Opinion
19-P-211
04-30-2020
Gerard MEEHAN, trustee, v. SOMERVILLE HISTORIC PRESERVATION COMMISSION & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Gerard Meehan (as trustee of the G&T Realty Trust), filed a complaint in the Superior Court (1) appealing, pursuant to G. L. c. 40C, the Somerville Historic Preservation Commission's (SHPC) partial denial of a request for a certificate of appropriateness, and (2) claiming a civil rights violation pursuant to 42 U.S.C. § 1983 (2018) against the codefendant, city of Somerville (city). Following a jury-waived trial in the Superior Court, the trial judge concluded, inter alia, that the SHPC's denial of the certificate of appropriateness was arbitrary and capricious, and remanded the matter to the SHPC. The judge also determined that Meehan had failed to meet his burden to prove by a preponderance of the evidence that the city's treatment of him was based on a malicious or bad faith intent to injure, and thus ruled in favor of the city on the civil rights claim. The parties filed cross appeals, and we affirm.
The parties acknowledge that remand orders are generally not appealable. However, the parties filed a joint status report with this court, explaining that they agree that the judge's remand order effectively obligates the SHPC to approve the project with conditions; and that the present appeal is properly before this court because the judge's order in this case "takes on the character of finality." Under the specific facts and procedural posture of this case, we agree that our exercise of jurisdiction over this case will not cause delay or waste judicial effort, and will "dispose[ ] of the case fully and finally." Geryk v. Zoning Appeals Bd. of Easthampton, 8 Mass. App. Ct. 683, 685 (1979). See K. Hovnanian at Taunton, Inc. v. Planning Bd. of Taunton, 32 Mass. App. Ct. 480, 481 (1992).
Background. The SHPC and the city state that, for purposes of this appeal, they do not dispute the judge's findings of fact or claim that they are clearly erroneous. Accordingly, the factual summary recounted herein is drawn from the judge's decision, and is not in dispute.
We provide herein a summary of relevant facts only. We do not delve into the details of the myriad steps, litigations, permit denials, and appeals related to Meehan's efforts to develop the property. The detailed history underlying the present appeal may be found in the judge's findings of fact and rulings of law, the appellate record, and in the Rule 1:28 memorandum of decision and order issued by a panel of this court in a related matter, Meehan v. Board of Appeals of Somerville, 89 Mass. App. Ct. 1123 (2016).
For many years, Meehan has sought to develop his property at 9-11 Aldersey Street in Somerville (property). Meehan acquired title to the property, a 25,000 square foot parcel, in 1999. The property is the largest parcel in the neighborhood, which is comprised of densely populated multifamily residential buildings. The existing structure consists of three units.
In 2001, Meehan proposed a nine-unit project at the property. That proposal received significant community and neighborhood opposition. In the spring of 2002, Meehan proposed a thirty-unit housing development under the provisions of G. L. c. 40B. That proposal also met with considerable neighborhood opposition. At or around this time, the city and certain neighbors expressed an interest in having the property declared "historic" in order to prevent further development, and in March of 2002, the city's board of aldermen adopted two resolutions: one to begin proceedings to take the property by eminent domain for purposes of affordable housing and open-space, and another seeking to have the SHPC designate the property as historic. The city and interested neighbors commenced an aggressive effort to create a local historic district, which would include the property. The SHPC, on an accelerated schedule, prepared a proposal for the creation of a new local historic district, conducted two public hearings, and, in December 2002, voted unanimously to recommend to the city that a vote be taken to adopt the new historic district. In 2003, the city adopted the Aldersey-Summit Local Historic District (District), which is comprised of the property and ten other parcels whose owners consented to the designation. Meehan never consented to the property's inclusion in the District, and any such designation was over his objection. The judge found that "the District's creation was designed and created to appease abutters, who advocated against any further development of the [p]roperty."
In 2004, the city's zoning board of appeals (ZBA) denied Meehan's application for a special permit with site plan review, which sought to convert the existing structure into a two-family dwelling, and to construct two multiunit residential structures on both sides of the existing structure (project). Meehan appealed the ZBA's decision to the Land Court. In 2013, following a trial, a Land Court judge issued a detailed memorandum and order of remand, concluding that the ZBA acted arbitrarily and capriciously in denying the special permit. The ZBA appealed the Land Court judgment, and a panel of this court affirmed the judgment in an unpublished memorandum of decision and order issued pursuant to our Rule 1:28. Meehan v. Board of Appeals of Somerville, 89 Mass. App. Ct. 1123 (2016).
