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Barth v. City of Peabody

United States District Court, D. Massachusetts

January 11, 2017

JOHN BARTH, Plaintiff,
v.
CITY OF PEABODY, RK REALTY TRUST and RICHARD DIPIETRO, Defendants.

          MEMORANDUM AND ORDER RE: PLAINTIFF JOHN EARTH'S MOTION FOR SUMMARY JUDGMENT(DOCKET ENTRY # 27)

          MARIANNE B. BOWLER United States Magistrate Judge

         Pending before this court is a motion for summary judgment filed by plaintiff John Barth ("plaintiff") against defendant City of Peabody ("the City") as to Count I of a complaint for the "taking of private property without compensation." (Docket Entry # 27) . The City opposes the motion. (Docket Entry # 30) . After conducting a hearing, this court took the motion (Docket Entry # 27) under advisement.

         PROCEDURAL BACKGROUND

         Plaintiff filed the pro se complaint on November 9, 2015. (Docket Entry # 1). Jurisdiction is based on federal question under 28 U.S.C. § 1331, as the complaint alleges violations of 42 U.S.C. § 1983 ("section 1983"), 42 U.S.C. § 1985 ("section 1985"), 42 U.S.C. § 1986 ("section 1986"), as well as the Fifth and Fourteenth Amendments.

         The complaint is an amalgam of various causes of action. (Docket Entry # 1). Count I summarily references approximately 23 "violations of law." The only violations developed in plaintiff's brief are the following: (1) violations of Massachusetts General Laws chapter 79, sections six, ten, and 14 ("chapter 79"), for failing to award damages after a taking was made on behalf of a body politic; (2) violation of Massachusetts General Laws chapter 40A, section six ("chapter 40A"), for failing to exempt a pre-existing home from a zoning ordinance; (3) violation of the Equal Protection Clause under section 1983 by selectively denying plaintiff permission to reconstruct a pre-existing nonconforming dwelling; (4) violation of the Fifth Amendment's Takings Clause for denying a variance from the zoning ordinance thereby diminishing all or nearly all of the value of the property; (5) violation of the Due Process Clause of the Fourteenth Amendment under section 1983 by depriving plaintiff of his property without due process; (6) violation of section 1985 by a conspiracy to deprive plaintiff of his property; and (7) violation of section 1986 for failing to prevent a violation of a constitutional right. (Docket Entry # 28) .

         STANDARD OF REVIEW

         Summary judgment is designed "to 'pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.'" Tobin v. Federal Express Corp., 775 F.3d 448, 450 (1st Cir. 2014) (quoting Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992)). It is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). It is inappropriate "if the record is sufficiently open-ended to permit a rational factfinder to resolve a material factual dispute in favor of either side." Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301 (1st Cir. 2014).

         "Genuine issues of fact are those that a factfinder could resolve in favor of the nonmovant, while material facts are those whose 'existence or nonexistence has the potential to change the outcome of the suit.'" Green Mountain Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st Cir. 2014) (quoting Tropigas de Puerto Rico, Inc. v. Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st Cir. 2011)). The evidence is viewed "in the light most favorable to the non-moving party" and "all reasonable inferences" are drawn in his favor. Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014). "Unsupported allegations and speculation, " however, "do not demonstrate either entitlement to summary judgment or the existence of a genuine issue of material fact sufficient to defeat summary judgment." Rivera-Colon v. Mills, 635 F.3d 9, 12 (1st Cir. 2011); see Serra v. Quantum Servicing, Corp., 747 F.3d 37, 39-40 (1st Cir. 2014) ("allegations of a merely speculative or conclusory nature are rightly disregarded").

         STATEMENT OF FACTS

         Plaintiff did not file a LR. 56.1 statement of undisputed facts. He does list a number of facts in the motion but, as support, cites only the unverified complaint. Because the complaint was not signed under the pains and penalties of perjury, it cannot be considered part of the summary judgment record. Cf. Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell v. Medfit Int'l, Inc., 982 F.2d 686, 689-90 (1st Cir. 1993) (noting that pursuant to 28 U.S.C. § 1746 "an unsworn statement signed under penalty of perjury may be used, in lieu of a sworn statement or affidavit, to support or oppose a motion for summary judgment") (emphasis added); see 28 U.S.C. § 1746. In response to the facts identified by plaintiff, the City admits to the existence of a number of these "facts." Accordingly, the facts which the City admits and the parties therefore agree upon are undisputed and part of the summary judgment record.[1] They are as follows.

         Plaintiff purchased a piece of property located at 4 Lynn Street in Peabody, Massachusetts ("the property") for $1, 000 on September 8, 2011. (Docket Entry # 30, p. 3). Plaintiff requested a variance for the property. (Docket Entry # 27, p. 3) (Docket Entry # 30, p. 3). The City of Peabody's Zoning Board of Appeals ("ZBA") held a public hearing on July 16, 2012 and voted to deny the variance on July 18, 2012. (Docket Entry # 27, p. 3) (Docket Entry # 30, p. 3).

         DISCUSSION

         At the outset, the foregoing facts do not entitle plaintiff to summary judgment on any of the causes of action in Count I. As the summary judgment movant with the underlying burden of proof, it was incumbent upon plaintiff to provide facts of suitable evidentiary quality to support all of the elements of each cause of action upon which he seeks summary judgment. His failure to do so warrants denying the summary judgment motion. Out of an abundance of caution, this court examines the merits of the aforementioned causes of action in Count I that plaintiff identifies in the supporting memorandum in order to complete the record.

         I. Failure to Exempt Pre-existing Home from Zoning Ordinance

         Plaintiff argues that the City violated chapter 40A, section six, by failing to exempt the pre-existing home on the property from the zoning ordinance. (Docket Entry # 28, p. 9). Section six of chapter 40A, in pertinent part, states:

[A] zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun, . . ., but shall apply to any change or substantial extension of such use, . . . except where alteration, reconstruction, extension or structural change to a single or two-family residential structure does not increase the nonconforming nature of said structure.

Mass. Gen. Laws ch. 40A, § 6. Plaintiff submits that the City violated this statute by not granting the variance allowing him to reconstruct the pre-existing home on the property. (Docket Entry # 28, p. 9)

         The Massachusetts Supreme Judicial Court uses "a two-part test" to determine if "a pre-existing nonconforming use can be found to fall within the statute's protection." Grieco v. Cityof Medford Zoning Bd. of Appeals, 1995 WL 1688634, *4 (Mass.Super.Ct. Oct. 12, 1995) . First, the court asks (1) whether there was a "use of the property 'lawfully in existence'" on the date of the "proposed amendment to the zoning ordinances, " and (2) whether the use of the property was a "'change or substantial extension'" of its prior use. DerbyRefining Co. v. City of Chelsea, ...


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