Barth v. City of Peabody

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

JOHN BARTH,

Plaintiff,

v. CIVIL ACTION NO.

15-13794-MBB

CITY OF PEABODY,

RK REALTY TRUST, and

RICHARD DEPIETRO,

Defendants.

MEMORANDUM AND ORDER RE:

MOTION FOR SUMMARY JUDGMENT AS TO

DEFENDANT CITY OF PEABODY

(DOCKET ENTRY # 65)

March 30, 2018

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 1983.2

1 The complaint alleges a violation of the Massachusetts

Civil Rights Act, Massachusetts General Laws chapter 12, section

11H (“MCRA”).

2 In the event Barth wishes to assert a direct claim under

the federal Constitution, he is instructed to file a brief that

sets out the law, distinguishes the above cases, and cites to

2

In 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).

cases that allow such a direct claim. He should file the brief

on or before April 12, 2018 and it shall be limited to five

pages, double spaced. If Barth does not file the brief, this

court will simply treat the federal constitutional claims as

seeking relief under section 1983 as well as brought under the

other civil rights statutes the complaint cites, namely, “42

U.S.C. §§ 1981-1986.”

3

“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 #

4

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 square

3 Page numbers refer to the docketed page number in the upper,

right hand corner of the document.

4 The City attached a copy of the above decision to its

memorandum. (Docket Entry # 82-1).

5

foot 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 the

6

house 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.

5 The complaint presents the same legal argument. Enacted in

1920, the earliest predecessor statute to chapter 40A, section

six, postdated the construction of the home built in or around

1800. The above-quoted language in section six appears in the

so-called second “except” clause of the first paragraph. See

generally Dial Away v. Zoning Bd. of Appeals, 669 N.E.2d 446, 448

(Mass. App. Ct. 1996).

7

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 a

6 Previously, in January 2012, the Department of Public

Service of the City of Peabody reviewed Barth’s variance plans

and asked the ZBA to require that Barth provide a plot plan

signed and stamped by a registered land surveyor. (Docket Entry

# 67, Ex. C, p. 15). Thereafter, a registered land surveyor

prepared a plan for Barth, which he submitted to the

Massachusetts Department of Environmental Protection. (Docket

Entry # 67, Ex. D, p. 23).

8

complaint 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 # 82-2, p. 3). In a comprehensive opinion, the

trial court allowed the City’s summary judgment motion. The

court explicitly and repeatedly stated that Barth “is not

appealing the decision of the ZBA under” section 17 of chapter

40A.7 (Docket Entry # 82-2). The trial court rejected the state

law eminent domain claim brought under chapter 79, sections six

and ten, because there was no taking. (Docket Entry # 82-2). In

January 2015, the Massachusetts Court of Appeals (“the appeals

court”) affirmed the judgment on the basis that Barth did not

appeal the ZBA’s decision under section 17 of chapter 40A and,

accordingly, did not exhaust his administrative remedies. Barth

v. City of Peabody, Docket No. 14-P-299 (Mass. App. Ct. Jan. 12,

2015; (Docket Entry # 82-1).

DISCUSSION

7 Although the first sentence of the complaint stated, “‘This

is an Appeal from a decision of the Zoning Board of Appeals . . .

to deny a zoning variance[,]” the complaint requested damages for

an unlawful taking and did not name the ZBA as a defendant.

(Docket Entry # 82-1). In proceedings before the trial court,

Barth admitted a number of times in open court that he was not

appealing the ZBA’s decision. (Docket Entry # 82-2).

9

I. Constructive Taking of Barth’s Property

Barth initially argues that section six of chapter 40A

exempts the rebuilding of preexisting, nonconforming structures

from the City’s zoning ordinances. According to Barth, the

City’s application of the 2011 Peabody Zoning Ordinance to

require a variance and the denial of that variance therefore

constituted a taking without compensation under the Fifth

Amendment and the Massachusetts eminent domain statutes, namely,

sections six, ten, and 14 of chapter 79. (Docket Entry # 66).8

The City contends that: (1) Barth did not exhaust his

“administrative and prior judicial remedies” by appealing the

ZBA’s denial of the variance under chapter 40A, section 17; and

(2) no actual or constructive taking took place. (Docket Entry #

82).

Turning to the first argument and citing Williamson County

Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 190-

191 (1985) (“Williamson”), the City maintains that Barth’s

failure to appeal the denial of the variance under section 17 of

chapter 40A in state court bars any further relief in federal

court. Williamson imposes a prudential, “binary test” to bring a

Fifth Amendment takings claim in federal court. Marek v. Rhode

8 In addition to the above supporting memorandum, Barth filed

a response to the City’s opposition (Docket Entry # 82) which

this court has considered. (Docket Entry # 86); see LR. 56.1

(allowing reply briefs).

10

Island, 702 F.3d 650, 653 (1st Cir. 2012); see also Horne v.

Department of Agriculture, 569 U.S. 513, 526 (2013) (“prudential

ripeness . . . is not, strictly speaking, jurisdictional”)

(internal quotation marks and citation omitted); Perfect Puppy,

Inc. v. City of E. Providence, R.I., 807 F.3d 415, 421 (1st Cir.

2015) (“we confess that we are not 100% sure that the

state-exhaustion requirement actually is jurisdictional”) (citing

Williamson, 473 U.S. at 194, and Horne, 569 U.S. at 526);

Athanasiou v. Town of Westhampton, 30 F. Supp. 3d 84, 87–88 (D.

