FRESH POND SHOPPING CENTER, INC. v. CALLAHAN
464 U.S. 875 (1983)

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U.S. Supreme Court

FRESH POND SHOPPING CENTER, INC. v. CALLAHAN , 464 U.S. 875 (1983)

464 U.S. 875

FRESH POND SHOPPING CENTER, INC.
v.
Acheson CALLAHAN et al
No. 82-2151

Supreme Court of the United States

October 11, 1983

The appeal is dismissed for want of a substantial federal question.

Justice REHNQUIST, dissenting.

Appellant, Fresh Pond Shopping Center, Inc., signed a purchase agreement in June, 1979 whereby it would acquire a six-unit apartment building located adjacent to some property it already owned. Appellant planned to demolish the building and pave over the lot to provide parking to a commercial tenant of the shopping center. Because the apartment units were rent-controlled rental housing, under the terms of Cambridge City Ordinance 926 appellant first had to obtain permission from the Cambridge Rent Control Board to remove the property from the rental housing market. Although at the time the removal permit was sought only one of the six units was occupied, the Board denied the permit.

The Superior Court for Middlesex County held that under the decision of the Massachusetts Supreme Judicial Court in Flynn v. City of Cambridge, 383 Mass. 152, 418 N.E.2d 335 (1981), the restrictions on removing the apartments from the rental market in Cambridge imposed by Ordinance 926 were constitutional. The

Page 464 U.S. 875 , 876

decision of the Superior Court was affirmed by an equally divided Massachusetts Supreme Judicial Court. Fresh Pond Shopping Center, Inc. v. Rent Control Board of Cambridge, --- Mass. ---, 446 N.E.2d 1060 (1983). I would note probable jurisdiction in this case because I believe the case presents important and difficult questions concerning the application of the Takings Clause of the Fifth and Fourteenth Amendments of the Constitution, which have not been decided before by this Court. They might be postponed or avoided if the case were here on certiorari, but the case is an appeal; we act on the merits whatever we do.

The primary feature of the Cambridge rent control statute, 1976 Mass. Acts, ch. 36, is to place virtually all residential rental property in Cambridge under control of the Cambridge Rent Control Board, whose members are appellees here. Owners of rent-controlled property are also prohibited from evicting tenants without first obtaining a certificate of eviction from the Rent Control Board. The statute limits issuance of eviction certificates to circumstances where tenants have committed certain improper acts. It preserves the landlord's right to obtain a certificate of eviction to recover possession of the property only for occupancy by the owner or certain of his family members, or if the property is to be removed from the housing market through demolition or otherwise.

Although the state enabling statute preserves in limited fashion a landlord's traditional right to evict a tenant in order to occupy a rental unit personally, Cambridge City Ordinance 926 eliminated the landlord's right to evict a tenant save when the Rent Control Board first issues a " removal" permit. Ordinance 926 delegates virtually unfettered discretion to the Board to determine whether to grant a removal permit. The Board may consider the benefits of denying removal to the tenants protected by rent control, the hardship upon existing tenants of the units sought to be removed, and the effect of removal on the proclaimed housing shortage in Cambridge. Nowhere does the ordinance suggest that these considerations be balanced against the landlord's right to put his property to other uses . In short, Ordinance 926 permits denying a "removal" permit in any situation.

The combined effect of the limitations imposed by the state enabling statute and Ordinance 926 is to deny appellant use of his property. Appellant, as a corporate entity, simply cannot occupy the remaining apartment for personal use. In effect, then, the [464 U.S. 875 , 877]


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