Opinion
No. 11–P–1304.
2012-07-26
Glen A. BRESNAHAN & others v. CITY OF GLOUCESTER & others (and a companion case ).
By the Court (TRAINOR, SMITH & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from a challenge to betterment assessments associated with a sewer project conducted by the city of Gloucester (Gloucester) that also involved the town of Essex (Essex). The plaintiffs, sixty-one Gloucester residents, sued on the grounds that: relevant enabling legislation was unconstitutional (count I); the assessments were not made in accordance with the law (counts II and III); and that the plaintiffs' applications for abatements of the assessments should have been allowed because the assessments included the costs of a sewer project that did not benefit the plaintiffs' properties (count IV). In various proceedings, each of these claims was rejected.
We affirm. Facts. Gloucester approved the funding and construction of sewer infrastructure in the Little River section of West Gloucester (the Little River project). Gloucester also entered into an intermunicipal agreement with Essex to construct a sewer line that would convey Essex's sewage to Gloucester's treatment facility (the Essex Avenue project). The two projects were completed on roughly the same date, and connect at a single pumping station located in the Little River project before sewage from either reaches a treatment facility. The Essex Avenue project has need of both the Essex Avenue sewer main and the pumping station located in the Little River project in order to convey its sewage for treatment, and could not exist independently. The plaintiffs are property owners who live within the area served by the Essex Avenue project but who dispute the blended assessment because it requires them to pay a share of the cost of the Little River project.
Glen A. Bresnahan initially filed a three-count complaint. This complaint was subsequently amended to add a city defendant, forty-nine additional plaintiffs, and the abatement claim of count IV. Charles V. McIntosh and ten other plaintiffs also filed a separate action solely appealing the denials of abatement requests. (For convenience we shall also refer to the single count of that complaint as count IV.) The two actions were consolidated for joint hearing and possible trial. A judge denied the defendants' motion to dismiss all four counts, but entered a declaration on count I that St.2004, c. 449, did not constitute an unconstitutional delegation of legislative authority, and later denied the defendants' motion for summary judgment on count IV. A different judge of the Superior Court granted the defendants' motion for summary judgment on count II and motion for judgment on the pleadings on count III. At the trial assignment conference, the second judge also questioned whether in light of the previous actions, count IV, the abatement claims, failed to set forth a cause of action on which relief could be granted, and he directed the plaintiffs to file a motion for leave to amend their complaints. The plaintiffs filed a motion to clarify and amend their complaints, which the defendants opposed. The second judge denied the plaintiffs' motion for leave to clarify and amend, and granted the defendants' motion for judgment on the pleadings on count IV. Final judgment entered for the defendants on all counts.
Gloucester proposed to treat the two projects as a single project, and to impose blended betterment assessments to property owners. Pursuant to the Home Rule Amendment, art. 89 of the Amendments to the Massachusetts Constitution (rewriting, inter alia, art. 2, § 8, of the Amendments), Gloucester sought a home rule petition from the Legislature authorizing it to do so. The result was St.2004, c. 449 (Chapter 449).
Pursuant to the authority granted by Chapter 449, Gloucester then assessed a single “blended” betterment to all property owners benefiting from the two projects.
“ Notwithstanding chapters 80 and 83 of the General Laws or any other general or special law to the contrary, the city of Gloucester may assess sewer betterment charges to properties which abut a public sewer constructed by means of any intermunicipal agreement between the city of Gloucester and the towns of Essex or Rockport, even if the public sewer constructed in the city of Gloucester was built by the town of Essex or the town of Rockport. Any such assessment shall not exceed the amount of the adjudged benefit as provided in section 1 of chapter 80 of the General Laws. In the case of the Essex intermunicipal agreement, the benefit shall be determined by including the Essex intermunicipal agreement sewer construction together with the contiguous Little River sewer construction project with the total number of properties sewered being treated as 1 project.” (Emphasis supplied.)
Discussion. Constitutionality of Chapter 449. The plaintiffs appeal the allowance of a motion for judgment on the pleadings upholding the constitutionality of Chapter 449. The parties agree that the material facts are undisputed. In reviewing the grant of a motion for judgment on the pleadings, we accept as true all of the allegations of the complaint and all reasonable inferences which may be drawn from the complaint and which are favorable to the party whose claims have been dismissed. Jones v. Brockton Pub. Mkts., Inc., 369 Mass. 387, 388 (1975).