Mass. 2014) (“in recent years, however, the Supreme Court has

clarified that this ripeness requirement is a prudential

limitation, rather than an Article III jurisdictional

limitation”). “For a takings claim to be ripe, prior state

administrative and/or judicial processes not only must have

wrought a taking of particular property but also must have

established the sovereign’s refusal to provide just compensation

for the property taken.” Marek v. Rhode Island, 702 F.3d at 653

(citing Williamson, 473 U.S. at 186); accord Horne v. Department

of Agriculture, 569 U.S. at 526 (Fifth Amendment claim is

premature until “the Government has both taken property and

denied just compensation”).

In a regulatory takings claim such as Barth’s claim, the

first requirement thus “entails the existence of a final decision

as to ‘the application of the regulations to the property.’”

11

Marek v. Rhode Island, 702 F.3d at 653 (emphasis added). The

reasoning for this requirement is that a “taking involves a

complex inquiry into facts that ‘simply cannot be evaluated until

the administrative agency has arrived at a final, definitive

position regarding’ its application of the law to the land in

question.” Downing/Salt Pond Partners, L.P. v. Rhode Island and

Providence Plantations, 643 F.3d 16, 20 (1st Cir. 2011) (quoting

Williamson, 473 U.S. at 191); see Palazzolo v. Rhode Island, 533

U.S. 606, 618 (2001). Further elucidating this reasoning, the

Supreme Court in Palazzolo explains that:

[A] takings claim based on a law or regulation which is

alleged to go too far in burdening property depends upon the

landowner’s first having followed reasonable and necessary

steps to allow regulatory agencies to exercise their full

discretion in considering development plans for the

property, including the opportunity to grant any variances

or waivers allowed by law. As a general rule, until these

ordinary processes have been followed the extent of the

restriction on property is not known and a regulatory taking

has not yet been established.

Palazzolo v. Rhode Island, 533 U.S. at 620–21.

By rejecting all of the building options Barth presented,

the ZBA reached a final decision. Similarly, the Court in

Palazzolo rejected a ripeness argument because the case was

“unlike those . . . which arose when an owner challenged a

land-use authority’s denial of a substantial project, leaving

doubt whether a more modest submission or an application for a

variance would be accepted.” Palazzolo v. Rhode Island, 533 U.S.

at 620 (emphasis added). Here, there is little doubt that the

12

regulatory agency, the ZBA, will revisit and allow even a

limited, smaller structure because Barth proposed and the ZBA

rejected this solution as one of the five options he presented in

the application.9 The extent of the restriction on the property

is known, namely, it remains an unbuildable lot that is not

subject to a variance from the dimension schedule in section 7.2.

The City’s argument that Barth did not exhaust his state

judicial remedies by appealing the ZBA’s denial of the variance

to state court under chapter 40A more readily invokes the second

Williamson requirement. This requirement “entails a showing that

the plaintiff has run the gamut of state-court litigation in

search of just compensation (provided, however, that the state

makes available adequate procedures for this purpose).” Marek v.

Rhode Island, 702 F.3d at 653. The consequences of a failure to

pursue the adequate state court remedy in a timely manner

forfeits the federal takings claim. See Pascoag Reservoir & Dam,

LLC v. Rhode Island, 337 F.3d 87, 94 (1st Cir. 2003).

In Marek, the plaintiff’s failure to avail himself of the

“adequate procedural pathway” of inverse condemnation relief in

Rhode Island state court proved fatal to his ability to seek

relief in federal court. See id. at 653-64. Massachusetts

9 In lieu of building within the same footprint, Barth

proposed rebuilding a smaller structure, albeit “with

compensation for the reduced land value.” (Docket Entry # 67, p.

11).

13

courts likewise recognize a cause of action for inverse

condemnation under section ten of chapter 79. See Gilbert v.

City of Cambridge, 932 F.2d 51, 64 (1st Cir. 1991). Moreover,

this eminent domain statute provides “‘an adequate means of

obtaining just compensation for any alleged taking.’” Id. at 64-

65 (agreeing with and quoting the lower court’s decision). In

the case at bar, Barth brought an inverse condemnation action in

state court and the trial court rejected the chapter 79 claim.

In particular, the trial court determined there was no taking

and, specifically, no compensable taking of Barth’s property

under sections six and ten of chapter 79. (Docket Entry # 82-2,

pp. 3, 11). Thus, Barth sought just compensation under the state

statute and the trial court denied the chapter 79 claim. The

City’s argument therefore does not preclude this court from

adjudicating the Fifth Amendment takings claim. See Perfect

Puppy, Inc. v. City of E. Providence, R.I., 807 F.3d 415, 420

(1st Cir. 2015) (if “state offers adequate procedures for seeking

just compensation (and Rhode Island does), then there is no

constitutional infraction—and no takings claim is ripe—until the

litigant asks the government for fair payment and is denied”);

Adams v. Town of Montague, Civil Action No. 14-30178-MGM, 2015 WL

1292402, at *2 (D. Mass. Mar. 23, 2015) (“Plaintiffs must first

exhaust their remedies in state court under M.G.L. c. 79 before

bringing a Fifth Amendment takings claim, as well as a procedural

14

due process claim based on the same alleged taking”).

The City seeks to extend the state litigation requirement to

Barth’s failure to file an appeal of the ZBA’s denial under

chapter 40A, section 17. Section 17 does not address a taking

without just compensation as do the foregoing eminent domain

statutes in chapter 79. Rather, section 17 allows an aggrieved

person such as Barth to bring an action to annul a decision by

“the [zoning] board of appeals” on the basis that the board’s

decision exceeded its authority. Mass. Gen. Laws ch. 40A, § 17,

¶ 1.10 Accordingly, solely for purposes of resolving Barth’s

summary judgment motion, Barth adequately complied with the

second Williamson requirement by challenging the taking without

compensation under the adequate procedure available in sections

10 In pertinent part, the statute reads as follows:

Any person aggrieved by a decision of the board of appeals .

