May 1, 1989 Number 5

May 1, 1989 Number 5 John DeVillars, Secretary of Environmental Affairs Chairman, Massachusetts Water Resources Authority Charlestown Navy Yard 100 First Avenue Boston, Massachusetts 02129 Dear Secretary DeVillars: The Massachusetts Water Resources Authority ("the Authority") has requested my opinion as to whether a real property transfer to the Authority from the Commonwealth of Massachusetts through its Armory Commission ("the Commission") is governed by sections 40F and 40F1/2 of Chapter 7 of the General Laws or whether these provisions have been superseded by the Authority's Enabling Act, specifically section 26(b) of Chapter 372 of the Acts of 1984 ("the Act"). For the reasons set forth below, I conclude that sections 40F and 40F1/2 of Chapter 7 are controlling, and that section 26(b) of Chapter 372 acts to trigger the procedures contained in these provisions. My view, therefore, is that the Act does not empower state agencies to transfer real property from the Commonwealth to the Authority without following the disposition procedures contained in sections 40E-L of Chapter 7. There can be no doubt that important public policy objectives are embodied in the Act which established the Authority. The creation of the Authority came as a joint response by the Governor and the General Court to the growing legal, fiscal, and environmental crisis caused by the pollution of Boston Harbor and the Metropolitan District Commission's inability to address the problem adequately.* The Authority has argued quite eloquently that its ability to carry out its pressing public mandate may be impeded if it must comply with the requirements of Chapter 7. It contends that section 26(b) of the Act constitutes an exception to the requirements of Chapter 7. I recognize that this may be a desirable construction in light of the Authority's desire to proceed as expeditiously as possible, and I personally concur with the necessity of 1 The Act, which was passed on an emergency basis, was widely seen as necessary to avoid the imposition of court-ordered remedies and injunctions to comply with federal and state environmental law. As Governor Dukakis noted in his letter of April 19, 1984 to both houses of the Legislature urging passage of House No. 5915: "underlying the deep concern felt by the Commonwealth, its citizens, and its businesses is the very real possibility that if we fail to act in a timely and responsible fashion, a court of law will take action for us." Governor's Message, April 19, 1984, House Report No. 5915. 134 F.D. 12 immediate action to resolve the environmental problems of Boston Harbor. Nevertheless, while the Legislature is free to exempt the Authority specifically from having to comply with the procedures of Chapter 7, I cannot remain faithful to the essential principles of statutory construction and find that it has already done so with the extremely vague and ambiguous language contained in section 26(b). I note also that while the public policy concerns underlying the mission of the Authority are evident, there are other powerful public policy considerations which support a legislative judgment that the Authority must follow the guidelines of the Ward Commission guarding against fraud and abuse. A statute, especially where its meaning is unclear, must be read in view of the preexisting legislative scheme governing the same field or subject matter. See, e.g., Saccone v. State Ethics Commisssion, 395 Mass. 326, 334 (1985). A prior statute will not be repealed by subsequent legislative act unless by express words or clear or necessary implication. Registrar ofMotor Vehicles v. Board of Appeal on Motor Vehicle Liability Policies and Bonds, 382 Mass. 592 (1981); Mayor of Haverhill v. Water Commissioners of Haverhill, 320 Mass. 63 (1946). Furthermore, "strong terms" in the subsequent statute are necessary to demonstrate the Legislature's intent to repeal or supersede. Dudley v. City of Cambridge, 347 Mass. 543 (1964). Repeal by implication, which is greatly disfavored, will only be recognized where the repugnance or opposition of the later statute to the former is too plain and clear to be avoided. See e.g., Boston Housing Authority v. Labor Relations Commission, 398 Mass. 715 (1986); City of Boston v. Board of Education, 392 Mass. 788 (1984). The comprehensive legislative scheme for conveyance of state property is contained in G.L. c. 7, § 39A et seq Chapter 7, § 39B provides that the Division of Capitol Planning and Operations ("DCPO") shall be responsible for acquisition, allocation, and disposition of real property.