Harlow Phase I- Olech litgation in Federal Court

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UNITED STATES DISTRCT COURT

DISTRICT OF MASSACHUSETTS

________________________________________________

)

COURTLAND L. HARLOW, III, ET AL., )

)

Plaintiffs, )

)

vs. ) C.A. NO. 1:15-CV-12042

)

TOWN OF KINGSTON, ET AL., )

)

Defendants. )

)

MEMORANDUM OF LAW IN SUPPORT OF THE TOWN OF KINGSTON’S PARTIAL

MOTION TO DISMISS COUNTS I, II, IV, VI, AND VII OF

PLAINTIFFS’ FIRST AMENDED COMPLAINT

Pursuant to Fed. Rule of Civil Procedure 12(b)(6), this Memorandum is submitted in

support Town of Kingston’s (“the Town”) partial motion to dismiss Counts I, II, IV, VI, and VII

of Plaintiffs’ First Amended Complaint (“Amended Complaint”). Plaintiffs, Courtland Harlow,

III, Daniel Harlow, and Dorothy Harlow (collectively, “the Harlows” or “the plaintiffs”)1,

attempt to disguise their “laundry list of grievances” with the Town of Kingston’s local zoning,

taxing and regulatory processes as a violation of their constitutional “right to vote, right to farm,

[and] right to associate with the Republican Party.” Cuevas v. DiPaulo, 2011 WL 2118268, at *3

(D. Mass. 2011); See Amended Complaint, ¶ 209. This Court should not entertain plaintiffs’

blatant attempt to circumvent the local zoning and administrative processes simply because they

are frustrated with their property tax bills, conservation commission enforcement orders,

statutorily required barn inspections of the chickens they keep, assessment of sewer connection

1 The Harlows purport to bring this action in both their individual capacities and as trustees of various properties

owned by their family, as follows: Courtland L. Harlow III, as Trustee for the 3 Blair Dr. Realty Trust, Trustee for

the 27 Howlands Ln. Realty Trust, Trustee for the 20 Wharf Ln. Realty Trust; Daniel J. Harlow, as Trustee for the 3

Blair Dr. Realty Trust, Trustee for the 20 Wharf Ln. Realty Trust, Trustee for the 27 Howlands Ln. Realty Trust; and

Dorothy P. Harlow, Trustee for the 35 Howlands Ln. Realty Trust, and Trustee for the Daniel-Courtland III Trust.


2

fees, and the application of the Town’s zoning by-laws to their building permit applications.

Plaintiffs cannot be allowed to prolong their ill-conceived attempts to punish the Town, or the

Board, or municipal officials in general for simply doing their jobs-even if tasks were

imperfectly performed.” Chongris v. Bd. of Appeals of Town of Andover, 811 F.2d 36, 46 (1st

Cir. 1987).

Through this heavy-handed litigation, which is set forth in a rambling and disjointed 53-

page, 237-paragraph Amended Complaint, with 145 pages of exhibits attached, the Harlows

allege that the Town and 16 past and present Town Officials, named in both their individual and

official capacities, have each violated the Harlows’ constitutional rights. The Harlows

effectively seek to federalize a series of local zoning disputes in a heavy-handed attempt to force

defendants into making a Hobson’s choice between incurring significant defense costs or

capitulating to their demands. Against this backdrop, the Town now moves to dismiss Counts I,

II, IV, VI, and VII of plaintiffs’ First Amended Complaint for the following reasons and for all

of those reasons set forth in the Town Officials’ Memorandum in Support of their Motion to

Dismiss. First, Counts IV, VI, and VII should be dismissed as the Harlows cannot maintain a

cause of action against the Town for violations of 42 U.S.C. § 1983 under Monell v. Dept. of

Social Services of City of N.Y., 436 U.S. 658, 665 (1978). Second, the Town remains immune

for intentional torts of trespass (Count I) and conversion (Count II) under M.G.L. c. 258, § 10(c).

I. FACTUAL ALLEGATIONS2

Together, through a series of trusts, the Harlows only several residential properties in the

Town of Kingston. Amended Complaint, ¶¶ 1-4. By way of their First Amended Complaint, the

2 For this Motion to Dismiss only, the defendants acknowledge that this Court is required to accept the veracity of

plaintiffs’ “well-pleaded” factual allegations.


3

Harlows have alleged that a series of incidents and municipal decisions have caused both

themselves and their properties injury as outlined herein.

Creation of a Drainage Swale

Paul Basler is the Town’s Superintendent of Public Works. Id., ¶ 6. Maureen Thomas is

the Conservation Agent for the Town. Id., ¶ 7. The Harlows allege that Paul Basler and

Maureen Thomas took steps to create a swale at the corner of two of the Harlows’ properties, 3

Blair Drive and 35 Howlands Lane. Id., ¶ 29. More specifically, the Harlows allege that certain

Town Officials dug and created a drainage swale on their properties on or about March 18, 2014

Id., ¶¶ 28, 30.

When the Harlows first observed the swale, Daniel Harlow sought to confront Basler and

Thomas about why they had inserted the swale on the Harlows’ property. Thomas, however,

refused to speak with Daniel Harlow and instead drove away Id., ¶ 31. At the same time, Basler

responded by leaving the area and returning with a front loader to fill the swale (he allegedly

dug) first with gravel and then with asphalt on separate occasions in November and December

2014, while a Town police officer stood by to ensure Basler did not enter onto the Harlows’

property. Id., ¶¶ 31, 51-52. The Harlows further contend that the Town has caused water to

flood their property because the Town has intentionally failed to clean catch basins in front of

their 35 Howlands Lane property Id., ¶¶ 33, 34, 38. According to the Harlows, the Town has not

created such drainage swales at other similarly situated properties. Id., ¶¶ 40-43.

Increased Assessed Values of the Harlows’ Properties

The Harlows contend that the Town, through its Tax Assessors, have increased the value

of their properties at a significantly greater percentage than other allegedly similarly situated


4

properties in Town. Am. Complaint, ¶¶ 55, 60. Specifically, the Harlows point to properties they

own at 3 Pebble Lane, 24 Sunset Road, and 3 Blair Drive.

The Harlows own a 7 bedroom house located at 3 Pebble Lane. Id., ¶ 56. In 2012, 3

Pebble Lane was assessed at $583,100, with increases to $848,100, $863,400, and $937,800 from

2013 through 2015, respectively. Id., ¶ 57. The Harlows calculate that 3 Pebble Ln.’s assessed

value increased by 48.5% from 2011 through 2014. Id. When Daniel Harlow sought records

regarding the assessment of 3 Pebble Ln. in 2014, he was advised by a neighbor, in front of

Assistant Assessor Holly Merry, to not let Ms. Merry see copies of the Harlows’ rental

advertisements for the property because the Tax Assessors would raise their taxes based on the

rental rate. Id., ¶ 67. In response, Ms. Merry simply stated that those advertisements were

already on file. Id. The Harlows allege that their property’s assessed value has been increased

simply because it is a rental property. Id., ¶ 68.

The Harlows also own a vacant buildable lot at 24 Sunset Road. Id., ¶ 58. In 2012-2013,

24 Sunset Rd. was assessed at $480,200. Id. In 2014, the Town increased the assessed value of

24 Sunset Rd. to $530,900. Id. The Harlows own a vacant lot at 3 Blair Drive. Id., ¶ 59. In

2011, 3 Blair Drive was assessed at $5,300, with an increase to $5,600 in 2012, a decrease to

$4,800 in 2013, and an increase to $7,600 in 2014. Id., ¶ 59. The Harlows calculate that 3 Blair

Drive’s assessed value increased by 43.4% from 2011 through 2014. Id.

