Petition for Writ of Certiorari — Grasso v. City of New Bedford

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0211.28 JAN 2 8 2003

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Supreme Court of the Anited States

VINCENT GRASSO, ETAL.,

Petitioners,

CITY OF NEW BEDFORD, ETAL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE MASSACHUSETTS SUPREME JUDICIAL COURT

PETITION FOR WRIT OF CERTIORARI

EDGAR L. KELLEY

Counsel of Record

78 Turnpike St.

Ipswich, MA 01938

(978) 356-7991

Dated: January 28, 2003

PHILIP H. CAHALIN

P.O. Box 209

11 Massasoit Avenue

Hull, MA 02045-2517

(781) 925-3280

BATEMAN & SLADE, INC.

BOSTON, MASSACHUSETTS

QUESTIONS PRESENTED

I. Whether government actors can be held

jointly liable for using and participating in diverse

regulatory proceedings to keep the value of land down

while the government considers whether to take the land

for a secondary wastewater treatment plant.

Il. Whether it was error under Arlington

Heights v. Metropolitan Housing Corp., 429 U.S. 252

(1977) on cross motions for summary judgment to fail to

consider direct and substantial evidence of the intent of

responsible City officials to deny an application to

change zoning because it would increase the value of

land and otherwise facilitate the owner’s development

and use of same when the City was considering whether

to take the land for a secondary wastewater treatment

plant.

Il. Whether the state statute of limitations for

the assertion of the Fifth Amendment right to

compensation for a taking by regulatory action can be

construed in a manner prohibited by United States v.

Dickinson, 331 U.S. 745 (1947) to force landowners to

engage in the piecemeal and premature litigation of

potentially unripe claims and to otherwise unfairly put

the burden on the landowner to determine the precise

moment a taking has occurred during regulatory

processes when the taking has been effected by a

continuing series of decisions and actions taken by

diverse government actors in different ongoing

administrative and other proceedings.

PARTIES TO THE PROCEEDING

The following individuals and entities are parties

to the proceeding in the court below:

Vincent Grasso, Robert P. Regan, Palmers Cove

Lirnited Partnership, and Old New Bedford, Plaintiffs-

Petitioners;

City of New Bedford, Massachusetts Executive

Office of Environmental Affairs; Defendants-

Respondents.

CORPORATE DISCLOSURE STATEMENT

There is no parent or publicly held company

owning 10% or more of the Old New Bedford

Corporation’s stock.

ili

TABLE OF CONTENTS

QUESTIONS PRESENTED ............ssccsscccsosssssssssssscscees i

PARTIES TO THE PROCEEDING. ............ccccceceeeeeeecees li

CORPORATE DISCLOSURE STATEMENT ................ li

CPU IE CFRUI PRET UNOS 65500 sc0ccccsesssevcsnssvsvssverccesevees v

gaa cal chase licddcheiciiiaievasbaarevoaaees 1

: I dia ai cid ca.sab sebaeesinasaoaavaenivouseesees 1

CONSTITUTION PROVISIONS AND STATUTES

aint tukth Sadiicsnsicctiaccakeaseevesdeexsenes 1

STATEMENT OF THE CASE ........ccccscscsssssosssscsssosoesss 2

aisha ie dincucconduecacestesavasensees 3

2. Claims against the City .0.............cccccccsseeeess 4

3. Claims against the EOEA .............c..cceceeeeees 6

REASONS FOR GRANTING THE WRIT ..............006+. 10

I. PERVASIVENESS OF LACK OF

APPREHENSION OF THE RIGHTS

GUARANTEED BY THE FIFTH

AND FOURTEENTH AMENDMENT

AMONG STATE AND LOCAL ;

OFFICIALS IN MASSACHUSETTS. ..... 11

II. THERE IS NOTHING IN LAW OR

LOGIC WHICH WOULD PREVENT

GOVERNMENT ACTORS TO BE

JOINTLY AND _ VICARIOUSLY

LIABLE FOR JUST COMPENSA-

TION UNDER’ THE _ FIFTH

AMENDMENT WHEN THEY HAVE

ACTED IN CONCERT TO EFFECT

THE TAKING OF PROPERTY. ............. 16

III. IT WAS INCONSISTENT WITH

THIS COURT'S HOLDING IN

ARLINGTON HEIGHTS V. METRO-

POLITAN HOUSING CORP., 429

U.S. 252 (1977) FOR THE TRIAL

COURT AND THE MASSACHU-

SETTS APPEALS COURT TO FAIL

TO CONSIDER THE DIRECT AND

SUBSTANTIAL EVIDENCE THAT

THE CITY COUNCILORS DENIED

GRASSO’S APPLICATION TO

REZONE HIS PROPERTY BE-

CAUSE THEY PERCEIVED THAT

THE CHANGE WOULD INCREASE

‘THE MARKET VALUE OF HIS

LAND AND OTHER-WISE FACILI-

TATE HIS DEVELOPMENT OF —.

AEE. nccvestensesdevidensscoinennsucstoscsecineeses 18

IV. THE MASSACHUSETTS APPEALS

COURT HAS CONSTRUED THE

STATUTE OF LIMITATIONS

GOVERNING THE ASSERTION OF

FIFTH AMENDMENT PROPERTY

RIGHTS IN MASSACHUSETTS

STATE COURT IN A MANNER

PROHIBITED BY UNITED STATES

V. DICKINSON, 331 U.S. 745

(1947) TO FORCE LANDOWNERS

TO ENGAGE IN THE PIECEMEAL

AND PREMATURE LITIGATION OF

POTENTIALLY UNRIPE CLAIMS

AND TO OTHERWISE UNFAIRLY

PUT THE BURDEN ON THE

LANDOWNER TO DETERMINE

THE PRECISE MOMENT A

PR nn en Re MMR

TAKING HAS OCCURRED DUR-

ING REGULATORY PROCESSES

WHEN THE TAKING HAS BEEN

EFFECTED BY A CONTINUING

SERIES OF DECISIONS AND

ACTIONS TAKEN BY DIVERSE

GOVERNMENT ACTORS IN DIF-

FERENT ONGOING ADMINISTRA-

TIVE AND OTHER PROCEED-

POU” citisvnrsscnacuudanioneabucdecnskemnisedatabes 21

FuPNEIDT. n.ciccuensuitieasbieasansvenendaclobeiaumeecamuians 23

SEINE bnkctectiteserctebabitpeldieians follows Conclusion

TABLE OF AUTHORITIES

CASES:

Agins v. Tiburon,

DEF We ee CODD sedetsicsccstncescdensptncbekasieies 11

Archer Gardens, Ltd. v. Brooklyn Ctr. Dev. Corp.,

SOB FU. GOD CGT) cccesvccsvvessiscncccceeesecees 16

Arlington Heights v. Metropolitan Housing Corp.,

GAO Ui Mie Be CRUE ED vincsnsrviceervstvenens i, 10, 18, 19

Grasso, et. al. v. City of New Bedford, et. al.

95 Mass. App. Ct. 1116 (2002) .............. ee. 1

Hamilton v. Conservation Commn. Of Orleans,

12 Mass. App. Ct. 359 (1981) .................00000 17

Lugar v. Edmondson Oil Co., Inc.,

457 U.S. 922, 102 S.Ct. 2744 (1982) ........... 16

Mahon v. Pennsylvania,

es Se CIEE bavessctatocsaihsenetesaaienes 11,18

McKay v. U.S.,

199 F.3d 1376 (Fed.Cir. 1999) ..................065 17

Municipal Light Co. of Ashburnham v.

Commonwealth, 34 Mass. App. Ct. 162

(RUPEE ‘Kcingnevchedncedinabebetandedlcssekadenntuksbeneneebeteees 17

Nollan v. California Coastal Comm.,

QD Ta. Ge GED wenescsacviccseseneccssiinavetarnsens 11

San Diego Gas & Electric Co. v. San Diego,

GGG 4. RE CRO E cimitiniemriirensseatanes 21

United States v. Dickinson,

eR We FO CAWOED seiecrconsesscecsosses i, 10, 21, 22

Wagenmann v. Adams,

SSD FG TSG CRE Gar. BD cctccniccievssccesccsess 16

CONSTITUTIONAL PROVISIONS, CODES AND STATUTES:

United States Constitution

Fifth Amendment ................... 1. 10. 23, 3 37

Fourteenth Amendment ..................565 A, 3 S8

United States Code

TE U.OS. 6 IOI siviccicinctiddemoiaeones 1

Massachusetts General Laws

PETITION FOR A WRIT OF CERTIORARI

Petitioners (“Grasso”; also referred to as “ONBW”

by the Massachusetts Appeals Court) respectfully prays

that this Court issue a writ of certiorari to review the

judgment of the Massachusetts Appeals Court which the

Massachusetts Supreme Judicial Court has declined to

review.

OPINION BELOW

Grasso, et. al. v. City of New Bedford, et. al., 55

Mass. App. Ct. 1116 (2002).

JURISDICTION

The Court of Appeals of Massachusetts Order was

entered on September 12, 2002. (Pet. App. 21a).

Grasso’s timely Application for Further Appellate Review

to the Supreme Judicial Court was denied on October

30, 2002. (Pet. App. la). This Court has jurisdiction

under 28 U.S.C. § 1257{(a).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Fifth Amendment provides in relevant part:

“No person shall be . . . deprived of life, liberty, or

property, without due process of law; nor shall private

property be taken for public use, without just

compensation.” U.S. Const. amend. V.

The Fourteenth Amendment provides in relevant

part: “No State shall... deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.” U.S. Const. amend. XIV.

M.G.L. c. 79, § 10 provides in relevant part:

“When the real estate of any person has been taken for

the public use .. . but such taking. . . was not effected

by or in accordance with a formal vote or order of the

board of officers of a body politic or corporate duly

authorized by law, . . . the damages therefor may be

recovered under this chapter. ... In case of a specific

taking... or other act causing destruction or damage or

depriving the owner of the use of his property

permanently or for a definite period of time the damages

shall be assessed as of the date of such taking... or

other act and the right thereto shall vest on such date

and a petition for an award of damages therefor under

this section -may be filed within one year thereafter;

otherwise damages shall be assessed with respect to any

parcel of property as of the date when such property was

first injuriously affected, the right thereto shall vest upon

the completion of the public improvement which caused

the injury, and a petition for an award of damages

therefor under this section may be filed within one year

after such completion.” M.G.L. c. 79, § 10.

STATEMENT OF THE CASE

This case involves the prolonged, concerted, and

deliberate efforts of duly elected officials of the City of

New Bedford (“City”) and various Massachusetts state

actors, including officials of the Massachusetts Executive

Office of Environmental Affairs (“EOEA”) and its

departments among others, to delay and prevent Grasso

from developing his property while the City considered

whether to take the property for a secondary wastewater

treatment plant.

EE enrann nen!

1. Background

Grasso was the owner of land! on and in the

harbor of the City. (Pet. App. 23a). The City and the

Commonwealth of Massachusetts entered into a consent

decree in which the City agreed to build a secondary __.

wastewater treatment plant. (Pet. App. 6a and 23a). As

part of the consent decree, the City undertook

engineering studies to determine the best location for the

proposed plant, all of which were subject to the review

and approval of the Commonwealth. (Pet. App. 6a).

Grasso’s land was one of the principle sites under

consideration by the City for the location of the plant;

the other being the land adjacent to the existing -

treatment plant in the “Fort Rodman” area of the City.

(Pet. App. 23a-24a). Under the Federal Clean Waters

Act, federal funds were available for the construction of

the plant, but the cost of acquiring the land for the plant

was to be borne entirely by the City. (Pet. App. 23a).

There was considerable controversy over the siting of the

secondary wastewater treatment plant which lasted from

February 2, 1987 until “long after the foreclosure” sale of

Grasso’s property on August 28, 1991. (Pet. App. 23a

and 33a).

“The plaintiffs’ action alleges that the concerted

actions of the city and the EOEA with respect to the

parcel constituted a ‘taking’ in violation of the Fifth and

Fourteenth Amendments of the United States -

Constitution... [T]he plaintiffs contend that the city

and EOEA effected a ‘regulatory taking’ by ‘persistently

denying and conditioning permits’ and refusing to allow

‘changes in land-use regulations.” (Pet. App. 33a).

————t-

! Grasso’s land was locally known as “Standard-Times Field”.

(Pet. App. 23a).

2. Claims against the City

The trial court entered summary judgment

against Grasso on his claims against the City.

affirming, the Massachusetts Appeals Court found:

The acts challenged by the plaintiffs may

be divided intv two categories. The first

comprises those acts through which, the

plaintiffs argue, the city induced the

Commonwealth (the EOEA, the

Legislature, and the Governor) to make

certain decisions adversely affecting

ONBW’s parcel. Those acts include

inducing the EOEA to impose an unduly

burdensome scope on the EIR for the

marina project; inducing the EOEA to

condition ONBW’s State and Federal

permits for the marina project on the

rezoning of the parcel as well as on the de-

designation of the site as a port area and

on the change in the harbor line; and

inducing the Governor to condition the

harbor line change on the parcel’s not

being chosen as a site for the city’s

treatment plant. The second category

comprises those actions for which the city

was directly responsible. This category

includes only the city’s denial of ONBW’s

position to rezone the parcel from

industrial B to mixed-use business.

(Pet. App. 36a-37a).

With respect to the first category of claims above,

the Appeals Court ruled as follows:

The motion judge recognized that in order

to hold the city responsible for those

decisions resting in the control of the

En ee ee

EOEA, the DEP, the Legislature, or the

Governor, the plaintiffs needed to prove

that those decisions were not only affected

by the city’s influence, but also that the

city could be held liable in a takings action

on those grounds. Although there is

certainly enough evidence to suggest that

the city advocated for the steps taken by

the EOEA, the Legislature, and the

Governor, the city cannot be held liable in

a takings action for publicly urging the

Commonwealth’s agencies and officials to

pursue a particular course of action.

(Pet. App. 37a).

With respect to the second category the Appeals

Court ruled;

The plaintiffs contend that the city’s

refusal to rezone the parcel amounted toa

taking because it failed substantially to

advance a legitimate land use interest. The

plaintiffs do not argue that the current

zoning classification itself fails to advance

a legitimate interest. Rather, they argue

that the city’s application of the zoning

laws in this instance did not substantially

advance any interests tied to zoning. The

plaintiffs assert that the city denied the

petition because it feared that rezoning the

parcel would increase the value of the

property and, thus, increase the cost to the

city of appropriating the land in the future

if the parcel was chosen as the site for the

wastewater treatment facility.

(Pet. App. 40a).

Ignoring the substantial direct evidence in the

form of statements made by the City Councilors to

Grasso as well as publicly before, during, and after the

hearing on Grasso’s application as well as other actions

and statements made by these same Councilors in other

contexts, including his first application, and the

considerable public pressure that these Councilors were

under, the Massachusetts Appeals Court concluded: “We

are uncertain, however, of the precise purpose for the

denial of the plaintiffs’ petition because the city did not

record its reasons for doing so... . The summary

judgment record contains no insight into the reasoning

of the city council ordinance committee. .

Accordingly, on the summary judgment record, the

plaintiffs have not shown that they will be able to prove

that the denial of their petition did not substantially

advance a legitimate public interest. (Pet. App. 40a-41a).

3. Claims against the EOEA

Prior to granting summary judgment for the City,

the trial court dismissed Grasso’s claims against the

EOEA on its second motion for judgment on the

pleadings. The issue of the statute of limitations was

raised by the EOEA “below”, but was not addressed by

the motion judge in his decision. (Pet. App. 46a, n.16).?

Before addressing the statute of limitations, however,

the Massachusetts Appeals Court first made this

observation regarding the ripeness of Grasso’s claims:

Although the motion judge reached the

merits of the plaintiffs’ arguments below,

she also noted that some of those

arguments were not ripe because the

plaintiffs failed to exhaust administrative

2 Both the City and the EOEA brought motions to dismiss

on the grounds of the statute of limitations which motions were

denied, the denial of which was not appealed by either. (Pet. App.

3a-5Sa).

remedies. .. The plaintiffs no longer own

the parcel and no longer seek to develop it

at all. Wilson v. Commonwealth, 31 Mass.

App. Ct. at 766. We are confident that the

governmental regulations are sufficiently

well defined for us to determine whether

any reached the magnitude of a

compensable taking. Accordingly, we

decline to dismiss any of the plaintiffs’

claims on this basis.

(Pet. App. 36a, n.10).

Despite its expressed concern over the ripeness of

Grasso’s claims, which it resolves in part because Grasso

“no longer own{s] the parcel and no longer seeks to

develop it at all”, the Massachusetts Appeals Court

declined to consider Grasso’s loss of his land as relevant

to its consideration of the statute of limitations for

bringing his claims. The court stated the following:

[T]he operative date for calculating the

statute of limitations is the date of the

EOEA’s action preventing development of

the property. The EOEA’s actions, however,

were ongoing in nature, and it is not

apparent in looking to the pleadings

whether any singular act, in and of itself,

rose to the level of a taking. “The statute Be

requires a definite and distinct act as

beginning the period in which a petition for

damages may be filed. The Legislature did

not intend to put the burden upon the

landowner to determine when in the

partial performance of a piece of work the

period for bringing a petition would start to -

run against him.” United States Gypsum

Co. uv. Mystic River Bridge Authy., 329

Mass. 130, 142 (1952), citing United States

v. Dickinson, 331 U.S. 745 (1947). The

critical point occurs when the “landowner

has actually parted with his property or its

possession or some interest therein.”

United States. Gypsum Co. v. Mystic River

Bridge Authy.,-supra at 141.

