LeClair v. Town of Norwell
| Decision Date | 04 October 1999 |
| Citation | 430 Mass. 328,719 NE 2d 464 |
| Parties | DONALD LECLAIR, JR., & others v. TOWN OF NORWELL. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Present: MARSHALL, C.J., ABRAMS, LYNCH, GREANEY, & IRELAND, JJ.
Diane C. Tillotson (Joseph L. Bierwirth, Jr., with her) for the plaintiffs.
Ronald G. Busconi (Robert E. Galvin with him) for the defendant.
David J. Hatem, Jeffrey L. Alitz, & Ronald J. Snyder for American Institute of Architects Massachusetts, amicus curiae, submitted a brief.
This is an appeal from the denial of a request for a preliminary injunction by several taxpayers of the town of Norwell pursuant to G. L. c. 40, § 53.2
The plaintiffs contend that the town violated the public notice provisions of the designer selection statute, G. L. c. 7, §§ 38A ½-380, and the public bidding provisions of the town bylaws in connection with plans for a school renovation and construction project. The plaintiffs also claim that the town violated G. L. c. 40, § 15A, with respect to the town's proposed use of a piece of property that it purchased. We conclude that, while the town did not adhere to the letter of the designer selection statute or town bylaw, the public interest would not be served by entering a preliminary injunction.
1. Background. This dispute arose out of the town's attempt to address its inadequate school facilities. In 1997, the town formed the Norwell 2001 Committee to consider options for new school construction and renovation. On May 6, 1997, the town, at its annual town meeting, voted to raise and appropriate $100,000 for its school committee to contract for a facility audit and long range educational master plan (feasibility study).
The school committee, on June 17, 1997, prepared a "Request for Proposals for Master Planning Services" (RFP) seeking bids from registered architects and engineers to conduct the feasibility study. The RFP was advertised in the central register which described the project as "enrollment and facilities analysis with recommendations and estimated costs, thereof." The public notice indicated that RFP copies were available at the office of the superintendent of schools and that applications were due by July 16, 1997. The notice also indicated that an informational briefing would be held on July 7, 1997, for interested bidders. The town prepared an advertisement of the RFP for publication in the Boston Globe newspaper; however, because of clerical oversight by the school department the notice was never published.
Twenty-seven design firms responded to the town's solicitation by seeking a copy of the RFP. Fourteen firms attended the informational briefing. At the meeting, one of the parties inquired whether the party selected to conduct the feasibility study would be permitted to conduct the design services contract for the school construction. In response, the town amended the RFP to inform bidders that it retained the right to select the party that conducted the feasibility study also to conduct the design services for the school construction.3 The amendment was transmitted by facsimile and mailed, return receipt, to all twenty-seven designers who requested the RFP.
Ten design firms submitted proposals by the deadline. A designer selection committee appointed by the school committee evaluated the proposals based on a point system. The selection committee interviewed the top six candidates and identified three finalists: Tappé Associates, Inc. (Tappé); Earl R. Flansburgh & Associates; and the Design Partnership of Cambridge. After further investigation, the selection committee recommended Tappé to the school committee as the top design firm. On October 28, 1997, the town awarded the feasibility study contract to Tappé.
Tappé presented the feasibility study on June 22, 1998. Thereafter, the town retained Drummey Roseane Anderson, Inc., to conduct an independent review of the quality of Tappé's feasibility study. Drummey Roseane found that the study was reasonable and appropriate and concluded that, in accordance with G. L. c. 7, § 38H (i), Tappé could continue on the project. Following months of negotiations, the town awarded Tappé the construction design services contract. Also, at a special town meeting, on January 21, 1999, the town voted to appropriate $550,000 and authorize the board of selectmen to purchase a 13.19 acre parcel known as Osborne Farm. The warrant article approved at the town meeting authorized the purchase of the property for "municipal purposes." On May 13, 1999, the town acquired Osborne Farm by quitclaim deed.
Donald LeClair protested the award of the design contract to the office of the Attorney General pursuant to G. L. c. 149, § 44H. After a hearing, the Attorney General refused to invalidate the town's award of the design contract. LeClair and the other taxpayers then brought suit in the Superior Court seeking to invalidate the design services contract and prevent the town's proposed use of Osborne Farm. The judge denied the plaintiffs' motion for a preliminary injunction. A single justice of the Appeals Court affirmed the Superior Court judge's denial of relief but permitted the taxpayers to file an interlocutory appeal. We transferred the appeal to this court on our own motion.
