January 12, 1990 Number 3

January 12, 1990 Number 3 Frederick P. SaJvucci, Secretary Executive Office of Transportation and Construction 10 Park Plaza, Room 3510 Boston, Massachusetts 02 1 1 6-3969 Dear Secretary Salvucci: You have asked, on behalf of the Massachusetts Department of Public Works (""Department"), whether the procurement of design services for what is known as the "'Parcel 7" portion of the Central Artery/Third Harbor Tunnel Project (Artery/Tunnel Project) is subject to the jurisdiction of the Designer Selection Board (DSB). For the reasons set forth below. 1 conclude that the various ele- ments of the Parcel 7 facility all fall within the statutory exemption from DSB jurisdiction created by G.L. c. 7, § 39A(gl/2). The Artery/Tunnel Project is a largely federally-funded Interstate Highway project of the Department. A primary feature of the Artery/Tunnel Project is the depression and widening of the Central Artery (1-93) between South Station and North Station along approximately the same alignment as the existing elevated Central Artery. In connection with the Artery/Tunnel Project, the Department proposes to develop a site commonly known as Parcel 7. The 58,000 square foot site is currently used for surface parking and is structureless except for an en- trance to the Massachusetts Bay Transportation Authority's Haymarket Station located along the site's western edge. Parcel 7 is located in the Haymarket area of downtown Boston just west of the Central Artery, and it is bounded by Congress Street on the west. New Sudbury Street on the north. Blackstone Street on the east, and Hanover Street on the south. The site is located across the Central Artery from the North End community and directly adjacent to the Blackstone Block, an historic district which is listed on the National Register of Historic Places. The Department proposes a three-phased design and construction project on the site. According to your description. Phase A will include a building to be located above -grade along the western portion of the site. This building will generally consist of a public marketplace on the ground floor topped by a three- story public parking garage.' Phase B, which will occupy the eastern portion of the site adjacent to the Central Artery, will consist of a ventilation facility which will serve the tunnel through which the depressed Central Artery will pass. The facility will include a major below-grade structure to accommodate mechanical and electrical space for exhaust and fresh air intake fans and associated ducts and equipment. The substructure will support above-ground ventilation exhaust stacks and fresh air intake ducts and louvers. Finally, in order to address aesthetic and urban design concerns relating to the above-ground ventilation stacks, a final phase of the construction. Phase C, will consist of a five to six-story '"skin" to wrap around the above-ground features of the ventilation facility. The skin along the southeast quadrant of the site closest to the Blackstone Block will enclose the exhaust stacks and will include approxi- mately 45,000 square feet of usable floor area, the ground floor of which will be 18 r.u. \i devoted to an extension of the public marketplace of Phase A, and the upper stories of which will be used for office space. The skin along the northeast quadrant of the site will consist of a wall encasing air intake louvers serving the fresh air supply system of the ventilation facility. The Department proposes to use its own procedures for the selection of designers for the Parcel 7 project. The Inspector General, however, whose views I have solicited,- has taken the position that the entire Parcel 7 facility is subject to the jurisdiction of the Designer Selection Board, and that it is the DSB which must select designers for the Parcel 7 facility. The designer selection laws are contained in G.L. c. 7, §§ 38A1/2 through 380. These provisions create the Designer Selection Board.^ With certain limitations not pertinent here, the DSB has jurisdiction over the selection of all designers and others performing design services in connection with any "building project" for a public agency. See G.L. c. 7, § 38C. There is no question that the Department is a public agency whose building projects would be subject to DSB jurisdiction. If the Parcel 7 facility, therefore, or any part of it, is a "building project," then designer selection for the Parcel 7 facility is subject to the jurisdiction of the DSB. A "building project" for purposes of chapter 7 is defined as, a capital facility project undertaken for the planning, acquisition, design, construction, demolition, installation, repair or mainte- nance of any building and appurtenant structures, facilities and utilities, including initial equipment and furnishings thereof; pro- vided, however, that appurtenant buildings or structures which are required to be constructed as integral parts of the development of sewer, water and highway systems shall not be subject to section thirty-eight C. G.L. c. 7, § 