Judge Leaning to Dismiss Lawsuit on MBTA Land Sale

September 10, 2015
By

A judge overseeing the taxpayer lawsuit against the MBTA and the state Department of Transportation (DOT) in regards to the sale of property to the Wynn Everett casino signaled in court Friday that she is leaning towards dismissing the suit.

The taxpayer lawsuit was initiated by 24 taxpayers who contended that the sale of MBTA land – land that allows Wynn to have two Everett-only access points to the casino – was illegal when it went through in February and would exact harm upon the operations of the T.

After more than an hour of extremely specific legal arguments about standing before the court, Judge Janet Sanders – who is also overseeing other casino lawsuits – said she was leaning towards dismissing the case when she issues her decision later this month. Those comments were made after she was pushed by the plaintiffs to rule on a motion for discovery and fact-finding.

“I have to say the arguments that have been made here are pretty strong so there is a good chance this motion to dismiss is going to be prevailing, in which case this motion for discovery would not be proper,” she said. “I do expect to have the decision out within the month.”

Representing the MBTA was Attorney Michael Tuteur of Foley & Lardner of Boston. He said the case is not so much about the land deal as it is about delaying a casino that the taxpayers – which are backed by anti-casino leader John Ribeiro – have been against for years.

“This is a case that is another example of trying to hinder, halt and delay the Wynn casino using a small group that banded together to attest a land transfer from the MBTA to Wynn,” he said. “This case is only about a land sale.”

There were four counts within the suit that were addressed, which included addressing the remedy for the land sale (which was proposed by the state within the MEPA process), the taxpayer lawsuit statute, the MEPA process and a request that the judge overturn the property deed.

Tuteur said the plaintiffs had no standing to bring the claims.

Arguing for the taxpayers was Attorney Thomas Bean of Verrill Dana, who had a very different reading of the statutes on standing before the court and on the situation in general.

“This is not simply a land sale,” he said. “It has a boundary between Suffolk County and Middlesex County. What’s happening is they’re trying to get an entrance in Middlesex County to avoid Boston’s city regulations. The MBTA didn’t offer the parcels for sale. Wynn went to the MBTA and said, ‘I want to buy the parcels to create another way into the casino.’ Wynn was allowed to dictate the sale and create terms of the sale so no one else can compete. The purchase of the land parcels is to keep the casino away from Boston regulations. No other bidder would have wanted this.”

He said the taxpayers had standing because they could be harmed by increased costs related to the T having to change its operations at the Everett Shops facility.

“We have identified five or six changes that will arise for the operations of the T as a result of this sale,” he said. “We didn’t make these up. We learned them from e-mails from T operations workers and from the Department of Transportation’s own comments in the [Wynn] SSFEIR…There are certain functions that will have to be relocated. This is going to cause the T to have to spend money.”

He indicated that articulated buses would not be able to navigate into the new facility, and would have to be repaired elsewhere. He also said the MBTA bus tire repair facility was going to be moved to Everett, but will no longer be able to move there.

He also asked for permission to get onto the property in order to have an alternate appraisal of the 1.7 acres.

“They’re selling this land for $6 million to a man who is building a $1.7 billion casino and wants to avoid Boston,” he said. “It could have been sold for a heck of a lot more had it been advertised.”

That permission was denied by the judge, who at the same time hinted that she was leaning towards dismissal.

Her decision is expected in September, as the MBTA land will possibly revert to the ownership of Wynn on Nov. 8.

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