The Harlows’ Firewood Business and Barn Inspections of Chickens

The Harlows began keeping chickens and selling firewood at another one of their

properties, 27 Howlands Lane, in April 2012. Id., ¶ 76. Zoning Enforcement Officer, Paul

Armstrong visited the property in the fall of 2012 and told the Harlows to decrease the size of a

sign they were using to advertise the sale of firewood in 2012 at their property. Id., ¶ 77. Later,


5

in February 2013, Armstrong wrote to the Harlows telling them that they could not sell firewood

at their 27 Howlands Lane property if the firewood was taken from other landscaping job sites.

Id., ¶ 78. At the same time, Armstrong instructed the Harlows to adjust the fence at their

premises to keep their chickens on the premises. Id.

Debra Mueller is the Animal Inspector for the Town. Id., ¶ 14. Mueller conducts barn

inspections under the direction of the Commonwealth’s Division of Animal Health and in

accordance with M.G.L. c. 129, § 7. Id., ¶ 81. In January 2014, after learning that the Harlows

kept chickens at their property, Mueller contacted the Harlows, first by phone and then in

writing, and sought to conduct a barn inspection in accordance with M.G.L. c. 129, § 7. Id., ¶ 80.

The Harlows do not allege that Mueller actually was permitted to entry to conduct any such

inspection.3 The Harlows, however, allege that Mueller, along with Maureen Thomas, targeted

the Harlows for inspection because the Harlows are affluent. Id., ¶ 81. The Harlows allege that

other Town residents who keep chickens and other livestock have never been subject to barn

inspections. Id., ¶¶ 82-88.

Incident at the Town Voting Poll

Paul Gallagher is the Town Clerk. Am. Complaint, ¶ 8. When Courtland Harlow went to

vote on September 9, 2014 at the Kingston Elementary School, he was approached by

Gallagher., who made remark in front other that “I just want to let you know, he’s the trouble

maker from Howlands Lane.” Id., ¶¶ 92, 95. Mr. Harlow alleges that Gallagher’s statement was

designed to interfere with and retaliate against him for his decision to cast a Republican ballot.

Harlow, an un-enrolled voter, alleges that he cast his vote as a Democrat, left the polling station,

3 Mueller was informed by plaintiffs’ counsel that plaintiffs, who objected to any Town officials conducting such an

inspection, would have the state conduct the inspection directly. Incredibly, the Harlows fail to disclose that they

refused to allow Mueller to conduct such inspections and instead demanded that any such inspections be done

directly by a state inspector.


6

and then returned to gather the names of witnesses when he had a confrontation with Gallagher

outside the polling station about the innocuous comment made by Gallagher. Id., ¶¶ 98-99.

Harlow then sought and application for a criminal complaint against Gallagher, which was

dismissed for lack of probable cause without a hearing. Id., ¶ 103. Harlow does not allege that

he was denied the right to vote or forced to take a Democratic ballot instead of a Republican

ballot. In fact, he admits that he exercised his right to vote. Id., ¶ 98. He makes no allegation

that he asked for or was refused a Republican ballot.

Sewer Connection Fee for 3 Pebble Lane

In 2000, the Tax Assessors determined the amount of Equivalent Residential Unit

(ERUs) that each home should be assessed for being connected to the Town’s sewer system. Id.,

¶ 108. As of 1994, 3 Pebble Lane was assessed as having 6 bedrooms and as having 1 ERU

from 2000 through 2009. Id. After applying for various building and plumbing permits of three

(3) separate occasions from October 2006 through November 2007, the Harlows attended a

Sewer Commission meeting in November 2007 where they were told to apply for an additional

allotment of water to use in the form of 1 more ERU for 3 Pebble Lane. Id., ¶ 111. The Harlows

were told that 1 ERU covered 3 bedrooms, and they would need an additional ERU to cover 2

more bedrooms. Id. After completing renovations to 3 Pebble Ln. in October 2009, the Harlows

began to rent the property for income. Id., ¶ 113. Armstrong, and then Assistant Assessor James

Judge inspected the premises and informed the Harlows that the property was now a 7 bedroom,

and not 5 bedroom, property. Id. The Harlows also began advertising the property as a 7

bedroom property. Id., ¶ 117.


7

Because the property now contained 7 bedrooms, the Sewer Commission required that

the Harlows pay for a sewer connection fee in the amount of $11,222,00 as an additional ERU.

Id., ¶ 120. The Harlows paid this sewer connection fee in April 2011. Id., ¶ 121.

20 Wharf Lane Building Permits

The Harlows purchased 20 Wharf Lane on July 11, 2014. Id., ¶ 134. The property was

advertised for sale as having 2 full bathroom, while the tax assessor card listed the property as

having 1 full and 1 half bath in May 2014. Id. Shortly after the purchase of the property, the tax

assessor card was changed to indicate the property having 2 full bathrooms. Id., ¶ 135.

On August 13, 2014, Daniel Harlow filed for a building permit to build a dormer

alteration at 20 Wharf Lane. Id., ¶ 151. On two occasions in early September 2014, the Tax

Assessors sent the Harlows a letter requesting that the Harlows provide details regarding their

newly purchased property. Id., ¶¶ 145-146. The Harlows did not respond to these questionnaires.

Id., ¶ 148. On September 29, 2014, Daniel Harlow applied for and received a plumbing permit

for the upstairs bathroom of 20 Wharf Lane. Id., ¶¶ 147-148. On December 10, 2014, Daniel

Harlow sought to apply for a second plumbing permit for the downstairs bathroom when he

learned that the earlier plumbing permit was no longer approved because Mr. Harlow had a

pending matter before the Massachusetts Board of Building Regulations and Standards (BBRS).

Id., ¶ 150. The following day, Armstrong allegedly told Mr. Harlow that the first permit had

been revoked (and the second permit would not issue) because the Tax Assessors had indicated

to him that the property contained 1 full and 1 half bathrooms. Id., ¶ 152. The Harlows contend

that the permits were revoked because the Harlows have refused the Tax Assessors access to

their property. Id., ¶ 154. Shortly, thereafter, Armstrong issued both plumbing permits after

speaking with the Harlows’ plumber. Id., ¶¶ 155, 157.


8

Armstrong did not, however, issue the dormer alteration permit, which had been denied

on September 17, 2014. Id., ¶¶ 157, 165. According to the Amended Complaint, that permit was

first denied in writing because the Harlows failed to obtain approval from the Sewer Commission

and because of safety concerns. Id., ¶ 166. The Harlows appealed that denial to the BBRS,

where a hearing was held on November 25, 2014. Id., ¶ 167. The BBRS recommended that the

Harlows provide Armstrong with certain floor plan information and that they withdraw their

appeal. Id., ¶ 168. On January 16, 2015, Armstrong issued a second denial letter, which the

Harlows appeals again to the BBRS, where a second hearing was held on April 2, 2015. Id., ¶

178. The Harlows allege that the BBRS provided Armstrong with 5 days to conduct an

inspection of 20 Wharf Lane. Id., ¶ 180. That inspection was conducted on April 7, 2015, and a

permit was issued on April 10, 2015. Id.

II. STANDARD OF REVIEW

For purposes of brevity, the Town adopts and incorporates by reference the applicable

standard of review set forth in the Town Officials’ Memorandum in Support of their Motion to

Dismiss.

