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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2003
- **Citation:** 538 U.S. 1012

## Text

0211.28 JAN 2 8 2003
orl er me aL ERK

iY)

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.

ii
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

ee

iv

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

Vv

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

vi

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

ae

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).

~

4

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).

In

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

3

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).

6

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).

7

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

8

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

9

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).

10

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

11

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.

12

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

13

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

14

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).

15

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).

16

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

17

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.

18

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

19

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

—

20

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).

21

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

22

“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.

23

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

3
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¥

la

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

2a

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

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

3a

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.

4a

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.

5a

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

6a

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.

7a

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

8a

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.

9a

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

s

~ 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.’

2

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,

7

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, 90

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1082%3A1. Public record. Not legal advice.