Plaintiff filed his unverified complaint on April 16, 2009, appealing, pursuant to the provisions of G. L. c. 240, § 14A, a determination of Defendant City of Pittsfield Building Inspector (the Building Inspector) that property owned by Plaintiff and located on Oliver Avenue in Pittsfield, Massachusetts (Locus) is not a buildable lot. The Building Inspector filed his Answer on May 11, 2009, together with a Motion to Dismiss pursuant to Mass. R. Civ. P. 12(b)(6), alleging that Plaintiffs complaint failed to confer subject matter jurisdiction upon this court and failed to state a claim upon which relief could be granted. On May 12, 2009, Plaintiff filed a Motion to add Richard Dohoney (Pittsfield City Solicitor) (City Solicitor) as a Defendant. A case management conference was held on May 14, 2009, at which time Plaintiff agreed to file a formal request with the Building Inspector as to the buildability of Locus. Plaintiff filed an Amended Complaint on September 4, 2009, claiming that the Building Inspector, the City Solicitor, and the members of the Pittsfield Zoning Board of Appeals (the ZBA) (together, Defendants) made a taking of Locus under the Fifth Amendment of the United States Constitution. [Note 1]
Plaintiff filed his Motion for Judgment on the Pleadings on September 9, 2009. A telephone status conference was held on October 13, 2009, at which time this court ordered Plaintiff to file a Second Amended Complaint to clarify his claims. Plaintiff filed his Second Amended Complaint on October 26, 2009, appealing, pursuant G. L. c. 40A, § 17, a decision of the ZBA to uphold the decision of the Building Inspector relative to the buildability of Locus. [Note 2] On November 2, 2009, Defendants filed their Opposition to Plaintiffs Motion for Judgment on the Pleadings and Cross-Motion for Summary Judgment, together with supporting memorandum and Statement of Undisputed Facts. Plaintiff filed his Opposition to Defendants Cross-Motion on November 23, 2009. A hearing was held on all motions on February 5, 2010, at which time both motions were taken under advisement. A decision of todays date has been issued.
In accordance with that decision it is:
ORDERED and ADJUDGED that Locus and property located at 92 Cummings Avenue, Pittsfield (the Cummings Avenue Property) are not merged in context of G. L. c. 40A, § 6.
ORDERED and ADJUDGED that Plaintiffs Motion for Judgment on the Pleadings is ALLOWED IN PART and Defendants Motion for Summary Judgment is DENIED. [Note 3]
By the court. (Sands, J.)
[Note 1] Plaintiff litigated this matter pro se.
[Note 2] Plaintiffs Second Amended Complaint also included a claim that the City Solicitor violated 18 U.S.C. § 242 (Deprivation of Rights Under Color of Law) as well as alleging that the Building Inspector and the ZBA acted with malice against Plaintiff.
[Note 3] I do not find in favor of Plaintiff with respect to his allegations against the City Solicitor under 18 U.S.C. § 242 (Deprivation of Rights Under Color of Law) or with respect to his allegations of malice on the part of the Building Inspector and the ZBA. This court lacks jurisdiction with respect to the former claim, which was filed under a federal criminal civil rights statute. With respect to Plaintiffs claims of malice, the record includes no supporting facts that would lead to a conclusion in Plaintiffs favor. Moreover, Plaintiff failed to make this argument in his Motion for Judgment on the Pleadings.