Petition for Writ of Certiorari — Zora Enterprises, Inc. v. Town of Marion

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DOCKET NO. OEEICE OG THE Cheps

In The

SUPREME COURT OF THE UNITED STATES

ZORA ENTERPRISES, INC.; JOSEPH P. ZORA; and

GLENNA M. ZORA

Petitioner(s),

Vv.

TOWN OF MARION and JOHN ROCKWELL.

Respondents,

€

On Petition For A Writ Of Certiorari

To The Supreme Judicial Court For

The Commonwealth Of Massachusetts

PETITION FOR WRIT OF CERTIORARI

Donald J. Fleming

Fleming & Ishihara. P.C.

P.O. BOX 396

86 Church St.

Mattapoisett, MA. 02739

Phone (508) 758-698 1

Counsel of Record for

Petitioners Zora Enterprises, Inc.;

Joseph P. Zora and Glenna M. Zora

QUESTION PRESENTED FOR REVIEW

1. Are the municipal defendants liable for a taking by delay

when their statements and conduct show that their actions in

the Massachusetts Department of Environmental Protection

proceedings were taken in bad faith?

PARTIES

All parties are named in the caption.

TABLE OF CONTENTS

Page

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CONSTITUTION AND STATUES ..00........cccccccccescscescecsecees Vv

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ET, REP NUE ORES ccccssscczesszsoccsscuncnssinssennnesasesens 2

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FEDERAL QUESTION RAISED .00.........ccccccccceseecesceees 7

8 SERS EP nee Re eae 8

AUTHORITIES CITED

CASES: Page(s)

Ackerley Communications of Massachusetts, Inc. v.

City of Somerville, 692 F Supp. | (D.Mass. 1988)........ 9

Cayon v. Chicopee, 360 Mass 606 (1971) ..........ceeceeeceeseeeees 9

Daddario v. Cape Cod Commission, 425 Mass. 411

EROTIC D: wciasiicisiecntiaininiiaeicieiestcnaiachcdlaediablinet a aa cal 9

FIC Homes of Blackstone, Inc. v. Conservation Com-

mission of Blackstone. 41 Mass. App. 681 (1996).......... 9

First English Evangelical Lut Church of Glendal

v. County of Los Angeles, California. 107 S. Ct.

SEE IETD piiitacsdncdananienibadanins date 9

Fram v. City of Boston, 363 Mass. 68, 72(1973) .............066+ 9

Front Royal and Warren County Industrial Park Corp-

oration v. Town of Front Royal, 922 F. Supp. 1131

CUE, WH: PR pevinasostssinescienciceale ddcieeaenaeenc ae: 9

Gilbert v. Cambridge, 932 F.2d. 51 (Ist Cir. 1991)... 9

Leonard v. Brimfield, 423 Mass. 152 (1996) ..............:c00008 9

Lopes v. Peabody, 417 Mass. 299 (1994) .......ccccsssesesseseeees s

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.

Re: Rete 0 WD i sstniiactosssscniundeiithinebinanisaabidiad tame aiiabaaiaiaicass 8

Steinbergh v. Cambridge, 413 Mass. 736 (1992) ......c.sess0 8

Wilson v. Commonwealth, 413 Mass. 352 (1992) .......... 8,10

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CONSTITUTION AND STATUTES

Fifth Amendment U.S. Constitution ......................6........ 2,7,9

nT cll > >. : ROR MONOID Me SER ET SEMA RMN GET PN heNe Moe 2

Sie Ms FOND Wikitiahanihii hei aN Foo ee 9)

CITATIONS OF OFFICIAL

AND UNOFFICIAL REPORTS

Judgment and Memorandum of Decision in the

Plymouth Superior Court (docket no. 90-2247B)

Appendix A

Decision of the Massachusetts Appeals Court

(docket no. 97-P-324)

Appendix B

Decision denying Further Appellate Review of the

Massachusetts Supreme Judicial Court (docket no. FAR 10560)

Appendix C

ee a i A el AP tte te

—

JURISDICTION

The Petitioners seek review of a decision of the

Massachusetts Supreme Judicial Court dated May 28,1999

which denied the Petitioner’s Petition for Further Appellate

Review.

Jurisdiction is conferred by 28 U.S.C. 1257.

The following provision of the Fifth Amendment to the U.S.

Constitution is involved in this case:

“...Nor shall private property he taken for public use without

just compensation.”

Statement of the Case

Statement of Facts

The Zora property is located in the Town of Marion in a

zoning district known as “Residence B,” which permits a single

family residence on a lot having a minimum area of 30,000

Square feet and a minimum frontage of 120 feet. Part of the

land is less than 14.5 feet in elevation above sea level and as

such is in a flood zone under the National Flood Insurance

Program administered by the Federal Emergency Management

Agency. The property is not served by the town sewer system

and on-site septic systems are necessary for the development

of house lots. The land does have town water for each lot. As to

the property in controversy, only Lot 21 is owned by the

individual Plaintiffs, Joseph P. Zora and Glenna M. Zora.

In 1985 Zora Enterprises owned approximately 58 acres of

the land.

Since 1985 Zora Enterprises has subdivided its property on

5 occasions and thereby created 45 house lots. All the plans

creating these lots were approved by the Town of Marion

Planning Board.

A. On May 12. 1986 Zora Enterprises recorded a

subdivision plan dated October 21, 1985 for a 15 lot subdivision

located at the lower end of Old Knoll Road. This plan shall be

referred to as the “Extension of Old Knoll Road.” To date none

of these lots have been sold.

B. On October 7,1987 Zora Enterprises recorded a

subdivision plan dated July 16,1987 for a 4 lot subdivision which

is located at the upper end of Olde Meadow Road and which in

conjunction with the subdivision plan referenced below in

subparagraph D. shall be referred to as the “Extension of Olde

Meadow Road”. To date 3 of these lots have been sold, but two

of the Buyers have sued Zora Enterprises and Joseph P. Zora,

Sr. because Zora Enterprises has been blocked by the Town of

Marion and the Commonwealth of Massachusetts from

constructing the road for the two lots owned by these Buyers.

The third buyer was also unable to build and Zora Enterprises

has traded another lot for the original lot sold to this third buyer.

C. On May 16. 1989 Zora Enterprises recorded a

subdivision plan dated April 20. 1989 for a two lot division of

land consisting of Lots 91 and 92 on Upland Way. One of these

lots was sold to an adjacent landowner. The other lot was later

exchanged with the third buyer in the Extension of Olde

Meadow Road subdivision mentioned above.

D. On August 2,1989 Zora Enterprises recorded a

subdivision plan dated November 30, 1988 for a 18 lot

subdivision which is located at the upper end of Olde Meadow

Road and which in conjunction with the subdivision plan

referenced above in subparagraph B. shall he referred to as the

“Extension of Olde Meadow Road”. To date one of these lots

has been sold.

E. OnNovember 24, 1992 Zora Enterprises recorded a plan

dated November 6,1992 which created 6 house lots. This plan

shall be referred to as “Upland Way”. This subdivision was not

the subject of this lawsuit, but the subdivision is mentioned

here to give an overview of all of the Zora projects. Four of

these lots have been sold to date.

The subject matter of this case are the two subdivisions

known as Extension of Olde Meadow Road and Extension of

Old Knoll Road, a single lot known at lot 3 on Old Knoll Road

and a lot known as Lot 21 on Old Knoll Road. The procedural

history of these lots from 1987 to August 6, 1996 is set forth in

detail in the Affidavit of Joseph P. Zora, Sr. which was filed in

the state trial court. The conduct and statements on which Zora

relies to show bad faith on the part of the defendants can be

summarized as set forth below.

GENERAL

1. In December 1985 Joyce West, then a member of the

Marion Conservation Commission made statements to the effect

that Zora’s land would not be approved for any development

by the Town of Marion Conservation Commission.

2. The Defendant Rockwell (at a time when he was a

member of the Marion Conservation Commission) made false

statements to a back hoe operator engaged by Zora that Zora

had falsified percolation test data.

> In November 1988, the Plaintiff Joseph Zora, Sr. and

his son approached Edwin H.B. Pratt, a Town of Marion

selectmen and member of the Town of Marion Board of Health,

to ask for a copy of proposed changes to BOH regulations, and

Mr. Pratt stated “you Zora’s are a bunch of assholes...you just

want to run against me for Selectman.”

RYDER

l. At a hearing for the Ryders, who were prospective

purchasers of one of the Zora lots, Janice Mendes made a

statement to the effect that Marion Conservation Commission

intended to stop Zora’s from building on their property. This

statement was made in the presence of other Marion

Conservation Commission members, including John Rockwell,

and none of them objected to or denied the statement.

y 3 In March 1985, the Defendant Rockwell, then a member

of the Marion Conservation Commission dug holes on the Ryder

lot supposedly to determine the level of maximum high ground-

water, without any permission or notice to Zora Enterprises.

Rockwell admitted that he did not have qualifications at that

time to determine the water table.

LOT 21A

1. On or about September 22, 1986, the defendant

Rockwell telephoned the DEP Southeast Region office and told

them that Zora’s were “working in a stream”. No such work

was being done. As a result of this complaint DEP issued an

enforcement order which was not dismissed until February 23.

1994.

LOT 3, OLD KNOLL RD.

- The defendant Rockwell refused to disqualify himself

from the proceedings even though his statements to the back

hoe operator showed a lack of impartiality.

y The Marion Conservation Commission raised issues

(groundwater level relative to septic system and the wetlands

replication plan) in their Request for Adjudicatory hearing for

the first time. Also, the position taken by the Marion

Conservation Commission contradicted a May 8, 1986 opinion

of Town Counsel, that except in very narrow circumstances the

Conservation Commission did not have authority to regulate

septic systems.

3. In a memorandum dated September 21, 1988 from the

Marion Conservation Commission to the Marion Board of

Health, the Conservation Commission stated that because the

Conservation Commission had filed for adjudication no work

could be done on the lot until the matter is resolved - “often

several years.”

