Case 1:17-cv-12071-FDS Document 1 Filed 10/23/17 Page 1 of 10

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

)
ALIKI PISHEV )
PLAINTIFF )
)
VS ) NO.
)
CITY OF SOMERVILLE AND )
SOMERVILLE DEPARTMENT OF PUBLIC WORKS )
DEFENDANTS )
)

COMPLAINT AND CLAIM FOR TRIAL BY JURY

A. Parties

1. The plaintiff Aliki Pishev (Pishev) is the owner of record of real

estate located on the corner of Webster Avenue and Concord Avenue in

Somerville, Middlesex County, Massachusetts which has a mailing address of

47 Webster Avenue, Somerville Massachusetts, 02143 (Property).

2. The defendant City of Somerville (Somerville or the City) is a

municipal corporation in the Commonwealth of Massachusetts with offices at

City Hall, 93 Highland Avenue, Somerville, MA 02413.

3. On information and belief, the defendant Somerville Department of

Public Works is the duly authorized department of public works under G.L. c.

41 responsible for maintaining and altering public ways in Somerville and has

offices located at 1 Franey Rd, Somerville, MA 02145.

B. JURISDICTION

4. The United States District Court has jurisdiction of this controversy

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under 28 U.S.C. 1331 because Pishev asserts claims for relief under the

First, Fifth, and Fourteenth Amendments to the Constitution of the United

States and 42 U.S.C. 1983 and the court has supplemental jurisdiction of

Pishev's related state law claims under 28 U.S.C. 1328.

C. Facts

The Property

5. Pishev and her family have owned the Property since 1970 when her

father first purchased it.

6. Located on the Property is a commercial building approximately 47

years old, built by Pishevs father, with bays and facilities that are suitable

for and have been used by various commercial uses, including but not

limited to automobile repair businesses.

7. The building has two sections which have typically been occupied by

separate commercial tenants since the Pishevs have owned the Property.

8. The section closest to Concord Ave (Section 1) is currently rented

by JN Phillips Auto Glass and until February, 2017, the other section (Section

2) was rented by Fabio Gomes to park automobiles to be repaired in his

repair shop located on the adjacent property.

9. A commercial tenant, Black Cat Labs, Company, has recently

executed a lease to rent Section 2 beginning November 1, 2017.

The urban renewal plan lawsuit

10. On October 12, 2012, the Somerville Aldermen voted to approve a

G.L. c. 121B urban renewal plan, the Union Square Revitalization Plan (USR

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Plan or Plan) which was approved by the Massachusetts Department of

Housing and Community Development (DHCD) on or about November 19,

2012.

11. The Property is designated as property to be taken by eminent

domain under the Plan.

12. On August 14, 2015, Pishev filed suit in the Middlesex Superior

Court to prevent the City from taking her property by eminent domain under

the Plan because the properties designated to be taken thereunder were not

decadent under G.L. c. 121B but thriving businesses and thus the Plan was

unlawful. Pishev et al v. City of Somerville, et. al., Middlesex Superior, No.

1581cv05346.

13. That action is pending.

Procurement of Properties Under the Urban Renewal Plan

14. The City has entered into an agreement with a private company

Master Developer to redevelop the properties designated for taking under

the USR Plan (Master Developer Agreement).

15. Under the Master Developer Agreement, the Master Developer

must either purchase the properties itself from the current owners or pay the

City some or all of the costs to the City to take the properties by eminent

domain.

Imposing Requirements on Pishevs Tenants

not Imposed on Others Similarly Situated

16. Permits and licenses for the operation of the JN Phillips business at

JN Phillips and Fabio Gomes were issued originally for two year periods as

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they continue to be for other similar businesses in Somerville.

17. In February, 2017, when the tenants permits and licenses were up

for renewal, City officials advised them that the licenses would only be issued

for three month periods because the properties they leased were slated for

taking by eminent domain.

18. The City officials also for the first time required that Gomes acquire

and use expensive equipment as part of his operation that it had never

required before.

Curb Stops

19. The front of the building and the bays in both sections face

Webster Avenue.

20. Automobiles have always entered and exited the bays for both

sections predominately from and to Webster Avenue by way of a curb cut.

21. On information and belief, the curb cut to Webster Avenue from the

Property has been there since the 1920s.

22. There is also a small curb cut on the Concord Ave side of the

building.

23. JN Phillips Auto Glass uses the lot to park its vans under a permit

issued by Somerville.