2. Standard of review. In reviewing a denial of a request for a preliminary injunction, we determine whether the judge abused his discretion. GTE Prods. Corp. v. Stewart, 414 Mass. 721, 722 (1993). "An appellate court's role is to decide whether the [trial] court applied proper legal standards and whether there was reasonable support for its evaluation of factual questions." Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 615 (1980), quoting Hochstadt v. Worcester Found. for Experimental Biology, 545 F.2d 222, 229 (1st Cir. 1976). The trial court's legal conclusions, however, are "subject to broad review and will be reversed if incorrect." Packaging Indus. Group, Inc. v. Cheney, supra at 616, quoting Buchanan v. United States Postal Serv., 508 F.2d 259, 267 n.24 (5th Cir. 1975).
3. Standard for preliminary injunction. When a private party seeks a preliminary injunction, the moving party is required to show that an irreparable injury would occur without immediate injunctive relief. Packaging Indus. Group, Inc. v. Cheney, supra at 617. When, however, a suit is brought either by the government or a citizen acting as a private attorney general to enforce a statute or a declared policy of the Legislature irreparable harm is not required. Edwards v. Boston, 408 Mass. 643, 646-647 (1990). A judge, in these circumstances, must first determine whether there is a likelihood of success on the merits of a plaintiff's claims and then determine whether "the requested order promotes the public interest, or, alternatively, that the equitable relief will not adversely affect the public." Commonwealth v. Mass. CRINC, 392 Mass. 79, 89 (1984). Moreover, where a statutory violation is alleged, the judge should specifically consider how the statutory violation affects the public interest. Id. General Laws c. 40, § 53, provides a mechanism for taxpayers to enforce laws relating to the expenditure of tax money by the local government. Edwards v. Boston, supra at 646. In cases brought under this statute, the taxpayers are acting as private attorneys general. Id. Thus, the taxpayers must show a likelihood of success on the merits and that the requested relief would be in the public interest. Id. at 646-647. First, we will evaluate the merits of the plaintiffs' claims and then we will turn to whether the public interest would benefit from entering a preliminary injunction.
4. Designer selection statute. General Laws c. 7, §§ 38A½-38O, is known as the designer selection statute. The statute was enacted in 1980 as a response to the report of the Special Commission Concerning State and County Buildings (Ward Commission). See generally Bockian, The Ward Commission Legislation, 25 B.B.J. No. 6 at 6 (1981). See also St. 1980, c. 579. The Ward Commission investigated corruption in the awarding of public construction projects and also made a comprehensive set of remedial legislative proposals. See Note, Prescribing Preventive Remedies for an Ailing Public Construction Industry: Reforms Under the New Massachusetts Competitive Bidding Statute, 23 B.C. L. Rev. 1357, 1358-1359 nn.9, 10 (1982).
The Legislature adopted a version of the Ward Commission recommendations regarding the award of designer services contracts. G. L. c. 7, §§ 38A½-380. The designer services statute creates a design selection board which is responsible for selecting recipients of design service contracts for State agencies and authorities. § 38C. Among other requirements, the statute also creates a rigorous set of advertising requirements. § 38D.
The Legislature also incorporated the Ward Commission's view that municipal governments should not be subject to the same set of exhaustive requirements as State entities. See § 38K (a). In its recommendations to the Legislature, the Ward Commission recognized that "[a] tradition of local autonomy ... makes mandatory use of the [design service board] unlikely to meet with local acceptance." 7 Ward Commission Report at 243 (Final Report 1980). The Ward Commission also recognized that municipalities must use "certain minimum standards to assure selection based on merit." Id. In this case, we examine what "minimum standards" the Legislature requires municipalities to meet when awarding design services contracts. Id. Specifically, we address whether municipalities must strictly comply with the statute's public advertisement provision. See G. L. c. 7, § 38D.
(a) Continuing-on provision. The plaintiffs contend that the town violated its statutory obligation to advertise publicly the contract for designer services in a newspaper of general circulation. The town argues that, because it publicly advertised the feasibility study, it was...
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