39A(gl/2) (emphasis added). Under this definition, a building project includes any "capital facility project" undertaken for the design and construction of a "building" with the exception of those buildings within the proviso highlighted above. That proviso, which I shall call the designer selection proviso, expressly exempts from the definition of the term "building project" for the purposes of DSB jurisdiction under section 38C, any "appurtenant buildings or structures which are required to be constructed as integral parts of the development of . . . highway systems." For the reasons I now discuss, I conclude that all of the elements of the Parcel 7 facility fall within the terms of this proviso and are thus exempt from the jurisdiction of the DSB. In light of this conclusion, it is unnecessary for me to determine whether the elements of the Parcel 7 project, taken separately or together, constitute a "capital facility project" for the design and construction of a "building."* I begin my analysis with an overview of the statutory history and purpose of the designer selection law. The designer selection law (G.L. c. 7, §§ 38A1/2-380) was enacted by the Legislature as part of St. 1 980, c. 579. Chapter 579 was a sweeping reform measure resulting from recommendations of the Special Commission Concerning State and County Buildings, commonly known as the Ward Commis- sion. One of the central findings of the Ward Commission was a pattern of waste, fraud and abuse in the award of contracts for the design of public buildings. See Final Report to the General Court of the Special Commission Concerning State and County Buildings (December 31, 1980) (Ward Commission Report), Vol. 7. at 187. The purposes of the designer selection reforms, as conceived by the Ward P.D. 12 19 Commission and stated in G.L. c. 7, § 38A1/2, are generally to prevent corruption and waste in the awarding of design contracts for public building projects.^ As a counter-weight to this legislative purpose, it must be recognized, however, that certain public building projects constructed in connection with public works projects, including highway systems, were meant to be exempted by the designer selection proviso from the designer selection requirements of the chapter 579 legislation. Although the Ward Commission Report does not expressly advocate such an exception, the corruption which prompted the Ward Commission inves- tigation was not found in what is often referred to as "horizontal'" construction, that is, water, sewer, highway and other public works construction, but rather in buildings ("vertical" construction) not related to such projects.*" Moreover, a task force of the Inspector General's office which reviewed the chapter 579 legislation approximately two years after its enactment, advocated preserving and indeed strengthening the exemption from DSB jurisdiction of buildings related to sewer, water, and highway systems. See Final Report of the Chapter 579 Task Force (February 1, 1983) (Task Force Report). In the Task Force Report it was noted that entities such as the Department of Public Works which performed public works construction already had their own administrative procedures which gov- erned the design and construction of horizontal projects. Id. at 159. The Task Force rejected proposals to subject horizontal projects to chapter 579-type safe- guards, noting the view of some that such safeguards were unnecessary because "public horizontal design and construction projects are currently governed by agency and federal regulations which are often more stringent than those man- dated by Chapter 579 for vertical projects." Id. at 160. The Task Force decided not to recommend changes without further study. Instead, the Task Force concluded that "the apparent diversity and complexity of existing controls over horizontal construction suggested that careful research on public horizontal design and construction processes is necessary in order to provide a basis for informed decisions regarding application of Chapter 579-type safeguards to horizontal projects." Id. at 160. The Legislature adopted these recommendations by pre- serving, in subsequent amendments to the designer selection law, the exemption for buildings related to sewer, water and highway systems, and indeed by extend- ing that exemption in the manner recommended by the Task Force. It is apparent, therefore, that while the Legislature was deeply concerned with the pattern of corruption in the design and construction of public buildings, it svished to tread with caution in the area of buildings related to horizontal con- struction projects such as sewer, water and highway systems. The designer selec- tion proviso reflects an attempt by the Legislature to balance its concern with preventing corruption against this desire to leave intact, at least for the present, existing controls over the designer selection for horizontal construction and related buildings.