III. ARGUMENT

A. The Harlows Cannot Show that the Town of Kingston Adopted an

Unconstitutional Custom, Policy or Practice and, Therefore, Counts IV, VI, and

VII of Plaintiffs’ First Amended Complaint as Against it Must be Dismissed.

A municipality cannot be held vicariously liable for the unconstitutional acts of its

officers or employees. Monell v. Dept. of Social Services of City of N.Y., 436 U.S. 658, 665

(1978). Therefore, even if any of the individual defendants, somehow deprived the plaintiffs of

their constitutional rights (which both they and the Town deny), and even if any of the

individual defendants, while engaged in unconstitutional activity, qualified as an agent or


9

employee of the Town, the Town cannot be held vicariously liable for such conduct as a matter

of law. See Beckley v. Browning Ferris Industries, 2005 WL 483340, *4 (D. Mass. 2005)

(municipality neither directly nor vicariously liable under Section 1983).

Local governments do, nevertheless, qualify as “persons” within the meaning of 42

U.S.C. §1983. A municipality may, therefore, be held directly liable to an individual if it

deprives that individual of a constitutional right through a policy or custom. Monell, 436 U.S. at

694. “[T]he touchstone of the § 1983 action against a government body is an allegation that

official policy is responsible for a deprivation of rights protected by the Constitution....” Id. at

690. Thus, a plaintiff must plead the alleged unconstitutional policy in his Complaint in order to

survive a municipality’s motion to dismiss. Scarpa v. Murphy, 624 F. Supp. 33, 35 (D. Mass.

1985). Indeed, this Court has held that, to hold a municipality liable under Section 1983, a

plaintiff must plead and prove: (1) an official policy or custom that (2) causes the plaintiff to be

subjected to (3) a denial of a constitutional right. Holland v. Breen, 623 F. Supp. 284, 290 (D.

Mass. 1985); See also Beckley, 2005 WL at *4 (single instance of alleged application of an

unconstitutional policy found insufficient to hold municipality directly liable under Section

1983).

The Harlows have not pled that its constitutional rights were denied by an official

custom, policy or practice of the Town. In fact, their 237-parargraph First Amended Complaint

contains not a single allegation referring to any Town policy or custom. Instead, the factual

premise of the Amended Complaint is that the Harlows have been treated differently from other

property owners, not similarly in accordance with Town policy. Palermo v. Town of N.

Reading, 370 F. App’x 128, 131 (1st Cir. 2010) (rejecting Monell claim premised solely on the

actions of municipal employees or representatives).


10

The absence of any allegation that the execution of a Town policy or custom caused the

Harlows injury is fatal to the their Section 1983 claim against the Town. Scarpa, 624 F. Supp. at

35; Holland, 623 F. Supp. at 290. The Harlows did not allege an unconstitutional Town policy

or custom because no such policy or custom existed. Consequently, even if the Court were to

read the Amended Complaint as alleging that any of the Town Officials, while acting as a Town

official, followed or enforced an unconstitutional policy or custom, the Amended Complaint

would still be deficient because no policy or custom of the Town caused the alleged deprivation

of the plaintiffs’ rights. Counts IV4, VI and VII must be dismissed as against the Town.

B. The Town and the Town Officials, In Their Official Capacity, Are Entitled

Immunity Under M.G.L. c. 258, §10(c) For Plaintiffs’ Intentional Tort Claims In

Counts II Through VI).

Plaintiffs seek recovery against the defendants for trespass (Count I) and conversion (Count

II). M.G.L. c. 258, §10(c), provides that municipalities retain their sovereign immunity for “any

claim arising out of an intentional tort, including assault, battery, false imprisonment, false arrest,

intentional mental distress, malicious prosecution, malicious abuse of process ….” Id. (emphasis

added). Even though not enumerated in Section 10(c), fraud and trespass are intentional torts in

that they require proof that “the defendant made a misrepresentation of fact with the intention

to induce another to act upon it.” Equipment & Systems for Industry, Inc. v. Northmeadows

Construction Co, Inc., 59 Mass. App. Ct. 931 (2003); see also Kelley v. LaForce, 288 F.3d 1, 4

(1st Cir. 2002) (town immune as to intentional tort of conversion); Thames Shipyard and Repair

Co. v. U.S., 350 F.3d 247, 252, n.4 (1st Cir. 2003). Trespass, whether characterized as

“continuing” or otherwise, is an intentional tort. See United Electric Light Co. v. Deliso

4 The Town adopts the argument set forth in the Town Officials’ memorandum that the Harlows cannot maintain a

cause of action for a taking under the 5th

Amendment where the Harlows have failed to exhaust their remedies under

M.G.L. c. 79 for challenging the exercise of eminent domain. Kelly v. Day, 585 F.Supp.2d 211, 215 (D. Mass.

2008).


11

Construction Co., 315 Mass. 313, 318 (1943) (trespass is a form of intentional tort requiring the

plaintiff to prove an “affirmative voluntary act” on the part of the defendant, and in that part it

differs from negligence); see also Tsivitsi v. City of Worcester, 2010 WL 1050981, *2 (Mass.

Super.); Posco Inv. Corp. v. Com., 1996 WL 1186825, *3 (Mass. Super. 1996); Caliendo v. Town

of Arlington, 1994 WL 879595, *1 (Mass. Super. 1994) (applying Section 10(c) immunity to claim

of trespass arising out of town’s installation of sewer system).

CONCLUSION

WHEREFORE, the defendant, the Town of Kingston, respectfully submits that its Partial

Motion to Dismiss should be granted, and that this Honorable Court should dismiss Counts I, II,

IV, VI, and VII pled against the Town and defendants, in their official capacities5, in plaintiffs’

First Amended Complaint.

Respectfully submitted,

The Defendant,

TOWN OF KINGSTON

By its Attorneys,

PIERCE, DAVIS & PERRITANO, LLP

/s/ John J. Davis

________________________________

John J. Davis, BBO #115890

Seth B. Barnett, BBO #661497

90 Canal Street

Boston, MA 02114

(617) 350-0950

[email protected]

[email protected]

5 Will v. Mich. Dept. Of State Police, 491 U.S. 58, 71 (1989) (bringing suit against a governmental official in his

official capacity is tantamount to bringing “suit against the official’s office”); Forte v. Sullivan, 935 F.2d 1, 2 n. 2

(1st Cir. 1991); see also Hafer v. Melo, 502 U.S. 21 (1991) (to avoid sovereign immunity plaintiff must sue state

official in his individual capacity); Scarpa v. Murphy, 624 F.Supp. 33, 35 (D. Mass. 1985) (state officials may be

held personally liable for their actions only if they are sued in their individual capacity).


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CERTIFICATE OF SERVICE

I hereby certify that the foregoing, filed through the Electronic Case Filing System, will

be sent electronically to the registered participants as identified on the Notice of Electronic Filing

and that a paper copy shall be served upon those indicated as non-registered participants on July

7, 2015.

/s/ John J. Davis

_______________________________________

John J. Davis


1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF

MASSACHUSETTS

HARLOW, ET AL., DOCKET NO. 1:15-cv-12042-WGY

Plaintiffs

v.

KINGSTON, ET AL.,

Defendants.

MEMORANDUM IN SUPPORT OF OPPOSITION TO MOTION TO DISMISS

I. FACTS

The Plaintiffs own 3 Blair Dr. and 35 Howlands. (AC 23). The street of Blair Dr. is

located on an incline and intersects with Howlands Ln., so that water flows downhill

from Blair Dr. towards Howlands Ln. (AC 24). On or about February 5, 2013, Daniel

and Courtland Harlow were participating in a hearing before the Town Conservation

Commission where an issue concerning standing water at 3 Blair Dr. was mentioned.

