Opinion
Civil Action No. 01-10006-RWZ
February 5, 2002
MEMORANDUM OF DECISION
Plaintiffs, Janet and Thomas Donovan ("Donovans"), allege that Defendants Mayor James Rurak ("Rurak"), Public Works Director James Flaherty ("Flaherty") and the City of Haverill (the "City"), misrepresented and deliberately refused to comply with state statutes and local ordinances in connection with the moving of Plaintiffs' house. They assert multiple claims based on 42 U.S.C. § 1983 ("1983") and M.G.L. c.12, § 11H, I ("MCRA") violations of the right to travel, use of the public ways, due process and equal protection of the laws. In addition, Plaintiffs' Amended Complaint includes multiple pendant state claims, including promissory estoppel. Defendants filed a motion for judgment on the pleadings, alleging that Plaintiffs failed to set forth facts sufficient to find a violation of any fundamental right.
The action arises out of Plaintiff's request to the City for a permit to move their house on a public way, from 89 Broadway to a parcel of land at 1305 Broadway in Haverill, Massachusetts. On June 14, 2000, they submitted an "Application for a Permit to Move a Building" (the "Application"), requesting an approximate move date of August 16, 2000. The City responded, over the next few months, with a list of requirements that had to be fulfilled before any move could take place. These requirements included a request to the telephone company for wire removal, local fire and police department approval, tree trimming along the move route, a traffic study, and final inspection of the new foundation. Plaintiffs allege that they complied with these requirements and contend that, despite assurances from Flaherty from the outset, that they would be granted a permit. Rurak refused to accept the completed Application in October, 2000. On November 6, 2000, Plaintiffs brought an Emergency Motion to Order Issuance of Permit, in Essex Superior Court, and on November 12 the house was moved to 1305 Broadway. They now claim that they suffered financial harm from the delay and from the general uncertainty surrounding the acceptance of their Application. While it is unfortunate that Plaintiffs encountered a great deal of red tape with respect to their move, the restrictions and requirements placed upon it by the Defendants did not amount to a violation of any recognized fundamental right, necessary to support a 1983 or MCRA claim.
I. RIGHT TO TRAVEL
Plaintiffs contend that "the right to move a building on a public way is a subset of the right to travel and as such is [the] fundamental right" underlying their claims. The cases on which they rely, however, do not give them a right to travel under either Massachusetts or United States constitution. Rather, the cases cited in Plaintiffs' memorandum simply establish that individual state law may permit the moving of a building on a public way, subject to reasonable regulation by municipalities. See e.g., Hinman v. Clarke, 121 App. Div. 105, 107, 106 N.Y.S. 726 (N.Y. 1907) ("The common council, having control of the streets of the city, has the right to reasonably regulate their use in moving buildings upon them."); City of Yale v. Davenport, 54 P.2d 335, 338, 175 Okla. 629 (1936) ("A citizen has a common law right to make reasonable use of the streets for the purpose of moving a building. . . . The right, of course, is subject to certain regulations."); State of Omaha v. C.B. Street Railway Co., 161 N.W. 170, 172 (Neb. 1916) ("in providing . . . that under suitable regulations and restrictions the public may use the streets for movement of buildings, it must be conceded that the authorities have not exceeded their power nor abused their discretion."); Weeks v. Carolina Telephone Telegraph Co., 84 S.E. 812, 813 (N.C. 1915) ("A citizen has a common law right to the reasonable use of streets for purposes of moving buildings, subject to reasonable restrictions which the municipality may impose."); Day v. Green, 58 mass. 433, 437 (1849) (moving a house on a public way is reasonable "under suitable and proper restrictions, adapted to each particular case").
Even assuming arguendo that a constitutional right to travel were implicated, the ordinance in question does nothing more than reasonably regulate the manner in which Plaintiffs may use the public way to move their house. See Nationalist Movement v. City of Boston, 12 F. Supp.2d 182, 190 (D.Mass. 1998) ("[Municipalities] have the right to regulate the use of city streets and other facilities to assure the safety and convenience of the people in their use, because the constitutional guarantee of liberty implies the existence of an organized society maintaining public order. . . .") (quoting Cox v. Louisiana, 379 U.S. 536, 554 (1965)). According to Massachusetts law, the moving of buildings on a public way is only allowed if the owner obtains permission from the City, "to be granted upon such terms as in [its] opinion the public safety may require; . . . ." G.L. c. 85, § 18. Thus, the City of Haverhill code states that the moving of a house on a public way must be subject to a permit issued by the Mayor, upon such conditions as he "shall deem necessary." Haverill General Code, ch. 123-1. Plaintiffs have failed to point to any conditions that amounted to an unreasonable restriction or denial of their request to move. Indeed, conditions such as notifying local police and fire departments, obtaining traffic studies, requesting power line assistance, and providing a plan to secure the house during the move, all fall well within the ambit of public safety.
