The defendant town, acting through its selectmen, purported to take a 14.5 acre parcel on Center Street pursuant to a unanimous vote of a September 23, 1985, town meeting. The town voted to take the property “for the purpose of parks, recreation, and the construction of moderate income housing which will be subject to the review and approval of Town Meeting." The vote further appropriated $1,130,000 from available funds to pay for the land taking. On October 21, 1985, the selectmen adopted an order of taking which was recorded in the appropriate registry of deeds on November 15.
Under G. L. c. 40B, § 21 (1984 ed.), a limited dividend organization may submit an application for a comprehensive permit authorizing the construction of low or moderate income housing, as defined in G. L. c. 40A, § 20, in lieu of making application to various municipal boards. The details of the handling of such an application, including any appeal from its denial, are spelled out in
Board of Appeals of Hanover
v.
Housing Appeals Comm.,
The board of appeals held its first public hearing on the application on July 23, 1985. Its next session was held on August 20. The board received reports from various town boards and indicated that it wanted supplemental information from the selectmen and the board of health, which was received by the close of the board’s October 15 session. The plaintiffs insisted to the board that the hearing portion of the proceeding was concluded at the close of the August 20 session. The board received some further information by the time of its November 5
The issues in this appeal concern (1) the lawfulness of the town’s taking in light of the plaintiffs’ assertion that the taking was made in bad faith, (2) whether the defendant town and members of the board of selectmen are liable under G. L. c. 12, § 111 (1984 ed.), and (3) whether the comprehensive permit was constructively granted because the board of appeals did not act seasonably on the application. These issues arise from the partial allowance by a Superior Court judge of the plaintiffs’ motion for summary judgment and the immediate entry of a judgment on certain counts of the complaint.
The motion judge filed an extensive memorandum in which he concluded, as the judgment later reflected, that (1) the taking was void because the town acted in bad faith, (2) the town and the selectmen were liable for violating G. L. c. 12, § 111 (the amount of any damages to be determined later), and (3) the comprehensive permit had been constructively granted because the board of appeals did not render its decision within the time required under G. L. c. 40B, § 21. 4 We allowed the town’s application for direct appellate review of its appeal.
We agree with the motion judge that the taking was unlawful and void and that the comprehensive permit was constructively granted. We disagree, however, with his conclusion that partial summary judgment should be entered on the claim made under G. L. c. 12, § 1II, that the town and the members of the board of selectmen interfered or attempted to interfere with the plaintiffs’ rights by threats, intimidation, or coercion.
1. We consider first the plaintiffs’ challenge to the validity of the taking and conclude that the motion judge was correct
Previous challenges to the motives behind municipal land takings that have appeared facially valid have been unsuccessful on their facts in this court. See
Chelmsford
v.
DiBiase,
Bad faith in the use of the power of eminent domain is not limited to action taken solely to benefit private interests. It includes the use of the power of eminent domain solely for a reason that is not proper, although the stated public purpose or purposes for the taking are plainly valid ones. For example, when a county took land for a training area for its police and fire employees, on which a city planned to construct a sewage treatment plant and, on the facts, the reason for the county’s action was to prevent construction of the sewage treatment plant, the power of eminent domain was used in bad faith and the taking was invalid.
Carroll County
v.
Bremen,
It is not easy to prove that particular municipal action was taken in bad faith. This is particularly true where the significant event is an affirmative vote (here at least a two-thirds vote) of the persons voting at a town meeting on a motion to take a particular parcel of land. Challenges to town meeting action based on a claim that unlawful, improper, or erroneous reasons were advanced at town meeting or elsewhere in support of the challenged action have been unsuccessful. See
Simon
v.
Needham,
In the case of a corporation we attribute to the corporation the actions, words, and knowledge of its employees acting within their authority. See
Galvin
v.
New York, N.H. & H. R.R.,
There are certain motives or reasons that would be unlawful if they were the dominant reasons for the town’s taking.
