Zarba v. The Town of Oak Bluffs

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

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JOHN ZARBA and SUSAN LEMOIE )

ZARBA, )

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Plaintiffs, )

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v. ) Civil No. 19-11368-LTS

)

THE TOWN OF OAK BLUFFS, et al., )

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Defendants. )

)

ORDER ON MOTIONS TO DISMISS (DOC. NOS. 86, 88, 90)

August 11, 2020

SOROKIN, J.

Now before the Court are motions to dismiss Plaintiffs’ First Amended Complaint, filed

on behalf of three sets of Defendants. Doc. Nos. 86 (filed on behalf of The Town of Oak Bluffs),

88 (filed on behalf of nine individually named Town officials), 90 (filed on behalf of the Town

Counsel and Town Counsel law firm). For the reasons that follow, the motions are ALLOWED.

I. BACKGROUND1

This lawsuit, arriving in federal court after years of litigation in Massachusetts Land

Court and Superior Court involving the Plaintiffs, arises out of a boundary dispute. In March

2016, Plaintiffs were sued in Massachusetts Land Court by a neighboring property owner, the

O’Neill Trust, which sought a prescriptive easement to drive construction vehicles across a dirt

road on Plaintiffs’ property. Doc. No. 85 ¶ 15. As a part of that Land Court action, in June

1 The Court recounts the facts as set forth in the First Amended Complaint, Doc. No. 85, and

documents attached thereto. See Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993).

2016, the O’Neill Trust joined the Town of Oak Bluffs, which owned cemetery land abutting the

Plaintiffs’ property. Id. ¶ 20. Shortly thereafter, in late June 2016, Plaintiffs finished work on a

guest home at their Oak Bluffs property and sought a Certificate of Occupancy Permit from the

Oak Bluffs Building Inspector, Mark Barbadoro. Id. ¶ 22. Based on a review of Plaintiffs’ title

that had been undertaken as a part of the O’Neill Trust litigation in Land Court, Town Counsel

Ronald Rappaport and Michael Goldsmith advised Barbadoro that “the survey used by the

Plaintiffs to obtain a building permit for their guest house did not accurately portray the southern

property line of the [Plaintiffs’] lot,” and given this allegedly faulty survey, “the siting of the

guest house might be unlawful.” Doc. No. 91 at 3; Doc. No. 85 ¶ 23. In light of this advice and

the pending Land Court litigation that promised to resolve the property line question, on July 13,

2016, Barbadoro deferred decision on Plaintiffs’ Certificate of Occupancy Permit and instead

issued a temporary Certificate of Occupancy that was valid for one year. Doc. No. 74-5 at 10.

According to Plaintiffs, on September 29, 2016, Barbadoro “sent a Parking Violation

letter to [Plaintiffs] stating that they will be issued a $300 dollar [sic] a day fine each day that

they parked on their land.” Doc. No. 85 ¶ 31. About a month later, on November 1, 2016,

Barbadoro sent another communication to Plaintiffs informing them that the Town’s title

examiner and surveyor had determined that their guest home had been built too close to the

boundary line between their property and Town land. Doc. No. 74-6 at 4. Barbadoro further

advised Plaintiffs that they must either conform their building to the twenty-foot setback or seek

relief from the Oak Bluffs Zoning Board of Appeals. Id. Finally, Barbadoro stated that, should

the matter remain unresolved by February 1, 2017, Plaintiffs’ temporary Certificate of

Occupancy would be revoked, and they would face fines under to the Town’s zoning laws. Id.

Thereafter, Plaintiffs appealed Barbadoro’s order to the Zoning Board of Appeals, which

upheld the order on February 16, 2017. Doc. No. 85 ¶ 41. Then, on March 17, 2017, Plaintiffs

appealed the Zoning Board of Appeals’ decision to Massachusetts Land Court. Id. ¶ 43. After a

three-day trial, the Land Court ruled in Plaintiffs’ favor, concluding that they had established by

a preponderance of the evidence that “the guest house they built is at least 20 feet from that

boundary, thus meeting the setback requirement under the bylaw.” Doc. No. 87-1 at 23.

