BURKE v. MAYO (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from a judgment of the Superior Court, dismissing his complaint claiming violations of the Massachusetts Civil Rights Act, G. L. c. 12, § 11I (MCRA). The underlying dispute between the parties concerns the defendant's denial of the plaintiff's application for a building permit on certain land in the town of Dennis (town), and the subsequent issuance of a notice of violation and order to cease and desist all related activities, related to certain work performed at the property in preparation for construction. We affirm the judgment of dismissal.³

To establish a violation of the MCRA, a plaintiff must demonstrate that the defendant interfered, or attempted to interfere, with the plaintiff's exercise or enjoyment of civil rights through threats, intimidation, or coercion. See G. L. c. 12, §§ 11H, 11I. See also Kennie v. Natural Resource Dep't of Dennis, 451 Mass. 754, 762 (2008). Under our cases, “[a]dverse administrative action, at least when not part of a scheme of harassment, does not rise to the level of threats, intimidation or coercion” required to establish a violation of the MCRA. Murphy v. Duxbury, 40 Mass. App. Ct. 513, 518 (1996). See Brunelle v. Lynn Pub. Sch., 433 Mass. 179, 184 n.7 (2001); Smith v. Longmeadow, 29 Mass. App. Ct. 599, 603 (1990). “In order to establish a ‘scheme of harassment’ there must be some evidence of animus against the plaintiff[ ] or [its] project and an attempt to thwart the project through adverse administrative action unrelated to the [administrative official's] legitimate concerns.” Murphy, supra.

The complaint in the present case does not allege facts sufficient to satisfy either element. For example, the complaint does not allege that the defendant's denial of the plaintiff's application for a building permit, or issuance of the notice of violation, were “motivated [by anything] other than ․ a desire to enforce [the defendant's] interpretation of the town's zoning by-law and G. L. c. 40A, § 6.” Murphy, 40 Mass. App. Ct. at 519.⁴ Similarly, the notice of violation was directed at the plaintiff's clearing of vegetation and trees on the property in preparation for construction, in “violation of Town of Dennis Zoning By-Law, Section(s) 2.3.3.11.”

The plaintiff's complaint likewise does not plausibly suggest that the defendant acted to thwart the plaintiff's efforts to construct a building on the property through an “adverse administrative action unrelated to the [defendant's] legitimate concerns.” Murphy, 40 Mass. App. Ct. at 518. Ensuring compliance with the Dennis zoning bylaw and other relevant and applicable building regulations is plainly within the defendant's legitimate concerns in his capacity as the town's building commissioner. As such, the defendant's denial of the plaintiff's building permit application, and the notice of violation, are merely adverse administrative actions, and furnish no support for a claimed violation of the MCRA. See, e.g., Swanset Dev. Corp. v. Taunton, 423 Mass. 390, 396 (1996); Freeman v. Planning Bd. of W. Boylston, 419 Mass. 548, 566, cert. denied, 516 U.S. 931 (1995).⁵

Judgment affirmed.

FOOTNOTES

3.   In the Superior Court, the defendant advanced three arguments to support his motion to dismiss the plaintiff's complaint, and the motion judge allowed the motion with a marginal endorsement incorporating the defendant's memorandum in support of the motion. At oral argument the defendant confirmed that he does not rely on appeal on his contention that the plaintiff's complaint should be dismissed by reason of his failure to exhaust administrative appeals. In addition, our view of the case obviates any need to address the defendant's claim that the plaintiff, as a trust, is not a “person” within the meaning of the MCRA, though we observe that the record does not include details concerning the nature of the trust (including whether it is a “true” trust or a “nominee” trust).

4.   We note that the letter denying the permit application, attached to the plaintiff's complaint as exhibit 9, states that the application was denied based on the defendant's determination that the plaintiff's property did not satisfy the bylaw requirements for a buildable lot because it “was held in common ownership with an abutting lot on the date of the increased requirements rendering it an unbuildable lot,” and that, accordingly, it “fails to comply with the requirements of Dennis Zoning Bylaw 2.4.2.1 ․”

5.   In his brief, the defendant requests an award of appellate attorney's fees, based on his contention that the plaintiff's appeal is frivolous. In the exercise of our discretion, we deny the request.