United States District Court, D. Massachusetts
MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT
AS TO DEFENDANT CITY OF PEABODY (DOCKET ENTRY # 65)
MARIANNE B. BOWLER, United States Magistrate Judge.
action concerns attempts by plaintiff John Barth
(“Barth”) to build a residential dwelling on
property he purchased in Peabody, Massachusetts. Presently,
he moves for summary judgment against defendant City of
Peabody (“the City”) on Count I of the complaint.
(Docket Entry # 65). The City opposes the motion. (Docket
Entry # 82).
construing the pro se complaint, Count I raises claims
against the City for: (1) a taking of Barth's property
without just compensation under sections six and ten of
Massachusetts General Laws chapter 79 (“chapter
79”) and under the Fifth and Fourteenth Amendments; (2)
a denial of equal protection under the Fourteenth Amendment
and the state constitution; (3) a denial of property without
due process under the Fourteenth Amendment and the state
constitution; (4) a violation of the prohibition against
application of an ex post facto law under article I, section
nine of the Constitution; and (5) violations of 42 U.S.C.
§§ 1985(3) and 1986. (Docket Entry # 1).
also repeatedly cites to “the Civil Rights Act[s, ] 42
USC [sic] §§ 1981-1986, ” including 42 U.S.C.
§ 1983 (“section 1983”). (Docket Entry # 1).
It is not entirely clear from the pro se complaint that Barth
is presenting direct claims under the federal Constitution as
opposed to more appropriate section 1983 claims. Ordinarily,
“‘a litigant complaining of a violation of a
[federal] constitutional right does not have a direct cause
of action under the United States Constitution but rather
must utilize 42 U.S.C. § 1983.'” Murphy v.
Baker, Civil Action No. 15-30187-MGM, 2017 WL 2350246,
at *2 (D. Mass. May 4, 2017), report and recommendation
adopted, 2017 WL 2363114 (D. Mass. May 30, 2017);
see also Wilson v. Moreau, 440 F.Supp.2d 81, 92
(D.R.I. 2006). Accordingly, this court construes the claims
under the federal Constitution as brought under section
1983. In any event, a section 1983 claim as well
as a direct claim under the Constitution require the
plaintiff to show the violation of a constitutional right.
See Daniels v. Williams, 474 U.S. 327, 328 (1986)
(section 1983 requires conduct by state actor that
“deprived [the plaintiff] of rights, privileges, or
immunities secured by the Constitution or laws of the United
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., 2014 WL 7388805, at
*2 (1st Cir. Dec. 30, 2014) (quoting Wynne v. Tufts
University School of Medicine, 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 District, 741
F.3d 295, 301 (1st Cir. 2014).
issue is ‘genuine' when a rational factfinder could
resolve it [in] either direction” and a “fact is
‘material' when its (non)existence could change a
case's outcome.” Mu v. Omni Hotels Mgt.
Corp., 882 F.3d 1, 5 (1st Cir. 2018); accord Green
Mountain Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st
Cir. 2014). The record is viewed in favor of the nonmoving
party, i.e., the City, and reasonable inferences are drawn in
its favor. See Garcia-Garcia v. Costco Wholesale
Corp., 878 F.3d 411, 417 (1st Cir. 2017) (court examines
“‘record in the light most favorable to the
nonmovant' and must make ‘all reasonable inferences
in that party's favor'”); Ahmed v.
Johnson, 752 F.3d 490, 495 (1st Cir. 2014). In reviewing
a summary judgment motion, a court may examine “all of
the record materials on file” even if not cited by the
parties. Geshke v. Crocs, Inc., 740 F.3d 74, 77 (1st
Cir. 2014); Fed.R.Civ.P. 56(c)(3).
“‘“[C]onclusory allegations, improbable
inferences, and unsupported speculation”'”
are ignored. Garcia-Garcia v. Costco Wholesale
Corp., 878 F.3d at 417. Adhering to this framework, the
facts are as follows.
about September 9, 2011, Barth purchased property located at
4 Lynn Street in Peabody for $1, 000 from the Federal Home
Loan Mortgage Corporation (“Freddie Mac”).
(Docket Entry # 67, Ex. D, p. 35). The property consisted of
only land because the City, due to safety concerns or
“the prior owner, ” Freddie Mac, demolished the
building on April 8, 2011. (Docket Entry # 67, Ex. D, p. 35)
(Docket Entry # 67, Ex. A, p. 10); Barth v. City of
Peabody, Docket No. 14-P-299 (Mass. App. Ct. Jan. 12,
2015. The land is zoned for residential property
and the former building consisted of a one-story,
two-bedroom, 750 square foot house built in or around 1800.
(Docket Entry # 67, Ex. D, p. 35).
fiscal year (“FY”) 2010, the Board of Assessors
of the City of Peabody (“the board of assessors”)
assessed the land, which consisted of .042 acres, as worth
$116, 200 and the building as worth $22, 600. (Docket Entry #
67, Ex. D, p. 41). The board of assessors assessed a
neighboring property at 2 Lynn Street consisting of .102
acres of land as worth $104, 100 and a two-story,
multi-bedroom, 3, 370 square foot home built in 1899 on the
property as worth $220, 400 in FY 2010. Defendant RK Realty
Trust is the record owner on the property card and defendant
Richard DiPietro is a trustee. (Docket Entry # 67, Ex. G, p.
