College Hill Properties, LLC v. City of Worcester

United States Court of Appeals
For the First Circuit
No. 15-2306
COLLEGE HILL PROPERTIES, LLC; CARO STREET PROPERTIES, LLC; CLAY
STREET PROPERTIES, LLC; PAUL F. GIORGIO; DIANA H. GIORGIO,
Plaintiffs, Appellants,
v.
CITY OF WORCESTER; DEPARTMENT OF BUILDING AND ZONING; DEPARTMENT
OF HEALTH AND HOUSING INSPECTIONS; DEPARTMENT OF INSPECTIONAL
SERVICES; BOARD OF PUBLIC HEALTH; WORCESTER POLICE DEPARTMENT;
MICHAEL V. O'BRIEN, City Manager, in his official and individual
capacities; BARBARA HALLER, City Councilor, in her official and
individual capacities; JOHN R. KELLY, Commissioner of Building
and Zoning, in his official and individual capacities; AMANDA M.
WILSON, Director of Housing and Health Inspections, in her
official and individual capacities; JOHN NORDBERG, Code
Enforcement Officer and Housing and Health Inspector, in his
official and individual capacities; JOHN CARLSON, Code
Enforcement Officer and Housing and Health Inspector, in his
official and individual capacities; GARY J. GEMME, Police Chief,
in his official and individual capacities; JAMES SHUGRUE, Police
Lieutenant, in his official and individual capacities,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]
Before
Lynch, Kayatta, and Barron,
Circuit Judges.

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Eric N. Stafford, with whom Jeffrey A. Denner and Jeffrey
Denner Associates, PC were on brief, for appellants.
Kevin M. Gould, Assistant City Solicitor, with whom Wendy L.
Quinn, Assistant City Solicitor, and David M. Moore, City
Solicitor, were on brief, for appellees.
May 11, 2016

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LYNCH, Circuit Judge. Plaintiff-appellants College
Hill Properties, LLC; Caro Street Properties, LLC; Clay Street
Properties, LLC; Paul F. Giorgio; and Diana H. Giorgio
(collectively "College Hill") appeal the district court's grant of
the defendants' motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). We affirm the district court's decision.
I.
Because College Hill appeals the dismissal of its claims
under Federal Rule of Civil Procedure 12(b)(6), we state the facts
as College Hill alleges them and draw reasonable inferences in its
favor. See Maloy v. Ballori-Lage, 744 F.3d 250, 251 (1st Cir.
2014); Langadinos v. Am. Airlines, Inc., 199 F.3d 68, 69 (1st Cir.
2000).
The plaintiff-appellants are property owners who
privately lease units in Worcester, Massachusetts, to students
from the College of the Holy Cross ("Holy Cross"). They have
brought this suit alleging that defendant City of Worcester
("Worcester"), through its zoning and code enforcement officials
and entities, engaged in a nefarious scheme, starting in 2009, to
selectively enforce the Worcester Zoning Ordinance and the state
Lodging House Act, Mass. Gen. Laws ch. 140, §§ 22–32. This
enforcement caused College Hill to reduce the number of tenants
per unit from four to three. The alleged purpose of this selective
enforcement was to pressure Holy Cross to make voluntary payments

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in lieu of property taxes to Worcester -- presumably because of
the pressure from reduced student housing, though that is unclear.
College Hill resisted Worcester's effort in two ways.
First, after Worcester obtained an injunction in the Massachusetts
Housing Court Department ("Housing Court") against College Hill
for violations of the Lodging House Act, College Hill appealed to
the Massachusetts Appeals Court and then the Massachusetts Supreme
Judicial Court ("SJC"). College Hill maintained that the Lodging
House Act did not apply to its units. Although College Hill lost
before the Housing Court and the Appeals Court, the SJC ultimately
held that the Lodging House Act did not apply to College Hill's
properties. City of Worcester v. Coll. Hill Props., LLC, 987
N.E.2d 1236, 1240 (Mass. 2013).
Then, in 2014, College Hill filed this complaint in the
state Superior Court against the City of Worcester, a number of
its departments, and various officials. The complaint, brought
pursuant to 42 U.S.C. § 1983, alleged: (1) a regulatory taking
without just compensation in violation of the Fifth and Fourteenth
Amendments; (2) a substantive due process violation; and (3)
selective enforcement and disparate treatment in violation of the
plaintiffs' equal protection rights. College Hill also alleged
violations of the Massachusetts Civil Rights Act, Mass. Gen. Laws
ch. 12, §§ 11H–11I. The defendants removed the case to the federal
district court in Massachusetts on January 9, 2015. On February

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9, 2015, the defendants filed a motion to dismiss for failure to
state a claim, arguing, inter alia, that the plaintiffs' claims
are time-barred by the applicable three-year statute of
limitations, as the complained-of actions dated back to 2009 and
2010; that the complaint failed to make plausible claims against
the defendants; and that "the [d]efendants are entitled to
qualified immunity from liability for the alleged federal civil
rights violations." The district court granted the motion on
September 30, 2015. Coll. Hill Props., LLC v. City of Worcester,
No. 15-40009, 2015 WL 5737147 (D. Mass. Sept. 30, 2015). This
appeal followed.
II.
"We review the District Court's dismissal for failure to
state a claim de novo." Saldivar v. Racine, No. 15-1448, 2016 WL
1169397, at *2 (1st Cir. Mar. 25, 2016). "To survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is plausible on
its face.' A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
The district court, in a well-reasoned opinion, held
that College Hill's regulatory taking claim was barred based on

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College Hill's failure to fulfill the ripeness requirement.
College Hill does not develop a challenge to this conclusion on
appeal, so any challenge is waived. See Negrón-Almeda v. Santiago,
528 F.3d 15, 25 (1st Cir. 2008).
As to College Hill's 42 U.S.C. § 1983 claims based on
substantive due process and equal protection violations as well as
its claim that the defendants violated the Massachusetts Civil
Rights Act, we summarily affirm the district court's grant of the
defendants' motion to dismiss for the reasons stated in the
district court's opinion. See 1st Cir. R. 27.0(c).
III.
The district court's order is affirmed.

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