Symes Development & Permitting LLC v. Town of Concord

United States District Court

District of Massachusetts

)

Symes Development & Permitting )

LLC, )

)

Plaintiff, )

) Civil Action No.

v. ) 21-10556-NMG

)

Town of Concord, )

et al., )

)

Defendant. )

MEMORANDUM & ORDER

GORTON, J.

This action arises from the claim of Symes Development &

Permitting LLC (“Symes” or “plaintiff”) that a land use decision

by the Town of Concord Planning Board (“the Planning Board”)

constitutes an unconstitutional taking in violation of the Fifth

and Fourteenth Amendments to the United States Constitution. In

its decision, the Planning Board required Symes to reserve five

building lots within a proposed subdivision for three years for

possible future use by the Town of Concord (“the Town”)

(collectively, with the Planning Board, “defendants”). Pending

before the Court is defendants’ motion to dismiss for failure to

state a claim.

I. Background

Symes, which holds an interest in several contiguous

parcels of land in the Town, applied to the Planning Board for

final approval of an 18-lot subdivision plan in June, 2020,

after the Board approved Symes’ preliminary plan with various

conditions. After a public hearing, the Board published its

final decision in December, 2020.

Pursuant to the Massachusetts Subdivision Control Law,

M.G.L. c. 41, §§ 81K-81GG, the Board’s final decision

conditioned approval on Symes reserving five of the building

lots at issue for three years. The Board selected two of the

five reserved lots for possible future use as a public park and

the remaining three for possible future use as sites for

affordable housing based upon Concord’s Inclusionary Housing

Bylaws. Reserving the lots means that Symes cannot use, disturb

or improve them in any manner during the relevant period without

Board approval. During that reservation period, moreover, the

Town may elect to purchase the reserved lots for just

compensation. According to the complaint, Board regulations do

not require, nor did the Board make, findings that there is any

nexus or relationship between Symes’ proposed subdivision and

the conditions enumerated.

Symes alleges that the Planning Board’s decision imposes an

unconstitutional condition for which the Town has failed to

provide adequate compensation. Plaintiff therefore seeks

renumeration pursuant to 42 U.S.C. § 1983. Defendants filed a

motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) in May,

2021, which Symes timely opposed.

II. Motion to Dismiss

As a preliminary matter, the Court rejects defendants’

argument that abstention is appropriate here due to the pending

state court proceedings. In addition to challenging the

Planning Board’s decision in this Court, Symes has appealed the

decision to the Massachusetts Land Court. In that case, Symes

seeks review of the development conditions adopted by the

Planning Board, alleging that its application of the

Inclusionary Housing Bylaws impermissibly conflicts with the

Subdivision Control Law. Defendants contend that the Court

should abstain from ruling on Symes’ § 1983 claim because the

state court litigation could resolve that issue. See R.R. Comm'n

of Tex. v. Pullman, 312 U.S. 496 (1941).

That assertion is misguided. Abstention may be appropriate

to “avoid federal-court error in deciding state-law questions

antecedent to federal constitutional issues.” Casiano-Montanez

v. State Ins. Fund Corp., 707 F.3d 124, 128 (1st Cir. 2013)

(quoting Arizonans for Official English v. Arizona, 520 U.S. 43,

76 (1997)). Here, however, the state and federal questions at

issue in the contemporaneous proceedings are independent of each

other and any resolution in the state action will not affect

this action. If this Court determines that an unconstitutional

taking has occurred, Symes

has a Fifth Amendment entitlement to compensation

[that accrued] as soon as the government takes [the]

property without paying for it

regardless of the Land Court’s ruling with respect to the

Subdivision Control Law. Knick v. Twp. of Scott, Pennsylvania,

139 S. Ct. 2162, 2170 (2019); see also id. at 2171 (“Where the

government's activities have already worked a taking of all use

of property, no subsequent action by the government can relieve

it of the duty to provide compensation.”) (quoting First Eng.

