MILDRED L. GOULD & others vs. GREYLOCK RESERVATION COMMISSION & another.

CUTTER, J. Five citizens [Note 1] of Berkshire County seek a writ of mandamus and declaratory relief against the Greylock Reservation Commission (the Commission) and the Mount Greylock Tramway Authority (the Authority). They ask for a declaration that two instruments are invalid, viz. a 1960 lease to the Authority of 4,000 acres in the Greylock State Reservation and a 1964 agreement between the Authority and a management corporation. They also seek to prohibit the Commission and the Authority from proceeding with a scheme for the leased area for an aerial tramway, ski lifts, and a ski resort. A judge of the Superior Court adopted a thorough auditor's report as his findings of material facts [Note 2] and made rulings. He ordered that the petition be dismissed. The petitioners appealed.

Mount Greylock (3,491 feet) is the highest summit of an isolated range surrounded by "lands of considerably lower elevation." Prior to 1888, this range was subject to commercial lumbering operations. About 1888, a group of citizens "became associated . . . for the purpose of preserving Mount Greylock as an unspoiled natural forest." By St. 1885, c. 166, a corporation (Greylock Park Association) was formed "for the purpose of laying out a public park upon Greylock Mountain." It did acquire about 400 acres including the mountain summit.

"Through the efforts of persons interested in preserving Mount Greylock in its natural state for the . . . [public]

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benefit," the Greylock State Reservation was established by St. 1898, c. 543. Section 1 provided for an unpaid commission appointed by the Governor. The Commission (Section 2) was authorized to acquire 10,000 acres to be known as the Greylock State Reservation, and was given (Section 4) certain powers of the Metropolitan Park Commission (St. 1893, c. 407). A grant of $25,000 from the Commonwealth's treasury (Section 3) was not to be available (Section 7) until the property held by Greylock Park Association "shall have been transferred to the Commonwealth." This was done in 1899. The Commonwealth has since acquired about 8,400 additional acres. The auditor found that there was "no evidence of . . . any restrictions or conditions in any of the deeds" to the Commonwealth of land in the reservation.

Access to the summit is now provided by two roads, the Rockwell Road from New Ashford and the Notch Road from North Adams. West of the summit these two roads join a short road to the summit itself. A simplified outline map (based on exhibits) is annexed [Note 3] upon which these roads are shown, [Note 4] together with certain principal features of the proposed tramway and ski area.

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THE ENABLING ACTS.

The Authority was established as "a body politic and corporate . . . [to] be deemed a public instrumentality"

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by St. 1953, c. 606, Section 3. See amendments by St. 1955, c. 476, St. 1959, c. 608. See also St. 1960, c. 100. The Authority was empowered by c. 606, Section 1, to construct and operate a toll tramway and to issue revenue bonds to pay the costs. [Note 5] It was to consist of the chairman of the Commission and four members appointed by the Governor with the approval of the Council. Section 6 of the 1953 act (as amended by Section 2 of the 1955 act) gave to the Authority specific power to "acquire, construct . . . and operate an aerial tramway and all appurtenances thereto on the Adams side of Mount Greylock" and certain other facilities. [Note 6] It was provided by Section 10 of the 1953 act (as amended by St. 1955, c. 476, Section 5) that the Authority should so fix rates and tolls (free from regulation by any department or agency of the Commonwealth) as to provide a fund sufficient to operate the project, to pay the principal and interest on the revenue bonds, and to create certain reserves "as the [A]uthority in its discretion may provide." Section 16 (as amended by Section 6 of the 1955 act) directed that the project be transferred to the Commonwealth when there has been payment, or provision for payment, of the revenue bonds.

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THE 1960 LEASE.

Section 7 of the 1955 act authorized the Commission "to lease to the . . . Authority, with the approval of the governor and council, any portion of the Mount Greylock reservation . . . including . . . facilities . . . thereon, for . . . not exceeding forty years . . . and the . . . commission, with the approval of the governor, is . . . empowered to . . . [restrict] the use of any such property not leased . . . to prevent competition with the property leased." On December 31, 1960, the Commission purported to lease to the Authority 4,000 acres of the Greylock reservation lying east of Notch Road and Rockwell Road. [Note 7] The leased land constitutes a little less than half the total reservation (8,800 acres). The lease is to begin when the Authority sells its initial revenue bonds and to end at the expiration of forty years from that date or upon the prior payment of certain revenue bonds. The Commission, by the lease, purported to relieve itself of the obligations to maintain the war memorial, access roads, and public ways on the leased land. It also agreed to refrain from permitting or establishing facilities on the reservation which would compete with the Authority's project. [Note 8]

THE PRESENT PROJECT AND THE 1964 MANAGEMENT AGREEMENT.