^ In order to determine how that balance is struck, I must rely on the words of the statute, which, according to basic principles of statutory con- >truction, must serve as the primary indicator of its meaning. See Nantucket Conser- 'ation Foundation, Inc. v. Russell Management, Inc., 380 Mass. 212, 214 (1980). I turn then to the words of the designer selection proviso which exempt from [he jurisdiction of the DSB "appurtenant buildings or structures which are re- quired to be constructed as integral parts of the development of . . . highway iystems."*^ I note first that the exemption applies to "appurtenant buildings or structures." The term "appurtenant" in its ordinary sense is defined and used generally to describe something which stands in the relationship of an incident to 20 PD. 12 a principal. See generally 6 C.J.S. Appurtenant 139-140 (1975). See also Assessors ofLawrence v. Arlington Mills, 320 Mass. 272 ( 1 946) (for purposes of determining whether land and water rights constitute a taxable unit, "appurtenant" construed to mean "joined ... by necessity or use"). The subordinate element need not actually be a part of the principal element but it usually serves an essential need or relationship rather than a mere convenience. 6 C.i.S. Appurtenance 134, 135 (1975). Words such as "accessory," "incident," "adjunct," "appended," or "an- nexed" are frequently used synonymously with "appurtenant." Black's Law Dic- tionary 94 (5th ed. 1979); Webster's Third New International Dictionary 107 (1981). These definitions suggest that the Legislature, by exempting not just "buildings" but "appurtenant buildings or structures" meant that, where a build- ing project consists of a principal element together with an incidental but neces- sary adjunct, both the principal element and its adjunct are exempt from DSB jurisdiction so long as the principal element is "required to be constructed as an integral part of the development of highway systems." As I now discuss, construction of this phrase leads me to conclude that Phase C, the office space and wall area that will surround the ventilation facility (Phase B), is "appurtenant" to that ventilation facility, and that the two phases, there- fore, together constitute "appurtenant buildings or structures" which fall within the designer selection proviso by virtue of the undisputed functional necessity of the ventilation facility to the operation of the Artery/Tunnel Project. The Inspector General does not dispute, nor could he, that the ventilation facility (Phase B) is required to be constructed as integral to the development of the Artery/Tunnel Project. The facility is necessary to ventilate the tunnel seg- ment between North and South Stations and is therefore functionally necessary to the operation of the tunnel. The ventilation facility will include, in addition to a major below-ground structure to house exhaust and intake fans and equipment, an approximately 125 foot high above-ground exhaust duct and a fresh air intake structure. As this facility will be located in the heart of downtown Boston, adja- cent to the North End community and the historic Blackstone Block, it must be enclosed in some way that will render it consistent with its context.'" The pro- posed Phase C building is, as you have described it, necessary to accomplish this purpose. It will minimize the visual impact of the ventilation exhaust ducts on the North End community and make them architecturally compatible with the adja- cent historic buildings of the Blackstone Block." The area of the structure that will include office space is, as you have proposed it, reasonably related in size and scale to the purpose of enclosing the exhaust stacks passing through it. It is also to be located at the corner of the site closest to the Blackstone Block where inte- gration of the Parcel 7 facility through some human-oriented, aesthetically com- patible use is most necessary. In my view, this office space is no more than a necessary part of the skin for the ventilation facility. As such, the office space is properly viewed as appurtenant to the ventilation facility.'*^ The ventilation facility, appurtenant office space and wall surrounding it, in my view, collectively constitute "appurtenant buildings or structures which are required to be constructed as integral parts of the develop- ment of . . . highway systems." The more difficult question is whether Phase A, which involves a three-story garage with a marketplace on the ground floor, fits within the designer selection proviso. This phase will be constructed first on the Parcel 7 site and operate as an independent facility for approximately six years. Although this garage/market P.D. 12 21 building will eventually share a common wall with the ventilation/office building, I do not regard the building as so functionally or operationally connected to the ventilation/office building that it can be said to be "appurtenant"" to that building. If the Rhase A garage/market building fits within the designer selection proviso, then it must do so on its own. independently of any relationship to the ventilation/ ' office building. 