However, the Land Court also found that the Plaintiffs’ and the Town’s surveys of the boundary

line were “equally plausible and equally flawed,” and that the boundary line “remains uncertain

even after hearing the testimony [of each party’s surveyor] and reviewing the deeds and plans on

which they relied.” Id. at 17, 21. In a separate decision resolving Plaintiffs’ motion for fees and

costs, the Land Court concluded that the Zoning Board of Appeals’ initial determination was not

“grossly negligent, in bad faith, or malicious.” Doc. No. 91-3 at 2. Finally, on April 4, 2018, yet

another Land Court decision (issued amidst extensive litigation between Plaintiffs and a second

set of neighbors, the Murphy Family Trust), resolved the matter of Plaintiffs’ compliance with

local parking regulations, determining that they would be in compliance “if they built an

additional parking space.” Zarba v. Town of Oak Bluffs, No. 17MISC000139 (Mass. Land Ct.

Apr. 4, 2018) (Piper, J.).

Plaintiffs now allege multiple violations of federal and state law arising out of these

events. As to their federal claims, they allege violations of the Due Process and Equal Protection

Clauses of the Fourteenth Amendment, the Takings Clause of the Fifth Amendment, and a

conspiracy to violate civil rights in violation of 42 U.S.C. § 1985(3), arguing: (1) that the Town’s

adverse zoning decisions were made because “Ms. Zarba is a women builder [sic],” Doc. No. 85

¶¶ 56, 87; (2) that Town officials arbitrarily doubled the tax value of Plaintiffs’ property, id.

¶ 52; (3) that the Town’s zoning decisions were irrational, arbitrary, and unreasonably delayed,

id. ¶¶ 60-61; (4) that members of the Town government and Town Counsel conspired with

Plaintiffs’ neighbors to deprive the Plaintiffs of their property, id. ¶ 70; and (5) that restrictions

placed on their parking, the denial of a Final Occupancy Permit, their alleged loss of rental

income from their guest home, and the Town’s decisions to “install[] a public street sign, mow[],

snow plow[] and grad[e] dirt” on Plaintiffs’ street constituted a taking of Plaintiffs’ property, id.

¶¶ 115-22. They also allege a host of state law violations: “aiding and abetting fraud,” id. ¶¶ 95-

113; violations of the Massachusetts Civil Rights Act, id. ¶¶ 131-35; violations of the

Massachusetts Declaration of Rights, id. ¶¶ 136-39; s “invasion of private property,” id. ¶¶ 140-

50; and “Negligence and Negligence Infliction of Emotional Distress,” id. ¶¶ 151-55.

II. LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, a complaint must contain sufficient factual matter, accepted as true, to “state a claim

for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The complaint must also “set forth ‘factual

allegations, either direct or inferential, respecting each material element necessary to sustain

recovery under some actionable legal theory.’” Berner v. Delahanty, 129 F.3d 20, 25 (1st Cir.

1997) (quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir. 1988)). Courts must

“take all factual allegations [in the Complaint] as true and . . . draw all reasonable inferences in

favor of the plaintiff.” Rodríguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 96 (1st Cir. 2007).

III. DISCUSSION

At the outset, the Court notes that the forty-three-page First Amended Complaint contains

no factual allegations as to Defendants Andrea Rogers, Peter Yoars, Michael Perry, or Llewellyn

Rogers. Accordingly, all claims are DISMISSED as to those defendants.

Next, the Court notes that there is no direct cause of action under the Massachusetts

Declaration of Rights, Pimentel v. Methuen, 323 F. Supp. 3d 255, 273 (D. Mass. 2018).

Accordingly, Count VII is DISMISSED.