(AC 26). The Plaintiffs contended that there was no standing water at the property. (AC

27). Thomas was present during the hearing; however, Basler was not present during the

hearing. (AC 27).

On or about March 18, 2014, Thomas, Basler, and the Town began developing a

scheme vis-à-vis secretly inserting a swale to flood the properties of 3 Blair Dr. and 35

Howlands Ln. with water. (AC 28, 30). Thomas lacks the ability to insert a swale at 3

Blair Dr.; however, Basler has the resources to insert the swale as an employee of the

Town of Kingston Department of Public Works. (AC 28, 30). Thomas and Basler began

scheming to insert the swale as far back as 2006. (AC 29). On March 31, 2014, Daniel

Harlow attempted to confront Thomas and Basler regarding the swale and Thomas fled

2

the scene only to be followed by the arrival of a DPW truck containing more gravel that

was used to modify the swale. (AC 31-33); Ex. 41 The Town perpetuates the water

problems caused by the swale by not cleaning the catch basins in the area of 35 Howlands

Ln. and 3 Blair Dr.; Ex. 5, Photos; Ex. 7, Conservation Testimony. (AC 36, 37, 38,

39). Other properties in Kingston are similarly or identically situated to 3 Blair Dr. and

35 Howlands Ln. in that water flows downhill onto Howlands Ln. (AC 40). The Town

has not created a swale on its own at similarly situated properties at 37 Howlands Ln., 5

Wharf Ln., or 2 Blair Dr. (AC 40-45).

On March 31, 2014, the DPW and Basler modified the swale using a fine gravel-

like substance while accusing the Plaintiffs of altering the swale. (AC 48). The Town

responded to a 258 Demand Letter in part by stating “all changes to the property [i.e., the

swale] were committed on Town property”. (AC 49). Basler modified the swale on

November 19, 2014 and on December 10, 2014 with police present (AC 49, 52). The

modifications to the swale resulted in 3 Blair Dr. flooding with a mixture of hazardous

frozen and icy water which gradually releases onto 35 Howlands Ln. (AC 43). Basler

appeared in January 2015 to chip away at the large ice accumulation created by the

hazardous he, Thomas, and the Town created, and Basler and other Town employees also

created a sandbag blockage to flood and divert water more onto the Plaintiffs’ properties.

(AC 54); Ex. 15 Photos.

The Tax Assessors are responsible for determining the assessed value for

properties in the Town and the Tax Assessors responsible for establishing the rates

between 2010 and 2014 that affected the Plaintiffs’ properties are James Judge, Thomas

1 Exhibit citations are to the numbered Exhibits in the Amended Complaint. Exhibits are incorporated

from the Affidavit of Counsel.

3

S. Donnelly, Nancy C. Shea, Ann Dunn, Donna Furio, Holly Merry, and Andrew P.

MacInnis. (AC 55-56). In the past 3 years, the Tax Assessors increased the Plaintiffs’

taxation on their properties of 3 Pebble Ln., 24 Sunset Rd., and 3 Blair Dr. far above the -

.05477 % average for similar properties on Map 59 in the Town. (AC 57-66). Between

2011 and 2014, the Harlows had two of the three highest assessed value increases on Map

59 in the Town of Kingston (AC 65).

The Plaintiffs purchased 20 Wharf Ln. on July 11, 2014 for $590,000 which was

higher than the assessed value of $309,900. (AC 66). Two of the inappropriate reasons

that the Tax Assessors increased the assessed value of the Plaintiffs’ properties is because

they paid greater than the assessed value for properties that they purchased and because

they rent their properties. (AC 67-68). The Tax Assessors are aware that the Plaintiffs’

property taxes are inappropriate and obtained funds to conduct an audit (the “Audit”) to

cover-up the Plaintiffs’ assessed value taxations under the auspice of “mak[ing] sure

everyone’s property is assessed fairly”. (AC70-75). During an April 2015 town meeting

the Plaintiffs attempted to ask questions of Town Selectmen regarding the need for the

Audit and they refused to answer many of their questions on the basis of unnamed

“pending litigation” while stating to Mr. Harlow “I wish you all had the knowledge that

we did” regarding the need for the Audit. (AC 71). On August 12, 2014, Andrew

MacInnis and Holly Merry told the Town Selectmen that the assessed values in the Town

were not appropriate, but that they, the Tax Assessors, had a system in place whereby the

Tax Assessors could coerce entry into a home to assess the value of the property in that

Merry “was going around” with Paul Armstrong and “that if they don’t let us in, they

don’t get the building permit.” (AC 73).

4

Debra Mueller knew that the Plaintiffs’ kept chickens by June 2012, and

Armstrong knew of the chickens and that the Plaintiffs sold firewood from their property

since the Fall of 2012. (AC 76-77) The Plaintiffs earned $9,000 selling firewood prior to

February 28, 2013. Prior to January 2013, Mueller and Armstrong collectively only

mentioned to the Plaintiffs to decrease the size of their firewood signs. (AC 76-77). On

January 14, 2013, Thomas visited 27 Howlands Ln. and learned that the Plaintiffs kept

chickens on their property and had an accumulation of firewood taken from their

landscaping job sites which they sold from 27 Howlands Ln. (AC 78). On February 28,

2013, the Plaintiffs received a letter from Armstrong stating that the Plaintiffs could no

longer sell firewood from 27 Howlands Ln. (AC 79). Thomas told Armstrong to stop the

Plaintiffs from selling anymore firewood from 27 Howlands Ln. (AC 80).

Thomas has no ability to conduct Barn Inspections. (AC 80). In January 2014,

Debra Mueller called Daniel Harlow’s unlisted personal cell phone number and then sent

notices to the Plaintiffs regarding her sudden desire to conduct a Barn Inspection. (AC

79). Thomas told Mueller to conduct a Barn Inspection of the Plaintiffs’ chickens

because she was displeased that the Plaintiffs kept chickens on 27 Howlands Ln. and

wanted to harass the Plaintiffs in retaliation for their selling trees that she believed were

from 27 Howlands Ln. (AC 80). Mueller inspects the Plaintiffs’ livestock while not

inspecting the livestock of several other similarly situated owners of livestock like

Owen, Barrett, the Thompsons, and the Juliani’s. (AC 82-90). Mueller targets the

Plaintiffs in part because they are “affluent” property owners and forces the Plaintiffs to

pay for their own Barn Inspections. (AC 81-89). Mueller, Armstrong, and Thomas

5

conspired to harass, intimidate, and coerce the Plaintiffs from keeping chickens at their

property of 27 Howlands Ln. and selling firewood. (AC 90).

The Town’s counsel of Blatman, Bobrowski and Meade, LLC stated in Court

regarding the Plaintiffs that “It's very well known that they don't like the elected officials

in town and the elected officials in town don't like the Harlows. This has been—this just

goes on and on and on.” See Ex. 16, February 24, 2014 Court Proceeding. On

September 9, 2014, Courtland Harlow intended to cast his vote as a Republican during an

election, but was verbally harassed by the Town Clerk, Paul Gallagher who stated to

Harlow in front of other citizens: “I just want to let you know, he’s the trouble maker

from Howlands Lane.” (AC 91, 95). Courtland Harlow was visibly shaken, intimidated,

and emotionally distressed by Gallagher’s comments, voted for the wrong candidate as a

result, and felt that Gallagher targeted him for being a Harlow. (AC 95-96; AC 100-01).

