Opinion
19-P-683
04-24-2020
James P. SLAVAS & another v. BOARD OF SELECTMEN OF MONROE & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case arises out of the town of Monroe's failure to give adequate notice, pursuant to G. L. c. 143, §§ 6 - 10, regarding the town's decision to condemn the plaintiffs' laboratory building. More than two years after the building was condemned after it was deemed to be a dangerous structure, the plaintiffs, James P. Slavas and Spray Research, Inc., filed a negligence claim against the defendants under G. L. c. 258, the Massachusetts Tort Claims Act (MTCA), asserting that the defendants wrongfully or negligently failed to abide by the statutory notice requirements and alleging damages in excess of $750,000. The judge allowed the defendants' motion to dismiss, finding that the plaintiffs' claim was barred by an exclusion to the waiver of sovereign immunity contained in the MTCA. On appeal, the plaintiffs argue that the waiver is inapplicable. We disagree and affirm.
Background. We summarize the allegations in the complaint. Slavas is the owner and president of Spray Research, Inc. (SRI), a testing, research, and development laboratory. In 1999, SRI began leasing space (SRI Building) at a former paper mill located in Monroe in order to house an "extensive inventory of expensive and delicate instruments." In April 2015, defendant Brenda Church became the building commissioner (Commissioner) for the town of Monroe. "At some unknown time either before or after" her appointment, the Commissioner inspected the SRI Building but did not provide the plaintiffs with notice of her findings as required by G. L. c. 143, § 6. Slavas's first contact with the town regarding its concerns over the SRI Building occurred via a telephone call on April 30, 2015, when a town employee informed him that the Commissioner and a survey board would be coming to inspect the SRI Building the following day. Indeed, on May 1, 2015, the survey board convened a meeting at the mill complex and conducted an inspection. On May 18, 2015, the board of selectman of Monroe (Board) held a regular meeting, where one of the members relayed an email he had received from the Commissioner on May 13 that reflected a misunderstanding of the G. L. c. 143, §§ 6 - 10, process. On May 19, 2015, Church and a State building inspector posted "Condemned as Dangerous and Unsafe" placards on the SRI Building and State troopers escorted Slavas from the building. One week later, on May 26, the Board held a public meeting addressing the condition and concerns regarding the SRI Building. Slavas was present, as was his attorney and a structural engineer whom Slavas had retained. After that meeting, the Commissioner presented the Board with a report from the survey board but did not share it with the plaintiffs. On June 1st the Board sent Slavas a "Revised Notice of Violation under G. L. c. 143, § 9."
Pursuant to G. L. c. 143, § 6, the Commissioner was obligated, in writing, to "notify the owner, lessee or mortgagee in possession to remove [the dangerous condition or entire building] or make it safe if it appears to ... be dangerous .... Upon such notice ..., the owner, lessee or mortgagee in possession shall furnish a floor plan of such building or other structure to the chiefs of the fire and police departments of the city or town."
After the inspection was complete, the survey board prepared an inspection report but did not share it with the plaintiffs until June 11.
In the email, the Commissioner stated: "I have been doing some research on each step and will be sending it to you. The first step is to start the foreclosure and then the building. There are only four law firms that do this process in the state. I have worked with one of them and will forward email. This must be done so we can take action on the person who is in the building illegally."
Slavas's engineer presented a structural analysis of the SRI Building to the Board. The analysis concluded that the building was structurally sound and presented no imminent danger of failure or collapse.
Despite the title of the document issued by the town, this was the first written notice provided to the plaintiffs.
Between June 1 and June 6, the plaintiffs worked to remove the most valuable and portable pieces of equipment from the SRI Building. On June 3, at the request of Monroe's town counsel, Slavas submitted a list of the remaining equipment still in the SRI Building and the estimated time necessary for its removal. On June 4, Slavas sent a request to the State building inspector to "consent to an expedited inspection ... and render an opinion as to whether [the] eviction action initiated by [the Commissioner] ... is warranted." On June 5th, the Commissioner issued a no trespassing order for the SRI Building under G. L. c. 266, § 120. Over the next few days, Slavas provided the Commissioner with various floor plans and drawings that the Commissioner requested as part of the no trespassing order. On June 15, the Commissioner gave Slavas a "maximum" of nine days to remove the rest of his equipment. On June 16, Slavas reiterated his request to the State building inspector that they inspect the building. On June 18, the Commissioner accompanied two of the State building inspectors to inspect the exterior of the SRI Building. The State building inspectors determined that "the building is seriously compromised."
Under the town's no trespassing order, Slavas was required to provide the Commissioner with information regarding his plans to remove SRI's remaining equipment from the SRI Building. Over the next several months, the Commissioner and Slavas negotiated a process to remove the equipment.
The purpose of this request is unclear from the complaint.
The plaintiffs did not receive a report of the inspection, which violated G. L. c. 143, § 8. Under § 8, "a careful survey of the premises shall be made by a board consisting ... of the city engineer, the head of the fire department, ... and one disinterested person to be appointed by the local inspector. ... A written report of such survey shall be made, and a copy thereof served on such owner, lessee or mortgagee in possession." Id.
Slavas continued to push for more time to remove the remaining equipment in the building. On June 19, he requested additional time from the Commissioner, who did not respond. Then on July 21, Slavas requested that the Commissioner provide him access to the SRI Building so that he could remove his personal items. She replied that if Slavas entered the building, he would be "trespassing." On August 11, however, fearing that "the vast inventory of Spray research [would] become the responsibility of the Town of Monroe," the town gave Slavas until August 24 to remove the remainder of his equipment. Due to the size of the equipment, Slavas was nonetheless unable to remove all of the equipment by the August 24 deadline. On October 18, Slavas was given another thirty-day window to remove his equipment, but he again failed to remove all of it within the timeframe. In 2016, Slavas filed a complaint against the defendants in Federal District Court seeking damages "for violation of civil rights" and asserting various State law causes of action. The plaintiffs' State law claims were dismissed without prejudice in March 2017. One year later, on March 22, 2018, the plaintiffs filed this MTCA claim in the Superior Court.