Evangelical Lutheran Church of Glendale v. Los Angeles Cty.,

Cal., 482 U.S. 304, 305 (1987)). Accordingly, there is no

likelihood that the “action pending in state court [will]

resolve the state-law questions underlying the federal claim,”

Harris Cnty. Comm'rs Court v. Moore, 420 U.S. 77, 83 (1975), and

abstention is unwarranted.

a. Legal Standard

To survive a motion under Fed. R. Civ. P. 12(b)(6), the

subject pleading must contain sufficient factual matter to state

a claim for relief that is actionable as a matter of law and

“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)). A claim is facially plausible if, after accepting as

true all non-conclusory factual allegations, the court can draw

the reasonable inference that the defendant is liable for the

misconduct alleged. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d

1, 12 (1st Cir. 2011).

When rendering that determination, a court may not look

beyond the facts alleged in the complaint, documents

incorporated by reference therein and facts susceptible to

judicial notice. Haley v. City of Boston, 657 F.3d 39, 46 (1st

Cir. 2011). A court also may not disregard properly pled

factual allegations even if actual proof of those facts is

improbable. Ocasio-Hernandez, 640 F.3d at 12. Rather, the

inquiry required focuses on the reasonableness of the inference

of liability that the plaintiff is asking the court to draw. Id.

at 13. The assessment is holistic: “the complaint should be

read as a whole, not parsed piece by piece to determine whether

each allegation, in isolation, is plausible”. Hernandez-Cuevas

v. Taylor, 723 F.3d 91, 103 (1st Cir. 2013), quoting Ocasio-

Hernandez, 640 F.3d at 14.

b. Application

In its complaint, Symes submits that defendants have

imposed an unconstitutional condition on the proposed

development by conditioning “a land-use permit on the owner’s

relinquishment of a portion of his property.” Koontz v. St.

Johns River Water Mgmt. Dist., 570 U.S. 595, 599 (2013). The

relinquishment, as alleged, is the result of the three-year

reservation period that the Planning Board has adopted, which

Symes asserts is a taking within the meaning of the Fifth

Amendment.

The unconstitutional conditions doctrine forbids the

government from requiring

a person to give up a constitutional right — here the

right to receive just compensation when property is

taken for a public use — in exchange for a

discretionary benefit conferred by the government

where the benefit sought has little or no relationship

to the property.

Dolan v. City of Tigard, 512 U.S. 374, 385 (1994); see also

Nollan v. California Coastal Comm'n, 483 U.S. 825, 837 (1987).

Caselaw recognizes that land-use permit applicants may be

vulnerable to such “coercion...because the government often has

broad discretion to deny a permit that is worth far more than

property it would like to take.” Koontz, 570 U.S. at 605. Under

such circumstances, applicants may be unduly pressured to

exchange constitutional rights for sought-after permit approval.

Recognizing the imbalance of power between permit

applicants and the government, as well as the resulting risks

posed to applicants’ constitutional rights, the Supreme Court

determined in Nollan, 483 U.S. at 837, and Dolan, 512 U.S. at

391, that while the government may condition land-use permit

approvals to mitigate the impacts of proposed development

it may not leverage its legitimate interest in

mitigation to pursue governmental ends that lack an

essential nexus and rough proportionality to those

impacts.

Koontz, 570 U.S. at 606. Precedent thus requires that the

government provide “some sort of individualized determination”

to meet that requirement. Dolan, 512 U.S. at 391. That

assessment is, purportedly, absent here. Symes alleges that

Board regulations do not require, nor did the Board make,

findings that there is any nexus or relationship between Symes’

proposed subdivision and the reservation period imposed. On

that basis, the complaint adequately states an unconstitutional

condition.

However,

[a] predicate for any unconstitutional conditions

claim is that the government could not have

constitutionally ordered the person asserting the

claim to do what it attempted to pressure that person

into doing.

Koontz, 570 U.S. at 612. Plaintiffs assert that the requirement

is satisfied because the subject reservation period establishes

an unconstitutional taking under the Fifth Amendment.

Defendants respond that no taking has occurred because the

condition, i.e. the reservation period, is only temporary.

