Kennie v. Natural Resource Dept. of Dennis

• Decision Date: 10 July 2008
• Docket Number: SJC-10052
• Citation: 451 Mass. 754,889 N.E.2d 936
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Steven KENNIE & another<SMALL><SUP>1</SUP></SMALL> v. NATURAL RESOURCE DEPARTMENT OF DENNIS & another.<SMALL><SUP>2</SUP></SMALL>

889 N.E.2d 936

451 Mass. 754

Steven KENNIE & another¹ v. NATURAL RESOURCE DEPARTMENT OF DENNIS & another.²

SJC-10052

Supreme Judicial Court of Massachusetts, Barnstable.

Argued March 3, 2008.

Decided July 10, 2008.

Douglas H. Wilkins, Cambridge, for the plaintiffs.

John J. Davis, Boston, for Alan S. Marcy.

Leonard H. Kesten, Boston, for Natural Resource Department of Dennis.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

BOTSFORD, J.

The plaintiffs Steven R. Kennie and Julia Lane Hagen, husband and wife, own waterfront property on the Bass River in Dennis.³ This case, brought in part under the Massachusetts Civil Rights Act, G.L. c. 12, § 11I(Act), arises out of the plaintiffs' efforts to apply for and obtain an order of conditions (permit) from the conservation commission of Dennis (commission) in order to construct a pier and dock off the waterfront edge of their property. The principal defendant is Alan S. Marcy, the shellfish constable for the town of Dennis (town).⁴ At issue before us is the viability of the plaintiffs' claim that in connection with their first permit application Marcy threatened or coerced the plaintiffs in order to prevent them from exercising their right to seek the permit and to use and improve their property. A judge in the Superior Court allowed Marcy's motion for summary judgment on this claim, and the Appeals Court affirmed, although on different grounds. Kennie v. Natural Resource Dep't of Dennis, 69 Mass.App.Ct. 158, 866 N.E.2d 983 (2007) (Kennie). We granted the plaintiffs' application for further appellate review. We conclude that the summary judgment record presents genuine issues of material fact concerning whether Marcy's words and conduct did interfere with the plaintiffs' statutory or constitutional rights "by threats, intimidation or coercion," in violation of the Act. We therefore vacate the judgment of the Superior Court and remand for further proceedings.

1. We summarize the facts in the light most favorable to the plaintiffs, as the nonmoving parties on the summary judgment motion.⁵ See DiLiddo v. Oxford St. Realty, Inc., 450 Mass. 66 70, 876 N.E.2d 421 (2007). The plaintiffs own a 2.7 acre piece of property on the Bass River in West Dennis. They sought to build a structure consisting of a stairway, a fixed pier with a ramp, and a floating dock (collectively, dock), extending from their property into the Bass River (location 3).⁶ At some point in 2001, the plaintiffs submitted an application to the commission requesting a permit that would allow them to proceed with the project. General Laws c. 131, § 40, provides that on receiving an application for a permit, a commission "shall hold a public hearing on the proposed activity within twenty-one days of the receipt of said notice." The commission's rules require that any person applying for a permit for a dock must provide the shellfish constable with data detailing the size and frequency distributions for shellfish on the proposed site. The shellfish constable is not a member of the commission, but under the town's bylaw he is directed to receive the shellfish information and provide comments to the commission.

In July, 2001, to accompany their application as required by the commission's rules, the plaintiffs submitted a report by Jacob Bruinooge, a shellfish expert they had hired, as well as reports from a biologist, a senior scientist at a marine ecology laboratory, and an engineer. Bruinooge's report was based on a shellfish survey he conducted, also in July, 2001, that revealed a shellfish density of no more than .0043 per square foot. In July, 2001, and again in October, before any additional surveys were conducted, Marcy, in his capacity as shellfish constable, submitted reports to the commission recommending that it deny the plaintiffs' application because of significant shellfish beds at the proposed dock site.

The plaintiffs focus on three statements Marcy made to Steven Kennie. During a November 15, 2001, conversation, after the plaintiffs' permit application had been filed with the commission Marcy told Kennie that he was "mandated to do whatever it takes to prevent docks" from being built in the area. In a November 27 conversation between the two, Marcy said that he was surprised by the "quantity of shellfish that [Bruinooge] found" because he thought Bruinooge would have found even fewer shellfish around location 3, and that had he known Kennie was going to conduct a survey Marcy "could have done something about it." Finally, on January 10, 2002, Marcy told Kennie that the town was going to conduct its own survey of the site. When Kennie questioned the usefulness of additional surveys in light of Bruinooge's findings that there were few shellfish in the area, Marcy said that he "could take care of that."

