SWANSET DEVELOPMENT CORP. & others [Note 1] vs. CITY OF TAUNTON & others. [Note 2]

GREANEY, J. The plaintiffs' action in the Superior Court alleges that the city of Taunton (Taunton), and the other defendants, in their capacity as public officials and individually, violated the Massachusetts Civil Rights Act, G. L. c. 12, s. 11I (1994 ea.) (Act), and intentionally interfered with the plaintiffs' contractual and business relations in connection with the plaintiffs' efforts to develop property in Taunton. The plaintiffs sought an injunction, damages of "not less than $15,000,000," and attorney's fees. A judge in the Superior Court allowed the defendants' motions for summary judgment. Mass. R. Civ. P. 56 (b), 365 Mass. 824 (1974). We transferred the case to this court principally to consider whether a municipality should be considered a "person" for purposes of liability under the Act. We choose not to decide that question in this case because it has not been adequately briefed and because it is obvious that summary judgment was properly granted for all defendants on the claims under the Act for other reasons given by the judge. Summary judgment for the defendants also was proper on the plaintiffs' intentional tort claims. Accordingly, we affirm the judgment for the defendants.

For the purpose of considering the defendants' motions for summary judgment, the following facts may be accepted as undisputed. [Note 3] Leonard R. Sousa, a real estate developer, acting on behalf of the named plaintiffs, Swanset Development Corp. and Consolidated Industries, Inc., as their president and treasurer, and Milford Realty Trust, as its trustee, undertook in 1988 to develop a "commercial/retail plaza" on property at

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304-308 Winthrop Street in Taunton. [Note 4] Based on copies of the Taunton zoning ordinance that he had read, Sousa concluded that a restaurant constituted a permitted use in the zone where the property was located.

Before development could begin, Sousa needed site plan approval and a special permit. To obtain preliminary approval of his plans before seeking approval from the planning board of Taunton (board) and municipal council (council), Sousa, in the fall of 1988, consulted with the defendant Dorr S. Fox, the senior planner for Taunton. In a series of meetings, between September and December, 1988, Fox criticized and rejected a series of revised plans, telling Sousa at one point "[t]hat most developers in the City of Taunton that get approvals use Ted Aleixo." At the time, Theodore Aleixo, Jr., was a local attorney and the State senator representing Taunton. Sousa consulted with Aleixo, but decided not to retain him at that point because he thought that Aleixo's fee (a flat contract fee of $25,000 plus expenses) was excessive. Sousa's plans were eventually approved by Fox, but were rejected by the board. After this rejection, Sousa retained and paid Aleixo who promptly obtained board approval for the plans. Thereafter, on April 5, 1989, the council voted to "approve the site plan and grant [a] special permit to Swanset Development Corporation to build and maintain a building for retail stores and office space, built and located as shown on the documentation filed with the Municipal Council." Although there is no reference to restaurants in the council's decision, Sousa asserts that he had made council members aware of the fact that he intended to include restaurants in the project.

In August, 1989, Sousa entered into a handshake agreement with a sandwich shop to become a tenant in the project. The sandwich shop was refused a building permit on the basis that a restaurant was not a permitted use in the zone, and Sousa was told that the copies of the Taunton zoning ordinance he had reviewed were in error on the point. [Note 5] Sousa was further advised that a special permit was needed from the council for restaurant use.

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Sousa again consulted with Aleixo, who informed Sousa that "[b]etween the time you started and the time . . . you started building, they changed the law and we don't know if you're right in having the restaurants in there or if you're not." Aleixo stated that Sousa could "take [the building inspector] to court right now and say you're grandfathered in and you have a right to have the restaurants in there, or we can file [for] a special permit" for restaurants. Since a lawsuit would be expensive and time-consuming, Aleixo recommended that Sousa take the latter route. While Sousa was in the office, Aleixo made a telephone call to the mayor, the defendant Richard Johnson, who told Aleixo that there would be no problem in obtaining permission for restaurant use due to the extenuating circumstances. Sousa again retained Aleixo (paying an additional fee of $3,500) to seek the new approval. Sousa proceeded to negotiate and sign leases with three restaurants on October 2, 1989, December 12, 1989, and October, 20, 1990. [Note 6]