24. On or about September 19, 2017, the Somerville Department of

Public Works installed curb stops on the Webster Avenue access.

25. Under the Somerville City Charter, the power . . . to lay out,

locate anew, alter, widen and discontinue public ways and streets and to

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order specific repairs or a change of grade therein; to order the construction

of sidewalks and of sewers, and to take real estate therefore is in the

Somerville Board of Aldermen. City Charter, 17.

26. Under the Somerville Code of Ordinances, The words "ways,"

"streets" and "highways" shall be construed as including boulevards,

avenues, courts, lanes, alleys, squares, places and sidewalks, and each of

these words includes every other of them. SCO, 1.4.

27. On information and belief, the Somerville Board of Aldermen did

not order the curb stops to be installed on the Webster Avenue curb cut.

28. On information and belief the installation of the curb stops was

ordered by the Somerville Transportation and Infrastructure Division (STID)

of the Mayors Office of Strategic Planning and Community Development

(OSPCD).

29. In Massachusetts, properties abutting a public way have a right of

reasonable access to that way.

30. The STID does not have authority to alter or terminate the access

of properties to public ways in Somerville.

31. At no time did Pishev receive a notice of any public hearing nor was

there any public hearing held by the city Aldermen or otherwise concerning

the installation of the curb stops.

32. Pishev has been deprived of this valuable property right without

the benefit of a pre-deprivation notice or hearing in violation of her Fifth and

Fourteenth Amendment rights to due process.

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33. The installation of the curb stop barriers on the Webster Avenue

curb cut by the Department of Public Works was ultra vires, unauthorized,

and otherwise unlawful.

COUNT ONE
CLAIM FOR DAMAGES UNDER 42 U.S.C. 1983 CAUSED BY DEPRIVING PISHEV OF HER
RIGHT UNDER THE FOURTEENTH AMENDMENT TO EQUAL PROTECTION AND THE FIFTH AND
FOURTEENTH AMENDMENTS TO DUE PROCESS AND HER RIGHT UNDER THE FIRST
AMENDMENT TO FREEDOM OF SPEECH

34. Pishev repeats and reavers herein the above paragraphs.

35. The income from the commercial tenants at the Property is vital to

Pishev.

36. The defendants imposition of regulatory burdens and requirements

on Pishevs tenants not imposed on others similarly situated are not

rationally related to the purposes of such regulations and the exercise of

Somervilles police powers.

37. The defendants imposed regulatory burdens and requirements on

Pishevs tenants not imposed on others similarly situated in order to

discourage the lease and productive use of the Property in order to force

Pishev to sell it to the Master Developer under duress or otherwise to

depress the value of the Property should it be taken by eminent domain.

38. The defendants imposition of regulatory burdens and requirements

on Pishevs tenants not imposed on others similarly situated has been in

retaliation for Pishevs state law suit in violation of her right to free speech

under the First Amendment.

39. The installation of the curb stops without notice and a hearing

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deprived Pishev of procedural due process under the Fifth and Fourteenth

Amendments to the Constitution of the United States.

40. In February, Fabio Gomes, the tenant renting Section 2, quit the

premises and ceased paying his monthly rent because of the regulatory

burdens imposed on him by the defendants and because of the threatened

curb stops.

41. Because of the curb stops, JN Phillips Glass can no longer park its

vehicles in the parking lot which has severely impacted its business and

threatened its continued lease of the Property.

42. The potential new tenant for Section 2 has indicated that its lease

will be dependent on the removal of the curb stop barriers.

43. The curb stops were installed in order to discourage the lease and

productive use of the Property in order to force Pishev to sell it to the Master

Developer under duress or otherwise to depress the value of the Property

should it be taken by eminent domain.

44. The curb stops were installed in retaliation for Pishevs lawsuit

challenging the lawfulness of the USR plan.

45. The installation of the curb stops is part of the defendants overall

plan to violate Pishevs rights to equal protection under the Fourteenth

Amendment, due process under the Fifth and Fourteenth Amendments, and

freedom of speech under the First Amendment.

Wherefore, Pishev demands judgment for damages under 42 U.S.C.

1983 for all her injuries caused by the defendants deprivation of her rights

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secured by the Constitution and laws; her reasonable attorneys fees and

costs under 42 U.S.C., 1988; interest; and such other relief as the court

deems warranted.