EXTENSION OF OLD KNOLL ROAD

1. Once again the defendant Rockwell refused to disqualify

himself from hearing this matter even though he was not

impartial.

ye On December 16,1987 at a hearing on the Notice of

Intent before the Marion Conservation Commission, the def-

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endant John Rockwell, then the chairman of the Conservation

Commission stated that “there is no question the road is going

in, it is just a question of where, but I do not want to issue

orders of condition to allow the project without unlimited access

[for the Conservation Commission to the project site]. The

Defendant Rockwell also stated “we [Conservation

Commission] could ask DEQE [Department of Environmental

Quality Engineering now Department of Environmental

Protection or DEP] to remand the project back to the Marion

Conservation Commission and in 5,10 or 15 years maybe the

project would go forward.

_ Also at the December 16, 1987 hearing. Kay Reis, a

member of the Marion Conservation Commission stated that

“if we [Conservation Commission] don’t get all that we request

we should use the administrative process to delay any project”.

4. Nancy Menzel, another member of the Marion

Conservation Commission, stated at the December 16. 1987

hearing that it was pretty clear the road was going in, but that it

would take several on site inspections or several months, and if

the Conservation Commission was not allowed to do these on

sites the Conservation Commission would not close the hearing.

5. On October 1, 1992 a hearing was held before an

Administrative Law Judge of DEP on the Request for

Adjudicatory Hearing of the Marion Conservation Commission.

During a break in these proceedings there was a conversation

between Elizabeth Kimball (DEP. Assistant General Counsel),

Lenore White (DEP engineer). John Rockwell and Attorney

Thomas Crotty (counsel for the Town of Marion). In that

conversation Kimball and White both said to Rockwell “you’ve

held these people up for 7 years, they have a viable project,

what do you want from them?” Rockwell did not respond to

this question.

EXTENSION OF OLDE MEADOW ROAD

# The Defendant Rockwell stated that if Zora Enterprises

did not supply a plan (showing a wetlands line severely at odds

with the delineation supported by the experts engaged by Zora)

the project would he denied. Rockwell further stated that even

if the plaintiffs provided this information the project would be

denied.

Zora’s contend that the administrative delays in this case

have not been normal. The total length of administrative

proceedings has been as follows:

Lot 3, Old Knoll Road: Over seven years:

Lot 21A, Old Knoll Road: Seven and 1/2 years;

Extension of Old Knoll Road: Seven and 1/2 years;

Extension of Olde Meadow Road: Over seven years. In the

opinion of Joseph P. Zora. Sr., if the projects had been developed

with only normal administrative delay’s, the property would

have had a fair market value of $3,000,000.00.

Federal Question Raised

The Petitioners first raised the issue of a taking in

violation of the Fifth Amendment to the U.S. Constitution in

their Complaint filed within the Plymouth Superior Court, the

state trial court. (docket no. 90-2247B) on October 31, 1990.

The complaint was subsequently amended on or about

November 7,1991, but still contained the Fifth Amendment

taking claim. The Defendant-Respondents moved for summary

judgment. The state trial court allowed the Motion for Summary

Judgment as to all claims, including the Fifth Amendment claim.

The grounds for the trial court’s decision were that the Town

did not cause the DEP delay, that Zora’s property was not

permanently destroyed making exhaustion of administrative

remedies ineffectual, that Zora filed to exhaust its administrative

remedies, and the Town is not responsible for a taking of Zora’s

property. See Memorandum of Decision and Order on

Defendants’ Motion for Summary Judgment dated November

26,1996. A-1. The Petitioners appealed to the Massachusetts

Appeals Court from the judgment, and one of the issues on

appeal was whether the delays which petitioner’s attribute to

the defendants caused a taking in violation of the Fifth

Amendment. This issue was raised in the Petitioner's Brief to

the Appeals Court. In a decision dated March 30, 1999, the

Appeals Court affirmed the trial court decision “primarily for

the reason that the plaintiffs failed to show the town was

responsible for the delays of DEP” and “For essentially the

reasons set forth in the judge’s comprehensive memorandum

of decision and order on the defendants’ motion for summary

judgment dated November 26,1996.” See Appeats Court

decision (docket no. 97-P-324). A. - 35. The Petitioners then

filed a Petition for Further Appellate Review: with the

Massachusetts Supreme Judicial Court, which is the highest

court of Massachusetts. Again, the Petitioners raised the Fifth

Amendment taking issue. This Petition was denied by the

Supreme Judicial Court (docket no. FAR 10560). A.-39

Argument

L The Massachusetts courts have not given true

< ; ki Lai

It has been 75 years since Justice Holmes’ formulation

in the case of Pennsylvania Coal Co, vs. Mahon. 260 U.S. 393,

43 S. Ct. 158 (1922) of the concept that in certain cases

governmental regulation could go too far and cause a taking

for which just compensation is mandated under the Fifth

Amendment to the U.S. Constitution. During those 75 years,

the Massachusetts courts have recognized a taking claim on

only two occasions. See Wilson vs. Commonwealth. 413 Mass.

352 (1992) and Lopes vs. Peabody. 417 Mass. 299 (1994). Even

in those two cases the court ultimately did not find that

compensation was due the plaintiffs for a taking of their

properly. See Wilson vs. Commonwealth. 41 Mass. App.

1101(1996). In all other instances takings claims under the Fifth

Amendment have not been recognized. See e.g. Steinhergh vs.

Cambridge, 413 Mass. hive eivSeney FIC Homes of Blackstone,

S. ackstone. 41 Mass. App.

681 (1996): : laniak ies SAO 423 Mass. 152 (1996);

Daddario vs, Cape Cod Commission, 425 Mass. 411(1997).

There is no effective state law remedy available to plaintiffs

for a taking without just compensation

in violation of the Fifth Amendment to the U.S. Constitution,

because there is no true recognition of regulatory takings claims

under the Fifth Amendment by the Massachusetts courts.

ll wn and wella lev

i aus subs ssachusetts

[ ' Envi IP .

Before proceeding on a taking claim directly under the

Fifth Amendment of the U.S. Constitution the plaintiff is

required to seek compensation under state law. See Gilbert

vs. Cambridge. 932 F.2d. 51(1St Cir. 1991); Front Royal and

Warren Count Industrial Park Corporation vs. Town of Front

Royal, 922 F. Supp. 1131 (W.D. VA. 1996). This rule applies

unless the remedy available under state law is so illusory as to

call for a departure from the usual rule. Ackerley

Communications of Massachusetts, Inc. vs. City of Somerville.

692 F. Supp. | (D.Mass. 1988). The Plaintiff has brought a claim

under G.L. c. 79:10. While this statute provides the procedure

for recovering damages, the statute does not provide the right

to recover for a taking. The right to recover for a taking must

be established under some other statute or constitutional

definitions of a taking. Cayon vs.Chicopee. 360 Mass. 606.

608 (1971); Fram vs. City of Boston, 363 Mass. 68, 72(1973).

Zora Enterprises contends that the Fifth Amendment to

the U.S. Constitution is a constitutional provision under which

a taking claim can be established for purposes of invoking the

procedures of G.L. c. 79:10.

The U.S. Supreme Court in the case of First English

Evangelical Lutheran Church of Glendale vs. County of Los

;

NR RDes Atae A: bee cles wrk ot

Angeles, California. 107 S. Ct. 2378 (1987) recognized that

compensation must he paid when the government has taken

property by a land-use regulation even in cases in which the

taking is temporary. The regulation in the Lutheran case was

ultimately found to be invalid, and the time period in question

was between the date of the imposition of the regulation to the

date that the regulation was declared invalid.' The court stated

that:

“We limit our holding to the facts presented, and

of course do not deal with the quite different

questions that would arise in the case of normal

delays in obtaining building permits, changes in

zoning ordinances, variances, and the like which

are not before us.”

This statement suggests that in cases of administrative

delays which are not normal, a court could find that a taking

had occurred. The Supreme Judicial court held in the case of

Wilson vs.Commonwealth. 413 Mass. 352 (1992), that

unreasonable agency delay itself could cause a taking. Though

the facts of Wilson were that the houses in question were

physically destroyed the case does not explicitly state that taking

by delay is actionable only in the same circumstances.

The Town and Rockwell did not contest this legal theory

in their Motion for Summary Judgment and supporting

materials. The Town and Rockwell also did not contest Zora’s

'The Lutheran case was decided after the cases U.S. Supreme Court cases

of Willi ; ina ,

Johnson City. 473 U.S. 172 (1985); United States vs. Riverside Bayview

Homes. 474 U.S. 121 (1985); and McDonald, Sommer & Frates vs. Yolo

County, 477 U.S. 340 (1986) which are generally cited in support of the

proposition that a final decision is an essential element of plaintiffs

regulatory taking claim.

contention that the delays were unreasonable. Instead, the Town

and Rockwell claimed that because the Orders of Conditions

of the Town of Marion Conservation Commission were

“replaced” with subsequent Massachusetts Department of

Environmental Protection (“DEP”) Superseding Orders of

Condition that the Town and Rockwell are not responsible for

any delay that occurred after the DEP orders issued. This

argument is without merit because the Town and Rockwell were

well aware of the length of time which DEP appeals took.

Statements made by members of the Marion Conservation

Commission show a scheme to intentionally use the known

delays in the DEP proceedings to prevent the Plaintiffs from

using their land. By taking appeals in the Lot 3 and Extension

of Olde Meadow Road cases the Town and Rockwell put the

lengthy appeals processes in motion. By making a false

complaint to DEP about “work in a stream” on Lot 21A, the

Town and Rockwell caused a DEP Enforcement Order to issue.

The Defendants also initially and in bad faith took the position

that Zora’s should submit a plan at Zora’s expense showing a

highly contested (and ultimately erroneous) wetlands line, which

forced Zora to take an appeal in the Extension of Olde Meadow

Road case.

re et Pera

;

CONCLUSION

For the reasons set forth above the Petition for Writ of

Certiorari should be granted.

