Opinion
14-P-1044
06-18-2015
MATT BAUN & others v. BOARD OF SELECTMEN OF ASHLAND & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs, fourteen residents of the town of Ashland, seek to prevent the town's board of selectmen (board) from consummating the sale of a parcel of property to defendant RHW Development, LLC (RHW), for the purpose of constructing affordable housing for elderly, low or moderate income persons. The plaintiffs allege that the sale violates G. L. c. 40, §§ 3 and 15A, governing the town's power to convey the property, the Uniform Procurement Act, G. L. c. 30B, § 16, and the terms of the town meeting article authorizing the sale. They seek a declaration that the purchase and sale agreement with RHW is void, as well as injunctive relief to prevent the town from consummating the agreement or amending or extending its terms. A Superior Court judge dismissed the complaint for lack of jurisdiction under Mass.R.Civ.P. 12(b)(1), 365 Mass. 754 (1974), holding that the plaintiffs lacked standing to pursue their claims.
Because "there is no general equity jurisdiction 'to entertain a suit by individual taxpayers to restrain cities and towns from carrying out invalid contracts, and performing other similar wrongful acts,'" Pratt v. Boston, 396 Mass. 37, 42 (1985) (Pratt), quoting from Fuller v. Trustees of Deerfield Academy, 252 Mass. 258, 259 (1925), and because the plaintiffs have not demonstrated any statutory foundation for standing, we affirm.
a. Ten taxpayer statute. We agree with the motion judge that the ten taxpayer statute, G. L. c. 40, § 53, was inapplicable because the challenged action of the board -- selling a parcel of land -- does not involve raising or spending money or incurring obligations within the meaning of the statute.
The ten taxpayer statute "provides a mechanism for taxpayers to enforce laws relating to the expenditure of tax money by the local government." LeClair v. Norwell, 430 Mass. 328, 332 (1999). Acting as private attorneys general to "enforc[e] laws designed to protect the public interest," Edwards v. Boston, 408 Mass. 643, 646 (1990), a taxpayer group may invoke the statute when a town is "about to raise or expend money or incur obligations purporting to bind said town." G. L. c. 40, § 53, as appearing in St. 1969, c. 507.
The plaintiffs do not allege that the town will expend any taxpayer money by amending or closing on the purchase and sale agreement, but rather contend that the town will "incur obligations" if the sale goes forward. However, the statute applies only to obligations that bind the town to make expenditures that the taxpayers will be called upon to fund. See Richards v. Treasurer & Recr. Gen., 319 Mass. 672, 676-677 (1946). In Clark v. Mayor of Gloucester, 336 Mass. 631, 632 (1958), the plaintiffs alleged that "the city is about to incur an obligation to convey a certain parcel of land." Responding to this allegation, the court held, "As the city is not about to expend any money or incur any obligation the ten taxable inhabitants statute, § 53, has no application." Ibid. For the same reason, § 53 does not apply here.
The plaintiffs' reliance on LeClair v. Norwell, 430 Mass. 328 (1999), and Fordyce v. Hanover, 457 Mass. 248 (2010), is misplaced. Both of those cases concerned public school construction projects, which obliged the towns to spend considerable sums of tax dollars.
b. Declaratory judgment. The motion judge correctly observed that the plaintiffs cannot rely on G. L. c. 231A, § 1, to challenge the validity of official acts without independent standing to sue the town. See Pratt, 396 Mass. at 42-43; Ten Persons of the Commonwealth v. Fellsway Dev. LLC, 460 Mass. 366, 380 (2011). To proceed, "[t]he petitioning taxpayers [must have an] interest of their own apart from that of all other taxpayers." Spear v. Boston, 345 Mass. 744, 747 (1963). See Povey v. School Comm. of Medford, 333 Mass. 70, 71-72 (1955) ("Such rights as taxpayers have are given to them by the express provisions of c. 40, § 53, and must of course be exercised in the manner there provided").
The plaintiffs' status as voters -- even as voters who signed a petition to include an article on the special town meeting warrant to prevent the board from further extending the closing date of the purchase and sale agreement -- is not a sufficiently definite interest to confer standing. "A party has the 'definite interest' necessary to confer standing . . . if he has suffered, or is in danger of suffering, legal harm." Benefit v. Cambridge, 424 Mass. 918, 921 (1997), quoting from Pratt, supra at 42. The plaintiffs are not in danger of suffering personal injury.
Alternatively, the plaintiffs allege that at least two of them live sufficiently close to the parcel to give them standing under G. L. c. 40, § 17, to challenge the grant of the permit by the town's zoning board of appeals for RHW to develop the property. This fact, however, does not confer independent standing to obtain declaratory relief. See Iodice v. Newton, 397 Mass. 329, 333-334 (1986). Those plaintiffs of course may pursue their remedies under G. L. c. 40, § 17, which, the amended complaint alleges, they are doing.
c. Mandamus. "Where a plaintiff seeks mandamus relief, the question of standing is one of critical significance. . . . [O]nly persons who have themselves suffered, or who are in danger of suffering, legal harm can compel the courts to assume the difficult and delicate duty of passing upon the validity of the acts of a coordinate branch of the government." Perella v. Massachusetts Turnpike Authy., 55 Mass. App. Ct. 537, 539 (2002) (Perella) (citations and quotations omitted). Plaintiffs lacking a particularized, personal interest in a matter -- like the plaintiffs here -- may sometimes proceed under the "'public right doctrine', which allows a citizen to bring an action for relief in the nature of mandamus to 'procure the enforcement of a public duty.'" Tax Equity Alliance for Mass. v. Commissioner of Rev., 423 Mass. 708, 714 (1996), quoting from Sears v. Treasurer & Recr. Gen., 327 Mass. 310, 315 (1951).
To invoke the public right doctrine, however, the plaintiffs must seek to enforce "clear and unequivocal duties." Perella, supra at 540. We agree with the motion judge that the duties of the board that the plaintiffs seek to enforce are not of the clear-cut administrative or ministerial variety to which the courts have applied the doctrine. See ibid. (collecting cases).
The plaintiffs allege that the board violated the authority granted to it by the town meeting because it entered into a purchase and sale agreement with a for-profit entity and extended the deadline for closing the sale. Although the town meeting authorized the board to sell or lease the parcel "to one or more not-for-profit organizations," the article gave the board considerable discretion in how to carry out the sale. The article provided, "[S]aid transfer and use shall be subject to such terms and conditions and for such consideration as the Board of Selectmen, in consultation with the Ashland Affordable Housing Committee, deems to be consistent with the above purpose, the interests of the Town and applicable laws and regulations, or pass any vote or take any action relative thereto." The plaintiffs seek to reverse discretionary decisions within the board's authority. Such duties cannot be enforced by mandamus. See Perella, supra at 541. The motion judge's reliance on Statewide Towing Assn. v. Lowell, 68 Mass. App. Ct. 791 (2007), in which an association of towing contractors sought a declaration that the city's towing contracts were void and contrary to public policy, was apt. "[A]s [the plaintiffs are] not seeking to compel the [town] to perform a duty required by law (but rather seeking to invalidate a contractual provision to which [they are] not a party), [they do] not have separate standing under the public rights doctrine." Id. at 795.
As the plaintiffs attached the town meeting article to their complaint, we are free to consider it in evaluating the defendants' motion to dismiss under Mass.R.Civ.P. 12. See Mass.R.Civ.P. 10(c), as amended, 456 Mass. 1401 (2010); Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000).
Judgment affirmed.
By the Court (Berry, Milkey & Massing, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: June 18, 2015.