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Slavas v. Town of Monroe

United States District Court, D. Massachusetts

March 10, 2017

TOWN OF MONROE, et al. Defendants.



         I. Introduction

         Currently before the court is the motion of defendants Town of Monroe (“Monroe”), David Nash, Larry Thoreson, Carla Davis-Little, D.J. Oakes, and Brenda J. Church to dismiss the federal and state law claims brought against them by the plaintiffs, James P. Slavas and Spray Research, Inc. (“SRI”) (collectively, “Plaintiffs”) in connection with the eviction of SRI from so-called Building 1 of the former Deerfield Glassine Paper Mill in Monroe (Dkt. No. 9). Plaintiffs claim principally that Church, building commissioner for Monroe, with the other defendants, violated their constitutional rights and various rights established by state law by evicting the business from a building in which it was a hold-over lessee without a pre-deprivation hearing. Each of the defendants moves to dismiss all claims asserted against it, him, or her. The parties have consented to this court's jurisdiction (Dkt. No. 15). See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. The court heard the parties at oral argument and took defendants' motion to dismiss under advisement (Dkt. No. 30). The court GRANTS so much of defendants' motion to dismiss as seeks dismissal with prejudice of Plaintiffs' federal claims. In view of the early stage of this litigation, the court dismisses the pendent state law claims without prejudice to Plaintiffs' reassertion of them in state court.

         II. Statutory Framework

         “Massachusetts law provides for both pre- and post-deprivation process in the condemnation . . . of a building.” S. Commons Condo. Ass'n v. City of Springfield, 967 F.Supp.2d 457, 460 (D. Mass. 2013), aff'd 775 F.3d 82 (1st Cir. 2014). Massachusetts General Laws ch. 143, § 6 provides, in pertinent part, that a local building commissioner,

immediately on being informed by report or otherwise that a building or other structure or anything attached thereto or connected therewith in that city or town is dangerous to life or limb or that any building in that city or town is unused, uninhabited or abandoned, and open to the weather, shall inspect the same; and he shall forthwith in writing notify the owner, lessee or mortgagee in possession to remove it or make it safe if it appears to him to be dangerous, or to make it secure . . . . If it appears that such structure would be especially unsafe in case of fire, it shall be deemed dangerous within the meaning hereof, and the local inspector may affix in a conspicuous place upon its exterior walls a notice of its dangerous condition, which shall not be removed or defaced without authority from him.

         Section 7 of Chapter 143 provides that an owner, lessee or mortgagee notified that a building is dangerous has until noon the following day to remove the structure or make it safe. See S. Commons Condo. Ass'n, 967 F.Supp.2d at 460 (citing Mass. Gen. Laws ch. 143, § 7; 780 C.M.R. § 116.3). If an owner, lessee, or mortgagee in possession of a building deemed to be unsafe fails to take steps to repair, secure, or demolish the building, the town building commissioner is charged with convening a properly constituted Board of Survey, which must make “'a careful survey of the premises.'” Gallant v. City of Fitchburg, 739 F.Supp.2d 39, 42 (D. Mass. 2010) (quoting Mass. Gen. Laws ch. 143, § 8; 780 C.M.R. § 121.4). “After the survey is made, ‘[a] written report of such survey shall be made, and a copy thereof served' on the owner.” Id. (quoting Mass. Gen. Laws ch. 143, § 8). “[I]f the survey report ‘declares such structure to be dangerous or to be unused, uninhabited or abandoned, and open to the weather, ' and if the owner fails to make the building safe and secure, the building commissioner ‘shall cause it to be made safe or taken down or to be made secure.'” Id. (quoting Mass. Gen. Laws ch. 143, § 9; citing 780 C.M.R. § 121.5). The building commissioner is authorized, if public safety so requires, to enter a dangerous building immediately, with such assistance as she may require, and, using the summary process procedures set forth in Massachusetts General Laws ch. 239 or otherwise, to remove or evict the building's tenants or occupants. See Mass. Gen. Laws ch. 143, § 9.

         The statutory scheme provides a remedy for an individual with a property interest aggrieved by an order to make safe or remove a structure identified as dangerous.

An owner can challenge such [an] order by appealing the order to the superior court for the county where the structure is located. Ch. 143, § 10 (providing that an owner may proceed under ch. 139, § 2, for a remedy when aggrieved); 780 C.M.R. § 116.6. See generally Gallant, . . . 739 F.Supp.2d [at] 41-42 . . . (discussing the statutory scheme for orders to make buildings safe and secure and the remedies available to challenge such orders). Although this section allows for a challenge to the order, the [building commissioner's] actions are not halted by such a challenge. Ch. 143, § 10 (stating that ‘no provision of [ch. 139, § 2] shall be construed so as to hinder, delay or prevent the local [commissioner] acting and proceeding under section nine”); 780 C.M.R. § 116.6.
Consequently, in any circumstance where an owner desires to challenge the action taken by the building [commissioner] - whether it be the original order by the building [commissioner] or the immediate demolition of a structure deemed hazardous to public safety . . . - the owner must proceed under section 2 of chapter 139. The owner must commence a civil action within three days after the service of the challenged order. Chapter 139, § 2.

