Posted by: Patricia Salkin | October 24, 2015

Fed. Dist Court of MA Dismisses Taking and Equal Protection Claims as Time Barred

In 2002, Caro Street Properties, Clay Street Properties, and College Hill Properties (collectively “Plaintiffs”) bought residential dwelling units in the City that were leased to students attending the College of the Holy Cross.   In 2009, P. Giorgio was served with a cease and desist order by the City’s Department of Inspectional Services, which alleged that a specific unit was in violation of a City zoning ordinance prohibiting renting to more than three unrelated adult occupants, and the lodging house statutory system, Mass.Gen.L. ch. 140, §§ 22–32 (“Lodging House Act”). Following this, Plaintiffs were served with additional citations from the City for operating unlicensed lodging houses and ordered to cease and desist. During this time, Paul and Michele Meaney were served with a cease and desist administrative notice alleging a similar violation of the Ordinance, however the City rescinded that order. In 2010, the City filed civil actions in the Worcester Division of the Housing Court Department against the Giorgios and College Hill Properties for violations of the Lodging House Act. The Housing Court permanently enjoined Plaintiffs “from allowing more than three unrelated adults to reside in each dwelling unit.” When the Plaintiffs failed to comply, the court issued civil contempt orders. The orders were appealed to the Massachusetts Appeals Court, which affirmed the Housing Court. Following further appellate review, the Supreme Judicial Court ruled that the Lodging House Act had no application in the specific circumstances under which the Plaintiffs were renting the units. In this case, Defendants asserted that Plaintiffs’ Complaint must be dismissed because their claims were time-barred by the applicable statute of limitations.

In Count I, Plaintiffs alleged that Defendants’ actions in enforcing the Lodging House Act constituted a regulatory taking without just compensation, in violation of the Fifth and Fourteenth Amendments to the Constitution. However, the court found that the Plaintiffs failed to establish that they were denied adequate procedures through which they could obtain compensation for the City’s alleged taking. Here, the Plaintiffs’ conclusory statement that they were not provided post-deprivation remedies was insufficient, and did not adequately state a cause of action. Additionally, all of the facts alleged that would support the substantive due process claim occurred well outside of the statute of limitations. None of the events which occurred in 2012 and after: being cited ten times by a city inspector for failing to remove a spool of toilet paper, the WPD filing complaints against one or more Plaintiffs for excessive trash, and making warrantless entries into the premises to determine the number of occupants, rose to the level of a substantive due process violation.

Next, the court addressed the Plaintiffs’ Equal Protection claim. The City filed civil actions against the Plaintiffs for violations of the Lodging House Act on January 13, 2010. Thus, the Plaintiffs should have been aware the facts necessary to support this claim at the time that the City brought an enforcement action against them and their claim was therefore time-barred. Plaintiffs also argued a variant of the discovery rule exception to the statute of limitations; however, the court rejected this claim because Plaintiffs failed to allege sufficient facts to establish that their claims were inherently unknowable. Accordingly, Defendants’ motion to dismiss was granted.

College Hill Properties v City of Worcester, 2015 WL 5737147 (D. MA 9/30/2015)


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