Municipal – Eminent domain – Equal protection

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Where a plaintiff challenging the defendant city’s taking of land by eminent domain has filed a motion to amend his complaint, the motion should be dismissed because it would be futile to add equal protection and due process claims.

“The City of Cambridge took by eminent domain property owned by the Equity Realty Trust. The property included residential apartments, parking for those units, and land that had been used for commercial parking. The order of taking states that the City plans to use the property to create affordable, senior, or transitional housing, or for other municipal uses.

“Said Abuzahra is trustee of this Trust. He filed this lawsuit to challenge the taking. Abuzahra claims that the City Council’s order of taking was unlawful; he seeks an order rescinding the taking plus compensation for damages suffered as a result. Abuzahra also contends that, if the taking is upheld, the fair market value of the property is far greater than what the City has offered to pay for it. Finally, he claims that the City must pay relocation benefits.

“Mr. Abuzahra seeks leave to amend his complaint to add three additional claims and a second plaintiff. The proposed new claims would assert that in taking this property the City violated the constitutional requirements of equal protection, substantive due process, and procedural due process. Abuzahra also seeks to add his son Sheriff Abuzahra as a plaintiff, both as successor trustee of the Trust and individually.

“The Court will deny the motion to amend the complaint because the proposed new claims and the addition of the new plaintiff would be futile. The equal protection claim fails because a discretionary decision to take particular property by eminent domain, and not to take other property instead or in addition, is not subject to an equal protection challenge. The substantive due process claim fails because the facts alleged in the proposed amended complaint do not plausibly suggest that the City did anything that ‘shocks the conscience.’ The procedural due process claim fails because Mr. Abuzahra had no constitutional right to notice or an opportunity to be heard before the City Council approved its order of taking, and thus the alleged violations of the Massachusetts Open Meeting Law would not also constitute a violation of due process. Finally, Sheriff Abuzahra has no standing to join this case as a plaintiff. …

“Given the inherently discretionary nature of the decision whether to take one parcel rather than another by eminent domain, the proposed class-of-one equal protection claim is barred by Engquist [v. Oregon Dept. of Agriculture, 553 U.S. 591, 601 (2008)]. …

“Abuzahra also seeks to add a claim that the City’s decision to take the Trust’s property, and earlier steps that prevented the Trust from redeveloping the property, violate the constitutional requirements of substantive due process because they were arbitrary and capricious and based on ‘extreme personal hostility’ toward Abuzahra and the Trust.

“This claim would be futile because the facts alleged do not plausibly suggest that the City’s alleged violations of the law ‘shock the conscience.’ …

“The denial or revocation of a license or permit needed to operate a business, carry out one’s profession, or develop and use one’s property does not satisfy the shock-the-conscience test even if done arbitrarily and based on personal animus. …

“These rules bar Mr. Abuzahra’s proposed claim for substantive due process. The allegations that the City acted arbitrarily and with personal animus in barring redevelopment of the Trust’s property and in taking that property by eminent domain, if true, do not plausibly suggest that the City did anything so egregious that it shocks the conscience and violates the requirements of substantive due process. …

“The amended complaint would also add a new claim alleging that the City violated the Open Meeting Law during the process leading up to the order of taking, and that as a result the taking of the Trust’s property violated the constitutional requirements of procedural due process. This claim would be futile because the Trust’s opportunity to challenge the taking after the fact is constitutionally sufficient. …

“Thus, even if the City violated the Open Meeting Law, the challenged taking did not violate due process because the Trust is able to challenge the lawfulness of that action and the amount of proffered compensation in this post-deprivation proceeding.”

Abuzahra v. City of Cambridge (Lawyers Weekly No. 12-060-20) (7 pages) (Salinger, J.) (Middlesex Superior Court) (Docket No. 1781CV02459-J) (Dec. 18, 2020).

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