Additionally, it is well-settled that municipalities may not be held liable for violations of

42 U.S.C. § 1983 absent allegations of an unconstitutional municipal policy, Monell v. Dep’t of

Soc. Servs., 436 U.S. 658, 665 (1978), nor may they be held liable for violations of the

Massachusetts Civil Rights Act, Kelley v. LaForce, 288 F.3d 1, 11 n.9 (1st Cir. 2002), for

intentional torts, see Mass. Gen. Laws ch. 258, § 10(c), or for claims arising out of the issuance

or denial of a permit, see Mass. Gen. Laws ch. 258, §10(e). The First Amended Complaint does

not allege the kind of “affirmative link necessary to sufficiently plead a supervisory liability

claim, and/or a policy or custom of the [Town] which led to the alleged constitutional violation.”

Williams v. Bisceglia, 115 F. Supp. 3d 184, 189 (D. Mass. 2015) (quotation marks omitted).

Accordingly, all claims are DISMISSED as to the Town of Oak Bluffs.

The Court now turns to the remaining federal and state law claims against the remaining

individual Defendants, the Town Counsel, and the Town Counsel law firm.

A. Federal Law Claims

1. Due Process

Plaintiffs allege both procedural and substantive Due Process Clause claims. As to their

procedural due process claim, the First Circuit has held that “informal meetings with town

officials coupled with judicial review in the state courts satisfie[s] the Constitution’s procedural

due process requirements.” Quinn v. Bryson, 739 F.2d 8, 11 (1st Cir. 1984). Here, Plaintiffs

appealed the permit denial and parking dispute to the Zoning Board of Appeals and later sought

redress before the Land Court. Doc. No. 85 ¶¶ 36-41. Plaintiffs provide no factual allegations as

to how the state’s post-deprivation remedial process was inadequate; thus, “no claim of a

violation of procedural due process can be brought under § 1983.” Lowe v. Scott, 959 F.2d 323,

340 (1st Cir. 1992). And, to the extent that Plaintiffs’ procedural due process claim arises out of

an alleged abuse of process, the First Circuit has held “that proof of abuse of process alone

cannot support a finding of liability under § 1983.” Santiago v. Fenton, 891 F.2d 373, 388 (1st

Cir. 1989).

As to Plaintiffs’ substantive due process claim, the First Circuit has explained that

“rejections of development projects and refusals to issue building permits do not ordinarily

implicate substantive due process.” Torromeo v. Town of Fremont, 438 F.3d 113, 118 (1st Cir.

2006). And where, as here, a justice of the state’s Land Court has determined that the Zoning

Board of Appeals did not act in bad faith, and that its decisions were premised on reasonable

recommendations from Town officials, the Complaint fails to allege the sort of “truly

outrageous, uncivilized, and intolerable” behavior that is required to state a substantive due

process claim. Pagan v. Calderon, 448 F.3d 16, 32 (1st Cir. 2006).

Accordingly, Counts I and III of the First Amended Complaint, insofar as they allege

violations of the Due Process Clause, are DISMISSED.

2. Equal Protection

Plaintiffs’ Equal Protection Clause claim fares no better. As a threshold matter, the First

Circuit has expressly cautioned against entertaining Equal Protection suits arising from local

zoning board decisions. Nestor Colon Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32, 44-45

(1st Cir. 1992); PFZ Props., Inc. v. Rodriguez, 928 F.2d 28, 31 (1st Cir. 1991). Indeed, “[i]f

disgruntled permit applicants could create constitutional claims merely by alleging that they were

treated differently from a similarly situated applicant, the correctness of virtually any state permit

denial would become subject to litigation in federal court.” Nestor Colon Medina, 964 F.2d at

44-45. The present case epitomizes the dangers that the First Circuit sought to avoid. Here,

Plaintiffs have failed to allege any facts about “similarly situated” property owners, let alone any

facts as to how such owners were treated differently than Plaintiffs. See Freeman v. Town of