. . may appeal to the land court department or the superior

court department in which the land concerned is situated . .

. by bringing an action within twenty days after the

decision has been filed in the office of the city or town

clerk . . . The complaint shall allege that the decision

exceeds the authority of the board or authority, and any

facts pertinent to the issue, and shall contain a prayer

that the decision be annulled.

. . . The court shall hear all evidence pertinent to the

authority of the board . . . and determine the facts, and,

upon the facts as so determined, annul such decision if

found to exceed the authority of such board . . . The

foregoing remedy shall be exclusive . . ..

Mass. Gen. Laws ch. 40A, § 17.

15

six and ten of chapter 79, which the trial court denied.

Accordingly, this court turns to the City’s second argument

that no taking occurred and Barth’s argument to the contrary.

The Takings Clause of the Fifth Amendment, which applies to the

states through the Fourteenth Amendment, declares that “private

property shall not ‘be taken for public use, without just

compensation.’” Murr v. Wisconsin, 137 S. Ct. 1933, 1942 (2017).

Once Barth became the owner of the property, the City did not

engage in a physical taking of the property. It neither

condemned the property nor physically appropriated it. See

Philip Morris, Inc. v. Reilly, 312 F.3d 24, 33 (1st Cir. 2002)

(“physical taking occurs either when there is a condemnation or a

physical appropriation of property”).

Another manner in which a state actor engages in a

categorical taking is by a regulation that “denies all

economically beneficial or productive uses of land.” Murr v.

Wisconsin, 137 S. Ct. at 1942 (citing, inter alia, Lucas v. S.C.

Coastal Council, 505 U.S. 1003, 1015 (1992)); Lucas v. S.C.

Coastal Council, 505 U.S. at 1029 (“regulations that prohibit all

economically beneficial use of land . . . cannot be newly

legislated or decreed (without compensation)”); accord Palazzolo

v. Rhode Island, 533 U.S. at 617 (“Palazzolo”) (quoting Lucas,

505 U.S. at 1015); Maine Education Association Benefits Trust v.

Cioppa, 695 F.3d 145, 153 (1st Cir. 2012) (quoting Lingle v.

16

Chevron U.S.A. Inc., 544 U.S. 528, 538 (2005)); see also Stop the

Beach Renourishment, Inc. v. Fla. Dept. of Environmental

Protection, 560 U.S. 702, 713 (2010) (“our doctrine of regulatory

takings ‘aims to identify regulatory actions that are

functionally equivalent to the classic taking’” such as when a

regulation deprives the owner “of all economically beneficial use

of his property”). The standard to satisfy this form of

categorical taking is high. See Lucas v. S.C. Coastal Council,

505 U.S. at 1019, n.8. Subsequent to Lucas, the Supreme Court

reiterated that Lucas is “‘limited to the extraordinary

circumstance when no productive or economically beneficial use of

land is permitted.’” Tahoe–Sierra Preservation Council, Inc. v.

Tahoe Regional Planning Agency, 535 U.S. 302, 330 (2002) (quoting

Lucas, 505 U.S. at 1017) (emphasis in original). Indeed, a

footnote in the Lucas opinion “explain[ed] that the categorical

rule would not apply if the diminution in value were 95% instead

of 100%.” Id. (citing Lucas, 505 U.S. at 1019, n.8).

Although Barth maintains that the City deprived him of all

economically beneficial use of the property by denying him the

ability to rebuild the nonconforming, preexisting dwelling, the

fact remains that Barth purchased the property for $1,000

(Docket Entry # 67, Ex. D, p. 35) and admits that a neighbor

17

offered him $1,000 for the property (Docket Entry # 1, ¶ 56).11

The assessed value of the property after the purchase ($3,200) is

more than Barth paid for the property albeit less than the

assessed value prior to the purchase. See Murr v. Wisconsin, 137

S. Ct. at 1949 (“[t]he property has not lost all economic value,

as its value has decreased by less than 10 percent”). In sum,

Barth therefore fails to establish that the City engaged in a

categorical taking by a physical invasion or a regulation that

completely deprived Barth of all economically beneficial use of

the property. Accordingly, the existence of a taking under the

Fifth Amendment entails examining “the Penn Central factors.”

Maine Education Association Benefits Trust v. Cioppa, 695 F.3d at

153.

Turning to the task, a taking may occur “when a regulation

impedes the use of property without depriving the owner of all

economically beneficial use.” Murr v. Wisconsin, 137 S. Ct. at

1942. The assessment considers “‘a complex of factors,’

including (1) the economic impact of the regulation on the

claimant; (2) the extent to which the regulation has interfered

with distinct investment-backed expectations; and (3) the

11 The City seeks to use the latter statement as an admission

(Docket Entry # 82, pp. 10-11), which is permissible. See Schott

Motorcycle Supply, Inc. v. American Honda Motor Co., 976 F.2d 58,

61 (1st Cir. 1992) (“party’s assertion of fact in a pleading is a

judicial admission by which it normally is bound throughout the

course of the proceeding”); see also Pruco Life Ins. Co. v.

Wilmington Trust Co., 721 F.3d 1, 11 (1st Cir. 2013).