COUNT TWO
INJUNCTIVE RELIEF TO ENJOIN THE DEFENDANTS FROM SUBJECTING PISHEVS TENANTS TO
REQUIREMENTS AND BURDENS DIFFERENT FROM THOSE SIMILARLY SITUATED AND TO
REMOVE THE CURB STOP BARRIERS

46. Pishev repeats and reavers herein the above paragraphs.

47. In Massachusetts real estate is considered unique and thus

damages are not sufficient to remedy an injury to such interest, therefor

entitling Pishev to injunctive relief.

48. The Citys selective enforcement of licensing and permitting

requirements for the tenants of the Property and installation of the curb

stops because the Property has been designated to be taken under the USR

Plan and to coerce its sale under duress has deprived her of rights secured

by the Constitution to due process under the Fifth Amendment and equal

protection and due process under the Fourteenth Amendment to the

Constitution of the United States entitling her to equitable relief under 42

U.S.C. 1983.

Wherefore, Pishev demands that the court

a. enter a temporary restraining order enjoining Somerville to

remove the curb stop barriers;

b. enter a temporary restraining order enjoining Somerville

from imposing regulatory burdens and barriers on Pishevs tenants

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which are different from those similarly situated;

c. enter a preliminary injunction enjoining Somerville from

reinstalling the curb stop barriers without lawful authority;

d. enter a preliminary injunction enjoining Somerville from

imposing regulatory burdens and barriers on Pishevs tenants which

are different from those similarly situated;

e. enter an order permanently enjoining Somerville from

reinstalling the barriers without lawful authority;

f. enter an order premanently enjoining Somerville from

imposing regulatory burdens and barriers on Pishevs tenants which

are different from those similarly situated; and

g. order such other equitable relief as the court warrants just

and reasonable plus award costs and attorney fees to Pishev.

COUNT THREE
DAMAGES UNDER G.L. C. 79, 12

49. Pishev repeats and reavers herein the above paragraphs

50. The curb stop barriers have prevented reasonable access to the

property for the businesses operated thereon.

51. The curb stop barriers have unreasonably and substantially

interfered with the operation of the business of JN Phillips Auto Glass

52. The curb stop barriers will prevent Pishev from leasing Section 2.

53. The curb stop barriers have taken Pishevs right of access to

Webster Avenue.

54. The curb stop barriers have caused injury which is special and

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peculiar to Pishev.

Wherefore, Pishev demands damages under G.L. c. 79, 12 for all

property taken or otherwise for all injury caused by the curb stop barriers.

Pishev hereby claims the right to trial by jury of all issues and
claims so triable.

ALIKI PISHEV
By her attorney,

Philip H Cahalin
Philip H. Cahalin, Esq., BBO # 545538
85 Exchange Street, Suite 206
Lynn, MA 01901
t. 781.598.3130
pcahalin@cahalinlaw.com

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 Case 1:17-cv-12071-FDS Document 1-1 Filed 10/23/17 Page 1 of 1
JS 44 (Rev. 06/17) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

Aliki Pishev City of Somerville; Somerville Department of Public Works

(b) County of Residence of First Listed Plaintiff Middlesex County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)

Philip H. Cahalin, Esq., 85 Exchange Street, Suite 206,

Lynn, MA 01901

II. BASIS OF JURISDICTION (Place an X in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
1 U.S. Government 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4
of Business In This State