5
Clearly, taking land solely to block G. L. c. 40B, § 21, low or moderate income housing would be improper. To have taken the site involved in this case to prevent the impact of the proposed development on the water, sewer, traffic, and other problems of the town would not have been action in good faith. The town was not barring other residential development on these grounds. There was another larger development for which a comprehensive permit was sought under G. L. c. 40B at about the same time, and the town did not try to take that property. Problems with what is now called the “infrastructure”
The only valid justification, in the circumstances, for the taking would be that the town truly intended that the land should be used for the purposes for which it was taken. The record is clear that in recent years the town had studied its needs for parks and recreation and that neither the Center Street site nor any parcel in the general vicinity of that site had been considered for acquisition for park or recreational uses. There is no indication in the record that before the plaintiffs’ proposal was announced any town board was seeking to provide low and moderate income housing on or near the site.
The matter of taking the subject site came forward only when the plaintiffs’ proposal became known. Although not controlling, the absence of any prior town interest in the site or its neighborhood is instructive on the matter of good faith. See
Chelmsford
v.
DiBiase,
The manner in which the town dealt with the attempted acquisition of the subject parcel was not in accord with its usual practices. The town agencies, such as the housing authority, recreation commission, conservation commission and planning board, that were responsible for town activities in the areas for which the land was to be taken were not consulted, as they normally would have been, either as to the merits or feasibility of the proposed use or the cost of any such use. The purposes for which the site was to be taken were not known to the town’s finance committee, in Burlington called the ways and means committee, or to the town’s capital budget committee, prior to the September 23 town meeting. Those purposes for which the taking was to be proposed were developed by the selectmen and town counsel within minutes before the commencement of the town meeting.
The presentation by the chairman of the board of selectmen of the motion under the September 23 warrant article shows beyond question that the town meeting was being asked to consider the motion, not on the merits of the acquisition of the site for uses stated in the motion, but to bar the plaintiffs’ development.
8
The town is not bound by the statements of the
We conclude, as noted earlier, that the portion of the judgment declaring the purported taking unlawful and void should be affirmed.
2. The town and the board of selectmen also challenge that portion of the judgment that states that “the defendant Town and defendant Board of Selectmen by their actions violated G. L. c. 12, § 111.”
10
Section 111 incorporates § 11H and in doing so provides, among other things, that any person whose exercise or enjoyment of rights secured by the Constitution or laws of the Commonwealth has been interfered with, or attempted to be interfered with, by threats, intimidation, or coercion may maintain an action against the wrongdoer. There is no
The judge concluded that the wrongful taking of property was “a coercive act; especially as done in this case.” He based the § 11I liability of the board of selectmen and the town solely on the ground that the taking was coercion within the meaning of G. L. c. 12, §§ 11H and 11I. We do not agree.
Although the purported taking of the plaintiffs’ property was unlawful because done in bad faith, the taking did not itself interfere or attempt to interfere with the plaintiffs’ rights by coercion. The taking was an attempted direct, preemptive act and did not seek to coerce any plaintiff to do or not to do anything. Legislation, even unlawful legislation, lacks any quality of coercion when that legislation seeks to eliminate the rights of a person and does not seek to force that person unwillingly to do or not to do something otherwise lawful. 11
The plaintiffs argue further that at least two selectmen made statements to the effect that they would take any action necessary to stop the development, that all the selectmen acquiesced in those statements and efforts to block the development, and that these statements were threats and intimidation within the meaning of those words incorporated into § 11I. These words do not threaten a person with arrest or physical eviction (see
Batchelder v. Allied Stores Corp.,
We decline to reach, on review of the partial summary judgment, certain issues not decided below which may not have to be decided at any time in the course of the litigation. We have not decided that we will follow decisions of the Supreme Court of the United States construing similar but not identical language in 42 U.S.C. § 1983 (1982), and other civil rights laws, particularly conclusions expressed in opinions released after G. L. c. 12, §§ 11H and 11I, were enacted. We decline now to decide whether under § 11I we will adopt a rule of qualified good faith immunity for public officials.
12
See
Harlow
v.
Fitzgerald,
3. The judge correctly ruled that the comprehensive permit was constructively granted pursuant to G. L. c. 40B, § 21. He so concluded because the board of appeals failed to render its decision within forty days of October 15, 1985, the last date on which a ‘“public hearing’ on the permit application can be said to have terminated.”