From 1953 to 1964, the Authority made no progress toward borrowing the necessary money. An initial appropriation of $10,000 (St. 1953, c. 606, Section 17) was spent for

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engineering, with the consequence that the Authority now has no funds. In February, 1964, a new chairman was appointed who retained, to assist in the Authority's further efforts, consulting engineers, financial consultants, legal and bond counsel, auditors, and architectural consultants. In March, 1964, Allen & Company, a New York investment house, advised the Authority that, upon certain conditions, [Note 9] it was willing to underwrite $5,500,000 of five per cent, callable, twenty-five year revenue bonds, to pay construction costs of $3,235,000. [Note 10] Allen & Company, in association with Willamette Construction Company (Willamette), organized a joint venture corporation, American Resort Services, Inc. (Resort) with a capitalization of $300,000. Willamette presented general studies (subject to later revision) for constructing a very extensive ski development on the east slope of Mount Greylock, with a large activity center at the base of the mountain, including an access road, a swimming pool, restaurant, fireplace, barbecue pit, bar, sun deck, summer dance terrace, ski shop, gift shop, ski rental and repair room, and parking space for 2,000 automobiles. These facilities would be placed on between 425 and 935 acres of land east of, and outside of, the reservation (toward Adams), which the Authority would have to acquire. In addition to the tramway there would be four separate double chair lifts and eleven ski trails (including the existing trails), an upper terminal house, and an expanded Bascom Lodge. The portion of these facilities within the reservation would surround about 470 acres of which 115 acres would be directly developed and 111 acres would have to be cleared of trees and vegetation for the tramway, for chair lifts (strips sixty to eighty feet wide), and ski trails (strips sixty to one hundred feet wide).

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On October 6, 1964, the Authority entered into what is entitled a "management agreement" with Resort, employing Resort "as its agent" to manage the tramway and related facilities "under the general control and supervision and at the expense of the Authority . . . in conformity with applicable statutory provisions, policies, regulations and procedures prescribed . . . and plans, programs and budgets approved by the Authority." There is a comprehensive delegation to Resort [Note 11] of duties in respect of fiscal operations, budgets, records, accounting, annual reports, purchases, inventory controls, insurance, contracting, and various other matters.

Resort is to provide three executives who "in the name of the Authority and under its general control and supervision" shall give on "a full-time basis general executive supervision and managerial services." Their salaries and other benefits are to be established and paid in the first instance by Resort, subject to reimbursement by the Authority as stated below. Other employees are to be retained by Resort at the Authority's expense. The agreement is to be subject to a so called "safeguard agreement" between the Commission and the Authority, [Note 12] to the lease, and to any trust agreement issued for the protection of bondholders. No such agreement is yet in existence. Revenues are to be the property of the Authority. Additional facilities acquired by the Authority are to become subject to the agreement.

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The Authority is annually to reimburse Resort for the salaries and fringe benefits of the three executives, up to an aggregate of $75,000 (plus certain specified cost of living increases), but only from the balance (for convenience referred to hereafter as "net operating revenues") of gross revenues in each fiscal year remaining after payment of, or provision for, (i) all costs of operation (exclusive of Resort's compensation), (ii) sinking fund requirements and requirements for principal and interest on the revenue bonds, and (iii) reserve funds. Resort each year (subject to detailed provisions in the agreement) is to receive forty per cent of the tramway "net operating revenues" (after the further deduction of the reimbursement payable to Resort in respect of the three executives). [Note 13]

Resort is to have at the time of the original issue of revenue bonds, cash on hand of at least $300,000 (unencumbered except for the $200,000 guarantee provision mentioned below) and is to provide a $200,000 guarantee fund, to be available (a) to indemnify the Authority for any breach by Resort, and (b) to make up any deficiency in funds available to the Authority for the payment of revenue bond interest. This fund will remain to some extent available even after a termination of the agreement for default. The agreement, apart from termination for default, is essentially for the life of the bonds, or a period ending thirty years from the initial issue of bonds, if then only refunding bonds are outstanding.

