Opinion
No. 15–P–1144.
08-12-2016
Benjamin F. GOFF, trustee, v. TOWN OF RANDOLPH.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, trustee Benjamin Goff (Goff), owns property in the Town of Randolph (town) at the end of Powers Farm Road, a private way. As an abutter to the way, Goff owns the fee to the center line of the portion of the way adjacent to his property, and has easement rights (in common with others) to use the way. In 2009, the town obtained title to an 11.6–acre parcel that abuts the plaintiff's property. The town opened this land to the public and made it accessible by a path that connects to the end of Powers Farm Road, next to the plaintiff's property. The entrance to the path from the road is marked by a stone marker, which bears the town seal and reads “Powers Farm: A Community Park.” The plaintiff brought a complaint in the Superior Court against the town, alleging, among other things, that the creation of this path has facilitated and encouraged public use of Powers Farm Road and a cul-de-sac that is located partially on his property. The court allowed the defendant's motion for summary judgment and the plaintiff now appeals.
Background. We recite the facts in the light most favorable to the plaintiff, as the nonmoving party, see LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 318 (2012), and “draw[ ] inferences in favor of the plaintiff where they may reasonably be drawn from the facts,” see Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382, 385 (2016), quoting from Young v. Boston Univ., 64 Mass.App.Ct. 586, 587 (2005), cert. denied, 549 U.S. 832 (2006). We base this recitation on a de novo examination of the evidence in the summary judgment record. This record includes the affidavits of the parties and the verified complaint, see Pupecki v. James Madison Corp., 376 Mass. 212, 217 (1978), as well as “the documents relied on by the parties” and “concessions made by them on the record,” see Cannata v. Berkshire Natural Resources Council, Inc., 73 Mass.App.Ct. 789, 793 (2009).
The plaintiff acquired his property, 18 Powers Farm Road, in October, 2007, from a previous owner. It is designated “Lot 4” on a subdivision plan recorded in the Norfolk Registry of Deeds on April 9, 1987 (the subdivision plan). This subdivision plan depicts a large lot labeled “Dana R. Powers Residence” (the Powers lot ) that abuts the plaintiff's property to the north. The plan also depicts Powers Farm Road, a forty-foot wide way that runs north-south, begins at Grove Street (a public way) to the south, borders lot 4 on the east, and dead-ends where it meets the Powers lot. A circular area labeled “Prop. Temporary Turnaround” appears on the subdivision plan at the northern end of Powers Farm Road, directly in front of the plaintiff's lot. It appears to protrude equally into lot 4 and lot 5, located across the way. The border of the Powers lot appears to lie tangent to the top of this circular area.
In March, 2005, Benjamin F. Goff and Brian J. Goff received a deed to the property as joint tenants. In October, 2007, they conveyed the property to Benjamin F. Goff as trustee of the Benjamin F. Goff 2004 Revocable Trust.
The Powers lot is one of two lots designated as “lot 3” on the subdivision plan. The Powers lot is the “lot 3” directly to the north of lot 4.
Under the plaintiff's deed, his property is subject to an easement of passage granted to Dana Powers. The easement includes “the right to pass and re-pass to and from the adjoining land of Dana R. Powers ... and Grove Street” by way of Powers Farm Road, which it describes as a “forty foot (40') right[ ] of way.” The easement is a right appurtenant to the Powers lot.
Lot 4 is also “[s]ubject to a Proposed Temporary Turnaround as shown on [a] plan [entitled, ‘Plan of Land—Randolph, Mass., Lots 1, 2, 3, & 4 Powers Farm Road’ dated September 21, 1990].” This September 21, 1990, plan was not included in the record on appeal. We infer that the “Proposed Temporary Turnaround” shown on that plan is the same as the “Prop. Temporary Turnaround” depicted on the 1987 subdivision plan (hereinafter, “temporary turnaround”). Since 1990, there has been a large paved cul-de-sac at the end of Powers Farm Road, which corresponds roughly with the temporary turnaround shown on the subdivision plan. This cul-de-sac extends beyond the width of the way and covers about ten percent of the plaintiff's property. The motion judge correctly found that “nothing in the easement [appurtenant to the Powers lot] authorized the layout of a cul-de-sac at the end of Powers Farm Road, or the encroachment of any roadway pavement onto the property of the owner of the parcel at 18 Powers Farm Road.” In his amended complaint, Goff alleged that, as long as it has existed, the town has “facilitated” and “permitted” the public use of the cul-de-sac, including the portion that is located on the plaintiff's property. He alleged that the town issued him tickets for parking his automobile on the section of the cul-de-sac that lies entirely on his property. He further alleged that, “since 1990,” the town or its officials “knew or should have known that the Powers Farm Road temporary turnaround was on private property.”