Also in 2013, Meehan submitted an application for a certificate of appropriateness (application) for the project with the SHPC. As discussed, the application proposed exterior renovations to the existing structure, and the addition of two new structures on either side of the existing structure. On February 26, 2014, the SHPC issued a decision granting a certificate of appropriateness with respect to the existing structure, but denying a certificate of appropriateness with respect to the proposed new structures. In response, Meehan filed the above-referenced Superior Court complaint, and, after a jury-waived trial, the judge issued comprehensive and thoughtful findings of fact and rulings of law in which he ruled in favor of Meehan on the c. 40C appeal, and in favor of the city on the civil rights claim.
With respect to the proposed new structures that were the subject of the denial of Meehan's application, the judge stated, inter alia, that the "proposed buildings are fully compliant with all dimensional requirements of the [c]ity's ordinance," and that during the SHPC review process, Meehan "made significant revisions to the plans to address the [SHPC's] concerns." The judge found that "the [p]roject significantly improves the [p]roperty, does not ‘overshadow’ the [e]xisting [s]tructure, is compatible and consistent with other structures in the District, and that purported ‘open space’ on the [p]roperty has no architectural or historical significance." He further found that "[r]ather than review the exterior components of the proposed new buildings ... the [SHPC] focused almost exclusively on the issue of density." Yet, "the ‘density and massing’ complaints of the [SHPC] are not supported by any objective historical criteria or by the other structures in the District." Finally, the judge found that the project fully complied with all dimensional and zoning requirements. The defendants do not challenge any of these findings on appeal.
Discussion. 1. Chapter 40C. Meehan brought this action pursuant to G. L. c. 40C, § 12A, which authorizes "[a]ny person aggrieved by a determination" of an historic district commission to appeal to the Superior Court. Section 12A further provides: "[t]he court shall hear all pertinent evidence and shall annul the determination of the commission if it finds the decision of the commission to be unsupported by the evidence or to exceed the authority of the commission, or may remand the case for further action by the commission or make such other decree as justice and equity may require." We apply a standard of review "analogous to that governing exercise of the power to grant or deny special permits." Gumley v. Board of Selectmen of Nantucket, 371 Mass. 718, 719 (1977). The SHPC's decision regarding the certificate of appropriateness is discretionary, and "[i]t must act fairly and reasonably on the application presented to it, keeping in mind the purposes of the statute." Id. at 724. "The decision of the [SHPC] cannot be disturbed ... by the court ‘unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.’ " Id., quoting MacGibbon v. Board of Appeals of Duxbury, 369 Mass. 512, 515 (1976).
Here, the SHPC contends that the judge erred in ruling in favor of Meehan on the c. 40C appeal because he substituted his judgment for that of the SHPC. We disagree. The judge's comprehensive and careful findings of fact and rulings of law stem from the record, stipulations, exhibits, a view of the property, and credibility determinations at trial, and do not merely reflect a disagreement among reasonable experts and evidence, as the defendants contend. Rather, the judge determined -- and the record supports -- the following. From the outset of Meehan's proposals to develop the property, "the abutters organized a concerted campaign to prevent any increase in density or new construction at the [p]roperty." The "campaign continued up to and through the [d]ecision on the [c]ertificate of [a]ppropriateness." The abutters "contrived the legal and factual arguments that the large open space areas on either side of the [e]xisting [s]tructure were somehow historic or architecturally significant and, therefore, in need of protection." They "advanced this contention solely to justify their position that no new buildings (and the associated increase in density) should be added to the [p]roperty. The [SHPC] participated in, as well as advanced, the abutters' cause." During the creation of the District, Meehan "was not informed of numerous meetings and correspondence involving the [c]ity and abutters." Further, "[n]eighbors within the proposed district were permitted to opt out of the District," but Meehan was not. "The [c]ity and abutters acted as a team to undermine any further development at the [p]roperty." The SHPC, "in this case, surrendered its independence" to the abutters. These findings, in combination, support the judge's determination that the SHPC's decision "reflects a predetermined conclusion that no additional buildings on the [p]roperty would survive the [SHPC]'s review."