II. EQUAL PROTECTION
Plaintiffs' equal protection claim rests on the broad assertion that at some time in 1996, the City allowed another house to move without similar delays or obstacles. Plaintiffs make no attempt to explain if or how they were similarly situated to the 1996 owners, or if in fact, they belong to any group of similarly situated people. Moreover, they have failed to set forth any evidence of a malicious or bad faith intent on the part of the City which motivated the allegedly disparate treatment. See Rubinovitz v. Rogato, 60 F.3d 906, 909-10 (1st Cir. 1995) (plaintiff must show selective treatment based on "impermissible considerations such as an intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person"). Plaintiffs' complaints of "threats," "harassment," and a "malicious[ly] orchestrated campaign" allegedly imposed by Rurak and Flaherty amount to no more than an exaggerated account of the lawful permit issuance procedure. Finally, even if Defendants did act maliciously, Plaintiffs have failed to set forth any constitutional right entitling them to equal protection under the law with regard to their move.
III. DUE PROCESS
Plaintiffs allege violations of their procedural and substantive rights to due process under both the state and United States constitutions. Because they failed to set forth facts sufficient to show either a property interest in the moving permit, or evidence that the City's conduct "shocked the conscience," both claims fail as a matter of law.
A. Procedural Due Process
To prevail on their procedural due process claim, Plaintiffs must show that they had a property interest in the house moving permit, and that Defendants, acting in their official capacities, deprived them of this right without satisfactory process. PFZ Properties, Inc. v. Rodriguez, 928 F.2d 28, 30 (1st Cir. 1991). In order to establish a property right in a government benefit, protected by the constitution, an applicant must show a "legitimate claim of entitlement" to that benefit. Barrington Cove v. Rhode Island Housing and Mortgage Finance Corp., C.A. No. 99-1930 (1st Cir. April 5, 2001), Slip Opinion at 5. A legitimate claim of entitlement is more than a mere unilateral expectation or need. Id. The First Circuit has continuously declined to find a legitimate claim of entitlement in the application for a discretionary permit. See e.g. Chongris v. Board of Appeals of Andover, 811 F.2d 36, 43-44 (1st Cir. 1987); Grendel's Den, Inc. v. Goodwin, 662 F.2d 88, 90 n. 4 (1st Cir.), aff'd 459 U.S. 116 (1982). Indeed, the Supreme Court "has never held that applicants for benefits, as distinct from those already receiving them, have a legitimate claim of entitlement protected by the Due Process Clause." Lyng v. Payne, 476 U.S. 926, 942 (1986) (citations omitted). Therefore, a property interest will only vest in a permit applicant if the permit is "routinely granted to all applicants meeting objective or easily judged criteria." Welch v. Paicos, 66 F. Supp.2d 138, 164-65 (D.Mass. 1999). Discretionary permits, such as Plaintiffs' house moving permit, do not qualify applicants for due process protection. Id. ("When a [permit] is discretionary, however, or is conditioned on the weighing and comparison of complex or subjective criteria, a property interest cannot attach until after the [permit] is granted."). Accordingly, Plaintiffs' due process claim fails as a matter of law.
B. Substantive Due Process
To prevail on their substantive due process claim, Plaintiffs must show that Defendants' actions constitute an "'abuse of government power that shocks the conscience,' or 'action that is legally irrational in that it is not sufficiently keyed to any legitimate state interest.'" Collins v. Nuzzo, 244 F.3d 246, 250 (1st Cir. 2001) (quoting PFZ, 928 F.2d at 31-32). Permit denials rarely meet this threshold. Id. Even an arbitrary denial of a permit does not constitute a substantive due process violation unless it involves a "truly horrendous situation." Nestor Colon Medina Sucesroes, Inc. v. Custodio, 964 F.2d 32 (1st Cir. 1992). Plaintiffs' permit was not arbitrarily denied in a shocking or violative manner. In fact, their permit was granted. Therefore, Plaintiffs' allegations fall far from the realm of any substantive due process violation.
IV. PENDENT STATE CLAIMS
Plaintiffs' complaint does not state any viable claims under Massachusetts law. The promissory estoppel count against the City fails as a matter of law, because under the Massachusetts Torts Claims Act, a City cannot be liable for the intentional misrepresentations of its employees. See M.G.L. c. 258 § 10(c). As for the additional state statutory claims, I interpret Plaintiffs' failure to respond to Defendants' reasons for dismissal as a tacit agreement that these claims are indeed meritless. In any event, I decline to exercise jurisdiction over the pendent claims. Accordingly, Defendants' motion for judgment on the pleadings, as to all counts, is granted. Judgment may be entered for Defendants.