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Barth v. City of Peabody

United States District Court, D. Massachusetts

March 30, 2018

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

          MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT AS TO DEFENDANT CITY OF PEABODY (DOCKET ENTRY # 65)

          MARIANNE B. BOWLER, United States Magistrate Judge.

         This 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).

         Liberally 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;[1] (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).

         Count I 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.[2] 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 States”).

         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., 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).

         “An 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.

         FACTUAL BACKGROUND

         On or 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).[3] 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.[4] 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).

         In 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).

         In FY 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).

         In FY 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).

         On 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.'”[5] (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, p. 11).

         By 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.

         On July 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.[6] (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).

         Dissatisfied 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.[7] (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).

         DISCUSSION

         I. Constructive Taking of Barth's Property

         Barth 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).[8]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).

         Turning 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 compensation”).

         In a 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.

         By 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.[9] 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.

         The 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 ...


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