S. Commons Condo. Assn v. City of Springfield

• Decision Date: 06 September 2013
• Docket Number: C.A. No. 12–cv–30102–MAP.
• Parties: SOUTH COMMONS CONDOMINIUM ASSN., et al., Plaintiffs v. CITY OF SPRINGFIELD, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

967 F.Supp.2d 457

SOUTH COMMONS CONDOMINIUM ASSN., et al., Plaintiffs

v.CITY OF SPRINGFIELD, et al., Defendants.

C.A. No. 12–cv–30102–MAP.

United States District Court,

D. Massachusetts.

Sept. 6, 2013.

Jesse W. Belcher–Timme, John J. McCarthy, Doherty, Wallace, Pillsbury & Murphy, Springfield, MA, for Plaintiffs.

John T. Liebel, Edward M. Pikula, Anthony I. Wilson, City of Springfield Law, Department, Springfield, MA, George C. Rockas, Kara G. Thorvaldsen, Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, Boston, MA, for Defendants.

MEMORANDUM AND ORDER REGARDING DEFENDANTS' MOTIONS TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT

PONSOR, District Judge.

I. INTRODUCTION

This civil suit arises from the aftermath of a tornado that hit Springfield on June 1, 2011, killing at least three people and causing tremendous damage to the downtown area. Plaintiffs are unit owners and tenants of the South Commons Condominiums ¹ (“South Commons”) once located at 14 Hubbard Street, 133 Union Street, and 959–991 Main Street in Springfield, Massachusetts. They bring suit against Defendants City of Springfield, Domenic J. Sarno (Mayor of Springfield), Steven Desilets (Springfield Building Commissioner), David Cotter (Deputy Director of Code Enforcement, Springfield Housing Division), and Charlie Arment Trucking, Inc. (“Arment Trucking”), for damages suffered from the allegedly improper demolition and disposal of Plaintiffs' buildings and their contents.

Of the seven counts in the complaint,² counts I and II offer the only federal causes of action. These are claims under 42 U.S.C. § 1983 for violation of the Fifth and Fourteenth Amendments to the United States Constitution based on deprivations of procedural and substantive due process. Because the recent First Circuit decision in San Geronimo Caribe Project, Inc. v. Acevedo–Vila, 687 F.3d 465 (1st Cir.2012) (“ SGCP ”), makes it clear that the facts as alleged simply cannot support a claim for either procedural or substantive due process violations, dismissal of these two counts with prejudice is unavoidable. Having dismissed the federal claims, the court will also dismiss the balance of the complaint, which relies only on state law, without prejudice to the re-filing of these claims in state court. Given these rulings, it will be unnecessary to rule on ancillary motions attempting to limit the materials that can be considered in relation to Defendants' motions.

The constitutional analysis here will likely frustrate both sides, since it concludes that the passionate disagreement between the parties over the propriety of Defendants'actions is irrelevant. Plaintiffs vigorously contend that Defendants' over-hasty demolition of their buildings and refusal to allow them access to their property was entirely unjustified. Defendants defend their conduct with equal ardor, contending that quick action was needed to protect the public safety and welfare. In the end, this dispute does not matter. The analysis below will assume—without needing to decide—that a mistake, possibly an egregious mistake, was made. Nevertheless, as Chief Judge Lynch stated in SGCP, “[A] mere mistake by officials in exceeding the limits of their defined authority is not the stuff of a federal due process claim.” Id. at 486. Painful as the demolition may have been for Plaintiffs, a “mere mistake” is the most that any jury could find happened here. It is a hard truth that many very unfortunate things happen that are not violations of the United States Constitution. What happened here was, at most, one of them.

II. BACKGROUND

As with all motions to dismiss, the court accepts as true the well-pleaded factual allegations contained in the complaint, drawing reasonable inferences in Plaintiffs' favor. Gargano v. Liberty Intern. Underwriters, Inc., 572 F.3d 45, 48 (1st Cir.2009).³ To set the stage, an examination of the statutory framework governing the condemnation and demolition of a building by a local authority is necessary.

A. Statutory Framework.

Massachusetts law provides for both pre- and post-deprivation process in the condemnation and demolition of a building. Once a local building commissioner becomes aware of the dangerous condition of a structure, chapter 143, section 6 provides that the inspector “shall inspect” the structure and “forthwith in writing notify the owner ... to remove it or make it safe.” Mass. Gen. Laws ch. 143, § 6; 780 C.M.R. § 116.2 (8th ed., effective August 6, 2010). After receiving such notice, an owner has until noon the following day to begin to make the structure safe or secure. Ch. 143, § 7; 780 C.M.R. § 116.3.⁴ However, “if the public safety so requires and if the aldermen or selectmen so order, the inspector of buildings may immediately enter upon the premises with the necessary workmen and assistants and cause such unsafe structure to be made safe or taken down without delay.” Ch. 143, § 7; 780 C.M.R. § 116.3.

