FBT Everett Realty, LLC v. Massachusetts Gaming Commission (Lawyers Weekly No. 09-042-17)

No. 2016-3481 BLS 1
This is a claim for damages by plaintiff, FBT Everett Realty, LLC (“FBT”), arising from
an alleged taking of property by the Massachusetts Gaming Commission (“Commission”). FBT’s
amended complaint asserts three counts: Count II (“Per Se Taking”), Count III (“Regulatory
Taking”), Count IV (“Impairment of a Contract Right”).1 All three counts claim that as a result of
conduct by the Commission, FBT is entitled to compensation under either the Massachusetts
Declaration of Rights or the United States Constitution, or both. The Commission moves to
dismiss pursuant to Mass. R. Civ. P. 12(b)(1) and 12(b)(6).
The amended complaint alleges the following facts, accepted for this motion as true.
FBT was the owner of a parcel of land (the “parcel”) in Everett, Massachusetts. On
December 19, 2012, FBT entered into an Option Agreement with Wynn MA, LLC concerning
the possible sale of the parcel to Wynn. Wynn anticipated applying for approval from the
1 Count I of the amended complaint has been dismissed, as described in the Background
section of this memorandum.
Commission to build and operate a casino gambling facility on the parcel.
Under the Option Agreement, Wynn agreed to pay FBT $ 100,000 per month for the right
to purchase the parcel for $ 75 million in the event that Wynn was awarded the Category 1
destination resort casino license. The Option Agreement granted to Wynn “the option, but not the
obligation, to purchase [the parcel]” from FBT. Amended Complaint, Ex A. In connection with
Wynn’s application to the Commission, FBT agreed to “reasonably cooperate with [Wynn] with
respect to any information it reasonably requires to complete the Casino Application and respond
to any such inquiries throughout the licensing process.” Id.
In November 2011, the Legislature enacted the Massachusetts Gaming Act, which is
codified at G.L. c. 23K. The Act establishes the Commission as the agency to implement and
regulate casino gambling. The Act, and the regulations promulgated thereunder, establish a two
phase application process for a Category 1 license. The first phase is known as the “Request for
Application Phase 1.” In this phase, the applicant is required to make disclosures regarding itself
and affiliates. The Investigations and Enforcement Bureau (“IEB”) of the Commission then
conducts an investigation of the applicant and provides findings and recommendations to the
Commission regarding the suitability of the applicant and its affiliates and business associates.
Only those applicants found suitable to receive a license may proceed to the second phase of the
process, known as Request for Application Phase 2, during which the Commission reviews the
merits of suitable applicants.
In January 2013, Wynn filed an application with the Commission for a license to operate
a Category 1 destination casino resort on the parcel. The IEB began its investigation of the Wynn
application. According to the amended complaint, the Commission did not identify FBT as a
party subject to investigation and did not request information from FBT. Nevertheless, the IEB
became aware of a recorded telephone conversation between an inmate in state prison (Darin
Bufalino) and Charles Lightbody, a convicted felon. The recording suggested to IEB that
Lightbody had an ownership interest in FBT. The principals of FBT told IEB that Lightbody was
only a former owner of FBT. The investigators at IEB concluded that the principals of FBT were
lying. At that point, the amended complaint alleges, IEB and the Commission decided to impose
a financial penalty on FBT.
The IEB “intentionally embarked on a course of conduct designed to prevent FBT from
receiving any casino-related profit from its contract with Wynn Resorts.” Amended Complaint ¶
36. In October 2013, the IEB told Wynn that it needed to find a “solution” to the FBT issue or
risk a finding that Wynn would be deemed unsuitable to proceed to the next phase of the
application process. The “solution” suggested by IEB was that Wynn force FBT to accept a
dramatic reduction in the purchase price of the parcel so as to remove the “casino premium”
reflected in the $ 75 million price. Wynn then contracted for an appraisal of the parcel assuming
that it could not be used as a casino resort. The appraisal concluded that the parcel was worth $ 35
million, on that assumption.
Wynn informed FBT that the purchase price of the parcel had to be reduced to $ 35
million. Wynn told FBT that it must agree to the price reduction or it would sue FBT on the
theory that it would be FBT’s fault if Wynn were to be found unsuitable.