Gallagher later told Courtland Harlow that he could resolve any dispute between them

“outside”, and prevented Harlow from interviewing witnesses. (AC 99, 101, 103).

On or about October 2, 2007, the Plaintiffs were renovating their property at 3

Peeble Ln. and Peter Cobb placed a bid to renovate the property. The Plaintiffs were

unaware that Peter Cobb was a member of the Sewer Commission while simultaneously

operating his company. (AC 104-105). Cobb was aware that the Plaintiffs had problems

with the Town and assured them that they would not experience any problems if they

used him as their contractor. (AC 105-106). The Plaintiffs selected another company

aside from Cobb due to the nature of Cobb’s statements. (AC 107).

In 2000, James Judge was the Tax Assessor who determined that each single

family home would be assessed 1 ERU. (AC 108). 3 Pebble Ln. was assessed as having

6

6 bedrooms and as having 1 ERU from 2000 through 2009. Id. The renovations to 3

Peeble Ln. reduced the amount of bedrooms from 6 to 5 with the Sewer Commission and

Armstrong approving the various necessary plumbing and building permits for the

project. (AC 108-109). The Plaintiffs finished renovating their property and were ready

to rent it in October 2009 when Armstrong and Judge appeared claiming that the property

was now a 7 bedroom and not a 5 bedroom property. (AC 113-115). Relying on Judge’s

and Armstrong’s representations, the Plaintiffs began advertising the property as a 7

bedroom property. (AC 113). The family was struggling financially to survive at the time

because Dr. Harlow, the family’s main source of income, was not working due to cancer

and the Sewer Commission was aware of this fact. (AC 116, 117).

The Sewer Commission sent the Plaintiffs a letter eight months after Judge’s visit

on July 7, 2010 requesting a meeting stating that 3 Pebble Ln. was a 7 bedroom property

due to an advertisement of the property by the Plaintiffs listing the home as 7 bedrooms.

(AC 117-121). The only other property in the Town that had over 3 bedrooms and was

assessed a Sewer Connection Fee was the Plaintiffs’ blood relative–John Harlow. (AC

118-119, 131). The Sewer Commission threatened to remove the Plaintiffs’ plumbing

fixtures at 3 Pebble Ln. unless the Plaintiffs paid $11,222.00 for a one-time Sewer

Connection Fee when they already paid for betterment for 3 Peeble Ln. (AC 120). Judge

met with Courtland and Daniel Harlow after April 2011 and assured the Plaintiffs that he

assigned 1 ERU for each single family home in Rocky Nook regardless of the amount of

bedrooms the property contained. (AC 122) Judge assured the Plaintiffs their fee was

appropriate and that all other ERU allotments for Rocky Nook were correct. (AC 122)

7

The Tax Assessors in 2011 were Judge, MacInnis, Shea, and Dunn. Merry was also

associated with the Office of Tax Assessors in 2011. (AC 122).

On or about February 15, 2014 the Town Police began investigating Judge as he

allegedly changed the assessed value on his own property. (AC 122-23). Merry wrote

the Plaintiffs on March 4, 2015 trying to gain access to one of their homes which the

Plaintiffs refused. (AC 123). The Plaintiffs found Merry’s request suspicious and then

requested information from the Tax Assessors concerning 3 Pebble Ln., 3 Blair Dr., and

24 Sunset Rd. from 2011 to 2014. (AC 125). Merry responded by only producing tax

assessor cards reflecting the assessed values for the years 2011 through 2014 and refused

to provide any other information. (AC 125).

On or about January 8, 2015, Daniel Harlow reviewed the Sewer Commission file

concerning 3 Pebble Ln. and discovered an Interoffice Memorandum from the Sewer

Commission to the Tax Assessors dated April 27, 2011 regarding the Sewer Connection

Fee (AC 126-27). On or about, January 9, 2015, Daniel Harlow reviewed the tax

assessor card for 3 Pebble Ln. for the year 2015. (AC 128) On September 5, 2014, the

tax assessor card reflected that the property at 3 Pebble Ln. was a 7 bedroom home but

was changed as of January 9, 2015 to reflect that the property is a 5 bedroom home. Id.

At some point on or before January 9, 2015, but on or after September 5, 2014, the Tax

Assessors changed the amount of bedrooms at 3 Pebble Ln. from 7 bedrooms to 5

bedrooms. Id. The Tax Assessors between 2014 and 2015 are Judge, Furio, and

MacInnis. Merry was associated with the Office of the Tax Assessor, as the Assistant

Assessor, between 2014 and 2015. Id.; Ex. 23.

8

On or about May 28, 2014 the tax assessor card for 20 Wharf Ln. listed the

property as having 1 Full Bathroom and 1 Half Bathroom. (AC 134). On July 11, 2014,

the Plaintiffs purchased 20 Wharf Ln. in Kingston, MA. (AC 135) Jack Conway

advertised 20 Wharf Ln. as having 2 Full Bathrooms before the Harlows purchased the

property. Id. On or about August 14, 2014, the Tax Assessors changed the tax assessor

card for 20 Wharf Ln. to indicate that the property had 2 Full Bathrooms without any

justification whatsoever to increase the Plaintiffs’ taxes. (AC 135). A number of

similarly situated properties in the Town have been advertised and sold by Jack Conway

since 2013 such as 2 Braintree Ave., 6 Braintree Ave., 47 Howlands Ln., 98 Crimson

Harvest Dr., 12 Winslow Dr., 66 Parting Ways Rd., and 48 Tall Timbers Ln. (AC 136-

143). The Tax Assessors on their own initiative decreased the amount of rooms that were

reflected in Conway’s advertisement for these properties thereby decreasing the amount

of taxes payable by the property owners to the Town. Id.

On August 13, 2014, Daniel Harlow applied for a routine building permit to

remodel an already existing dormer at 20 Wharf Ln. (AC 144) Armstrong was aware

that the Plaintiffs intended to rent 20 Wharf Ln. for income. Id. The Tax Assessors sent

the Plaintiffs letters on September 4, 2014 and September 21, 2014 seeking access to 20

Wharf Ln. (AC 145); Ex. 24. On September 29, 2014, Daniel Harlow applied for a

plumbing permit to perform work to the upstairs bathroom of 20 Wharf Ln. (AC145-

150). Armstrong was aware that the permit was approved. Id. Armstrong told Daniel

Harlow on December 11, 2014 that he would not approve a second permit because the

Tax Assessors indicated to him that 20 Wharf Ln. contained 1 Full Bathroom and 1 Half

Bathroom and not 2 Full Bathrooms and that the first plumbing permit was revoked for

9

the same reason. (AC 152). At the point in time that Armstrong made his statements to

Daniel Harlow, Armstrong knew that the Tax Assessors had already changed the amount

of bathrooms at 20 Wharf Ln. from 1 Full Bathroom and 1 Half Bathroom to 2 Full

Bathrooms and that the Harlows had refused to respond to the Tax Assessors’ inquiries or

to allow the Tax Assessors access to their property. (AC 152-154).