The only argument of substance the town advances here on this issue is the assertion that G. L. c. 40B, § 21, does not authorize a determination that there has been a constructive grant of a comprehensive permit when the board’s decision is made within forty days of the date of the last scheduled hearing. The forty-day period runs from the date of the last session at which interested persons presented information and argument.
Milton Commons Assocs.
v.
Board of Appeals of Milton,
There was no meaningful hearing on November 19. We need not decide at what earlier date the hearing should be treated as concluded. The town’s suggestion that there is a disputed fact whether the board was reasonable in holding the hearing open until November 19 is not supported by references to the record material. Our view of the record indicates that there is no dispute of material fact on the question of the reasonableness of the delay.
4. We affirm the judgment in so far as it declares (paragraph A) the purported taking to have been made in bad faith and to be void and declares (paragraph C) that the comprehensive permit was constructively granted. We vacate the portion of the
So ordered.
Notes
The plaintiffs’ announcement of the proposed development in February, 1985, had produced immediate, substantial, town-wide opposition. An article was placed in the warrant for the May, 1985, town meeting authorizing the taking of the Center Street parcel. On advice of town counsel, however, no motion to take the property was offered, but the town did vote to appropriate funds for an appraisal of the property.
The motion judge deferred consideration of a claim based on'a violation of 42 U.S.C. § 1983 (1982), and the determination of any damage until after the disposition of any appeal from the judgment.
We need not define dominant reason with precision in order to decide this case. A showing here that this taking occurred only for the unlawful reason that the town wanted to block the plaintiffs’ development is surely enough.
The town argues that the judge should have allowed its motion to strike substantial parts of the plaintiffs’ affidavit material in support of summary judgment. The judge correctly noted that there was no dispute as to a material fact on the bad faith issue. Some affidavit material was admissible to show what information had been given to the town, its selectmen, and its town meeting members concerning various matters and was not hearsay for that purpose.
In fact, moderate income housing by itself is not clearly a proper purpose for the taking of land
(Massachusetts Home Mortgage Fin. Agency
v.
New England Merchants Nat’l Bank,
The chairman of the board referred to a letter he had recently received from the Secretary of the Executive Office of Communities and Development expressing disapproval of the taking as “effectively removing the property from consideration for this rental housing, and nullifying the developers’ application for a comprehensive permit” under G. L. c. 40B. The chairman identified as a threat the letter’s suggestion that the town might cease to be eligible for State discretionary funds if it did not address its housing needs. The chairman added, “So, the important piece of information here is that the state has acknowledged that if we take this land, that we would in fact nullify the application of a comprehensive permit for the apartments. A lot of people wanted to know if it would or not, and the state says that it does. That’s assuming, however, that the town is taking the land for public purpose. So we, the board of selectmen, felt that to appropriately act as you
A municipality is not bound by statements of elected officials made in election campaigns
(Moskow
v.
Boston Redevelopment Auth.,
The judge made no decision concerning the liability of the board of appeals on the count based on G. L. c. 12, § 11I. The judge does not explicitly state whether the selectmen violated § 11I in their official or individual capacities or both.
In the dissent in Redgrave v. Boston Symphony Orchestra, Inc., ante 93, 104 (1987) (O’Connor, J., dissenting, joined by Lynch, J.), two Justices of this court concluded that coercion involved “restraint or domination of another’s will” and appeared “to refer to restraint accomplished by physical force.” Certainly there is no such coercion shown in this case. To dispose of the § 11I issue as it relates to a taking being coercion, and without further defining coercion, we need only conclude that an invalid land taking does not interfere or attempt to interfere with the landowner’s rights in the land by coercion.
Although we conclude as a matter of law that the taking was not made in good faith, there is contested record evidence whether the selectmen thought that what they were proposing was unlawful. They consulted town counsel and may have acted in an objectively reasonable way in concluding that they were pursuing an available legal method of stopping the development.
There is no discussion in the briefs, and none we have found in the record, as to the applicability, if any, of G. L. c. 258 (1984 ed.), the Massachusetts Tort Claims Act, to an action against a municipality or municipal officials under G. L. c. 12, § 11I.