The opinion
United States District Court
District of Massachusetts
)
Michael Pascucci and Susan )
Pascucci; )
)
Plaintiffs, )
) Civil Action No.
v. ) 17-12186-NMG
)
Town of Lynnfield and the Board )
Selectmen in their official )
capacity; )
)
Defendants. )
)
)
)
MEMORANDUM & ORDER
GORTON, J.
This case arises from a property dispute between Michael
and Susan Pascucci (“plaintiffs” or “the Pascuccis”) and the
Town of Lynnfield, Massachusetts and its Board of Selectmen in
their official capacities (collectively “the defendants”). The
Pascuccis allege that the Town of Lynnfield made an unlawful
taking of their property without just compensation. They seek a
judgment enforcing their right of ownership of the subject
property or, alternatively, entitling them to just compensation.
I. Background
The Pascuccis have owned a condominium in the Partridge
Island development complex (“the Pascucci unit”) since 1995.
The Partridge Island Complex was built as part of the Local
Initiative Program (“LIP”) pursuant to M.G.L. c. 40B. LIP is a
state-run initiative that encourages the creation of affordable
and low income housing. It is administered and regulated by the
Massachusetts Department of Housing and Community Development
(“DHCD”).
As a requirement of LIP, a specific number of units in the
Partridge Island complex were designated as “affordable” and
sold at roughly 50% of their fair market value. The Pascucci
unit was purchased at such a discounted rate. In turn, the DHCD
promulgated regulations at 760 C.M.R. 45.00 requiring unitowners
to abide by certain restrictions. LIP required that applicable
restrictions be endorsed on the deed rider. One of the
constraints so posted was a prohibition on renting affordable
units. The plaintiffs allege that LIP has been repealed and
that Section 45.00 is no longer in effect but the defendants
rejoin that the former regulation has simply been superseded by
760 C.M.R. 56.00.
After owning the condominium for many years, the Pascuccis
bought a residence on Kenniston Road in Lynnfield. Mr. Pascucci
asserts that in 2012 or 2013 he requested in writing of DHCD and
the Town of Lynnfield that he be granted permission to rent and
eventually to sell his unit. Plaintiffs claim that neither DHCD
- 2 -
nor the town acted on his letter. Eventually, the Pascuccis
chose to rent the unit for a “minimal amount of money”
sufficient only to cover the mortgage and utility payments.
In 2014 or 2015, Mr. Pascucci wrote another letter to the
Town and to DHCD seeking permission to sell the unit. After
receipt of that letter, the Town discovered the property had
been previously rented. In April, 2014, Lynnfield filed suit
against the Pascuccis in the Massachusetts Superior Court for
Essex County seeking 1) to enforce the deed rider, 2) collect
profits from the rent and 3) to declare its rights. See Town of
Lynnfield v. Michael Pascucci et al., Civil Action No. 2014-
0612.
That Court ordered the Pascuccis to produce certain
documents but they failed to do so. The Town then moved for
default judgment under the Massachusetts Rules of Civil
Procedure and that motion was allowed. In August, 2016, the
Superior Court denied the Pascucci’s motion to vacate or clarify
the default judgment and in July, 2017, the Massachusetts
Appeals Court dismissed their appeal for want of prosecution.
The Pascuccis retained new counsel who moved to reinstate the
appeal but that motion was denied.
Plaintiffs’ complaint asserts that Lynnfield
unconstitutionally appropriated the Pascucci unit and that they
- 3 -
are entitled either to a declaratory judgment that they are the
rightful owners of the property or entitled to just
compensation. Plaintiffs also seek immediate and interim
equitable relief to prevent unrecoverable and irreparable damage
to the property. The four-count complaint specifically alleges
1) unlawful governmental taking in violation of the Fifth
Amendment, 2) unlawful regulatory taking, 3) failure to provide
a valuation of the property and 4) violation of procedural due
process.
Pending before the Court are cross-motions for judgment on
the pleadings.
II. Analysis
Article III of the United States Constitution confines the
judicial power of federal courts to actual “cases” or
“controversies”. Valley Forge Christian Coll. v. Americans
United for Separation of Church & State, Inc., 454 U.S. 464, 471
(1982). The justiciability doctrine of ripeness grows out of
“Article III limitations on judicial power and [] prudential
reasons for refusing to exercise jurisdiction,” Reno v. Catholic
Social Services, Inc., 509 U.S. 43, 57, n. 18 (1993) (citations
omitted). It ensures that the “harm asserted has matured
sufficiently to warrant judicial intervention.” Warth v. Seldin,
422 U.S. 490, 499 n. 10 (1975).
- 4 -
To demonstrate that a claim is ripe for litigation, a
plaintiff must show 1) “the fitness of the issues for judicial
decision” and 2) “the hardship to the parties of withholding
court consideration.” Roman Catholic Bishop of Springfield v.