At the annual town meeting on June 9, 2009, a warrant was approved to accept Powers Farm Road (and numerous other “roads”) as a public way. However, according to the uncontroverted affidavit of the town clerk, neither the board of selectmen nor its successors ever took any action under the warrant passed on June 9, 2009, and thus the town never “laid out” any “way” on Powers Farm Road within the meaning of G.L. c. 82, §§ 21 & 23. Accordingly, the town concedes (and the judge ruled) that the road remains private.
On June 30, 2009, Dana Powers sold the property that abuts the plaintiff's property to the north to the town. The town accepted this property as conservation land. The town now refers to the site as “Powers Farm.”
The land conveyed to the town has a total area of roughly 11.6 acres. It is unclear from the record if it is coextensive with the Powers lot, as the Powers lot is not shown completely on the subdivision plan. The record contains a separate plan, referred to in the quitclaim deed given to the town on June 30, 2009, which designates the conveyed property as “Lot A.” Lot A abuts both the plaintiff's land and the northern terminus of Powers Farm Road, just as the Powers lot did in the subdivision plan.
The “Acceptance of Grant of Land” signed by a majority of the town's board of selectmen and conservation commission states that the conservation commission accepted management of the property pursuant to G.L. c. 40, § 8C (allowing town to establish conservation commission) and G.L.c. 44B, § 12 (requiring that property acquired with funds from the Community Preservation Fund be bound with a conservation restriction). The plaintiff disputes whether the property is under the “operation and management” of the conservation commission and whether a conservation restriction was properly recorded. However, these details are ultimately irrelevant to the disposition of this case.
The town subsequently made improvements to Powers Farm. As part of this work, existing structures and paths were improved and new structures and paths were constructed. The record does not indicate when this work began or was completed, but an order of conditions was issued on December 5, 2013, and an “Existing Conditions plan” of Powers Farm was created in 2014. The work relevant to this case was completed by December, 2014.
No appeals were filed from this order of conditions. The plaintiff submitted evidence that he and his neighbors were not on the “Abutters list” of individuals notified. The parties have not included the order of conditions in the record, or briefed whether an appeal of the conservation commission decision would have been the appropriate venue for the plaintiff's claims that the proposed work would lead to a taking of his property without compensation. As the decision below was limited to the plaintiff's claims under G .L.c. 82 and c. 45, we do not reach this issue.
The town constructed a five-foot wide stone dust path, which connected the park to the cul-de-sac at the end of Powers Farm Road, and placed a stone post at the end of that path. The post bears an engraving of the town seal above the words “Powers Farm: A Community Park.” The new path and stone post were in place by December, 2014, and they extend beyond a fence near the edge of the plaintiff's lot. There is a genuine issue of fact with respect to whether some of the work extended a few feet beyond the boundary of the town-owned land onto the plaintiff's land.
The town submitted affidavits from two persons, who stated that they were familiar with the Powers Farm area and that the new path replaced a pre-existing “unconstructed access pathway.” However, such a path does not appear on the “Existing Conditions plan.” Viewing the record in the light most favorable to the plaintiff, this makes the existence of a path prior to the new construction a disputed fact.
The record does not indicate whether this fence was preexisting but, drawing all reasonable inferences in favor of the plaintiff, we infer that it was. The residents of Powers Farm Road sent a letter to the town manager in October, 2014, objecting to the creation of the path and to any other project that would “facilitate a connecting way between Powers Farm Park and Powers Farm Road.”
The town also renovated a pavilion next to a lake located on the new path, a little over 100 feet from the cul-de-sac. A gangway leads from the pavilion to a floating dock. The pavilion, gangway, and dock are all visible from the cul-de-sac. The park entrance on Powers Farm Road is the closest entrance to this pavilion by several hundred feet.