RESPECTFULLY SUBMITTED

PETITIONERS

ZORA ENTERPRISES, INC.

JOSEPH P. ZORA; and GLENNA M. ZORA

By their Attorney

Donald J. Fleming BBO#171460

Counsel of Record Fleming & Ishihara, PC.

P.O. Box 396

86 Church St.

Mattapoisett, MA. 02739

Phone (508) 758-698]

APPENDIX A

COMMONWEALTH OF MASSACHUSETTS

SUPERIOR COURT DEPARTMENT

OF THE TRIAL COURT CIVIL ACTION

PLYMOUTH, ss NO:90-2247B

ZORA ENTERPRISES, INC., ET ALS,

Plaintiff(s)

TOWN OF MARION, ET AL.

)

V. )

)

Defendants )

)

JUDGMENT - (SUMMARY)

(PURSUANT TO MASS R. CIV. P. 56)

This action came on before the court, O’NEILL, J. presiding,

upon a motion of the defendants Town Of Marion and John

Rockwell for summary judgment and the court after hearing issued

a Memorandum of Decision and Order dated November twenty-

sixth, nineteen hundred and ninety six on said defendants motion,

it is therefore ORDERED and ADJUDGED as follows:

that for the reasons set forth in the Memorandum of Decision

and Order that Summary Judgment enter in favor of the

defendants the Town of Marion and John Rockwell.

Dated at Plymouth, Massachusetts, December 17, 1996

/s/ Francis R. Powers

FRANCIS R. POWERS

Clerk of Courts

eT ee

War Cette Wate al, VIN tae

hee la Wilh Si BRS ERS Nt Mth AA IOAN its ea Si alot ach 7s a

ene ee eT ee, ee

COMMONWEALTH OF MASSACHUSETTS

SUPERIOR COURT DEPARTMENT

OF THE TRIAL COURT CIVIL ACTION

PLYMOUTH, ss =_NO:90-2247B

ZORA ENTERPRISES, INC.,

& Others’,

TOWN OF MARION & another,”

Nee ee ee ee ee

MEMORANDUM OF DECISION AND ORDER ON

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

This matter comes before the court on a motion for summary

judgment. The plaintiff, Zora Enterprises, Inc., Joseph P. Zora and

Glenna M. Zora (coilectively, “Zora’”’), has filed the underlying

action against the Town of Marion (the “Town’”) and John

Rockwell (“Rockwell”) principally claiming the Town, through

the Marion Conservation Commission (the “Commission”) has

taken Zora’s property without just compensation in violation of

Zora’s rights guaranteed under the Fifth Amendment of the United

States Constitution and Article Ten of the Massachusetts

Declaration of Rights. Zora further asserts that the Town and its

officials have violated G.L. c. 12, § 111 and tortiously interfered

with third party contracts and prospective purchasers of Zora’s

land. In addition, Zora claims the actions of the Town constitute a

taking for the public use entitling Zora to compensation pursuant

to G.L. c. 79. Zora seeks declaratory judgment on several issues.

‘Joseph P. Zora and Glenna M. Zora

John Rockwell

The Town and Rockwell now move for summary judgment on

the grounds that, as a matter of law, Zora fails to establish that

a taking by the Town was achieved and that the Town and

Rockwell violated Zora’s due process rights. Furthermore,

Rockwell is immune from suit under a theory of qualified

immunity and many of Zora’s claims are barred by the statute

of limitations.

I. BACKGROUND

For the purposes of this motion, the following are the material

undisputed facts. Zora Enterprises, Inc. owned undeveloped land

in Marion, Massachusetts (the “Property”) primarily for

development purposes. Zora’s taking claim principally involves

administrative proceedings surrounding three proposed

development projects. Zora bases its remaining claims on these

administrative proceedings along with several decisions and

statements made by the Town and its officials in connection

with the Property.

A. Lot Three: Old Knoll Road

On June 29, 1987, Zora filed a Notice of Intent with the

Commission pursuant to G.L. c. 131, § 40, seeking an Order of

Conditions to fill wetlands on Lot 3, Old Knoll Road, Marion

Massachusetts. The Notice of Intent proposed construction of

a single family home and an associated subsurface sewage

disposal system. In order to achieve the 50-foot setback from

wetlands required by Title V (310 CMR 15.00) and the 75-foot

setback required by local board of health regulations, the design

for the septic system required filling wetlands on the rear of the

lot. Filling of wetlands is governed by G.L. c. 131, § 40, which

requires anyone proposing to “fill, dredge or alter” a wetland

must first file a Notice of Intent with the local conservation

commission and receive an Order of Conditions before

proceeding. In addition, under Marion Board of Health

regulations, the Board of Health must issue a permit allowing

the proposed septic system. If necessary, the applicant must

obtain a variance from local regulations which require sewage

or septic systems to be setback 75 feet from wetlands.’

On August 12, 1987, a hearing was held before the

Commission and on September 21, 1987, Zora submitted

percolation and ground water test information for Lot 3 as

requested by the Commission.

On October 7, 1987, the Commission issued an Order of

Conditions denying the proposed project, citing, among several

reasons, Zora’s failure to obtain a variance from local regulations

requiring a 75 foot setback for a subsurface sewage disposal

system.* Zora appealed’ this decision by filing a Request for

Marion Board of Health regulations provide in part “No subsurface

sewage leaching system or septic tank shall be constructed within seventy-

five feet of...any wetland...without the prior written approval of the Marion

Board of Health.”

* The October 7,1987 Order of Conditions also cited the following reasons

for denying approval of the project: 1. Isolated Land Subject to flooding as

labeled, is hydraulically connected to the area of Bordering Vegetated

Wetland and is a Bordering Vegetated Wetland: 2. Commission understands

that DEP policy prohibits Filling of Bordering Vegetated Wetland for Title

V setback; 3. Delineation of the Bordering Vegetated Wetland is in error

for not including an area on the north west area of the Bordering Vegetated

Wetland; 4. Plan lacks percolation test and observation hole location

information; 5. Credible evidence from a competent source required to be

provided to show the extent of fill during the last three years; and 6. Any

fill shown to have been placed in a wetland area in special order #5 shall be

removed and the wetlands replicated in compliance with the Wetlands

Protection Act, G.L. 131, § 40, regulation 310 CMR: 10.55 (4b).

* An applicant seeking to overtum an Order of Conditions applies to the

DEP within 10 days for a Superseding Order of Conditions. G.L. c. 131. § 40.

Superseding Order of Conditions with the Department of

Environmental Protection (the “DEP”), (formerly the

Department of Environmental Quality Engineering (“DEQE”)

on October 14, the Department of Environmental Quality

Engineering (“DEQE”) on October 14, 1987. On December 1,

1987, a DEP representative conducted an on-site inspection of

Lot 3 and on June 1, 1988, issued a Superseding Order of

Conditions overturning the Commission’s Order of Conditions

and allowing Zora to fill a portion of the wetlands in order to

comply with Title V. On June 12, 1988, the Commission filed a

Request for Adjudicatory Hearing from the Superseding Order

of Conditions, appealing the DEP’s orders. On October 24, 1994,

an Administrative Law Judge (“ALJ”) denied filling of wetlands

on Lot 3 on the basis that the engineering plans failed to show

maximum ground water levels and thus did not qualify for a

presumption under DEP regulations that wetlands would be

protected. Zora appealed the decision of the ALJ to Superior

Court and on August 13, 1996, Tierney, J. affirmed the decision

of the ALJ and dismissed Zora’s regulatory taking claim against

the DEP.

At the time Zora was seeking an Order of Conditions from

the Commission for the purposes of Titie V, the Board of Health

issued a permit to Zora on October 7, 1987, for construction of

the subsurface sewage disposal system. The Board of Health

revoked the permit on November | 8, 1987, on the basis that

the reserve area was less than 50 feet from wetlands, violating

Title V and local Board of Health regulations.

Following the Commission’s appeal from the DEP’s

Superseding Order, Zora renewed its application for the Disposal

Works Construction Permit with the Board of Health on August

30, 1988. On December 13, 1988, the Board of Health denied

Zora’s application for a septic system permit and associated

variances on the ground that the proposed system failed to meet

the Title V (310 CMR 15.00) 50 foot setback requirement. Zora

did not have a final order under the Wetlands Protection Act

permitting filling the wetlands since the Commission appealed

the DEPs Superseding Order of Conditions. The Board of Health

notified Zora that “if conditions change on the lot after a final

order has been issued by the Department of Environmental

Quality Engineering, the applic ation may reapply to the Board

of Health.”

On January 10, 1989, Zora appealed the denial of the Board

of Health permit to Superior Court and Mathers, J. decided on

July 22,

1993, that the Board of Health properly denied Zora’s

application for a variance. On Zora’s appeal, the Appeals Court

affirmed the Superior Court Judgment.

B. ubdivision: Extension of Old Knoll Road

On October 30, 1987, Zora filed a Notice of Intent with the

Commission for a limited project® involving the construction

of a roadway and associated drainage and utilities for a fifteen

lot subdivision.

A hearing was held on November 12,1987 before the

Commission and an on-site inspection occurred on November

27,1987. The hearing was continued to December 2,1987, at

which time the Commission requested additional information

from Zora. The hearing was again continued to December 16,

1987. At the December 16 hearing, the Commission requested

further on-site inspections, however, Zora declined to permit

the continuance of the hearing for the purposes of any

DEP regulations provide that an Order of Conditions may be issued

permitting specified limited projects, including the construction of a new

roadway. 310 CMR 10.53 (3)(e).

inspection.’

An Order of Conditions dated December 31, 1987, was issued

denying without prejudice the project on the basis that, among

other reasons, the applicant denied the Commission access to

the property required in order to answer questions raised by the

Notice of Intent.®

On January 8, 1988, Zora filed a Request for Superseding

Order of Conditions with the DEP appealing the Commissions

decision. An on-site inspection occurred on March 1, 1988, with

a DEP engineer and Commission member, John Rockwell.’

