Thyng v. City of Quincy

Scotty Thyng v. City of Quincy et al. ^[1]

No. 127370

No. NOCV2010-01449

Superior Court of Massachusetts, Norfolk

June 2, 2014

MEMORANDUM OF DECISION AND ORDER ON THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Paul D. Wilson, Justice of the Superior Court.

This case stems from a decade-long dispute between Scotty Thyng the plaintiff, and various members of the City of Quincy's municipal government, including the Conservation Commission (" ConComm"). Thyng's seemingly mundane request to build a house on a vacant parcel of land he owns in Quincy has devolved into the present lawsuit in which Thyng claims that he is entitled to damages for civil rights violations committed by the various defendants. According to Thyng, this case asks a simple question: Can the defendants be held liable for interfering with Thyng's right to use and enjoy his property, for an improper private motive of one of them, through their conduct in stonewalling and obfuscating a straightforward permitting process into a decade-long ordeal?

Even if the factual and procedural history of this case is complicated, the three claims asserted in Thyng's Complaint are relatively straightforward. Thyng has asserted claims under: 42 U.S.C. § 1983, the federal civil rights statute; G.L.c. 93, § 102, the Massachusetts Equal Rights Act; and G.L.c. 12, § § 11H, 11I, the Massachusetts Civil Rights Act. The defendants have requested summary judgment as to each claim, asserting myriad defenses including that the claims are barred by the statute of limitations, that various defendants cannot be sued under section 1983, that the Massachusetts Equal Rights Act does not apply to this case, and that Thyng cannot prevail under the Massachusetts Civil Rights Act because the record does not reflect the defendants' use of threats, intimidation or coercion.

As discussed below, Thyng's claim under G.L.c. 93, § 102 fails as a matter of law. Likewise, municipalities and individuals sued in their official capacities cannot be held liable for civil rights violations absent special circumstances, none of which are present here, thereby requiring the claims against the City of Quincy, the Quincy ConComm and the individuals sued in their official capacities to be dismissed. The rest of the claims present factual questions that must be resolved by the trier of fact. Accordingly, summary judgment is ALLOWED in part and DENIED in part.

BACKGROUND

The summary judgment record, viewed in the light most favorable to Thyng as the non-moving party, reflects the following.

Thyng has sued the City of Quincy, which is a municipal corporation, along with the ConComm and all of its board members in their individual and official capacities. Claims are also laid out against Robert J. Quinn, the Assistant City Solicitor; Heather Sargent, the ConComm's administrator and enforcement officer; and Joseph Duca and Robert Conlon who worked in the City's Building Department. Finally Thyng asserts claims against the former Mayor of Quincy Francis X. McCauley, a neighbor to the property at the center of this dispute who, according to Thyng, orchestrated the pattern of interference and delay because McCauley did not want another house built in his neighborhood.

Thyng owns a parcel of land located at 202 Manet Avenue in Quincy, Massachusetts (the " Property"). He purchased the Property, which was then a vacant lot, and the parcel next to it (198 Manet Avenue), which contained a small cottage, in 1981. Both parcels extend from Manet Avenue down to Quincy Bay, and a seawall crosses both properties approximately 100 feet from the street. Defendant McCauley is an abutter to the Property. McCauley served on Quincy's City Council during a portion of the relevant time period, and he has also served as Mayor of the City of Quincy. McCauley lives approximately 50 feet from the Property but has testified that he would not be able to see any new structure built on the Property.

When Thyng purchased the Property in 1981, the building inspector informed him that the Property never had a structure on it and was a buildable lot. On the lot adjoining the Property, Thyng, over the course of several years, expanded the small cottage by doubling the foundation size and adding two floors. Thyng and his wife resided in that cottage at 198 Manet Avenue from 1981 until 1998, when they sold that property. Thyng maintained ownership of the Property after the sale of 198 Manet Avenue.

Soon after the sale of 198 Manet Avenue, Thyng began trying to sell the Property as a buildable lot. In September 2000, Thyng reached an agreement to sell the Property to a potential buyer. Despite a 1997 decision from the Quincy Zoning Board of Appeals (" ZBA") that found that the Property was a buildable lot, Heather Sargent, the Quincy ConComm's administrator and enforcement officer, or Devon Marinelli of the Quincy ZBA, told the prospective buyers' broker that the Property was unbuildable. Walter White, then director of Quincy's Zoning Inspectional Services Department, issued a letter to the broker expressing a contrary viewpoint: that the Property was a buildable lot.

