United States District Court, D. Massachusetts
MEMORANDUM AND ORDER RE: PLAINTIFF JOHN EARTH'S
MOTION FOR SUMMARY JUDGMENT(DOCKET ENTRY # 27)
MARIANNE B. BOWLER United States Magistrate Judge
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
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
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) .
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).
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").
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. They are as follows.
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,
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.
Failure to Exempt Pre-existing Home from Zoning
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
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)
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.
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