The plaintiffs contend that the

relevant moment was the date of

foreclosure on the property. ... The date

of the foreclosure is not related to the

alleged taking. Foreclosure results from a

breakdown in the relationship between

mortgagor and mortgagee. It marks the

moment when the plaintiffs ran out of

money, but does not shed light on when a

regulatory taking may have occurred... .

For purposes of eminent domain, the

significant event is the taking of the

plaintiffs’ property for a public purpose. In

a regulatory takings action, the injury is

defined by the regulatory action and its

impact on the landowner’s property

interests.

Although the ffirst amended

complaint is barren of any dates or

references to specific regulatory actions

taken by the EOEAS, the relevant facts

3 At the time the complaint against the EOEA was dismissed

there was “only a single allegation that can be credited to the EOEA.

The allegation states that:

subject to the screening studies and so long as it

was designated the alternate site for the treatment

plant, the plaintiffs were not allowed by the

defendants to develop the property in a manner

incompatible with its potential use as a site for the

waste water treatment plant.”

(Pet. App. 46a, n.15). At that time there was pending a Motion to

Amend which provided substantially greater detail regarding

were part of the public arena and are

undisputed. Indeed, in their reply brief, the

plaintiffs cite to certain actions taken by

the EOEA that wouid serve to evidence

injurious regulations for the purposes of

establishing the starting point for a statue

of limitations analysis. Even assuming that

any of these events constituted a taking,

none occurred within one year of the filing

of the plaintiffs’ complaint. Even taking a

more generous approach and looking to

the latest action taken by the EOEA

regarding the plaintiffs’ property does not

help the plaintiffs. The latest possible

action taken by the EOEA occurred in

June, 1990, when the EOEA refused to de-

designate the property as an alternative

site for the treatment plant. The plaintiffs’

complaint was not filed until July 8, 1992.

Accordingly, even taking a generous

approach, the plaintiffs’ action is barred by

the statute of limitations.

(Pet. App. 47a-49a). ~

Grasso’s claims. This motion was subsequently allowed “insofar as it

amends claims against the City of New Bedford and denied insofar as

it seeks to revive claims against Executive Office of Environmental

Affairs.” (Pet. App. 4a). The Appeals Court construed this to mean

“The judge allowed the plaintiffs to amend those claims applying to

the city but denied all amendments applicable to claims against the

EOEA.” (Pet. App. 46a, n.14).

REASONS FOR GRANTING THE WRIT

This case presents the substantial Fifth

Amendment question of whether diverse government

actors can be jointly liable to pay “just compensation”

under the Fifth Amendment when they’ve acted in a

coordinated and concerted manner through their

participation in various regulatory and other proceedings

to prevent and delay a landowner from obtaining permits

or otherwise improving his land for the express purpose

of keeping him from enhancing the market value of the

land while one of the government actors is considering

whether to take the land for a secondary wastewater

treatment plant. This is an issue which has not been,

but should be, settled by this Court.

This case also presents substantial Fifth and

Fourteenth Amendment questions which the state court

has decided in a manner which conflicts. with this

Court’s decisions; to wit, 1) failure to consider evidence

deemed relevant and material in Arlington Heights v.

Metropolitan Housing Corp., 429 U.S. 252 (1977) to

determine the purpose and intent of a local legislative

body for denying an application to change zoning; and 2)

construing a statute of limitations for Fifth Amendment

“just compensation” claims in a manner prohibited by

United States v. Dickinson, 331 U.S. 745 (1947) by forcing

landowners to engage in the piecemeal and premature

litigation of potentially unripe claims and to otherwise

unfairly put the burden on the landowner to determine

the precise moment a taking has occurred during a

regulatory process when the taking has been effected by

a continuing series of decisions and actions taken by

diverse government actors in different ongoing

administrative and other proceedings.

Furthermore, this case evidences a pervasive and

profound misapprehension among government officials

throughout the Commonwealth of Massachusetts of the

most basic rights guaranteed by the Fifth and

Fourteenth Amendments which the _ state court

heretofore has declined to redress.

I. PERVASIVENESS OF LACK OF APPREHENSION

OF THE RIGHTS GUARANTEED BY THE FIFTH

AND FOURTEENTH AMENDMENT AMONG

STATE AND LOCAL OFFICIALS IN MASSACHU-

SETTS.

It is the cornerstone of the protection afforded by

the Fifth and Fourteenth Amendments that the

government can not purposely use its police power to

regulate the use of property to advance the government’s

proprietary interests. Mahon v. Pennsylvania, 260 U.S.

393, 415 (1922). This is at the heart of the requirement

that land use regulation must “substantially advance]

legitimate state interests”. Nollan v. California Coastal

Comm., 483 U.S. 825, 834 (1987), quoting from Agins v.

Tiburon, 447 U.S. 255, 260 (1980). It is obviously not a

legitimate state interest to avoid the compensation

requirement of the Fifth Amendment. Yet the repeated

and continuous actions by the numerous state and local

officials in this case demonstrates that government

officials in Massachusetts are completely oblivious to

this most basic right afforded by the Fifth and

Fourteenth Amendments.

The Commonwealth’s Governor‘ obviously wasn’t

aware of this basic principle. Despite the fact that

Grasso had established that he owned the land in the

harbor, (Pet. App. 8a), the Department of Environmental

Engineering (“DEP”)5 , insisted that he would have to

obtain a change in the harbor line by special act of the

state legislature in order to build his marina. The

special act changing the line was approved by the state

legislature; however, “jo]n August 8, 1989, Governor

4 Michael Dukakis.

5A department within the EOEA. M.G.L. c. 21A, § 7.

Dukakis recommended that the legislation be amended

as follows: This act shall take effect upon a final written

determination by the Department of Environmental

Protection that the upgraded wastewater treatment

facilities for the city of New Bedford will be sited at a

location other than the Standard Times Field site.’

The Governor wrote that he was recommending

such language for the following reason:

[M]y concern has to do with the upland

parcels that the bill affects. The upland

parcels of land, known as the Standard

Times Field, is the proposed akernative

site for the upgrading of New Bedford’s

sewage treatment facilities ... Should

these facilities be required to be located at

the Standard Times Field site, this

legislation as currently drafted could result

in a substantial increase in the cost to New

Bedford’s ratepayers and the Common-

wealth’s taxpayers.’

The legislation was amended in the way that the

Governor proposed. (Pet. App. 30a-31a). And the officials

in the governor’s various administrative offices were as

equally unaware of this basic principle. While Grasso’s

various applications were pending before the EOFA, the

DEP and the Massachusetts Coastal Zone Management

(“MCZM”)6, the Director of MCZM wrote a memo to the

Secretary of the EOEA which stated in part: “My opinion

is that we should be cautious in the state’s support for

any private development projects in New Bedford until

we have a better sense of where the two treatment

facilities will be located. My main interest is for

protecting the ratepayers of the city and the taxpayers of

the Commonwealth.” (Pet. App. 31a). And an internal

DEP memo dated August 30, 1989, stated that it ‘would

6 Also a department within the EOFA. M.G.L. c. 214A, § 4A.

ee ee ee ee eS ee ey ee ee ee

be desirable to wait as long as possible before making

the determination mentioned in the amendment [the

harborline bill]. It is possible that a final decision about

the siting won’t be made until the spring of next year.’

(Pet. App. 3la).”

The ignorance regarding the basic requirements of

the Fourteenth and Fifth Amendments demonstrated by

the local City officials is even more compelling. In New

Bedford, it is the eleven member City Council which

decides applications to change zoning. (Pet. App. 7a).

When the City Councillors requested Governor Dukakis

to delay signing the harbor line bill, at least four of them

publicly announted that they were opposed to the harbor

line legislation because of its potential to increase the

value of the property.®

7 There is an internal memo in April, 1991 from MCZM to

’ the Secretary of the EOEA which explained that the DEP would not

“issue the statement” required by the harborline legislation “until all

of the acquisition problems are settled for the Fort Rodman site,”

Pet. App. 1la, which problems, as previously stated, “continued long

after the foreclosure” on Grasso’s property. (Pet. App. 33a).

8 City Councilor Ralph Saulnier publicly announced:

If this bill passes, will the property become more

valuable? Does that rise in value then make it

impossible for us to afford to take the land if we

need it? . . . I think it would be foolish to allow this

bill to go any further until we have more

information. . . lf that plant has to go at the

Standard-Times Field, are we going to force the

taxpayers of this city to pay more for this property

than they should?

(Pet. App. 65a); City Councilor Daniel Hayes publicly stated:

“Certainly this bill will enhance the (value of) the Standard-Times

Field. We owe it to every concerned party, the mayor, the City

Council, to get the best information we can about this legislation,” Jd;

City Councilor Nelson Macedo publicly announced that “any site

being considered as a back-up site [for the secondary wastewater

treatment plant] shouldn’t be touched,” Jd; and City Councilor

Dorothy Kruger publicly stated (referring to Grasso’s first application

Prior the hearing on Grasso’s first application to

change the zoning, City Councilor Daniel Hayes stated: “I

have no problem with the entire parcel, in fact I would

like to see it go ahead, but I think we have to wait for the

site of the plant, the people in this City will have to pay

forever, (a sewer user tax), wherever the plant goes will

certainly be hardship cost.” (Pet. App. 61a). In referring

to this application, City Planner Alfred J. Lima wrote in

part:

An identical petition to rezone this

site to a Mixed-Use Business District was

heard by the Planning Board on February

17, 1988. At that time the Board referred ‘s

the petition to the City Council without a

recommendation because the selection of a

site for a secondary sewage treatment

plant had not yet been made. It was then

feared that rezoning the. site would

increase its value in the event that the city

would have to acquire the property for the

plant....

The development of Standard-Times

Field has been held hostage by the

prolonged study that led to the selection of

Fort Rodman as the site for the treatment

plant.

(Pet. App. 7a-8a). This understanding of the course of

events on Grasso’s first application was publicly affirmed

by City Councilor Ralph Saulnier and was consistent

with the statements made directly to Grasso by the City

Councilors themselves prior to the hearing, who all

indicated to him that it was “premature to consider a

to the City Council to change the zoning of his property) that the City

Council delayed the request to rezone the property “after it was

decided that it might affect site selection for the proposed sewage

treatment plant” and “[t]his particular Senate bill would only add

more to our [sic]”. (Pet. App. 9a).

zone change for the site until the location of the

treatment plant was resolved.” Id. It was also consistent

with the statements made to Grasso by the City’s mayor,

requesting him to delay his development plans while the

City considered whether to take his property.? (Pet. App.

92a).

Prior to the hearing on Grasso’s_ second

application to change the land’s zoning, City Councilor

Ralph Saulnier publicly stated that he “vehemently

opposes any zoning change at the Standard-Times field

because it would increase the value of the property” and

stated that “the developers are merely trying to get all

the necessary permits so they can sell their land at a

higher profit.” Three days prior to the hearing, the City

Council voted that the City communicate to all local,

state, and federal authorities “that at this time the City

Council would not be supportive of any actions that

might minimize or eliminate the use of the Standard-

Times Field as a site for the secondary/primary sewage

treatment plant for the City of New Bedford.. Pet. App.

10a. At the hearing, Councilor Kruger, one of the few

Councillors to speak, stated “this City cannot afford to

rezone the Standard Times Field . . . it has been chosen

for people’s use and it is a well known fact that property

taken by eminent domain is done so at fair market value

. rezoning will only cause an increase in the value of

this property.” Jd. After the hearing seven City

Councilors indicated to the local newspaper that they

opposed the development of Standard Times Field

_ “because they want to build the city’s new sewage

treatment plant on the land.” Id.

9 The mayor subsequently became a proponent of Grasso’s

development of his land but only after he had decided that the

secondary wastewater treatment plant should be located at Fort

Rodman. (Pet. App. 29a, et. seq.). Prior to then, he too was publicly

opposed to Grasso’s development of his property because it would

increase its market value. (Pet. App. 24a). And he too, along with

members of his administration, also communicated this concern to

state officials considering Grasso’s state permits. (Pet. App. 54a).

Il. THERE IS NOTHING IN LAW OR LOGIC WHICH

WOULD PREVENT GOVERNMENT ACTORS TO

BE JOINTLY AND VICARIOUSLY LIABLE FOR

JUST COMPENSATION UNDER THE FIFTH

AMENDMENT WHEN THEY HAVE ACTED IN

CONCERT TO EFFECT THE TAKING OF

PROPERTY.

This Court has long recognized the principles of

joint and vicarious liability for violations of rights

guaranteed by the Constitution. This is so even if one of

the actors is a private party.

[W]e have consistently held that a

private party’s joint participation with state

officials in the seizure of disputed property

is sufficient to characterize that party as a

‘state actor’ for purposes of the Fourteenth

Amendment. The rule in these cases is the

same as that articulated in Adickes v. S.H.

Kress and Company, 398 U.S. at 152, 90

S.Ct. at 1605-1606 (1970) in the context of

an equal protection deprivation.

Lugar v. Edmondson Oil Co., Inc. 457 U.S. 922, 941-942,

102 S.Ct. 2744, 2756 (1982) (citing to “line of cases,

beginning with Sniadach v. Family Finance Corp., 395

U.S. 337, 89 S.Ct. 1820 23 L.Ed.2d 349 (1869)”). See

Wagenmann v. Adams, 829 F.2d 196, 210 (1st Cir. 1987)

(private party held jointly liable with police for false

imprisonment and false arrest because he induced police

to make arrest for unconstitutional purpose). See also

Archer Gardens, Ltd. v. Brooklyn Ctr. Dev. Corp., 468

F.Supp. 609, 613 (1979) (private persons can be held

jointly liable with city for constitutional violations

through land-use regulations).

There is nothing in law or logic which prohibits

joint or vicarious liability of government actors for

violations of the “just compensation” clause of the Fifth

Amendment as opposed to other constitutional

provisions. At least one United States court of appeals

has found no difficulty with doing so. McKay v. U.S., 199

F.3d 1376, 1382-1383 (Fed.Cir. 1999) (U.S. government

can be liable for inverse condemnation caused by actions

taken by local county board if “it can be reasonably

inferred from the evidence that the [U.S.] Government’s

actions motivated” the board’s actions).

The Massachusetts law cited by the Appeals Court

does not stand for the proposition that there can not be

joint or vicarious liability among government actors for

compensation under the Fifth Amendment. Hamilton v.

Conservation Comman. of Orleans, 12 Mass. App. Ct. 359,

369 (1981); Municipal Light Co. of Ashburnham uv.

Commonwealth, 34 Mass. App. Ct. 162, 170 (1993). In

neither of those cases was there even a suggestion that

the government advocates were attempting to accomplish

an unconstitutional purpose through their advocacy; to

wit: to delay the development of private property that the

government advocate was considering purchasing. It is

the intent with which the government actors acted in

this case which implicates them in the unconstitutional

deprivation.

Ill. IT WAS INCONSISTENT WITH THIS COURT’S

HOLDING IN ARLINGTON HEIGHTS V.

METROPOLITAN HOUSING CORP., 429 U.S. 252

(1977) FOR THE TRIAL COURT AND THE

MASSACHUSETTS APPEALS COURT TO FAIL

TO CONSIDER THE DIRECT AND SUBSTAN-

TIAL EVIDENCE THAT THE CITY COUNCILORS

DENIED GRASSO’S APPLICATION TO REZONE

HIS PROPERTY BECAUSE THEY PERCEIVED

THAT THE CHANGE WOULD INCREASE THE

MARKET VALUE OF HIS LAND AND OTHER-

WISE FACILITATE HIS DEVELOPMENT OF

SAME.

The Appeals Court raised without deciding

“whether, for our purposes in analyzing the city’s

decision, ‘we may properly attribute to the city... . any

apparent reasonable ground for its action, at least if that

action is not contradicted by facts established on the

summary judgment record.” (App. 41a). However, in the

end, it simply concluded “The summary judgment record

contains no insight into the reasoning of the city council

ordinance committee .” Id.

When he applied for a change in zoning, Grasso

had a constitutional right “to be free of arbitrary or

irrational zoning actions.” Arlington Heights v.

Metropolitan Housing Corp., 429 U.S. 252, 263 (1977).

Clearly, a purpose to frustrate and hinder the private

development of property and to prevent an increase in

market value of same while the government is deciding

whether to take the property for a public purpose is

arbitrary and irrational. Mahon v. Pennsylvania, 260 U.S.

393, 415 (1922). When reflecting on the evidence which

may be considered when it is alleged that a decision to

refuse a change in zoning was motivated by

unconstitutional purposes, this Court has stated:

Determining whether [an unconstitutional

purpose] was a motivating factor demands

a __ sensitive inquiry into such

circumstantial and direct evidence of

intent as may be available. . . . The

historical background of the decision is

one evidentiary source, particularly if it

reveals a series of official actions taken for

[unconstitutional] purposes. See Lane v.

Wilson, supra; Griffin v. School Board, 377

U.S. 218 (1964); Davis v. Schnell, 81 F.

Supp. 872 (SD Ala.), affd per curiam, 336

U.S. 933 (1949); cf. Keyes v. School Dist.

No. 1, Denver Colo., supra, at 207. The

specific sequence of events leading up to

the challenged decision also may shed

some light on the decisionmaker’s

purposes. Reitman v. Mulkey, 387 U.S.

369, 373 376 (1967); Grosjean v. American

Press Co., 297 U.S. 233, 250 (1936). The

legislative or administrative history may be

highly relevant, especially where there are

contemporary statements by members of

the decisionmaking body, minutes of its

meetings, or reports. ... The foregoing

summary identifies, without purporting to

be exhaustive, subjects of proper inquiry in

determining whether [unconstitutional]

intent existed.