^ The Legislature's concentration of exclusive and complete authority in DCPO for the management of the Commonwealth's real property followed a period of intense public concern about the mismanagement of state-owned property which culminated in the formation of the Special Commission Concerning State and County Buildings, popularly known as "the Ward Commission." The Ward Commission's final report, in turn, led to the Legislature's passage of Chapter 579 of the Acts of 1980, which created the new Division of Capital Planning and Operations in 2 See discussion, infra at 4-5. 3 Section 39B of Chapter 7 states in relevant part that: "Except as otherwise provided in this chapter or any other statute or appropriation act, the deputy commissioner of capital planning and acquisition shall be responsible for the acquisition, allocation, and disposition of the real property . . . ." The Legislature thus plainly anticipated occasions where it might implement other schemes for property disposition and acquisition. Here, the Legislature has simply not demonstrated sufficiently its intent to accomplish such a result. P.D. 12 135 order to centralize and improve the management of the state's real property.^ The powers of DCPO's Deputy Commissioner and the state's intricate mandatory procedures for property acquisition and disposition are found in sections 40E-L of Chapter 7. The Authority's Enabling Act provides generally that all local bodies and state agencies, including "commissions," are authorized to convey "any interest" they may have in non-Article 97 property "to the Authority upon such terms and conditions as the proper authorities of such" bodies and agencies "may deem appropriate and without the necessity of any action or formality other than the regular and formal action of said public bodies, agencies, instrumentalities, commissions . . ." (emphasis supplied). This language-* does not contain a necessary implication, much less manifest a specific intention, that the meaning of the Act is to displace and bypass the mandatory procedures embodied in Chapter 7 and establish an alternative system of property acquisition for the Authority." 4 In the Final Report to the General Court of the Social Commission Concerning State and County Buildings (December 31, 1980), the Ward Commission urged that the existing "disorganized statutory and administrative framework" of real property management be replaced by "a central authority that possesses both expertise and adequate resources and that operates within the framework of clear legal structure and systematic guidelines, to manage the allocation, acquisition and disposition of the Commonwealth's real property . . . Id. at 102, 1 19. These "recommendations . . . [were] embodied in Chapter 579 of the Acts of 1980." Id. at 119. 5 Section 26(b) of the Act states in its entirety: Except with respect to real property acquired or held for purposes described in Article XCVII of the Amendments to the Constitution, all local bodies and all public agencies, instrumentalities, commissions and authorities of the commonwealth, are hereby authorized and empowered to lease, lend, grant or convey to the Authority upon such terms and conditions as the proper authorities of such public bodies, public agencies, instrumentalities, commissions and authorities of the commonwealth may deem appropriate and without the necessity of any action or formality other than the regular and formal action of said public bodies, agencies, instrumentalities, commissions and authorities of the commonwealth any interest in any real or personal property which may be necessary or convenient to effect the purposes of the sewer and waterworks of the Authority. " Statutes are not to be interpreted so as to declare a radical change in established public policy unless the statutory language manifests a specific intent that such a change be effected. See Commonwealth v. Germano, 379 Mass. 268 (1979); Roberge's Case, 330 Mass. 506 (1953); Dexter v. Comm. of Corporations and Taxation, 316 Mass. 31 (1944). This is especially the case where the prior statute is "of uniform application . . . and designed to safeguard 136 r.v. 12 On the contrary, section 26(b) appears to be a catch-all provision^ reserving the power to convey real property interests to "the proper authorities" of a variety of local bodies and state agencies. In the case of property transfers involving state agencies, the Division of Capital Planning and Operations is, by statute, the sole and proper authority for the purpose of disposing of any interest in the Commonwealth's real property. G.L. c. 7, § 39B. There is simply no other "proper authority" to convey interests in the real property of the Commonwealth. 