THE SHRINERS' HOSPITAL FOR CRIPPLED CHILDREN & others [Note 1] vs. BOSTON REDEVELOPMENT AUTHORITY & others [Note 2] (and a companion case [Note 3]).

HALE, C.J. These are proceedings seeking judicial review, in the nature of certiorari (see St. 1960, c. 652, Section 13, as amended through St. 1967, c. 127, Section 3; G. L. c. 249, Section 4, as appearing in St. 1973, c. 1114, Section 289; Mass.R.Civ.P. 81 [b], 365 Mass. 841 [1974]), of a vote of the defendant Boston Redevelopment Authority (authority) authorizing the redevelopment (G. L. c. 121A; St. 1960, c. 652, Sections 12-14) of a parcel of land in the so called West End of Boston. The cases were tried together in the Superior Court, and judgments were entered for the defendants. [Note 4] The plaintiffs have appealed to this court.

On July 22, 1975, the defendants Winchester and Gallagher, as general partners of the Blackstone Company (the developer), a limited partnership (see G. L. c. 121A, Section 18C; St. 1960, c. 652, Section 13A [inserted by St. 1965, c. 859, Section 3], as amended), applied to the authority for authorization

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and approval of a redevelopment "project" (G. L. c. 121A, Section 1). The proposed project was and is for the construction, operation and maintenance of a single building on Blossom Street in Boston. The site contains 28,344 square feet (approximately 0.6 acres) of land and is presently occupied by a building known as the Blackstone school, formerly in use but now abandoned and in an advanced state of disrepair.

The developer proposes to erect on the site a fourteen-story building containing 176 dwelling units and 14,000 square feet of commercial space. The dwelling units would be for the use of elderly (including elderly handicapped) persons; the proposed plans for the units incorporate features specifically designed for the needs of such persons. [Note 5]

A public hearing was held on August 27, 1975. On September 25, 1975, the authority issued a "Report and Decision" which, in all material respects, approved the application. See St. 1960, c. 652, Section 13 (sixth paragraph), as appearing in St. 1965, c. 859, Section 2; G. L. c. 121A, Section 6. The authority found that the project area was a "blighted open area" and a "decadent area" as those terms are defined in G. L. c. 121A, Section 1. It took note of the shortage of suitable housing accommodations for elderly persons of low and moderate incomes. [Note 6] It found that the project "will not cause any significant damage to the environment as defined by Chapter 30, Section 61, of the General Laws . . . ." The authority also granted permission for the developers to deviate from certain requirements of the City of Boston Zoning Code and from the State Building Code, as the developer had requested in its application. See St. 1960, c. 652, Section 13 (ninth paragraph).

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The vote of the authority approving the application was approved by the mayor of Boston on September 30, 1975. On October 1, 1975, the authority filed a certificate of its vote with the Boston city clerk. See St. 1960, c. 652, Section 13, as amended (penultimate paragraph) (note 8, infra). The present actions under Section 13 (see and compare G. L. c. 121A, Section 6C, inserted by St. 1975, c. 827, Section 5) were filed on October 30 and 31, 1975.

1. So far as appears from the consolidated record, the plaintiffs in both cases are nearby property owners or lessees. The Shriners' Hospital for Crippled Children (hospital) abuts the project site on the north. The individual defendants are the general partners of several limited partnerships which, together with two of the corporate plaintiffs, were organized pursuant to the redevelopment of the West End area of Boston during the 1960's. The other corporate plaintiffs operate certain business establishments in the immediate vicinity of the project site. The record does not indicate which (if any) of the various partnerships (or corporations) own (or lease) land that directly abuts the project site.