Arlington Heights, supra, 429 U.S. at 266-268.

In addition to the direct evidence of intent in the

Councilors’ contemporaneous statements, both publicly

and to Grasso, the summary judgment record of

stipulated facts also shows that the Councilors were

subject to considerable pressure from “highly active and

influential citizen groups” who did not want the

secondary wastewater treatment plant located at Fort

Rodman and thereiore were adamantly opposed to all of

Grasso’s efforts to develop his property. (Pet. App. 52a-

53a). At the Planning Board hearing on Grasso’s first

—

application, the President of the South End Civic

Association read into the minutes, on behalf of four

hundred residents, a letter opposing the rezoning which

argued that a rezoning was premature since the area

was under consideration as a site for the secondary

sewage treatment plant. The Association pointed out that

“premature zoning could cost the City much more to

acquire this land if it were selected as the sewage

treatment plant site.”!°

10 These groups were also very active in their efforts to

prevent Grasso from obtaining the state permits he sought. For

example, while the harbor line legislation was pending, the Save Fort

Rodman Committee wrote to Governor Dukakis asking him to defer

signing the legislation stating:

Fort Rodman and the land affected by [the

harborline bill], known as Standard-Times Field,

have been chosen by our Mayor as potential sites

for a secondary wastewater facility. We feel that

both properties should remain status quo, since the

sites are currently being considered, reviewed and

analyzed by federal and state agencies, and the final

decision for the plant has yet to be made. We feel,

however, that the owners of the Standard-Times

field through enactment of [the harborline bill], have

taken action to increase the value of their land. We

believe this would place a further burden on the

taxpayers of the city of New Bedford if the

Standard-Times field is chosen as the site and

eminent domain proceedings must be instituted.

(Pet. App. 66a).

And when the City’s mayor requested that the EOEA approve de-

designation of Grasso’s property from the port area regulations “the

Save Fort Rodman Committee wrote to the EOEA opposing the City’s

request to de-designate the Parcel from the port area, stating: “We

feel that this designation will increase the value of the land at the

Standard-Times Field if the City is required to take said land through

an eminent domain proceeding.” (Pet. App. 68a).

IV. THE MASSACHUSETTS APPEALS COURT HAS

CONSTRUED THE STATUTE OF LIMITATIONS

GOVERNING THE ASSERTION OF FIFTH

AMENDMENT PROPERTY RIGHTS IN

MASSACHUSETTS STATE COURT IN A

MANNER PROHIBITED BY UNITED STATES V.

DICKINSON, 331 U.S. 745 (1947) TO FORCE

LANDOWNERS TO ENGAGE IN THE PIECE-

MEAL AND PREMATURE LITIGATION OF

POTENTIALLY UNRIPE CLAIMS AND TO

OTHERWISE UNFAIRLY PUT THE BURDEN ON

THE LANDOWNER TO DETERMINE THE

PRECISE MOMENT A TAKING HAS OCCURRED

DURING REGULATORY PROCESSES WHEN

THE TAKING HAS BEEN EFFECTED BY A

CONTINUING SERIES OF DECISIONS AND

ACTIONS TAKEN BY DIVERSE GOVERNMENT

ACTORS IN DIFFERENT ONGOING ADMINIS-

TRATIVE AND OTHER PROCEEDINGS.

Massachusetts is required by the Fourteenth and

Fifth Amendments to ensure that a “landowner must be

able meaningfully to challenge a regulation that allegedly

effects a ‘taking,’ and recover just compensation if it does

so. He may not be forced to resort to piecemeal litigation

or otherwise unfair procedures in order to receive his

due.” San Diego Gas & Electric Co. v. San Diego, 450 U.S.

621, 660 (1981) (Brennan dissent) (citing United States v.

Dickinson, 331 U.S. at 749). However, the Appeals

Court’s construction of the state statute would have

required Grasso to have done just that.

Grasso was subjected to a continuing barrage of

decisions and actions by diverse local and state actors,

all intended to delay his development of his property. It

was the cumulative effect of this concerted effort on the

part of government actors which caused-him to lose his

financing and his property. (Pet. App. 11a). The Appeals

Court’s focus on actions taken by the EOEA alone to

determine when the statute began to run put on Grasso

“the onus of determining the decisive moment in the

process of acquisition by the [government] when the fact

of taking could no longer be in controversy.” United

States v. Dickinson, 331 U.S. 745, 748 (1947). As the

Massachusetts Appeals Court itself notes “The EOEA’s

actions, however, were ongoing in nature, and it is not

apparent in looking to the pleadings whether any

singular act, in and of itself, rose to the level of a

taking..” (Pet. App. 47a). If the Appeals Court can not

make this determination in hindsight, how was Grasso

expected to do so at the time? The Appeals Court’s

“more generous approach .. . looking to the latest action

taken by the EOEA regarding the plaintiff’s property,”

-Pet. App. 49a, is of no assistance either. In the myriad of

proceedings concerning his land, how was Grasso to

know which action taken by any of the government

actors involved would be the “last” action from which his

statute of limitations would to begin to run, particularly

when the administrative proceedings continued to pend?

It was stipulated by the parties that the controversy over

whether his property would be taken for the secondary

wastewater treatment plant continued long after he lost

the property by foreclosure sale. (Pet. App. 23a and

33a).

The most reasonable construction of M.G.L. c. 79,

-§ 10 under the circumstances which does not run afowl

of the issues associated with ripeness and which does

not require Grasso to engage in piecemeal litigation or

otherwise to guess at his peril “the decisive moment in

the process of acquisition by the [government] when the

fact of taking could no longer be in controversy” is to

determine that the foreclosure sale of Grasso’s property

was the “act .. . depriving the owner of the use of his

property permanently or for a definite period of time”

from which the one year to bring suit began. M.G.L.

c. 79, § 10. The government’s regulatory actions

proximately caused him to lose his _ property

permanently. Under M.G.L. c. 79, § 10, the date of that

loss is the date from which the statute runs.

CONCLUSION

The petition for a writ of certiorari should be

granted. |

Respectfully submitted,

EDGAR L. KELLEY PHILIP H. CAHALIN

Counsel of Record P.O. Box 209

78 Turnpike St. 11 Massasoit Avenue

Ipswich, MA 01938 Hull, MA 02045-2517

(978) 356-7991 (781) 925-3280

Dated: January 28, 2003

APPENDIX TABLE OF CONTENTS

APPENDIX A

Order of the Supreme Judicial Court denying

Application for Further Appellate Review ..... la

APPENDIX B

Application for Further Appellate Review to the

SRACCMRS FUGICIAL Court ........000cccesesccesscceveees 2a

APPENDIX C

Appeals Court Rescript Opinion .................cccceeeeee 2la

APPENDIX D

Appeals Court Memorandum and Order

III OP NUN BSD scssnviscesoxcessasscssesanees 22a

APPENDIX E

Superior Court Memorandum of Decision and

Order on Cross-Motions for Summary

APPENDIX A

COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT FOR THE COMMONWEALTH

ORDER

It is hereby Ordered, that the following

Application for Further Appellate Review be denied:

FAR-12926

VINCENT GRASSO & others

vs.

CITY OF NEW BEDFORD & another

Bristol Superior Court no. 92-01987

A.C. No. 2000-P-0797

By the Court,

ls/

Susan Mellen, Clerk

ENTERED: October 30, 2002

Z APPENDIX B

COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT

APPEALS COURT No. 97-P-0509

SUPREME JUDICIAL COURT No.

Essex COUNTY

VINCENT GRASsO, et. al.

PLAINTIFFS-APPELLEES

Vv.

City OF NEw BEDFORD, et. al.

DEFENDANTS-APPELLANTS

Application for Leave to Obtain

Further Appellate Review under Rule 27.1

Philip H. Cahalin, Esq.

BBO #545538

P.O. Box 209

11 Massasoit Av.

Hull, MA 02045

781.925.3280

Edgar L. Kelley, Esq.

BBO #265300

78 Turnpike Rd.

Ipswich, MA 01938

978.356.7991

The plaintiffs-appellants (“Grasso”) request

leave to obtain further appellate review and state as

grounds therefor that said review involves substantial

reasons affecting the public interest and the interests

of justice.

1. Prior Proceedings.

The original Complaint was filed on July 8,

1992 and the first Amended Complaint was filed on

July 24, 1992 before any responsive pleading was

filed. App. v. 1, p. 1, Docket, pp. 9-15, original

Complaint, and pp. 16-22, first Amended Complaint.

On October 8, 1992, the Commonwealth of

Massachusetts (“Commonwealth”) filed a Motion to

Dismiss under Rule 12(b)(1). App. v.1 p. 29. The

Commonwealth argued that the Complaint was not

filed within the three years required by M.G.L. c. 79, §

16. App. v. 1, pp. 30-36. At the time, the named

defendant was the Executive Office of Environmental

Affairs ((EOEA”), not the Commonwealth, and the only

allegation “that can be credited to the EOEA”

contained no dates. It stated the following:

So long as Standard Times Field was

subject to the screening studies and so

long as it was designated the alternate

site for the treatment plant, the plaintiffs

were not allowed by the defendants to

develop the property in a manner

incompatible with its potential use as a

site for the waste water treatment plant.

Grasso v. City of New Bedford, Memorandum and

Order Pursuant to Rule 1:28 (“Memorandum”), p. 31

n. 15.

The Commonwealth’s motion was denied. App.

v. 1, p. 43. The Commonwealth filed no interlocutory

or final appeal from this Order. Thereafter, the

Commonwealth filed its Answer. App. v. 1, pp. 44, et.

seq. Subsequently, on August 8, 1994, the EOEA

filed a Motion for Judgment on the Pleadings. The

EOEA included in its grounds its argument that the

complaint was untimely under M.G.L. c. 79, § 16

three year statute of limitations. App. v. 1, pp. 55, et.

seq. Before the hearing on the above motion, the

plaintiffs filed their Motion to Amend Complaint and

their proposed Second Amended Complaint with a

request that it be heard at the same time as the

hearing on the EOEA’s Motion for Judgment on the

Pleadings. App. v. 1, p. 108, et. seq. The Second

Amended Complaint sought to change the defendant

from the EOEA to the Commonwealth and contained

substantial detailed allegations relative to actions by

Commonwealth actors, including EOEA officers.

The Superior Court judge took no action on the

motion to amend and allowed the EOEA’s motion. In

doing so it improperly “reviewed the allegations

contained in all three complaints”. “[T]he_judge

simply addressed some of the allegations contained in

the second amended complaint without recognizing

that the complaint added defendants or applying the

allegations of the second amended complaint to those

newly added defendants.” Memorandum, p. 30. The

judge did not base his decision on the EOEA’s statute

of limitations grounds. Memorandum, p. 31, n. 16.

The plaintiffs’ motion to amend was

subsequently allowed “insofar as it amends claims

against the City of New Bedford and denied insofar as

it seeks to revive claims against Executive office of

Environmental Affairs.” The Appeals Court construed

this to mean “The judge allowed the plaintiffs to

amend those claims applying to the city but denied all

amendments applicable to claims Against the EOEA.”

Memorandum, p. 31, n. 14.

Subsequently, the City also filed a motion to

dismiss which was also, in part, predicated on an

argument that the statute of limitations in M.G.L. c.

79, § 16 had expired. App. v. 1, pp. 252, et. seq. This

was also denied. App. v. 2, p. 283.

Thereafter, the City and Grasso filed cross-

motions for summary judgment. Memorandum, p. 17,

n. 9. The City’s motion was allowed and Grasso’s

motion was denied. App. v. 3, pp. 448 et. seq. A

Summary Judgment and Judgment of Dismissal were

entered on November 4, 1998. App. v. 3, pp. 480a

and 480b.

The plaintiffs filed a Notice of Appeal from both

the dismissal and the summary judgment. App. v. 3,

p. 481. Neither of the defendants filed a cross-appeal

from the denial of the respective motions to dismiss

which were predicated on the statute of limitations.

2. Statement of the points with respect

to which further appellate review of the decision of

the appeals court is sought.

The government actors in this case admittedly

used the government’s police powers to advance the

government’s proprietary interests; to wit: they acted

in concert to prevent Grasso from developing his land

through diverse regulatory proceedings because they

wanted to keep his land available for possible use for

a secondary wastewater treatment plant. The

consideration of the land for such use was pursuant

to a consent decree agreed to by both the City of New

Bedford (“City”) and the Commonwealth of

Massachusetts (“Commonwealth”). It is the purpose

with which government actors acted in this case and

the degree of delay which distinguishes it from the

usual regulatory takings case. The Appeals Court

decision fails to address these important

constitutional distinctions predicated on _ direct

evidence of government purpose and intent which

goes to the heart of the rights and protections afforded

by the Fifth Amendment of the United States

Constitution and Article 10 of the Massachusetts

Declaration of Rights. By failing to address these

issues, the Appeals Court effectively encourages

government actors to continue to openly and

contemptuously ignore and abuse the constitutional

property rights afforded by the U.S. and

Commonwealth Constitutions.

In addition, it is in large measure this failure to

adequately consider the constitutional prohibition on

the government’s purpose for acting to advance its

proprietary ends which is the source of the Appeals

Court’s error in its declination to find joint liability of

the defendants.

With respect to the statute of limitations issue,

the-Appeals Court decision has the one year statute of

limitations contained in M.G.L. c. 79, § 10

commencing and expiring while the various

administrative proceedings by which the regulatory

taking has been effected continued to pend. To

determine that the period for commencing suit

relative to administrative proceedings can commence

and expire while the underlying administrative

proceedings are still pending puts property owners

into a catch 22 conundrum which deprives them of

their substantive and procedural due process rights.

3. Short statement of the facts relevant

to the appeal not including facts correctly stated

by the Appeals Court.

¥ The defendants had entered into a

consent decree together in which they agreed that

certain actions relative to building a secondary

wastewater treatment plant would be undertaken,

including the selection of the appropriate site, under a

strict timetable. All decisions and actions by the City,

including those relating to the selection of the site,

had to be reviewed and approved by the

Commonwealth under the consent decree as well as

under the Massachusetts Environmental Protection

Act (“MEPA’), Chapter 781 of the Acts of 1972, M.G.L.

c. 30, §§ 60 62H. App. Vol. 3, p. 367, para. 42 and

pp. 449 - 450.

2. The “highly active and influential citizen

groups” mentioned at page 6-7 of the Memorandum,

opposed all efforts by Grasso to obtain any permits

“because they believed that it would increase the cost

to the City of taking the Parcel for the treatment

plant” App. Vol. 3, p. 450.

3. A majority of the New Bedford City

Councilors told Grasso and publicly announced that

they were opposed to any private development until

the City had finally determined not to place the

treatment plant there. In addition to avoiding

increased expenses to the City’s tax payers, they were

aware that the enhanced value development would

create would affect the selection process and anger

those citizens opposed to Fort Rodman. App. Vol. 3,

p. 367, para. 40.

4. All changes in local _ ordinances,

including zoning ordinances, musi first be reviewed

by the City Council Ordinance Committee, which

consists of all eleven members of the City Council.

The matter is then referred to the City Council sitting

as City Council, for a vote. App. Vol. 3, p. 363, para.

20.

5. Prior to the Planning Board hearing

Grasso met with City Councilors and civic leaders, all

of whom indicated to him privately and publicly that it

was premature to consider a zone change for the site

until the location of the treatment plant was resolved.

App. Vol. 3, p. 367, para. 40 and p. 374, para. 68.

They were all concerned that the zone change would

promote Grasso’s state permits and otherwise make

the property more expensive to take. Id.

6. In later explaining the reasons for the

board’s action on Grasso’s initial application for a

zone change, City Planner Alfred J. Lima wrote in

part:

An identical petition to rezone this

site to a Mixed-Use Business District

was heard by the Planning Board on

February 17, 1988. At that time the

Board referred the petition to the City

Council without a recommendation

because the selection of a site for a

secondary sewage treatment plant had

not yet been made. It was then feared

that rezoning the site would increase

its value in the event that the city

would have to acquire the property for

the plant....

The development of Standard-

Times Field has been held hostage by

the prolonged study that led to the

selection of Fort Rodman as the site

for the treatment plant.

App. Vol. 3, pp. 384 - 385, para. 109

(emphasis added). This understanding was confirmed

by City Councilor Ralph Saulnier. App. Vol. 3, p.

386, para. 112.

ws Chapter 597 of the Acts of 1945

expressly permits filling in the harbor beyond the

harbor line. App. Vol. 3, pp. 376 - 377, paras. 77 -

79.

8. Concommittant with their various

requests to the state and their statements to Grasso

and prior to their vote on Grasso’s application to

rezone, at least three City Council6rs publicly

announced that they were opposed to harbor line

legislation because of its potential to increase the

value of the property. App. v. 3, p. 379, para. 87.

9. City Councilor Ralph Saulnier publicly

announced that he would seek to delay or prevent

enactment of the harbor line bill because it might

increase the value of Standard Times Field. At his

initiative, the City Council made a formal request to

the state senate to delay action on the harborline bill.

10. City Councilor Nelson Macedo publicly

announced that “any site being considered as a back-

up site shouldn’t be touched.” App. v. 3, p. 379, para.

87.

11. City Councilor Dorothy Kruger publicly

stated that the City Council delayed the request to

rezone the property “after it was decided that it might

affect site selection for the proposed sewage treatment

plant” and “[t]his particular Senate bill would only

add more to our. App. v. 3, p. 379, para. 87.