1 conclude for the following reasons that it does. j My analysis requires me to explore in greater detail the meaning of the phrase I in the designer selection proviso which exempts buildings "required to be con- structed as integral parts of the development of . . . highway systems." In this regard, I note that the words "required" and "integral"" convey the concept of necessity. To "require" is "to demand as necessary or essential,"" or "to have a compelling need for."" See Webster"s Third New International Dictionary 1929 ( 1 98 1 ). "Integral" is defined as "essential to completeness."' Id. at 1 1 73. Buildings in order to be exempt, therefore, must be necessary to the development of the highway system. This, however, does not mean, as the Inspector General argues, that only buildings which are functionally necessary to the operation of a com- pleted highway are exempt. The exemption includes not only buildings which are necessary in an engineering sense to a highway, but also buildings which are necessary to "the development'" of highway systems. The word "development" connotes a process over time. See Webster's Third New International Dictionary 618 (1981) ("development" is the "act, process, or result of developing,"" "a gradual unfolding by which something is developed""). The class of buildings kvhich are necessary to the development of a highway system is, in my view, broader than the class of buildings necessary to a finished highway, and may include buildings necessary to enable the process of building a highway to go forward. My reading of the designer selection proviso is supported by a review of the statutory context in which the proviso is found. As I have already noted, a 'building project" which is subject to DSB jurisdiction includes (with the excep- ;ion of building projects falling within the proviso) any "capital facility project"" for :he construction and design of a building. G.L. c. 7, § 39A(gl/2). The term "capital facility project"" includes a broad range of public construction and improvement projects, but specifically excludes from that definition "a highway improvement >uch as a highway, bridge, or tunnel." See G.L. c. 7, §§ 39A(f ) (defining "capital facility") and 39A(g) (defining "capital facility project"). The specific examples of i "highway, bridge or tunnel" which serve to illustrate the general term "highway mprovement" suggest that the exclusion for a "highway improvement" is con- ined to projects bearing a direct relation to the operation of a completed high- ^'ay. See Haas v. Breton, 388 Mass. 591, 595-596 (1979) (general term in a statute :akes meaning from the context in which it is employed), and cases cited. If the designer selection proviso were also limited to buildings directly related to the 3peration of a completed highway, it would be mere surplusage because such Duildings are already exempted from DSB jurisdiction by virtue of their not being 'capital facility projects."' In order to be faithful to the principle that, where possible, every word of a legislative enactment is to be given force and effect {see United States Jaycees v. Massachusetts Commission Against Discrimination, 391 Vlass. 602 [1984]), the designer selection proviso must be construed to include a broader class of buildings than the class comprised in the exemption for "highway mprovements." 22 *^-^ 1^ Turning to the application of the designer selection proviso to Phase A of the Parcel 7 facility, I note first that a parking garage and certainly retail space, at least where not built to directly service motorists along the highway, are not related directly in their function to the operation of a completed highway. I conclude, however, that the Phase A marketplace and garage is, in the circum- stances that you have described to me, necessary to enable the process of building the Artery/Tunnel Project to go forward and is for this reason necessary to the "development" of the highway system of which the ArteryA'unnel Project is a part. The development of a modern highway is a complex process, involving build- ings and structures not thought generally to have been a part of the construction of a simple roadway. See Opinion of the Justices, 330 Mass 713, 721-723 (1953). Particularly where, as here, construction is to take place in a densely populated urban area, the disruption and displacement of ordinary activities of urban life is inevitable. Appropriate measures to mitigate that disruption are a necessary part of the development of the modern highway. Indeed, in this case, they are required as a condition of federal funding.'