South Boston Betterment Trust v. Boston Redevelopment Authority
| Decision Date | 04 September 2001 |
| Docket Number | 004112BLS |
| Citation | 2002 MBAR 248 |
| Parties | South Boston Betterment Trust et al. v. The Boston Redevelopment Authority et al. |
| Court | Massachusetts Superior Court |
Mass L. Rptr. Cite: 15 Mass. L. Rptr. 87
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): VAN GESTEL
This matter is before the Court on two motions for summary judgment: one by the Boston Redevelopment Authority and its Director, Mark Maloney (collectively the "BRA") and the other by Thomas M. Menino, individually and as Mayor of the City of Boston ("the Mayor"). The plaintiffs, the South Boston Betterment Trust Corporation ("SBBT") and James M. Kelly, in his capacity as District 2 City Councilor ("Councilor Kelly"), oppose both motions in essentially all respects.
Before reciting the material facts upon which this decision is based, the Court comments on two other background points or issues.
The first point relates to the capacity in which Councilor Kelly is acting in all matters relating to the situation in litigation. What is involved is a Memorandum of Understanding ("MOU") executed on March 11, 1998. There were two identical versions of the MOU executed by Councilor Kelly one is recited to have been executed "in his capacity as District City Councilor, District 2"; and the other is recited to have been executed by him "Individually."
The First Amended Verified Complaint (hereafter the "complaint"), filed on April 13, 2001, which is the only complaint presently governing the plaintiffs' case, includes only the version of the MOU signed by Councilor Kelly in his official City Councilor capacity. Further, all allegations that mention the subject in the complaint speak only to his acting in his official capacity. Also, upon questioning by the Court at oral argument, counsel for both plaintiffs affirmed that Councilor Kelly was acting in his official capacity, not individually, when he executed and acted pursuant to the MOU.
The Court, therefore, accepts all of the foregoing and only will address the issues before it on the assumption that Councilor Kelly acted always in the official capacity of a City Councilor.1
The second preliminary point relates to the claims against the Mayor in his personal capacity. It was stated by counsel for the SBBT that he has assured counsel for the Mayor that the plaintiffs are seeking no monetary relief from the Mayor personally, except for such as the Mayor may have a right to indemnification from the City. This Court, however, is governed by the pleadings before it. Thus, until the complaint is in some way amended to reflect this assurance, the Court can only assume that all relief available against the Mayor is still in issue.
The Court now turns to the plaintiffs' complaint, from which it will recite the material facts upon which this decision is grounded.
As noted above, on March 11, 1998, the MOU was executed. A complete copy of the MOU is attached to the complaint as Exhibit A. The parties to the MOU are, on the one hand, the BRA, and on the other hand, Councilor Kelly in his capacity as District City Councilor, District 2, Stephen F. Lynch ("Senator Lynch"), "in his capacity as State Senator, 1st Suffolk District," and John A. Hart ("Representative Hart"), "in his capacity as State Representative, 4th Suffolk District." Councilor Kelly, Representative Hart and Senator Lynch are sometimes collectively referred to in the complaint as the "Representatives" or the "Elected Officials." This Court will do so here as well.
The Elected Officials are all residents of the South Boston District, and their respective legislative districts, although covering other areas as well, include South Boston in parts thereof.
The MOU was executed with full knowledge of and, it seems, under the urging, if not the express directives, of the Mayor. Its purpose, generally, relates to the handling of benefits to the residents of South Boston in connection with the future development in the nearby Seaport District.
One of the most significant projects to be developed in the Seaport District is the financing and construction of a new convention and exhibition center (the "Convention Center"). This project was authorized pursuant to Chapter 152 of the Acts of 1997 (the "Act"). Section 13(a)(1) of the Act required that by March 11, 1998, the Boston City Council was to vote on (1) whether to approve the Convention Center project, and (2) to authorize indebtedness or appropriate sums in an aggregate amount not exceeding $157,800,000 for the project.
The MOU acknowledges that the neighborhood of South Boston will be the neighborhood most impacted by development in the Seaport District.
