Opinion
16-P-1159
07-11-2017
Arun Rajhesh VENKATARAMAN & another v. GRANITEVILLE WOODS, LLC, & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Three months after they purchased a condominium unit in the Graniteville Woods Condominium complex, an affordable housing development under G. L. c. 40B, located in the town of Westford, the plaintiffs discovered that a portion of their property infringed upon conservation land. The plaintiffs sought assistance from the town, through its building commissioner Matthew Hakala and its conservation/resource planner William Turner (collectively, the town) to correct the problem. In September of 2013, the town's conservation commission and developer Graniteville Woods, LLC, through its agents Peter Charles Emanouil, Stephanie Emanouil, Emanouil Development, LLC, and Vested Realty Group, LLC (collectively, the developer), agreed to a restoration plan that would include alterations to the plaintiffs' driveway. In October of 2013, the plaintiffs, the town, and the developer entered into an agreement and, in or around May of 2014, corrective work to the plaintiffs' property was completed by the developer.
"Because we are reviewing a dismissal pursuant to Mass.R.Civ.P. 12(b)(6), [365 Mass. 754 (1974),] we credit hypothetically the allegations of the complaint." Ryan v. Holie Donut, Inc., 82 Mass. App. Ct. 633, 634 (2012).
Thereafter, the plaintiffs claim to have discovered several violations of the State building code and the comprehensive permit issued by the town under G. L. c. 40B. They further discovered, allegedly, certain violations of a regulatory agreement executed between the developer and the Massachusetts Housing Finance Agency (Mass. Housing). The plaintiffs notified the town and Mass. Housing of the alleged violations and repeatedly asked that they take action against the developer. However, according to the plaintiffs' complaint, the town "refused to act on ministerial duties and seek abatement of violations in the" complex. Instead, certificates of occupancy continued to issue, helping the developer sell more houses.
The plaintiffs asked that notices of violation be sent to the developer and that certificates of occupancy for other units in the complex cease to issue.
The plaintiffs commenced the instant action by filing an amended, twenty-one count complaint, in which they state claims against the developer, the town, and the manager of comprehensive permit programs for Mass. Housing. As against the town, the plaintiffs essentially allege fraud, breach of the covenant of good faith and fair dealing, breach of fiduciary duty, unjust enrichment, violations of G. L. c. 93A, G. L. c. 123, § 23, G. L. c. 258, and various provisions of the State building code (780 Code Mass. Regs.), embezzlement, perjury, gross negligence, misrepresentation, interference with the right of quiet enjoyment, and infliction of emotional distress. The amended complaint alleges that town employees, acting in that capacity, (1) colluded with the developer fraudulently to issue certificates of occupancy, and (2) actively perpetuated the fraud by refusing to investigate, and/or to issue notices of violation for, the developer's violations of the State building code and the comprehensive permit.
The plaintiffs also seek specific performance of their purchase and sale agreement.
The defendants filed motions to dismiss, which were allowed by a judge of the Superior Court. In a written memorandum of decision, he ruled that, "irrespective of the labels assigned," most of the plaintiffs' claims against the town, and all of the claims against the individual town employees, sound in negligence. The judge allowed the town's motion to dismiss because, under the Massachusetts Tort Claims Act, G. L. c. 258, §§ 1, et seq. (the act), the employees are immune from liability and the town is immune from suit for such claims. He denied the plaintiffs' requests to amend the amended complaint and for reconsideration of the order of dismissal. Following the entry of a separate and final judgment in favor of the town, the plaintiffs appealed. Their appeal is limited to the judgment against the town. On appeal, the plaintiffs essentially claim the judge erred in allowing the town's motion to dismiss and denying the plaintiffs' motion to amend their amended complaint. We affirm.
The judge also allowed motions by the defendants to strike an "Amended Derivative Complaint," apparently attached by the plaintiffs to the amended complaint. A derivative complaint is not in the record, and it appears that any claims stated therein have been abandoned.
The judge ruled that, in essence, the plaintiffs' claims against the town are that its negligence caused the plaintiffs to be harmed by the developer's violations.