On November 26, 2013, FBT formally agreed with Wynn to lower the price of the parcel
to $ 35 million. A Ninth Amendment to the Option Agreement was executed to effect the new
price. On January 2, 2015, FBT and Wynn closed on the sale of the parcel for $ 34 million in
accordance with the Ninth Amendment.2
On November 14, 2016, FBT commenced this action. FBT’s original complaint asserted a
single count against the Commission for intentional interference with contract. On June 7, 2017,
this court (Kaplan, J.) dismissed that count on the ground that the Commission is immune from
suit under the Massachusetts Tort Claims Act because the claim alleged an intentional tort by the
Commission’s employees. FBT then filed, as a matter of right, the amended complaint that is the
subject of this motion. Count I of the amended complaint re-asserts the tortious interference
claim that had been dismissed. Pursuant to the June 7, 2017, order of the court, Count I remains
dismissed for failure to state a claim.
A motion to dismiss for failure to state a claim upon which relief may be granted under
Mass. R. Civ. P. 12(b)(6) permits “prompt resolution of a case where the allegations in the
complaint clearly demonstrate that the plaintiff’s claim is legally insufficient.” Harvard Crimson,
Inc. v. President & Fellows of Harvard Coll., 445 Mass. 745, 748 (2006). To survive a motion
to dismiss, a complaint must set forth the basis for the plaintiff’s entitlement to relief with “more
than labels and conclusions.” Iannacchino v. Ford Motor Co., 451 Mass. 623, 636, quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). At the pleading stage, Mass. R. Civ. P.
12(b)(6) requires that the complaint set forth “factual ‘allegations plausibly suggesting (not
merely consistent with)’ an entitlement to relief . . . .” Id., quoting Bell Atl. Corp., 550 U.S. at
557. The court must, however, accept as true the allegations of the complaint and draw every
2 The closing of the sale is not alleged in the amended complaint. The public record
showing the deed as recorded in the Middlesex County Registry is attached to defendant’s
memorandum. It does not appear that FBT contests this fact.
reasonable inference in favor of the plaintiff. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674,
676 (2011). With respect to a statute of limitations defense at the Rule 12(b)(6) stage, the facts in
the complaint must “clearly reveal that the action was commenced beyond the time constraints of
the statute of limitations.” Epstein v. Seigel, 396 Mass. 278, 279 (1985).
The Commission contends that Counts II and III of the amended complaint, alleging a
wrongful taking of FBT’s property for which FBT seeks compensation, is barred by the
applicable statute of limitations. Even if those claims were not barred by the statute of
limitations, the Commission avers that the claims must be dismissed because the uncontested
facts show that FBT is not entitled to relief. Likewise, FBT’s claim under the Contract Clause of
the United States Constitution (Count IV) fails on the facts alleged.
Statute of Limitations
In the amended complaint, FBT acknowledges that the Commission has no power of
eminent domain. Nevertheless, FBT avers that it possessed a property interest to sell the parcel
for a price reflecting its highest and best use, i.e. a casino resort (“the property interest”) and that
the property interest was destroyed by the Commission. The property interest is monetized at $ 40
million – – the difference between the original option price ($ 75 million) and the price after
removing the casino premium from the valuation ($ 35 million). FBT seeks compensation for the
destruction of its property interest in Counts II and III. FBT expressly claims that it is proceeding
on those Counts pursuant to G.L. c. 79, § 10. Section 10 applies when the taking or damage “was
not effected by or in accordance with a formal vote or order of the board of officers of a body
politic or corporate duly authorized by law.” Id. Such a taking is known as a taking in pais ( the
section is labeled “Damages for injuries to property caused by acts in pais”) or as “inverse
condemnation.” Gilbert v. City of Cambridge, 932 F. 2d 51, 64, cert. den. 502 U.S. 866 (1991).