2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a 3 3 Foreign Nation 6 6

Foreign Country
IV. NATURE OF SUIT (Place an X in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act
120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC
130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 3729(a))
140 Negotiable Instrument Liability 367 Health Care/ 400 State Reapportionment
150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust
& Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking
151 Medicare Act 330 Federal Employers Product Liability 830 Patent 450 Commerce
152 Recovery of Defaulted Liability 368 Asbestos Personal 835 Patent - Abbreviated 460 Deportation
Student Loans 340 Marine Injury Product New Drug Application 470 Racketeer Influenced and
(Excludes Veterans) 345 Marine Product Liability 840 Trademark Corrupt Organizations
153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY 480 Consumer Credit
of Veterans Benefits 350 Motor Vehicle 370 Other Fraud 710 Fair Labor Standards 861 HIA (1395ff) 490 Cable/Sat TV
160 Stockholders Suits 355 Motor Vehicle 371 Truth in Lending Act 862 Black Lung (923) 850 Securities/Commodities/
190 Other Contract Product Liability 380 Other Personal 720 Labor/Management 863 DIWC/DIWW (405(g)) Exchange
195 Contract Product Liability 360 Other Personal Property Damage Relations 864 SSID Title XVI 890 Other Statutory Actions
196 Franchise Injury 385 Property Damage 740 Railway Labor Act 865 RSI (405(g)) 891 Agricultural Acts
362 Personal Injury - Product Liability 751 Family and Medical 893 Environmental Matters
Medical Malpractice Leave Act 895 Freedom of Information
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 790 Other Labor Litigation FEDERAL TAX SUITS Act
210 Land Condemnation 440 Other Civil Rights Habeas Corpus: 791 Employee Retirement 870 Taxes (U.S. Plaintiff 896 Arbitration
220 Foreclosure 441 Voting 463 Alien Detainee Income Security Act or Defendant) 899 Administrative Procedure
230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 871 IRSThird Party Act/Review or Appeal of
240 Torts to Land 443 Housing/ Sentence 26 USC 7609 Agency Decision
245 Tort Product Liability Accommodations 530 General 950 Constitutionality of
290 All Other Real Property 445 Amer. w/Disabilities - 535 Death Penalty IMMIGRATION State Statutes
Employment Other: 462 Naturalization Application
446 Amer. w/Disabilities - 540 Mandamus & Other 465 Other Immigration
Other 550 Civil Rights Actions
448 Education 555 Prison Condition
560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an X in One Box Only)
1 Original 2 Removed from 3 Remanded from 4 Reinstated or 5 Transferred from 6 Multidistrict 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
42 U.S.C. 1983
VI. CAUSE OF ACTION Brief description of cause:
deprivation of constitutional rights relative to property
VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: Yes No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
10/20/2017 /s/ Philip H Cahalin
FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

 Case 1:17-cv-12071-FDS Document 1-2 Filed 10/23/17 Page 1 of 1
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

1. Title of case (name of first party on each side only) Aliki Pishev v City of Somerville

2. Category in which the case belongs based upon the numbered nature of suit code listed on the civil cover sheet. (See local
rule 40.1(a)(1)).

I. 410, 441, 470, 535, 830*, 835*, 891, 893, 895, R.23, REGARDLESS OF NATURE OF SUIT.

II. 110, 130, 140, 160, 190, 196, 230, 240, 290,320,362, 370, 371, 380, 430, 440, 442, 443, 445, 446, 448, 710, 720,
740, 790, 820*, 840*, 850, 870, 871.

III. 120, 150, 151, 152, 153, 195, 210, 220, 245, 310, 315, 330, 340, 345, 350, 355, 360, 365, 367, 368, 375, 376, 385,
400, 422, 423, 450, 460, 462, 463, 465, 480, 490, 510, 530, 540, 550, 555, 625, 690, 751, 791, 861-865, 890, 896,
899, 950.

*Also complete AO 120 or AO 121. for patent, trademark or copyright cases.

3. Title and number, if any, of related cases. (See local rule 40.1(g)). If more than one prior related case has been filed in this
district please indicate the title and number of the first filed case in this court.

4. Has a prior action between the same parties and based on the same claim ever been filed in this court?

YES 9 NO 9
5. Does the complaint in this case question the constitutionality of an act of congress affecting the public interest? (See 28 USC
2403)

YES 9 NO
9
If so, is the U.S.A. or an officer, agent or employee of the U.S. a party?

YES 9 NO
9
6. Is this case required to be heard and determined by a district court of three judges pursuant to title 28 USC 2284?

YES 9 NO 9

7. Do all of the parties in this action, excluding governmental agencies of the United States and the Commonwealth of
Massachusetts (governmental agencies), residing in Massachusetts reside in the same division? - (See Local Rule 40.1(d)).

YES
9 NO 9
A. If yes, in which division do all of the non-governmental parties reside?

Eastern Division 9 Central Division 9 Western Division 9

B. If no, in which division do the majority of the plaintiffs or the only parties, excluding governmental agencies,
residing in Massachusetts reside?

Eastern Division 9 Central Division 9 Western Division 9

8. If filing a Notice of Removal - are there any motions pending in the state court requiring the attention of this Court? (If yes,
submit a separate sheet identifying the motions)

YES 9 NO 9
(PLEASE TYPE OR PRINT)
ATTORNEY'S NAME Philip H Cahalin
ADDRESS 85 Exchange Street, Suite 206, Lynn, MA 01901
TELEPHONE NO. 781.598.3130
(CategoryForm6-2017.wpd )