8 Thus, when section 26(b) is read in conjunction with sections 40F and 40F1/2 of Chapter 7, it is clear that "the proper authority]" of the public funds." See Mayor of Haverhill, 320 Mass. at 68 (1946). Far from manifesting any clear intent to break from established public policy here, the statutory language tends toward the adoption of the preexisting "regular and formal" procedures for the disposition of state-owned property. 7 The apparent model for section 26(b) is a somewhat parallel provision of the Enabling Act of the Turnpike Authority, section 15 of Chapter 354 of the Acts of 1952. This section states in its entirety: All counties, cities, towns and other political subdivisions and all public agencies and commissions of the commonwealth, notwithstanding any contrary provision of law, are hereby authorized and empowered to lease, lend, grant or convey to the Authority at its request upon such terms and conditions as the proper authorities of such counties, cities, towns, political subdivisions, agencies or commissions of the commonwealth may deem reasonable and fair and without the necessity for any advertisement, order of court or other action or formality, other than the regular and formal action of the authorities concerned, any real property which may be necessary or convenient to the effectuation of the authorized purposes of the Authority, including public roads and other real property already devoted to public use. The fact that the enactment of this statutory provision predates the existence of Chapter 7 by some 28 years makes it unlikely that, by adopting this provision's extremely general language, the Legislature intended specifically to supersede Chapter 7. 8 Whatever independent powers the Armory Commission or any other state agency once possessed to convey land were transferred to DCPO by the enactment of Chapter 7. Section 40E of Chapter 7 states that the Deputy Commissioner of DCPO "shall exercise [Chapter 7] powers . . . notwithstanding the delegations which the general court has made pertaining to the acquisition, control, and disposition of real property Chapter 7 thus categorically transferred to DCPO all existing delegations of authority over the Commonwealth's real property. Individual state agencies do not have the independent power to acquire or dispose of property they occupy. P.D. 12 137 Commonwealth for purposes of transferring the land^ in custody of the Armory Commission is DCPO. 10 Section 26(b)'s specification that local bodies and state agencies may transfer land to the Authority based on their "regular and formal action" further evinces a legislative intention to require conformance to the mandatory procedures of Chapter 7 in the conveyance of state property to the Authority. The "regular and formal action" of state agencies and commissions intending to convey land by definition refers to those formal procedures contained in sections 40F and 40F1/2 of Chapter 7. My interpretation of the statute is reinforced by the fact that Chapter 7, § 40E removed from state agencies all title to real property and vested such title in the Commonwealth, giving DCPO the powers of acquisition, disposition, and management over the Commonwealth's land. See G.L. c. 7, § 40E. Thus, when the Legislature conferred power upon the "proper authorities" of local and state agencies to convey "any interest in any real or personal property" to the Authority, it could not logically have been referring to state agencies themselves as state agencies, absent specific statutory authority, do not possess the power to transfer any interest in the state's real property. For all these reasons, my view is that, for real property transfers from the Commonwealth through state agencies to the Authority, section 26(b) triggers the regular procedures of Chapter 7. Given this interpretation, DCPO must comply with the procedures set forth in sections 40F and 40F1/2 of Chapter 7 to accomplish conveyance of real property to the Authority. ^ These procedures y It should be noted here that the word "armory" in section 126 of Chapter 33 includes the land upon which it is built. "There can be no distinction between the armory building and the land to which it belongs. The term 'building' includes the real estate on which it is situated, unless the general meaning is modified by the language of the context. Accordingly, the same rule must be applied to the 'armory land' adjoining the armory as pertains to the structure itself." 1926/27 Op. Att'y Gen., Rep. A.G., Pub. Doc. No. 12 at 139, July 28, 1926. See also 1946/47 Op. Atty. Gen., Rep. A.G., Pub. Doc. No. 12 at 101, June 19, 1947 ("the use of armories ... by necessary implication includes land devoted to armory purposes...") 