City of Springfield, 724 F.3d 78, 89 (1st Cir. 2013) (citation
omitted).
“[T]he question of ripeness may be considered on a court’s
own motion.” Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538
U.S. 803, 808 (2003). The Court will do so here.
In Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank
of Johnson City, 473 U.S. 172, 194 (1985), the Supreme Court
held that a federal takings claim is not timely unless a
plaintiff demonstrates that
(a) “the government entity charged with implementing the
regulations has reached a final decision regarding the
application of the regulations to the property at issue,”
(“the final decision requirement”) and (b) the plaintiff
sought (and was denied) just compensation by means of an
adequate state procedure (“the state action requirement”).
Pascoag Reservoir & Dam, LLC v. Rhode Island, 337 F.3d 87, 91
(1st Cir. 2003) (quoting Williamson County, 473 U.S. at 186,
194-95).
Plaintiffs correctly note that neither their takings claim
(Count I) nor their regulatory takings claim (Count III) could
have been brought as counterclaims in the original state court
action against them. See Williamson County, 473 U.S. at 195
- 5 -
(stating that the state’s action does not cause a constitutional
injury “until the state fails to provide adequate compensation
for the taking”). That does not mean, however, that this Court
is the proper forum for such a suit.
If a state “provides an adequate procedure for seeking
just compensation, the property owner cannot claim a violation”
of the incorporated Takings Clause of the Fifth Amendment unless
and until he has availed himself of that procedure. Id. Here,
that procedure would be a takings claim in Massachusetts state
court. The Pascuccis “may not seek compensation in federal
court for an alleged taking without first resorting to the state
process.” Pascoag Reservoir & Dam, LLC v. Rhode Island, 337 F.3d
87, 92 (1st Cir. 2003). If the procedure is “unavailable,
inadequate [or] futile”, a plaintiff may be excused from such
requirement, Garcia-Rubiera v. Calderon, 570 F.3d 443, 453 (1st
Cir. 2009) but those exceptions do not apply here.
The Massachusetts courts provide the Pascuccis with an
available, adequate and worthwhile forum for their grievances.
Article 10 of the Massachusetts Declaration of rights requires
that when the property of any individual is “appropriated to
public uses, he shall receive a reasonable compensation
therefor.” See also Kris W. Kobach, The Origins of Regulatory
Takings: Setting the Record Straight, 1996 Utah L. Rev. 1211,
- 6 -
1229 (1996) (“At the time that the U.S. Constitution was
ratified, only two state constitutions contained compensation
requirements: Massachusetts’s and Vermont’s. Massachusetts's
constitution was the first to include such a clause, providing
it in the 1780 Declaration of Rights.”).
The Commonwealth also ensures just compensation for
regulatory takings. Indeed, almost a century before the United
States Supreme Court recognized regulatory takings, see
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922), the
Supreme Judicial Court concluded that a complainant was entitled
to compensation for “the loss of the use of his tenement during
the time he was necessarily deprived of it.” Patterson v. City
of Boston, 37 Mass. (20 Pick.) 159, 165 (1838).
The First Circuit Court of Appeals has held that
[i]f a plaintiff has not even tried to obtain compensation
from the state, then we cannot say that the state has
denied
the property owner just compensation. Elena v. Municipality of
San Juan, 677 F.3d 1, 7 (1st Cir. 2012). Should the
Massachusetts courts determine that the Pascuccis are not
entitled to compensation for the loss of their unit, they may
return with their takings claims to federal court. Until then
their action here is not ripe.
- 7 -
ORDER
For the foregoing reasons, plaintiffs’ motion for judgment
on the pleadings (Docket No. 33) is DENIED, defendants’ motion
for judgment on the pleadings (Docket No. 16) is DENIED AS MOOT
and plaintiffs’ complaint is DISMISSED.
So ordered.
_/s/ Nathaniel M. Gorton_____
Nathaniel M. Gorton
United States District Judge
Dated September 13, 2018
- 8 -