Marcy then arranged for the division of marine fisheries (division) to conduct its own survey of the site, although he refused to notify the plaintiffs when the new survey would be conducted. It was conducted on January 14, 2002, by Terry O'Neil, an employee of the division, with Marcy present. The division's survey revealed shellfish densities of 0.5 per square foot, a density more than one hundred times greater than those found in the Bruinooge survey.⁷ The plaintiffs claim that before the division's survey was conducted, Marcy purchased shellfish from a local vendor and planted them in the water, thus artificially inflating the survey results.⁸

The plaintiffs were told by members of the commission that, in light of the findings in the division's survey, the commission "had all the information [it] needed to offer a denial." Understanding their request to be futile, the plaintiffs withdrew their application for location 3.⁹

The plaintiffs filed their initial complaint in this case on May 16, 2002. It included claims based on the Act, G.L. c. 93A, §§ 2 and 11, and 42 U.S.C. § 1983 (2000). The defendants removed the case to the United States District Court, where a judge granted the plaintiffs' motion to amend the complaint to delete the Federal claims and remanded the case to the Superior Court. The amended complaint included three counts: two claimed violations of G.L. c. 12, § 11I, one based on the plaintiffs' due process rights and one based on the plaintiffs' equal protection rights; and one claimed violation of G.L. c. 93A, §§ 2 and 11. The defendants' motion to dismiss the claims based on G.L. c. 93A was allowed, and the plaintiffs' motion to amend their complaint for a second time was denied.¹⁰ On December 29, 2005, a different judge in the Superior Court (motion judge) granted the defendants' motion for summary judgment on the two remaining claims, both based on G.L. c. 12, § 11I, concluding that Marcy's actions did not interfere with any secured constitutional rights of the plaintiffs.

The plaintiffs appealed from the grant of summary judgment and from the denial of their motion to amend; they did not appeal from the dismissal of their claims under G.L. c. 93A. In affirming the grant of summary judgment, the Appeals Court concluded that any reasonable juror would have understood Marcy's words to imply only that he would take all lawful measures to prevent the project, and therefore his actions could not be interpreted as "threats, intimidation or coercion" within the meaning of the Act, and the plaintiffs had no viable claim under the Act.¹¹ Kennie, 69 Mass.App.Ct. at 162-166, 866 N.E.2d 983.

2. The issue before us is whether the motion judge properly granted summary judgment on the plaintiffs' claim of civil rights violations under the Act. "The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991).

"To establish a claim under the [A]ct, the plaintiffs `must prove that (1) [their] exercise of enjoyment of rights secured by the Constitution or the laws of either the United States or the Commonwealth, (2) have been interfered with, or attempted to be interfered with, and (3) that the interference or attempted interference was by "threats, intimidation or coercion."'" Buster v. George W. Moore, Inc., 438 Mass. 635, 644, 783 N.E.2d 399 (2003), quoting Freeman v. Planning Bd. of W. Boylston, 419 Mass. 548, 564, 646 N.E.2d 139, cert. denied, 516 U.S. 931, 116 S.Ct. 337, 133 L.Ed.2d 235 (1995). On appeal, the plaintiffs pursue claimed violations of their due process rights secured by the Massachusetts Declaration of Rights.¹² Marcy argues that, as the motion judge determined, he did not interfere with the plaintiffs' exercise of any protected constitutional or statutory rights; and that, as the Appeals Court held, the evidence of threats, intimidation, or coercion was insufficient to survive summary judgment.¹³ See Kennie, 69 Mass.App.Ct. at 161-166, 866 N.E.2d 983. We discuss these two points in turn.

a. The plaintiffs' right to use and enjoy their property is constitutionally secured by arts. 1, 10, and 12 of the Declaration of Rights and the Fourteenth Amendment to the United States Constitution. See Haufler v. Zotos, 446 Mass. 489, 504, 845 N.E.2d 322 (2006). This extends to "the right to own land and to use and improve it according to the owner's conceptions of pleasure." Brett v. Building Comm'r of Brookline, 250 Mass. 73, 77, 145 N.E. 269 (1924). There is no doubt that the plaintiffs had the right to seek a permit under G.L. c. 131, § 40, as a necessary step in their effort to build a dock on and extending from their property; the right to seek the permit comes within the scope of the right to use and improve their property. See Pheasant Ridge Assocs. Ltd. Partnership v. Burlington, 399 Mass. 771, 780-781, 506 N.E.2d 1152 (1987) (Pheasant Ridge); Ayasli v. Armstrong, 56...