 (1960); Thirty-sixth Report of the Judicial Council (December, 1960), Pub. Doc. No. 144, pp. 80-82; 1961 Ann. Surv. of Mass. Law, § 1.2; Note, 44 B. U. L. Rev. 201, 208-209, 211-212 (1964).
The court specifically mentions the tax benefit the general public will derive from the petitioners’ project as a basis for its conclusion that if the petitioners in this case have effected a taking at all, it was not (unconstitutionally) “accomplished.for a purely private purpose.” And near the end of its opinion the court states: “Moreover we are mandated by the statute to have due regard for the public interest in determining the manner of enforcement of a restriction. The land in question has been vacant for over a decade. We take judicial notice of the exceedingly high property tax rates current in the city of Boston and the beneficial effect on the tax base of the petitioners’ plan to construct a multimillion dollar project of public usefulness on presently unutilized land.”
Although that language was used in relation to the purposes for which the power of taxation may be exercised, it applies equally to the power of eminent domain. Lowell v. Boston, supra, at 462.
The court apparently considers eminent domain a hollow remedy and perhaps useless vehicle “to alter land use decisions inscribed in a deed over a century ago by parties to a private land transaction.” Whether or not this is true, I would point out that the Commonwealth Restrictions at issue here were established by the Legislature itself to govern all of the Back Bay, and the Commonwealth retained and still possesses the power to enforce most of them for the public interest. They certainly do not represent land use decisions established and imposed on the Back Bay by merely private parties.
Reference is made to this restriction alone because it is the only one which the court has found to be of “actual and substantial benefit” to the respondents. As I have indicated, I would also find that the respondents continue to derive such benefit from the set-back restriction and are likewise entitled to have it specifically enforced.
There was evidence introduced at the trial that the petitioners made studies and plans for construction of a single new building on both their vacant lot and the property of the respondents, and to connect the new building to the present Ritz-Carlton Hotel by bridging the passageway. An exhibit admitted in evidence dated *627 November 23, 1970, gave a brief description of this plan, and included the following under the title of “SITE INFORMATION
“TotalArea:
a) 2-10 Commonwealth Avenue (owned by CC&F) 18,301 s.f.
b) 12-Í4 Commonwealth Avenue (owned by Harry Gorin -
Long term lease under final negotiations) 6,474 s.f.
24,775 s.f.”
An employee of Cabot, Cabot & Forbes testified that there have been negotiations running over a period of at least eighteen months with representatives of the respondents Gorin and Leeder with respect to the use of their property. The record does not indicate the results of the negotiations.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9706717. Public record. Not legal advice.