On July 24, 2015, Slavas filed an appeal to the State Building Code Appeals Board requesting he be granted forty-five days to remove his equipment from the SRI Building. That appeal was denied on August 12, 2015.
The defendants moved to dismiss, asserting that the plaintiffs' claims were barred by G. L. c. 258, § 10 (f ), an exception to the waiver of sovereign immunity in the MTCA. The motion was allowed. The exception applies to "any claim based upon the failure to inspect, or an inadequate or negligent inspection, of any property, real or personal, to determine whether the property complies with or violates any law, regulation, ordinance or code, or contains a hazard to health or safety." Id. Because the meaning of "based upon" had not been interpreted by our courts prior to this instance, the judge looked to Smith v. Registrar of Motor Vehicles, 66 Mass. App. Ct. 31, 33 (2006), which interpreted identical language, for guidance. There, "based upon" was read to "refer[ ] to any claim that is rooted in or uses as a basis for its applicability any of the covered types of activities or events" (quotation omitted). Smith, supra. As a result the judge concluded that the plaintiffs' claims were rooted in the inspection and thus § 10 (f ) applied. She also concluded that G. L. c. 143, § 10, and G. L. c. 139, § 2, offered the appropriate remedy for the plaintiffs.
General Laws c. 143, § 10, provides that an owner, lessee or mortgagee aggrieved by an eviction order under § 9 "may have the remedy prescribed" by G. L. c. 139, § 2. Under G. L. c. 139, § 2, an aggrieved person "may appeal to the superior court."
Discussion. On appeal, the plaintiffs agree that the judge interpreted the meaning of § 10 (f ) correctly. Nonetheless, they assert that their claim is not rooted in the "negligent or inadequate inspection of the property" but instead in the town's failed duty of care to execute the building inspection statutes. Specifically they assert that under § 10 (a ) of the MTCA, the immunity provisions apply to government officials only "when such employee is exercising due care" and that the town, Commissioner, and the Board failed to exercise that level of care in this instance. "We review the allowance of a motion to dismiss de novo, accepting as true the facts alleged in the plaintiffs' ... complaint and exhibits attached thereto, and favorable inferences that reasonably can be drawn from them." Burbank Apartments Tenant Ass'n v. Kargman, 474 Mass. 107, 116 (2016).
We conclude that sovereign immunity bars the plaintiffs' claim. The root of the plaintiffs' claim is the town's inadequate adherence to the process outlined in the building inspection statutes. The underlying complaint makes that clear: "[the inspection] was not conducted in compliance with the procedures set forth in G. L. c. 143, [§] 6, in that it was not preceded by a notice of allegedly unsafe conditions, in writing, to the lessee in possession ..., and it was not conducted in compliance with G. L. c. 143, [§] 8, in that it was not preceded by the lessee's refusal or neglect to comply." Thus the thrust of the plaintiffs' claim here is not grounded in a failed duty of care but instead a failure to follow mandated procedure. In fact, none of the cases cited by the plaintiffs rebut that notion.
For this reason, the plaintiffs' reliance on § 10 (a ) of the MTCA is inapposite. Section 10 (a ) preserves sovereign immunity for "any claim based upon an act or omission of a public employee when such employee is exercising due care in the execution of any statute or any regulation of a public employer, or any municipal ordinance or by-law, whether or not such statute, regulation, ordinance or by-law is valid." G. L. c. 258, § 10 (a ).
The plaintiffs rely on Morais v. Lowell, 50 Mass. App. Ct. 540 (2000), but the case provides no cover. In that case, the city failed to assert a § 10 (f ) defense, so the fundamental issue now before us was unaddressed. See Morais, supra at 544 n.6 ("[T]he city's conclusory references to the exceptions to liability set forth in § § 10 [a ], [b ], [f ], & [j ], do not constitute adequate appellate argument").
We also agree with the motion judge that G. L. c. 143, § 10, and G. L. c. 139, § 2, provided the proper remedy for the plaintiffs' claims. General Laws c. 139, § 2, permits a person aggrieved to appeal any condemnation order to the Superior Court if filed within three days of receiving actual notice. While the plaintiffs certainly did not receive procedurally proper notice under G. L. c. 143, § 6, they nonetheless had actual notice of the town's actions by no later than May 19, 2015. Cf. Kramer v. Zoning Bd. of Appeals of Somerville, 65 Mass. App. Ct. 186, 193-194 (2005) ("[A]t least where there has been a complete failure of notice of a public hearing in advance of the granting of a special permit, the ninety-day limitation in G. L. c. 40A, § 17, should not be deemed to run until the abutter has notice of the project to which he objects"). Thus the proper recourse for the plaintiffs was to challenge the condemnation and eviction under G. L. c. 143, § 10, and G. L. c. 139, § 2, once they actually learned of the town's intentions. The complaint was properly dismissed.
General Laws c. 139, § 2, provides that a "person aggrieved by such order may appeal to the superior court for the county where such building or other structure is situated, if, within three days after the service of such attested copy upon him, he commences a civil action in such court."
On that date, Slavas was escorted from the premises by State troopers and condemnation signs were posted outside the building.
Judgment affirmed.