In October of 2000, the prospective buyers, with the assistance of Sargent, filed a Request for Determination of Applicability (" RDA") asking the ConComm to determine if state and local wetlands regulations applied to the house they intended to construct on the Property. After the ConComm held a hearing on the RDA, the ConComm ruled that the buyers would need to file a Notice of Intent (" NOI") and go through the wetlands permitting process if they wanted to build on the Property. Thyng did not receive any notification of the RDA, and was left out of the ConComm hearing process entirely. Based upon the ConComm's RDA determination, the buyers demanded their deposit back and cancelled the agreement.

Over the course of the next decade, Thyng encountered numerous obstacles in his efforts to build on the Property. After the buyers backed out of the purchase of the Property, Thyng approached Sargent about the ConComm's RDA determination, and she told him that the Property was unbuildable and that he should donate it to the city and take the tax write off. In February of 2003, Thyng submitted a new RDA to the ConComm, but the ConComm never scheduled a hearing on the matter. Later that year, Thyng attempted to file an NOI concerning the construction of a single-family home on the Property with the ConComm but Sargent refused to accept it. Thyng therefore filed the NOI directly with the Massachusetts Department of Environmental Protection (" DEP") and sent a copy to the ConComm. This tactic appeared to spur the ConComm into action, and eventually it scheduled a hearing on Thyng's application. However, when Sargent found out that Thyng had attempted to circumvent her and the ConComm, she told Thyng's attorney, Paul Hines, " I'll get him [Thyng] for this." In another incident, Sargent asked Hines " Why are you working for that asshole?"

After numerous delays, the ConComm hearing on Thyng's NOI was held on June 16, 2004. At the close of the hearing, the ConComm voted to deny the permit application, under both the state Wetlands Protection Act and Quincy's local wetlands ordinance, for lack of information. However, the ConComm later issued a written decision that contained conditions and findings that were not discussed at the hearing which, in essence, prevented Thyng from being able to re-file with the additional information right away. The minutes from the June 16 hearing were never released, contrary to the ConComm's usual practice.

Thyng appealed the state law aspects of ConComm's denial to the DEP. The DEP eventually issued a Superseding Order of Conditions on February 4, 2005 that reversed the ConComm's decision and allowed Thyng's project as it had been proposed. In a parallel action, Thyng also appealed the ConComm's decision to this court under Quincy's local wetlands ordinance. Thyng's attorney and Quinn, the city solicitor that was acting on behalf of Quincy's ConComm, reported that case as settled at a 2006 status conference. This Court then entered a judgment remanding the case to the ConComm.

Despite the remand from this court and the DEP's determination in Thyng's favor, the ConComm refused to schedule a new hearing for Thyng's permit application. Sargent refused to schedule the hearing " because [Thyng] is suing me, " ^[2] she told Thyng's attorney Hines. She referred Hines to Quinn in the City's Law Department, but Quinn did not take any affirmative steps to schedule a hearing either. William Keener, who was deposed as the ConComm's Rule 30(b)(6) representative, testified that he was aware that the case had been remanded to the ConComm but did nothing to schedule a hearing or determine steps the ConComm was required to take.

After another year-and-a-half delay, Thyng returned to this court and requested an order requiring the defendants to schedule Thyng's application for a hearing. On January 3, 2008, Judge Brady issued an order stating: " The Conservation Commission offers no reason, other than animosity toward Plaintiff, for not scheduling the matter for hearing. Furthermore, the original decision denying the application was late and therefore of no effect. The Superseding Order of the DEP governs."

After Judge Brady's Order, Quincy's Building Department specifically defendants Duca and Conlon, engaged in dilatory tactics to prevent Thyng from completing the permitting process before the March 15, 2010 expiration of a variance he had obtained from the Quincy Planning Board. Nonetheless, Thyng received the final permit he needed for development of the Property on March 11, 2010.Throughout the entire process, Thyng alleges, Defendant McCauley, the former mayor...