The DEP issued a Superseding Order of Conditions on April

19, 1989, allowing extension of the road under a revised plan

? The Commission engaged in deliberations following the hearing. Several

statements were made by members of the Commission including the

following: John Rockwell stated “there is no question the road is going in,

it is just a question of where, but I do not want to issue orders of conditions

to allow the project without unlimited access” and “we could ask DEQE to

remand back to the Marion Conservation Commission and in five, ten or

fifteen years maybe the project would go forward;” Kay Reis stated “if the

Commission doesn’t get all that we requested, we should use the

administrative process to delay any project;” Nancy Menzel stated “it was

pretty clear the road was going in but that it would take several on-site

inspections or several months and if the Conservation Commission was

not allowed to do these on-site inspections, the Conservation Commission

would not close the hearing.”

* In addition, the Order of Conditions denied the project on the basis that

the wetland delineation show on the plan did not accurately represent the

Bordering Vegetated Wetland within 100 feet of the proposed activity and

the project did not qualify for limited project status under 310 CMR

10.53(3)(e).

° During the inspection, Rockwell stated that the Commission would

appeal if the Commission was denied further access.

ern

dated January 19, 1989. Special conditions of the order included

a specification that “members and agents of the local

Conservation Commission and the Department shall have the

right to enter and inspect the property at all reasonable times to

evaluate compliance with the conditions stated in [the]

Superseding Order, and may require the submittal of any data

deemed necessary by [the] Department for that evaluation.”

On April 26, 1989, the Commission filed a Request for

Adjudicatory Hearing appealing the DEP orders. A hearing was

held before an Administrative Law Judge of the DEP on

October 1, 1992.'° A tentative decision was issued on February

7, 1994, and on March 28, 1995, a Final decision was entered

reversing the decision of the DEP and denying the project. Zora

has appealed the decision of the Administrative Law judge to

the Superior Court.

Cc. 21 Lot Subdivision: Extension of Olde Meadow Road

On July 13, 1989, Zora filed a Notice of Intent with the

Commission for the construction of a road and associated

utilities for a 21 lot subdivision. With the Notice, Zora filed

plans prepared by a professional engineer representing

construction and installation of utilities and the drainage system.

The plan also delineated wetlands as flagged by Zora’s

consultant. Subsequently, an on-site inspection took place at

which time the Commission placed flags delineating wetlands.

At a hearing on September 6, 1989, the Commission requested

that Zora prepare a plan at Zora’s expense showing wetlands

‘© During a break at the hearing, Joseph Zora, Sr. overheard a comment

made by the DEP assistant general counsel and another person to John

Rockwell and counsel for the Town essentially stating “you’ve held these

people up for seven years, they have a viable project, what do you want

from them”. Joseph Zora, Sr. observed that Rockwell did not respond to

the comment.

flags as placed by the Commission. Zora declined. At the

hearing, Rockwell stated that if Zora does not supply the plan,

the project would be denied.

On September 26, 1989, the Commission issued an Order of

Conditions denying the extension of the road. The Order

enumerated several reasons for denying the project, including

the application’s failure to exhibit on a plan the wetland flags

as placed by the Commission.'' Zora requested a Superseding

Order of Conditions from the DEP on October 4, 1989. The

DEP conducted on-site inspections and placed flags delineating

wetlands areas. The DEP requested that Zora prepare a plan

showing the wetlands area as determined by the DEP. On

September 17, 1990, the DEP issued a Superseding Order of

Conditions denying the project without prejudice for failure to

submit information, including plans accurately showing all of

the wetland resources on the property in accordance with the

Wetlands Protection Act.

On September 24, 1990, Zora filed a Request for

Adjudicatory Hearing appealing the DEP orders and on October

14, 1994, an Administrative Law Judge overturned the DEP

orders, finding that the grounds on which the DEP denied the

project for insufficient information were improper. The case

was remand d to the DEP for a decision on the merits whether

to permit or deny the project.

'' The Order specified seven deficiencies. In addition, the Order

outlines fourteen additional reasons on the basis of which the

Commission believed the project should be denied in the event the Order

was appealed tot the DEP.

D. . . * ) isi b

In addition, a variety of individual statements and

administrative decisions have been made concerning the

Property.

In 1985, Zora entered into an agreement to sell Lot 45 of the

Property. The buyer filed a Notice of Intent with the Commission

for the construction of a home and subsurface sewage disposal

system. At the hearing on the Notice of Intent, Commission

member Janice Mendes stated “the Conservation Commission

intended to stop the Zora’s from building on their property.”

Thereafter, Rockwell and other Commission members entered

Zora’s property and dug holes to conduct an examination of

the land via a “rust line” test. Rockwell had publicly questioned

the accuracy of the data resulting from the percolation test

submitted with the buyer’s Notice of Intent.'2

Zora hired an engineer to do a second percolation test. A

few days after the percolation test, Rockwell asked Robert

Pittsley, the backhoe operator who performed work at the second

test, “how did they pull that one off? How did the perc test pass

on Zora’s lot?”

In 1985, Commission member Joyce West stated to Robert

Pittsley “It seems as though Mr. Zora thinks he can get away

with anything he wants, and Mr. Zora is going to find out that

he isn’t going to be able to do anything he wants to do.”

In 1983 and 1984, Zora sold Lots 30 and 30A of the Property.

On October 15, 1984, the Commission issued an Order of

'2 Rockwell was notified by the DEP that “in all cases the iron oxide level

is not an indication of maximum groundwater elevation however good

engineering judgement should be utilized in using this information.”

Conditions to the buyer for the construction of a single family

home and subsurface sewage disposal system. On May 21, I

986, the Commission issued an Enforcement Order indicating

that the septic plan for Lot 30 was in violation of Title V and

that a new Notice of Intent was required. In addition, the

Commission issued an amended Order requiring a wetlands

delineation on Zora’s adjoining land.

In December 1985, a prospective buyer spoke with

Commission member Joyce West regarding the purchase of Lot

52 from Zora. West stated that “Mr. Zora is not well received

by this committee” and “Mr. Zora knows that the land is wet,

and I know the particular land and it is very wet, and I don’t

understand how it could pass the Conservation Commission.

At the very least Mr. Zora will have to come before me for the

road and there is no way in the world that I see the road passing.

If you are thinking of an immediate timetable for building, you

will not make this timetable.” West further stated that “the beauty

of the area will be greatly diminished and I don’t understand

why Mr. Zora did not tell you this,” and “In dealing with

Mr. Zora you should get a good lawyer and have the lawyer

draw an agreement that would be conditioned on the lot being

buildable and getting past the conservation commission and to

be very careful in dealing with him.”

In January 1984, Zora sold Lot 43 of the Property to a buyer

who built a house on the parcel and subsequently soid the lot to

another parw. On August 25, 1936, Joyce West made statements

that the house on Lot 43 was sinking into the ground.

On September 15, 1986, the Commission issued a Cease and

Desist Order against Zora for “altering a Bordering Vegetative

Wetlands [(“B.V.W.)] and working in a stream.” Following this

order, 1986, Rockwell contacted the DEP alleging that Zora

was altering a B. V.W. and working in a stream. The DEP issued

an Enforcement Order on October 31, 1986, directing Zora to

cease and desist alteration of a B. V.W. without a valid Order of

Conditions and requiring Zora to file a Notice of Intent with

the Commission and the DEP. Zora appealed the DEP Order on

November 13,1986. In 1994, the DEP filed a Withdrawal of

Enforcement Order and Dismissal of Claim and on April 5,

1994, an Administrative Law Judge entered a Final Decision -

Order of Dismissal dismissing the appeal as moot since the

Enforcement Order was withdrawn. Finally, John Rockwell told

a neighbor and prospective purchaser of Lot A, owned

individually by Joseph Zora Sr. and Glenna Zora, that Lot A

could not be built on.

Zora filed a complaint on October 31,1990, and a second

amended complaint on May 22, 1991, Claiming that the

Commission frustrated the corporation’s attempts to proceed

with the three projects by using the DEP administrative appeal

process to delay the projects. In addition, Zora claims that the

various statements and administrative decisions made by the

Commission over the years were designed to harass and prevent

the development of their property. Zora claims that the

Commission prevented Zora from making any economically

viable use of their property which resulted in a taking without

just compensation in violation of the Fifth Amendment and

Article Ten of the Massachusetts Declaration of Rights. Further,

Zora maintains the actions of the Commission and John

Rockwell interfered with Zora’s constitutional rights under the

federal and state constitution in violation of G.L. c. 12, § 111.

Zora claims the Town and John Rockwell tortiously interfered

with Zora’s third party contracts and “with prospective

purchasers.” Finally, Zora maintains they are entitled to

compensation pursuant to G.L. c. 79. The Town moves for

summary judgment on the basis that as a matter of law:

l. Zora cannot establish that its property was taken by the

Commission’s refusal to grant wetland permits for the three

projects since the Commission’s orders were replaced by

Superseding Order of Conditions issued by the DEP, thus

nullifying the effectiveness of the Commission’s orders. In

addition, any taking claim is premature since Zora has not

exhausted the administrative and judicial review process for

the three projects.

2. The Town did not deny Zora due process on the three

projects since the Town has no responsibility for delays in the

administrative procedures of state agencies and the only actions

taken by the Town increasing the length of the DEP proceedings

cannot be characterized as a violation of Zora’s due process

rights.

x Individual defendant, John Rockwell is immune from

suit under the doctrine of qualified immunity since he did not

violate any clearly established constitutional right of Zora.

4. The Enforcement Order issued by the Commission in

October of 1986 was superseded within a few weeks by a DEP

Order and therefore cannot constitute a deprivation of property

without due process since it only remained in effect for six

weeks. State law provided an adequate remedy for appeal and

the claim is barred by the statute of limitations.

