Miller v. Town of Hull, Mass., 88-1969

Decision Date05 April 1989
Docket NumberNo. 88-1969,88-1969
PartiesDavid B. MILLER, et al., Plaintiffs, Appellees, v. TOWN OF HULL, MASSACHUSETTS, etc., et al., Defendants, Appellants. . Heard
CourtU.S. Court of Appeals — First Circuit

Mitchell J. Sikora, Jr., with whom Vincent L. DiCianni and Ferriter, Scobbo, Sikora, Caruso & Rodophele, P.C., were on brief for defendants, appellants.

Harvey A. Schwartz with whom Dale C. Schneider and Schwartz, Shaw & Griffith were on brief for plaintiffs, appellees.

Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and CAFFREY, * Senior District Judge.

BOWNES, Circuit Judge.

This civil rights case arises out of a dispute between members of the Hull Redevelopment Authority (HRA) and members of the Hull Board of Selectmen (Board). Defendants-appellants, the Town of Hull and individual Board members--E. Reno Constantinides, the Chairman, Myron Klayman, Nancy Burns and Claudette Fitzsimmons 1--appeal a jury's finding of liability and award of damages for plaintiffs-appellees, elected members of the HRA--David Miller, the Chairman, Nancy Dunn and Richard Musmeci. 2 For the reasons set forth below, we affirm.

I. FACTS

Before reciting the facts that bear on this particular case, we describe the legislative framework for a redevelopment authority and the control a Board of Selectmen has over it. Under Massachusetts law, a " 'Redevelopment authority', [is] a public body politic and corporate created pursuant to [Mass.Gen.L. ch. 121B, Sec. 4]." Mass.Gen.L. ch. 121B, Sec. 1. Chapter 121B deals differently with redevelopment authorities in towns as opposed to cities; because Hull is a town, we focus on redevelopment authorities in towns. Pursuant to Sec. 4, the people of a town vote for the organization of a redevelopment authority. Dissolution also requires a vote by the people of the town after the redevelopment authority proposes dissolution. Id. There are five members on every redevelopment authority. Sec. 5. In towns, four of the members are elected by the public; one is appointed by the state department of community affairs (DCA). As an urban renewal agency, see Sec. 9, a redevelopment authority has broad powers under Sec. 11 and more specific ones under Secs. 45-57. An elected member of a redevelopment authority may be removed by the Board of Selectmen for "inefficiency, neglect of duty or misconduct in office" subject to certain procedural safeguards including notice and a hearing. Sec. 6. 3 The Board may also refer charges of the same to DCA with respect to the member appointed by that department. DCA may then remove the member subject to the same procedural safeguards. Id. During the pendency of charges, the people with the power to remove have the power to suspend temporarily. Id. During suspension, temporary members may be appointed by the people who suspended the members. Id. A vacancy created by an elected member before the end of a term is filled by the Board. Sec. 5.

"We begin by setting forth the relevant facts, mindful that we review the evidence and inferences fairly drawn therefrom in the light most favorable to the prevailing party." Robinson v. Watts Detective Agency, Inc., 685 F.2d 729, 732 (1st Cir.1982), cert. denied, 459 U.S. 1105, 103 S.Ct. 728, 74 L.Ed.2d 953 (1983). In 1961, the people of Hull voted to establish a redevelopment In 1978, the HRA entered into a contract with Consultants, Inc. (Consultants) for the redevelopment of the entire 33 acre tract. Part of this contract called for the construction of a housing building for the elderly with 150 units. Over the next three years this contract was amended several times in ways not relevant to this case. In December 1981, an eighth amendment was added. In this amendment, Consultants agreed to give up its rights to develop the entire tract and to go forward with only the housing project for the elderly. HRA was thus free to negotiate with another developer for the balance of the tract. It knew of a developer, Joel Grae, who was interested in developing the rest of the tract.

                authority.  In 1968, a 33 acre tract of land was slated for redevelopment in Hull.  As a requirement of the United States Department of Housing and Urban Development (HUD), the HRA and the Board entered into a cooperation agreement.  The agreement called for the town and all town departments to cooperate with the HRA in carrying out the redevelopment project.  The agreement also called for the town to pay for 25% of the project in "cash or non-cash grants-in-aid."    Most of the funds were to come from federal and state sources.  The agreement could only be amended with the consent of HUD
                