S. Commons Condo. Ass'n, 967 F.Supp.2d at 461. “The property owner is afforded a jury trial for the purpose of affirming, annulling, or altering the order at issue.” Gallant, 739 F.Supp.2d at 42. Such actions have priority over other actions on the Superior Court docket. See Id. The remedy under section 2 of chapter 139 remains available even if suit is instituted after, rather than before, the property deprivation occurs. See S. Commons Condo. Ass'n v. Charlie Arment Trucking, Inc., 775 F.3d 82, 90 (1st Cir. 2014). In other words, Massachusetts law provides for compensation if a jury subsequently decides that a challenged order was wrongly issued. See Id. See also Morais v. City of Lowell, 738 N.E.2d 1158, 1161 (Mass. App. Ct. 2000) (plaintiffs' allegation that city and municipal officials failed to provide the notice required under Chapters 143 and 139 prior to vacating the building, thereby depriving plaintiffs of the opportunity to make the building safe, stated a claim under the Massachusetts Tort Claims Act, Mass. Gen. Laws ch. 258).

         III. Facts Alleged in Plaintiffs' Complaint

         1. SRI and its Facilities

         Slavas is the president and owner of SRI, a Massachusetts corporation engaged in testing, research, and product development related to spray atomizer performance, investigation of spray behavior, and application of spray technologies (Dkt. No. 1 at 2-4, ¶¶ 3, 21). On August 19, 1999, SRI entered into a fifteen-year lease arrangement with Monroe Bridge Holding Corporation, owner of the former Deerfield Glassine Paper Mill in Monroe. The mill complex consists of four separate buildings, known locally as the Green Building, Building 1, Building 2, and Building 3. SRI's lease was for the fourth floor of Building 1 (id. at 3, ¶¶ 16-18). On September 2, 1999, the Franklin County Cooperative Inspection Program issued a building permit to SRI to create a research and development laboratory in 4, 145 square feet of the fourth floor of Building 1. The remainder of the space on the fourth floor served as a storage area. SRI's laboratory consisted of an extensive array of sophisticated and expensive equipment, including large pieces such as a low-speed wind tunnel and a closed-loop water tunnel (id. at 3-4, ¶¶ 19, 22).

         SRI did not renew its lease for space at Building 1 at the conclusion of the initial fifteen-year leasehold. It nonetheless continued to occupy the premises in Building 1 and conduct its business therein (id. at 3-4, ¶¶ 18, 22, 24).

         2. SRI's eviction

         Church was appointed to the post of building commissioner by the Monroe Board of Selectmen on or around April 20, 2015 (id. at 4, ¶ 25). At some point around the time of her appointment, she inspected the mill complex and decided that it was dangerous (id. at 5, ¶¶ 26, 28). She did not notify Slavas of this determination (id., ¶ 28). Instead, she convened a Board of Survey, consisting of Larry Thoreson, Carla Davis-Little, D.J. Oakes, and Stephen Eddington (id. at 2-3, 6, ¶¶ 8-12, 31).[1] On April 30, 2015, Davis-Little notified Slavas by telephone that the Board of Survey would be inspecting the mill complex on May 1, 2015 (id. at 7, ¶ 37). On May 1, 2015, without posting a prior public notice of its intent do so, the Board of Survey convened its meeting and inspection at the mill complex, deliberating near SRI's loading dock for approximately ten minutes as recorded by a security camera (id., ¶ 39). The Board of Survey “determined that the entire mill complex was unsafe” (id.).

         On May 13, 2015, Church sent Davis-Little an email stating:

I have been doing some research on each step and will be sending it to you. The first step is to start the foreclosure and then the building. There are only four law firms that do this process in the state. I have worked with one of them and will forward email. This must be done so we can take action on the person who is in the building illegally.

(id. at 8, ¶ 43). Davis-Little told the Board of Selectmen, which consisted of defendants David Nash, Larry Thoreson, and herself (“Selectmen”), about this email at a May 18, 2015 regularly scheduled meeting of the Selectmen (id. at 2, 8, ¶¶ 7-9, 43).

         On May 19, 2015, without prior notice to Slavas or SRI, Church arrived at Building 1 with two Massachusetts State Troopers and Louise Vera, the State Building Inspector for District 2. The troopers escorted Slavas from SRI's facilities, and Church posted the building with placards denominating Building 1 as “Condemned as Dangerous and Unsafe” (id. at 8, ¶ 45).

         3. Post-Eviction Proceedings

         On May 26, 2015, the Selectmen convened an emergency meeting to discuss Church's actions with regard to SRI and Building 1. Slavas attended the meeting with his attorney and a representative of Whetstone Engineering (“Whetstone”), an engineering firm Slavas had hired to perform a structural analysis of Building 1 and prepare a written report of the analysis (id. at 9, ¶¶ 51-52). The results of the Whetstone analysis were presented to the Selectmen, and a copy of the written analysis was given to Church. In its report, Whetstone stated that Building 1 was structurally competent and in no “imminent danger of failure or collapse endangering life and limb and/or public safety” (id., ¶ 52). According to the Whetstone report, the roof showed signs of recent leakage and minor repairs, but had no major damage or deterioration. The loading dock, although in need of some repairs, was capable of handling the removal of SRI's laboratory equipment (id.).