5. With the exception of claims based on two appeals of

DEP Superseding Orders and the Board of Health’s denial of a

variance, Zora’s claims are barred by the statute of limitations.

II. DISCUSSION

This court grants summary judgment where there are no

genuine issues of material facts and where the summary

judgment record entitles the moving party to judgment as a

matter of law. Community Nat’] Bank v. Dawes, 369 Mass.

550, 553 (1976); Cassesso v. Commissioner of Correction, 390

Mass. 419, 422 (1983); Mass. R. Civ. P. 5 6(c). The moving

party bears the burden of affirmatively demonstrating the

absence of a triable issue, and that the summary judgment record

entitles the moving party to “judgment as a matter of law.”

Pederson v. Time, Inc., 404 Mass. 14,16-17(1980). A party

moving for summary judgment who does not bear the burden

of proof at trial must demonstrate the absence of a triable issue

either submitting affirmative evidence negating an essential

element of the nonmoving party’s case or by showing that the

nonmoving party is unlikely to submit proof of that element at

trial. Kourouvacilis v. General Motors Corp., 410 Mass. 706,

716 (1991); Flesner v. Technical Communications-Corp., 410

Mass. 805, 809 (1991). The nonmoving party cannot defeat the

motion for summary judgment by resting on its pleadings and

“mere assertions of disputed facts...” LaLonde v. Eisnner, 405

Mass. 207, 209 (1989). The nonmoving party’s failure to prove

an essential element of its case “renders all other facts

immaterial” and mandates summary judgment in favor of the

moving party. Kourouvacilis v. General Motors Corp., 410

Mass. 706, 711(1991), citing Celotex v. Catrett, 477 U.S. 317,

322 (1986).

A. — Zora’s Taking Claim

The Fifth Amendment to the United States Constitution

prohibits the taking of private property for public use without

just compensation. U.S. Const. amend. V. Similarly, Article Ten

of the Massachusetts Declaration of Rights states “no part of

the property of any individual can with justice, be taken from

him or applied to public use, without his own consent. . . and

whenever the public exigencies require, the property of any

individual should be appropriated to public uses, he should

receive a reasonable compensation therefor.” Art. X Mass.

Declar. Rights.'? It is well established that for purposes of these

provisions, a taking may occur even though the government,

through a legitimate exercise of its police power, seeks to fulfill

its obligation to preserve and protect the public interest via the

zoning or building regulation at issue. MacNeil v. Avon, 386

Mass. 339, 341 (1982). In the context of a regulatory taking,

the United States Supreme Court has recognized that where

regulation denies all economically beneficial or productive use

of land, a taking results without case-specific inquiry into the

public interest advanced in support of the restraint. Lucas v.

So. Carolina Coastal Council, 505 U.S. 1003, 1015 (1992).

Temporary deprivations of use are compensable for losses

caused by excessive government regulation. First Evangelical

Lutheran Church v. Los Angeles County, 482 U.S. 304, 319

(1987).

The Town first contends that the Commission’s Orders of

Conditions issued by the Commission cannot be a taking since

each was displaced by the DEP’s Superseding Order, thus

extinguishing the legal significance of the Commission’s Order

of Conditions. Zora claims that the Town is not relieved from

liability for a taking where subsequent orders are issued by the

DEP since the Town knew of the length of the DEP appeals

process and used the delay to prevent Zora from using their

land.

‘5 Massachusetts courts utilize the standards of the Fifth Amendment in

applying the state takings clause. See Steinbergh v. Cambridge, 413 Mass.

736, 738 (1992), cert. den., 113 S.Ct. 2338 (1993).

G.L. c. 131, § 40 (the “Wetlands Protection Act”) provides

that:

where an order. . . issue[s] from [a conservation]

commission, the applicant .. . may. . . request the

department of environmental protection to determine

whether the area on which the proposed work is to be

done is significant to public or private water supply, to

the groundwater supply, to flood control... Upon receipt

of such request the department shall make the

determination requested and shall by written order . . .

impose such conditions as will contribute to the

protection of the interests described herein . ..Such order

shall supersede the prior order of the conservation

commission . . . and all work shall be done in accordance

therewith . . . . (emphasis added)

“The legislative history of [CL. c. 131, § 40] demonstrates

that the legislature has always reserved to the Commonwealth,

acting through its various agencies, the final decision on

applications for projects affecting Statutory concerns as to

wetlands protection.” Degrace v. Conservation Comm’n of

Harwich, 31 Mass. App. Ct. 132, 135 (1991), quoting Hamilton

v. Conservation Comm’n of Orleans, 12 Mass. App. Ct. 359,

364 (1981). The specific language of the Wetlands Protection

Act further supports the position that the DEP has final

determination of projects decided on the basis of § 40 since the

DEP’s order shall “supersede the prior order of the conservation

commission . . . and all work shall be done in accordance

therewith.” While the local conservation commission is

designated with the authority to impose conditions pursuant to

the Wetlands Protection Act, G.L. c. 131, the Commonwealth

through the DEP has the “final word” on projects approved or

disapproved under § 40. Hamilton v. Conservation Comm ’n of

Orleans, 12 Mass. App. Ct. 359, 368 (1981). Therefore, as it

pertains to any one Order of Conditions, a Superseding Order

of Conditions issued by the DEP extinguishes the conditions

imposed by the Commission. When a Superseding Order of

Conditions is issued, the Commission is not liable for a taking

claim based on conditions imposed by the Commission under

the Wetlands Protection Act. The proper party for Zora’s taking

claim with respect to any one Order of Conditions is the DEP.

Hamilton v. Conservation Comm'n of Orleans, supra at 368

(1981). (DEQE, and not local authority, would be liable for

any taking of land resulting from proceedings under c. 131, §

40, denying landowner permission to proceed with construction

of a house as described in notice of intent). Zora does not dispute

this conclusion but instead relies predominately on Wilson v.

Commonwealth, in support of their claim that the Commission

knew and used the delay process inherent in the DEP appeals

process to affect a taking.

The Supreme Judicial Court recognized in Wilson v.

Commonwealth, 413 Mass. 352, 355 (1992) that an agency may

be liable for a regulatory taking through unreasonable and

improper delay in agency proceedings. While “[g]enerally,

courts have rejected claims that, because an agency did not act

more quickly on an application a State or a State agency took a

landowner’s property,” a complaint alleging total destruction

of property due to agency delay sufficiently states a claim for a

regulatory taking. Wilson v. Commonwealth, 413 Mass. 352,

355 (1992). The Court found that unreasonable agency delay

itself would be the basis for the claimant’s failure to complete

the administrative process and, thus, the cause of the taking. “It

would be illogical to permit the agencies own alleged dilatory

practices to justify the dismissal of the taking claim for the

reason... that departmental proceedings were not completed”

and thus it would be inappropriate to require the claimant to

exhaust administrative remedies. Wilson v. Commonwealth,

supra at 355-356 (1992).

The taking claim presented by Zora’s is not consistent with

Wilson and taking cases in general for several reasons. Initially,

Zora must show that agency delay occurred. In addition, Wilson

requires proof “among other things...that the delay was due to

unreasonable agency action and that a favorable department

decision within a reasonable time would have resulted in saving

the plaintiffs properties from total destruction.” Wilson v.

Commonwealth, supra at 355 (1992).

First, Zora does not specify any facts that the Town missed

any deadlines set by the Wetlands Protection Act and [its]

regulations promulgated pursuant thereto. In each case, the

Commission denied the proposed projects within the limitations

set by § 40.

Zora argues instead that the Commission appealed the DEP’s

Superseding Orders issued for Lot 3 and the 15-lot subdivision

project in “bad faith” and denied issuance of Order of Conditions

for the three projects in order to force Zora into the DEP delay

process. Had the Town not taken these actions, Zora argues,

delay would not have occurred. Zora’s arguments are

unpersuasive.

Agency delay, however unreasonable, cannot be reasonably

attributed to the Town. The agency causing the delay is

undoubtedly the DEP and not the Town, Commission or Board

of Health.

Moreover, both Zora and the Town are entitled to seek review

of DEP Superseding Order of Conditions under G.L. c. 30A.

Zora maintains that the Town, by availing itself to the

administrative appeals process accomplishes a taking without

just compensation. General Laws, c. 30A provides a right by

an aggrieved party who participates in the agency process to

seek redress for the agency’s actions. Group Ins. Comm’n v.

Labor Relations Comm’n, 381 Mass. 199, 202-204, 207 (1980).

Clearly, the Town and Zora fall into the category of an aggrieved

party and therefore both have a right to seek judicial review.

Furthermore, Wilson involves the unusual case of

unreasonable agency delay resulting in the total destruction of

property by natural forces. The Court was careful to distinguish

total destruction of property from temporary takings, i.e.

circumstances where property was not totally deprived of its

value. Wilson v. Commonwealth, 413 Mass. 352, 355 (1992).

Zora’s property was not permanently destroyed by natural

forces. Zora still has the right put its property to a variety of

alternative uses. See Bello v. Walker, 840 F.2d 1124, 1131(3rd

Cir. 1988) (plaintiff denied building permit still had right to put

land to variety of alternative uses). Zora fails to indicate facts

demonstrating they have been deprived of all economically

beneficial and productive use of the Property. Lucas v. So.

Carolina Coastal Council, 505 U.S. 1003, 1015 (1992).

While temporary takings are not “different in kind from

permanent takings...[q]uite different questions . .. would arise

in the case of normal delays in obtaining building permits,

changes in zoning ordinances, variances and the like.” First

Evangelical Lutheran Church v. Los Angeles County, 482 U.S.

304, 319, 321(1987). Since Zora’s property was not permanently

destroyed by natural forces during the appeals process and the

Town did not cause the delay inherent in the DEP appeal

mechanism, Zora must exhaust its administrative and judicial

remedies in order to claim the Town has achieved a regulatory

taking in any way.