The defendants had been consistently opposed to the housing project for the elderly for a variety of reasons. It would be inconsistent with a proposal for a gambling casino in another part of Hull. The inconsistency was that Hull was asking for permission from the state to allow a casino on the grounds of poverty. If a full-scale redevelopment plan was in progress, including the housing project for the elderly, such a claim would be undercut. Furthermore, if the land was used for housing for the elderly, it could not be used for ancillary casino needs. A housing unit for the elderly would not be compatible with the proposed development of other areas in the redevelopment area. The developer, Joel Grae, wanted to build luxury condominiums on adjoining land; he contacted defendant, Constantinides, several times about the housing project for the elderly. Finally, the need for 150 units was questioned by the Board despite studies showing such a need for Hull residents.

The disagreement between HRA and the Board members on this issue led to a breakdown in relations between the two bodies. A letter, sent by Constantinides to Miller in August 1981, summarizes the problem:

It is the position of the Board of Selectmen that, should the Redevelopment Authority negotiate the erection of subsidized Section Eight housing, by Consultants, Inc., on parcel 14A, the Board of Selectmen will take appropriate action to oppose them, as the Board of Selectmen does not favor such a plan.

The Board finds that such a plan would be prejudicial and inimical to the proper development of the entire urban renewal area.

When the HRA refused to back down, the Board sponsored two articles for town vote. The first was to abolish the HRA. This article passed but no further action was taken to enforce it--possibly because it was not in conformity with Massachusetts law which requires that a housing authority must first propose dissolution before a town can vote to abolish it. Mass.Gen.L. ch. 121B, Sec. 4. The second article called for a building height limit of 40 feet in the redevelopment area. Such a limit would have been the death knell for the project for the elderly. This article also passed, but both HRA and HUD considered it unenforceable and a breach of the cooperation agreement. Consultants was informed of the unenforceability of this article.

The Board also created financial difficulties for the HRA. The Town of Hull had never paid any cash to HRA to meet its 25% obligation, rather it had provided non-cash support. All money from HUD was paid to the Town and the Board was supposed to authorize expenditures and payments when requested by the HRA. At the time that the housing for the elderly issue heated up, the Board became more In early 1982, after it became clear from the last amendment to the Consultants contract that the housing for the elderly project would be built, the Board voted to reduce the project from 150 units to 75. If valid, this reduction would have made the project economically unfeasible. HRA and HUD took the position that this reduction was unenforceable and a breach of the cooperation agreement. Selectman Constantinides attended an HRA meeting in January 1982 and threatened retaliatory action if the HRA persisted with the project for the elderly.

chary in authorizing payments to the HRA. In early 1982, for instance, an audit revealed that the Board owed the HRA approximately $38,000. Rather than pay the sum, the Board dragged its heels and HRA was forced to bring a lawsuit for the money.

Despite his misgivings about the project for the elderly, Joel Grae, the developer who wished to develop the rest of the 33 acre tract, continued to negotiate with HRA. Grae was concerned about the proximity of the project to an area on which he wanted to build luxury condominiums. By the end of February, 1982, a contract looked imminent and Grae was slated to give HRA $100,000 as a deposit by March 7. Consultants was also to give HRA $180,000 by April 1. These cash infusions would have made HRA financially independent from the Board.

Selectmen Burns and Constantinides attended an HRA meeting on February 26. At the meeting, Miller, of the HRA, announced that Consultants had published a request for bids on the housing project for the elderly and that construction was slated to begin by April 15.

On March 1, the Board voted to suspend all four elected members of HRA and to send charges to DCA along with a request for suspension with respect to Tong, the appointed member. The suspensions were based on identical charges against all five members. The Board appointed four temporary members whose views coincided with those of the Board. On March 2, an injunction was issued by a state court against the suspensions because of a violation of the notice requirements of Mass.Gen.L. ch. 121B, Sec. 6. 4 After the injunction issued, Selectman Constantinides called Alibrandi of HRA and told him that if he would get certain documents for him out of the HRA files nothing further would happen. Alibrandi refused.

On March 3, HRA held an emergency meeting. Dunn, Miller, Musmeci and Alibrandi were present; Tong was out of town on business. After extending until June the time within which Consultants had to pay HRA $180,000, the meeting turned to discussion of...

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