A three-step test governs challenges to the constitutionality of a special act. First, was there a delegation of fundamental policy decisions, rather than the implementation of legislative policy? Second, does the special act provide adequate direction for implementation? Third, does the special act provide safeguards to prevent the abuse of discretion? Chelmsford Trailer Park, Inc. v. Chelmsford, 393 Mass. 186, 190 (1984). When conducting this analysis, “individual statutory provisions related to the same general area must be read as a whole, to the end that, as far as possible, the entire legislative program will constitute a consistent and harmonious whole.” Id. at 192 (internal quotations, alterations, and citations omitted). See Opinions of the Justices, 427 Mass. 1211, 1216–1219 (1998).
The Legislature did not delegate fundamental policy decisions when it passed Chapter 449. Rather, it implemented existing legislative policy on sewer construction and assessment. Cities and towns are empowered to “lay out, construct, maintain and operate ... sewers ... as they adjudge necessary for the public convenience or the public health,” G.L. c. 83, § 1, as appearing in St.1964, c. 736, § 2, and may assess the costs of such public improvements to the landowners in the area. G.L. c. 80, § 1. G.L. c. 83, §§ 1D, 14, 15, 15A, 15B. Here, Gloucester planned to construct the Essex Avenue and Little River projects. Gloucester decided that it was best to consider the two projects as one single project, leading to a combined or “blended” betterment, and sought the explicit permission of the Legislature to do so.
“The General Court may ... determine the area benefited by a public improvement.... It may vest jurisdiction to determine the area benefited and the amount of benefit in established boards of municipal or other public officers.” Opinion of the Justices, 261 Mass. 556, 606 (1927). See Sears v. Street Commrs. of Boston, 180 Mass. 274, 278 (1902); Wells v. Street Commrs. of Boston, 187 Mass. 451, 455 (1905). The challenge here is that the special act forced the “petitioners [to] pay for changes which did not benefit them,” Sears, supra at 277; that is, Chapter 449 assessed the cost of the Little River project to the Essex Avenue residents as well. However, by statute, the assessment is “not for the benefit conferred, but for the cost of the public improvement.” Id. at 279 (citation omitted). The legislative intent here is clear. General Laws c. 80, § 1, and G.L. c. 83, §§ 14–15, provide that a city or town may build a sewer system and assess the costs according to specific means. Chapter 449 permits the inter-town project to be treated as a single project. These statutes constitute a legislative determination that the benefit is a common one, and that all should share in the cost. See Stepan Chem. Co. v. Wilmington, 8 Mass.App.Ct. 880, 880–881 (1979). See also Smith v. Mayor & Aldermen of Worcester, 182 Mass. 232, 234–235 (1902).
Second, Chapter 449 provides adequate direction for its implementation. It references G.L. cc. 80 and 83, statutes that provide explicit guidance for calculating all sewer assessments. The plaintiffs acknowledge that G.L. cc. 80 and 83 are “well-established statutory standards for determining the amount of sewer betterment assessments,” but argue unconvincingly that the “notwithstanding” clause of Chapter 449 renders those standards inapplicable. However, the “notwithstanding” provision negates only the portions of extant law that come into conflict with the special act, not the entirety of any referenced statute. The use of “notwithstanding” in the introductory sentences of Chapter 449 and other special acts “ ‘clearly signals the drafter's intention that the provisions of the “notwithstanding” section override conflicting provisions'.... ‘[T]he “notwithstanding” clause takes on meaning only when we assume that the new [statute in question] has made some change in the law to which the “notwithstanding” statement is noting a specific exception.’ “ Attorney Gen. v. Commissioner of Ins., 450 Mass. 311, 319–320 (2008) (citations omitted). Since Chapter 449 incorporates the guidelines of G.L. c. 80 and G.L. c. 83, it clearly passes the second element of the Chelmsford test.