The Authority's financial consultants consider that the plan presented by Allen & Company is feasible, but "that if it were not for the . . . [m]anagement [a]greement and the equity feature . . . therein, including the right under certain circumstances of Resort . . . to receive compensation equal to forty percent . . . of the excess remaining in any year after [expense] payments . . . the sale of the

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bonds would not be feasible." This "financing arrangement is an unusual one and would not justify the risk of investing unless the bondholder has some assurance of the success of the project."

There "is no binding commitment . . . of Allen & Company to underwrite the bonds and there is in existence no guaranteed contract for the construction of the tramway and other facilities at a fixed sum." The Authority has received a fixed fee proposal for the engineering and construction of the project from Willamette, "an experienced builder of tramways," at a proposed cost of $3,235,000.

The auditor also found that, since "the use of the . . . tramway is . . . optional by the public and because there is no history of such a facility on this mountain and because there are competitive facilities, and because this facility [farther south than the large ski resorts in Vermont and New Hampshire] will have a shorter ski season than competitive facilities, the degree of skill and efficiency with which the facility is managed and advertised is of great importance as related to the success of the project and consequent safety of the bonds."

1. The Greylock reservation, as rural park land, is not to "be diverted to another inconsistent public use without plain and explicit legislation to that end. . . . The policy of the Commonwealth has been to add to the common law inviolability of parks express prohibition against encroachment . . .." Higginson v. Treasurer & Sch. House Commrs. of Boston, 212 Mass. 583, 591-592. See Jacobson v. Parks & Recreation Commn. of Boston, 345 Mass. 641, 644. See also Salem v. Attorney Gen. 344 Mass. 626, 630-631. Cf. Trustees of Reservations v. Stockbridge, 348 Mass. 511, 514 (where legislative authorization for taking open land was sufficiently specific). We thus are to interpret the relevant statutory provisions strictly and as permitting within this forest reservation no activities inconsistent with the apparent purpose of St. 1898, c. 543, except as the Legislature, in the exercise of those powers which it possesses (see Lowell v. Boston, 322 Mass. 709, 730), may clearly have given permission for them.

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Statute 1953, c. 606, Section 6 (as amended by St. 1955, c. 476, Section 2, see fn. 6, supra), gave the Authority power (as quoted above) to construct and operate "an aerial tramway and all appurtenances thereto" together with certain related facilities. These facilities (and [a] the bottom half of the tramway and of two chairlifts and [b] one complete chairlift, see the sketch map) will be on land outside the present reservation, near the lower tramway terminus, to be acquired by the Authority. Within the reservation, however, the project contemplates the construction of (a) the upper parts of the tramway and of two chairlifts, (b) one complete chairlift (running south from near the summit of Mount Greylock), (c) ski trails covering ninety-three acres (all of which will be cleared of trees) and (d) other facilities covering twenty-two acres (eighteen of which will be cleared). [Note 14]

As we read the statute, the basic feature of the authorized project is the tramway. Nothing is said about chairlifts unless they come within the term "appurtenances" or the term "ski facilities" [Note 15] in the enumerated special conveniences mentioned in the latter part of Section 6 (a) as

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amended. A reasonable number of ski trails, practice slopes, and the like, we assume, might come within the term "appurtenances" of a tramway to be used for skiers, but four chairlifts of a total length of 14,825 feet and eleven ski trails of a total length of 56,600 feet do not seem reasonably to be within the concepts of mere "appurtenances" of a tramway 6,165 feet long, or incidental "ski facilities." The degree of interference with the natural state and appearance (even from a distance) of the reservation becomes apparent from the map, particularly when it is appreciated that the creation of each cleared space not only removes trees and vegetation from its immediate limits but (as the auditor found) has "a definite effect upon the ecology for some distance back from the edge of the clearing."

The Authority possesses a considerable range of discretion with respect to the scope of the project and many of its powers are broadly expressed. Nevertheless, there is a substantial question whether the somewhat grandiose project now proposed (particularly when its commercial aspects mentioned below are considered) in any event unreasonably exceeds in size the maximum project permissible under the enabling acts. If a project of this magnitude in a State forest reservation had been intended, it would have been natural and appropriate for the enabling legislation to have stated that purpose much more definitely and described its scope more specifically than has in fact been done. We need not determine, however, whether the permissible maximum has been exceeded in view of our decision upon other phases of this matter.