Analysis. The plaintiff's pro se complaint includes both factual allegations and several explicit legal theories based on statutes as to how those facts violate the law. Our jurisdiction, however, has a system of notice pleading. See Mass.R.Civ.P. 8, 365 Mass. 749 (1974), and Reporter's Notes to Rule 8, 46 Mass. Gen. Laws Ann. at 101 (West 2016) (describing the “notice-pleading theory” as “behind the Rules generally and Rule 8(a) in particular”). Thus, “[t]he question of a pleading's sufficiency pursuant to the Massachusetts Rules of Civil Procedure turns on whether the complaint provides enough information to give the defendant notice of what the dispute is about and asserts a right to recovery cognizable on some acceptable legal theory.” Commonwealth v. One 2004 Audi Sedan Auto., 73 Mass.App.Ct. 311, 320 (2008), S.C., 456 Mass. 34 (2010). “[T]his language does not require the claimant to state the specific legal theory on which the claim for recovery is based.” Windross v. Village Automotive Group, Inc., 71 Mass.App.Ct. 861, 866 (2008). See Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 89 (1979). Any legal theory the plaintiff does state is not required to be correct. Gallant v. Worcester, 383 Mass. 707, 709 (1981). Giovanella v. Conservation Commn. of Ashland, 447 Mass. 720, 724 (2006).
In addition, when a party is acting pro se, “we ‘liberally construe[ ]’ his submissions, see Lamoureux v. Superintendent, Mass. Correctional Inst., Walpole, 390 Mass. 409, 410 n. 4 (1983). While judges must apply the law without regard to a litigant's status as a self-represented party, see Mmoe v. Commonwealth, 393 Mass. 617, 620 (1985) (‘the rules bind a pro se litigant as they bind other litigants'), our courts have recognized that self-represented litigants must be provided the opportunity meaningfully to present claims and defenses. See Carter v. Lynn Hous. Authy., 450 Mass. 626, 637 n. 17 (2008) ; Loebel v. Loebel, 77 Mass.App.Ct. 740, 743 n. 4 (2010).” I.S.H. v. M.D.B ., 83 Mass.App.Ct. 553, 560–561 (2013).
Fairly read, Goff's complaint alleges first, a taking of the portion of the cul-de-sac on plaintiff's private property, and of the portion of his property on which the new path and stone post were built, for public use without just compensation in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States and art. 10 of the Declaration of Rights, for which it seeks compensation for past use and an injunction for the future. Indeed, after describing the situation with the cul-de-sac, the complaint states: “Despite the owner's requests to terminate public use, the town has not prevented the public use of the private property; therefore, it is tantamount to a taking without compensation.” The complaint states claims for injunctive relief and for inverse condemnation (regardless whether the alleged taking is temporary or permanent). And indeed, in his trial and appellate briefs, the plaintiff cited takings cases including the seminal one allowing inverse condemnation claims even for temporary takings, First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987).
The complaint also can be read to allege that the public use of the easement over Powers Farm Road creates a nuisance or overburdens or overloads the easement, something for which it seeks injunctive relief. See Southwick v. Planning Bd. of Plymouth, 65 Mass.App.Ct. 315, 319 n. 12 (2005) (discussing and distinguishing the concepts of nuisance, overburdening, and overloading, while noting that all are sometimes subsumed under the rubric of “overburdening”). Again, the plaintiff has cited cases about the overburdening of easements, including Hodgkins v. Bianchini, 323 Mass. 169, 172 (1948).
Following the defendant's lead, the motion judge addressed only the statutory claims described in the complaint, allowing summary judgment on each of them. Although we think the motion judge was correct with respect to these claims, we think summary judgment should not have been allowed on the defendant's claims based on the takings clauses of the Federal and State constitutions and on the claim of overburdening.
As to the plaintiff's claims under G.L.c. 45, even if we were to assume (a) that whatever body improved the path was acting as a “board of park commissioners” within the meaning of the statute when it did so, see G.L.c. 45, § 2, and (b) that Powers Farm falls under the definition of “park” in G.L.c. 45, § 1, we would nonetheless conclude that G.L. c. 45, § 4, did not require the board to receive the written consent of a majority of the owners of land abutting Powers Farm Road because (regardless whether there was a taking requiring just compensation) the board did not “tak[e] over” that road or “accept and add” it to Powers Farm within the meaning of that section.