Armstrong intentionally delayed the 20 Wharf Ln. Dormer Project by: (1)

drawing sketches and then saying that his own sketches were inadequate (AC 159); (2)

stating that the Sewer Commission required access to the property under outdated Sewer

Moratoriums (AC 162); (3) stating that there were safety concerns (AC 166); (4) delaying

responding to the Plaintiffs’ inquiries (AC 170-171); (5) demanding new drawings

inconsistent with the way Armstrong reviewed similar applications in the past (AC 174-

75); (6) refusing to visit the property; (7) telling the Plaintiffs that “it would seem that we

could be all done pretty easy if you gave me the first floor plan.” (AC 177). Armstrong

told the Plaintiffs plumber that they were a “special circumstance” to be treated

differently in the Town. Armstrong only approved the permits after the BBRS told him

he was derelict in his duties giving him 5 days to inspect 20 Wharf Ln. (AC 180). The

malicious delays caused the Plaintiffs to lose approximately $4,700 per week in rental

income, cost in insurance policies, time, labor, and other cost, such as taxes and legal

fees. (AC 155-156, 181).

II. ARGUMENT

A. Standards

The Plaintiffs incorporate the legal standards from their Opposition into this

Memorandum of Law.

10

B. The Plaintiffs State a Plausible Cause of Action Against the

Individual Sewer Commission and Tax Assessor Defendants and

Provide Fair Notice that the Defendants Conspired to Violate the

Plaintiffs’ Constitutional Rights. 2

The reasonable (and logical) inference drawn from the Amended Complaint is

that there was only one Sewer Commission and one Board of Tax Assessors in the Town

at any point in during the relevant time periods on which Fiore, Walsh, Taylor, Cobb,

Judge, Dunn, Shea, and Furio served as members of their respective boards. The

Amended Complaint provides that Fiore, Walsh, Cobb, Judge, Dunn, Shea, Furio, and

Taylor are sued in their individual and official capacities and provide detail as to the

precise year when certain individuals ceased affiliation with a commission. These

individuals are defendants because they comprised the identifiable group known in the

Town known as the “Sewer Commission” or “Tax Assessors” at the various, relevant

times that the Plaintiffs were harmed. See Brockton Power LLC v. City of Brockton, 948

F. Supp. 2d 48, 72 (D. Mass. 2013) (Federal precedent does not prevent plaintiffs from

referring to subgroups of defendants in a complaint such as “the City Councilors” or “the

City Council” so long as the plaintiffs also have provided enough specificity to give the

defendants “fair notice of what the claims are and the grounds upon which they rest.”);

citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955)). The Defendants argue lack of

specificity regarding notice of facts under Twombly to avoid addressing the numerous

facts demonstrating their violations of clearly established law. All notice pleading

2 The Defendants belie their own argument because they identify all conspiracies at issue related to the

Sewer Connection Fee, claim that the Plaintiffs cannot pursue them for damages related to the Sewer

Connection Fee and taxes under the theory of exhaustion of administrative remedies, claim that the statutes

of limitations has run on the fraud claim, and claim that the Plaintiffs do not have an Equal Protection

Claim under 42 U.S.C. § 1983 concerning the Sewer Connection Fee. Def. Brief p. 13, 18.

11

requirements for bringing their civil rights action are satisfied. Educadores

Puertorriquenos en Accion v. Hernandez, 367 F.3d 61, 67 (1st Cir. 2004).

1. The Amended Complaint sets Forth facts Showing that the

Defendants Violated the Plaintiffs Equal Protection Rights under 42

U.S.C. § 1983. The Amended Complaint alleges that Sewer Commission and the Tax Assessors

conspired to violate the Plaintiffs Equal Protection Rights in violation of the Constitution.

Olech. Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 1074-75, 145

L. Ed. 2d 1060 (2000). Citizens have a federally recognized protected property interest

in the enjoyment of their properties under the Equal Protection Clause of the United

States Constitution. See Shelley v. Kraemer, 334 U.S. 1, 10, 68 S. Ct. 836, 841, 92 L. Ed.

1161 (1948) (“Equality in the enjoyment of property rights was regarded by the framers

of that Amendment as an essential pre-condition to the realization of other basic civil

rights and liberties”); see also Collier v. Town of Harvard, No. CIV.A.95-11652-DPW,

1997 WL 33781338, at *5 (D. Mass. Mar. 28, 1997) (truly horrendous behavior;

extortion by Town officials part of 14th

Amendment violation); see also a SBT Holdings,

LLC v. Town Of Westminster, 547 F.3d 28, 34 (1st Cir. 2008). A plaintiff can allege a 14th

Amendment violation by alleging facts that shock the conscious or by identifying a life,

liberty or property interest being deprived by the defendants. Id.

a. The Conspiracy Between the Sewer Commission, the Tax Assessors, and

Armstrong Regarding the Sewer Connection Fee.

The Tax Assessors, Judge (an assessor himself), Armstrong, and the Sewer

Commission members all conspired to deprive the Plaintiffs of the enjoyment of their

property. First, the Sewer Commission in 2009 approved the Plaintiffs’ project at 3

Peeble Ln. telling the Plaintiffs that 3 Pebble Ln. was a 5 bedroom property for the

12

purposes of Title V. In 2010, Tax Assessor Judge and Building Inspector Paul

Armstrong then collaborated to rate the property as a 7 bedroom home under Title V for

ERU purposes. The Sewer Commission in turn conspired with Armstrong and Judge by

rating the property as a 7 bedroom property for ERU purposes requiring the Plaintiffs to

pay for 1 additional ERU of sewer capacity when the Plaintiffs were similarly situated to

at least 2 other property owners (Pamela Slot and the Fiores) who were not forced to pay

for a Sewer Connection Fee. Aside for John Harlow, no other property in Rocky Nook

at any point in time (phase 1 or otherwise) had been assessed a Sewer Connection Fee.

Judge, as a representative of the Tax Assessors in 2011, met with the Plaintiffs

and further conspired with the Sewer Commission to conceal the arbitrary and

discriminatory treatment of the Plaintiffs by representing to the Plaintiffs that he met with

the Sewer Commission, had reviewed all ERU allotments in the Town, and assured the

Plaintiffs that the Sewer Connection Fee was appropriate. In 2015, the Tax Assessors

conspired with the Sewer Commission to conceal their conspiracy regarding the Sewer

Connection Fee by changing the amount of bedrooms on the assessor card for 3 Pebble

Ln. from 7 bedrooms to 5 bedrooms property and not the 7 bedroom home for which the

Plaintiffs were forced to pay $11,220.00 under duress trough threats of dismantling

plumbing fixtures and placing liens on their home. Allegations of extortion while not

demanding payment from similarly-situated non-Harlow home owners is precisely the

type of behavior prohibited by the Collier, Olech, Brockton Power Plant, LLC and SBT

Holdings decisions–all of which the Defendants deliberately fail to analyze.

b. Conspiracy Under 1983 by the Town, Basler and Thomas regarding 27

Howlands Ln. and 3 Blair Dr.

13

Per the Amended Complaint: “[t]he tool used by the conspirators is a swale

created at the corner of 3 Blair Dr. and 35 Howlands Ln. Thomas does not have the

ability to insert a swale at 3 Blair Dr.; however, Basler does have the ability,

equipment, and resources to insert a swale as an employee of the Town of Kingston

Department of Public Works. Thomas prepared a written memorandum detailing that

sandbags and a swale should be used to flood and entrap water on the Plaintiffs’

properties, and Basler carried out the conspiracy by inserting the swale and sandbags, by

maintaining the swale, and by maintaining the swale despite the Plaintiffs’ protest. The

result of the conspiracy is that the Town, Basler, and Thomas have schemed to take a

portion of the Plaintiffs’ property and to deprive them of the enjoyment of their property

in violation of the Equal Protection Clause of the Federal Constitution. The pleading also

provides that the Town, Basler, and Thomas do not create swales to create floods on at

least 3 other similarly situated properties in the Town. See Collier, supra, No. CIV.A.95-

11652-DPW, 1997 WL 33781338, at *5; see also SBT Holdings, supra, 547 F.3d 28, 34.

