United States District Court, D. Massachusetts
MARIA A. KITRAS and JAMES J. DECOULOS, AS CO-TRUSTEES OF THE GORDA REALTY TRUST, Plaintiffs,
PETER TEMPLE, et al., Defendants.
MEMORANDUM AND ORDER
ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE.
Maria A. Kitras and James J. Decoulos, as co-trustees of the
Gorda Realty Trust (the "Trust"), allege that the
town of Aquinnah (the "Town"), and certain of its
boards and officials, prevented them from making improvements
on their real estate through improper delay and denial of
regulatory approval, which amounted to a temporary taking of
their property and a violation of their rights to equal
protection. Currently pending before the Court are
Defendants' Motion to Dismiss [ECF No. 15],
Plaintiffs' Motion for Leave to File Amended Complaint
[ECF No. 25], and Plaintiffs' Motion for Hearing on
the pending motions [ECF No. 28].
Motion for Hearing is DENIED. For the reasons set
forth below, the Court GRANTS the Defendants'
Motion to Dismiss without prejudice to whatever right
Plaintiffs might have to pursue both counts of the Complaint
in state court and DENIES Plaintiffs' Motion for
Leave to File Amended Complaint.
1998, Plaintiffs began seeking regulatory approval to build a
three-bedroom home and related improvements on the
Trust's property located in the Town. [ECF No. 1
¶¶ 1-2, 23] ("Compl."). Since then,
Plaintiffs have participated in several administrative and
judicial proceedings in pursuit of their proposed
construction plan, id ¶25, including with the Town
Conservation Commission, the Massachusetts Department of
Environmental Protection, the Division of Administrative Law
Appeals, and the Middlesex Superior Court. Id.
¶¶26-36. Plaintiffs also sought and obtained
approval of their proposed septic system from the Town Board
of Health and alerter from the Natural Heritage and
Endangered Species Program confirming that their proposal
would not unduly harm an endangered or threatened species.
this protracted series of proceedings, on July 22, 2011,
Plaintiffs applied to the Town Planning Board and its Plan
Review Committee for a Special Permit pursuant to the Town
bylaws. Id. ¶45. The bylaws required a
"Special Permit" from the Plan Review Committee for
the siting of a new structure or dwelling on the property, or
for making additions to existing structures. Id; [ECF No.
16-1 at 9]. Plaintiffs provided the Plan Review Committee
with supporting documents to demonstrate that, among other
things, their proposal satisfied the bylaws' requirement
of a minimum amount of frontage. Compl. ¶¶ 49-52.
At a public hearing on the application, the Plan Review
Committee acknowledged that it had previously approved
applications proposing equal or less frontage compared to
Plaintiffs' application. Id. ¶ 53.
Nonetheless, on December 6, 2011, the Plan Review Committee
denied the application on several grounds, including that the
application lacked the required amount of frontage.
Id. ¶ 2; [ECF No. 16-1 at 4]. The Plan Review
Committee did not state its reason for treating
Plaintiffs' application differently from applications
approved with equal or less frontage. Compl. ¶53.
filed a complaint in the Massachusetts Land Court seeking
review of the denial of their Special Permit application.
[ECF No. 16-1 at 3]. As a preliminary matter, the Land Court
dismissed certain claims for lack of subject matter
jurisdiction, including Plaintiffs' takings claims and
equal protection claims. [ECF No. 16-1 at 3-5]. While review
of the validity of the Special Permit denial remained pending
in the Land Court, Plaintiffs refiled the dismissed claims in
Massachusetts Superior Court, essentially alleging that
Defendants' delay or denial of regulatory approvals
constituted a taking and that their Special Permit
application was treated differently than similarly situated
applicants in violation of their rights to equal protection.
[ECF No. 24-5 at 32-34]. Defendants then removed the Superior
Court case to federal court. Compl. ¶ 5; [ECF No. 24 at
7; ECF No. 24-5 at 2]. Thereafter, on or around August 13,
2013, the parties entered into a "stand still"
agreement, pursuant to which the parties voluntarily
dismissed the case in federal court without prejudice and
agreed that Plaintiffs could refile their claims after a
dispositive ruling in the Land Court action became final.
Compl. ¶ 5.
October 15, 2013, on cross motions for summary judgment, the
Land Court ruled that Plaintiffs' application lacked
sufficient frontage and failed to satisfy the applicable
bylaw. [ECF No. 16-1 at 23]. The Land Court held:
[Plaintiffs' July 22, 2011 application for a Special
Permit did not depict adequate frontage under the [Town]
Zoning By-Law, and for that reason, the decision of the
[Town] Plan Review Committee dated December 6, 2011 ... is
not arbitrary, capricious, or contrary to law, will not be
overturned or upset by the court, and will stand as issued.
No. 16-2 at 4]. Plaintiffs appealed the decision to the
Massachusetts Appeals Court, but ultimately filed a motion to
voluntarily dismiss their appeal as moot, because they
"ha[d] since obtained approvals from the [Town] for a
development plan on a lot owned by the [Trust], with rights
of access pursuant to a side agreement with abutters."
[ECF No. 16-4 at 5]. The Appeals Court allowed the motion to
dismiss the appeal, but declined to vacate the Land
Court's judgment. Id. 5-6. Shortly after the
Appeals Court entered its decision, Plaintiffs filed the
instant case in this Court.
now move to dismiss this case for lack of subject matter
jurisdiction and failure to state a claim. "Under a Rule
12(b)(1) motion to dismiss for lack of subject-matter
jurisdiction based solely on the pleadings, '[i]f the
well-pleaded facts, evaluated in [the light most hospitable
to the plaintiffs' theory of recovery and drawing all
reasonable inferences in the plaintiffs' favor], do not
support a finding of federal subject-matter jurisdiction,
' the court must dismiss the action." Adams v.
Town of Montague, No. 14-30178, 2015 WL 1292402, at *1
(D. Mass. Mar. 23, 2015) (alterations in original) (quoting
Fothergill v. United States, 566 F.3d 248, 251 & n.l
(1st Cir. 2009). "Similarly, under a Rule 12(b)(6)
motion to dismiss for failure to state a claim, if a
complaint, based on the well-pleaded factual allegations,
fails to allege 'content that allows the court to draw
the reasonable inference that the defendant is liable'
based a legally viable claim, it is subject to
dismissal." Id. (quoting Ashcroft v.
Iqbal 556 U.S. 662, 678 (2009)).