Opinion
No. 16–P–425.
12-19-2016
Sarah QUIGLEY & others v. CITY OF NEWTON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs, twelve residents of Newton, appeal from entry of judgment following the allowance of Newton's motion to dismiss. See Mass.R.Civ.P. 12(b)(1) and (6), 365 Mass. 754 (1974). The plaintiffs contend that the judge erred in determining they have no standing under the ten taxpayer statute. See G.L. c. 40, § 53. We affirm.
Background. The plaintiffs challenged Newton's selection of Austin Street Partners (ASP) for a mixed-use redevelopment of a parking lot in the Newtonville section of the city, claiming that Newton's actions violated the Uniform Procurement Act. See G.L. c. 30B, § 16. In allowing Newton's motion to dismiss, the judge ruled that the plaintiffs did not demonstrate standing under G.L. c. 40, § 53, which permits actions to be brought by at least ten taxpayers when a city is "about to raise or expend money or incur obligations" for an illegal purpose.
The ten taxpayer statute, G.L. c. 40, § 53, as appearing in St.1969, c. 507, states in pertinent part:
"If a town ... or any of its officers or agents are about to raise or expend money or incur obligations purporting to bind said town ... for any purpose or object or in any manner other than that for and in which such town ... has the legal and constitutional right and power to raise or expend money or incur obligations, the supreme judicial or superior court may, upon petition of not less than ten taxable inhabitants of the town ... restrain the unlawful exercise or abuse of such corporate power."
Discussion. 1. Standard of review. "We review the allowance of a motion to dismiss de novo." Curtis v. Herb Chambers I–95, Inc., 458 Mass. 674, 676 (2011). "Factual allegations [in the complaint] must be enough to raise a right to relief above the speculative level." Iannacchino v. Ford Motor Co ., 451 Mass. 623, 636 (2008), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[W]e examine the sufficiency of the plaintiff's claims in light of the principles that the allegations of the complaint, as well as such inferences as may be drawn therefrom in the plaintiff's favor, are to be taken as true." Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995).
On a motion to dismiss, we may consider documents which were attached to and made part of the pleadings. Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000). However, "[w]e cannot base our decision on facts not contained in the record." Love v. Massachusetts Parole Bd., 413 Mass. 766, 768 (1992). The plaintiffs have attempted to include in the record materials which were not appended to the pleadings and were not presented to the motion judge, as well as documents which came into existence after the case was decided in the trial court. None of these documents may be considered on appeal. Ibid.
2. Standing. "There is no general jurisdiction in equity in this commonwealth ‘to entertain a suit by individual taxpayers to restrain cities and towns from carrying out invalid contracts, and performing other similar wrongful acts.’ " Fuller v. Trustees of Deerfield Academy & Dickinson High Sch., 252 Mass. 258, 259 (1925), quoting from Steele v. Municipal Signal Co., 160 Mass. 36, 38 (1893). The ten taxpayer statute serves as "a vehicle whereby concerned taxpayers may enforce laws relating to the expenditure of their tax money by local officials." Edwards v. Boston, 408 Mass. 643, 646 (1990). "[A] petition by taxpayers may be maintained only when it is brought within the provisions of the statute." Richards v. Treasurer & Recr. Gen., 319 Mass. 672, 675 (1946).
For this reason, we reject the plaintiffs' contention that there is an implied cause of action under the Uniform Procurement Act. Not only are taxpayer suits highly circumscribed, but the Uniform Procurement Act contains no language conferring a private right of action. See generally Tyler v. Michaels Stores, Inc., 464 Mass. 492, 505 (2013) (a statute must be interpreted in accordance with its plain meaning).
The plaintiffs assert that Newton's ninety-nine year lease of the parking lot constitutes raising money, because ASP would pay rent and make contributions toward infrastructure improvements for the purposes of the redevelopment project. "The words ‘to raise money’ as applied to a municipality commonly means to raise by taxation." Dowling v. Assessors of Boston, 268 Mass. 480, 484 (1929). The preliminary term sheet reached between Newton and ASP in May, 2015, attached to plaintiffs' complaint, offers no suggestion that the money to be received by Newton impacts the plaintiffs as taxpayers in any way.
The limited application of the term "raising money" in G.L. c. 40, § 53, was underscored in Pratt v. Boston, 396 Mass. 37 (1985). There, the city and a cultural nonprofit entered into contracts over the latter's sponsorship of a concert series on the Boston Common. Pratt, supra at 40. The city received $135,000 as a payment under the sponsorship agreement. Id. at 41. The court held that this did not constitute raising money because the conduct in question was not a form of taxation. Id. at 44. Similarly, Newton is expected to receive over $1 million in rent from ASP, as well as contributions for infrastructure development, but nothing in the pleadings suggests that Newton is "about to raise ... money" by taxation. G.L. c. 40, § 53.
The plaintiffs contend that Newton is "about to ... expend money" within the meaning of G.L. c. 40, § 53, because Newton will incur infrastructure improvement costs related to the redevelopment. These costs include underground wiring, water and sewer improvements, and contingent liabilities such as environmental clean-up costs and traffic-related mitigation.
In order to warrant relief under G.L. c. 40, § 53, "there must be allegations of actual vote to raise or to pay money or to pledge credit for an illegal purpose." Fuller, 252 Mass. at 260. See Richards, 319 Mass. at 677 (challengers "must show such a relation between themselves and the proposed expenditure or incurring of obligations that their pecuniary interests will be adversely affected unless the contemplated action is enjoined"). There are no allegations to this effect in the complaint. One of the attachments to the complaint states that the city will meet with the developer to determine infrastructure costs and determine cost sharing as between Newton, the developer, and third parties. Reimbursed expenditures do not provide a basis for standing under § 53. See Richards, supra. There is no concrete allegation that unreimbursed contingent expenditures, if any, will have a negative impact on the pecuniary interests of the taxpayers. See Fuller, supra ("[T]here must be allegations of actual vote to raise or to pay money or to pledge credit for an illegal purpose. A well grounded expectation of such conduct is not enough to confer jurisdiction under the statute").
The complaint failed to allege facts sufficient to establish standing, and was therefore properly dismissed. See Iannacchino, 451 Mass. at 636.
Judgment affirmed.