We note that the situation is somewhat analogous to that considered in Appleton v. Massachusetts Parking Authy. 340 Mass. 303, 310. There we held that generally comparable legislation did not give the parking authority "a roving eminent domain" power within a public park (Boston Common) but confined the authority to the taking of fairly specific and designated areas, together with approaches which "must be reasonable."

2. The petitioners contend that the 1960 lease deals with a far larger part of the 8,800 acre reservation than the

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statutes permit. The statute (St. 1955, c. 476, Section 7) authorizing the Commission to make the lease extends to "any portion of the Mount Greylock reservation." In context, however, this power must be interpreted as intended to be reasonably related to what the statutes permit the Authority to do as a project. See Opinion of the Justices, 330 Mass. 713, 725; Appleton v. Massachusetts Parking Authy. 340 Mass. 303, 310. If this is not the proper interpretation, then the Legislature has delegated to the Commission (without clearly defining the scope of what is intended, essentially without restrictions, and subject to no sufficiently stated standards) power to deal in its unfettered discretion with a large, unique tract of public park land. See Druzik v. Board of Health of Haverhill, 324 Mass. 129, 134; Opinion of the Justices, 334 Mass. 721, 732-733, 743; Opinion of the Justices, 341 Mass. 738, 759. Cf. Mosey Cafe, Inc. v. Licensing Bd. for Boston, 338 Mass. 199, 205; Opinion of the Justices, 341 Mass. 760, 775-776; Massachusetts Bay Transp. Authy. v. Boston Safe Deposit & Trust Co. 348 Mass. 538, 544-550.

We conclude that Section 7 of the 1955 act authorized the Commission to lease only those portions of the reservation which may prove to be reasonably necessary to a project of permitted scope. No necessity has been shown for leasing more than (a) so much of the "Adams side of Mount Greylock" (see Section 6 of the 1953 act as amended by St. 1955, c. 476, Section 2) as thus may be reasonably required, and (b) perhaps also some areas closely surrounding roads. No occasion at all has been established for leasing, as has been done by the 1960 lease, any reservation land (except roads) in New Ashford or Williamstown or the slopes of Saddle Ball Mountain or of Mount Fitch. The necessity for leasing any land not actually to be used was greatly reduced, of course, by the provision of St. 1955, c. 476, Section 7, already quoted, which authorized the Commission to restrict land not leased against use in competition with the Authority. [Note 16]

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We hold that the 1960 lease covered an excessive area and thus was not authorized by the statutes.

3. The 1964 management agreement constitutes substantially a complete delegation of the duties of the Authority to Resort. This joint venture corporation is owned by the proposed, but as yet uncommitted, underwriter of the revenue bonds and the proposed, but at most partially committed, engineer and constructor of the tramway project.

Examination of the agreement, briefly summarized above, shows that the Authority will have at most only general supervisory control over Resort's actions. To be sure, the agreement frequently states that Resort's performance is to be under the Authority's "general control and supervision." A close reading, however, raises strong doubts whether the Authority, on a limited budget for its own (as opposed to Resort's) expenditure, [Note 17] will be in a position to exert any practical or executive supervision over Resort. Resort will hire at least all the Authority's operating employees and have power to remove them. Indeed, the agreement does not make plain that the Authority can compel the removal of even the three principal executives to be furnished by Resort or that they need be satisfactory to the Authority. [Note 18]

The delegation of the Authority's duties seems to us broader than the type of arrangement contemplated by the power to make contracts found in St. 1953, c. 606, Section 6 (g)

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and Section 10, as amended, respectively, by Sections 2 and 5 of the 1955 act. Doubtless, the power to make contracts includes those necessary for construction, for various aspects of the operation of the tramway, and for the grant of concessions. We find in the enabling legislation, however, no suggestion that the Authority was authorized to divest itself of essentially all its statutory functions, reserving at most only general supervisory powers.

