Gilbert v. City of Cambridge, No. 90-1907

CourtU.S. Court of Appeals — First Circuit
Writing for the CourtBefore CAMPBELL and SELYA, Circuit Judges, and BOWNES; SELYA
Citation932 F.2d 51
PartiesHoward H. GILBERT, Jr., et al., Plaintiffs, Appellants, v. CITY OF CAMBRIDGE, et al., Defendants, Appellees. . Heard
Decision Date06 February 1991
Docket NumberNo. 90-1907

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932 F.2d 51
Howard H. GILBERT, Jr., et al., Plaintiffs, Appellants,
v.
CITY OF CAMBRIDGE, et al., Defendants, Appellees.
No. 90-1907.
United States Court of Appeals,
First Circuit.
Heard Feb. 6, 1991.
Decided May 3, 1991.

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James D. St. Clair, with whom Hale and Dorr, Kenneth R. Berman, and Sherin and Lodgen, Boston, were on brief for plaintiffs, appellants.

Stephen B. Deutsch, with whom Andrew Z. Schwartz and Foley, Hoag & Eliot, Boston, were on brief for defendants, appellees.

Before CAMPBELL and SELYA, Circuit Judges, and BOWNES, Senior Circuit Judge.

SELYA, Circuit Judge.

Attempting by heroic efforts to sail through straits left windless by recent Supreme Court precedent, 1 certain property owners asked the United States District Court for the District of Massachusetts to overturn, on constitutional grounds, a rent control ordinance adopted in 1979 by the City of Cambridge (the Ordinance). 2 The district court did not allow the voyage to proceed. Gilbert v. Cambridge, 745 F.Supp. 42 (D.Mass.1990). The property owners appeal. We affirm.

I. BACKGROUND

In reviewing a dismissal under Fed.R.Civ.P. 12(b)(6), we treat all well-pleaded factual averments as true and draw all reasonable inferences therefrom in the appellants' favor. See Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir.1989); Ochoa Realty Corp. v. Faria, 815 F.2d 812, 813 (1st Cir.1987). Thus, our focus is on what was alleged in, or could be proved in connection with, the complaint as framed.

A. The Ordinance.

Although Cambridge has experienced some form of rent control for over two decades, there have been changes and revisions in the particulars of the system. The City's present scheme was enacted in 1976, pursuant to powers granted under Chapter 36 of the Massachusetts Acts of 1976 (the Act). About three years later, the city council passed the Ordinance, thereby enlarging the 1976 law. Aware that a trend toward condominium conversion had been depleting scarce housing stock and exacerbating an already existing shortage of rental housing, the council opted to restrict the ready removal of residential units from the rental market. As stated in the Ordinance's preface:

A serious public emergency continues to exist in the City with respect to the housing of a substantial number of its citizens.... The emergency has worsened since 1976 because of the removal of a substantial number of rental units from the market, by condominium conversion, demolition, and other causes. As a result, more than two thousand or over ten percent of the controlled rental units in

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the city have been removed from the housing market since 1970, and the vacancy rate has fallen below one percent. In order to carry out the purposes of the Act, and to continue to provide a sufficient supply of decent, affordable rental housing accommodations especially for families of low and moderate income and for elderly people on fixed incomes, it is necessary ... to regulate the removal of controlled rental units from the market.

Cambridge City Code Sec. 8.44.010.

The Ordinance applies to all housing units offered for rent prior to August 13, 1979. It prohibits an owner from "removing" any such unit from the rental market without first obtaining a permit from the Rent Control Board (the Board). As defined by the Ordinance, "removal from the market" includes, inter alia, the conversion of a "controlled rental unit" into a cooperative or a condominium. Cambridge City Code Sec. 8.44.020(D). 3 The Ordinance establishes three overlapping criteria which the Board is to consider in deciding whether or not to grant a removal permit: (1) the effect of withdrawal in terms of the benefits to persons within the class which the rent control scheme sought to protect; (2) the hardships imposed on tenants of the affected units (and any mitigating provisions stipulated by the permit-seeker); and (3) any aggravation of the rental housing shortage (especially for the elderly, families of low-to-moderate income, and people on fixed incomes) that might result from the proposed change of use. Id. at Sec. 8.44.050. The Ordinance imposes fines for withdrawing controlled rental units from the rental market in derogation of the permit process and, if violations become flagrant, authorizes the City to take the offending unit by eminent domain. Id. at Sec. 8.44.090.