18

character of the governmental action.” Id. at 1942-43 (quoting

Palazzolo v. Rhode Island, 533 U.S. at 617); see Penn Central

Transportation Co. v. New York City, 438 U.S. 104, 129-31 (1978).

Initially examining the second factor, it protects a

landowner’s “‘reasonable expectations.’” Maine Education

Association Benefits Trust v. Cioppa, 695 F.3d at 154 (quoting

Philip Morris, Inc. v. Reilly, 312 F.3d at 36) (emphasis in

original). For example, when a claimant purchases a property

already included in a designated port area, he has no reasonable

expectation that the “property would be free of DPA

restrictions.” U.S. Gypsum Co. v. Office of Environmental

Affairs, 867 N.E.2d 764, 778 (Mass. App. Ct. 2007) (citing Lucas,

505 U.S. at 1030); see Lucas v. S.C. Coastal Council, 505 U.S. at

1030 (noting that, “Takings Clause does not require compensation

when an owner is barred from putting land to a use that is

proscribed by those ‘existing rules or understandings’ is surely

unexceptional”). Likewise, the petitioners in Murr could not

“claim that they reasonably expected to sell or develop their

lots separately given the regulations which predated their

acquisition of both lots.” Murr v. Wisconsin, 137 S. Ct. at

1949. Similarly, as explained in Lucas, the Court “assuredly

would permit the government to assert a permanent easement that

was a pre-existing limitation upon the land owner’s title.”

Lucas v. S.C. Coastal Council, 505 U.S. at 1028–29 (emphasis in

19

original).

At first glance, therefore, the ZBA’s enforcement of the

dimensional controls in section 7.2, in existence at the time

Barth purchased the property, appears unexceptional. Section

7.2, however, is subject to chapter 40A, section six, see Chilson

v. Zoning Bd. of Appeal of Attleboro, 182 N.E.2d 535, 539 (Mass.

1962); McLaughlin v. City of Brockton, 587 N.E.2d 251, 252 (Mass.

App. Ct. 1992) (lower court’s interpretation “would place that

ordinance in conflict with the enabling Zoning Act, . . . in G.L.

c. 40A, § 6”), which also existed at the time Barth purchased the

property and, consequently, forms the statutory and regulatory

background or expectations in which Barth made his investment in

purchasing the property. See Lucas v. S.C. Coastal Council, 505

U.S. at 1030.

Barth maintains “that the right of the prior use runs with

the land” because section six of chapter 40A exempts preexisting,

nonconforming structures, such as the house built on the property

in 1800 prior to the enactment of the 2011 Peabody Zoning

Ordinance. (Docket Entry # 66). As long as the rebuilt home

“‘does not increase the nonconforming nature’” of the prior

structure, section six of chapter 40A recognizes that the right

to rebuild the nonconforming structure runs with the land and

exempts such preexisting structures from local zoning ordinances,

according to Barth.

20

Notably, this court is not addressing the annulment of the

ZBA’s decision as exceeding the board’s authority under chapter

40A, section 17. As determined by the trial court and the

appeals court, Barth did not appeal the ZBA’s decision under

section 17. Rather, the analysis of the relationship between

section six of chapter 40A and the 2011 Peabody Zoning Ordinance,

section 7.2, pertains to the reasonable, investment-backed

expectations of Barth at the time he purchased the property.

Section six of chapter 40A “gives special status to

nonconforming single and two-family residences and allows them to

be rebuilt despite changes in the zoning by-laws,” provided they

existed before the effective date of the ordinances or bylaws

that render them nonconforming. Dial Away Co., Inc. v. Zoning

Bd. of Appeals of Auburn, 669 N.E.2d 446, 449 (Mass. App. Ct.

1996); see Palitz v. Zoning Bd. of Appeals of Tisbury, 26 N.E.3d

175, 179 (Mass. 2015) (because “structure predated the effective

date of the bylaw, it appears to have constituted a preexisting

nonconforming structure entitled to grandfather status under”

chapter 40A, section six). For such preexisting, nonconforming

structures, “‘reconstruction’ . . . is permitted despite a change

in the zoning by-law if such activity ‘does not increase the

nonconforming nature of said structure.’” Dial Away Co., Inc. v.

Zoning Bd. of Appeals of Auburn, 669 N.E.2d at 449 (quoting

second except clause in chapter 40A, section six); see also

21

Chiaraluce v. Ferreira, 11 Misc 451014 GHP, 2012 WL 2878155, at

*2-3, 9 (Mass. Land Ct. July 16, 2012) (noting that section six

“permits some interval between the demolition and reconstruction

of a structure on a nonconforming lot”), aff’d, 48 N.E.3d 475

(Mass. App. Ct. 2016). Massachusetts law at the time of Barth’s

purchase also provided an expectation that “the right to continue

a nonconforming use is not confined to the existing user, but

runs with the land” although “that right can be lost if a

predecessor in title has abandoned the use.” Derby Refining Co.

v. City of Chelsea, 555 N.E.2d 534, 538 (Mass. 1990) (citing City

of Revere v. Rowe Contracting Co., 289 N.E.2d 830, 831 (Mass.

1972)) (emphasis added); Almeida v. Arruda, 46 N.E.3d 1036, 1042

(Mass. App. Ct. 2016) (“proper focus is on the particular use,

not the particular owner or operator, which may change over

time”).

It is debatable whether a demolition of a structure followed

by a transfer of ownership allows a new owner such as Barth to

assert the protection afforded under chapter 40A, section six.

