Barth v. City of Peabody

Decision Date30 March 2018
Docket NumberCIVIL ACTION NO. 15-13794-MBB
PartiesJOHN BARTH, Plaintiff, v. CITY OF PEABODY, RK REALTY TRUST, and RICHARD DEPIETRO, Defendants.
CourtU.S. District Court — District of Massachusetts

MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT AS TO DEFENDANT CITY OF PEABODY

(DOCKET ENTRY # 65)

BOWLER, U.S.M.J.

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 1983.2In 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 squarefoot 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 thehouse 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 acomplaint 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...

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