Counts II and III allege an unconstitutional taking under the Massachusetts Declaration of
Rights. The Commission argues, and FBT appears to concede, that G. L. c. 79 “embodies rights
guaranteed under art. 10 of the Declaration of Rights,” Bromfield v. Treasurer & Receiver Gen.,
390 Mass. 665, 671 n.11 (1983), and “creates a comprehensive scheme that defines the rights and
obligations of parties involved in property takings.” Locator Services Group., Ltd. v. Treasurer
& Receiver Gen., 443 Mass. 837, 854 (2005). Thus, c. 79 provides the applicable procedure and
statute of limitations for claims for compensation under the Declaration of Rights resulting from
a taking by eminent domain or by a taking in pais. The question becomes which section of c. 79
provides the statute of limitations for FBT’s claim of taking in pais under § 10 of c. 79 ?
The Commission answers that question by contending that § 10 contains its own statute
of limitations. The section provides that “a petition for an award of damages under this section
may be filed within one year.” The Commission notes that a panel of the Appeals Court, in an
unpublished, Rule 1:28, decision, held that a claim for compensation for a taking in pais under
§ 10 is barred when the claim was not asserted in Superior Court until more than one year after
the claim arose. Grasso v. City of New Bedford, 55 Mass. App. Ct. 1116, 2002 WL 31039718 at
*12 – *13 (2002)(unpublished opinion), rev. den., 438 Mass. 1102 (2002). The Commission also
cites three Superior Court decisions applying the one year statute of limitations for claims based
on a taking in pais under § 10. Nicolopoulos v. Town of Dracut, 2007 WL 4958813
(2007)(noting distinction between eminent domain statute of limitations of three years in § 16,
from the taking in pais limitation period of one year in § 10); Hurton v. Puorro, 20 Mass. L.
Rptr. 501, 503 (2006); Govoni v. Town of Acushnet, 1995 WL 1146894 (1995)(applying § 16 to
eminent domain claim, but § 10 to taking in pais claim).
The alleged destruction of FBT’s property interest occurred on January 2, 2015, when the
sale of the parcel occurred, or earlier, on November 26, 2013, when FBT entered into the Ninth
Amendment to the Option Agreement. This action was filed on November 14, 2016, more than
one year after both of those dates. Thus, the Commission asserts that Counts II and III are
untimely and must be dismissed.
FBT maintains that it is § 16 of c. 79, not § 10, that provides the applicable statute of
limitations period for its claim. Section 16 states that “[a] petition for the assessment of damages
under section fourteen may be filed within three years after the right to such damages has
vested.” Section fourteen provides, in turn, that “[a] person entitled to an award of his damages
under this chapter . . . , whether a petition has or has not been filed or award made under section
six, seven, nine or ten, may petition for the assessment of such damages to the superior court . . .
.” FBT contends that it is petitioning under § 14 by the commencement of this action. Thus, a
three year statute of limitations should apply.
FBT cites a Superior Court decision for its argument that a three year statute of
limitations should apply. In Meldon v. Town of Barnstable, 2006 WL 200100234 (2006) the
court acknowledged that the claim at issue involved a taking in pais under § 10. The court
focused on the word “award” in § 10 and concluded that the one year limitation period in § 10
referred to the time by which a person could petition “the appropriate body politic as to what it
determines is voluntarily to be paid to the property owner.” Id. at *2. If the person wishes to go to
Superior Court, he may proceed under § 14. Id. FBT argues that this interpretation of the statutes
makes sense because § 14 expressly notes that the petition for assessment of damages filed in
Superior Court may be filed “whether a petition has or has not been filed or award made under
section . . . ten . . . .” To apply the one year limitation of § 10 to FBT’s petition to Superior Court,
FBT contends, would make the reference to § 10 in § 14 superfluous.
It is a well-settled canon of statutory interpretation that, where possible, a court should
construe the various provisions of a statute in harmony with one another. The Locator Services
Group, Ltd. v. Treasurer & Receiver Gen., 443 Mass. 837, 859 (2005). In doing so, I find that it
is the three year statute of limitations in § 16 that governs FBT’s claims in Counts II and III. I
reach this conclusion respectfully noting the Rule 1:28 decision of the panel in Grasso, but
recognizing that such decision is not binding precedent. I am more persuaded by the decision of
the Superior Court judge in Meldon.