The conspirators’ actions are taken with malice because even after they warned of the

safety hazards created by the swale they continued to maintain the swale resulting in a car

accident. To further the discriminatory treatment, the conspirators allow the Plaintiffs’

neighbor David Fitzgerald to discharge water on the street while not creating a swale on

his property. See Olech, supra, 528 U.S. 562, 564.

c. Conspiracy by Thomas, Mueller, and Armstrong regarding the Barn

Inspections and to halt the Plaintiffs’ profitable firewood business.

The Amended Complaint sets forth sufficient facts regarding the conspiracy

between Armstrong, Mueller, and Thomas to violate the Plaintiffs’ Constitutional rights.

Neither Mueller nor Armstrong had any problems with the Plaintiffs’ properties before

14

Thomas’ involvement. Thomas conducted an inspection of 3 Blair Dr. and 27 Howlands

Ln., was upset with the Plaintiffs, and then communicated to both Mueller and Armstrong

to harass the Plaintiffs using their offices. In response, Mueller began discriminatorily

and arbitrarily conducting barn inspections of the Plaintiffs’ livestock while not

conducting barn inspections for at least 5 other similarly situated citizens. She also

forced the Plaintiffs to pay for their own Barn Inspections. Last, Armstrong responded to

Thomas’ overtures by ordering the Plaintiffs to stop selling firewood from their

properties costing the Plaintiffs to forego a profitable means of income while allowing

other similarly situated Town citizens to engage in the same conduct (i.e., selling

firewood from their residential premises). See, again, Collier, supra, No. CIV.A.95-

11652-DPW, 1997 WL 33781338, at *5; see also SBT Holdings, supra, 547 F.3d 28, 34;

Olech, supra, 528 U.S. 562, 564.

d. Conspiracy by Armstrong and the Tax Assessors to Delay the Approval of

Building Permits Concerning 20 Wharf Ln. and to Increase the Assessed

Value of the Plaintiffs’ 20 Wharf Ln. property.

The Amended Complaint sets forth facts demonstrating a conspiracy between

Armstrong and the Tax Assessors, through Merry and McKinnis, to delay the issuance of

the permits for 20 Wharf Ln. to attack the Plaintiffs’ property interests. The Plaintiffs

purchased 20 Wharf Ln. and the Tax Assessors, through Merry, immediately began

sending materials to the Plaintiffs seeking access to the property. Without any

information whatsoever, the Tax Assessors immediately arbitrarily and discriminatorily

increased the amount of bathrooms for the property unlike what the Town did for

similarly situated properties advertised for sale by Jack Conway. Armstrong then

intentionally delayed granting necessary building and plumbing permits to prevent the

15

Plaintiffs from renting the property in furtherance of the scheme mentioned by Tax

Assessors McInnis and Merry at the Selectmen meeting. Armstrong knew that the

Plaintiffs sought to rent 20 Wharf Ln. to generate income to sustain their livelihood

reminiscent of the conspiracy regarding 3 Pebble Ln. Armstrong admitted his

discriminatory animus towards the Plaintiffs’ to their plumber Steve Medeiros telling him

that he was treating the Plaintiffs discriminatorily with his approval and revocation of

permits as they were a “special circumstance” in the Town. See, e.g., Brockton Power

LLC, supra, 948 F. Supp. 2d 48, 64 (allegations that defendants collectively tried to

financially coerce the plaintiffs as part of “class of one” sufficient to withstand 12(b)(6)

motion). Armstrong and the Assessors actions regarding 20 Wharf Ln. were entirely

consistent with Town counsel’s in-Court representations that the Kingston officials

possess ill-will towards the Plaintiffs in that they “do not like the Harlows.”

On a related point, regarding 20 Wharf Ln. the Tax Assessors conspired with

Armstrong to arbitrarily and discriminatorily increase the assessed value and, in turn, the

amount of taxes annually that the Plaintiffs pay. And the taxation of the Plaintiffs’

properties is well-over the negative average for the properties on Map 59 in the Town.

See Collier, supra, No. CIV.A.95-11652-DPW, 1997 WL 33781338, at *5; see also SBT

Holdings, supra, 547 F.3d 28, 34. The collective actions of the same individuals worked

to deprive the Plaintiffs of the right to be free from government coercion and abuse. See,

again, Collier, supra, No. CIV.A.95-11652-DPW, 1997 WL 33781338, at *5; see also

SBT Holdings, supra, 547 F.3d 28, 34; Olech, supra, 528 U.S. 562, 564.

2. The Defendants’ Exhaustion Argument is Inapplicable, the 3 Year

Statute of Limitations Has Not Run on the Fraud Claim or Any of the

42 U.S.C. § 1983 Claims, and the Defendants Lack Qualified

Immunity.

16

The statute of limitations has not run on the fraud claim related to the Sewer

Connection Fee for a multitude of reasons. First, the Defendants’ affirmative defense

that the Sewer Connection Fee was subject to exhaustion requirements under M.G.L. c.

80 § 5 is inapplicable. Chapter 80 applies to betterments and sewer usage fees;

however, the Sewer Commission extorted the $11,220.00 payment in the form of a one-

time permanent payment for sewer privileges which is non-appealable under the statutes

cited by the Defendants. See M.G.L. c. 80, § 17; cf. Tomaselli v. Beaulieu, 967 F. Supp.

2d 423, 435 (D. Mass. 2013) (discussing unpaid sewer usage fees under Chapter 83, §

16E and Chapter 59, § 59); contra Exeter Realty Corp. v. Bedford, 356 Mass. 399, 404

(Mass. 1969) (discussing sewer assessment where betterment was previously paid).

Second, statutes of limitations are triggered when a reasonable person knew or should

have known of that they had a cause of action–not on hunches. See McIntyre v. United

States, 367 F.3d 38 (1st Cir. May 10, 2004).3 Third, the limitations under the 42 U.S.C. §

1983 and fraud claim are tolled under the doctrines of fraudulent concealment and

equitable estoppel. See Fitzgerald v. Seamans, 553 F.2d 220, 228 (D.C. Cir. 1977)

(conspiracy carried-out in secrecy and that used fraud to deceive plaintiff tolled statute of

limitations); see also Briley v. State of Cal., 564 F.2d 849, 854 (9th Cir. 1977).

Significantly, Judge told Daniel and Courtland Harlow that both he and Sewer

Commission verified that the fee was appropriate. See Briley v. State of Cal., 564 F.2d

849, 854 (9th Cir. 1977). The Plaintiffs remained diligent in 2014 discovering the

scheme by making inquiry through several FOIA request to obtain information related to

3 Notably, not one of the cases cited by any defendants concerning statute of limitation issues under 1983

or fraud concern a situation where a plaintiff is reassured by the tortfeasor(s) that there is nothing amiss and

the co-conspirators later refuse to produce the evidence of their knowledge of the scheme. Defendants

point to no facts showing the Plaintiffs “objected.”

17

their properties and the Tax Assessors refused to supply such information to the Plaintiffs

further engaging in malfeasance to conceal the fraud. See Mowbray v. Waste Mgmt.

Holdings, Inc., 90 F. Supp. 2d 135, 140 (D. Mass. 2000) (fraudulent concealment found

where defendant took affirmative acts of trying to conceal their actions); see also Fogle v.