Takings. As the United States Supreme Court has stated “where governmental action results in ‘[a] permanent physical occupation’ of the property, by the government itself or by others ... ‘our cases uniformly have found a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner’.... [A] ‘permanent physical occupation’ has occurred, for purposes of that rule,” not only where something is put on one's property, but “where individuals are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed, even though no particular individual is permitted to station himself permanently upon the premises.” Nollan v. California Coastal Commn., 483 U.S. 825, 831–832 (1987).
Such a taking may occur when a governmental body causes others to interfere regularly with an owner's property rights. For example, a county takes an air easement when it decides to place an airport in a location where frequent landings and takeoffs create noises and vibrations that render a residential property “undesirable and unbearable for ... residential use.” Griggs v. Allegheny County, 369 U.S. 84, 87–89 (1962). In Griggs, even though the airlines operated the aircraft and the Civil Aeronautics Administration set forth the rules and regulations for airport design with which the county complied, the Court decided that the county, “which was the promoter, owner, and lessor of the airport, was, in these circumstances the one who took the air easement in the constitutional sense.” Id. at 89.
A taking may occur even where the government does not explicitly grant to another or to the public the right to occupy the owner's property. “[G]overnmental action amounting to a substantial interference with the basic rights incident to the ownership of private property constitutes, in effect, a constructive taking.” Cayon v. Chicopee, 360 Mass. 606, 609–610 (1971). Such interference occurs when the public makes use of the plaintiff's property for its own purposes. See Davidson v. Commonwealth, 8 Mass.App.Ct. 541, 545–546 (1979), quoting from Sullivan v. Commonwealth, 335 Mass. 619, 621 (1957) ( “In order to determine whether the plaintiff has a remedy under G.L.c. 79, §§ 10 & 14, authorizing recovery of damages for injury to property where there has been no formal taking of the property by the government, we must ascertain whether the allegations, in their aspect most favorable to the plaintiff, reveal a genuine issue as to whether the plaintiff's property has been ‘appropriated to public uses' so that ‘reasonable compensation therefor’ must be provided under art. 10 of the Massachusetts Declaration of Rights”). Compare Paul's Lobster, Inc. v. Commonwealth, 53 Mass.App.Ct. 227, 231 (2001) (“As presented in the summary judgment materials before the judge, the facts of this case do not support the plaintiff's claim of a constructive taking. Instead, the facts reveal that the public made no use of the plaintiff's property for its own purposes”).
The Supreme Judicial Court has “interpreted art. 10 consistently to provide property owners the same protection afforded under the just compensation clause of the Fifth Amendment.” Blair v. Department of Conservation & Recreation, 457 Mass. 634, 642 (2010). See Fitchburg Gas & Elec. Light Co. v. Department of Pub. Util., 467 Mass. 768, 775 n. 8 (2014) (“We have consistently employed Federal takings analysis in examining claims under art. 10 of the Massachusetts Declaration of Rights”). However, the court has left open the possibility that art. 10 is more protective than the Fifth Amendment. Blair v. Department of Conservation & Recreation, supra at 643 n. 13.
With respect to the plaintiff's takings claims there remain genuine issues of material fact requiring further proceedings, including these: As to the turnaround and the new construction, what portion (if any) is on Goff's property? What in fact takes place on that portion? If it has been taken, what is the value of what has been taken?
Overburdening. With respect to the use by the public of Powers Farm Road, which the town concedes is a private way, there remain genuine issues of material fact as to whether the easement which the town acquired when it purchased the Powers property is overburdened; that is, whether the increased use of the easement (as a result of the town's opening of the park itself, building out the path so that there is access to it from Powers Farm Road, and advertising an entrance there for public access to the park) exceeds what was intended at the time the easement was created in violation of the plaintiff's rights as landowner, easement holder, or abutter.
Conclusion. Consequently, the judgment is vacated, and the case is remanded for further proceedings consistent with this memorandum and order.
So ordered.