10 Where two statutes relate to the same subject matter, they are to be interpreted in harmony with one another so as to constitute a consistent and intelligible body of law. See e.g., Registrar of Motor Vehicles v. Board of Appeal on Motor Vehicle Liability Policies and Bonds, 382 Mass. 592 (1981); Labor Relations Commission v. Board of Selectmen of Dracut, 374 Mass. 619 (1978); Town of Hadley v. Town of Amherst, 372 Mass. 46 (1977). In determining legislative intent, statutes are not considered in isolation but in relation to each other, and courts must consider the origins, historical development, and language of the statutes. Pereira v. New England LNG Co., Inc. 364 Mass. 109 (1973). * * While under sections 40F and 40F1/2, DCPO must consider the needs of 138 F.U. 12 include the requirement that the Deputy Commissioner notify the House and Senate Committees on Ways and Means and the Joint Committee on State Administration if the disposition of property is for less than five years or submit a request to the General Court for authority to make a conveyance of longer than five years. Id. Section 40F1/2 also requires the addition of a reversionary clause and a certification of compliance with Chapter 7 to any instrument conveying real property from the Commonwealth to a public agency for a public use. 1 ^ Finally, I must direct your attention to section 4(c) (ii) of the Act, which states that "[u]nder this Act ... no lands devoted to the public use shall be diverted to another inconsistent public use, except in all instances in accordance with the laws and the Constitution of the Commonwealth." This provision manifests a plain and specific intention by the Legislature to require conformance to the "prior public use" doctrine in the conveyance of land to the Authority.^ The essence of this doctrine is that "public lands devoted to one public use cannot be diverted to another inconsistent public use without plain and explicit legislation authorizing the diversion..." Robbins v. Department of Public Works, 355 Mass. 328, 330 (1969). Thus, if and when DCPO (or the Authority, other state and public agencies, the Act may be read by DCPO to place the Authority ahead of other potential candidates since it expresses a legislative policy recognizing the importance of the Authority's responsibilities. 12 The reversionary clause transfers property back to the Commonwealth in the event that the state agency is not using it for the express public purpose for which it was granted. The Deputy Commissioner's certification, signed under the pains and penalties of perjury, states that he or she has fully complied with the requirements of Chapter 7. Section 40F1/2 states that "no [disposition agreement] . . . [or] deed, executed by or on behalf of the Commonwealth shall be valid unless such agreement or deed contains" the Deputy Commissioner's certification of compliance. 13 Likewise, section 9(c) of the Act explicitly conditions all disposition of property by the Authority upon, inter alia compliance with "doctrines of law concerned with diversions of lands devoted to public use to other inconsistent public use. . ." Even in the absence of these definitive statutory statements, conformance to the "prior public use" doctrine would be required since the Act contains no explicit statement of which land is being transferred and what public use is being changed. See Opinions of the Justices, 383 Mass. 895, 905 (1981) ("Where the Commonwealth has proposed the transfer of land from one public use to another, the legislature must be explicit concerning the land involved; it must acknowledge the interest being surrendered; and it must recognize the public use to which the land is to be put as a result of the transfer.") See also Board of Selectmen of Braintree v. County Commissioners of Norfolk, 399 Mass. 507, 510 (1987); Bauer v. Mitchell, 247 Mass. 522, 528 (1924), and cases cited. P.D. 12 139 acting independently) seeks legislative authorization for a permanent transfer of real property from the Commission to the Authority, it can also seek to obtain the specific legislative authorization to change the public use of the property if DCPO determines that such authorization is necessary. In short, section 26(b) of the Act does not empower state agencies and commissions to transfer real property directly to the Authority but instead triggers the formal procedures contained in Chapter 7. If the Legislature desires to expedite the Authority's acquisition of property by exempting the Authority from Chapter 7 procedures, the Legislature is of course free to do so. Sincerely, JAMES M. SHANNON ATTORNEY GENERAL 140 fL>. IZ