Applicable to the states by virtue of the Fourteenth

Amendment, the Takings Clause of the Fifth Amendment provides:

“[N]or shall private property be taken for public use, without

just compensation.” U.S. Const. amend. V. That protection

was designed to bar Government from forcing some

people alone to bear public burdens which, in all

fairness and justice, should be borne by the public as

a whole.

Armstrong v. United States, 364 U.S. 40, 49 (1960). The risk of

such an imposition may be particularly acute where, as here,

that burden is felt by a single entity, rather than a group. See

e.g., Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Plan.

Agency, 535 U.S. 302, 322 (2002) (“With a temporary ban on

development there is a lesser risk that individual landowners

will be singled out to bear a special burden that should be

shared by the public as a whole.” (citing Nollan, 483 U.S. at

835)). Traditionally, unconstitutional takings are manifest

either through a “physical taking” or a “total regulatory

taking”. Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005)

(citations and quotations omitted). Since the decisions in

Nollan, 483 U.S. at 835, and Dolan, 512 U.S. at 384, courts have

recognized a third kind of unconstitutional takings based upon

land-use exactions.

The alleged takings at issue in those cases were, however,

more obvious than the government’s practice here. Both cases

involved government demands that a landowner dedicate a

permanent property easement as a condition of obtaining a

development permit. Those easements clearly constituted takings

based upon the understanding that

the right to exclude others is one of the most

essential sticks in the bundle of rights that are

commonly characterized as property

and the easements would permanently deny the property owners

from exercising that right over some portion of their land.

Nollan, 483 U.S. at 831 (quoting Loretto v. Teleprompter

Manhattan CATV Corp., 458 U.S. 419, 433 (1982)).

In contrast, here, the condition of development is not an

easement, but rather a reservation period. The central question

is whether the imposition of that condition constitutes a

taking. While seemingly straight forward, that inquiry exposes

a certain circularity of the cited caselaw: a plaintiff may

prove a taking by meeting the requirements of Nollan and Dolan

but those requirements depend upon the clarity of subject

takings. Neither party nor the Court has located precedent in

which the issue in this case has been directly addressed.

Nevertheless, Symes has asserted facts sufficient to allege

a taking. Courts, including the United States Supreme Court,

have repeatedly “rejected the argument that government action

must be permanent to qualify as a taking.” Arkansas Game & Fish

Comm’n v. United States, 568 U.S. 23, 33, (2012); see, e.g.,

Tahoe-Sierra, 535 U.S. at 322 (2002) (“[C]ompensation is

mandated when a leasehold is taken and the government occupies

the property for its own purposes, even though that use is

temporary.”).

Temporary takings are not different in kind from

permanent takings — a temporary taking simply occurs

when what would otherwise be a permanent taking is

temporally cut short.

Am. Pelagic Fishing Co., L.P. v. United States, 379 F.3d 1363,

n.11 (Fed. Cir. 2004), cert. denied 545 U.S. 1139 (2005).

Defendants incorrectly assert that the temporality of the

reservation period is dispositive. See First Eng., 482 U.S. at

319-319.

Moreover, the alleged taking to which Symes objects falls

well within the parameters drawn by the Supreme Court in its

most recent application of the unconstitutional conditions

doctrine. In Koontz, 570 U.S. at 605, the Court found monetary

exactions as a condition of a land-use permit subject to the

requirements of Nollan and Dolan, recognizing that the exactions

transferred

an interest in property from the landowner to the

government [that amounted to a] per se taking similar

to the taking of an easement or a lien.

See also Cedar Point Nursery v. Hassid, 141 S. Ct. 2063,

2075 (2021) (“[W]hen the government physically takes an

interest in property, it must pay for the right to do

so.”). Symes has sufficiently pled that the reservation

period imposed here similarly conveys a property interest

and, consequently, alleges a taking.

ORDER

For the foregoing reasons, defendants’ motion to dismiss

(Docket No. 9) is DENIED.

So ordered.

/s/ Nathaniel M. Gorton

Nathaniel M. Gorton

United States District Judge

Dated January 10, 2022