Thereafter an application was filed with the council seeking to amend the April 5, 1989, special permit to allow for restaurant use. [Note 7] The council heard the application and denied it on May 9, 1990. The denial was supported by the reasons set forth in the margin. [Note 8] As a result of the denial, Sousa's agreements with the sandwich shop and with the restaurants

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were canceled. On May 25, 1990, Sousa filed an action in the Land Court challenging the council's denial. [Note 9]

In early June, 1990, Five Guys from Boston, Inc., one of Sousa's tenants, filed an application with the council for a special permit to operate a pool hall in Sousa's project. The council initially declined to hear the application because of the pending Land Court litigation. Sousa obtained a court order requiring the council to hold a hearing on the application. After a hearing, the council denied the application because the pool hall would unreasonably increase traffic in the area and would require additional police presence. [Note 10]

Sousa refers to other occurrences in support of his claims, as follows. (1) In December, 1988, Sousa, feeling frustrated by the delay in his project, went to see the mayor, Richard Johnson, without having scheduled an appointment. The mayor was not available, but Sousa explained the difficulties he was having in obtaining necessary approvals to the defendant Barbara Laughlin, the mayor's administrative assistant. Laughlin told Sousa that he would not be having problems with his plan if he had "hired the right people." She did not specify who the "right people" were, but Sousa inferred that she was referring to Aleixo. (2) While his application for the original special permit was pending before the council, James Hathaway, an abutter to Sousa's land, claimed a right of way over his land and Sousa's property and offered to sell his land to Sousa for $450,000. Sousa claims that no right of way existed and that the defendant, Gail F. Tardo, a council member, acted in concert with Hathaway in delaying the special permit for Sousa's project in order to support Hatha-

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way's demands. Hathaway had presented evidence to the council, through his attorney, that a right of way existed, a point that was contested, before the council, by Sousa's attorney. Tardo eventually voted to grant Sousa the special permit needed for the project. (3) After the council had granted the original special permit, and before Sousa was advised to seek an amendment permitting restaurant use, the defendant Robert W. Studley, a council member, asked Sousa to consider hiring him to plow snow on the property. Sousa told Studley that he would make contact with him to discuss the matter when winter approached. Sousa did not renew this discussion with Studley, because, when it became apparent that it was necessary to file an application to amend the special permit, Sousa decided it would be improper to have a council member on his payroll. Studley was the council member who most adamantly opposed hearing the application for the permit for the pool hall because of the pending Land Court action.

The plaintiffs' complaint alleges in substance that the defendants violated the Act by conduct, individually and in concert with others, which deprived them of the right to use and develop their property in an appropriate and beneficial manner, and particularly, the right to include restaurants and a pool hall as tenants. The plaintiffs also assert that the defendants' conduct tortiously interfered with their restaurant agreements and their arrangements with the pool hall. We have examined the plaintiffs' assertions under the test governing summary judgment, see Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991), with attention to the materials in the summary judgment record which indicate the existence of admissible evidence. See J.W. Smith & H.B. Zobel, Rules Practice s. 56.7, at 355-359 (1977 & Supp. 1996). Summary judgment was properly granted on all of the claims for the reasons we now set forth.

1. Civil rights claim. To establish a claim under the Act, the plaintiffs must prove that (1) their exercise or enjoyment of rights secured by the Constitution or laws of either the United States or of the Commonwealth, (2) have been interfered with, or attempted to be interfered with, and (3) that the interference or attempted interference was by "threats, intimidation or coercion." G. L. c. 12, s. 11I. See Freeman v. Planning Bd. of W. Boylston, 419 Mass. 548, 564,

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cert. denied, 116 S. Ct. 337 (1995); Bally v. Northeastern Univ., 403 Mass. 713, 717 (1989); Murphy v. Duxbury, 40 Mass. App. Ct. 513, 518 (1996).