If the inspector demolishes the dangerous structure pursuant to section 7 or 9, the costs and charges of the demolition “shall constitute a debt due the city or town upon completion of the work and the rendering of an account therefor to the owner of such structure, and shall be enforced in an action of contract.” Ch. 143, § 9; 780 C.M.R. § 116.5. The only way to prevent the city or town from recovering this forfeiture is to have the original order of demolition annulled by a jury. Ch. 143, § 10; 780 C.M.R. § 116.6; see also ch. 139 § 2 (providing the remedy to challenge an order issued by the building inspector).

Section 10 provides the remedy of an owner aggrieved by an order to make safe or remove a dangerous structure. An owner can challenge such order by appealing the order to the superior court for the county where the structure is located. Ch. 143, § 10 (providing that an owner may proceed under ch. 139, § 2, for a remedy when aggrieved); 780 C.M.R. § 116.6. See generally, Gallant v. City of Fitchburg, 739 F.Supp.2d 39, 41–2 (D.Mass.2010) (discussing the statutory scheme for orders to make buildings safe and secure and the remedies available to challenge such orders). Although this section allows for a challenge to the order, the inspector's actions are not halted by such a challenge. Ch. 143, § 10 (stating that “no provision of [ch. 139, § 2] shall be construed so as to hinder, delay or prevent the local inspector acting and proceeding under section nine”); 780 C.M.R. § 116.6.

Consequently, in any circumstance where an owner desires to challenge the action taken by the building inspector—whether it be the original order by the building inspector, or the immediate demolition of a structure deemed hazardous to public safety, or the liens for the costs of demolition—the owner must proceed under section 2 of chapter 139. The owner must commence a civil action in superior court within three days after the service of the challenged order. Ch. 139, § 2. After a jury trial, if the owner is successful in challenging the order, he may recover from the city damages and costs. Id.; see Aubuchon v. Massachusetts, 933 F.Supp. 90, 93 (D.Mass.1996) (evaluating due process claim after city demolished the plaintiff's building and stating that “[i]f the jury annuls the demolition order, the successful plaintiff is entitled to recover damages and costs”); Russell v. City of New Bedford, 74 Mass.App.Ct. 715, 910 N.E.2d 404 (2009) (affirming judgment in the plaintiff's favor that found the city liable for negligently demolishing plaintiff's buildings).

B. Facts.

In 1985, Plaintiff Peter Zorzi acquired 14 Hubbard Street, 133 Union Street, and 959–991 Main Street, the buildings known as South Commons, for purposes of preservation and refurbishment. The buildings were constructed between 1874 and 1930 in the style known as “Italianate.” On October 31, 1985, the buildings were recognized by the National Parks Service and placed on the list of the National Register of Historic Places: the building at 14 Hubbard Street was designated as “Historically Significant.” After the acquisition of South Commons, Peter Zorzi and his architectural firm, Studio One, renovated and refurbished the buildings, converting them to condominiums for both residential and business uses.

On June 1, 2011, at approximately 4:18 p.m., a tornado tore through downtown Springfield, causing extensive damage. Governor Deval Patrick and Defendant Springfield Mayor Domenic Sarno both declared a state of emergency, and travel to certain areas of the city was restricted, even to local residents within affected areas. Immediately following the tornado, Springfield deployed police officers who emptied South Commons of its residents and refused entry, under penalty of arrest, to anyone, including Plaintiffs, who identified themselves as owners or tenants.

At the first opportunity the following day, Peter Zorzi contacted a contractor with whom he had worked on the buildings in the past and discussed securing and repairing the buildings. He also attempted to contact the City, through the Mayor's office, as well as Defendant Building Commissioner and Defendant Deputy Director of Code Enforcement, to request access to his personal and business property in the buildings.

At the actual site of South Commons, the City consistently denied Plaintiffs permission to enter the buildings to retrieve valuable personal or business items. Whenever any Plaintiffs attempted to access the buildings, they were stopped by a member of either the Springfield Police or Fire Department or the National Guard and were told they would be arrested if they continued to attempt to enter.

On June 2, 2011, the day after the tornado, Defendant Desilets, by helicopter and in person, surveyed the damage done to South Commons. He judged the buildings to be in a state of collapse and concluded “that [they] posed an immediate threat to the public.” (Dkt. No. 14, Ex. 1, Desilets Aff'd at ¶ 5.)

At approximately 10:00 p.m. that same day, at...