“Mere fluctuations in value during the process of governmental

decision making, absent extraordinary delay, are incidents of

ownership” and cannot be considered a taking. Agins v. Tiburon,

447 U.S. 255, 263 (1980). Zora does not specify facts indicating

their case falls within the “narrow ‘futility exception’ to the

final decision requirement for takings claims.” Wilson v.

Commonwealth, 31 Mass. App. Ct. 757, 766 (1992), quoting

Gilbert v. Cambridge, 932 F.2d 51, 60-63 (Ist Cir.), cert. denied,

112 S.Ct. 192 (1991). In addition, Massachusetts affords Zora

a full judicial and administrative mechanism to challenge the

Orders of Conditions. Indeed, Zora used the MEP appeals

process to their benefit by seeking and obtaining Superseding

Orders of Conditions from the DEP overruling the

Commission’s decisions denying approval of Lot 3 and the road

extending to the 15-lot subdivision.

Zora has failed to exhaust their administrative and judicial

remedies with respect to the three proposed projects. With

respect to Lot 3, the Superior Court judge affirmed the ALJ

decision and dismissed Zora’s taking claim against the DEP,

pointing out that Zora may still perform additional testing in

order to demonstrate its waste disposal system will comply with

Title V and thus consistent with the Wetlands Protection Act.

Similarly, Zora may still submit plans for the 15-lot subdivision

and the 21-lot subdivision which include pertinent information

such as appropriate wetlands delineations in order to comply

with the Wetlands Protection Act. Both Orders of Conditions

issued for the 15 lot subdivision and the Superseding Order of

Conditions issued for the 21 lot subdivision denied the projects

without prejudice.

While the DEP appears to have exceeded the 70-day

limitation in issuing Superseding Orders of Conditions in the

three proposed projects, this delay is not caused by the Town.

Even if the Town knew of the DEP delay when it denied approval

of the projects, Wilson’s holding is very limited. The “taking-

by-delay” claim recognized by Wilson does not include a claim

against a town with mere knowledge of administrative delay. —

While Zora outlines several instances where the Commission

or its members expressed knowledge of the DEP delay and

possible use of this delay, Zora shows no facts indicating the

Town caused the DEP delay as required by Wilson. The

Commissions mere hope to see Zora’s projects fail cannot be

the sole basis for a temporary taking claim. Courts recognize

that delay is inherent in the permitting process and generally

refuse to allow takings claims on this basis. See eg. 1902 Atlantic

Ltd. v. United States 26 Cl. Ct. 575, 582 (1992) (four and one

half years to obtain wetlands permit not extraordinary delay).

Given the attending circumstances demonstrating that the

Town did not cause the DEP delay, that Zora’s property was

not permanently destroyed making exhaustion of administrative

remedies ineffectual, and that Zora failed to exhaust its remedies,

the Town is not responsible for a taking of Zora’s property.

B. Claims of Due Process Violations.

In their complaint. Zora states the Town and its officials

entered into a scheme to prevent use by Zora of the Property.

Zora asserts that this “scheme” along with the denial of the

three proposed projects manifests a violation of due process."

i. Substantive Due Process.

The Fourteenth Amendment’s due process clause states, “nor

shall any state deprive any person of life, liberty, or property

without due process of law.” U.S. Const. Amend. XIV. This

'* Zora does not challenge the Town’s argument that the actions of Town

officials do not amount to a violation of substantive due process, but instead

asserts that Zora has viable procedural due process claims.

guaranty “demands only that the law shall not be unreasonable,

arbitrary or capricious, and that the means selected shall have a

real and substantial relation to the objective sought to be

obtained.” Pruneyard Shopping Center v. Robins, 447 U.S. 74,

84-83 (1990). A violation of substantive due process requires

misconduct that is “stunning, evidencing more than humdrum

legal error.” “The threshold for establishing the requisite ‘abuse

of government power’ is a high one indeed.” Nestor Colon

Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32, 45 (1st Cir.

1992).

First Circuit cases find that a violation of substantive due

process involves circumstances of a truly horrendous nature.

“Property is not denied without due process simply because a

local planning board rejects a proposed development for

erroneous reasons or makes demands which arguably exceed

its authority under... state statutes.” Creative Environments v.

Estabrook, 608 F.2d 822, 832 n.9 (1982), cert. denied, 459 LTS.

989 (1982). Even a bad faith violation of state law is not

sufficiently conscience shocking to rise to the level of a violation

of substantive due process. Amsden v. Moran, 904 F.2d 748,

757 (ist Cir. 1990), cert. denied, 498 U.S. 1041 (1991). The

First Circuit has recognized violations of due process by Town

boards in “truly horrendous” situations, for example, where a

board delays approval of projects by deliberately and knowingly

flouting state court orders and, due to special circumstances,

the state courts were then unavailable to correct the wrong. Roy

v. City of Augusta. Maine, 712 F.2d 1317, 1523 (1983); Chiplin

Enters., Inc. v. Lebanon, 712 F.2d 1524, 1528 (1st Cir. 1983).

A full administrative and judicial relief mechanism is

available to Zora for review of the Commission’s decisions.

While the DEP has slowed Zora’s plans in progressing with the

proposed projects, the Town has not been involved in truly

horrendous situations amounting to violations of substantive

due process. The Town has not intentionally and arbitrarily

disregarded state court orders or left Zora in the situation where

the State courts cannot review the Commission’s orders. Indeed,

Zora has used the review process afforded by the DEP to their

advantage with respect to Lot 3 and the 15 lot subdivision.

“Every appeal by a disappointed developer from an adverse

ruling by a local Massachusetts . . . board necessarily involves

some claim that the board exceeded, abused or “distorted” its

legal authority in some manner, often for some allegedly

perverse (from the developer’s point of view) reason.” Creative

Environments, Inc. v. Estabrook, 680 F.2d 822, 833 (Ist Cir.

1982), cert. denied, 459 U.S. 989 (1982). Generally, where state

administrative and judicial relief is available for review of local

board decisions, due process claims may not be used to address

local planning disputes. ©) on Medi Ceso

Inc., v. Custodio, 964 F.2d 32, 45 (1st Cir. 1992). The “forced”

appeals taken by Zora in connection with the Commission’s

Order of Conditions denying the three projects do not rise to

the level of substantive due process violations.

Similarly, the statements made by Commission members,

even when collectively considered with the denial of the three

proposed projects, do not rise to the level of truly horrendous

behavior on the part of the Town. Specifically, questioning

Zora’s test results, making statements including, “Zora is going

to find out that he isn’t going to be able to do anything he wants

to do”, “In dealing with Mr. Zora you should get a good lawyer

... and to be very careful in dealing with him,” informing

potential buyers that the Property has wetlands problems, and

alleging to the DEP that Zora was altering a B.V.W., are not

situations which rise to the level of corrupt, egregious or

conscience shocking behavior. nfeld v. Board of Health of

Chilmark, 27 Mass. App. Ct. 621, 628 (1989) (denied renewal

of sewage disposal permit where other property owners obtained

successive renewals after submitting information equal to or

less than that provided by plaintiff did not amount to egregious

conduct that shocks the conscience); K. Hovnanian at Taunton,

Inc. v. Taunton, 37 Mass. App. Ct. 639, 647 (1994). Finally, the

denial by the Board of Health of a variance for Lot 3 is similarly

lacking in conscience shocking caliber. The denial of a variance

by itself does not amount to misconduct, much less behavior

which is “truly horrendous.” Amsden v. Moran, 904 E.2d 748,

757 (ist Cir. 1990), cert. denied, 498 U.S. 1041 (1991); Nestor

Colon Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32, 45

(1st Cir. 1992).

2. Procedural Due Process

In the absence of a substantive due process claim, Zora asserts

that the Town violated its procedural due process rights.

Procedural due process requires that, before the state

significantly deprives an individual of liberty or property, the

individual must receive notice and an opportunity to be heard

“at a meaningful time and in a meaningful manner.” Arnsden v.

Moran. 904 F.2d 748, 753 (Ist Cir. 1990), cert. denied, 498

U.S. 1041 (1991), quoting Armstrong v. Manzo, 380 U.S., 454,

552 (1965). Zora claims the process afforded was meaningless

due to the unreasonable delay in DEP proceedings. In the context

of pre-deprivation procedures, where the adequacy of permitting

procedures is not in question, but instead the conduct of state

officials is allegedly abusing these procedures is challenged,

no additional pre-deprivation process is required. PFZ

Properties. Inc. v. Rodriguez, 928 F.2d 28,31(1st Cir. 1991);

v. Custodio, 964 F.2d

32, 40 (1st Cir. 1992). Zora does not challenge the

constitutionality of the administrative procedures, therefore, the

pre-deprivation procedural due process afforded Zora is

adequate. Nestor Colon Medina & Sucesores, Inc. v. Custodio,

“supra at 40 (procedural due process rights of landowner not

violated by allegations of several year delay in denying permits

and claims that officials acted under malign influence of the

governor and other politicians).

With respect to the post-deprivation hearings provided by

the DEP, Zora was likewise provided adequate process. While

promptness and sufficiency of administrative review are

significant factors in assessing adequacy of procedural process,

delays in the DEP process are not the result of the Town’s

actions. Behan v. City of Dover, 419 F. Supp. 562, 568 (1976).

“Where a state has provided reasonable remedies to rectify a

legal error by a local administrative body.. . due process has

been provided.” Creative Environmenis v. Estabrook 508 F.2d

822, 832 n. 9 (1982), cert. denied, 459 U.S. 989 (1982). Zora

has the opportunity to present its allegations before

administrative and judicial bodies of the Commonwealth that

the Town through the Commission contributed to the DEP delay

by denying its projects and made unreasonable demands for

plans and requests for unlimited access in order to intimidate

Zora. The fact that the DEP, an Administrative Law Judge, the

Superior Court or the Appeals Court denied Zora relief from

any one decision does not affect the adequacy of the process

provided to Zora. PFZ Properties, Inc. v. Rodriguez, 928 F.2d28,

31 (ist Cir. 1991).