The Superior Court determined that the plaintiffs had no standing to challenge the action of the authority in approving the project but held that the plaintiffs did have standing to challenge the authority's action with respect to the deviations granted from the City of Boston Zoning Code and the State Building Code, and with respect to the issue of compliance with G. L. c. 30, Sections 61 and 62, regarding environmental impact. [Note 7] We are of the opinion that the hospital has standing to challenge all of the actions of the authority leading to the approval of the project, and as it will not affect the outcome of the cases, we need not decide whether the other plaintiffs have like standing. For the purposes of this case, we assume that they have. Section 13 of St. 1960, c. 652, as amended, [Note 8]

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provides that within thirty days following the filing of the vote of the authority, "any person, whether previously a party to the proceeding or not, who is aggrieved by such vote . . . may file a petition . . . for a writ of certiorari against the authority to correct errors of law therein." It is settled that the term "person aggrieved" is "to be given a comprehensive meaning." Dodge v. Prudential Ins. Co. 343 Mass. 375, 381 (1961) (construing Section 13). See Marotta v. Board of Appeals of Revere, 336 Mass. 199, 204 (1957) (construing analogous language appearing in G. L. c. 40A, Section 21). The property on which the hospital is situated abuts the development site; shadows cast by the proposed structure will fall upon parts of the hospital, and any other impact on the environment would be likely to affect directly the hospital property and the persons occupying it; the variances from the city zoning code and deviations from the State building code granted to the developers are subjects of proper concern to the hospital for the reason stated by the trial court -- erroneous action in these areas would cause direct injury to the property interests of the hospital.

2. The plaintiffs submit that the authority abused its discretion in selecting the Blackstone Company as the developer of the site. Their argument on that point is based not on the qualifications of the developers or on alleged inadequacies of the proposal but rather on the fact that the size of the parcel (approximately 0.6 acres) is

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so small that a decision to develop the site pursuant to c. 121A violates the intent and purpose of the redevelopment laws. The short answer to that contention is that this court will not "sit in review on the size of a particular project area." Berman v. Parker, 348 U.S. 26, 35 (1954). Our review of G. L. c. 121A and of St. 1960, c. 652, Sections 12 and 13, discloses no indication of a legislative intent to prescribe a minimum (or maximum) size of an area which may be redeveloped thereunder. See especially the definitions and declaration of public necessity set forth in G. L. c. 121A, Sections 1 and 2. To the contrary, the clear intent of the statutes is to permit the appropriate redevelopment agency, within the broad and comprehensive guidelines delineated, to approve (or disapprove) proposed projects for any area, provided that the area is found to be a "blighted open," "decadent," or "substandard" area, and provided also that the proposed project meets the "public use" requirement of G. L. c. 121A, Section 2. See Stockus v. Boston Housing Authy. 304 Mass. 507, 509-510 (1939); Moskow v. Boston Redevelopment Authy. 349 Mass. 553, 561 (1965), cert. den. 382 U.S. 983 (1966). See also Allydonn Realty Corp. v. Holyoke Housing Authy. 304 Mass. 288, 291 (1939). In the present cases it is undisputed that the proposed project -- the construction of a substantial number of dwelling units for elderly persons with low and moderate incomes -- serves a public purpose and is designed to fulfill a demonstrated need.

The statutory framework enables the appropriate redevelopment agency to consider the unique characteristics of each site in making its determinations. Several unique characteristics of the Blackstone site should be noted. The site is irregularly shaped; the building currently on the site -- a school building -- is abandoned, and has been unused for many years; the site abuts (and part of it was originally included within) the West End Land Assembly and Redevelopment Project, a comparatively large area previously found by the authority to be a blighted open, decadent, and substandard area. Thus, the redevelopment of the Blackstone site can be seen, not as the isolation of

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one small parcel for redevelopment but as a slight expansion of a larger redevelopment site, reflective of changed conditions in the area.

3. The plaintiffs challenge the sufficiency of the findings made by the authority in its report. The substance of their argument is that the findings (which are reproduced in the margin [Note 9]) amount to little more than "a mere repetition

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of the statutory words. . . ." Prusik v. Board of Appeal of Boston, 262 Mass. 451, 457-458 (1928). Having carefully reviewed the entire consolidated record, we agree with the determination of the Superior Court that the findings are supported by the record and are sufficient to permit redevelopment under G. L. c. 121A.