In lieu of deciphering whether the language of the first two

sentences of section six, which is often described as “difficult

and infelicitous” to apply, Fitzsimonds v. Bd. of Appeals of

Chatham, 484 N.E.2d 113, 115 (Mass. App. Ct. 1985), allows such a

construction, this court will assume in Barth’s favor that it

does solely for purposes of resolving Barth’s summary judgment

22

motion.12

12 The three cases relied upon by the City to refute Barth’s

argument that transfers of title do not affect the right to

rebuild are distinguishable. In Martin, the court denied a

zoning applicant, who owned the property, the ability to tear

down and replace a garage because it did not conform to the

subdivision plan created and approved in 1965. Martin v. Bd. of

Appeals of Yarmouth, 482 N.E.2d 336, 337 (Mass. App. Ct. 1985)

(“Martin”). The encroaching garage was therefore a “self-created

nonconformity” as opposed to a lawful, preexisting structure

entitled to grandfather protection under section six of chapter

40A. Id.

The Angus case forecloses a construction of section 1.5.4 of

the 2011 Peabody Zoning Ordinance, which contains language

similar to the bylaw construed in Angus, that extends the

protection of the section to all “damaged or destroyed”

structures. See Angus v. Miller, 363 N.E.2d 1349, 1351-52 (Mass.

App. 1977) (limiting “damaged or destroyed” to damaged or

destroyed by catastrophe) (“Angus”); Shuffain v. Mulvehill, No.

308061, 2006 WL 1495106, at *12 (Mass. Land Ct. June 1, 2006)

(consistent with “bylaw at issue in Angus-complete rebuilding or

restoration is limited to instances of a casualty loss” and

“[v]oluntary razing . . . is excluded from both bylaws as they

address reconstruction” in “context of a casualty loss”)

(“Shuffain”). Angus did not address and, accordingly, does not

necessarily foreclose reliance on the second except clause in the

first paragraph of section six in chapter 40A as a means to

obtain a permit to reconstruct the preexisting, nonconforming

structure. Furthermore, the language of the second except clause

closely tracks the fourth paragraph in section 1.5.1 of the 2011

Peabody Zoning Ordinance rather than section 1.5.4. Analogous to

the second except clause, section 1.5.1 allows reconstruction of

a “legally existing nonconforming” residential dwelling when the

reconstruction “does not increase the nonconforming nature of the

dwelling.” (Docket Entry # 82-3). Finally, the Shuffain case

cited by the City involved a commercial structure as opposed to a

residential structure, which receives more generous treatment

under the second except clause in section six of chapter 40A.

See Shuffain v. Mulvehill, 2006 WL 1495106, at *11

(“reconstruction within an existing footprint after voluntary

demolition” for residential structure “will be permissible

pursuant to” second except clause). In sum, these cases do not

necessarily preclude an expectation on the part of Barth of a

right to reconstruct the preexisting residential structure under

the second except clause after a change in ownership. See also

fn. 12 infra.

23

Abandonment, which may apply to uses and to structures,

“‘requires “the concurrence of two factors, (1) the intent to

abandon and (2) voluntary conduct, whether affirmative or

negative, which carries the implication of abandonment.”’”13

Chiaraluce v. Zoning Bd. of Appeals of Wareham, 48 N.E.3d 475,

479 (Mass. App. Ct. 2016) (also noting that person seeking permit

has burden to show intent and inability regarding abandonment).14

A “voluntary demolition of a building constitutes abandonment,”

whereas “‘mere nonuse or sale of property does not, by itself,

constitute an abandonment.’” Dial Away Co., Inc. v. Zoning Bd.

of Appeals of Auburn, 669 N.E.2d at 450. “‘Abandonment is

primarily a question of fact,’” Derby Refining Co. v. City of

Chelsea, 555 N.E.2d 534, 539 (Mass. 1990), and may include

factual issues regarding the intent of prior owners. See

13 Abandonment is distinct from a requirement in a bylaw that

non-use for two years may extinguish a prior, nonconforming use

or structure. See Kanj v. D’Agostino, 15 Misc. 000446 (AHS),

2017 WL 2406190, at *7 (Mass. Land Ct. May 31, 2017).

14 The appeals court in Chiaraluce v. Zoning Bd. of Appeals of

Wareham, 48 N.E.3d 475, 479 (Mass. App. Ct. 2016), and the trial

court in a bench trial and previously in a summary judgment

ruling did not deny the current owner the ability to reconstruct

a hurricane-demolished cottage on the basis that it did not own

the cottage at the time of the destruction. See Chiaraluce v.

Ferreira, 11 MISC 451014 GHP, 2014 WL 7466508 (Mass. Land Ct.

Dec. 31, 2014) (bench trial opinion); Chiaraluce v. Ferreira, 11

MISC 451014 GHP, 2012 WL 2878155 (Mass. Land Ct. July 16, 2012)

(partially allowing summary judgment). The parties, however, did

not make an argument regarding the lack of ownership at the time

of the destruction and a resulting inability to rely on the

second except clause.

24

Chiaraluce v. Zoning Bd. of Appeals of Wareham, 2014 WL 7466508,

at *9 (missed opportunities to reconstruct residence started with

prior owner), aff’d, 48 N.E.3d 475 (Mass. App. Ct. 2016).

Although the time period is short, there is no indication that

Freddie Mac attempted to obtain approval to reconstruct the

demolished structure. These and other factual issues surround

the abandonment issue in the case at bar. Thus, although Barth

had some expectation to continue the nonconforming, preexisting

residential use and to reconstruct the demolished structure, the

factual issues regarding abandonment detract from the

reasonableness of that expectation.