-' The garage and retail space you seek to build in Phase A of Parcel 7 is specifically conceived as a mitigation measure designed to alleviate disruption caused by the development of the Artery/Tunnel Project. Phase A is planned to be built in advance of the construction of the Artery/Tunnel Project construction so that it will be available for the replacement of lost parking and retail space at the point when those losses occur. As to the parking, the 350 spaces planned for Phase A will replace the same number of public parking spaces which it is estimated will be lost under the existing elevated Central Artery during construc- tion of the Artery/Tunnel Project. The location of those spaces at Parcel 7 is necessary because that site is the only feasible and available site adjacent to the area where the spaces will be lost. Similarly, the retail space is envisioned as a place for the relocation of the adjacent North End merchants and pushcart vendors who wil be displaced by the construction of the Artery/Tunnel Project. In short, these are mitigation measures which are narrowly conceived to address specific disruption caused by the development of the Artery/Tunnel Project. As such, I conclude that they are required to be constructed as an integral part of the development of the Artery/Tunnel Project and that the Phase A garage/market building is therefore exempt from DSB jurisdiction. In conclusion, I note that, even though Parcel 7 is exempt from the jurisdiction of the DSB, the designer selection procedures which the Department proposes for Parcel 7 provide the same types of safeguards as the procedures used by the DSB.'^ Moreover, federal regulators who will be providing federal funds for the construction of Parcel 7 will provide oversight, and you have informed me that the Division of Capital Planning and Operations (DCPO), the state agency created by the Ward Commission legislation to oversee public building projects, is involved in the project.''' It is to these safeguards that the Legislature has generally chosen to subject building projects such as Parcel 7 which are required to be constructed as integral to the development of highway systems. In sum, therefore, it is my opinion that all of the elements of the proposed Parcel 7 facility fall within the designer selection proviso of G.L. c. 7, § 38A(gl/2), and that designer selection for the facility is not within the jurisdiction of the Designer Selection Board. , P.D. 12 23 Very truly yours, JAMES M. SHANNON ATTORNEY GENERAL ' Construction of this phase will also require reconstruction and improvements of the Haymarket Station entrance currently on the site both to integrate it within the new Parcel 7 building complex and to make it accessible to the handicapped. I - The Inspector General is charged with the prevention and detection of fraud, waste and abuse in the expenditure of public funds in public construction. G.L. c. 12A, § 7. ^ The DSB is an eleven-member, independent, unpaid board, a majority of whose members are architects and engineers. G.L. c. 7, § 38B. For projects within its juris- diction, the DSB is required to advertise for designers, setting forth specific informa- tion pertaining to the project and the qualifications required of applicants. G.L. c. 7, § 38D. The DSB reviews all applications in accordance with the written criteria and selects at least three finalists for every contract award. The DSB is required to rank the finalists and prepare a written record of the reasons for its ranking. G.L. c. 7, § 38F(c). The selection of a designer other than the first ranked designer must be justified in writing. G.L. c. 7, § 38G{a). ^ The term "capital facility project" is defined in G.L. c. 7, §§ 39A(f ) and (g). The term "building" is not defined in chapter 7 but is generally construed in its ordinary sense. See Modem Continental Construction Co. v. Lowell, 291 Mass. 829, 839 (1984), and cases cited. "" G.L. c. 7, § 38A1/2 states that the purpose of the designer selection law is to: ensure that the Commonwealth receives the highest quality design services for all its public building projects; provide for increased confidence in the procedures followed in the procurement of design and design related services; promote consistency in the meth- ods of procurement of design and design related services for all public building projects in the Commonwealth; foster effective broad-based participation in public work within the design professions; provide safeguards for the maintenance of the integ- rity of the system for procurement of designers' services within the Commonwealth. ^ See generally Ward Commission Report, Vol. 6 (Construction Defects/State and County Buildings). It was corruption and mismanagement in the design and construc- tion of buildings, such as schools and housing projects, which were unrelated to horizontal public works projects which led to the establishment of the Ward Commis- sion and which served as the Commission's principal focus. ^ The original chapter 579 legislation had limited the exemption to buildings "re- quired to be constructed as integral parts of the development of sewer, water and highway systems by a state agency.'' St. 1980, c. 579, § 7 (emphasis added). The exemption, as amended, is no longer limited to state agencies, and therefore includes municipal, county, and other public agency projects. St. 1984, c. 484, §7. 