An analysis of the subsidiary findings reveals that they are not extensively detailed and that they do in fact incorporate language from the definitions of "Blighted open area" and "Decadent area" appearing in G. L. c. 121A, Section 1. Such incorporation, standing alone, would, as the plaintiffs contend, be insufficient as a matter of law to substantiate a determination that a particular site was "blighted" or "decadent." However, the findings here clearly go beyond a bare repetition of statutory language, and specific reasons underlying the authority's conclusions have been set forth. A detailed engineering report on the soil and subsurface conditions fully supports the finding of "unsuitable subsoil conditions." The building plans disclose the irregular shape of the site. Photographs of the Blackstone school building as it now stands, together with

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other documentary evidence, show the deterioration and abandonment of that structure. The plaintiffs' attack on the fourth "blighted open area" finding is an attempt to isolate that finding from its context and does not merit extensive discussion. The finding that business and economic conditions in the area have changed substantially (which the plaintiffs do not dispute) serves primarily to explain why the use of the site as a school, as was intended when the site was omitted from the earlier extensive West End redevelopment, has been abandoned.

4. The plaintiffs next contend that the authority abused its discretion in granting certain deviations from the City of Boston Zoning Code for the Blackstone project. [Note 10]

Under the ninth paragraph of St. 1960, c. 652, Section 13, as appearing in St. 1965, c. 859, Section 2, the authority, with the approval of the mayor of Boston, is given exclusive power to grant deviations from zoning, building, health or fire standards in effect in Boston. The plaintiffs recognize, as they must, that the standards for granting deviations under that section are less restrictive than those governing the granting of variances under the zoning laws. Compare St. 1960, c. 652, Section 13, with G. L. c. 40A, Section 10 (inserted by St. 1975, c. 808, Section 3). Compare Miller v. Emergency Housing Commn. 330 Mass. 693, 697-698 (1953) (construing a standard under St. 1946, c. 592, substantially identical to that contained in St. 1960, c. 652, Section 13), with Garfield v. Board of Appeals of Rockport, 356 Mass. 37, 40-41 (1969), and Damaskos v. Board of Appeal of Boston, 359 Mass. 55, 60-61 (1971).

The questions concerning the several deviations granted by the authority "are primarily questions of fact although they may become questions of law. Insofar as they remain

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in the realm of fact they are matters for the . . . [authority] to determine." Miller v. Emergency Housing Commn., supra, at 698. In a proceeding seeking relief in the nature of certiorari our duty is to ascertain whether the reasons given by the authority in support of its determination, as they appear in the authority's answer, are erroneous as a matter of law. See Norcross v. Board of Appeal of Boston, 255 Mass. 177, 186 (1926). "With their soundness in point of fact we have nothing to do." Ibid. It is unnecessary to recite here the respective reasons underlying the granting of the various deviations. It is sufficient to say that in each instance the reasons given are adequate as a matter of law and (as mandated by St. 1960, c. 652, Section 13) do not substantially derogate from the intent and purposes of the City of Boston Zoning Code.

5. The plaintiffs also challenge the power of the authority to grant deviations from the State Building Code. See G. L. c. 23B, Sections 16-23. The State Building Code became effective on January 1, 1975. St. 1972, c. 802, Section 67.

The basis of the plaintiffs' argument is that the State Building Code Appeals Board (G. L. c. 23B, Section 23) has the exclusive power to grant such deviations. Further support for this contention is to be found in St. 1972, c. 802, Section 67 ("[s]aid code shall be binding and have the full force and effect of law on January . . . [1, 1975], in all cities and towns notwithstanding any special or general law to the contrary" [emphasis supplied]), and in Section 75 (as amended by St. 1975, c. 144, Section 1) ("[a]ll by-laws and ordinances of cities and towns or regulations promulgated by any state boards, commissions, agencies or departments or any special acts . . . in conflict with the state building code shall cease to be effective on January . . . [1, 1975]").