         Whetstone's conclusion that Building 1 was structurally sound was consistent with an analysis of the structural safety of the mill complex that had been commissioned by the Massachusetts Department of Transportation (“DOT”) and performed approximately one year earlier in connection with the reconstruction of a highway bridge adjacent to the mill complex. The DOT analysis had concluded that the Green Building was in poor condition. As to Building 1, which housed SRI's laboratory, the DOT analysis noted “minor wear and tear” in SRI's space, cracks above a couple of windows, and staining and cracking on the north wall. The DOT analysis, a copy of which DOT provided to the Town of Monroe, did not characterize Building 1 as structurally unsound (id. at 9-10, ¶ 53).

         After the Selectmen heard from Whetstone, the Selectmen convened a closed executive session attended by Church and town counsel (id. at 8-10, ¶¶ 47, 51, 54). During the executive session, Church gave the Selectmen a report prepared by the Board of Survey, entitled “Damaged remains of the Deerfield Glassine paper Mill, 16 Depot Street, Monroe, MA 01350” (id. at 8, ¶ 47).

         On June 1, 2015, Slavas received a Revised Notice of Violation stating that it was Church's intention to give Slavas five days to remove the equipment he used to operate his business from Building 1 (id. at 10, ¶ 55). Between June 1 and 6, 2015, Slavas and his employee worked fifteen hours a day to remove the most valuable and portable SRI equipment from Building 1 to a self-storage facility (id., ¶ 57). On June 3, 2015, at the request of town counsel, Slavas submitted a comprehensive list of SRI equipment that remained in Building 1, enumerating the tasks and time required to disassemble, pack, and remove the major pieces of equipment. Slavas estimated that a minimum of 288 hours would be required for the task and requested the time he deemed necessary to complete removal of the SRI equipment (id. at 10-11, ¶ 58). On June 5, 2015, Church issued a No Trespassing Order for the mill complex and directed SRI to submit, by June 12, 2015, a floor plan identifying the locations that housed equipment that needed to be moved, the safe egress paths to be used by movers, and a document from a Massachusetts design professional identifying the means and methods and egress paths for removal of SRI's equipment (id. at 10-11, ¶ 60). By June 11, 2015, Slavas had complied with this directive (id. at 11, ¶¶ 61-62). On the same date, Slavas received a copy of the Board of Survey's report on the status of the buildings at the mill complex, in which the Board of Survey concluded that the mill complex was unsafe (id. at 8, ¶ 47).

         On June 15, 2015, Church responded to Slavas's request for additional time to remove the SRI equipment. She stated that Building 1 posed a danger to life and limb. She approved a maximum of nine days with four workers working eight hours a day for removal of SRI's equipment from Building 1 (id. at 11, ¶ 63), but conditioned this access on her receipt of additional information from Slavas (id. at 11-12, ¶¶ 67-68, 76-78). On August 8, 2015, Church notified Slavas that she was giving him from August 11th to August 21st to remove the equipment, after which the building would be secured and utilities to the building shut off. Two days later, on August 10, 2015, the Selectmen voted to request that Church give Slavas and SRI 24 days to remove the SRI equipment. The Selectmen stressed that they “would like this matter resolved” (id. at 13, ¶¶ 80-81). Church acquiesced in the Selectmen's request, albeit under protest (id., ¶ 82).

         In the meantime, on June 4, 2015, Slavas had asked Gordon Bailey, the State Building Inspector for District 1, to conduct an expedited inspection of Building 1 to see if the eviction notice issued by Church was warranted. Bailey referred the request to Vera, who was the Building Inspector for District 2 (id. at 10, ¶ 59). On June 16, 2015, Slavas communicated his request for an inspection of Building 1 to Vera. On June 18, 2015, Bailey, Vera, and Church inspected the exterior of Building 1. Vera subsequently found that “the building is seriously compromised.” Vera did not provide Slavas with a detailed summary or report of the inspection that was the basis for her conclusion (id. at 12, ¶¶ 70-72). The content of the Building Inspector's report was the basis of Church's concern about allowing Slavas an extended period of time to remove SRI equipment from Building 1 (id. at 13, ¶ 82).

         Ultimately, Slavas and his employee were unable to complete removing SRI equipment in the time authorized by Church. Some heavy equipment was broken up for scrap and some SRI equipment remains in Building 1 (id. at 13, ¶ 83). Plaintiffs claim damages based on the disruption of SRI's existing business and lost business opportunities, the value of lost SRI equipment and equipment replacement costs, and a loss of personal income for Slavas (id. at 14-15, ¶¶ 90-98).

         IV. Discussion

         1. Stand ...

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