The First Circuit has consistently held that claims “too typical

of the run of the mill dispute between a developer and a town

planning agency do not rise to the level of a due process

violation. Creative Environments. Inc., v. Estabrook, supra at

833. In this case, Zora has been afforded both procedural and

substantive due process.

e DAD ne Sak ad Wild

‘. Violations of c. 12 § 111.

Zora further claims violations under the Massac?vasetts Civil

Rights Act, G.L. c. 12, §111'5. This claim requires Zora to

establish that “(1) [their] exercise or enjoyment of rights secured

by the

Constitution or laws of either the United States or of the

Commonwealth, (2) has been interfered with, or attempted to

be interfered with, and (3) that the interference or attempted

interference was by “threats, intimidation or coercion.” Bally

v. Northeastern University, 403 Mass. 713, 717 (1989).

Zora’s rights under either the United States Constitution or

the Constitution of the Commonwealth have not been interfered

with or attempted to be interfered with by the Town.'® Clearly,

Zora has not established any due process violation. Instead,

Zora asserts that the Town threatened to appeal unless Zora

allowed unlimited access to their property, a violation, Zora

claims, of their Fourth Amendment Right against unreasonable

search and seizure.'? While members of a conservation

'S G.L. c. 12, § 111 provides in pertinent part “Any person whose exercise

or enjoyment of rights secured by the constitution or laws of the United

States, or of rights secured by the constitution or laws of the commonwealth,

has been interfered with, or attempted to be interfered with . . . may institute

and prosecute in his own name and on his own behalf a civil action for

injunctive and other appropriate equitable relief. . .”

'¢ State remedies provided by G.L. c. 12, § 111 for civil rights deprivations

are coextensive with 42 U.S.C. § 1983. Batchelder v. Allied Stores Corp.,

393 Mass. 819, 822-823 (1985).

'’ The Fourth Amendment provides in pertinent part “the right of the people

to be secure in their person, houses, papers, and effects, against unreasonable

searches and seizures...“ U.S. Const. Amend. IV.

commission do not have unlimited right of access to private

land for the purposes of inspecting for general violations of

law, under G.L. c. 131, § 40, conservation commission members

may enter property for the purposes of performing their duties

under Wetlands Protection Act. Commonwealth v. John G. Grant

& Sons. Inc., 403 Mass. 151, 159-160 (1988) (holding that G.L.

131, § 40 does not authorize a conservation commission or its

agents to enter private land to inspect for general violations of

law.) Under G.L. c. 131, § 40, the Commission’s duties include

determining whether a

Notice of Intent filed by an applicant, such as Zora, warrants

approval.

Zora’s reliance upon Grant is misplaced both in fact and in

law. First, Grant does not bar all access by Commission members

to the subject property, but only that conduct amounting to a

warrantless search of unlawful conduct. The Commission’s

activities clearly fall under the duties provided for under G.L.

c. 131, § 40, and were not general searches for unlawful

activities.

Moreover, Zora asserts that the Commission threatened to

appeal if Zora sought a DEP Superseding order overturning the

Commission’s decision in denying the proposed extension of a

road for the 15 lot subdivision unless the Commission gained

unlimited access. While the Commission denied the project for

several reasons including lack of access to the property, the

DEP’s decision in allowing the project also required as a special

condition for the project that members and agents of the local

conservation commission and the DEP have the right to enter

and inspect the property at all reasonable times to evaluate

compliance with the Superseding Order of Conditions. Further,

Zora fails to indicate facts demonstrating that the Commission

actually gained any access in this instance. For these reasons,

Zora cannot establish interference with a constitutional right.

Zora also fails to establish interference through “threats,

intimidation or coercion.” The definition of coercion under G.L.

c. 12, § 111, does not necessarily involve physical force. See

ave v. Boston Symphony Orchestra, Inc., 399 Mass. 93,

100 (1987); Freeman v. Planning Board of West Boylston, 419

Mass. 548, 566 n. 18 (1995). The actions of the Commission in

appealing DEP orders were legitimate and justifiable, therefore,

the Commission’s acts do not amount to “threats, intimidation

and coercion.” Freeman v. Planning Board of West Boylston,

supra at 566 (planning board erroneously seeking concession

legitimately related to purposes of subdivision control law did

not exercise coercion against plaintiff to force plaintiff to forego

development of property.) Even if the Commission threatened

to appeal on the sole basis of lack of access to the property, the

Commission’s conduct would not be coercive. The

Commission’s statements and decision were not threats of

retributive action for lawful conduct on the part of Zora. See

v. Inspector of Buildings of Tewksbury, 41 Mass. App.

Ct. 120, 123 (1996) (threats of retributive arrest or official action

for lawful conduct including putting a nail in building or

applying for permit in town was sufficient to survive summary

judgment). The actions of the Commission and the behavior of

its members do not suggest coercion at any level. Freeman v.

Planning Board of West Boylston, supra at 566 (1995).

Accordingly, Zora cannot establish a claim against the Town

for violations compensable under G.L. c. 12, § 111.

D. i e with Contractual Relations

al Int nce with Advantageous

Relations.

The Town asserts that in the absence of proof of improper or

wrongful conduct by the Town, the Commission, the Board of

41 -

Health, or its members, Zora cannot establish a claim for

intentional interference with a contractual or prospective

contractual relation. In addition, the Town maintains the statute

of limitations bars any claim of interference with the exception

of claims involving the denial of a variance by the Board of

Health and the Orders of Conditions issued by the Commission

for the 15 lot and 21 lot subdivisions. Zora argues that the Town

fails to address their claim for intentional interference with

advantageous relations. Both claims require proof of improper

motive or means which Zora advances is a factual question to

be decided only by a jury. Zora claims the actions of the conduct

amount to a continuing scheme thereby constituting a continuing

tort which the three year statute of limitations would not bar.

The intentional torts of intentional interference with a

contractual relation and intentional interference with an

advantageous business relation both require proof of improper

motive or means. United Truck Leasing Corporation v. Geltman,

406 Mass. 811, 816 (1990).'® Therefore, in the absence of bad

motive or means, either claim will fail.

Any action by the Town, its agencies or officials considered

as a single act or collectively does not amount to improper

motive or means. The standard adopted for improper motive or

'8The elements of intentional interference with a contract are: 1.) contract

with a third party; 2.) defendant’s conduct was intentional and improper in

motive or means; and 3.) plaintiff was harmed by defendant’s actions. United

Truck Leasing Corporation v. Geltman, 406 Mass. 811, 812 (1990). The

elements of intentional interference with an advantageous business relation

are: 1.) business relationship or contemplated contract of economic benefit;

2.) defendant’s knowledge of such relationship; 3.) defendant’s intentional

interference was improper in motive or means; and 4.) plaintiffs loss of

advantage directly resulted from defendant’s conduct. Comev v. Hill, 387

Mass. 11, 19 (1982); United Truck Leasing Corporation v. Geltman, 406 —

Mass. 811, 816 (1990).

means is met when interference resulting in injury is wrongful

by some measure beyond the fact of the interference itself.

United Truck Leasing Corporation v. Geltman, 406 Mass. 81 a

81 6 (1 990), quoting United Truck Leasing Corporation v.

Geltman, 26 Mass. App. 847, 852 n.2. (1989), citing Top Serv.

Body Shop, Inc. v. Allstate Ins. Co., 283 Or. 201 909210 (1978).

Zora claims the Town and its official entered into an ongoing

scheme to prevent Zora’s use of the Property. Zora fails to

establish that any statements made by Commission members

were intentionally false or that decisions made by the

Commission or the Board of Health were intentionally

erroneous. Draghetti v. Chmielewski, 416 Mass. 808, 817 (false

statements made by employer were sufficient to establish

improper means; decision to terminate employee based on

retaliation or ill will was adequate to prove improper motive.)

Zora has not established that the Commission or its members

engaged in threats or violations of statutes or rules of law. United

Truck Leasing Corporation v. Geltman, supra at 817. Finally,

Zora has not proved that the Town, the Board of Health, or the

Commission had a duty of non-interference “4.e., that [the Town]

interfered for an improper purpose rather than for a legitimate

one. United Truck Leasing Corp. v. Geltman, 406 Mass. 81 l,

816 n.8 (1990). The Commission was required to issue Orders

of Conditions upon application by Zora. The Board of Health

was required to decide whether a permit should be issued and

variances granted for the proposed septic system for Lot 3, again

upon Zora’s application. No evidence is presented that any

interference by the Town was intentional and without legal

justification. Grammemenos v. Zolotas, 336 Mass. 594, 597

(1970). The apparent motives of the Commission and the Board

of Health in denying the projects were compliance with the

Wetlands Protection Act.

While improper motive or means is an issue of fact, where

evidence of conduct construed in the light most favorable to

the plaintiff does not, as a matter of law, meet the legal standard

of improper motive or means, the plaintiffs claim must fail.

See Freeman v. Planning Board of West Boylston, 419 Mass.

548, 561 n. 15 (1995) (due process claims resolved on motion

to dismiss or for summary judgment where, as a matter of law,

evidence of misconduct, if believed, failed to meet standard of

liability.) Here, Zora has not established bad motive or means

through any one act or as a collective, ongoing scheme.

The statute of limitations applying to tort actions is three

years. G.L. c. 260, § 2A (1992 ed.) Since Zora has not

established a continuing tort, the statute of limitations bars

consideration of actions which occurring prior to October 3 1,

1987. The remaining actions under consideration are the Board

of Health denial of a variance for Lot 3 and the Orders of

Conditions issued for the 15-lot and 21-lot

subdivision. The statute of limitations bars consideration of the

statements made independent of these projects by John

Rockwell. Zora still cannot establish bad or improper motive

or means based on these remaining decisions, and therefore,

fails to establish intentional interference with contractual

relations or intentional interference with advantageous relations.