Turning to the first Penn Central factor, the economic

impact of enforcing section 7.2 of the 2011 Peabody Zoning

Ordinance and thereby denying the residential use and the

reconstruction of the structure does not inevitably favor Barth.

Viewing the record in the City’s favor, as required, a neighbor

expressed a willingness to purchase the property for $1,000

evidencing the impact after the regulation’s enforcement as less

severe than Barth alleges.

Addressing the third Penn Central factor, “‘A “taking” may

more readily be found when the interference with property can be

characterized as a physical invasion by government than when the

interference arises from some public program adjusting the

benefits and burdens of economic life to promote the common

25

good.’” Maine Education Association Benefits Trust v. Cioppa,

695 F.3d at 157 (quoting Penn Central, 438 U.S. at 124) (citation

and internal brackets omitted). Minimum lot sizes and set back

requirements, such as those in section 7.2, are “standard zoning

tools” used by local governments to temper density of residential

areas, road congestion, overcrowding in schools, overuse of sewer

systems, and other public services. Quinn v. Bd. of County

Commissioners for Queen Anne’s County, Maryland, 862 F.3d 433,

441 (4th Cir. 2017). As such, the third Penn Central factor does

not invariably favor Barth.

On balance, the Penn Central factors do not warrant summary

judgment in Barth’s favor on the Fifth Amendment takings claim.

Whether a finder of fact will consider the 2011 Peabody Zoning

Ordinance a regulatory taking will entail factual inquiries in

the course of weighing “‘all the relevant circumstances.’”15

Murr v. Wisconsin, 137 S. Ct. at 1942 (quoting Tahoe–Sierra, 535

U.S. at 322).

Barth also seeks summary judgment on the state

constitutional takings claim under chapter 79, sections six, ten,

and 14. Such a claim entails examining whether the Massachusetts

Declaration of Rights provides for reasonable compensation. See

Davidson v. Commonwealth, 395 N.E.2d 1314, 1316–17 (Mass. App.

15 It is therefore not necessary to address Barth’s arguments

regarding the value and the appropriate amount of just

compensation for any taking.

26

Ct. 1979) (in determining claim for damages under chapter 79,

sections ten and 14, court ascertains “whether the plaintiff’s

property has been ‘appropriated to public uses’ so that

‘reasonable compensation therefor’ must be provided under art. 10

of the Massachusetts Declaration of Rights”) (citing Sullivan v.

Commonwealth, 142 N.E.2d 347, 348-49 (Mass. 1957)); see Martini

v. City of Pittsfield, Civil Action No. 14-30152-MGM, 2015 WL

1476768, at *8 (D. Mass. Mar. 31, 2015). The Massachusetts

Supreme Judicial Court (“SJC”) evaluates state constitutional

“takings claims under the Federal analysis.” Commonwealth v.

Blair, 805 N.E.2d 1011, 1016 (Mass. App. Ct. 2004); see Blair v.

Dep’t of Conservation and Recreation, 932 N.E.2d 267, 270-271

(Mass. 2010) (SJC interprets Massachusetts Declaration of Rights

as affording “same protection” as “the just compensation clause

of the Fifth Amendment”). Consequently, Barth’s state law

takings claim under chapter 79, like the federal, Fifth Amendment

claim, does not warrant summary judgment in his favor.

II. Denial of Equal Protection

In moving for summary judgment on the equal protection

claim, Barth maintains that the City did not deny the continued

residential use to owners of other similarly situated properties,

namely, the neighboring properties with preexisting,

nonconforming homes at 2 and 6 Lynn Street. (Docket Entry # 66,

p. 17) (Docket Entry # 1, ¶¶ 1, 9, 42). He reasons that, because

27

section six of chapter 40A allowed him the ability to reconstruct

the preexisting, nonconforming structure, the City had no

rational basis to deny him the same residential use of his

property as his similarly situated neighbors. (Docket Entry #

66, pp. 16-17). Furthermore, by refusing to enforce section six

in favor of Barth, the City selectively denied him the

residential use of his property in violation of the Equal

Protection Clause. (Docket Entry # 66, pp. 16-17). In seeking

summary judgment, he also quotes the Supreme Court decision of

Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)

(allowing class of one, equal protection claim to proceed because

village intentionally demanded larger-width easement on the

plaintiff’s property than smaller-width easements on similarly

situated properties). Citing Martin, Angus, and Shuffain, the

City argues that there is no right to rebuild a voluntarily-

destroyed, nonconforming structure.16

In essence, Barth asserts that the City wrongfully denied

him a building permit allowed under section six of chapter 40A

and a variance from the enforcement of the dimension requirements

of section 7.2 to reconstruct the residential structure on his

property even though the City allowed other, similarly situated

owners of adjacent properties to continue their residential use

of their nonconforming structures. To succeed on such an “equal

16 See footnote 12.

28

protection claim requires ‘proof that (1) the person, compared

with others similarly situated, was selectively treated; and (2)

that such selective treatment was based on impermissible

considerations such as race, religion, intent to inhibit or

punish the exercise of constitutional rights, or malicious or bad

faith intent to injure a person.’”17 Freeman v. Town of Hudson,

714 F.3d 29, 38 (1st Cir. 2013) (quoting Rubinovitz v. Rogato, 60

F.3d 906, 909–10 (1st Cir. 1995)); see Yerardi’s Moody St. Rest.