12. In July 1989, Grasso filed his

application for the Chapter 91 license for the dredging

and marina with DEP, Wetlands and Wterways [sic].

It contained all of the information developed for the

DEIR and the additional wetlands and navigation

information developed pursuant to the EOEA’s scope

on the EIR. App. v. 3, p. 379, para. 89. Ex. 53..

13. Grasso continued to conduct extensive

engineering studies and planning and have extensive

contact with state officials about the permitting

issues after the EOEA’s scope decision on his DEIR

(issued in August 1989). App. v. 3, pp. 376 et seq.

14. In August 1989, Grasso filed a more

detailed Chapter 91 Tidelands Report with the EOEA

in response to its inquiries in its Certificate on the

DEIR about Grasso’s prior assertion that the

submerged land was private tideland, not

commonwealth tidelands. Grasso Aff., p. 381, para.

93.

15. In October 1989, Grasso filed with the

DEP its application for a Water Qality [sic] Certificate

for the dredging. It contained all of the information

developed for the DEIR and the additional wetlands

and navigation information developed pursuant to

the EOEA’s scope on the EIR. App. p. 383, para.

101, ex. 61.

16. On or about August 22, 1989, the

Director of the Massachusetts Coastal Zone

Management (“MCZM”) wrote a memo to the

Secretary of the EOEA, John DeVillars, which stated

in part: “My opinion is that we should be cautious in

the state’s support for any private development

projects in New Bedford until we have a better sense

of where the two treatment facilities will be located.

10a

My main interest is for protecting the ratepayers of

the city and the taxpayers of the Commonwealth.”

App. Vol. 3, p. 382, para. 99.

17. City Councilor Ralph Saulnier publicly

stated that he “vehemently opposes any zoning

change at the Standard-Times field because it would

increase the value of the property” and stated that

“the developers are merely trying to get all the

necessary permits so they can sell their land at a

higher profit.” App. Vol. 3, p. 386, para. 112.

28. [sic] On February 12, 1990, three days

prior to the vote on Grasso’s rezone petition, the City

Council voted that the City communicate to all local,

state, and federal authorities “that at this time the

City Council would not be supportive of any actions

that might minimize or eliminate the use of the

Standard-Times Field as a site for the secondary/

primary sewage treatment plant for the City of New

Bedford....”. It notified the EOEA of the vote on March

12, 1990. App. Vol 3, pp. 387 388, para. 115.

19. The hearing before the City Council

Ordinance Committee on the rezoning petition was

held on February 15, 1990. At the hearing, Councilor

Kruger was reported as stating: “this City cannot

afford to rezone the Standard Times Field. She stated

that it has been chosen for people’s use and it is a

well known fact that property taken by eminent

domain is done so at fair market value. She stated

that rezoning will only cause an increase in the value

of this property. App. Vol. 3, p. 388, para. 116.

20. In response to criticism for the vote

against rezoning,-seven City Councilors indicated to

the local newspaper that they opposed the

development of Standard Times Field “because they

want to build the city’s new sewage treatment plant

on the land.” App. Vol. 3, p. 389 - 390, para. 123.

21. After the hearing on the zone change, a

majority of the Councilors defended the denial of the

change publicly on the grounds that “they want to

lla

build the city’s new sewage treatment plant on the

land.” App. Vol 3, pp. 389 - 390, para. 123.

22. On April 1, 1991, Jan Smith from MCZM

wrote to Susan Tierney, then Secretary of EOEA a

memo the situation in New Bedford which stated in

part:

In late December 1990, the Mayor

requested Secretary DeVillars to release

the Standard-Times site from further

consideration as a possible location for

the treatment facility in order that the

private development proposal could

move forward. The Secretary was unable

to do this because a legislative mandate

delegated this determination to DEP,

which has declined to issue the

statement until all of the acquisition

problems are settled for the Fort

Rodman site.

App. Vol. 3, p. 393, para. 138.

23. Unable to obtain permits or any clarity

on time parameters for resolution of the controversy

over the site Grasso lost the property to a foreclosure

sale on August 28, 1991. App. Vol. 3, p. 394, paras.

140 -141.

4. Brief statement, including appropriate

authorities, indicating why further appellate

review is appropriate.

a. It is a compensable violation of the Fifth

Amendment and Article 10 when

government actors impose unlawful

conditions and requirements on permits

for the express purpose of delaying the

development of property or otherwise

keeping the property available for a

possible public use.

12a

It is well settled that the government can not

use its police-power to advance its proprietary

interests. It can not impose unlawful! conditions on

permits or deny same for the purpose of delaying the

development of property or otherwise keeping the land

available for a possible public use. The only

constitutionally permissible way for the government to

keep private property available for such use is to

compensate the land owner.

The excessive delays in this case were not

“ordinary” or even “ynreasonable”. The delays here

were the deliberate and intended effect of the

coordinated effort by government actors, both local

and state, to prevent Grasso from developing or

otherwise improving his property to keep it available

for the treatment plant.

There is a plethora of direct evidence in the

form of statements made by responsible state and

local government officials, from the governor to the

City Councillors, publicly and privately that the

purpose for the unlawful conditions and requirements

imposed on Grasso’s efforts to develop his land was to

keep him from increasing its value while the

government considered whether to take it or not.

Indeed, the attorney for the City argued at the

summary judgment hearing that this was the City’s

purpose and he believed it to be proper and

constitutional. Trans./Ex. Vol. 8,- pp. 1625 - 1626

[11 - 12] and 1636-1638 [21 - 23}.

That such a purpose is unconstitutional and

expressly prohibited by the Fifth Amendment and

Article 10 can hardly be disputed.

1 There were numerous unlawful conditions or

requirements imposed on Grasso’s permits by government

regulators. It is beyond the scope of the limited parameters of this

application to detail them herein; however, if allowed, Grasso will

detail these in a subsequent brief if the application is allowed.

13a

The Fifth Amendment states in relevant part:

No person shall be. . . deprived of

property, without due process of law; nor

shall private property be taken for public

use, without just compensation.

The Supreme Court has long recognized the

temptation for government officials to exercise their

police power authority over private land in order to

evade the government’s constitutional obligation to

pay “just” compensation for property needed for

“public use.” Mahon v. Pennsylvania, 260 U.S., 393,

415, 43 S.Ct., 158, 160 (1922). As a consequence, the

Supreme Court has consistently held that “the Fifth

Amendment is violated whenever land-use regulation

‘does not substantially advance legitimate state

interests or denies an owner economically viable use

of his land.” Lucas v. South Carolina Coastal Council,

112 S.Ct. 2886, 2894 (1992) quoting Agins v. Tiburon

447 U.S. 255, 26C, 100 S.Ct. at 2141 (original

emphasis removed, emphasis added).

The use of the disjunctive “or” makes it clear

that either ground alone constitutes a violation of the

Fifth Amendment.

It is clear that compensation is required

whenever regulatory action has as its purpose the

“avoidance of the compensation requirement [of the

Fifth Amendment], rather than the stated police-

power objective” of the land-use regulation.

Steinbergh v. Cambridge, 413 Mass. 736, 745, n. 9

quoting Nollan v. California Coastal Comm’n, 483 U.S.

825, 841 (1987). In Steinbergh. the court stated that

“(t]he planitiffs make an entirely separate takings

argument based on the principle that a taking occurs

when a land-use regulation ‘does not substantially

advance legitimate state interests.” Steinbergh uv.

Cambridge, 413 Mass. at 744 (quoting Agins v. Tiburon

447 U.S. 255, 260, 100 S.Ct. at 2141 (1980)

(emphasis added)).

l4a

This standard is the same whether the

government is acting on applications for “regulatory

approvals or changes it local ordinances and by-laws’.

Steinbergh v. Cambridge 413 Mass 736, 743 (1992).2

With respect to proof of unconstitutional

purpose;

There can be no presumption of

the validity of legislative action which is

expressly predicated only on facts which

if true establish the invalidity of what is

done. Compare Caires v. Building

Commissioner of Hingham, 323 Mass.

589, 594; Raymond v. Commissioner of

Public Works of Lowell, 333 Mass. 410,

414; Cohen v. Lynn, 333 Mass. 699,

705. The board is not helped by any

rule as to burden of proof. A decision

stating facts which appear adequate to

support the action taken would stand in

materially different aspect. It is a

different case also if the statute does not

call for a statement of reasons as a part

of the decision but the evidence shows

that some of those voting may have been

moved by factors which would be

insufficient or invalid reasons for a

zoning enactment. Compare Simon v.

2 Although there is no decision directly on point in

Massachusetts, there are a substantial number of authorities from

other jurisdictions which have held that actions by the

government to deliberately affect the value of private property in

furtherance of a proposed public project are compensable

violations of the U.S. or state constitutions. See Orlando/ Orange

County Expressway Authority v. W & F Agri growthFernfield, Ltd.,

582 So.2d 790, 792, review den S91 So.2d 183 (1991); Sparks v.

Armstrong, 748 P.2d 7, 8 (Nev. 1987); Re Virginia Park, 121

Mich.App. 153, 328 N.W.2d 602 (1982); Commonwealth, Dept. of

Transp. v. Lawton, 412 A.2d 214 (Pa. 1980) Board of Education v.

Clarke, 280 N.W.2d 574, 577 (1979).

15a

Needham, 311 Mass.560; Caires v.

Building Commissioner of Hingham, 323

Mass. 989, 596; Raymond Vv.

Commissioner of Public Works of Lowell,

333 Mass. 410, 412.

Mary E. McHugh v. Board of Zoning Adjustment

of Boston, 336 Mass. 682, 690-691 (1958).

b. It was the cumulative and concerted

actions of both the state and City

actors, both of whom acted for the

same purpose, which caused Grasso to

eventually lose his property.

The Appeals Court exonerated both

defendants from a large part of their respective

responsibilities for Grasso’s injury by failing to

recognize the significance of the shared

unconstitutional purpose with which they both acted.

The Appeals Court found that the City could

not be held jointly liable for the actions of state actors

because the City “had no decision, making power with

regard to those issues in the control of the

Commonwealth.” Memorandum, p. 22, n. 11, para. 3.

However, what distinguishes the present action from

that in the Massachusetts decisions relied upon by

the Appeals Court at pages 20-23 of its Memorandum?

is that in neither of those cases was there even a

Suggestion that the government advocates were

attempting to accomplish an _ unconstitutional

purpose through their advocacy; to wit: to delay the

development of private property that the government

advocate was considering purchasing. Indeed,

consideration of the Commonwealth’s good faith in

Ashburnham v. Commonwealth would have been .

4. [sic] 3 Hamilton v. Conservation Cornmn. of Orleans, 12

Mass.App. 359, 369 (1981); Municipal Light Co. of Ashburnham uv.

Commonwealth, 34 Mass.App. 162, 170 (1993). of same.

16a

pointless if the Commonwealth could not have been

liable irrespective. In the present action, the state

shared the City’s intent and willingly exercised its

authority in the manner requested to further that

purpose.

Moreover, in this case, both the City and the

Commonwealth had agreed to a consent decree in

which part of their agreement dealt with the

disposition of Grasso’s land and both participated in

the decision making process as to whether the City

would take the land or not. The Commonwealth had

a vested interest in promoting the City’s

unconstitutional purpose of keeping the land

available while the decision-making process pended.

The City is liable under the ordinary principles

of joint liability which have long been recognized for

constitutional violations. The rule in these cases is

the same as that articulated in Adickes v. S.H. Kress

and Company, 398 U.S. at 152, 90 S.Ct. at 1605-1606

(1970) in the context of an equal protection

deprivation.” Lugar v. Edrnondson Oil .Co., Inc. 457

U.S. 922, 941-942, 102 S.Ct. 2744, 2756 (1982)

(citing the “line of cases, beginning with Sniadach v.

Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820 23

L.Ed.2d 349 (1869)”). See Wagerimann uv. Adams, 829

F.2d 196, 210 (l1st.Cir. 1987) (private party held

statements private party held jointly liable with police

for false imprisonment and false arrest because he

induced police to make arrest for unconstitutional

purpose). See Archer Gardens, Ltd. v. Brooklyn Ctr.

Dev. Corp., 468 F.Supp. 609, 613 (1979) (private

persons can be held jointly liable with city for

constitutional violations through land-use

regulations).*

4 The Appeals Court distinguished between the present

action and that in Archer Gardens by noting that in Archer

Gardens, the private developer was an “integral component in

implementing the [urban renewal] plan and negotiating the

purchase of the property.” Memorandum, p. 22, n. 11. However,

the City likewise is a potential purchaser of Grasso’s property and

17a

C. The statute of limitations for seeking

relief for a regulatory taking can not

expire while the administrative

proceedings continue to pend.

As the Appeals Court observes, the issue of

exhaustion of administrative remedies is highly

relevant to any regulatory takings claim.

Memorandum, p. 18, n. 10. “Whether a particular

governmental action amounts to a taking requires an

examination of the character of the governmental

action as well as the nature and extent of the

governmental interference with the owners’ rights in

the property as a whole.” Wilson v. Commonwealth, 31

Mass.App. 757, 765 (1992). Indeed, the Appeals

Court notes that the trial court determined that some

of Grasso’s claims had not yet ripened “because the

plaintiffs failed to exhaust administrative remedies.”

-Memorandum, p. 18, n. 10. It is clearly violative of

substantive and procedural due process rights to hold

both that claims may be unripe for review by the

courts and at the same time hold that the statute of

limitations has commenced and expired for bringing

such claims.

Quoting United States v. Gypsum Co. v. Mystic

River Bridge Authy, 329 Mass. 130, 141 (1952), the

Appeals Court states that “[t]he critical point occurs

when the ‘landowner has actually parted with his

property or its possession or some interest therein.”

Memorandum, p. 33. Such a definitive point should

not be held to occur by some administrative action

while the administrative process continues to pend.

Either some definitive cessation or termination of the

administrative process should be required, thereby

definitively notifying the property owner of his

appellate rights, or some other permanent or

both the City and the Commonwealth were jointly interested in

implementing the terms of the consent decree they had entered

into.

18a

definitive loss must occur for the statute to

commence.

It is difficult to perceive why Grasso’s

permanent loss should be considered any differently

than the permanent loss suffered in Wilson v.

Commonwealth, 31 Mass.App. 757, 413 Mass. 352

(1992) when, while a MEPA process pended, the

“ocean overran the plaintiffs’ homes” Id. at 762. In

both cases, the permanent loss was proximately

caused by agency delay.

Generally, courts have rejected claims

that because an agency did not act more

quickly on an application, a State or ~-

Sate agency took a landowner’ ’ [sic]

property (Citations omitted). These

cases, however, have involved claims of

temporary takings of property in

circumstances in which the property was

not totally deprived of its value, while we

are concerned here with the alleged total

destruction of property due to agency

delay. . . . We agree with the Appeals

Court that the plaintiffs’ taking claims

do not fail in all respects simply because

the administrative process was not

completed before the properties were

made _ worthless. See Wilson v.

Commonwealth, 31 Mass.App.Ct. 757,

766-767 (1992). Unreasonable agency

delay itself would be the basis for the

failure to complete the agency

proceeding and allegedly would be the

cause of the taking. It would be illogical

to permit the agency’s own alleged

dilatory practices to justify the dismissal

of the taking claim for the reason,

asserted by the Commonwealth, that

departmental proceedings were not

completed.”

19a

Wilson v. Commonwealth, 413 Mass. 352, 355-

356 (1992). The fact that the delays here were

intentional does not alter the fact that prior to

litigation there existed no _ formal, definitive

termination of the administrative processes. And

even if it did, because the agency actions were

unlawful and excessive, Grasso should still have the

right to pursue his claim under Wilson ov.

Commonwealth for the total loss of his property since

his Complaint was filed within one year of that event.

Respectfully submitted,

Plaintiffs-Appellants

By their attorneys,

ls/

Philip H. Cahalin, Esq.

BBO # 545538

P.O. Box 209

11 Massasoit Av.

Hull, MA 02045

781.925.3280

/s/

Edgar L. Kelley, Esq.

BBO # 265300

78 Turnpike Street

Ipswich, MA 01938

978.356.7991

CERTIFICATE OF SERVICE

I, Philip H. Cahalin, certify that the defendants-

appellees have been served the above by mailing a copy of

same to Arthur Caron, Esq., City of New Bedford Law

Department, 133 William Street, New Bedford, MA 02748

and Stephen Dick, Esq., Office of the Attorney General - Trial

Division, 200 Portland Street, Boston, MA 02114 this 2nd

day of October. 2000. P

20a

Signed under the pains and penalties of perjury this

2nd day of October, 2002.

/[s/

Philip H. Cahalin, BBO #545538

P.O. Box 209

11 Massasoit Av.

Hull, MA 02045

781.925.3280

ADDENDUM

Memorandum and Order Pursuant to Rule 1:28

Memorandum of Decision and Order on Cross-

Motions for Summary Judgment

2la

APPENDIX C

_ Commonwealth of Massachusetts

Appeals Court for the Commonwealth

At Boston,

In the case no. 00-P-797

VINCENT GRASSO & others

US.

CITY OF NEW BEDFORD & another.

Pending in the Superior Court for the County of

Bristol

Ordered, that the following entry be made in

the docket:

Judgments affirmed.

NOTE:

The original of the within rescript

Will issue in due course, pursuant

To M.R.A.P.23

APPEALS COURT

By the Court,

ls/ , Clerk

First Assistant

Date September 12, 2002.

22a

APPENDIX D

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

00-P-797

VINCENT GRASSO & others!

vs.

CITY OF NEW BEDFORD & another.?

