Policastro v. Boston, 20 Mass. L. Rptr. 273 (MA 11/8/2005), 044279.

• Decision Date: 08 November 2005
• Docket Number: No. 044279.,044279.
• Citation: 20 Mass. L. Rptr. 273
• Parties: James C. Policastro v. City of Boston et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

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20 Mass. L. Rptr. 273

James C. Policastro v. City of Boston et al.

No. 044279.

Common Wealth of Massachusetts, Superior Court.

Suffolk, Ss.

Memorandum Dated November 8, 2005.

Constitutional Law — First Amendment — Establishment Clause — Federal Rule Recognizing Taxpayer Standing to Challenge the Use of Government Funds to Support a Religious Activity Is Not Recognized in Massachusetts.

Jurisdiction — Standing — Taxpayers — Standing to Challenge the Use of Government Funds to Support a Private Charity May Be Brought Only Pursuant to the Ten Taxpayer Statute. The federal rule recognizing standing by any taxpayer to challenge the use of government funds in a manner that violates the Establishment Clause of the First Amendment is not recognized in Massachusetts. Rather, in general, such an action may be brought in the Commonwealth only under the statute authorizing suits to challenge the use of government funds to benefit a private charity, provided that not less than ten taxpayers are named as petitioners, M.G.L.c. 40, §53.

Jurisdiction — Standing — Taxpayers — Ten Taxpayer Statute Does Not Authorize Standing to Challenge the Sale of Government-owned Property to a Religious Organization at less than Market Value. The phrase "raise money" as used in the clause limiting application of the statute authorizing taxpayer suits to enjoin efforts to "to raise or expend money" for the benefit of a private charity, M.G.L.c. 40, §43, refers only to raising money through taxation. The statute, therefore, does not authorize a taxpayer action to enjoin the sale of city property at less than market value to an Islamic organization for the construction of a cultural center.

Municipal Corporations — Redevelopment Agencies — Procedural Matters — Redevelopment Agency Decision to Sell Agency-owned Land at Less than Market Value to a Religious Organization May Be Appealed to Court on Grounds that Such a Sale Violates the Establishment Clause of the Federal Constitution and the Anti-Aid Amendment of the Commonwealth Constitution. There is a right pursuant to M.G.L.c. 121A, §48 to appeal to the Superior Court from a decision by a local redevelopment agency to sell agency-owned property at less than market value to a religious organization, on the grounds that such a sale would violate the Establishment Clause of the federal constitution and the Anti-Aid Amendment of the Commonwealth constitution, even though the appeal right is contained in Chapter 121A, whereas the chapter governing redevelopment agency decisions, Chapter 121B, contains no authorization for any form of appeal. Furthermore, a resident taxpayer has standing to prosecute such an appeal.

HOLTZ NANCY STAFFIER, J.

The plaintiff, James C. Policastro, brought the above-captioned matter, pursuant to G.L.c. 231A, seeking a declaratory judgment that the Boston Redevelopment Authority's sale of urban renewal land to the Islamic Society of Boston violated the First Amendment of the United States Constitution and the Massachusetts Anti-Aid Amendment. The defendants, the Boston Redevelopment Authority ("BRA"), Roxbury Community College ("RCC"), and the Islamic Society of Boston along with the Islamic Society of Boston Trust ("ISB"), now move to dismiss the complaint pursuant to Mass.R.Civ.P. 12(b)(6).¹ As grounds for dismissal, the defendants assert that Policastro has failed to state a claim upon which relief can be granted because he lacks the requisite legal standing to maintain this action.

DISCUSSION

In order to allow a motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(6), a defendant must show "that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Nader v. Citron, 372 Mass. 96, 98 (1977). For these purposes, the factual allegations in a complaint will be treated as true. Id. at 98.

I. G.L.c. 231A Does Not Provide Policastro an Independent Basis for Standing

In his Complaint, Policastro seeks a declaratory judgment pursuant to G.L.c. 231A that the sale of urban renewal land to the ISB was unconstitutional, in violation of the Establishment Clause and the Massachusetts Anti-Aid Amendment.² Proceedings pursuant to G.L.c. 231A "are concerned with the resolution of real, not hypothetical, controversies; the declaration issued is intended to have an immediate impact on the rights of the parties." Bello v. South Shore Hospital, 384 Mass. 770, 778 (1981). Therefore, in order for G.L.c. 231A to be available, Policastro must first demonstrate that an actual controversy exists and that he has legal standing to sue. District Attorney for Suffolk Dist. v. Watson, 381 Mass. 648, 659 (1980). General Laws c. 231A does not provide an

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independent basis for standing. Enos v. Secretary of Environmental Affairs, 432 Mass. 132, 135 (2000); Pratt v. Boston, 396 Mass. 37, 43 (1985).