The above quoted sections, together with the whole of c. 802 and its subsequent amendments, evince a clear legislative intent, as the Superior Court found, to create uniform standards throughout the Commonwealth for the construction of buildings and materials used therein and to provide both a uniform enforcement procedure and an

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exclusive appeals procedure. We agree with the determination of the Superior Court that the relevant provisions of St. 1972, c. 802, were intended to supersede those provisions of St. 1960, c. 652, Section 13, which had given the authority the power to grant deviations "from any . . . building . . . code . . . in effect in Boston . . ." and on which the authority purported to base its vote. See McDonald v. Superior Court, 299 Mass. 321, 324 (1938); Rennert v. Trustees of State Colleges, 363 Mass. 740, 743-744 (1973).

Although he indicated his agreement with the plaintiffs' position on this issue, the Superior Court judge did not order that the vote of the authority purporting to grant these variances be quashed. Instead, the judge ruled that the issue was moot (see fn. 4, supra), based on the representations made at trial by counsel for the developer and the authority "that the only deviations which will be incorporated . . . into the Blackstone project will be those deviations which have been approved by both the State Building Code Appeals Board and the respondent Authority" (emphasis in original). On this point we disagree with the Superior Court. The issue is not moot. See Wolf v. Commissioner of Public Welfare, 367 Mass. 293, 297-300 (1975). The representations made by counsel at trial do not relieve the court of its duty, in an action seeking relief in the nature of certiorari, to review any alleged errors of law. The determination of the Superior Court that the provisions of St. 1972, c. 802, superseded those of St. 1960, c. 652, Section 13, with which we agree, was in effect a determination that the action of the authority purportedly granting those variances was an error of law. Such a determination required that the action of the authority be quashed.

6. Our decision in part 5 of this opinion, supra, renders it unnecessary to consider the issues raised in part VI of the plaintiffs' brief, as they are premised on a determination that the authority had the power to grant variances from the State Building Code.

7. Finally, the plaintiffs allege error in the finding by the authority that no significant environmental damage

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would be caused by the project. [Note 11] In its report the authority stated that it "ha[d] made an environmental analysis evaluating the [p]roject" and went on to enumerate specific findings (see findings 1-9 set out in fn. 11) on the issue of environmental damage. The authority concluded "that the Project will not cause any significant damage to the environment as defined by . . . [G. L. c. 30, Section 61 [Note 12]],

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and finds that no further action need be taken in this regard."

The authority's answer asserts that "the Environmental Assessment of the Project has been completed by the authority and the MHFA, and a joint report has been filed . . . with the Secretary of Environmental Affairs." (See fn. 11.) So far as appears from the record, the "report" alluded to appears to be a document entitled "Environmental Impact Statement," prepared for the developer by a private consultant. The findings contained in that "report" are consistent with those made by the authority. It appears that the "report" was submitted to the developer in January of 1975, more than three months before the developer submitted its application to the authority. The filing of the document with the Secretary of Environmental Affairs forms the basis of the plaintiffs' challenge. The plaintiffs characterize the document filed as a report of the type required in certain circumstances by G. L. c. 30, Section 62. [Note 13] We take this to allude to the second paragraph of that section.

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The plaintiffs acknowledge the existence of the remedy provided in G. L. c. 30, Section 62, to review allegedly improper determinations regarding environmental impact (see the final paragraph of Section 62, [fn. 13]; Secretary of Environmental Affairs v. Massachusetts Port Authy. 366 Mass. 755, 761-762 [1975] [hereinafter the Massport case]). The plaintiffs also recognize that the function of the court in a proceeding seeking relief in the nature of certiorari is

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ordinarily limited to a determination of whether an error of law is apparent on the record. Stetson v. Selectmen of Carlisle, 369 Mass. 755, 757 (1976). Thus, the plaintiffs do not attack directly the environmental findings made by the authority but assert that an error of law is nevertheless apparent. The essence of their argument, as we perceive it, is that if the authority, as it did here, makes a determination of no significant environmental damage (a so called "negative assessment"), no report of any kind need be filed with the Secretary of Environmental Affairs under Section 62. See the Massport case, supra, at 768. Hence, the plaintiffs argue, the fact that a report was filed in this case is tantamount to determination that the project will cause significant environmental damage.