& Lounge, Inc. v. Bd. of Selectmen of the Town of Randolph, 878

F.2d 16, 21 (1st Cir. 1989) (challenge by restaurant to “closing

time” requirement imposed by local licensing authority as

condition to obtain liquor license); Walsh v. Town of Lakeville,

431 F. Supp. 2d 134, 143 (D. Mass. 2006) (considering and

examining allegations of adverse treatment based, inter alia, on

wrongfully denying permits as a class of one equal protection

claim). Class of one equal protection claims necessitate “an

extremely high degree of similarity” between Barth and the

neighboring comparators. Freeman v. Town of Hudson, 714 F.3d at

38. Although there is no “precise demarcation” between similarly

situated versus not similarly situated, “‘[t]he test is whether a

prudent person, looking objectively at the incidents, would think

them roughly equivalent and the protagonists similarly situated.

17 The complaint alleges that the City acted with “knowledge

and intent to deny” Barth “equal protection of the law.” (Docket

Entry # 1, ¶ 42) (emphasis in original).

29

Much as in the lawyer’s art of distinguishing cases, the

“relevant aspects” are those factual elements which determine

whether reasoned analogy supports, or demands, a like result.’”

Barrington Cove Ltd. Partnership v. Rhode Island Housing and

Mortgage Finance Corp., 246 F.3d 1, 8 (1st Cir. 2001) (quoting

Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir.

1989)). “‘In other words, apples should be compared to apples.’”

Id. (citation omitted).

Here, Barth presents evidence that similar residential

structures on the two neighboring properties were preexisting,

nonconforming structures. He also provides evidence that the

owners of the two, neighboring properties continued the

residential use of their preexisting, nonconforming structures

built in the 1800s whereas the City denied Barth the ability to

reconstruct the former, preexisting, nonconforming structure and

the residential use as of right under section six of chapter 40A.

The properties, however, are not similarly situated insofar

as there is no evidence of a destruction or total demolition of

the structures on the other two properties and the City

thereafter allowing the other owner(s) to rebuild the

structure(s). There is also no evidence of attempts by the other

owners to obtain building permits or variances to entirely

rebuild their dwellings. See Rubinovitz v. Rogato, 60 F.3d at

910 (“the Rubinovitzes fail to present any evidence that any of

30

their neighbors were either required to seek a variance or

actually made such a request of the Board”). Barth therefore

fails to establish as a matter of law the necessary degree of

similarity to entitle him to summary judgment on the equal

protection claim.

III. Denial of Due Process

Barth also moves for summary judgment on the federal due

process claim.18 The complaint raises a violation of procedural

due process by denying him his “property without due process” by

taking it without compensation. (Docket Entry # 1, pp. 4, 8, 23)

(citing Bd. of Regents of State Colleges v. Roth, 408 U.S. 564,

577 (1972); Hudson v. Palmer, 468 U.S. 517 (1984);19 Cleveland

18 To the extent Barth attempts to present a violation of due

process under the state constitution, he does not adequately

develop the argument. See Coons v. Industrial Knife Co., Inc.,

620 F.3d 38, 44 (1st Cir. 2010) (“district court was ‘free to

disregard’ the state law argument that was not developed in

Coons’s brief”).

19 “The Parratt–Hudson doctrine establishes that ‘a deprivation

of a constitutionally protected property interest caused by a

state employee’s random, unauthorized conduct does not give rise

to a § 1983 procedural due process claim, unless the State fails

to provide an adequate postdeprivation remedy.’” Garcia-Gonzalez

v. Puig-Morales, 761 F.3d 81, 86 n.1 (1st Cir. 2014) (quoting

Zinermon v. Burch, 494 U.S. 113, 115 (1990), citing Hudson v.

Palmer, 468 U.S. 517 (1984)). The “doctrine exists to protect

states from needlessly defending the adequacy of state law

process when the alleged due process violation results from a

deviation from that process.” Chmielinski v. Massachusetts, 513

F.3d 309, 315 (1st Cir. 2008) (paraphrasing Hudson v. Palmer, 468

U.S. at 533, as “holding that when alleged due process violations

stem from ‘random and unauthorized conduct,’ review is limited

solely to the adequacy of the post-deprivation remedies”).

31

Bd. of Education v. Loudermill, 470 U.S. 532 (1985); and Baker v.

McCollan, 443 U.S. 193, 227 (1979)). Barth submits the City did

not take his property under the procedures afforded by the

eminent domain statute in chapter 79 and therefore took his

property without affording him due process. (Docket Entry # 66,

p. 18). He also complains that the trial court incorrectly

stated that Barth had not opposed the City’s motion to dismiss

and excluded the documents Barth filed in opposition to the

motion. (Docket Entry # 66, p. 18).

“To establish a procedural due process violation, a

plaintiff must show that (1) [he] was deprived of a protected

property interest, and (2) the procedures attendant to that

deprivation were constitutionally inadequate.” Rocket Learning,

Inc. v. Rivera–Sánchez, 715 F.3d 1, 11 (1st Cir. 2013). Barth,

however, received notice and a hearing before the ZBA to

challenge the purported, constructive taking of his property

accomplished by denying him the ability to reconstruct the

demolished, preexisting, nonconforming structure. Viewing the

property interest as the right to rebuild the demolished

preexisting, nonconforming structure under section six of chapter

40A, cf. Miller v. Town of Wenham, Mass., 833 F.3d 46, 51 (1st

Cir. 2016) (assuming arguendo that Massachusetts creates property

interest in enforcement of zoning laws against unlawful uses),

the City therefore afforded Barth the opportunity to be heard

32

before the ZBA and he availed himself of that opportunity. In

state court, he presented a state law eminent domain claim, which

the trial court rejected. See id. at 54 (noting that Miller had

ability to request enforcement by Building Inspector, obtain

review by ZBA, and proceed in state court under chapter 40A,

section 17); see generally Carey v. Piphus, 435 U.S. 247, 259

(1978) (procedural due process protects “persons not from the

deprivation, but from the mistaken or unjustified deprivation of

life, liberty, or property”). The City also correctly points out

(Docket Entry # 82, p. 13) that Barth does not provide the

documents the trial court refused to consider or other

evidentiary material to support the purported denial of due

process when the trial court refused to accept the documents.