43). The FY 2010 assessed value of another neighboring
property consisting of .158 acres of land and a one-story,
two-bedroom, 1, 382 square foot house built in or around 1800
at 6 Lynn Street was $118, 000 and $75, 200, respectively.
(Docket Entry # 67, Ex. G, p. 42).
2011, the board of assessors assessed the land of Barth's
property as worth $89, 000 and the building as worth $5, 900.
Meanwhile, the assessed value of the land at 2 Lynn Street
increased to $119, 700 and the building decreased to $168,
100 for FY 2011. (Docket Entry # 67, pp. 34, 40). The FY 2011
assessed value of the land at 6 Lynn Street similarly
increased to $135, 700 and the building decreased slightly to
$74, 200. (Docket Entry # 67, pp. 33, 39).
2012, the board of assessors assessed the value of the land
as $3, 200 and the building as $5, 900 for Barth's
property. (Docket Entry # 67, Ex. G, pp. 32, 35). Meanwhile,
the assessments of the land and the building at 2 Lynn Street
remained the same for FY 2012 as did the assessments of the
land and the building at 6 Lynn Street. (Docket Entry # 67,
Ex. G, pp. 33-34, 36-37). In FY 2013, the board of assessors
afforded no value to Barth's property other than the land
assessed at $3, 200. (Docket Entry # 67, Ex. G, p. 32).
October 12, 2011, Barth submitted an application for a
variance to rebuild the home “demolished by the prior
owner” to the City Clerk's Office of the City of
Peabody. (Docket Entry # 67, Ex. A, pp. 10-11). In lieu of a
variance, the application requested a finding “that no
variance is required” to rebuild the house because
Massachusetts General Laws chapter 40A (“chapter
40A”), section six, exempts the reconstruction of homes
built prior to the 1975 enactment of the statute from local
zoning ordinances when the reconstruction “‘does
not increase the nonconforming nature of said
structure.'” (Docket Entry # 67, Ex. A, pp. 10-11). The
application proposed a number of dimensions and setbacks for
the house, including “rebuilding within the original
location of the home” on piers to handle flooding with
a “landscape buffer.” (Docket Entry # 67, Ex. A,
letter dated October 14, 2011, the Building Commissioner of
the City of Peabody (“the commissioner”)
determined that Barth needed a variance from the Zoning Board
of Appeals of the City of Peabody (“the ZBA”) to
build the proposed home due to its noncompliance with
setbacks, lot frontage, and other dimensions in the City of
Peabody Zoning Ordinance 2011, as amended (“the 2011
Peabody Zoning Ordinance”), section 7.2 (“section
7.2”). (Docket Entry # 67, Ex. B, p. 12). Unable to
obtain a building permit for the proposed home, Barth applied
to the ZBA for a variance.
16, 2012, the ZBA held a public hearing and two days later
denied the application for a variance because the proposed
dwelling did not comply with left, right, and rear setbacks;
lot size; lot frontage; buildable area width; and required
minimum parking spaces in section 7.2. (Docket Entry #
67, Ex. E, p. 26). The ZBA thereby applied the 2011 existing
ordinance, section 7.2, to the proposed home which, as
reflected in one of the application's options, was within
the original location or footprint subject to piers and a
landscape buffer. The differences between the proposed
dimensions and the existing requirements in section 7.2 were
substantial. For example, section 7.2 required a 15, 000
square foot lot to build the home whereas the lot was 1, 841
square feet. The 15-foot required, left yard setback in
section 7.2 was also significantly greater than the proposed,
three-foot left yard setback. The ZBA decision identifies
similar, significant discrepancies between the required and
the proposed right, front, and rear setbacks. (Docket Entry #
67, Ex. E, p. 26).
with the ZBA's decision, Barth filed a complaint in
Massachusetts Superior Court (Essex County) (“the trial
court”) against the City on August 2, 2012. The
two-count complaint alleged that the ZBA's denial of the
variance effectuated a public taking of the land without
compensation under sections six and ten of chapter 79, the
MCRA, the Massachusetts constitution and the Declaration of
Rights. (Docket Entry # 82-2, p. 3). In a comprehensive
opinion, the trial court allowed the City's summary
judgment motion. The court explicitly and repeatedly stated
that Barth “is not appealing the decision of the ZBA
under” section 17 of chapter 40A. (Docket Entry #
82-2). The trial court rejected the state law eminent domain
claim brought under chapter 79, sections six and ten, because
there was no taking. (Docket Entry # 82-2). In January 2015,
the Massachusetts Court of Appeals (“the appeals
court”) affirmed the judgment on the basis that Barth
did not appeal the ZBA's decision under section 17 of
chapter 40A and, accordingly, did not exhaust his
administrative remedies. Barth v. City of Peabody,
Docket No. 14-P-299 (Mass. App. Ct. Jan. 12, 2015; (Docket
Entry # 82-1).
