Gallant v. City of Fitchburg

• Decision Date: 13 August 2010
• Docket Number: Civil Action No. 09-40142-FDS
• Citation: 739 F.Supp.2d 39
• Parties: Gerald GALLANT, Plaintiff, v. CITY OF FITCHBURG; Michael Gallant, individually and in his capacity as Building Commissioner of the City of Fitchburg; Lisa A. Wong, in her capacity as Mayor of the City of Fitchburg; Joanne Soczek, in her capacity as Chairperson of the Board of Health of the City of Fitchburg; and Jay Mor Enterprises, Inc., Defendants.
• Court: U.S. District Court — District of Massachusetts

739 F.Supp.2d 39

Gerald GALLANT, Plaintiff,

v.CITY OF FITCHBURG; Michael Gallant, individually and in his capacity as Building Commissioner of the City of Fitchburg; Lisa A. Wong, in her capacity as Mayor of the City of Fitchburg; Joanne Soczek, in her capacity as Chairperson of the Board of Health of the City of Fitchburg; and Jay Mor Enterprises, Inc., Defendants.

Civil Action No. 09-40142-FDS.

United States District Court,

D. Massachusetts.

Aug. 13, 2010.

Erin O. Bradbury, Phillips, Silver, Talman, Aframe & Sinrich, P.C., Worcester, MA, for Plaintiff.

John J. Davis, Pierce, Davis & Perritano, LLP, Adam Simms, Paul Saltzman,Tucker, Heifetz & Saltzman, LLP, Boston, MA, for Defendants.

MEMORANDUM AND ORDER ON MOTION TO DISMISS

SAYLOR, District Judge.

This is a civil rights action arising out of the demolition of a building located in Fitchburg, Massachusetts. Plaintiff Gerald Gallant owned a piece of commercial and residential property that was demolished upon an order of Fitchburg city officials. Gallant contends, in substance, that the demolition was improper and that he did not receive due process of law.

The complaint alleges five substantive causes of action against the City, certain of its officials, and the contractor that executed the demolition: (1) negligence (Count 1); (2) deprivation of substantive due process in violation of 42 U.S.C. § 1983 (Count 2); (3) deprivation of procedural due process, also in violation of § 1983 (Count 3); (4) violation of Mass. Gen. Laws ch. 143 (Count 4); and (5) trespass (Count 5). Count 6 seeks a declaratory judgment that the demolition was unlawful. The City and its officials have moved to dismiss Counts 1 through 4 and 6, the only counts naming them as defendants, for failure to state a claim. For the reasons that follow, the motion will be denied.

I. Background

A. Statutory Background

At the outset, a brief outline of the relevant statutory scheme under Mass. Gen. Laws ch. 143 is necessary.

Section 6 of Chapter 143 requires a local building commissioner to inspect a building once he is informed that it "is dangerous to life or limb or that [it] is unused, uninhabited or abandoned, and open to the weather." Mass. Gen. Laws ch. 143, § 6. This requirement is echoed in the state building code. See 780 C.M.R. 121.1 & 121.2. Section 6 further requires that the inspector, in writing, "notify the owner, lessee or mortgagee in possession to remove it or make it safe if it appears to him to be dangerous, or to make it secure if it is unused, uninhabited or abandoned and open to the weather." Mass. Gen. Laws ch. 143, § 6. The owner must make the building safe or secure pursuant to the requirements of 780 C.M.R. 121.7.¹

Section 7 provides that "[a]ny person ... notified [pursuant to Section 6] shall be allowed until twelve o'clock noon of the day following the service of the notice in which to begin to remove such structure or make it safe, or to make it secure, and he shall employ sufficient labor speedily to make it safe or remove it or to make it secure." Mass. Gen. Laws ch. 143, § 7; see 780 C.M.R. 121.3. To comply with Section 7, the owner must then notify thebuilding commissioner of the method used to make the building safe and secure. 780 C.M.R. 121.7.

If an owner refuses or neglects to comply with Section 7, Section 8 requires that "a careful survey of the premises shall be made by a board consisting in a city of the city engineer, the head of the fire department, ... and one disinterested person." Mass. Gen. Laws ch. 143, § 8; see 780 C.M.R. 121.4. After the survey is made, "[a] written report of such survey shall be made, and a copy thereof served" on the owner. Mass. Gen. Laws ch. 143, § 8. Under Section 9, if the survey report "declares such structure to be dangerous or to be unused, uninhabited or abandoned, and open to the weather," and if the owner fails to make the building safe and secure, the building commissioner "shall cause it to be made safe or taken down or to be made secure." Id. § 9; see 780 C.M.R. 121.5.

Section 10 provides a remedy for a property owner aggrieved by an order to remove a dangerous structure or to make it safe. Mass Gen. L. ch. 143, § 10. A property owner is afforded three days after service of such an order to commence an action in Massachusetts Superior Court. Id. (authorizing an aggrieved owned to initiate a civil action under Mass. Gen. Laws ch. 139, § 2); see 780 C.M.R. 121.6. The property owner is afforded a jury trial for the purpose of affirming, annulling, or altering the order at issue. Mass. Gen. Laws ch. 139, § 2. The Superior Court must thereafter render judgment in conformity with the jury's verdict, which takes effect as an original order. Id. All such actions have priority over other cases on the Superior Court docket. Id.