Accordingly, inasmuch as a reasonable jury could find in the

City’s favor on the due process claim, Barth fails in his burden

to show that the process afforded was constitutionally

inadequate.

As a final matter, Barth’s inability to obtain summary

judgment on the due process, equal protection, and takings claims

due to material issues of fact pertaining to the existence of a

constitutional violation obviates the need to address his Monell

arguments regarding the City’s policies or customs. (Docket

Entry # 66, p. 16). Citing Monroe v. Pape, 365 U.S. 167 (1961),

Barth presents a separate, two-sentence argument that section

33

1983 “liability attaches when a government official act[s] beyond

[his] authority or in violation of [a] duty under state law.”

(Docket Entry # 66, p. 21). Monroe addresses the “acting under

color of state law” element of section 1983 liability and, in

pertinent part relative to Barth’s argument, states that,

“‘Misuse of power, possessed by virtue of state law and made

possible only because the wrongdoer is clothed with the authority

of state law, is action taken “under color of” state law.’”

Monroe v. Pape, 365 U.S. at 184, overruled in part on other

grounds by Monell v. Dept. of Social Services of City of New

York, 436 U.S. 658, 663 (1978) (“overrul[ing] Monroe v. Pape,

insofar as it holds that local governments are wholly immune from

suit under § 1983”). Here again, by virtue of recommending the

denial of summary judgment on the section 1983 claims based on

material facts regarding the violation of a constitutional right,

it is not necessary to address the color of state law element of

section 1983. See generally Wilber v. Curtis, 872 F.3d 15, 19

(1st Cir. 2017) (section 1983 has “‘two essential elements[,]’”

namely, “‘challenged conduct must be attributable to a person

acting under color of state law’” and “‘conduct must have worked

a denial of rights secured by the Constitution or by federal

law’”).

IV. Section 1985 and Section 1986 Claims

Barth next seeks summary judgment on the section 1985 and

34

section 1986 claims. The City submits that, because the

underlying claims are deficient, the sections 1985 and 1986

claims fail.

Section 1985(3) creates a private right of action for

“‘injuries occasioned when “two or more persons . . . conspire .

. . for the purposes of depriving, either directly or indirectly,

any person or class of persons of the equal protection of the

laws, or of equal privileges and immunities under the laws.”’”

Diva’s Inc. v. City of Bangor, 411 F.3d 30, 38 (1st Cir. 2005)

(quoting Burns v. State Police Association of Massachusetts, 230

F.3d 8, 12 n.3 (1st Cir. 2000)). In order to obtain summary

judgment, Barth bears the burden to establish: “(1) ‘a

conspiracy,’ (2) ‘a conspiratorial purpose to deprive the

plaintiff of the equal protection of the laws,’ (3) ‘an overt act

in furtherance of the conspiracy,’ and, lastly, (4) either (a) an

‘injury to person or property’ or (b) ‘a deprivation of a

constitutionally protected right.’” Soto-Padró v. Public

Buildings Authority, 675 F.3d 1, 4 (1st Cir. 2012) (quoting

Pérez–Sánchez v. Public Buildings Authority, 531 F.3d 104, 107

(1st Cir. 2008)); see also D.B. ex rel. Elizabeth B. v. Esposito,

675 F.3d 26, 44 (1st Cir. 2012) (section 1985 does not create

substantive rights). “A section 1985 claim ‘requires “some

racial, or perhaps otherwise class-based, invidiously

discriminatory animus behind the conspirators’ action,”’” Id.

35

(quoting Pérez–Sánchez, 531 F.3d at 107); see Griffin v.

Breckenridge, 403 U.S. 88, 102 (1971). In presenting the section

1985(3) claim, however, Barth fails to mention or identify any

racial or class-based discriminatory animus. Because he bears

the underlying burden of proof on this issue, summary judgment on

the section 1985(3) claim is not appropriate.

Section 1986 provides liability against “[e]very person who,

having knowledge” of “wrongs conspired to be done . . . in

section 1985,” fails to prevent such wrongful action. 42 U.S.C.

§ 1986; see Maymí v. Puerto Rico Ports Authority, 515 F.3d 20, 30

(1st Cir. 2008) (section 1986 “extends liability to those who

knowingly failed to prevent conspiracies under § 1985”). Where,

as here, the plaintiff fails to show a section 1985 conspiracy

“motivated by some ‘racial, or perhaps otherwise class-based,

invidiously discriminatory animus,’” the plaintiff “has no claim

under § 1986.” Maymí v. Puerto Rico Ports Authority, 515 F.3d at

30. Summary judgment in Barth’s favor on the section 1986 claim

is therefore not warranted.

CONCLUSION

In accordance with the foregoing discussion, Barth’s summary

judgment motion (Docket Entry # 65) is DENIED. The parties shall

appear for a status conference on May 1, 2018, at 2:30 p.m. to

36

set a trial date.

/s/ Marianne B. Bowler

MARIANNE B. BOWLER

United States Magistrate Judge

37