Third, given the incorporation of the statutory guidelines of G.L. cc. 80 and 83 for calculating betterment assessment amounts, Chapter 449 contains more than adequate safeguards for controlling abuses of discretion. There is no more potential for an abuse of discretion when determining the betterments for the combined projects allowed by Chapter 449 than there would be in Gloucester's assessment of the betterments for any project within its borders. Chapter 449 therefore meets all three elements of the Chelmsford test, and is constitutional both on its face and as applied to the plaintiffs.
Validity of betterment assessments. The plaintiffs sought a declaration in count II and relief in the nature of certiorari in count III that the sewer betterment assessments were not conducted in accordance with the law, and were therefore invalid. Specifically, the plaintiffs argue that only the city council is empowered to lay out, construct, maintain, and operate a system of sewers, and that the Gloucester city council did not lay out or accept the projects.
“The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Bartle v. Berry, 80 Mass.App.Ct. 372, 377 (2011) (citation omitted). Since the parties agreed that no material facts were in dispute, and that the record before the court permitted disposition of these issues as a matter of law, the judge applied certiorari review for both counts. We review an action in the nature of certiorari under G.L. c. 249, § 4,
only to correct a substantial error of law, evidenced by the record, that if allowed to stand would result in manifest injustice to the plaintiff. Carney v. Springfield, 403 Mass. 604, 605 (1988).
An action in the nature of certiorari is only available “to correct errors in proceedings which are not according to the course of the common law, which proceedings are not otherwise reviewable by motion or by appeal.” G.L. c. 249, § 4, as appearing in St.1973, c. 1114, § 289.
The second judge, in a lengthy and well-reasoned memorandum of decision, ruled that Gloucester had complied with all relevant legal requirements. We agree, for the reasons stated in that decision and substantially for the reasons stated in the defendants' brief at pages 24–37. Whether certain aspects of the implementation were properly vested in the city council or the sewer commissioners, the city council was clearly informed of, reviewed, and appropriated funds for the project from beginning to end. Recordation was made at the registry of deeds by the director of public works and the mayor. The assessments were valid. Cf. Gudanowski v. Northbridge, 27 Mass.App.Ct. 1179, 1180–1181 (1989). Furthermore, the plaintiffs have not demonstrated that they were adversely affected in any way by any of the claimed procedural irregularities. Id. at 1181.
Abatement. The plaintiffs claim error in the denial of the motion to amend their complaints and in the dismissal of the abatement claims (as identically pleaded in the second amended Bresnahan complaint and the McIntosh complaint), arguing that the second judge improperly countermanded the rulings of the first motion judge.
We review the denial of a motion to amend for an abuse of discretion, which discretion should ordinarily be exercised in favor of amendment unless some good reason appears for denying the motion, such as undue delay or prejudice to an opposing party. See Afarian v. Massachusetts Elec. Co., 449 Mass. 257, 269–270 (2007), and cases cited. Here, the motion came before the judge when the cases had been pending for five years. The proposed amendments sought an individualized review of the assessment to each parcel. The abatement counts had previously alleged that the sole basis of the claim was the assessment of the cost of the Little River project to Essex Avenue residents. In 2006, when the Bresnahan plaintiffs had moved to file their second amended complaint, counsel represented that “all of the plaintiffs' claims are identical ... they all assert the same claims.” As the second judge pointed out, “[i]t is far too late in this litigation to permit a change of ... strategy that would significantly postpone the resolution of these cases by opening discovery, two years past the discovery deadline, on issues never before framed by the pleadings or raised by the parties.” As in Afarian, supra, there was no abuse of discretion in the decision to deny the plaintiffs leave to amend.
There was likewise no error in the dismissal of the abatement counts as originally pleaded. The gravamen of the complaints was that the plaintiffs were paying for the Little River project, and that this was wrong. Once the judge held that the combined assessment was lawful, the legal and factual basis of the abatement claims dissipated. There is no allegation in the complaints that Gloucester got its math wrong or erred in applying the statutory criteria contained in G.L. cc. 80 and 83. The prior judge's interlocutory ruling on this point was not dispositive. At the time of that ruling, the summary judgment motions had not been heard and decided, and the judge did not consider the abatement counts in the context of a wholly valid assessment.
Accordingly, the judgment is affirmed.
So ordered.