MEMORANDUM AND ORDER PURSUANT

TO RULE 1:28

The plaintiffs’ claim that the city of New

Bedford (city) and the Executive Office of

Environmental Affairs (EOEA) made a taking of their

property on the New Bedford waterfront through

regulatory actions and inactions associated with the

permitting of that property for development. The

claims against the city and the claims against the

EOEA were disposed of in separate proceedings and

by separate judges. Final judgments in favor of each

defendant then entered dismissing the plaintiffs,

complaint.

The claims against the EOEA were dismissed

pursuant to a motion for judgment on the pleadings

by a judge of the Superior Court, who filed an eight

page memorandum of decision. A. I:220. A motion of

the city for summary judgment was allowed by a

different judge, who filed a thirty-three page

1 Palmers Cove Limited Partnership, Old New Bedford

Waterfront Corp., and Robert P. Regan.

2 Executive Office of Environmental Affairs.

23a

memorandum of decision. (A. III:448) We will quote

extensively from this memorandum.

I. Facts. The plaintiffs Vincent Grasso and

Robert Regan created a corporation to pursue a

development venture and called it the Old New

Bedford Waterfront Corp. (ONBW). They purchased a

vacant waterfront parcel of land known as Standard

Times Field (parcel) from Palmer’s Island Corporation

for $2.7 million. “The parcel consists of upland,,

which is bounded by New Bedford Harbor, and

submerged land,’ which runs under the harbor to

Palmer’s Island. The plaintiffs intended to develop the

parcel, which was zoned as an Industrial B’ district,

as a marina and waterfront park. They also

considered the possibility of developing the upland

with condominiums, which would require a zoning

change to a ‘Mixed Use’ district since residential uses

are not permitted in an Industrial B’ zone. . . . The

plaintiffs anticipated permitting for all uses to be

completed within two years of their purchase of the

parcel. (A. III:449)

“Pursuant to the [Flederal Clean Waters Act,

the city was required to upgrade its Fort Rodman

wastewater treatment plant to meet [Fjederal

secondary treatment effluent limitations. To

accomplish this, the city needed to construct a

secondary wastewater treatment plant to work in

tandem with the Fort Rodman plant. Federal funds

were available to the city to study, plan, and build the

secondary plant, but_not to purchase or take by

eminent domain private land on which to locate it.” (A.

IlI:449-450 [footnotes omitted])

“[O]Jn February 2, 1987, the city filed an

environmental notification form (ENF) with EOEA,

the agency responsible for implementing the

Massachusetts Environmental Protection Act

3 For a full recitation of the facts, including further detail

regarding the statements of certain State and city officials, see A.

III:448-480. i =a

~ 24a

(MEPA)}, G. L. c. 20, 88 61-62H. The city’s ENF

identified four possible locations for the secondary

wastewater treatment plant. One of the alternative

locations was the upland portion of the parcel;

another involved expansion of the existing Fort

Rodman plant onto adjacent property.

“The city’s mayor, John Bullard, publicly

opposed the development of the tidelands portion of

the parcel with a marina because it would make it

more costly for the city to acquire the upland for a

secondary wastewater treatment plant in the event

that the upland were to be chosen as the site for the

plant. In April of 1987, Mayor Bullard informed

ONBW that the city was considering the parcel as a

potential location for its secondary wastewater

treatment plant and requested that it delay :

development plans until the completion of the plant :

selection process.” (A. III:450)

“On August 27, 1987, ONBW filed an ENF for :

its waterfront park project with the EOEA.* The ENF

described plans to construct a marina, harbor Ly

master’s house, public boardwalk along the water’s :

edge, two restaurants, a fifty room guest inn, 10,000

gross square feet of marine-related and commercial

retail space, and 10,000 gross square feet of

neighborhood retail space on the parcel.” (A. III:451)

Thereafter, both the mayor and the city’s

environmental planner wrote letters to the EOEA

4 “Under MEPA, before any State agency can issue a :

permit for a proposed development project, the EOEA must ¢

determine, after consulting with all interested parties, whether a

comprehensive environmental impact report [‘EIR’ is required, :

and, if so, must determine the form, content, level of detail, and é

alternatives required for the report and must limit the scope of the

report to those issues which, by the nature and the location of the :

project, are likely to cause damage to the environment, and, if no

financial assistance from the agency is sought, to those issues

which are within the subject matter jurisdiction of the permit.

Villages Dev. Co. v. Secretary of the Executive Office of Envt.

Affairs, 410 Mass. 100, 102 (1991), citing G. L. c. 30, § 62A; 301

Code Mass. Regs. § 11.06.”

25a

expressing their concerns, and general disapproval,

regarding the plaintiffs’ proposed development and its

potential effects on the placement of the wastewater

treatment plant.

“On October 13, 1987, pursuant to MEPA,

EOEA issued a certificate requiring ONBW to prepare

an environmental impact report [EIR] for the

waterfront park project. The certificate stated:

There is disagreement whether this

project, taken alone, constitutes

segmentation, pursuant to 301 CMR

11.16. The pertinent facts, regarding the

issue are as follows:

“the project described in the ENF . . . does

have independent utility;

* on the other hand, the project could

potentially preclude or affect the choice of

alternatives or mitigation for the remaining

22.acre parcel, because of the loss of direct

access to the waterfront.

The importance of an analysis of alternative

uses for the site has been clearly

demonstrated. This site is in a Designated Port

Area (DPA); however, the project proposal is

inconsistent with the marine industrial

designation. Moreover, this site is being

actively considered by the city of New Bedford

for a secondary wastewater treatment plant.

‘Based on these facts, it will be important to

evaluate the potential effects from the entire

project. A review process will be established

whereby the draft EIR is a planning document

for the entire site. When the public review of

the draft has been satisfied, it will be possible

26a

for the proponent to proceed with a final EIR

for the discrete phases of the entire project.’

“The certificate thus required the scope of the

EIR to include: (1) The ‘Preferred Alternative, as

described in the ENF, and including the residential

component for the 22 acre site’, (2) ‘A Maritime-

dependent Industrial Project Alternative, which is

consistent with the State’s Designated Port Area

policies’; (3) ‘A Secondary Treatment Plant Alternative

should be presented, based on the site assessment

study that is being prepared for the City of New

Bedford’; and (4) ‘Additional Alternatives that are a

‘. eombination of elements of alternatives 1 and 2, and

alternatives 1 and 3.’

“With respect to the residential component for

the 22 acre site, the certificate noted that ‘in order

for this proposal to proceed, a local zoning change

will be necessary,’ a proposition that was

undisputedly accurate. Nothing in the certificate

required that the zoning change actually be obtained

prior to completion of the EIR, or stated that EOEA

approval would not be forthcoming for the marina

were condominiums not permitted to be built on the

upland. Indeed, the language describing additional

alternatives’ makes it clear that ultimate approval of

-the marina was not tied to rezoning; EOEA pointed

out that, at the scoping session, a representative of

EPA had observed that a waterfront park and marina

are not necessarily incompatible with industrial

uses. The plaintiffs chose not to challenge the

validity of any part of the certificate.” (A. III:453-454)

“On December 4, 1987, ONBW filed an

application with the city council to amend the zoning

of the parcel from Industrial B to Mixed-Use

5 It appears that the “Preferred Alternative, as described in

the ENF” refers to the plaintiffs’ preferred development plan for the

parcel, which was described in the ENF as including “residential

[units] with related amenities.”

27a

Business in order to permit the condominium

project. New Bedford’s planning board (board) was

required to review the petition and make a non-

binding, advisory recommendation to the city council

ordinance committee.” (A. III:455)

The New Bedford city planner, the board

chairman and the president of the South End Civic

Association (representing approximately 400

residents) all expressed disapproval of the plaintiffs’

requested zoning change.

“The city council ordinance committee held a

public hearing on ONBW’s petition on March 17,

1988. At this time, ONBW withdrew its petition and

promised to work cooperatively with the city until the

wastewater treatment plant siting decision was made,

but requested that the council do whatever it could to

speed up the siting process. ONBW did not

commence a suit challenging the validity of the

Industrial B zoning classification as applied to the

parcel.

“Thereafter, in June of 1988, ONBW submitted

its draft EIR to the EOEA, with copies provided to

various city officials, including the planning

department.” (A. III:456-457 [footnote omitted]) In

August, the city’s environmental planner wrote a

letter to the EOEA widely criticizing the draft EIR for

failing to fully address the property’s possible use as a

site for the wastewater treatment plant.

“The following week, on August 19, 1988, the

EOEA issued its certification stating that the draft EIR

complied with MEPA and_ its implementing

regulations. It noted, however, as follows:

The alternatives analysis . . . is a missed

opportunity. The discussions in the

draft EIR lead to the conclusion that the

proposed project is superior to other

possible alternatives. At this stage of the

review these conclusory discussions are

premature. Since alternatives have been

28a

deemed unrealistic, impact analyses

have been dismissed, leaving reviewers

at somewhat of a loss, particularly since

the site is being actively considered for

public projects.

This approach could interfere with creative

solutions to conflicting interests for the

development of the Palmer’s Cove site. The

final EIR should take into account the serious

comments on the alternatives analysis and

should be more forthcom’n: in the analysis of

site options. For example, even if the

proponent is not interested in a mixed use

proposal, such as a waterfront park/ marina

and wastewater treatment plant, the final EIR

should evaluate the potential for and impacts

of such a mixed development.’

“The certificate also found no meaningful

assessment of the issues relating to the parcel being

part of a designated port area. EOEA observed that

even though the site had been vacant for many years,

the potential for future uses could not be written off,

noting that at least two water related industrial uses

at the site were being contemplated, namely the

wastewater treatment plant and a disposal site for

contaminated dredging materials. The certificate also

raised several questions which were required to be

answered in the final EIR concerning the plaintiffs,

dredging plans. Once again, the plaintiffs did not

mount a legal challenge to EOEA’s requirement that

the final EIR contain an analysis of site options for the

entire parcel or to anything else contained in the

certificate.

“From August until December 1988, ONBW

met with State and city officials to discuss the

requirements of the final EIR. ONBW learned at these

meetings that condominiums could only be allowed on

the upland if that property were ‘de-designated’ from

29a

the New Bedford/Fairhaven Port Area, and that only

the city could apply for such a de-designation.© When

ONBW emphasized that it wanted to proceed with

only the marina portion of the project, EOEA advised

that the marina was ineligible for a chapter 91 license

because it would extend beyond the New Bedford

Harbor line.’

“To remedy the chapter 91 problem, ONBW

petitioned the Legislature to alter the boundary of the

New Bedford Harbor line. The New Bedford Chamber

of Commerce, the publisher of the Standard-Times,

the New Bedford Harbor Development Commission,

the Mayor’s Economic Development office, and city

councilor James Sullivan wrote letters to the

Legislature supporting legislation that would

accomplish what ONBW was seeking.” (A. _ III:457-

459) It was apparent, however, that several members

of the city council adamantly opposed the legislation

because it would increase the value of the property

and force the city to spend more money if it

subsequently needed to acquire the parcel.

“On February 20, 1989, Mayor Bullard publicly

announced that he had selected Fort Rodman as the

site for the secondary wastewater treatment plant.

However, city council approval was needed to raise

the taxes to fund the plant, remove [Flederal deed

restrictions on the land containing Fort Rodman, and

approve the local permits needed for construction of

the plant.” (A. III:459)

6 “There is no evidence that the advice given to ONBW

regarding the necessity of de-designation was given in bad faith.

ONEW at no time sought declaratory relief with respect to the

necessity of de-designation.”

7 “G. L. c. 91, the Waterways Permit and License Program,

is designated to protect the Commonwealth’s interest in navigable

waters. Under c. 91, a license from the (Department of

Environmental Protection] is required for any construction or

filling activity in or over tide waters below the high water mark.

See c. 91, §§ 14-18.”

30a

“In July of 1989, ONBW filed a notice of intent

with the New Bedford conservation commission and

an application with the DEP Wetlands and Waterways

Division for a chapter 91 license for dredging and the

construction of a marina, boat slips, fueling station

and a travel lift pier.” (A. III:459)

At about this time, the Legislature

recommended a bill to then Governor Dukakis that

would have amended the harbor line pursuant to the

plaintiffs, request. Nine New Bedford city councilors

wrote to the Governor asking him to delay any

decision regarding the harbor line “until the

committee on natural resources could conduct an

7 advertised public hearing in New Bedford and the city

council had the opportunity to formally take a

position on the legislation.” (A. III:460) The letter did

not mention the potential increase in cost to the city

should eminent domain proceedings be instituted.

“On August 81 1989, Governor Dukakis

recommended that the legislation be amended as

follows: This act shall take effect upon a final written

determination by the Department of Environmental

Protection that the upgraded wastewater treatment

facilities for the city of New Bedford will be sited at a

location other than the Standard Times Field site.’

The Governor stated that he was recommending such

language for the following reasons:

{Mly concern has to do with the upland parcels

that the bill affects. The upland parcels of

land, known as the Standard Times Fieid, is

the proposed alternative site for the upgrading

of New Bedford’s sewage treatment facilities.

_. . Should these facilities be required to be

located at the Standard Times Field site, this

legislation as currently drafted could result in a

substantial increase in the cost to New

Bedford’s ratepayers and the Commonwealth's

taxpayers.’

3la

The legislation was amended in the way that the

Governor proposed.

“On August 22, 1989, the New Bedford

conservation commission issued an order of

conditions to ONBW for the dredging and construction

of the marina. DEP’s Wetlands and Waterways

Division did not take jurisdiction of the order of

conditions. The same day, the director of

Massachusetts Coastal Zone Management wrote a

memorandum to the EOEA stating that ‘we should be

cautious in the State’s support for any private

development projects in New Bedford until we have a

better sense of where the two treatment facilities will

be located. My main interest is for protecting the

ratepayers of the city and the taxpayers of the

Commonwealth.’ An internal DEP memo dated August

30, 1989 stated that it ‘would be desirable to wait as

long as possible before making the determination

mentioned in the amendment [to Senate Bill 1131]. It

is possible that a final decision about the siting won’t

be made until the spring of next year.’

“In October of 1989, ONBW filed an application

with DEP for a water quality certificate for dredging.

On October 24, 1989, city councilor Ralph Saulnier

wrote to the EOFA, reminding it that the city had not

yet made any decision about the site for the

wastewater treatment plant because the city council

had not endorsed the mayor’s selection.” (A. III:460-

461)

“On December 26, 1989, Mayor Bullard wrote

to the EOEA requesting, on behalf of the city of New

Bedford, the de-designation of the parcel from the

New Bedford-Fairhaven Designated Port Area.

“In January of 1990, ONBW once again filed a

petition with the city council to rezone the parcel

known as the Standard-Times Field from Industrial B

to a Mixed-Use Business District. The planning board

held a public hearing on February 6, 1990, during

which Mayor Bullard and city planner Alfred Lima

recommended approval of the petition. The

32a

chairwoman of the Save Fort Rodman Committee and

city councilor Ralph Saulnier spoke in opposition to

the petition. The planning board voted unanimously

to recommend approval of the petition.

“On February 2, 1990, the mayor again

requested that EOEA approve de-designation.” (A.

III:46 1-462)

“On February 15, 1990, the city council

ordinance committee held a hearing on ONBW’s

rezoning petition. After denying a continuance sought

by ONBW, the committee voted eight to two against

the rezoning.

“On February 20, 1990, EOEA ruled on the

city’s request for de-designation by stating that,

pursuant to MEPA, such a request required the

preparation of an EIR.

“Thereafter, on March 5, 1990, the EOEA

rejected the city’s facility plan for the secondary

wastewater treatment plant as incomplete, stating

that it failed to comply with MEPA, in part, because it

failed to adequately delineate proposed mitigation of

community impacts at Fort Rodman. By letter dated

March 12, 1990, the New Bedford city council notified

the EOEA that it ‘would not be supportive of any

actions that might minimize or eliminate the use of

the Standard-Times Field as a _ site for the

secondary/primary sewage treatment plant for the

city of New Bedford.’

“In April of 1990, Mayor Bullard challenged the

city council to vote on a final site for the treatment

plant. A simple majority of six votes was needed to

choose a site, while eight votes were needed to lift the

deed restrictions on Fort Rodman. Meanwhile, on

April 11, 1990, the bank notified ONBW that it was in

default on its loan for the parcel. On May l, 1990,

the city council voted six to five to approve the

ranking of the Fort Rodman site first and the

Standard Times Field second for the siting of the

secondary wastewater treatment plant.

33a .

“The following day, the Standard-Times

reported City Councilor Saulnier as stating that he

intended to use deed restrictions on the Fort Rodham

land to block constructing the plant there. The bank

sent ONBW a notice of intent to foreclose on

September 27, 1990, and, on October 19, 1990,

ONBW filed for Chapter 11 bankruptcy, temporarily

staying the foreclosure. On November 26, 1990,

EOEA issued its certificate on the city’s supplemental

final environmental impact report, stating that

‘several outstanding issues remain . . . including the

relocation of existing facilities at Fort Rodman.’

“The bank foreclosed on the parcel on August

28, 1991, with ONBW owing substanfial Jeficiencies.

The controversy over the siting of the wastewater

treatment plant continued long after the foreclosure.”

(A. III:462-463)

II. Analysis. The plaintiffs’ action alleges

that the concerted actions of the city and the EOEA

with respect to the parcel constituted a “taking” in

violation of the Fifth and Fourteenth Amendments of

the United States Constitution and art. 10 of the

Massachusetts Declaration of Rights. There never

was an order of taking pertaining to the parcel. The

city did not physically occupy or invade the plaintiffs’

land or otherwise cause any physical injury to the

parcel. Rather, the plaintiffs contend that the city

and EOEA effected a “regulatory taking” by

“persistently denying and conditioning permits” and

refusing to allow “changes in land-use regulations.”