There is no merit to that argument. General Laws c. 30, Section 62 (see fn. 13), requires an authority to prepare an environmental impact report only in the case of any work, project, or activity "which may cause damage to the environment." By definition (G. L. c. 30, Section 61, second par. [see fn. 12]) such damage does not include "any insignificant damage to or impairment of" the environment. "[T]he threshold of potential environmental damage to warrant an impact statement . . . is minimal." The Massport case, 366 Mass. at 768-769. The authority made subsidiary findings of fact which determined "that the project will not cause any significant damage to the environment as defined by c. 30, Section 61, of the General Laws, and [found] that no further action need be taken in this regard" (fn. 11). See the Massport case, 366 Mass. at 767-768.

Not only are those findings supported by the consultant's "report," but there is nothing in that "report" which would support a conclusion to the contrary, and the plaintiffs do not contend otherwise. It also appears that an environmental assessment of the project was filed with the Secretary of Environmental Affairs. [Note 14] That assessment was not included in the record before us. The plaintiffs'

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argument concedes that there was such a filing but, as stated above, questions whether the statement concluded with a "negative determination." While the consultant's "report" might well have been sufficient in form and content as an impact report (or a draft of one), the Superior Court reached the conclusion that the consultant's report was used by the authority merely to support its negative assessment. We concur in that conclusion. It appears to us that the document filed should be characterized as a supportive document rather than as a true "environmental impact report" of the type contemplated by Section 62. A true Section 62 report would be required only upon a threshold determination of at least minimal environmental damage. That threshold was not crossed in these cases.

In sum, the authority made the determination that the project would not cause significant environmental damage, as defined by the second paragraph of Section 61 (see fn. 12). There is nothing in the record which indicates that that determination was erroneous as a matter of law. Therefore, preparation of a draft or final environmental impact report under Section 62 was not required. The decision of the authority to file the supportive document, even though such filing was not required by Section 62, was not an error of law. [Note 15]

As we have determined that the action of the authority purporting to grant deviations from the State Building Code was an error of law (see part 5 of this opinion), the judgments entered in the Superior Court (see note 4, supra) cannot stand. If the action of the authority approving the project had consisted of several distinct parts, we would order quashed only that part concerning the State Building Code deviations. See Commonwealth v. Carpenter, 3 Mass. 268, 270 (1807); Commonwealth v. Blue-Hill Tpke. Corp. 5 Mass. 420, 422-424 (1809); Commonwealth

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v. West Boston Bridge, 13 Pick. 195, 196-198 (1832). However, as the vote of the authority approving the project was unitary, and as the granting of the deviations was integral to that approval, the vote of the authority as it now stands must be quashed. See Dwight v. City Council of Springfield, 4 Gray 107, 110 (1855). The judgments of the Superior Court are vacated. However, as the developers and the authority represented to the Superior Court that the only deviations from the State Building Code which will be incorporated into the project will be those approved by both the State Building Code Appeals Board and the authority, we believe that an opportunity should be afforded to obtain such approvals. See Village on the Hill, Inc. v. Massachusetts Turnpike Authy. 348 Mass. 107, 119-120 (1964), cert. den. 380 U.S. 955 (1965); Kelloway v. Board of Appeal of Melrose, 361 Mass. 249, 257-258 (1972). The Superior Court is to retain jurisdiction of the cases for the entry of judgments in accordance with this opinion, first affording the developer an opportunity to secure from the board variances from the requirements of the State Building Code (G. L. c. 23B, Section 23), and the approval of any such variances by the authority. The times within which such approvals are to be sought and of all further proceedings in these cases are to be in the discretion of the Superior Court.

So ordered.