The actual controversy requirement may be met if the pleading "sets forth a real dispute caused by the assertion by one party of a legal relation, status, or right in which he has a definite interest." School Committee of Cambridge v. Superintendent of Schools, 320 Mass. 516, 518 (1946). The standing requirement mandates that the plaintiff has suffered, or is in danger of suffering, legal harm. Pratt, 396 Mass. at 42 ("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 upon the validity of the acts of [another] branch of the government"). Generally, this harm must fall within the area of concern of the relevant statute or constitutional guarantee. Enos, 432 Mass. at 135; Penal Inst. Commr. for Suffolk Cty. v. Commissioner, 382 Mass. 527, 532 (1981). "[S]tanding is not measured by the intensity of the litigant's interest or the fervor of his advocacy." Pratt, 396 Mass. at 42, quoting Valley Forge Community College v. Americans United for Separation of Church and State, 454 U.S. 464, 486 (1982).

Here, Policastro merely asserts that, in his capacity as a resident taxpayer of Boston, his constitutional rights were violated by the aforementioned sale of land. However, "[p]laintiffs who are merely residents, voters, taxpayers, or town officials, without any special statutory standing, may not use G.L.c. 231A to obtain declaratory relief concerning the validity of an official act." Chase v. Planning Board of Watertown, 4 Mass.App.Ct. 430, 431 (1976). Consequently, an alternative basis of standing must be found in order for Policastro to survive the Defendants' Motion to Dismiss.

II. Policastro Fails to Meet the Requirements of "Municipal Taxpayer Standing"

Policastro has asserted standing solely as a municipal taxpayer of the City of Boston. He derives his theory of municipal taxpayer standing from the distinction made by the Supreme Court regarding the differences in rights between federal and municipal taxpayers. See Coleman v. Miller, 307 U.S. 433, 445 (1939); Frothingham v. Mellon, 262 U.S. 447, 486-87 (1923).

While one asserts the mere right of a citizen and taxpayer of the United States to complain of the allegedly invalid outlay of public moneys has no standing to invoke the jurisdiction of the federal courts, the Court has sustained the more immediate and substantial right of a resident taxpayer to invoke the interposition of a court of equity to enjoin an illegal use of moneys by a municipal corporation.

Coleman, 307 U.S. at 445.

This principle has since been modified to allow federal taxpayers standing in cases where a specific expenditure of federal funds by Congress violates the Establishment Clause of the First Amendment. See Valley Forge, 454 U.S. at 479-80 (finding that respondents had no federal taxpayer standing when the source of their complaint was an administrative, rather than a congressional, action authorized under the Property Clause); Flast v. Cohen, 392 U.S. 83, 114 (1968) ("Because that clause plainly prohibits taxing and spending in aid of religion, every taxpayer can claim a personal constitutional right not to be taxed in support of a religious institution"). Still, the Supreme Court has not elaborated upon the exact boundaries of municipal taxpayer standing.

Massachusetts courts, on the other hand, have dealt with taxpayer standing in the following way. Because general equity jurisdiction "to entertain a suit by individual taxpayers to restrain cities and towns from carrying out invalid contracts, and performing other similar wrongful acts" does not exist, a plaintiff must have a statutory basis for standing in order to bring such an action. Fuller v. Trustees of Deerfield Academy, 252 Mass. 258, 259 (1925), quoting Steele v. Municipal Signal Co., 160 Mass. 36, 38-39 (1893). General Laws c. 40, §53 sets forth the requirements for taxpayer standing in Massachusetts:

If a town, regional school district, or a district as defined in section one A, or any of its officers or agents are about to raise or expend money or incur obligations purporting to bind said town, regional school district, or district for any purpose or object or in any manner other than that for and in which such town, regional school district, or district 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 . . . determine the same in equity, and may, before the final determination of the cause, restrain the unlawful exercise or abuse of such corporate power.

The Supreme Judicial Court has consistently held that the remedy provided by G.L.c. 40, §53 is exclusive where the plaintiff does not allege violation of any rights beyond his rights as "a citizen of and a property owner and taxpayer in" the municipality. Butler v. Selectmen of Town of Wakefield, 269 Mass. 585, 587 (1930); see also Dube v. Mayor...