Section 10 provides the remedy for a person aggrieved by a taking in pais. The section
provides that if “the injury was caused by or on behalf of the commonwealth . . . the officer or
board of officers under whose direction or control the injury was caused shall award damages
upon the petition of any person entitled thereto.” Id. Thus, § 10 anticipates an administrative
finding by the governmental body to award damages. When a later sentence in § 10 references “a
petition for an award of damages therefor under this section”, id. (emphasis added), it appears to
be referencing the petition to the board of officers who caused the injury. That petition must be
filed within one year. Section 10 makes no express reference to a petition or an action in
Superior Court.
This interpretation harmonizes §10 with §14. Section 14 provides the express remedy of
going to Superior Court. Section 14 provides that remedy to a person entitled to an award of
damages “under this chapter.” Id. “Under this chapter” means, of course, all sections of the
chapter, including the sections for eminent domain takings as well as for takings in pais. See
Gilbert, 932 F. 2d at 64 (recognizing that § 14 provides the remedy in Superior Court for in pais
taking under § 10). Moreover, § 14 expressly allows a petition to Superior Court “whether a
petition has or has not been filed or award made under section six, seven, nine or ten.” Id.
(Emphasis added). That language suggests that a person entitled to an award of damages may, or
may not, opt for the administrative remedy provided in § 10 to petition the taking authority.
Regardless, the petitioner may go to Superior Court for an assessment of damages.
Having concluded that FBT’s claim in this court for damages as a result of a taking in
pais is governed by § 14 of c. 79, the analysis moves to § 16 of that chapter. Section 16 provides
that “[a] petition for the assessment of damages under section fourteen may be filed within three
years after the right to such damages has vested.” As described above, FBT entered into the
Ninth Amendment to the Option Agreement on November 26, 2013. It was on that date that FBT
suffered the alleged taking or destruction of the casino premium. Because this action was filed on
November 14, 2016, a date within three years of Ninth Amendment, the action is timely.
Jurisdictional Question
The conclusion that FBT’s claims in Counts II and III are brought pursuant to § 14 of
c. 79 raises another set of issues that may have jurisdictional consequences. Section 14 provides
that the petition to the Superior Court for assessment of damages must be filed in the “county in
which the property taken or injured was situated.” Id. A question arises as to where FBT’s
“property interest” is situated. FBT is located in Cambridge, Middlesex County. If the alleged
property interest arises from the land that is the subject of the Option Agreement, then the
property interest appears to be situated in Everett, Middlesex County.3 These issues were not
addressed by the parties in their memoranda submitted in connection with this motion to dismiss.
As a result, I defer action on the Gaming Commission’s motion to dismiss. The
jurisdictional questions must be addressed before going further with regard to the Commission’s
substantive grounds for dismissal. Where is FBT’s claimed property interest situated? May the
requirement that the petition for assessment of damages be filed in the “county in which the
property taken or injured was situated” be waived or is it a mandate of exclusive, subject matter,
jurisdiction? Also, if jurisdiction is required to be founded upon a petition filed in Middlesex
County, what is the effect, particularly with respect to the application of the statute of limitations,
of FBT’s filing of its claims in Suffolk County? May the action now be transferred to Middlesex
County? If a new action is required to be filed in Middlesex County, should that complaint
“relate back” to the date of filing of this action? The fundamental questions of subject matter
jurisdiction must be answered before a definitive ruling is made on the Commission’s motion to
3 A review of the Option Agreement attached to the amended complaint, including
Exhibit B, raises the possibility that some portion of the Land may be in Boston, Suffolk County.
This must be addressed by the parties.
As described above, I find FBT’s amended complaint is brought under, and governed by,
§ 14 of c. 79. As a result, a question of subject matter jurisdiction arises. I request that the parties
address in supplemental memoranda of not more than twenty pages the issues I have raised
concerning jurisdiction. These memoranda shall be filed and served at the same time. The
memoranda are due by no later than December 7, 2017. In the meantime, action on the
Commission’s motion to dismiss is deferred.
By the Court,
Edward P. Leibensperger
Justice of the Superior Court
Date: November 7, 2017

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