Hudson, 714 F.3d 29, 38 (1st Cir. 2013) (holding that plaintiffs failed to state an Equal

Protection claim when they did no “more than point to nearby parcels in a vacuum and leave it to

the municipality to disprove conclusory allegations that the owners of those parcels are similarly

situated”) (alterations omitted). Nor do Plaintiffs’ conclusory references to Ms. Zarba’s status as

“a women builder [sic]” resuscitate their claim.2 Where, as here, Plaintiffs have provided no

factual allegations about “similarly situated” applicants, nor any nonconclusory allegations about

differential treatment on the basis of a protected characteristic, an Equal Protection claim does

not lie. See Dupont v. Dubois, 99 F.3d 1128 (1st Cir. 1996).

Accordingly, Count III of the First Amended Complaint, insofar as it alleges a violation

of the Equal Protection Clause, is DISMISSED. Similarly, because Plaintiffs have presented no

factual allegations showing that “the defendants conspired against them because of their

2 Similarly, twice alleging “racial animus” without any other related factual allegations is too

conclusory to support the claims alleged. Doc. No. 85 at p.2 & ¶ 88.

membership in a class,” Aulson v. Blanchard, 83 F.3d 1, 4 (1st Cir. 1996), Count II, alleging a

conspiracy to violate civil rights, is also DISMISSED.3

3. Takings Clause

Plaintiffs allege that the denial of a Final Occupancy Permit, certain parking enforcement

actions, and certain Town improvements (like mowing, grading, and sign posting) violated their

rights under the Takings Clause of the Fifth Amendment.

Some of Plaintiffs’ allegations—those relating to the denial of the Final Occupancy

Permit and the enforcement of parking regulations—are appropriately viewed as claims of

regulatory takings. This type of taking is confined to “regulatory actions that are functionally

equivalent to the classic taking in which [the] government directly appropriates private property

or ousts the owner from his domain[,]” with the inquiry focusing on “the severity of the burden

that [the] government imposes upon private property rights.” Lingle v. Chevron U.S.A. Inc., 544

U.S. 528, 539 (2005). “[A] regulatory taking occurs where ‘government regulation of private

property [is] so onerous that its effect is tantamount to a direct appropriation or ouster.’” Rancho

de Calistoga v. City of Calistoga, 800 F.3d 1083, 1088-89 (9th Cir. 2015) (quoting Lingle, 544

U.S. at 537). “[T]he test for how far [i]s ‘too far’ require[s] an ‘ad hoc’ factual inquiry. That

inquiry require[s] considering factors such as the economic impact of the regulation, its

interference with reasonable investment-backed expectations, and the character of the

government action.” Horne v. Dep’t of Agric., 576 U.S. 350, 360 (2015) (quoting Penn Cent.

Transp. Co. v. New York, 438 U.S. 104, 124 (1978)).

3 Insofar as Count II is premised on allegations related to the Town’s property tax assessment,

such challenges must be pursued through state law procedures. See Ludwin v. Cambridge, 592

F.2d 606, 609 (1st Cir. 1979) (finding “the absence of any allegation of a prior state adjudication

[as to a tax assessment] to be a fatal deficiency in plaintiff’s case”).

Under this framework, Plaintiffs’ regulatory takings claims are subject to dismissal.

While the First Amended Complaint includes conclusory allegations about the deprivation of

“economically viable” uses of Plaintiffs’ property, Doc. No. 85 ¶ 115, the Supreme Court has

held that mere “diminution in the value of property, however serious, is insufficient to

demonstrate a taking.” Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr. for

S. Cal., 508 U.S. 602, 645 (1993); see also Penn Cent., 438 U.S. at 131 (noting that courts

“uniformly reject the proposition that diminution in property value, standing alone, can establish

a ‘taking’”). In addition, Plaintiffs include no factual allegations as to their reasonable

investment-backed expectations. Dyson v. City of Calumet City, 306 F. Supp. 3d 1028, 1046

(N.D. Ill. 2018) (dismissing a partial regulatory takings claim were the plaintiff did “not plead

enough information to evaluate” this factor). Finally, the government action at issue here—

consideration of permit applications not found to be malicious by a state court, and enforcement

of parking regulations—is typically given great leeway by courts. Sutton v. Chanceford Twp.,

186 F. Supp. 3d 342, 349 (M.D. Pa. 2016) (noting that “[s]tate and local laws affecting land use,

including zoning laws, are extended broad latitude under current standards”).

