Taxpayer Lawsuit Regarding Wynn,MBTA Land Sale is Dismissed

A Suffolk Superior Court judge ruled to dismiss a key Taxpayer Lawsuit against the MBTA and Wynn Everett regarding the purchase of parcels of land at the Everett MBTA facility – parcels that help create a new Everett-only entrance to the casino site and eliminate Boston’s land claim for host community status on the casino.

Judge Janet Sanders of the Civil Court’s Business Litigation Division had heard complaints on the case from both sides of the issue on Sept. 4 in a long hearing.

At the hearing, she hinted –after being pressed by an attorney for the taxpayers – that she would probably rule to dismiss the case.

On Monday, a decision was made public that she had done just that.

Judge Sanders explained that in her view the defendants – some 40 aggrieved taxpayers coming in under a section of law allowing taxpayers to sue state agencies (in this case the MBTA and MassDOT) – had no standing before the court.

“This Court concludes that the plaintiffs do not have standing to bring these claims,” she wrote in her decision. “

The question of standing is one of critical importance since, in its absence, this Court has no subject matter jurisdiction over the case. ‘From an early day, it has been an established principle in this Commonwealth that only 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 up on the validity of the acts of a coordinate branch of government.’ In order for a plaintiff to have standing so as to been titled to a judicial forum, the plaintiff must allege an injury that was a direct and ascertainable result of the defendant’s actions. ‘Mere generalizations and fears are not sufficient to establish aggrievement.’ That is, the injury must not be remote, indirect or speculative. Nor can a plaintiff claim standings imply as a member of the  general public, since one ‘zealous in the enforcement of law but without private interest’ is not an aggrieved person.”

Mayor Carlo DeMaria’s office didn’t immediately have a comment on the decision, but have said in the past they believed the suit should be dismissed.

John Ribeiro, a spokesman and an aggrieved taxpayer in the suit, said it was too early to comment on the matter, and they were reviewing the suit.

Wynn Everett officials hailed the decision.

“We are gratified by Judge Sanders’s decision and will continue forward in making 4,000 full-time jobs and 4,000 union construction jobs a reality for the Commonwealth,” said Wynn spokesman Michael Weaver.

Sanders also pointed out that the taxpayer statute exists to prevent an agent of the Commonwealth from expending money or incurring obligations for an unlawful purpose.

“The transaction at issue here, however, involves neither the expenditure of money nor the imposition of an obligation of the sort contemplated (in state law),” read the ruling. “Rather, it concerns a sale of land whereby the MBTA will receive $6 million. Accordingly, (the state law) is not applicable.”

A second count in the taxpayer suit alleged standing under the legal term “mandamus,” which is a broader application.

“There are two fundamental flaws with this argument, however,” she wrote. “The first is that this claim is properly asserted as one in the nature of mandamus. It is not. The second is that the public rights doctrine applies under the circumstances presented here. It does not. According, count two must be dismissed as well.”

More importantly, Sanders validated the MEPA process for remedying the early and illegal sale of the parcels. That process came via an escrow agreement that has now been concluded.

“The problem with the plaintiffs claim is that the violation upon which the count is based has already been remedied,” she wrote. “The plaintiffs maintain that the MBTA violated MEPA because the transfer occurred before the MEPA review process was completed. The defendants effectively concede this procedural error…Since the escrow agreement had the effect of correcting the only procedural violations alleged by the count, this court concludes that there is no ongoing ‘damage to the environment’ so as to allow the plaintiffs to proceed.”

That particular part of the decision could have bearing on the other casino lawsuits that are also before Judge Sanders – most importantly for the first and second Boston lawsuits.

In both Boston lawsuits, the matter of the Everett-only entrance is addressed and cited as one reason Boston should be a host community. Boston’s second lawsuit, filed last month, made many of the same arguments in part regarding the Everett MBTA land sale and the MEPA process.

Those arguments within the Boston suits could be in danger of dismissal based upon Sanders’ judgment against the similar count in the Taxpayer suit.

Lengthy arguments have been made on multiple suits in court regarding those matters, and Sanders is expected to make a ruling in November.

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