A. Regulatory taking principles. A “[l]and-

use regulation does not effect a taking if it

substantially advances legitimate state interests, and

does not deny an owner economically viable use of his

land.” Nollan v. California Coastal Commn., 483 U.S.

8 In the past we have not recognized differing standards

under the “takings” clause of the two constitutions and the

plaintiffs have advanced no argument that we should create more

favorable principles than those developed under Federal law.

34a

825, 834 (1987), quoting from Agins v. Tiburon, 447

U.S. 255, 260 (1980). See Lopes v. Peabody, 417

Mass. 299, 304-305 & n.9 (1994); Greenfield County

Estates Tenants Assn., Inc. v. Deep, 423 Mass. 81, 86

(1996).

The test applied in determining whethér a

particular regulation or zoning provision substantially

advances a legitimate State interest is not one of strict

necessity. Steinbergh v. Cambridge, 413 Mass. 736,

746 (1992). Rather, all that is required to support the

necessary “essential nexus’ between the State’s

interest and its chosen means” is “a ‘logical and

sufficiently well-founded approach to dealing’ with the

problem” faced by the city. Id. at 737, quoting from

Esposito v. South Carolina Coastal Council, 939 F.2d

165, 169 (4th Cir. 1991), cert. denied, 112 S.Ct. 3027

(1992).

In Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992), the Supreme Court established

the categorical rule (stated as the second prong of the

above test) that a taking has occurred when a

regulation deprives an owner of all economically

beneficial uses of his land. Id. at 1019. The Court

recently iterated that the holding of Lucas “was

limited to the extraordinary circumstance when no

productive or economically beneficial use of land is

permitted.” Tahoe-Sierra Preservation Council, Inc. v.

Tahoe Regional Planning Agency, 122 S.Ct. 1465,

1483 (2002) (emphasis original). This “categorical

rule would not apply if the diminution in value were

95% instead of 100%.” Ibid. In Massachusetts the

Lucas principle has been stated as applying in cases

where the regulation “deprives the plaintiffs’ land of

all practical value to them or to anyone acquiring it,

leaving them only with the burden of paying taxes on

it.” MacGibbon v. Board of Appeals of Duxbury, 356

Mass. 635, 641 (1970). In making our review we

regard the property as a whole. “Taking’

jurisprudence does not divide a single parcel into

discrete segments and attempt to determine whether

35a

rights in a particular segment have been entirely

abrogated.” Moskow v. Commissioner of Envtl.

Mgimt., 384 Mass. 530, 533 (1981), quoting from Penn

Cent. Transp. Co. v. New York City, 438 U.S. 104,

130-131 (1978). “Rather, the proper focus is on the

character of the action and the nature of the

interference with the rights in the property as a

whole.” Daddario v. Cape Cod Commn., 425 Mass.

411, 416 (1997).

If the regulation survives this first level of

review, then its economic effect must be evaluated. In

doing so we perform a balancing test using criteria

which have been named the “Penn Central factors”

after the United States Supreme Court decision “in

which they were announced. Penn Central Transp.

Co. v. New York City, supra at 124-125, 130-131.

Daddario v. Cape Cod Commn., supra at 415-416.

Those factors are: “(1) the economic impact of the

regulation on the claimant; (2) the extent to which the

regulation has interfered with distinct investment-

backed expectations; and (3) the character of the

government action.” Id. at 416, quoting from Connolly

v. Pension Benefit Guar. Corp., 475 U.S. aii, 226

(1986). Penn Central Transp. Co. v. New York City.

supra. Again, we view the property as a whole.

At each turn in the analysis, the landowner

maintains the burden of establishing that the actions

taken are unconstitutional. Lopes v. Peabody, 417

Mass. at 307 n.13.

B. Motion for summary judgment.? In

reviewing a grant of summary judgment we ask

“whether, viewing the evidence in the light most

favorable to the nonmoving party, all material facts

9 Contrary to the city’s contention on appeal, this was a

summary judgment motion and not a jury-waived trial. Both

parties submitted motions and entitled those motions “motion for

summary judgment.” The judge’s decision was titled

“Memorandum and Order on Cross-Motions for Summary

Judgment.” She utilized the summary judgment standard and

decided the matter on such grounds.

36a

have been established and the moving party is

entitled to a judgment as a matter of law.” Augat, Inc.

v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).

The motion judge began her analysis by

addressing whether the city’s actions substantially

advanced a legitimate land use interest.!° The acts

challenged by the plaintiffs may be divided into two

categories. The first comprises those acts through

which, the plaintiffs argue, the city induced the

Commonwealth (the EOEA, the Legislature, and the

Governor) to make certain decisions adversely

affecting ONBW’s parcel. Those acts include inducing

the EOEA to impose an unduly burdensome scope on

the EIR for the marina project; inducing the EOZA to

condition ONBW’s State and Federal permits for the

marina project on the rezoning of the parcel as well as

10 Although the motion judge reached the merits of the

plaintiffs, arguments below, she also noted that some of those

arguments were not ripe because the plaintiffs failed to exhaust

administrative remedies. “The Supreme Court has consistently

declined to consider unripe takings claims. The ripeness doctrine

provides that ‘a claim that the application of government

regulations effects a taking of a property interest is not ripe until

the government entity charged with implementing the regulations

has reached a final decision regarding the application of the

regulations to the property at issue.” Daddario v. Cape Cod

Commn., 425 Mass. at 414, quoting from Williamson County

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

186 (1986) (other citations omitted). An essential prerequisite to

the assertion of a regulatory takings claim is a final and

authoritative determination from which a court can determine

whether a regulation has gone “too far.” Daddario v. Cape Cod

Commn., supra at 415. There are, however, recognized exceptions

to this rule. Wilson v. Commonwealth, 31 Mass. App. Ct. 757,

766, S.C., 413 Mass. 352 (1992).

The plaintiffs no longer own the parcel and no longer seek

to develop it at all. Wilson v. Commonwealth, 31 Mass. App. Ct. at

766. We are confident that the governmental regulations are

sufficiently well defined for us to determine whether any reached

the magnitude of a compensable taking. “When exhaustion is not

statutorily mandated, the decision to require it in a given case is a

matter of sound judicial discretion.” Id. at 767. Accordingly, we

decline to dismiss any of the plaintiffs, claims on this basis.

37a

on the de-designation of the site as a port area and on

the change in the harbor line; and inducing the

Governor to condition the harbor line change on the

parcel’s not being chosen as a site for the city’s

treatment plant. The second category comprises

those actions for which the city was directly

responsible. This category includes only the city’s

denial of ONBW’s position to rezone the parcel from

industrial B to mixed-use business.

1. Actions inducing decisions by the EOFA,

Legislature, and Governor. The motion judge

recognized that in order to hold the city responsible

for those decisions resting in the control of the EOEA,

the DEP, the Legislature,” or the Governor, the-

plaintiffs needed to prove that those decisions were

not only affected by the city’s influence, but also that

the city could be held liable in a takings action on

those grounds. Although there is certainly enough

evidence to suggest that the city advocated for the

steps taken by the EOEKA, the Legislature, and the

Governor, the city cannot be held liable in a takings

action for publicly urging the Commonwealth’s

agencies and officials to pursue a particular course of

action.

In somewhat similar circumstances we have

said that where a statute confers upon a State agency

the power to condition or preclude the development of

private property for environmental -reasons, the

Commonwealth, not the city, “is the party which

would bear the liability for any taking which results.”

Hamilton v. Conservation Commn. of Orleans, 12

Mass. App. Ct. 359, 369 (1981). We concluded that

the city could not be held liable despite that it had

lobbied the State agency to reach the eventual

outcome of prohibiting development on the subject

property. We found it significant in Hamilton that the

relevant statute, G. L. c. 131, § 40, “reserves to the

[State agency] the power to make the final decision on

applications involving the specified concerns and to

38a

preserve thereby the Statewide interest in the

protection of our wetlands.” Id. at 368.

In another regulatory taking action we

concluded that the Commonwealth could not be held

liable for urging Federal agencies to take certain

actions damaging the plaintiffs’ economic interests in

its property. Municipal Light Co. of Ashburnham v.

Commonwealth, 34 Mass. App. Ct. 162, 170 (1993).

In Municipal Light Co. of Ashburnham, the plaintiffs

sued the Commonwealth for making a de facto taking

of property without just compensation. Id. at 163.

The plaintiffs complained that the Commonwealth

delayed the opening of the Seabrook Nuclear Power

Plant several years by persistently raising safety

questions and, thereby, “imped[ing] the licensure of

Seabrook by the United States Nuclear Regulatory

Commission.” Id. at 165. We determined that because

the Commonwealth “has not regulated and cannot

regulate Seabrook,” its activities as “an advocate

before those Federal agencies which can and do

regulate Seabrook,” cannot constitute a compensable

taking. Id. at 170.

Pursuant to MEPA, the EOEFA, a State agency,

is charged with determining the scope of any EIR. See

G. L. c. 30, § 62A; 301 Code Mass. Regs. § 11.06

(1987). Another State agency, the Department of

Environmental Protection (DEP), is charged with any

licensing and permitting under G. L. c. 91. See G. L.

c. 91, 10 (granting to the DEP the power to supervise

harbors). Additionally, when ONBW sought to change

the New Bedford Harbor line, its only remedy was to

petition the State Legislature to alter the boundary of

the harbor line. Finally, it was the Governor who

added the challenged amendments to the Legislature’s

action on the plaintiffs’ petition. In each instance, the

Commonwealth was the acting, regulating body.

Thus, under the reasoning of Hamilton v.

Conservation Commn. of Orleans, the Commonwealth

would bear the liability for any taking which results

from the application of its authority under G. L. c. 30,

39a

§ 62A, or G. L. c. 91, § 10. 12 Mass. App. Ct. at 369.

The city, at each step, was confined to the role of an

an advocate and cannot be held liable in a takings claim

for its actions in this regard. Municipal Light Co. of

Ashburnham v. Commonwealth, 34 Mass. App. Ct. at

170.11

"' The plaintiffs contend that the city can be held liable

under the theory of joint liability, which has been recognized in

other circumstances when private parties act “under color’ of

State law. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 1SO

(1970). “Private persons, jointly engaged with State officials in the

prohibited action, are acting ‘under color’ of law for purposes of

[Federaliaw]. To act under ‘color of law’ does not require that the

accused be an officer of the State. It is enough that he is a willful

participant in joint activity with the State or its agents.” United

States v. Price, 383 U.S. 787, 794 (1966). Compare id. at 794 n.7.

The plaintiffs’ best case is Archer Gardens, Ltd. v.

Brooklyn Center Dev. Corp., 468 F. Supp. 609 (S.D.N.Y. 1979). In

Archer, the plaintiffs charged that the city of New York and a

private developer conspired to delay the public acquisition of

plaintiffs’ property in order to devalue the property and eventually

acquire it at tax foreclosure sales at prices far below those which

the defendants would otherwise have been obligated to pay as

condemnation awards. Id. at 610-611. The complaint alleged

that the developer “participated for its own benefit with the city in

this scheme, willfully violating for its own gain rights secured by

the fifth and fourteenth amendments.” Id. at 613. The court

determined that these allegations established (at least for the

purpose of a motion to dismiss) that the acts of the developer “may

be deemed to have been done ‘under color’ of state law and the

resultant taking may be construed as a constitutional violation.”

Ibid.

Similar facts are alleged by the plaintiffs here. The plaintiffs

claim that the city acted in concert with the Commonwealth in order to

devalue the property so that the city could acquire it cheaply in the future

much like the developer in Archer worked in concert with the city of New

York. In Archer, however, the developer was chosen to develop and

sponsor the urban renewal plan in which the subject property was located.

This allowed the developer to be an integral component in implementing

the plan and negotiating the purchase of property. Archer, supra at 611

n.5. In the instant matter, the city had no decision, making power with

regard to those issues in the control of the Commonwealth. The city

could advocate for certain results, but there is no evidence to

suggest that the city’s lobbying efforts were part of an improper

40a

2. Denial of zoning petition. The plaintiffs

contend that the city’s refusal to rezone the parcel

amounted to a taking because it failed substantially to

advance a legitimate land use interest. The plaintiffs

do not argue that the current zoning classification

itself fails to advance a legitimate interest. Rather,

they argue that the city’s application of the zoning

laws in this instance did not substantially advance

any interests tied to zoning. The plaintiffs assert that

the city denied the petition because it feared that

rezoning the parcel would increase the value of the

property and, thus, increase the cost to the city of

appropriating the land in the future if the parcel was

chosen as the site for the wastewater treatment

facility.

The motion judge disagreed. As she noted, “the

main purpose of zoning is to stabilize the use of

property and to protect an area from deleterious

uses.” Enos v. Brockton, 354 Mass. 278, 280 (1968).

If the city’s denial of the plaintiffs’ petition to rezone

the parcel is a logical and sufficiently well-founded

approach to achieving this end, the essential nexus

between the public interest and its chosen means will

be established. Steinbergh v. Cambridge, 413 Mass. at

747. It has been noted that “a broad range of

governmental purposes and regulations satisfies these

requirements.” Nollan v. California Coastal Commn.,

483 U.S. at 834-835.

The current zoning classification of industrial B

had been in place for decades. It is difficult to

imagine a more reasonable method of stabilizing the

use of this property than rejecting petitions to change

the longstanding classification. We are uncertain,

however, of the precise purpose for the denial of the

agreement between the city and the Commonwealth. Accordingly,

pursuant to our holdings in Hamilton v. Conservation Commn. of

Orleans, supra, and Municipal Light Co. of Ashburnham v.

Commonwealth, supra, the city cannot be held liable in a takings

claim for actions that it was powerless to control. See Hamilton,

supra at 369; Municipal Light Co. of Ashburnham, supra at 170.

4la

plaintiffs’ petition because the city did not record its

reasons for doing so. ‘

It is unclear whether, for our purposes in-

analyzing the city’s decision, “we may properly

attribute to the city . . . any apparent reasonable

ground for its action, at least if that action is not

contradicted by facts established on the summary

judgment record.” Steinbergh v. Cambridge, supra at

746 n.11. If we could, it would be quite impossible to

conclude that the refusal to change the parcel’s

zoning classification was not a sufficiently well

founded approach to stabilizing the use of the

property. It is hard “to imagine a more appropriate

and closefitting method to further the legitimate

interest” of the city. Greenfield Country Estates

Tenants Assn., Inc. v. Deep, 423 Mass. at 86.

The plaintiffs claim that the city’s reasons for

denying the petition are made clear by looking to the

comments made by the city planning board in 1987

when the issue of rezoning the parcel was first raised.

These statements, all made in opposition to the

plaintiffs’ petition, are rather useless, however,

considering the planning board subsequently voted

unanimously to recommend approval of the petition.

It was the city council ordinance committee that was

responsible for denying the plaintiffs’ request. The

summary judgment record contains no insight into

the reasoning of the city council ordinance committee.

Accordingly, on the summary judgment record,

the plaintiffs have not shown that they will be able to

prove that the denial of their petition did not

substantially advance a legitimate public interest.

The plaintiffs also claim that, even if the denial

of their permit advanced a legitimate public interest, it

nonetheless effected a taking.!2 We disagree.

12 Aside from addressing the usual argument that a taking

resulted from the economic impact of governmental action, the

plaintiffs further alleged that a compensable taking was effected

through the city’s purposeful attempt to depress the value of the

42a

a. Lucas analysis. The denial of the

plaintiffs’ zoning petition did not deprive the plaintiffs’

of all economically beneficial uses of the land.

Undoubtedly the parcel retained value as a location

for industrial uses. It has been “repeatedly recognized

that government regulations ‘may deprive an owner of

a beneficial use -- even the most beneficial use --

without rendering the regulation an unconstitutional

taking.” Daddario v. Cape Cod Commn., 425 Mass. at

416-417, quoting from Moskow v. Commissioner_of

Envtl. Mgt., 384 Mass. 530, 533 (1981 “A

governmental entity is not required to permit a

landowner to develop property to [the] full extent he

might desire or be charged with an unconstitutional

taking of the property.” MacDonald, Sommer & Frates

v. County of Yolo, 477 U.S. 340, 347 (1986). In this

instance the denial of the zoning permit affected only

the plaintiffs’ ability to develop the upland portion of

the property with condominiums and commercial

space. This restriction “cannot be said materially to

affect the marketability of the property so as to

deprive it of economic value.” Greenfield Country

Estates Tenants Assn., Inc. v. Deep, 423 Mass. at 87.

Viewing the property as a whole, as we must, it is

apparent that the parcel maintained substantial value

for alternative economically viable uses. See Daddario

vy. Cape Cod Commn., supra at 416-417. “The denial

property. We have already determined that the city cannot be held

liable for the regulatory actions of the Commonwealth. In light of

this, we need only consider the city’s denial of the plaintiffs’

petition to rezone as potentially supportive of the allegation that

the city intended to depress the value of the property. As we noted

above, however, the only evidence presented by the plaintiffs to

indicate the city’s intent with regard to this action were statements

made by the planning board. Given that the decision to deny the

rezoning petition was made by a separate body, the city council

ordinance committee, the plaintiffs are without evidence to

support this claim. We restrict our review therefore to the

plaintiffs’ arguments regarding the economic impact of the city’s

actions.

eel

43a

of a particular plan cannot be equated with a refusal

to permit any development.” Id. at 417.

b. Penn Central factors. When a regulatory

action involves neither a physical invasion nor a

complete deprivation of use, as is the case here, we

examine the following factors to determine whether a

compensable taking has occurred: (i) “the economic

impact of the regulation on the claimant”; (ii) “the

extent to which the regulation has interfered with

distinct investment-backed expectations”; and (iii)

“the character of the governmental action.” Leonard v.