We have little difficulty affirming the judge's determination that the SHPC did not act fairly and reasonably on the application presented to it, and that the SHPC's decision was unreasonable, capricious, and arbitrary. The Supreme Judicial Court's decision in Gumley is instructive in this regard. There, the trial judge found that "the reasons for denial of the application stated by the [local] commission were not the reasons in fact but were manufactured in order to control the use of the land and prevent a large residential development." Gumley, 371 Mass. at 721. The judge further found that the reasons proffered by the commission "were a subterfuge to cover their objections to any clustered development, whatever the architectural design, in an effort to maintain the open space aspect of Nantucket" (quotation omitted). Id. The Supreme Judicial Court upheld the trial judge's conclusions, but modified the lower court judgment by striking the portion ordering the issuance of certificates of appropriateness, and "directing the commission to hold such further proceedings as may be necessary" on remand. Id. at 725. See MacGibbon, 369 Mass. at 520 (noting that judge may order that board of appeals issue special permit only in extremely narrow circumstances).
Consistent with the admonition in Gumley, the judge in the present case likewise did not order a certificate of appropriateness to issue, but ordered a remand to the SHPC. The defendants acknowledge, however, that on remand the SHPC will be obligated to approve the project with conditions. See note 3, supra.
The present case, in many respects, parallels Gumley. Here, the judge likewise determined that the SHPC concocted its decision through a predetermined effort, in concert with the abutters, to preclude any development of the project, and thus abused and abandoned its discretion. The record supports the judge's determination. Based on the unique facts and procedural posture before us, this case presents the exceptional instance in which we conclude that an historic district commission's decision cannot stand.
We are not persuaded by the city's attempt to distinguish Gumley. Although the Supreme Judicial Court indeed analyzed a different statute in Gumley, that distinction does not diminish the significance of the judge's determination regarding the concerted campaign to prevent further redevelopment of the property here.
At oral argument, counsel for the defendants noted that a member of Meehan's design team agreed on cross-examination that a reasonable expert could decide that the proposal is too large and overwhelms the existing structure. Accordingly, he argued, it follows that there was, by definition, a reasonable and rational basis for the SHPC's conclusion, and thus, under existing principles governing zoning and historic commission decisions, the trial judge was obligated to defer to the SHPC's decision. See, e.g., Harris v. Old King's Highway Regional Historic Dist. Comm'n, 421 Mass. 612, 617-618 (1996) ("local committee possessed a substantial measure of discretion in deciding whether the plaintiff's applications for certificates of appropriateness were in congruity with the historic district.... Since the local committee's decision had a rational basis, the judge should not have set it aside"). For the reasons delineated by the judge, supra, and in Gumley, 371 Mass. at 721-723, this argument is not persuasive in the context of the present case. Indeed, as counsel for the defendants acknowledged at oral argument, "The [SHPC] cannot say ‘abutters, what do you want, what's your preference,’ and then simply adopt that."
To the extent we do not discuss other arguments made by the defendants, they have not been overlooked. "We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954). We further note that some of the arguments proffered by the defendants overlap, in part, with some of the arguments rejected by a panel of this court in Meehan, 89 Mass. App. Ct. 1123.
2. Civil rights/equal protection claim. "[T]he denial of a land use permit does not rise to a constitutional violation absent special considerations." Daddario v. Cape Cod Comm'n, 56 Mass. App. Ct. 764, 773 (2002). In equal protection cases like this one, liability requires "proof that (1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." Id., quoting Rubinovitz v. Rogato, 60 F.3d 906, 909-910 (1st Cir. 1995).
Meehan contends that the judge erred in concluding that he failed to meet his burden to prove malicious or bad faith intent on the part of the city. Here again, the judge's detailed and specific findings of fact guide, in large part, our analysis. The judge found that certain claims of selective treatment vis-à-vis Meehan were not actions by the city or could not be attributed to the city. For example, the dismissal of Meehan's application for a comprehensive permit, pursuant to G. L. c. 40B, was not an action by the city. As to the code violations relating to improper storage, the judge noted that "[v]ery little substantive evidence was offered on this matter," and Meehan did not adduce evidence that he was treated differently from others similarly situated. Moreover, "no evidence was introduced, or could be inferred, that the [c]ity coordinated any adverse treatment" of Meehan. Although a different judge may have reached a different conclusion, we cannot say that the judge's findings were clearly erroneous. We are therefore compelled to affirm the judge's legal determination that Meehan did not sustain his burden to prove malicious or bad faith intent on the part of the city.
As to the excessive water bills, which required Meehan to seek and receive an abatement, the judge found that the "bills were handled by a separate and distinct department at the [c]ity."
Insofar as the c. 40C and equal protection claims involve distinct considerations, the judge's determination on one issue did not control the outcome on the other.
We deny Meehan's request for attorney's fees on appeal.
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Order entered August 21, 2018, affirmed.