As to the physical improvements that Plaintiffs challenge—like snow plowing, mowing,

installing a public street sign, and changing the level of a grade—these transient invasions do not

give rise to a Fifth Amendment claim. O’Grady v. City of Montpelier, 573 F.2d 747, 750 (2d

Cir. 1978) (holding that “it is fairly well established that changing the level of a grade of a road

does not constitute a taking”); Boise Cascade Corp. v. United States, 296 F.3d 1339, 1357 (Fed.

Cir. 2002) (holding that “extremely limited and transient” invasions of property “preclude a

finding that a taking occurred as a matter of law”).

Accordingly, Count V of the First Amended Complaint is DISMISSED.

B. State Law Claims

Plaintiffs’ state law claims also fail. Count IV, which alleges “aiding and abetting fraud,”

is based solely on conclusory allegations regarding the Town Counsel’s advice to members of

the Town government. See Doc. No. 85 ¶¶ 99-107. The First Amended Complaint does not

include any plausible factual allegations of an underlying tort, which is necessary to state such a

claim under Massachusetts law. ZVI Constr. Co. v. Levy, No. SUCV201300342BLS2, 2013

WL 5531803, at *6 (Mass. Super. Ct. June 27, 2013), aff’d, 60 N.E.3d 368 (Mass. App. Ct.

2016). Count VI, which alleges violations of the Massachusetts Civil Rights Act, must be

dismissed because the First Amended Complaint contains no nonconclusory allegations of

“threats, intimidation, and coercion,” as is required to state such a claim. Horne v. City of Bos.,

509 F. Supp. 2d 97, 115 (D. Mass. 2007).

Count VIII, alleging “invasion of private property,” similarly fails. Plaintiffs do not

allege that any defendant physically trespassed onto Plaintiffs’ property. Rather, their allegations

reference the Town’s reliance on a land survey to inform its permitting and enforcement

decisions, the placement of a street sign near Plaintiffs’ home, as well as mowing, snow plowing,

and grading near their property. Doc. No. 85 ¶¶ 141-46. Such allegations do not state a

cognizable claim under Massachusetts law. See Walker v. Jackson, 56 F. Supp. 3d 89, 95 (D.

Mass. 2014) (stating that a civil trespass claim under Massachusetts law must include allegations

of actual possession of property that is intentional and illegal).

Finally, Count IX, alleging negligence and negligent infliction of emotional distress

under the Massachusetts Tort Claims Act, must be dismissed. The individually named Town

employee defendants are categorically immune from such claims, Mass. Gen. L. ch. 258 § 2, and

the Town Counsel enjoy absolute immunity from claims arising out of their representation of the

Town, see Tomaselli v. Beaulieu, No. 08-cv-10666-PBS, 2010 WL 1460259, at *6 (D. Mass.

Apr. 1, 2010) (“Since all of the conduct by [the Town Counsel] which the plaintiffs challenge is

closely related to the judicial process, or the lawyer’s role as an advocate, the attorneys are

entitled to absolute immunity.”) (quotation marks and alterations omitted).

Accordingly, Counts IV, VI, VIII, and IX of the First Amended Complaint are

DISMISSED.

IV. CONCLUSION

For the foregoing reasons, Defendants’ motions to dismiss, Doc. Nos. 86, 88, 90, are

ALLOWED.

SO ORDERED.

/s/ Leo T. Sorokin

United States District Judge