Brimfield, 423 Mass. 152, 154 (1996) (other citation

omitted).

i. Economic impact. Any economic impact

resulting from the denial of plaintiffs, petition to

rezone is slight. The purchase price that plaintiffs

paid for the property would, of course, have taken into

account the restricted nature of the parcel’s zoning

classification. This is not a case in which the

government’s action changed the status of the parcel.

Instead, the denial of the permit held the status quo

with respect to the types of uses that the plaintiffs

could put their property to. In light of this, the

plaintiffs cannot claim that the parcel’s value was

Significantly affected. In fact, only the plaintiffs plans

were curtailed, but not their ability to sell or utilize

the parcel in economical ways.

li. Investment-backed _ expectations. “A

property owner’s investment-backed expectations

must be reasonable and predicated on existing

conditions.” Leonard v. Brimfield, Supra at 155, citing

Ruckelshaus v. Monsanto Co., 467 U-S. 986, 1005

(1984). Here, the plaintiffs had nothing but a

unilateral expectation that the city would permit the

zoning change and that, as a result, their investment

plan would be realized. The plaintiffs could not have

had a reasonable, investment-backed expectation that

condominiums and commercial units would be

allowed on the parcel. At the time the plaintiffs

purchased the parcel it was zoned as industrial B.

44a

There is no dispute that the plaintiffs had actual

notice of the classification. Because the plaintiffs

purchased the parcel subject to the zoning restriction,

they may not now complain about the loss of rights

they never had. Leonard v. Brimfield, supra at 155,

citing Lucas v. South Carolina Coastal Council, 505

U.S. at 1027. “(T]he government is not required to

compensate an individual for denying him the right to

use that which he has never owned.” Fragovoulos v.

Rent Control Bd. of Cambridge, 408 Mass. 302, 308

(1990), quoting from Flynn v. Cambridge, 383 Mass.

152, 160 (1981).

iil. Character_of the governmental action.

“A ‘taking’ may more readily be found when the

interference with property can be characterized as a

physical invasion by government.” Leonard Vv.

Brimfield, supra at 156, quoting from Penn Cent.

Transp. Co. v. New York City, 438 U.S. at 124. Here

there is no physical invasion alleged by the plaintiffs.

Furthermore, the action challenged in this case is a

zoning decision. “Zoning laws are, of course, the

classic example [of land use regulations] which have

been viewed as permissible governmental action even

when prohibiting the most beneficial use of the

property.” Penn Central Transp. Co. v. New York City,

supra at 125 (citations omitted). Accordingly, the

character of the governmental action is of no help to

the plaintiffs.

C. Motion for judgment on the pleadings.

“The effect of a motion for judgment on the pleadings

is to challenge the legal sufficiency of the

complaint.” Sampson v. L , 405 Mass. 29, 30

(1989), quoting from Burlington v. District Attorney

for the N. Dist., 381 Mass. 717, 717-718 (1980). We

take “all of the well pleaded allegations in the

[plaintiffs ] pleadings . . - to be true and all

contravening assertions in the [defendant’s]

pleadings to be false.’ 5 C.A. Wright & A.R. Miller,

Federal Practice and Procedure § 1368, at 691

(1969).” Minaya v. Massachusetts Credit Union

Massachustt\:) ——————

<< ie" |

45a

Share Ins. Corp., 392 Mass. 904, 905 (1984). When

the defendant is the proponent, the motion is treated

as a motion to dismiss which argues that the

complaint fails to state a claim upon which relief can

be granted. Smith & Zobel, Rules Practice § 12.16

(1974). Mass.R.Civ.P. 12, 365 Mass. 754 (1974).

Pupecki v. James Madison Corp., 376 Mass. 212,

214 n.2 (1978).

The plaintiffs argue that the judge erred by

analyzing the original complaint along with the first

amended and the second amended complaints in

ruling on the motion. We agree. The judge reviewed

the allegations contained in all three complaints “in

an effort to promote judicial economy,” and in an

effort to address the plaintiffs’ allegations which

“relfied] on the second amended complaint.” (A. I:221)

Although this may have been an attempt to aid the

plaintiffs’ efforts, a judge may not look beyond the

pleadings without treating the motion as one for

summary judgement. Mass.R.Civ.P. 12(c), 365 Mass.

754 (1974). The plaintiffs’ complaint had already

been amended once. Thus, the original complaint

was certainly no longer relevant. Furthermore, the

second amended complaint had not yet been allowed.

If the judge wanted to address the allegations

contained therein, he should have first allowed the

plaintiffs motion to amend. Instead the judge simply

addressed some of the allegations contained in the

second amended complaint without recognizing that

the complaint added defendants or applying the

allegations of the second amended complaint to those

newly added defendants.!3 The plaintiffs’ motion to

13 Addressing all three complaints had no real bearing on

the judge’s analysis of the plaintiffs’ claim. The judge held that

“[t}here simply is no relief to the extent that the complaint alleges

that the scoping decisions of the EOEA constituted a constructive

taking of the plaintiffs’ property.” The judge noted that the

plaintiffs were required to follow the MEPA regulations, and they

did not allege that the process took longer than usual. The judge

failed to address, however, the heart of the plaintiffs’ claim: that

ee Arena erates Stina

46a

amend was subsequently denied as it applied to the

EOEA.'* The parties have not challenged this

decision. Accordingly, only the first amended

complaint should be reviewed.!5

The error is harmless, however, because the

plaintiffs, claim is barred by the statute of

limitations.'6 The plaintiffs’ claim was brought

purportedly pursuant to G. L. c. 79, § 9 and/or 10.

The limitation in § 9 is not applicable because the

claim here is not for an injury, in the words of that

statute, caused “by the establishment, construction,

maintenance, operation, alteration, repair or

discontinuance of a public improvement which does

not involve the taking of private property.” The

limitation in § 10, applying to acts in pais, is to be

used in this case because the “damage” of which the

plaintiffs complain was not “effected by or in

accordance with a formal vote or order of the board of

the requirements set by the EOEA exceeded the scope of its

authority. Indeed, it has been recognized that scoping decisions

can create a legally cognizable injury. Villages Dev. Co. Vv.

Secretary of the Executive Office of Envtl. Affairs, 410 Mass. 100,

106 (1991).

14 The judge allowed the plaintiffs to amend those claims

applying to the city but denied all amendments applicable to

claims against the EOEA.

1S The first amended complaint makes only a single

allegation that can be credited to the EOEA. The allegation states

that:

“So long as Standard Times Field was subject to

the screening studies and so long as it was

designated the alternate site for the treatment

plant, the plaintiffs were not allowed by the

defendants to develop the property in a manner

incompatible with its potential use as a site for the

waste water treatment plant.”

(App. 1:19) The second amended complaint is far more detailed.

16 Although the EOEA raised this argument below, it was

not addressed by the motion judge.

47a

~—_——

officers of a body politic or corporate duly authorized

by law."17 G. L. c. 79, § 10. See Wine v.

Commonwealth, 301 Mass. 451, 455 (1938).

Accordingly, “[iJn case of a specific taking, entry,

seizure or other act causing destruction or damage or

depriving the owner of the use of his property

permanently or for a definite period of time,, the right

to damages shall vest on the date of the specific act,

and a petition for the award of damages may be filed

within one year from that date, “otherwise damages

shall he assessed with respect to any parcel of

property as of the date when such preperty was first

injuriously affected, the right thereto shall vest upon

_ the completion of the public improvement which

caused the injury, and a petition for an award of

damages therefor under this section may be filed

within one year after such completion.” G. L. c. 79,

§ 10.

In this case, it was not the construction of the

second wastewater treatment plant that caused the

plaintiffs’ alleged injury. Rather, it was the alleged

refusal of the EOEA to permit development of the

parcel after it was designated as a potential location

for the plant. Thus, the operative date for calculating

the statute of limitations is the date of the EOEA’s

action preventing development of the property. The

EOEA’s actions, however, were ongoing in nature, and

it is not apparent in looking to the pleadings whether

any singular act, in and of itself, rose to the level of a

taking. “The statute requires a definite and distinct

act as beginning the period in which a petition for

damages may be filed. The Legislature did not intend

‘7 The acts of which the plaintiffs complain were

authorized by law and, by hypothesis for the purpose of analyzing

the statute of limitations, involved the “taking” of land. Cf.

Triangle Center, Inc. v. Department of Pub. Work , 386 Mass. 858,

861 (1982), in which the court concluded that there was no taking

(in pais) because there was no action appropriating land pursuant

to statute and the concept of a regulatory or de facto taking was

not considered.

48a

to put the burden upon the landowner to determine

when in the partial performance of a piece of work the

period for bringing a petition would start to run

against him.” United States Gypsum Co. v. Mystic

River Bridge Authy., 129 Mass. 130, 142 (1952), citing

United States v. Dickinson, 331 U.S. 745 (1947). The

critical point occurs when the “landowner has

actually parted with his property or its possession or

some interest therein.” United States Gypsum Co. v.

Mystic River Bridge Authy., supra at 141.

The plaintiffs contend that the relevant moment

was the date of foreclosure on the property. The

EOEA argues the clock started in 1987 when the

plaintiffs discovered that the parcel had been

designated as a potential site for the new wastewater

treatment plant. Neither date is relevant to our

inquiry. The date of the foreclosure is not related to

the alleged taking. Foreclosure results from a

breakdown in the relationship between mortgagor and

mortgagee. It marks the moment when the plaintiffs

ran out of money, but does not shed light on when a

regulatory taking may have occurred. The date that

the plaintiffs discovered their land was earmarked as

a potential site for the plant is also unhelpful. At that

point, the plaintiffs had not filed an ENF with the

EOEA and could not have appreciated the manner in

which the EOEA would proceed with the proposed

development. For purposes of eminent domain, the

significant event is the taking of the plaintiffs,

property for a public purpose. Ina regulatory takings

action, the injury is defined by the regulatory action

and its impact on the landowner’s property interests.

Although the first amended complaint is barren

of any dates or references to specific regulatory

actions taken by the EOEA, the relevant facts were

part of the public arena and are undisputed. Indeed,

in their reply brief, the plaintiffs cite to certain actions

taken by the EOEA that would serve to evidence

injurious regulations for the purposes of establishing

the starting point for a statue of limitations analysis.

49a

Even assuming that any of these events constituted a

taking, none occurred within one year of the filing of

the plaintiffs’ complaint. Even taking a more

generous approach and looking to the latest action

taken by the EOEA regarding the plaintiffs, property

does not help the plaintiffs. The latest possible action

taken by the EOF.A occurred in June, 1990, when the

EOEA refused to de-designate the property as an

alternative site for the treatment plant. The plaintiffs’

complaint was not filed until July 8, 1992.

Accordingly, even taking a generous approach, the

plaintiffs, action is barred by the statute of

limitations.

Ii. Conclusion. Accordingly, there was no

error in the allowance of the city’s motion for

summary judgment and the EOEA’s motion for

judgment on the pleadings.

Judgments affirmed.

By the Court (Brown, Dreben

Doerfer, JJ.),

ls/

First Assistant Clerk

Entered: September 12, 2002.

50a

APPENDIX E

COMMONWEALTH OF MASSACHUSETTS

BRISTOL, ss. SUPERIOR COURT

CIVIL ACTION

NO. 92-01987

VINCENT GRASSO & others!

vs.

CITY OF NEW BEDFORD & another?

MEMORANDUM OF DECISION AND ORDER ON

CROSS-MOTIONS FOR SUMMARY JUDGMENT

The plaintiffs, owners of a parcel of property in

New Bedford, Massachusetts known as Standard

Times Field, commenced the present action against

the City of New Bedford (the “City”) and the Executive

Office of Environmental Affairs (“EOEA”) seeking

compensation for an alleged regulatory taking of that

property. This matter is now before the court on the

cross-motions for summary judgment filed by the

plaintiffs and by the City. For the reasons discussed

below, the plaintiffs’ motion for summary judgment is

denied, and the City’s cross-motion for summary

judgment is allowed.

1 Robert P. Regan, Palmer’s Cove Limited Partnership, and

Old New Bedford Waterfront Corporation.

2 The Executive Office of Environmental Affairs.

3 On October 21, 1994, this Court (O’Brien, J.) entered

judgment on the pleadings in favor of EOEA on the ground that

the plaintiffs had no cause of action against that agency for a

regulatory taking because they had failed to timely challenge

EOEA’s Environmental Impact Report scooping determination.

Sla

BACKGROUND

The undisputed material facts as established

by the summary judgment record are as follows:

Plaintiffs Vincent Grasso (“Grasso”) and Robert

Regan (“Regan”) incorporated the Old New Bedford

Waterfront Corporation (“ONBW) to conduct the

general business of real estate acquisition,

investment, and development. On September 25,

1986, ONBW entered into a purchase and sale

agreement to purchase a vacant waterfront parcel of

land known as Standard Times Field (the “Parcel”)

from Palmer’s Island Corporation for $2.7 million.

The Parcel consists of “upland,” which is bounded by

New Bedford Harbor, and “submerged land,” which

runs under the harbor to Palmer’s Island. The

plaintiffs intended to develop the Parcel, which was

zoned as an “Industrial B” district, as a marina and

waterfront park. They also considered the possibility —

of developing the upland with condominiums, which

would require a zoning change to a “Mixed Use’

district since residential uses are not permitted in an

“Industrial B” zone. The plaintiffs expected to obtain

the necessary zoning change because the Parcel had

been vacant since the 1930’s; it was believed to be

unsuitable for maritime industrial use due to a

hurricane barrier, which effectively blocked direct

access to the ocean, and shallow drafts between the

upland and Palmer’s Island. The New Bedford Harbor

Master Planning Study done in the 1970’s identified

the Parcel as most appropriate for parks and beaches.

That description continued in a draft New Bedford-

Fairhaven Harbor Master Plan being developed at the

time that the plaintiffs purchased the Parcel. The

Parcel was free of oil and hazardous wastes. The

plaintiffs anticipated permitting for all uses to be

completed within two years of their purchase of the

Parcel.

Pursuant to the federal Clean Waters Act, the

City was required to upgrade its Fort Rodman

52a

wastewater treatment plant to meet federal secondary

treatment effluent limitations.4 To accomplish this,

the City needed to construct a secondary wastewater

treatment plant to work in tandem with the Fort

Rodman plant. Federal funds were available to the

City to study, plan, and build the secondary plant,

but not to purchase or take by eminent domain

private land on which to locate it.

ONBW closed on the purchase of the Parcel on

December 30, 1986, financing the deal by executing a

promissory note for $2.7 million to the Warren Five

Cents Saving Bank (the “Bank”), secured by a

mortgage on the Parcel in that amount.

Thereafter, on February 2, 1987, the City filed

an Environmental Notification Form (“ENF”) with

EOEA, the agency responsible for implementing the

Massachusetts Environmental Protection Act

(“MEPA”’), G.L. c. 20, §§ 61-62H. The City’s ENF

identified four possible locations for the secondary

wastewater treatment plant. One of the alternative

locations was the upland portion of the Parcel;

another involved expansion of the existing Fort

Rodman plant onto adjacent property.

The City’s Mayor, John Bullard, publicly

opposed the development of the tidelands portion of

the Parcel with a marina because it would make it

more costly for the City to acquire the upland for a

secondary wastewater treatment plant in the event

that the upland were to be chosen as the site for the

plant. In April of 1987, Mayor Bullard informed ONBW

that the City was considering the Parcel as a potential

location for its secondary wastewater treatment plant

and requested that it delay development plans until

the completion of the plant selection process.

Residents from the Fort Rodman neighborhood

were adamantly opposed to siting the secondary plant

at Fort Rodman. They formed highly active and

4 The Fort Rodman plant is located on land in the South

End of the City in Ward 6.

53a

influertial citizen groups, including the Save Fort

Rodman Committee and the South End Citizens

Association. At all relevant times, these two groups

opposed the marina project because they believed

that it would increase the cost to the City of taking

the Parcel for the treatment plant, making it more

likely that the Fort Rodman site ultimately would be

chosen.

On July 8, 1987, Grasso and Regan formed the

Palmers Cove Limited Partnership (the “Partnership”);

each was a 49.5% limited partner, and ONBW was the

general partner and 1% limited partner. ONBW

deeded its title and rights to the Parcel to the

Partnership in exchange for the Partnership’s

assumption of liability on the promissory note.

On August 27, 1987, ONBW filed an ENF for its

waterfront park project with the EOEA.5 The ENF

described plans to construct a marina, harbor

master’s house, public boardwalk along the water’s

edge, two restaurants, a fifty room guest inn, 10,000

gross square feet of marine-related and commercial

retail space, and 10,000 gross square feet of

neighborhood retail space on the Parcel. The ENF

further noted:

This parcel is adjacent to a 22+ acre

parcel which is currently scheduled for

development (see attached site plan).

5 Under MEPA, before any state agency can issue a permit

for a proposed development project, the EOEA must determine,

after consulting with all interested parties, whether a

comprehensive environmental impact report (“EIR”) is required

and, if so, must determine the form, content level of detail, and

alternatives required for the report and must limit the scope of the

report to those issues which, by the nature and location of the

project are likely to cause damage to the environment and, if no

financial assistance from the agency is sought, to those issues

which are within the subject matter jurisdiction of the permit.