Applicable state law also contains criminal penalties for the willful withdrawal of a housing unit from the rental market without a removal permit, Act Sec. 12(c); see generally Commonwealth v. Kapsalis, 26 Mass.App.Ct. 448, 450, 529 N.E.2d 148, rev. denied, 403 Mass. 1105, 531 N.E.2d 1274 (1988), and provides for judicial review of decisions to grant or deny removal permits. Act Sec. 10. Withal, landlords retain a statutory entitlement to derive a "fair net operating income" from their controlled rental units. Act Sec. 7(a).

B. The Plaintiffs.

There are, in essence, two groups of appellants: the Southview plaintiffs and the Blevins plaintiffs.

1. The Southview Plaintiffs. This group comprises Southview Cooperative Housing Corporation (SCHC), the record owner of a residential building consisting of about 100 rental units, and eleven SCHC shareholders. In 1979, shortly before the Ordinance was adopted, the Southview plaintiffs took preliminary steps toward converting their building to a condominium. The Ordinance became effective before any sales were consummated, thereby subjecting the units to the permit process. In January 1980, Southview residents applied for forty-three removal permits. After holding a hearing, the Board denied the applications in April of that year.

Eschewing judicial review of the Board's decision, the owners proceeded to form SCHC and to convert the building into a cooperative. They intended to market the individual residences not as rental units, but as cooperative apartments, on the theory that the Ordinance did not subject cooperatives to the permit requirements. This plan was soon stymied when the Board adopted an interpretive regulation declaring cooperative conversions to be covered by the Ordinance. An attempt to have the state courts rule that the Ordinance did not apply to cooperatives was unsuccessful. Southview Co-operative Housing Corp. v. Rent Control Board, 16 Mass.App.Ct. 1102 (1983). The City subsequently amended the Ordinance to prohibit in, haec verba, the conversion of rental units to cooperative

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ownership without first obtaining removal permits.

In November 1980, the Southview plaintiffs again applied for permits, this time seeking to withdraw forty-seven rental units from the housing market. After a hearing, the Board again demurred. The plaintiffs did not pursue judicial review of the Board's action.

2. The Blevins Plaintiffs. This group comprises two trusts which together own four apartments buildings in Cambridge, aggregating more than 170 rental units. 4 In 1981, Charles Blevins formed a pair of condominium associations, intending to convert two of the properties into condominium aggregates and market the units. The Ordinance required that Blevins obtain permits to implement this plan. He never tried to do so--the trustees allege that such an attempt would have been futile--and the conversion plan was shelved. 5

II. PROCEEDINGS BELOW

The plaintiffs brought this suit on May 27, 1988. Invoking 42 U.S.C. Sec. 1983, they sought to have the Ordinance declared unconstitutional, both on its face and as applied. In the plaintiffs' view, the Ordinance constituted an impermissible taking of property without due process or just compensation (count 1) and a violation of the Equal Protection Clause (count 2). The plaintiffs also charged that the Ordinance abridged rights secured by the state constitution and claimed, in count 3, that the Board had omitted certain studies required under Cambridge City Code Sec. 8.44.030 anent the number of available rental units. The defendants moved to dismiss for failure to state an actionable claim. Following oral argument and plethoric briefing, the district court granted the motion in its entirety. Gilbert, 745 F.Supp. 42.

The court held in substance that all claims of facial invalidity, together with the as-applied claims of the Southview plaintiffs, were barred by the expiration of a three-year limitation period. Id. at 45-49. The as-applied claims of the Blevins plaintiffs were dismissed as unripe. Id. at 49-50. As an alternative basis for dismissal, the court wrote that it would in any event decline to hear the case in its present posture because it viewed a federal declaratory judgment action as an inappropriate vehicle for resolving claims asserted under the Takings Clause of the federal Constitution. Id. at 50-56. In part, the court reasoned that no constitutional violation could be demonstrated unless and until the plaintiffs had utilized the inverse condemnation procedure described in Mass.Gen.L. ch. 79, Sec. 10, and had been denied just compensation. Gilbert, 745 F.Supp. at 52. Finally, the court ruled that the plaintiffs had not made out a cognizable due process claim, id. at 51 n. 7; that count 2 of the complaint failed to state a claim upon which relief could be granted, id. at 51 n. 8; and that pendent jurisdiction was lacking in respect to the various state-law claims, id. at 56 n. 15.

III. THE "TAKINGS" CLAIMS

We begin by examining the plaintiffs' claims under the Takings Clause, treating the facial and as-applied challenges separately.

