41 Mass. App. Ct. 120 | Mass. App. Ct. | 1996
The plaintiffs, as husband and wife, owned a single-family home on 15 Mill Street in the town of Tewksbury. On May 1, 1992, they brought an action against the defendants alleging civil rights violations under G. L. c. 12, §§ 11H and 11I. Both sides cranked up discovery mechanisms under Mass.R.Civ.P. 30, 365 Mass. 780 (1974). Nearly three years later, in January, 1995, summary judgment entered in favor of the defendants. This appeal followed.
From the parties’ materials that properly pertain to the motion for summary judgment, the following undisputed facts
The plaintiffs also produced evidence (denied by the defendants) that Michelle Tortora saw the defendants at the plaintiffs’ property on numerous occasions, that the defendants made disparaging comments about the plaintiffs’ dogs and cars and accused the plaintiffs of violating the cease and desist order without cause, that the defendants Nawn or Monahan, or both, threatened Albert Tortora, an auto mechanic, with immediate arrest “on the spot” if Tortora so much as did an oil change or any automotive work on the property, or if the plaintiffs ever put a nail into the property. There also was evidence that the defendants Nawn or Monahan, or both, had told the plaintiffs never to apply for another permit in the town because he would ensure that they did not get it, and he threatened to have their building permit revoked and to have the board of health at the plaintiffs’ property, and stated that he always would be watching the plaintiffs.
We believe that the gist of the complaint is that the defendant inspectors interfered with the plaintiffs’ rights to use and enjoy their property. The motion judge, however, allowed the defendants’ motion for summary judgment on the ground that the record was devoid of any evidence upon which a jury could find that the plaintiffs were deprived of any rights to use their property in a legal manner by threats, intimidation, or coercion by the defendants.
On appeal, as they apparently did below, the plaintiffs focus mostly upon their claimed right to improve their property. On the facts presented (so far as appears), the defendants legitimately issued a cease and desist order regarding the plaintiffs’ construction. As a result, the plaintiffs’ argument misses the mark. Compare K. Hovnanian at Taunton, Inc. v. Taunton, 37 Mass. App. Ct. at 646, where in an analogous situation, we concluded that a plaintiff’s narrow focus (the alleged right to tie into a specific sewer fine and approval of a subdivision plan) did not constitute a claim of interference with any general right to use its property
The real thrust of the plaintiffs’ claim, however, seems not to be that the defendants prevented the plaintiffs from completing their addition (which the plaintiffs themselves had not been able to do for two years), but rather stems from the threats made afterwards. Compare Swanset Dev. Corp. v. Taunton, 423 Mass. 390, 395-396 (1996). As to this, there was probative evidence on the summary judgment record to
Accordingly, we remand for a triál to determine whether the defendants crossed the line from legitimate exercise of their authority to illegal harassment or impairment of
The judgment for the defendants is reversed, and the matter is remanded to the Superior Court for trial on the merits of the claims under G. L. c. 12, §§ 11H and 111.
So ordered.
In examining the materials we have disregarded the assertions in the complaint since the complaint has not been verified, except insofar as the assertions constitute judicial admissions by either plaintiff. See Liacos, Massachusetts Evidence § 2.4.2 (6th ed. 1994). The affidavits and transcripts of depositions provide the basic materials on which the motion is to be decided.
The notice on the existing house was posted to alert anyone going into the addition from that direction. It subsequently was removed. The plaintiffs do not challenge the defendants’ authority to issue (or even to enforce) the cease and desist order, nor do they assert that order was invalid. They also do not challenge the posting of the addition (or the presumably mistaken posting of the house, for that matter) as unsafe.
Unlike the present case, however, the result in K. Hovnanian was reached after a trial, and the court also noted that there was no “corrupt or egregious conduct that so shocks the conscience as to give rise to a due process claim.” 37 Mass. App. Ct. at 647. Here, as discussed below, there are threats of immediate arrest without even issuance of a violation or an application for a criminal complaint.
Federal cases concerning unsuccessful claims pursuant to 42 U.S.C. § 1983, alleging harm by denial of a permit which should have issued, are inapposite. See Creative Envts., Inc. v. Estabrook, 680 F.2d 822, 831-832 & n.9 (1st Cir. 1981), cert, denied, 459 U.S. 989 (1982); Chiplin Enterprises, Inc. v. Lebanon, 712 F.2d 1524, 1527 (1st Cir. 1983).
The threats of arrest would appear to satisfy any requirement (if such there is) that there be “a physical confrontation accompanied by a threat of harm.” See Bally v. Northeastern Univ., 403 Mass. 713, 719-720 (1989), and cases cited. See also Pheasant Ridge Assocs. Ltd. Partnership v. Burlington, 399 Mass. 771, 781 (1987) (threats or arrest or physical eviction); Freeman v. Planning Bd. of W. Boylston, 419 Mass. 548, 566 n.18, cert, denied, 116 S. Ct. 337 (1995)(Supreme Judicial Court assumed, without deciding, that certain forms of oppression or domination not involving physical force might constitute coercion under the State Civil Rights Act). Compare Swanset Dev. Corp. v. Taunton, 423 Mass. 390, 395-397 (1996).