The Town asserts that Commission member, John Rockwell

is entitled to qualified immunity from the civil rights actions

brought by Zora. The defense of qualified immunity from suit

under G.L. c. 12, § 111, is available to public officials unless

the official violated “a right under Federal or State constitutional

or statutory law that was ‘clearly established’ at the time.” Duarte

v. Healy, 405 Mass. 43, 47 (1989).

The actions and statements attributed to Rockwell are the

following: 1.) a statement implying Zora falsified percolation

test data; 2.) a call placed to the DEP alleging Zora was altering

a B.V.W. and working in a stream; 3.) a statement to a neighbor

of Zora that

Lot A had potential building problems; and 4.) statements

that the Commission would appeal if members were not

permitted access for the purposes of the Notice of Intent filed

for the 15 lot subdivision. Cumulatively, this behavior does not

Suggest “truly horrendous” conduct as required for violations

of due process. Rockwell’s conduct would not suggest a

violation of Zora’s clearly established constitutional rights since

a reasonable person in Rockwell’s situation would not believe

that his conduct violated a constitutional right.

Zora contends that Commonwealth v. John G. Grant, Inc.

specifically prohibits unlimited access to property by a

conservation commission as a violation of the Fourth

Amendment and Article 14. While Grant does forbid warrantless

searches for general violations of law, Grant does not clearly

establish a right by property owners to be completely free from

entrance by the conservation commission. Rockwell as a

conservation commission member still retained duties as

outlined under the Wetlands Protection Act, including entering

upon land for the purposes of addressing Zora s Notices of

Intent. Therefore, Rockwell is immune from suit for the civil

rights violations claimed by Zora under the doctrine of qualified

immunity.

F. _Zora’s Eminent Domain Clai

General Laws c. 79, § 10 provides the procedures to be

followed by a property owner in claiming damages for the taking

of property. As decided above, Zora has not established a taking

without just compensation under the Fifth Amendment and

therefore cannot recover damages under G.L. c. 79.

G. Declaratory Judgment

Zora seeks declaratory judgment under G.L. 23 1A, on the

following issues:

[1. W]hether the Conservation Commission has an absolute

right to go onto the plaintiffs property without the plaintiffs

being present and without their knowledge; and without

showing any just cause or reasonable reason to be on the

property. ..

[2. W]hether the plaintiffs may object to any member sitting

in judgment on a matter if the member has shown a lack of

impartiality...

[3. W]hether the Conservation Commission can insist that

the plaintiffs prepare plans for the use of the Conservation

Commission without the Conservation Commission

compensating the plaintiffs..

[and]

[4. W]hen and at what times the Conservation Commission

can conduct its on-site inspections.

Declaratory judgment is appropriate for the resolution of real,

not hypothetical or moot controversies. Therefore, an actual

controversy must be specifically set forth in the pleadings,

pursuant to G.L. c. 231A. Mass. Assoc. of Ind. Ins. Agents and

Brokers v. Comm’r of Ins., 373 Mass. 290, 292 (1977); Quincy

City Hospital v. Rate Setting Comm'n, 406 Mass. 431, 439

(1990). Acourt action cannot concern hypothetical controversies,

but rather must involve an issue which when decided will have

an “immediate impact” on the litigants. Mass. Assoc. of Ind.

Ins. Agents and Brokers v. Comm’r of Ins., supra at 292.

The questions presented for declaratory judgment by Zora

are hypothetical and not of current concern. This is not a case

where “unless the matter is adjusted such antagonistic claims

will almost immediately and inevitably lead to litigation.”

(emphasis added). Bunker Hill Distributing Inc., v. Distri

torne the Suffi istrict, 376 Mass. 142, 144 (1978),

quoting School Comm. of Cambridge v. Superintendent of

Schools of Cambridge, 320 Mass. 516, 518 (1946). Whether

the Commission has an absolute right to enter Zora’s property

without their knowledge and when and at what times on-site

inspections can occur involves facts which arose in 1989, and

resolution of these issues is purely hypothetical at this point in

time. Similarly, questions regarding the impartiality of

Commission members and requests for additional plans relating

to consideration of Notices of Intent are not matters of current

concern.

Zora presents questions too stale for declaratory judgment

purposes. Cleary v. Comm’r of Public Works, 21 Mass. App.

Ct. 140, 150 (1 985) (questions presented concerning delay by

Department of Public Welfare in processing claims for food

stamps occurring number of years earlier were too stale for

declaratory judgment.) Since resolution of Zora’s questions will

not immediately impact Zora’s rights with respect to the

Property, declaratory judgment is inappropriate. Mass.

Assoc. of md. Ins. Agents and Brokers, Inc. v. Comm’r of Ins.,

373 Mass. 290, 292 (1977).

H. Conclusion

Zora fails to establish a claim that the Town took the Property

without just compensation through delay in administrative

proceedings. In the absence of a taking claim, Zora cannot

receive compensation from the Town under G.L. c. 79.

Furthermore, Zora fails in establishing any violation of Zora’s

civil rights under the United States Constitution or

Massachusetts Constitution and, therefore, cannot succeed in

an action under G.L. c. 12, § 111. Rockwell is entitled to qualified

immunity for the civil rights actions brought by Zora. Zora lacks

any basis for claiming intentional interference with contractual

or advantageous relations. Lastly, the hypothetical questions

presented by Zora are inappropriate in this action for declaratory

judgment. For the foregoing reasons, summary judgment for

defendant is allowed on all counts of plaintiffs Second Amended

Complaint.

ORDER

For the foregoing reasons, it is hereby ORDERED that

summary judgment enter for defendants, Town of Marion and

John Rockwell.

/s/ Gerald F. O’Neill, Jr.

GERALD F. O’NEILL, JR.

Justice of the Superior Court

DATED: November 26, 1996

APPENDIX B

Commonwealth of Massachusetts

Appeals Court for the Commonwealth

At Boston

In the case no. 97-9-324

ZORA ENTERPRISES INC. & others

VS.

TOWN OF MARION & another.

Pending in the Superior

Court for the County of Plymouth

Ordered, that the following entry be made in the docket:

Judgement affirmed

by the Court,

/s/Ashley Ahearn

ASHLEY AHEARN

Clerk

Date: March 30, 1999

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

97-P-324

ZORA ENTERPRISES, INC. & other!

VS.

TOWN OF MARION & another’?

MEMORANDUM AND ORDER PURSUANT

TO RULE 1:28

The plaintiffs appeal from the entry of summary judgment in

the defendants’ favor on the plaintiffs’ claims that the defendants

used the Department of Environmental Protection’s

administrative appeals process to delay the development of the

plaintiffs’ subdivision lots. Primarily for the reason that the

plaintiffs failed to show the town was responsible for delays of

the DEP, a summary judgment by the defendant was rightly

allowed.

We touch briefly on certain points the plaintiffs raise on

appeal which were not specifically addressed by the Superior

Court judge.

1. The materials upon which the judge relied were

appropriate sources under Mass.R.Civ.P. 56(c), 365 Mass. 824

(1974). See, e.g., White v. Peabody Constr. Co., 386 Mass.

121, 126-127 (1982); Correllas v. Viveiros, 410 Mass. 314, 317

(1991); Brookline v. Medical Area Serv. Corp., 8 Mass. App.

Ct. 243, 245 & n.4 (1979).

' Joseph P. Zora and Glenna M. Zora.

2 John Rockwell.

2. We do not view the judge’s statement that the plaintiffs must

exhaust their administrative remedies before bringing a

regulatory taking claim as cause for reversal, considering the

context in which the statement appears. Because the parties

were already in the midst of the administrative appeals process,

and because the plaintiffs’ claims did not come under the narrow

holding of Wilson v. Commonwealth, 413 Mass. 352, 355

(1992), we read the judge’s remarks as merely reiterating that

the plaintiffs must complete those proceedings before they could

prove that the town had pursued the administrative appeals in

bad faith. In the same vein, the judge’s observation that the

plaintiffs had failed to show that they had been deprived of all

economically beneficial use of their property was again made

in response to the plaintiffs’ reliance on Wilson v.

Commonwealth, supra, and would not preclude the plaintiffs

from attempting to prove their loss in the appropriate

proceeding.

3. The plaintiffs’ claims for intentional interference with

contract and advantageous relations were appropriately resolved

on summary judgment. The comments made by various

members of the Marion conservation commission regarding

problems with the plaintiffs’ development plans would not

support the inference that the defendants’ motives were

inconsistent with the town’s duty to ensure compliance with

wetlands regulations and to pursue its rights of appellate review.

See generally United Truck Leasing Corp. v. Geltman, 406

Mass. 811, 815-817 (1990); Duigarian v. Stone, 420 Mass.

843, 852 (1995); W. Oliver Tripp Co. v. American Hoechst

Corp., 34 Mass. App. Ct. 744, 752 (1993). The plaintiffs’

remaining arguments were adequately dealt with by the Superior

Court judge. For essentially the reasons set forth in the judge’s

comprehensive memorandum of decision and order on the

defendants’ motion for summary judgment, dated November

26, 1996, we affirm the judgment.

Judgment affirmed.

By the Court

(Kass, Beck & Spina, JJ.),

/s/ Ashley Ahearn

ASHLEY AHEARN

Clerk

Entered: March 30, 1999

APPENDEX C

Supreme Judicial Court for the

Commonwealth of Massachusetts

1412 Courthouse, Boston, Massachusetts 02108

(617) 557-1020

Donald J. Fleming, Esquire

Fleming & Ishihara

86 Church Street

P.O. Box 396

Mattapoisett, MA 02739

RE: Docket No. FAR-10560

ZORA ENTERPRISES, INC. & others

TOWN OF MARION & another

NOTICE OF DENIAL OF F.A.R. APPLICATION

Please take note that the above-captioned Application

for Further Appellate Review has been considered by the

Court and is denied.

Jean M. Kennett, Clerk

Dated: May 28, 1999

To: Donald J. Fleming, Esquire

Samuel Perkins, Esquire

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.