DocketNumber: No. 97-P-0808
Citation Numbers: 47 Mass. App. Ct. 17
Judges: Armstrong
Filed Date: 5/28/1999
Status: Precedential
Modified Date: 6/25/2022
In 1992 the mayor of Gloucester entered into a consent decree in the Federal District Court to resolve an action brought by the Federal government against the city to enforce the Federal Clean Waters Act. One provision of the decree, as amended in 1994, called for the city to construct a STEP sewer system, described in the margin,
Because doing so does not affect the substance of our decision, and because of the possibility that the individual plaintiffs could assert the alleged charter violations in later applications for abatements (see Bowditch v. Superintendent of Sts. of Boston, 168 Mass. 239 [1897]; Warren v. Street Commrs. of Boston, 181 Mass. 6 [1902]; Crofts v. Board of Assessors of N. Adams, 261 Mass. 191, 204-205 [1927]), we pass over the issue of the plaintiffs’ standing and proceed directly to consider their contention that the city, by failing to appoint a designer selection committee to select the architects and designers of the STEP system and a city building committee to oversee its construction, violated §§ 5-4 and 5-5 of the city charter.
The relevant sections of the city charter are set out in the margin
If we were restricted to looking at §§ 5-4 and 5-5 without the benefit of their historical background or of the State statutory scheme that calls for openness in designer selection and public bidding projects, we might be hard put to limit the bare
The plaintiffs effectively concede that this is a correct reading of the pre-1985 charter, but argue that the very purpose of the 1985 revisions was to expand the charter sections beyond what was required by G. L. c. 7, § 38K, and, in particular, to extend coverage to public works construction projects like the North Gloucester STEP sewer construction project. In assessing this argument, we look primarily to the major textual changes effected by the 1985 amendment, which were threefold: (1) the addition of the phrase “for each new project” in § 5-4; (2) the addition of “or designer” after “architect” in both sections; and (3) the addition of a registration requirement in § 5-4 for both designers and architects.
Regarding the first change, we note that the principal support for the plaintiffs’ contention that the revisions broadened the
Regarding the second change in charter language, little support for the plaintiffs’ position can be inferred from the addition of the words “or designer” after architect, as G. L. c. 7, § 38K, which is limited to building contracts, is itself expressed not in terms of architectural services but in terms of “design services.” The term “design services” is defined in G. L. c. 7, § 3&AV2(b), as appearing in St. 1984, c. 189, § 5, as particular, itemized services rendered “in connection with any public building project” (emphasis added). A more plausible inference than that urged by the plaintiffs would be that the addition of “designer” was intended to bring the terminology of the charter into conformity with the State law of building contracting, an inference bolstered by the third aspect of the 1985 charter amendment, the simultaneous addition of the registration requirement, which also precisely mirrors the State building contracts law. See G. L. c. 7, §§ 38AViQ)) & 38K.
In sum, we see nothing in the 1985 amendments to suggest that the purpose of those amendments went beyond including designers with architects, and changing the designer selection committee from standing to ad hoc.
Judgment affirmed.
A STEP sewer differs from a conventional sewer in that it requires special septic tanks and mechanical pumps to be installed on homeowners’ properties. The effluent from each home is first treated in the septic tanks on-site by mechanical and biological means before being pumped into the public sewer pipes.
The judgment was described as a partial final judgment in recognition of the fact that a portion of the case was decided by the Federal District Court judge.
Article 5, §§ 5-4 and 5-5 of the city charter of Gloucester, as amended by referendum of November 5, 1985, provided as follows. The emphasized language was added, and the bracketed language was deleted," by the 1985 revisions.
“Section 5-4 [7-17]. Designer Selection Committee.
“(a) Composition, Mode of Selection, Term of Office — There shall be a designer selection committee which shall consist of three persons appointed by the mayor [for terms of three years each such that the term of office of one member shall expire each year] for each new project. In making his appointments to the committee the mayor shall seek to assure representation from as many of the following areas as is possible: architecture, landscape architecture, construction industry, art and finance.
“(b) Powers and Duties — Whenever an architect, or designer, is to be engaged by the city for any reason the designer selection committee shall be consulted and shall make the selection. All designers and architects in charge of a project shall be registered.
“Section 5-5 [7-18], City Building Committee.
“(a) Composition, Mode of Selection, Term of Office —• Whenever an architect, or designer, is engaged by the city a city building committee shall be established for that project which shall consist of seven members appointed by the mayor for terms of three years each so arranged that the term of office of as nearly an equal number as is possible shall expire each year, provided however, that upon the completion of any project for which a committee is appointed under this section the terms of all members shall be terminated and the committee dissolved. In making his appointments to the committee the mayor shall assure representation from the following fields: the construction*20 industry, the building trades, the municipal agency which will be responsible for the facility upon its completion, a person familiar with the use of such facilities in general, and [three] representatives of the public at large.
“(b) Powers and Duties — The committee shall be the representative of the city in all dealings with the architect including but not limited to the following: preparation of all bidding documents; supervision of public bidding process; award of contract to successful bidder; compliance with the program and time requirements of the city; evaluation of the quality, appropriateness and functional attributes of the architect’s solution or proposal; periodic meetings with the architect and builder to assure compliance as the project moves forward; review of all change orders during the construction phase; and all other powers and duties as are necessary and appropriate.”
In 1985, after the Gloucester charter commission had formulated the amendments that are at issue in this case, G. L. c. 30, § 39M, was amended to include bidding on the construction of public buildings costing less than $25,000. The amendment has no bearing on the general distinction drawn between public building construction and public works construction.
One would typically expect clearer indicia of such a sweeping change. An example would be an expansion of the areas of expertise required on the committees, which under the plaintiffs’ reading would now be obliged to review