Wilmington Fin., 2011 DNH 18 (D.N.H. 2011) citing Salois v. Dime Sav. Bank, FSB, 128

F.3d 20, 25 (1st Cir. 1997); see also Manufacturers' Nat. Bank v. Perry, 144 Mass. 313,

313, 11 N.E. 81, 82 (1887).

Six, all acts complained of are brought as part of a serial scheme; therefore, they

are actionable in 2015. Cf. Muniz-Cabrero v. Ruiz, 23 F.3d 607, 610 (1st Cir. 1994). The

shared discriminatory animus that the Defendants (e.g., the “Town officials”) have is that

they dislike the Plaintiffs as Harlows. Within the last three years, the Defendants have

discriminatorily schemed against the Plaintiffs’ property rights incessantly by: delaying

building permits while admitting that such delays were performed for discriminatory

reasons; creating trespassing swales that flood the Plaintiffs’ properties with dangerous

ice and other hazards; taxed the Plaintiffs at higher values than other similarly situated

land owners in the Town; inspected the Plaintiffs’ livestock at higher rates in comparison

to other similarly situated neighbors of the Plaintiffs; shut-down the Plaintiffs’ home

firewood business while allowing similarly situated neighbors to conduct home firewood

businesses; conspired to cover-up the fraud committed by the Sewer Commission and the

Tax Assessors in 2011 concerning 3 Peeble Ln.; verbally attacked and threatened when

voting; and through their agents, admitted in public that Town officials have

discriminatory animus towards the Plaintiffs in that they “do not like the Harlows”. The

only facts occurring greater than three years ago are those related to taxation of the

18

Plaintiffs’ properties in 2011 and the acts relative to the initiation of the fraud regarding

the Sewer Connection Fee. All acts occurring prior to the last three years are also

powerful background evidence that the Plaintiffs are permitted to use to prove

discriminatory treatment. See O'Rourke v. City of Providence, 235 F.3d 713, 726 (1st Cir.

2001). Last, the Defendants lack qualified immunity for utilizing their offices to abuse

the Plaintiffs for any of the conduct complained of in this case. North American Cold

Storage Co. v. County of Cook, 468 F. Supp. 424 (N.D. Ill. 1979) (1983 tax action

concerning abuse of municipal officials); Olech, supra, 528 U.S. 562, 564 (Equal

protection: right to be free from irrational, discriminatory government abuses); SBT

Holdings, supra, 547 F.3d 28, 34.

4. The Federal Taking Action is Not Barred by the Plaintiffs Not First

Initiating a State Taking Action Against the Town.

The Defendants conflate the doctrines of ripeness and subject matter jurisdiction.

The Defendants removed the matter to federal court. This Court has subject matter

jurisdiction over the Plaintiffs’ federal taking claim regardless of whether the Plaintiffs

did not first initiate an action under M.G.L. c. 79. Section 79 state takings claims can be

brought simultaneously with federal takings to avoid piecemeal litigation of the takings

claims. See In San Remo Hotel, L.P. v. City & Cnty. of San Francisco, Cal., 545 U.S.

323, 346, 125 S. Ct. 2491, 162 L. Ed. 2d 315 (2005); see also Martini v. City of Pittsfield,

2015 U.S. Dist. LEXIS 42190 (D. Mass. Mar. 31, 2015). Dismissal of the federal takings

claim is not warranted because the Plaintiffs can simply amend their pleading under the

liberal standards of Fed. R. Civ. P. 15 to simultaneously pursue both state and federal

takings remedies against the Defendants relative to the procedural due process issues

raised by the Defendants. The Defendants are not prejudiced by the proposed

19

amendment given the early stages of litigation and truism that state law claims such as

trespass and nuisance are properly brought against the Town.

II. The Plaintiffs Sufficiently Plead a Cause of Action for Economic

Coercion under MCRA.

Massachusetts recognizes that individuals can be held accountable for

economically coercing another citizen. Thyng v. City of Quincy, 2014 Mass. Super.

LEXIS 86 (Mass. Super. Ct. 2014). The Amended Complaint alleges facts showing that

the Defendants collectively conspired by using their offices in an abusive manner to

deprive the Plaintiffs of their ability to enjoy their properties by revoking and delaying

permits for a property that the Defendants know the Plaintiffs need to rent as a means for

their income, creating swales, flooding their properties, creating nuisances, trespassing on

their properties, taking their properties, harassing them with Barn Inspections and forcing

the Plaintiffs to pay for Barn Inspections meant to stop the Plaintiffs from exercising their

Right to Farm, attacking at voting stations, manufacturing audits to cover-up

conspiracies, voting, and association rights, manipulating public records, all for irrational

and arbitrary reasons. Batchelder v. Allied Stores Corp., 393 Mass. 819, 823 (Mass.

1985). The Amended Complaint alleges facts that Defendants threatened, intimidated,

and economically coerced the Plaintiffs over periods of years to relinquish their rights

through various forms of extortion. Bell v. Mazza, 394 Mass. 176, 184 (Mass. 1985)

(motion to dismiss denied; joint venture conspiracy to deprive the plaintiffs of property

rights was actionable conduct under MCRA); Kennie v. Natural Res. Dep't, 451 Mass.

754, 760 (Mass. 2008); see also Simonelli v. LaFramboise, 2009 Mass. Super. LEXIS

309, *9 (Mass. Super. Ct. 2009) (Defendants could not prove that allegations regarding

“enjoyment” of property interest were not actionable under MCRA as a matter of law).

20

III. Plaintiffs’ Claims against Gallagher for Violating Courtland

Harlows’ Freedom of Association Rights are Sound.

The right to vote and associate freely with a political party is clearly established.

“Voter intimidation severely burdens the right to vote, and prevention of such

intimidation is a compelling state interest.” Burson v. Freeman, 504 U.S. 191, 206, 119

L. Ed. 2d 5, 112 S. Ct. 1846 (1992); Welch v. Ciampa, 542 F.3d 927, 939 (1st Cir. Mass.

2008). Gallagher’s actions interfered with Courtland Harlows’ right to vote. Reynolds v.

Sims, 377 U.S. 533, 555 (U.S. 1964).

IV. The Plaintiffs’ Intentional Infliction of Emotional Distress Claim is

Plausible-the Plaintiff Allege More than Verbal Harassment and

Insults.

The cases cited by the Defendants are inapposite. This case does not concern

protections that a defendant could have for filing a false police report under

Massachusetts’ anti-SLAPP statute. Neither does Polay or the other cases the defense

cite concern the persistent targeting of a party by multiple individuals vis-à-vis the use of

their offices to persecute one family. The Amended Complaint alleges facts which are

outrageous and extreme beyond all bounds of decency concerning deviant government

actors. See, e.g, Simon v. Solomon, 385 Mass. 91, 93 (Mass. 1982) (persistent floods

caused by the defendant); Vittands v. Sudduth, 49 Mass. App. Ct. 401, 411 (Mass. App.

Ct. 2000) (years of contention between parties, trespassing, and threats of taking property

(in the Harlows’ case, an actual taking) were facts from which reasonable jurors could

conclude that “extreme and outrageous” conduct occurred).

V. CONCLUSION

Deny the Defendants’ Motion in all respects.

21

CERTIFICATE OF SERVICE

I hereby certify that on this day a true copy

of the within document was served upon all defense

counsel attorney of record for each party on

August 20, 2015 via ECF.

PLAINTIFF,

HARLOWS,

By their Attorney,

___s/ John J. Hightower_______________

John J. Hightower, Esq. (661679)

90 Pleasant St., #12

Randolph, MA 02368

[email protected]

Documents

Harlow Phase I- Olech litgation in Federal Court