Villages Development Co. v. Secretary of the Executive Office of

Environmental Affairs, 410 Mass. 100, 102 (1991), citing G.L.

c. 30, § 62A; 301 Code Mass. Regs. § 11.06.

54a

The preferred development program for

that-parcel is residential with related

amenities. However, at present, that

parcel is zoned as Industrial B and will

require rezoning to accommodate

housing. The applicant desires to

proceed at this time with the park

project because: (1) the time frame for

the residential rezoning has not been

defined and (2) the waterfront park is

financially and programmatically

independent of the residential project

(i.e. (a) marina slips are not associated

with residential units, and (b) the

waterfront park will be developed with or

without the residential development.)

The applicant will submit a separate

ENF for the remainder of the parcel at

the appropriate time.

Thereafter, on September 30, 1987, Mayor

Bullard wrote a letter to EOEA Secretary James Hoyte

containing his official comments regarding ONBW’s

ENF. The Mayor wrote:

I have a major concern about this

project’s timing relative to another that *

is in the planning stages. I am referring

to the construction of a secondary

wastewater treatment plant ia the City of

New Bedford ... On January 30, 1987,

the City filed an Environmental

Notification Form ... specifically naming

that site as a possible location for our

new wastewater treatment plant with the

final decision (excluding tne approval

process through DEQE and EPA) made

by next spring.

55a

While primarily concerned about

the proposed project because of its

timing, I am also equally concerned that

the use proposed for what is the largest

remaining undeveloped area within a

designated port receive a comprehensive

review. A comprehensive review cannot

be made if the project continues in its

current segmented state. It is very clear

that the area proposed for development

is connected with the land inland from

the development. In fact only 14 acres of

the proposed development are above the

high water mark, léaving 22 acres of

land to be developed in a manner not

mentioned.

Therefore, I am urging you to

include within the scoping requirements

for the Environmental Impact Report a

condition that the Proponent fully

address all development alternatives for

that site. This should include:

1. A discussion of the

Waterfront Park/ Marina including

alternatives if the remainder of

the property remains industrially

zoned;

a: A discussion of the

Waterfront Park/ Marina including

alternatives if the remainder of

the property receives a zoning

change to residential;

3. A discussion of the

Waterfront Park/Marina if the

wastewater treatment plant were

56a

to occupy the remainder of the

property; and

4. A discussion of an

alternative if it were to be used

only for the wastewater treatment

plant with no Waterfront Park or

Marina.

At this point and for the next

several years the construction of a

secondary treatment plant will remain

the number one environmental priority

of the City.

Also on September 30, the City’s

Environmental Planner, Marcy Weatherbee, wrote a

letter to the EOEA containing her official comments

on the project. In addition to discussing issues such

as wetlands, traffic and parking, and solid waste,

Weatherbee stressed the importance of getting an EIR

that assessed the entirety of the proposed project,

including likely future expansions. She wrote:

Old New Bedford Waterfront

Corporation feels that their project does

not conflict with “current federal, state

and local ... environmental plans and

policies.” In fact, this is not the case at

all. The “environmental plan” I am

referring to is the construction of a

secondary treatment plant in the City.

The Proponent is fully aware of the fact

that the City is considering that site for

the location of treatment plant. The final

siting decision will be made in the

Spring of 1988. Their project, as

proposed, directly conflicts with any

plans the City may have for a treatment

plant on the remainder of that site.

57a

One of the general concerns I

have relates to the severability of this

project. The key can be located within

301 CMR 11 which states, “the entirety

of a proposed project, including likely

future expansions, shall be considered

and not separate phases or segments

thereof.” . . . Because the Proponent has

the “intent” to develop the remainder of

the property, and the fact that any

impacts from future development cannot

be easily separated, I am requesting that

they be required to fully address all

possible alternatives for the entire site.

This should consist of a discussion of

the current project including the

residential project, the current project

with an industrial portion, the current

project with a wastewater treatment

plant on the remainder of the site, and,

perhaps, a scenario if the treatment

plant were to occupy the entire site.

On October 13, 1987, pursuant to MEPA,

EOEA issued a Certificate requiring ONBW to prepare

an Environmental Impact Report for the waterfront

park project. The Certificate stated:

There is disagreement whether

this project taken alone, constitutes

segmentation, pursuant to 301 CMR

11.16. The pertinent facts, regarding the

issue areas follows:

* the project described in the ENF

... does have independent utility;

58a

* on the other hand, the project

could potentially preclude or

affect the choice of alternatives or

mitigation for the remaining 22

acre parcel, because of the loss of

direct access to the waterfront.

The importance of an analysis of

alternative uses for the site has been

clearly demonstrated. This site is ina

Designated Port Area (DPA); however,

the project proposal is inconsistent with

the marine industrial designation.

Moreover, this site is being actively

considered by the City of New Bedford

for a secondary wastewater treatment

plant.

Based on these facts, it will be

important to evaluate the potential

effects from the entire project. A review

process will be established whereby the

Draft EIR is a planning document for the

entire site. When the public review of

the draft has been satisfied, it will be

possible for the proponent to proceed

with a Final EIR for the discrete phases

of the entire project.

The Certificate thus required the scope of the

EIR to include: 1) The “Preferred Alternative, as

described in the ENF, and including the residential

component for the 22 acre site”; 2) “A Maritime-

dependent Industrial Project Alternative, which is

consistent with the state’s Designated Port Area

policies”; 3) “A Secondary Treatment Plant Alternative

should be presented, base”. .n the site assessment

study that is being prepucd for the City of New

Bedford”; and 4) “Additional Alternatives that are a

59a

combination of elements of alternatives 1 and 2, and

alternatives 1 and 3.”

With respect to the residential component for

the 22 acre site, the Certificate noted that “in order for

this proposal to proceed, a local zoning change will be

necessary,” a proposition that was undisputedly

accurate. Nothing in the Certificate required that the

zoning change actually be obtained prior to

completion of the EIR, or stated that EOEA approval

would not be forthcoming for the marina were

condominiums not permitted to be built on the

upland. Indeed, the language describing “additional

alternatives” makes it clear that ultimate approval of

the marina was not tied to rezoning; EOEA pointed

out that, at the scoping session, a representative of

EPA had observed that a waterfront park and marina

are not necessarily incompatible with industrial uses.

The plaintiffs chose not to challenge the validity of any

part of the Certificate.

ONBW employed experts to conduct a wetland

resources study and met with the City’s Shellfish

Constable, the Commonwealth’s Division of Marine

Studies, the EPA, the U.S. Army Corps of Engineers,

and the Division of Wetlands and Waterways of the

Commonwealth’s Department of Environmental

Protection (“DEP”) to develop mitigation measures for

the proposed work on eight identified wetland

resource areas in the Parcel. ONBW also

commissioned a study of the navigation impacts of the

proposed marina, including detailed harbor traffic

counts and a wave and wake analysis incorporating

weather and wind data. Further, it commissioned

detailed engineering studies analyzing the Parcel’s

Suitability for diverse maritime dependent industrial

uses, and its suitability for the proposed

condominiums, including community economic

benefits and fiscal impacts of the condominiums, a

comprehensive marina needs analysis, and a

comprehensive automobile traffic count with proposed

mitigation measures.

60a

On December 4, 1987, ONBW filed an

application with the City Council to amend the zoning

of the Parcel from Industrial B to Mixed-Use Business

in order to permit the condominium project. New

Bedford’s Planning Board (the “Board”) was required

to review the petition and make a non-binding,

advisory recommendation to the City Council

Ordinance Committee. In connection with ONBW’s

petition, the Board received a letter from the South

End Business Association opining that, although the

proposal would economically benefit the City,

rezoning should be postponed until the City

determined the exact location of its waste treatment

plant.

New Bedford City Planner and Planning Board

Chairman also wrote to the Board concerning the

wisdom of changing the classification from Industrial

B to a use which would allow retail, commercial, and

industrial use. He questioned whether the Parcel was

“the most appropriate site for residential use being

bracketed on the north and south by heavy industrial

uses” and whether, as part of a Massachusetts

Coastal Zone Management Designated Port Area, the

Parcel was “suitable for commercial and retail uses of

a non waterfront dependent nature.” He answered the

questions he had raised with the statement, “(t]he

Planning Department thinks not,” while adding that

the Department was open to be convinced through a

thoughtful analysis of alternative uses for the site. He

also pointed out that the plaintiffs’ EIR for the Parcel

could be used as a planning tool to aid decision

making bodies such as the Planning Board. He

concluded that neither the planning Department nor

the Planning Board had sufficient data to make an

informed recommendation and, thus, the existing

zoning should be deemed best suited to the City’s

needs.

On February 17, 1988, the Board held a public

hearing on ON13W’s petition. City Councilor and

6la

Planning Board Member Daniel Hayes opined that the

rezoning petition was premature and stated:

How can I be expected to vote tonight

when we have a letter from our own

Planning Department stating that we

have insufficient evidence? ... I have no

problem with the entire parcel, in fact |

would like to see it go ahead, but I think

we have to wait for the site of the plant,

the people in this City will have to pay

forever, (a sewer user tax), wherever the

plant goes will certainly be hardship

cost. So we have to make sure, that is

what I am saying.

In addition, the President of the South End Civic

Association read into the minutes, on behalf of four

hundred residents, a letter opposing the rezoning

which argued that a rezoning was premature since the

area was under consideration as a site for the

secondary sewage treatment plant. The Association

pointed out that “premature zoning could cost the

City much more to acquire this land if it were selected

as the sewage treatment plant site.” At the close of the

meeting, the Board voted unanimously to refer the

rezoning petition to the City Council Ordinance

Committee without a recommendation.

The City Council Ordinance Committee held a

public hearing on ONBW’s petition on March 17,

1988. At this time, ONBW withdrew its petition and

promised to work cooperatively with the City until the

wastewater treatment plant siting decision was made,

but requested that the Council do whatever it could to

speed up the siting process. ONBW did not

commence a suit challenging the validity of the

Industrial B zoning classification as applied to the

Parcel.

MB A

62a

Thereafter, in June of 1988, ONBW submitted

its Draft EIR® to the EOEA, with copies provided to

various City officials, including the Planning

Department. During early August of 1988, the New

Bedford Seafood Dealers Association, the Offshore

Manners’ Association, the New Bedford Chamber of

Commerce, and the publisher of the Standard-Times

wrote letters to the EOEA supporting ONBW’s

proposed development of the Parcel, as did abutters

United Socia! Club and Cape Cod Sportswear Co.,

City Council President James Sullivan, Councilor

John Saunders, State Representatives Joseph -

McIntyre and Denis Lawrence, and State Senator

William McLean, Jr- '

On August 11, 1988, New Bedford’s

Environmental Planner wrote a letter to the EOEA

criticizing the Draft EIR, but not on the grounds that

development of the marina would increase the

expense of eminent domain should ‘part of the Parcel

be taken for the treatment plant. She wrote as

follows:

The Proponent states “Although the

project site is of sufficient size to

accommodate the treatment plant,

insufficient buffers exist between the site

and adjacent residential properties and

other uses. . .” The proponent’s

conclusions are premature, if not totally

incorrect. The detailed environmental

evaluation of WWTP site alternatives is

scheduled for completion by December

1988. The level of analyses of the WWTP

alternative conducted by the Proponent

is insufficient tc draw the conclusions

presented.... The proponent fails to

provide any objective analysis of the

6 The draft EIR contained 155 pages of text plus

numerous lengthy exhibits.

EE Re re OS AEB A, sc.

a le tll. FRM ETA An

63a

economics of the project and instead has

described this alternative in terms of

“public costs.” Again, the conclusions of

this analysis are premature.

The following week, on August 19, 1988, the

EOEA issued its Certification stating that the Draft

EIR complied with MEPA and its implementing

regulations. It noted, however, as follows:

The alternatives analysis ... is a

missed opportunity. The discussions in

the Draft EIR lead to the conclusion that

the proposed project is superior to other

possible alternatives. At this stage of the

review these conclusory discussions are

premature. Since alternatives have been

deemed unrealistic, impact analyses

have been dismissed, leaving reviewers

at somewhat of a loss, particularly since

the site is being actively considered for

public projects.

This approach could interfere with

creative solutions to conflicting interests

for the development of the Palmer’s Cove

site. The Final EIR should take into

account the serious comments on the

alternatives analysis and should be more

forthcoming in the analysis of site

options. For example, even if the

proponent is not interested in a mixed

usé proposal, such as a_ waterfront

park/marina and wastewater treatment

plant, the Final EIR should evaluate the

potential for and impacts of such a

mixed development.

The Certificate also found no meaningful

assessment of the issues relating to the Parcel being

64a

part of a Designated Port Area. EOEA observed that

even though the site had been vacant for many years,

the potential for future uses could not be written off,

noting that at least two water related industrial uses

at the site were being contemplated, namely the

wastewater treatment plant and a disposal site for

contaminated dredging materials. The Certificate also

raised several questions which were required to be

answered in the final EIR concerning the plaintiffs’

dredging plans. Once again, the plaintiffs did not

mount a legal challenge to EOEA’s requirement that

the final EIR contain an analysis of site options for the

entire Parcel or to anything else contained in the

Certificate.

From August until December 1988, ONBW met

with state and city officials to discuss the

requirements of the Final EIR. ONBW learned at

these meetings that condominiums could only be

allowed on the upland if that property were “de-

designated” from the New Bedford/Fairhaven Port

Area, and that only the City could apply for such a de-

designation.? When ONBW emphasized that it wanted

to proceed with only the marina portion of the project,

EOEA advised that the marina was ineligible for a

Chapter 91 license because it would extend beyond

the New Bedford harbor line.®

To remedy the chapter 91 problem, ONBW

petitioned the Legislature to alter the boundary of the

New Bedford Harbor Line. The New Bedford Chamber

of Commerce, the publisher of the Standard-Times the

New Bedford Harbor Development Commission, the

7 There is no evidence that the advice given to ONBW

regarding the necessity of de-designation was given in bad faith.

ONBW at no time sought declaratory relief with respect to the

necessity of de-designation.

8 G.L. c. 91, the Waterways Permit and License Programs

designed to protect the Commonwealth’s interests in navigable

waters. Under c. 9 1, a license from the DEP is requ red for any

construction or filling activity in or over tide waters below the high

water mark. See c. 91, §§ 14-18.

Mayor’s Economic Development Office, and City

Councilor James Sullivan wrote letters to the

Legislature supporting legislation that would

accomplish what ONBW was seeking.

On February 20, 1989, Mayor Bullard publicly

announced that he had selected Fort Rodman as the

site for the secondary wastewater treatment plant.

However, City Council approval was needed to raise

the taxes to fund the plant, remove federal deed

restrictions on the land containing Fort Rodman, and

approve the local permits needed for construction of

the plant.

As quoted in the Standard-Times in June of

1989, City Councilor Ralph Saulnier opposed

legislation altering the boundary line of the harbor for

the following reason:

If this bill passes, will the property

become more valuable? Does that rise

in value then make it impossible for us

to afford to take the land if we need it? ...

I think it would be foolish to allow this

bill to go any further until we have more

information... If that plant has to go at

the Standard-Times Field, are we going

to force the taxpayers of this city to pay

more for this property than they should?

City Councilor Nelson Macedo was quoted as stating,

“I think any site that is being considered as a back-up

site shouldn’t be touched.” Councilor-at-large Daniel

Hayes was quoted as stating, “Certainly this -bill will-

enhance the (value of) the Standard-Times Field... We

owe it to every concerned party, the mayor, the City

Coun «il, to get the best information we can about this

legislation.”

In July of 1989, ONBW filed a Notice of Intent

with the New Bedford Conservation Commission and

an application with the DEP Wetlands and Waterways

Division for a Chapter 91 license for dredging and the

Fre ne

66a

construction of a marina, boat slips, fueling station

and a travel lift pier. On July 23, 1989, the Save Fort

Rodman Committee wrote to Governor Dukakis

asking him to defer signing legislation changing the

harbor boundary line, stating:

Fort Rodman and the land

affected by SB1131, known as Standard-

Times Field, have been chosen by our

Mayor as potential sites for a secondary

wastewater facility. We feel that both

properties should remain status quo,

since the sites are currently being

considered, reviewed and analyzed by

federal and state agencies, and the final

decision for the plant has yet to be

made. We feel, however, that the owners

of the Standard-Times field through

enactment of SB1131, have taken action

to increase the value of their land. We

believe this would place a further burden

on the taxpayers of the city of New

Bedford if the Standard-Times field is

chosen as the site and eminent domain

proceedings must be instituted.

Enclosed with this letter was a statement

signed by nine City Councilors requesting the

Governor not to sign Senate Bill- 1131 until the

Committee on Natural Resources could conduct an

advertised public hearing in New Bedford and the City

Council had the opportunity to formally take a

position on the legislation. Unlike the letter from the

Save Fort Rodman Committee, the letter from the

Councilors does not ask the Governor not to sign the

bill because it might increase the cost to the City

should eminent domain proceedings be instituted.

On August 8, 1989, Governor Dukakis

recommended that the legislation be amended as

follows: “This act shall take effect upon a final written

67a

determination by the. Department of Environmental

Protection that the upgraded wastewater treatment

facilities for the City of New Bedford will be sited at a

location other than the Standard Times Fiéld site.”

The Governor stated that he was recommending such

language for the following reasons:

[M]y concern has to do with the upland

parcels that the bill affects

This text is long and has been trimmed here. Open the source document for the complete record.

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.