The MOU then describes ways in which the BRA and the Elected Officials intend to cooperate and to coordinate their joint efforts with regard to the provision of benefits for the residents of South Boston in connection with the future development. The kinds of items dealt with, called "community benefits," include linkage payments, employment and job training, affordable housing, and zoning and design issues.
The eighth "Whereas" clause of the MOU reads in material part:
[T]he parties hereto have deemed it to be in the public interest that there shall be established a charitable organization to be known as the South Boston Betterment Trust (the "Trust") pursuant to Massachusetts General Laws c. 180 and Section 501(c)(3) of the Internal Revenue Code, the directors of which shall be residents of South Boston (including but not limited to its elected officials and other neighborhood leaders), selected by such officials and leaders, which Trust shall, in perpetuity, be the beneficiary of community benefits established pursuant to this MOU or to any agreements related to the development in the Seaport District.
Section 5.2 of the MOU reads:
This MOU is a legally binding document having the full force and effect of the law between the parties and their successors in office, assignees and agents, and shall be enforceable by the signatories hereto in a court of law by equitable relief, but shall create no rights hereunder in any party not a signatory hereto.
The MOU, in Section 5.3, is said to be governed by the laws of Massachusetts.
Section 5.5 recites that the "MOU sets forth the entire agreement of the parties hereto with respect to the subject matter contained herein..."
On the same day of the signing of the MOU, and inferentially because of that signing, the Boston City Council voted unanimously to approve the Convention Center project.
About a year later, the SBBT was established, and its trustees were appointed. Three of those trustees were appointed by the Mayor.
For a period of time thereafter at least until May 24, 2000, the parties to the MOU, as well as others in city government including, in particular, the Mayor acted in all essential respects in a manner consistent with the terms and conditions of the MOU. Although not described in the complaint but well featured in the filings regarding these motions, on May 24, 2000, The Boston Globe (the "Globe") published a lengthy article that was highly critical of the MOU and the actions being taken pursuant thereto. Essentially, the Globe accused the SBBT and Councilor Kelly of being overly aggressive in their activities with developers and criticized the Mayor for not policing the situation and for agreeing that far too much linkage money would go to South Boston, as opposed to other parts of the City.2
Essentially, from the time of the May 2000 Globe article, the plaintiffs allege that the Mayor and other City employees under his direction and control took actions to scuttle the MOU and the activities of the SBBT pursuant thereto. They point most directly to two letters, each dated June 1, 2000, from the Mayor. The letters are attached to the complaint as Exhibit C and Exhibit D. Exhibit C was addressed to "Dear Developer," and Exhibit D was addressed to "Dear Councilor Kelly." The letters in their entirety are available as part of the complaint. The Court quotes here, however, from the portion of Exhibit C that is included in para. 84 of the complaint, the plaintiffs there calling it an "overt interference with the Plaintiffs' contractual and prospective advantageous relationships." The excerpt from the letter reads:
[I]t was never the intent of this Administration to assign all community benefits to a charitable corporation that allows its trustees and officers to have personal interests including financial in the affairs of the corporation. Public money is not to be used for private gain. Therefore, it is inappropriate for the Betterment Trust to be the pre-designated receiver of community benefits for South Boston... [D]o not enter into any agreements without the City's approval...
Earlier in the letter, the Mayor said:
So let me spell this out in clear English any agreement that is made without the involvement and approval of the City will have no legal bearing on the City's approval of a pending project. I will not allow any side deals that enrich one entity to the detriment of others, or the public interest.
Both Exhibit C and Exhibit D are on official City of Boston letterhead for the "OFFICE OF THE MAYOR," and both are signed "Thomas M. Menino, Mayor of Boston."
It is with the foregoing undisputed factual background that, on September 12, 2000, the original complaint in this action was filed. The current complaint, as amended, contains seven separate counts, as follows: Count I, seeking a declaratory judgment that the MOU is a valid, binding and enforceable contract; Count II, against the BRA, for breach of contract and the implied covenant of good faith and fair dealing, the contract being...
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