Even if we assume that the Act applies to municipalities and that the plaintiffs have made an adequate showing as to all defendants on the first two points, see Murphy v. Duxbury, supra, it is clear that the plaintiffs have not presented any indication by admissible evidence showing that their rights were impaired by "coercion." (The plaintiffs do not maintain that conduct that could be construed as "threats" or "intimidation" has occurred.) We have recognized that an owner of real property has a constitutional right to use and improve that property, subject, of course, to limitations on development lawfully imposed by State law or by municipal regulation. See Bell v. Mazza, 394 Mass. 176, 178 (1985). We have referred to "'coercion' as 'the use of physical or moral force to compel [another] to act or assent.'" Freeman v. Planning Bd. of W. Boylston, supra at 565, quoting Webster's New Third Int'l Dictionary 439 (1981). [Note 11] We have indicated that "a direct deprivation of rights, even if unlawful, is not coercive because it is not an attempt to force someone to do something the person is not lawfully required to do." Id. at 565. See Pheasant Ridge Assocs. Ltd. Partnership v. Burlington, 399 Mass. 771, 781 & n.11 (1987). While the plaintiffs allege that the defendants acted in concert to delay and impede the development of their property, they do not allege that any defendant sought to persuade them to alter or to amend their plans to conform with conditions which the defendants sought to impose illegally on the plaintiffs. Contrast Freeman v. Planning Bd. of W. Boylston, supra at 565 (recognizing possible coercive effect of planning board's attempt to impose its will on the plaintiff by requiring design changes not mandated by local ordinance). To the extent that the plaintiffs allege that various delays were a deliberate attempt to frustrate their development plans, they have alleged a direct deprivation of rights rather than an attempt at coercion. See Pheasant Ridge Assocs. Ltd. Partnership v. Burlington, supra at 781.

Sousa points to the pressure on him to hire Aleixo as an al-

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legation of coercion sufficient to satisfy the statutory prerequisite of coercion. In point of fact, he alleges that this pressure came from Fox, who, however, approved Sousa's development plans before Aleixo was hired, and Laughlin, who had no involvement in reviewing the plaintiffs' development plans. By the time the defendant council members reviewed the plans, Sousa had hired Aleixo. The obstacles he alleges were placed in his path by individual council members were unconnected to his decision to hire Aleixo. Moreover, this allegation of pressure, or coercion, is only tenuously connected to the constitutional right which the plaintiffs allege was impaired. There is nothing else in the defendants' alleged conduct which creates a triable issue as to coercion, and the plaintiffs' claims under the Act fail for that reason alone.

2. Intentional torts. To establish intentional interference with contractual or business relations, the plaintiffs must show (1) the existence of a contract or a business relationship which contemplated economic benefit; (2) the defendants' knowledge of the contract or business relationship; (3) the defendants' intentional interference with the contract or business relationship for an improper purpose or by improper means; and (4) damages. See United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 812, 815-817 (1990). The basis for the plaintiffs' intentional tort claims is the defendants' alleged interference with signed lessees as well as other potential tenants and business clients.

The plaintiffs' tort claims against Taunton fail because under the Massachusetts Tort Claims Act, G. L. c. 258, s. 10 (c) (1994 ed.), municipalities are not liable for "any claim arising out of an intentional tort, including . . . interference with advantageous relations or interference with contractual relations."

The plaintiffs' intentional tort claims against Fox are predicated on his conduct between September and December, 1988, in rejecting the plans presented by Sousa. The tort claims against Laughlin are based on her allegedly hostile attitude when Sousa went to the mayor in December, 1988, to complain about his difficulties. These claims fail because no contractual or business relations existed in December, 1988, with which Fox and Laughlin could have interfered. There is also nothing in the record which shows that Johnson did anything which improperly interfered with a contract or a business relationship of the plaintiffs.

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The plaintiffs' intentional tort claims against the members of the council are predicated on their alleged wrongful refusal to grant a special permit for restaurant use and to hold a hearing on, and approve, the application for a special permit for the pool hall. The council members, acting individually would likely have immunity against the plaintiffs' claims because, in considering the permit applications, they were making discretionary decisions within the scope of their official duties. See Duarte v. Healy, 405 Mass. 43, 50-51 (1989). We need not dwell on the point, however, because the record is insufficient, under a summary judgment standard, to demonstrate that the council members tortiously interfered with the plaintiffs' business arrangements.

Judgment affirmed.