Pheasant Ridge Associates Ltd. Partnership v. Town of Burlington

• Decision Date: 30 April 1987
• Citation: 506 N.E.2d 1152,399 Mass. 771
• Parties: PHEASANT RIDGE ASSOCIATES LIMITED PARTNERSHIP, et al. 1 v. TOWN OF BURLINGTON, et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1152

506 N.E.2d 1152

399 Mass. 771

PHEASANT RIDGE ASSOCIATES LIMITED PARTNERSHIP, et al.¹ v. TOWN OF BURLINGTON, et al. ²

Supreme Judicial Court of Massachusetts Suffolk.

Argued Jan. 9, 1987.

Decided April 30, 1987.

Elizabeth A. Lane (Leonard Kopelman, Town Counsel, and Barbara St. Andre, Boston, with her), for defendants.

Michael S. Gardener (Paul D. Wilson, Boston, with him), for plaintiffs.

Before HENNESSEY, C.J., and WILKINS, NOLAN and O'CONNOR, JJ.

WILKINS, Justice.

The defendant town, acting through its selectmen, purported to take a 14.5 acre parcel on Center Street pursuant to a unanimous vote of a September 23, 1985, town meeting. The town voted to take the property "for the purpose of parks, recreation, and the construction of moderate income housing which will be subject to the review and approval of Town Meeting." The vote further appropriated $1,130,000 from available funds to pay for the land taking. On October 21, 1985, the selectmen adopted an order of taking which was recorded in the appropriate registry of deeds on November 15.

At the time of the town's purported taking, the Center Street parcel was the subject of an application, filed on June 27, 1985, on behalf of the plaintiffs, for a comprehensive permit under what is sometimes called the Anti-Snob Zoning Act. G.L. c. 40B, §§ 20-23, inserted by St.1969, c. 774, § 1. The parcel was zoned for light commercial, municipal, and single family residence uses. As subsequently modified, the plaintiffs' proposed development would have 202 apartment units of which at least twenty percent would be available for low and moderate income housing, as defined by the Massachusetts Housing Finance Agency. ³

Under G.L. c. 40B, § 21 (1984 ed.), a limited dividend organization may submit an application for a comprehensive permit authorizing the construction of low or moderate income housing, as defined in G.L. c. 40B, § 20, in lieu of making application to various municipal boards. The details of the handling of such an application, including any appeal from its denial, are spelled out in Board of Appeals of Hanover v. Housing Appeals Comm. in the Dep't of Community Affairs, 363 Mass. 339, 345, 294 N.E.2d 393 (1973). Burlington had low or moderate income housing in such limited amounts as to qualify land in the town for treatment under G.L. c. 40B, § 21. See G.L. c. 40B, § 20.

The board of appeals held its first public hearing on the application on July 23, 1985. Its next session was held on August 20. The board received reports from various town boards and indicated that it wanted supplemental information from the selectmen and the board of health, which was received by the close of the board's October 15 session. The plaintiffs insisted to the board that the hearing portion of the proceeding was concluded at the close of the August 20 session. The board received some further information by the time of its November 5 meeting and very little information thereafter. By then, of course, the town meeting had authorized the taking and the selectmen had adopted an order of taking. By the time of the board's November 19 meeting the order of taking had been recorded. The board of appeals denied the application on December 27, relying on the taking as one of the reasons for denial of the application.

The issues in this appeal concern (1) the lawfulness of the town's taking in light of the plaintiffs' assertion that the taking was made in bad faith, (2) whether the defendant town and members of the board of selectmen are liable under G.L. c. 12, § 11I (1984 ed.), and (3) whether the comprehensive permit was constructively granted because the board of appeals did not act seasonably on the application. These issues arise from the partial allowance by a Superior Court judge of the plaintiffs' motion for summary judgment and the immediate entry of a judgment on certain counts of the complaint.

The motion judge filed an extensive memorandum in which he concluded, as the judgment later reflected, that (1) the taking was void because the town acted in bad faith, (2) the town and the selectmen were liable for violating G.L. c. 12, § 11I (the amount of any damages to be determined later), and (3) the comprehensive permit had been constructively granted because the board of appeals did not render its decision within the time required under G.L. c. 40B, § 21. ⁴ We allowed the town's application for direct appellate review of its appeal.

We agree with the motion judge that the taking was unlawful and void and that the comprehensive permit was constructively granted. We disagree, however, with his conclusion that partial summary judgment should be entered on the claim made under G.L. c. 12, § 11I, that the town and the members of the board of selectmen interfered or attempted to interfere with the plaintiffs' rights by threats, intimidation, or coercion.