On its face, Section 10 provides only a post-deprivation remedy; the filing of a civil action does not automatically stay a demolition. Mass. Gen. Laws ch. 143, § 10 (providing that Mass. Gen. Laws ch. 139, § 2, "shall [not] be construed so as to hinder, delay or prevent the [building commissioner] acting and proceeding [with a demolition] under section nine"). There is no provision in the statute for preliminary injunctive relief or for any administrative appeal. However, if the jury annuls the order before the demolition takes place, the building commissioner would lack the power to proceed, and the owner would have obtained a pre-deprivation remedy.

B. Factual Background

Against that backdrop, the complaint contains the following factual allegations, which are assumed to be true for purposes of this motion.

Since October 24, 2002, plaintiff Gerald Gallant has owned real estate located at 319-321 Water Street, Fitchburg, Massachusetts. (Compl. ¶ 12).² Prior to his purchase of the property, the City had complained of alleged health and sanitary violations on multiple occasions. ( Id. ¶ 13-14). When he acquired the property, plaintiff removed all the debris and the City had no further complaints until the events giving rise to his action. ( Id. ¶ 16-17).

In December 2005, the then-mayor of Fitchburg decided that plaintiff's property should be demolished, and a December 7memo to the City Building Commissioner, Michael Gallant, instructed him to begin the demolition process. ( Id. ¶ 19-20).³ On December 13, Commissioner Gallant sent plaintiff a letter indicating that the building was "vacant, unused aband [sic] unoccupied and is detrimental to the area and it is dangerous to life and limb." ( Id. ¶ 22). Commissioner Gallant ordered plaintiff to make the building safe or have it demolished, and gave him seven days within which to apply for a building permit. ( Id. ¶ 24-25).⁴ Although the letter was allegedly sent by certified mail, plaintiff did not receive a copy. ( Id. ¶ 26-27).

On December 14, 2005, before the seven-day period had expired, Commissioner Gallant ordered Fire Chief Kevin Roy to undertake an inspection of the property in anticipation of the demolition. ( Id. ¶ 30). On December 28, 2005, a three-person board undertook the survey. It issued its report to Commissioner Gallant on January 6, 2006. ( Id. ¶ 32, 34). Also on December 28, Commissioner Gallant sent plaintiff another copy of his December 13 letter. ( Id. ¶ 35). Plaintiff received that letter on January 6. ( Id. ¶ 37).

Upon receipt of the December 28 letter, plaintiff immediately boarded up the building, including the windows, and secured the premises with an eight-foot fence with barbed wire at the top. ( Id. ¶ 41). He also hired a contractor to put a new roof on the building at a cost of $10,500. ( Id. ¶ 42). Plaintiff then sought review of his work to ensure that he was now in compliance with the City's requirements. ( Id. ¶ 43). In a later conversation, Commissioner Gallant ordered plaintiff to take the further step of boarding the windows "California style." ( Id. ¶ 44). Although the phrase "California style" does not appear in the building code, plaintiff complied with that demand as well. ( Id. ¶ 46). Plaintiff applied for a building permit on June 12, which Commissioner Gallant approved on June 16. ( Id. ¶ 47-49). Shortly thereafter, the work was completed and approved by a City inspector. ( Id. ¶ 52-54).

On the same day Commissioner Gallant issued the building permit (June 16), he sent plaintiff a "FINAL NOTICE BEFORE DEMOLITION." Plaintiff received it on June 27, well after he had obtained a building permit, completed repairs, and had the building inspected and approved. ( Id. ¶ 55-56).⁵ The notice stated that if plaintiff did not apply to demolish the building within 72 hours of receipt, the City "may demolish the building in the immediate future and without notice." ( Id. ¶ 64). It also specifically informed plaintiff of the remedy provided by Mass. Gen. Laws ch. 143, § 10. (Doc. 1-9, at 2).⁶

On June 27, the same day plaintiff received the final notice, Commissioner Gallant contacted the City's Planning Coordinator, David Streb, and designated him asthe agent in charge of securing the demolition of plaintiff's property. (Compl. ¶ 67). On July 20, Commissioner Gallant issued a "NOTICE OF PENDING DEMOLITION," stating the City's intention to demolish plaintiff's property for his failure to comply with or respond to an order issued pursuant to Mass. Gen. Laws ch. 143, § 9. ( Id. ¶ 73). This notice was neither mailed to nor served upon plaintiff, and he did not become aware of it until after his building was demolished. ( Id. ¶ 74-75).

Sometime in November 2006, plaintiff and Commissioner Gallant met at the Building Commissioner's office. ( Id. ¶ 79). At that meeting, plaintiff gave Commissioner Gallant a copy of the invoice for the new roof he had previously installed at the building. ( Id. ¶ 81). Coupled with the inspector's approval of the boarded windows, plaintiff believed his building was in compliance with the City's demands. ( Id. ¶ 82). At no point during the meeting did Commissioner Gallant give plaintiff a copy of...