The Authority's contracting power thus given does not appear to be in any relevant respect materially different or broader than that given to various other public authorities mentioned in the margin. [Note 19] We would be slow to hold that the similar very general language of comparable statutory provisions was intended to empower these authorities to turn over all their respective operations to a manager who would be compensated by a percentage share of the net operating revenues.

The unusual character of the arrangement made by the management agreement is accentuated by the provision, already discussed, by which Resort is to receive as its compensation (after payment of all the tramway operating expenses) forty per cent of the "net operating revenues" (after deducting the expense of the three executives). Resort thus has a direct equity interest in the project until the bonds are paid. If the project is successful, despite competition

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(fn. 2), a short snow season, and any other obstacles, Resort, without necessary capital investment or risk, beyond $300,000, including the guarantee fund (which may never be used), will become entitled to a considerable share of any profits. Of course, the Authority, by reducing tolls, can and should restrict Resort from receiving excessive compensation in this manner, but fears of inadequate revenues in later years (and fear that Resort may attempt to terminate the agreement because of its objections to toll reductions) may tend to deter toll adjustments after good years.

The provision doubtless will be an incentive to Resort for good performance, while subject to the control of its present sponsors, and may result in economical operation for the protection of the bondholders. [Note 20] Nothing, however, assures that the shareholders of Resort will not sell their shares, or that other shareholders will operate Resort intelligently and in economical fashion, or in a manner consistent with the primary purposes of the reservation. It may be difficult, of course, for the Authority to exercise its somewhat ambiguous power to terminate the agreement for poor performance, or to persist in reducing tolls in the face of objections by Resort, for the Authority has no operating organization of its own.

It is our duty, of course, in considering the powers granted to an unusual public authority of this character to look at the substance of what it is authorized to do, or proposes to do, to determine whether it is designed or used to accomplish proper public objectives or is, instead, being employed as an artifice to obscure some other type of activity. See e.g. Ayer v. Commissioner of Admn. 340 Mass. 586, 593-598. We recognize that in recent years much wholly proper use has been made of authorities to carry out important public projects. Nevertheless, these entities

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present serious risk of abuse, because they are frequently relieved of statutory restrictions and regulation appropriately applicable to other public bodies. [Note 21] We note one troublesome aspect of the project now before us.

This recreational scheme, in the profits of which Resort is to share, is to compete (fn. 2) with private recreational ventures of similar character. The profit sharing feature and some aspects of the project itself strongly suggest a commercial enterprise. In addition to the absence of any clear or express statutory authorization of as broad a delegation of responsibility by the Authority as is given by the management agreement, we find no express grant to the Authority of power to permit use of public lands and of the Authority's borrowed funds for what seems, in part at least, a commercial venture for private profit. If the enabling acts have not authorized such an arrangement, the contention that an equity participation by the underwriter and construction company is necessary in order to obtain revenue bond financing cannot provide a justification for the agreement. The Authority, of course, can seek further legislative authorization within proper constitutional limits.

The situation is not comparable to that considered in Massachusetts Bay Transp. Authy. v. Boston Safe Deposit & Trust Co. 348 Mass. 538, 548, where, in a situation of great public importance and emergency, the Legislature had expressly "decided that contracting with private companies" engaged in regulated public utility operations, very directly affected with a public interest was "an appropriate means for" meeting the public need for transportation. There we dealt with contracts in the nature of subsidies to privately owned utilities pursuant to adequate legislative authorization. See Opinion of the Justices, 337 Mass. 800, 806-807.

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We need not consider whether the commercial aspects of the venture are sufficiently serious to deprive the project of any public purpose or to make improper, in whole or in part, the tax exemption granted by St. 1953, c. 606, Section 8. See Opinion of the Justices, 341 Mass. 738, 754-758; Opinion of the Justices, 341 Mass. 760, 778-780. Cf. Cabot v. Assessors of Boston, 335 Mass. 53, 60-65. We also need not now determine whether or to what extent the various aspects of the management agreement could have been expressly authorized by statute. We hold merely that the operating agreement is not within the scope of the enabling acts as they now stand.

4. In view of what has been said, it is not necessary to consider other contentions advanced by the petitioners.

5. The order for judgment is reversed. A writ of mandamus is to issue to the Commission and to the Authority commanding them to cancel the 1960 lease and the 1964 management agreement. A declaration is to be made stating that these instruments in their present form are not now authorized by the enabling acts.

So ordered.