1. We consider first the plaintiffs' challenge to the validity of the taking and conclude that the motion judge was correct in declaring that the purported taking of the plaintiffs' property was unlawful and void. In reaching this conclusion we hold that a municipal land taking, proper on its face, may be invalid because it was undertaken in bad faith and that, on this record, because there is no dispute as to any material fact on the issue of bad faith, the judge properly entered summary judgment for the plaintiffs on this issue. The absence of any record support for the town's claim that it did not act in bad faith makes this case most unusual and not likely soon to be replicated.

Previous challenges to the motives behind municipal land takings that have appeared facially valid have been unsuccessful on their facts in this court. See Chelmsford v. DiBiase, 370 Mass. 90, 95, 345 N.E.2d 373 (1976) (where town acted in good faith and for a public purpose, taking of land which was subject of pending application for comprehensive permit under G.L. c. 40B, § 21, is valid); Poremba v. Springfield, 354 Mass. 432, 434, 238 N.E.2d 43 (1968) (highway taking not adequately alleged to have been made in bad faith, or for the private benefit of private person and not for the public benefit); Despatchers' Cafe Inc. v. Somerville Hous. Auth., 332 Mass. 259, 263-264, 124 N.E.2d 528 (1955) (allegations insufficient to state challenge to motives of taking authority where malicious or dishonest motive is disclaimed); Sellors v. Concord, 329 Mass. 259, 262, 107 N.E.2d 784 (1952) (where town's good faith not challenged, court assumes proposed uses are not pretenses); Lynch v. Forbes, 161 Mass. 302, 309, 37 N.E. 437 (1894) (no question of good faith raised; expediency or necessity for taking is for taking authority). Although challenges to such takings failed in these cases, sometimes on pleading principles no longer applied, each opinion recognized in one way or another that there may be cases in which the exercise of the power of eminent domain may be successfuly challenged. Certainly, the use of the power solely to benefit some private person or persons would be action taken in bad faith and grounds for declaring a taking invalid. See Despatchers' Cafe Inc. v. Somerville Hous. Auth., supra, 332 Mass. at 263, 124 N.E.2d 528; Lynch v. Forbes, supra, 161 Mass. at 309, 37 N.E. 437. See also Moskow v. Boston Redevelopment Auth., 349 Mass. 553, 573-575, 210 N.E.2d 699 (1965) (Kirk, J., dissenting ), cert. denied, 382 U.S. 983, 86 S.Ct. 558, 15 L.Ed.2d 472 (1966). Although the occasions in which a taking on behalf of the United States has been set aside are rare, the Federal courts have recognized the possibility that a condemnation may be arbitrary, capricious, or in bad faith. See Southern Pac. Land Co. v. United States, 367 F.2d 161, 162 (9th Cir.1966), cert. denied, 386 U.S. 1030, 87 S.Ct. 1478, 18 L.Ed.2d 592 (1967), citing United States v. Carmack, 329 U.S. 230, 67 S.Ct. 252, 91 L.Ed. 209 (1946).

Bad faith in the use of the power of eminent domain is not limited to action taken solely to benefit private interests. It includes the use of the power of eminent domain solely for a reason that is not proper, although the stated public purpose or purposes for the taking are plainly valid ones. For example, when a county took land for a training area for its police and fire employees, on which a city planned to construct a sewage treatment plant and, on the facts, the reason for the county's action was to prevent construction of the sewage treatment plant, the power of eminent domain was used in bad faith and the taking was invalid. Carroll County v. Bremen, 256 Ga. 281, 282, 347 S.E.2d 598 (1986). See Earth Management, Inc. v. Heard County, 248 Ga. 442, 283 S.E.2d 455 (1981) (taking invalid when county commissioner took land for park in order to prevent construction of hazardous waste disposal facility).

It is not easy to prove that particular municipal action was taken in bad faith. This is particularly true where the significant event is an affirmative vote (here at least a two-thirds vote) of the persons voting at a town meeting on a motion to take a particular parcel of land. Challenges to town meeting action based on a claim that unlawful, improper, or erroneous reasons were advanced at town meeting or elsewhere in support of the challenged action have been unsuccessful. See Simon v. Needham, 311 Mass. 560, 566, 42 N.E.2d 516 (1942); Southern New England Conference Ass'n of Seventh-Day Adventists v. Burlington, 21 Mass.App.Ct. 701, 708, 490 N.E.2d 451 (1986). Cf. Moskow v. Boston Redevelopment Auth., supra, 349 Mass. at 565-566, 210 N.E.2d 699 (statements of candidates for city council); Knowles v. Codex Corp., 12 Mass.App.Ct. 493, 498, 426 N.E.2d 734 (1981) (dicta, not citing this court, that act of Legislature [i.e., General Court] would not be set aside even if all favorable votes had been induced by bribery). We should not easily attribute improper motives to a town, and to its citizens voting at town meeting,...