24 P-D. 12 "^ In this regard, I note that the designer selection law is quite different from the public bidding laws from which the Inspector General seeks to draw an analogy. The Inspec- tor General relies on Modem Continental Construction Co., Inc. v. Lowell, 391 Mass. 829 (1984), a case which involved a determination whether a sewer construction project which included a related building was exempt from the bidding requirements for public buildings contained in G.L. c. 149, §§ 44A-44H. Public works projects not involving "buildings" were subject to the less stringent bidding requirements of G.L. c. 30, § 39M, governing contracts for public works. It was argued that, since the building involved in the project (a pumping station) was merely incidental to the sewer project as a whole, the project should be exempt from the bidding requirements of chapter 149 regarding buildings. The Court rejected this argument. Rather, the Court concluded that, since the Legislature had not clearly exempted such projects from the requirements of chapter 149, no exemption could be inferred based on the predom- inant public works character of the project. Id. at 838-840. The clear basis for the decision in Modem Continental was the Legislature's failure to expressly exempt public works projects involving buildings from the requirements of chapter 149. Here, in sharp contrast, I need not infer any exemption to conclude that the elements of Parcel 7 are exempt from DSB jurisdiction. The designer selection law, unlike chapter 149, expressly provides in the designer selection proviso an exemption for buildings which are related to highway and other public works projects. '' I note parenthetically that the words of the proviso did not originate with chapter 579. Similar language first appeared in 1953 as an exemption from the jurisdiction of the director of building construction, an officer who, at that time, had control and supervision of certain state "building construction projects." See G.L. c. 7, § 30A, as appearing in St. 1953, c. 612, § 5. See also G.L. c. 7, § 30B, as appearing in St. 1953, c. 612, § 5 (governing designer selection for building projects under the supervision and control of the director of building construction). Although, the language of that exemption remained substantially intact through several amendments of the statutes governingthedirectorof building construction, 5ef St. 1969, c. 704, §3, St. 1975, c. 311, § 2, there appears never to have been any judicial construction of the exemption. '" This requirement has a legal as well as a practical component. Significant historic sites are afforded special protections under state and federal law which compel project proponents to identify, analyze, avoid and/or mitigate the effects of highway construction on historic sites. See 16 U.S.C. § 470f (National Historic Preservation Act); 49 U.S.C. § 303 (Department of Transportation Act); 23 U.S.C. § 138 (Federal Aid Highway Act); G.L. c. 9, §§ 26-27C (Massachusetts Historical Commission). " The Blackstone Block consists of small seventeenth to nineteenth century brick buildings (including the historic Union Oyster House) which are organized around meandering alleyways. Because of the proximity of the southern edge of the Parcel 7 site to the Blackstone Block as well as to the nearby Faneuil Hall and Haymarket marketplaces, it draws considerable pedestrian traffic. '- I do not mean to suggest that an office building should always, or even usually, be viewed as an appurtenance to structures with a direct highway use. In my view, it is the unique location of the ventilation facility in an historic downtown district that makes the use of so elaborate a skin as an office building an appurtenance to the ventilation facility. P.D. 12 25- '^ Federal regulations on highway projects require the development of mitigation measures appropriate to the undertaking and specific commitments in writing to fulfill them. See 23 C.F.R. § 771. \25id){\); see also 23 C.FR. §§ 771.1()6(d) and 771.109(b). The Department's commitments to the mitigation measures at Parcel 7 are reflected in (1) the approved Final Environmental Impact Statement (FEIS) for the Artery/ Tunnel Project at 249-252, (2) the Record of Decision of the Federal Highway Ad- ministration on the FEIS dated January 27, 1986, and (3) the federal-aid project agreement for the Parcel 7 facility (No. IR-93-l[159]) dated April 26, 1989. '** They include public advertisement in the Central Register and newspapers of general circulation, the filing of pre-application information and qualihcations, pre- established written criteria for selection, the appointment of an experienced selection panel of public employees composed primarily of individuals trained profession- ally as architects and engineers, guidelines for ranking prospective consultants, and a written record. '"^ With certain exceptions, the DCPO exercises "control and supervision of all build- ing projects undertaken by any state agency . . . ." G.L. c. 7, § 40A. You do not question the jurisdiction of DCPO over the Parcel 7 project, and this Opinion, there- fore, has not addressed any issue regarding that jurisdiction. 26 PD. 12