A. The Facial Challenges.

The facial challenges of the two groups of plaintiffs rest on a common foundation. In seeking a declaratory judgment that the Ordinance is unconstitutional on its face, both sets of plaintiffs must cross the threshold requirement imposed by Article III, Section 2, of the federal Constitution and show that an "actual controversy"

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exists. 6 Steffel v. Thompson, 415 U.S. 452, 458, 94 S.Ct. 1209, 1215, 39 L.Ed.2d 505 (1974)....

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204 practice notes
  • Del Oro Hills v. City of Oceanside, No. D017139
    • United States
    • California Court of Appeals
    • January 23, 1995
    ...challenge presents an issue of law and case-specific factual inquiry is not required. Thus, in Gilbert v. City of Cambridge (1st Cir.1991) 932 F.2d 51, 55-56, it is explained that a plaintiff may challenge a regulation as unconstitutional on its face by demonstrating that the mere enactment......
  • Toigo v. Town of Ross, No. A078486
    • United States
    • California Court of Appeals
    • October 30, 1998
    ...a sort of inevitability is required: the prospect of refusal must be certain (or nearly so)." (Gilbert v. City of Cambridge (1st Cir.1991) 932 F.2d 51, 61, fn. omitted.) Our colleagues in Division Five have recently held that where a "general plan does not preclude all development," futilit......
  • CCA Assocs. v. United States, Nos. 2010–5100
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • February 9, 2012
    ...of a rent controlled property from the rental housing market absent a permit from the rent control board); Gilbert v. City of Cambridge, 932 F.2d 51, 54, 56–57 (1st Cir.1991) (upholding ordinance which “prohibit[ed] an owner from ‘removing’ any [housing units offered for rent before August ......
  • Dodd v. Hood River County, No. 93-35207
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 29, 1995
    ...945 F.2d 348, 352 (10th Cir.1991), cert. denied, 502 U.S. 1096, 112 S.Ct. 1174, 117 L.Ed.2d 419 (1992); Gilbert v. City of Cambridge, 932 F.2d 51, 65 (1st Cir.1991), cert. denied, 502 U.S. 866, 112 S.Ct. 192, 116 L.Ed.2d 153 (1992); Villager Pond, Inc. v. Town of Darien, 1995 WL 299931 at *......
  • Request a trial to view additional results
202 cases
  • Del Oro Hills v. City of Oceanside, No. D017139
    • United States
    • California Court of Appeals
    • January 23, 1995
    ...challenge presents an issue of law and case-specific factual inquiry is not required. Thus, in Gilbert v. City of Cambridge (1st Cir.1991) 932 F.2d 51, 55-56, it is explained that a plaintiff may challenge a regulation as unconstitutional on its face by demonstrating that the mere enactment......
  • Toigo v. Town of Ross, No. A078486
    • United States
    • California Court of Appeals
    • October 30, 1998
    ...a sort of inevitability is required: the prospect of refusal must be certain (or nearly so)." (Gilbert v. City of Cambridge (1st Cir.1991) 932 F.2d 51, 61, fn. omitted.) Our colleagues in Division Five have recently held that where a "general plan does not preclude all development," futilit......
  • CCA Assocs. v. United States, Nos. 2010–5100
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • February 9, 2012
    ...of a rent controlled property from the rental housing market absent a permit from the rent control board); Gilbert v. City of Cambridge, 932 F.2d 51, 54, 56–57 (1st Cir.1991) (upholding ordinance which “prohibit[ed] an owner from ‘removing’ any [housing units offered for rent before August ......
  • Dodd v. Hood River County, No. 93-35207
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 29, 1995
    ...945 F.2d 348, 352 (10th Cir.1991), cert. denied, 502 U.S. 1096, 112 S.Ct. 1174, 117 L.Ed.2d 419 (1992); Gilbert v. City of Cambridge, 932 F.2d 51, 65 (1st Cir.1991), cert. denied, 502 U.S. 866, 112 S.Ct. 192, 116 L.Ed.2d 153 (1992); Villager Pond, Inc. v. Town of Darien, 1995 WL 299931 at *......
  • Request a trial to view additional results
1 books & journal articles
  • Defining the Problem
    • United States
    • Environmental justice: legal theory and practice. 4th edition
    • February 20, 2018
    ...del Seguro de Responsabilidad Obligatorio v. Juarbe-Jimenez , 659 F.3d 42, 50 (1st Cir. 2011); see also Gilbert v. City of Cambridge , 932 F.2d 51, 57 (1st Cir. 1991) (“he limitation period begins to run upon the invasion of the plaintifs’ interests.”). In determining the date of accrual, c......

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