Harlow Phase I- Olech litgation in Federal Court

Case 1:15-cv-12042-WGY Document 33 Filed 10/05/15 Page 1 of 100

Case 1:15-cv-12042-WGY Document 33-1 Filed 10/05/15 Page 1 of 105

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
jdavis@piercedavis.com
sbarnett@piercedavis.com
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
John_j_hightower@yahoo.com

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