Constructive Taking of Barth's Property
initially argues that section six of chapter 40A exempts the
rebuilding of preexisting, nonconforming structures from the
City's zoning ordinances. According to Barth, the
City's application of the 2011 Peabody Zoning Ordinance
to require a variance and the denial of that variance
therefore constituted a taking without compensation under the
Fifth Amendment and the Massachusetts eminent domain
statutes, namely, sections six, ten, and 14 of chapter 79.
(Docket Entry # 66).The City contends that: (1) Barth did not
exhaust his “administrative and prior judicial
remedies” by appealing the ZBA's denial of the
variance under chapter 40A, section 17; and (2) no actual or
constructive taking took place. (Docket Entry # 82).
to the first argument and citing Williamson County
Regional Planning Commission v. Hamilton Bank, 473 U.S.
172, 190-191 (1985) (“Williamson”), the
City maintains that Barth's failure to appeal the denial
of the variance under section 17 of chapter 40A in state
court bars any further relief in federal court.
Williamson imposes a prudential, “binary
test” to bring a Fifth Amendment takings claim in
federal court. Marek v. Rhode Island, 702
F.3d 650, 653 (1st Cir. 2012); see also Horne v.
Department of Agriculture, 569 U.S. 513, 526 (2013)
(“prudential ripeness . . . is not, strictly speaking,
jurisdictional”) (internal quotation marks and citation
omitted); Perfect Puppy, Inc. v. City of E. Providence,
R.I., 807 F.3d 415, 421 (1st Cir. 2015) (“we
confess that we are not 100% sure that the state-exhaustion
requirement actually is jurisdictional”) (citing
Williamson, 473 U.S. at 194, and Horne, 569
U.S. at 526); Athanasiou v. Town of Westhampton, 30
F.Supp.3d 84, 87-88 (D. Mass. 2014) (“in recent years,
however, the Supreme Court has clarified that this ripeness
requirement is a prudential limitation, rather than an
Article III jurisdictional limitation”). “For a
takings claim to be ripe, prior state administrative and/or
judicial processes not only must have wrought a taking of
particular property but also must have established the
sovereign's refusal to provide just compensation for the
property taken.” Marek v. Rhode Island, 702
F.3d at 653 (citing Williamson, 473 U.S. at 186);
accord Horne v. Department of Agriculture, 569 U.S.
at 526 (Fifth Amendment claim is premature until “the
Government has both taken property and denied just
regulatory takings claim such as Barth's claim, the first
requirement thus “entails the existence of a
final decision as to ‘the application of the
regulations to the property.'” Marek v. Rhode
Island, 702 F.3d at 653 (emphasis added). The reasoning
for this requirement is that a “taking involves a
complex inquiry into facts that ‘simply cannot be
evaluated until the administrative agency has arrived at a
final, definitive position regarding' its application of
the law to the land in question.” Downing/Salt Pond
Partners, L.P. v. Rhode Island and Providence
Plantations, 643 F.3d 16, 20 (1st Cir. 2011) (quoting
Williamson, 473 U.S. at 191); see Palazzolo v.
Rhode Island, 533 U.S. 606, 618 (2001). Further
elucidating this reasoning, the Supreme Court in
Palazzolo explains that:
[A] takings claim based on a law or regulation which is
alleged to go too far in burdening property depends upon the
landowner's first having followed reasonable and
necessary steps to allow regulatory agencies to exercise
their full discretion in considering development plans for
the property, including the opportunity to grant any
variances or waivers allowed by law. As a general rule, until
these ordinary processes have been followed the extent of the
restriction on property is not known and a regulatory taking
has not yet been established.
Palazzolo v. Rhode Island, 533 U.S. at 620-21.
rejecting all of the building options Barth presented, the
ZBA reached a final decision. Similarly, the Court in
Palazzolo rejected a ripeness argument because the
case was “unlike those . . . which arose when an owner
challenged a land-use authority's denial of a substantial
project, leaving doubt whether a more modest
submission or an application for a variance would be
accepted.” Palazzolo v. Rhode Island, 533 U.S.
at 620 (emphasis added). Here, there is little doubt that the
regulatory agency, the ZBA, will revisit and allow even a
limited, smaller structure because Barth proposed and the ZBA
rejected this solution as one of the five options he
presented in the application. The extent of the restriction on
the property is known, namely, it remains an unbuildable lot
that is not subject to a variance from the dimension schedule
in section 7.2.
City's argument that Barth did not exhaust his state
judicial remedies by appealing the ZBA's denial of the
variance to state court under chapter 40A more readily
invokes the second Williamson requirement. This
requirement “entails a showing that the plaintiff has
run the gamut of state-court litigation in search of just
compensation (provided, however, that the state makes
available adequate procedures for this purpose).”
Marek v. Rhode Island, 702 F.3d at 653. The
consequences of a failure to pursue the adequate state court