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Abdow v. Massachusetts Bay Transportation Authority

Superior Court of Massachusetts, Suffolk

October 15, 2015

Steven Abdow et al.
Massachusetts Bay Transportation Authority et al Opinion No. 132093

Filed Date October 16, 2015


Janet L. Sanders, Justice

This action arises from the proposed conveyance of three land parcels owned by the Massachusetts Bay Transportation Authority (MBTA) to Wynn, MA, LLC (Wynn). The parcels are adjacent to the site in Everett where Wynn intends to build a casino. The plaintiffs, approximately forty taxable inhabitants of the Commonwealth, seek to prevent the sale, asserting that the MBTA, the Massachusetts Department of Transportation (MassDOT) (collectively, the State Defendants) and Wynn failed to comply with certain regulations and statutes that apply to the transfer. The Amended Complaint contains four counts, three of which assert substantive claims.[1] The case is now before the Court on the defendants' Motion to Dismiss. This Court concludes that the Motion must be Allowed .

The defendants' principal argument in support of the Motion is that the plaintiffs, who have no connection to the sale at issue, are not " aggrieved persons" and thus lack standing to bring the claims asserted in Counts I and II. This Court agrees. The issue of standing is one of subject matter jurisdiction: unless the challenged action causes the plaintiff to suffer some concrete injury or face a real and imminent danger of such injury, then he or she has no ability to ask a court to review the action. Although the legislature has in specific instances conferred standing upon taxpayers to challenge certain government actions, the statute upon which the plaintiffs rely here (the " Twenty-Four Taxpayer Statute") is of no assistance to them since the MBTA has not expended money or engaged in any other action which has affected or which will adversely affect the plaintiffs' pecuniary interests. Nor can the plaintiffs argue more generally that they are entitled to bring this suit simply as citizens of the Commonwealth under the so-called " public rights doctrine." That is because they are not seeking to compel the performance of some clear-cut duty owed by government officials to the public at large.

The plaintiffs need not show a particularized injury to assert the violations of the Massachusetts Environmental Protection Act (MEPA) that form the basis for Count III. This Court concludes that Count III must also be dismissed, however. That Count alleges that the defendants violated MEPA by transferring the parcels to Wynn before the MEPA review process was completed. That procedural error was almost immediately corrected, however. Where there is no " damage to the environment" caused by the defendants, this Court has no subject matter jurisdiction. See G.L.c. 214, § 7A.


The following is taken from the Amended Complaint and other materials appropriate for judicial notice. Wynn has applied for and received a license from the Massachusetts Gaming Commission to develop a casino in Everett. The three-million-square-foot casino will be located on land formerly owned and operated by the Monsanto Chemical Company. The sole road to the casino is Horizon Way, some part of which passes through Boston.

In 2013, Wynn and the City of Everett entered into discussions with the MBTA to acquire MBTA land adjacent to the Monsanto site so that Wynn could build a secondary access road to the casino. Wynn allegedly needed the road because the Boston Zoning Code prohibited the use of Horizon Way for access to the casino and because the Everett fire and police chiefs believed that secondary access was necessary for public safety. The MBTA's " Everett Shops, " which serve as a maintenance and repair facility for MBTA vehicles, is located on the MBTA land.

Wynn and Everett initially sought to structure a deal in which Everett would first purchase the land from the MBTA in a transaction exempt from public bidding requirements, then transfer the land to Wynn. They put forward several proposals based on this arrangement but none resulted in an agreement. At some point, Wynn decided it would be better to acquire the land directly from the MBTA, leading to discussions between it and the State Defendants. These discussions culminated in a " Letter Agreement" between Wynn and the Secretary of MassDOT in August 2014 for the purchase of three parcels totaling about 2.024 acres. In exchange for the parcels, Wynn agreed to provide $6 million, to relocate the Everett Shops' main entrance (currently located on one of the parcels) and to construct an improved access route to the facility. The Letter Agreement specified that " [t]he exact location and dimensions of the . . . parcels are subject to mutual agreement and shall be confirmed by survey and creation of final legal descriptions." See Exhibit M to Amended Complaint. The Letter Agreement also provided that Wynn's offer was subject to the advertisement and bid requirements of G.L.c. 161A, § 5(b) and that the MBTA's acceptance was conditioned on the absence of any bids with a value that exceeded Wynn's " bid."

Soon after the MassDOT Secretary executed the offer, the MBTA published a Notice of Proposal and Request for Response in which it sought the submission of bids within 30 days matching or exceeding Wynn's offer. The MBTA attached a copy of the Letter Agreement to the notice. No competing offers were submitted.

In February 2015, Stephanie Pollack, the Secretary of MassDOT, and Beverly Scott, the General Manager and Rail & Transit Administrator of the MBTA, executed a quitclaim deed (the Deed) that, on behalf of the MBTA, conveyed to Wynn three parcels totaling 1.758 acres. In return, Wynn transferred to the MBTA the $6 million purchase price, less a $1.5 million deposit already made. Neither the MBTA Board of Directors nor the MassDOT Board of Directors approved the execution and delivery of the Deed.[2] Instead, the sale was consummated pursuant to a delegation of authority from the MassDOT Board, which purported to authorize the MassDOT Secretary to execute, on behalf of MassDOT and the MBTA, all contracts, instruments, and other agreements (including deeds and contracts for the sale of real estate) that are valued at less than $15 million.

In the meantime, the Secretary of Energy and Environmental Affairs (the Secretary), was engaging in a MEPA review of the broader casino project. Shortly after the Deed was delivered, the Secretary advised the MBTA and Wynn that the land transfer had violated MEPA because it occurred before the MEPA review process was completed, and because the conveyance documents did not contain sufficient provisions to ensure compliance with MEPA. In response, the State Defendants and Wynn entered into an Escrow Agreement in April 2015 pursuant to which the parties delivered into escrow the amount of the purchase price together with a deed that conveyed the parcels back to the MBTA. See Exhibit X to Amended Complaint. In particular, the Escrow Agreement states that the transfer " shall be deemed not to have taken place unless and until" the Secretary completes his MEPA review. Id. at ¶ F. Upon completion of the MEPA review, " the MBTA shall reconsider and confirm the conveyance of the Property, or propose modifications or conditions to the conveyance or mitigation associated therewith, all in accordance with 301 CMR 11.12(5)(b) to address impacts . . . to MBTA operations at the MBTA Everett Shops property resulting from the conveyance of the Property not already considered and addressed . . ." Id. at ¶ F.1. If Wynn and the MBTA fail to reach agreement on any required mitigation conditions or changes to the conveyance, the Escrow Agreement allows the MBTA to rescind the transfer and return to the status quo ante. Id. at ¶ F.1.c. In the meantime, Wynn is prohibited from beginning any construction activity on the parcels. Id. at ¶ F.1.e. As of the date of the Amended Complaint, the Secretary's MEPA review was still ongoing.

This lawsuit was filed July 2015 in an effort to prevent the transfer of the parcels to Wynn. The plaintiffs, all residents of the Commonwealth, include individuals who purport to ride the MBTA subway and buses, pay real estate taxes in towns that the MBTA services and assesses, pay sales taxes dedicated to funding the MBTA, and drive on state ...

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