Discussion. We review the judge's decision de novo, Ryan v. Holie Donut, Inc., 82 Mass. App. Ct. 633, 635 (2012), "cognizant that a motion to dismiss should only be allowed if ‘it appears certain that the complaining party is not entitled to relief under any state of facts which could be proved in support of his claim.’ " Kent v. Commonwealth, 437 Mass. 312, 317 (2002), quoting from Spinner v. Nutt, 417 Mass. 549, 550 (1994).
The amended complaint alleges that the wrongful acts and omissions of town employees, acting in that capacity, resulted in damage to the plaintiffs' property. The town employees are immune from liability for such claims, G. L. c. 258, § 2, and dismissal was proper.
The plaintiffs bare assertions of bad faith and intentional wrongdoing by town employees do not "include[ ] enough factual heft ‘to raise a right to relief above the speculative level.’ " Revere v. Massachusetts Gaming Commn., 476 Mass. 591, 609-610 (2017), quoting from Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). "If, notwithstanding characterization of the acts as intentional, the complaint in fact alleges only negligent behavior, the claim is barred under G. L. c. 258, § 2." Parker v. Chief Justice for Admin. & Mgmt. of the Trial Ct., 67 Mass. App. Ct. 174, 181 (2006).
The town, in turn, is immune from suit for its employees' decisions (1) to issue certificates of occupancy, (2) not to issue notices of violation of the State building code, and (3) not to revoke the comprehensive permit. See G. L. c. 258, §§ 10(b ) and 10(e ) ; Fire Chief of Cambridge v. State Bldg. Code Appeals Bd., 34 Mass. App. Ct. 381, 381-382 (1993) ("[T]he final authority to determine what constitutes compliance with the Code resides with the building inspector of the municipality"); Smith v. Registrar of Motor Vehicles, 66 Mass. App. Ct. 31, 33 (2006) ("If the gravamen of a plaintiff's complaint can be traced back to any one or more of the types of events or activities delineated in § 10 [e ], then the action is barred"). Nor can it be sued for its employees' alleged failure to inspect, or negligence in inspecting, the complex "to determine whether the property complies with or violates any law, regulation, ordinance or code, or contains a hazard to health or safety." G. L. c. 258, § 10(f ), inserted by St. 1993, c. 495, § 57. The town cannot be sued for fraud, misrepresentation, infliction of emotional distress, or defamation, see G. L. c. 258, § 10(c ) ; Barrows v. Wareham Fire Dist., 82 Mass. App. Ct. 623, 626 (2012), and it cannot be sued for violating G. L. c. 60. See G. L. c. 258, § 10(d ).
The amended complaint alleges that the town is liable under the act because of "Explicit Assurance." There are no allegations of who made "explicit assurances" or when, and we do not consider this bare assertion sufficient to allege that town employees gave the plaintiffs "explicit and specific assurances of safety or assistance, beyond general representations that investigation or assistance will be or has been undertaken," G. L. c. 258, § 10(j )(1), inserted by St. 1993, c. 495, § 57. See G. L. c. 258, § 10(f ).
--------
The plaintiffs' remaining claims arise from alleged inadequacies in the construction of the complex, the maintenance and management of the complex by the developer, and the manner in which the developer has addressed their complaints. However, the town cannot be sued for "an act or failure to act to prevent or diminish the harmful consequences of a condition or situation ... which is not originally caused by the public employer or any other person acting on behalf of the public employer." G. L. c. 258, § 10(j ), inserted by St. 1993, c. 495, § 57. There are no allegations that harm to the plaintiffs' property was a "foreseeable result" of the town's alleged negligence in issuing certificates of occupancy for other units in the complex, Parker v. Chief Justice for Admin. & Mgmt. of the Trial Ct., 67 Mass. App. Ct. 174, 179 (2006), and the plaintiffs' bare allegation of "[i]ntervention that causes injury," is insufficient to state an exception to the mandates of § 10(j ). Regardless of the labels attached to the pleadings, "the theories advanced by [the plaintiffs] [a]re based on the town's failure to prevent or diminish the injuries" to their property as a result of the developer's actions, and "the town must be held immune from suit under § 10(j )." Moore v. Billerica, 83 Mass. App. Ct. 729, 734 (2013).
We have reviewed the plaintiffs' proposed amendments to the amended complaint. The motion judge did not abuse his discretion in denying the motion. See Mathis v. Massachusetts Elec. Co., 409 Mass. 256, 265 (1991).
Judgment entered June 1, 2016, affirmed.