DEIN, United States Magistrate Judge.
This action arises out of the opposition of the defendants, the Seekonk Water District ("SWD") and its Superintendent, Robert Bernardo ("Bernardo"),
The defendants have moved for partial judgment on the pleadings on the grounds that the plaintiffs have failed to allege a violation of their constitutional rights to petition government (Counts I & II), their rights of free speech (Counts III & IV), their rights to equal protection (Counts X & XI),
For all the reasons detailed herein, the defendants' motion for judgment on the pleadings is ALLOWED. This case falls within the principle that "[t]he Civil Rights Act cannot be used as a rack upon which every disappointed developer can stretch a community that fails to roll out the red carpet for him." Chongris v. Board of Appeals of the Town of Andover, 811 F.2d 36, 46 (1st Cir.1987).
The defendants are seeking judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). The legal standard for evaluating a motion for judgment on the pleadings is essentially the same as the standard for evaluating a motion to dismiss under Fed. R.Civ.P. 12(b)(6), except that a Rule 12(c) motion "implicates the pleadings as a whole." Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 54-55 (1st Cir.2006). Therefore, the court must "view the facts contained in the pleadings in the light most flattering to the nonmovants (here, the plaintiffs) and draw all reasonable inferences therefrom in their favor." Id. at 54. "The court may supplement the facts contained in the pleadings by considering documents fairly incorporated therein and facts susceptible to judicial notice." Curran v. Cousins, 509 F.3d 36, 44 (1st Cir. 2007) (quoting R.G. Fin. Corp. v. Vergara-Nunez, 446 F.3d 178, 182 (1st Cir.2006)). Applying this standard, the relevant facts are as follows.
Najas Realty, LLC and Petra Building Corporation are Rhode Island entities owned principally by Steven Najas (collectively, "Najas" unless otherwise indicated). (Compl. ¶¶ 1-2). Najas Realty is a real estate development and property holding company, while Petra is a home building company. (Id. ¶¶ 8-9). The Seekonk Water District is an independent governmental entity chartered by the Massachusetts Legislature in 1946. (See id. ¶ 3; Mass.
In or about early 2012, Najas purchased a ten acre parcel of land in Seekonk, Massachusetts, known as the Pine Hill Estates Property for the purpose of building a 10-lot residential subdivision on the site. (Id. ¶¶ 10-11, 17). In purchasing the Property, Najas outbid Bernardo (in his capacity as the Seekonk Water Superintendent) and the Seekonk Water District. (Id. ¶ 12-14).
The plaintiffs allege generally as follows:
(Compl. ¶¶ 15-16). In particular, the plaintiffs object to the following actions and statements.
An initial meeting regarding the Pine Hill Estates Project was held by the Seekonk Board of Health on April 25, 2012. (Id. ¶ 20). Bernardo appeared and expressed concerns about the Project's proximity to one of the Town's public water supply wells known as GP-4. (Id.). "According,
Bernardo continued his discussion with the Board of Health after Mr. Najas and his representatives had left, and expressed his opposition to the development. Bernardo told the Board of Health that he "would like this guy to go away" and that the Board of Health should make the developer "jump every hurdle" in regard to the Pine Hill Estates Project. (Id. ¶ 26). A number of members of the Board of Health discussed concerns about the impact of the Project on the town's water supply because "[t]he water in the ground is essential[.]" (Docket 49-1 at 8-11, 18-22). The Board discussed which agencies were involved in approving the Project, and were responsible for making sure that the nitrate levels were acceptable. (Id. at 19). The Board members also expressed the sentiment that as long as the developer "go[es] by the letter of the law they can do what they want." (Id. at 19).
According to the plaintiffs, as a result of the Water Department's concerns, the Board of Health and Seekonk Health Department required the plaintiffs to perform a costly "nitrate loading analysis" as part of the definitive plan submission. (Compl. ¶ 22). After the plan was submitted, the Board of Health held another meeting to discuss the Pine Hill Estates Project and its concerns over nitrates. (Id. ¶ 28). At the meeting, held on September 12, 2012, the Board of Health voted to request a joint meeting with the Board of Selectmen and the Water District. (Id. at ¶ 29). According to the plaintiffs, such action was "unprecedented." (Id.).
The Board of Selectmen held a meeting on September 19, 2012, at which Bernardo again urged the Board to reject the Pine Hill Estates Project. (Id. ¶¶ 30, 34). Bernardo again repeated the allegations (which the plaintiffs dispute) that there were increased levels of nitrates in the vicinity of the GP-4 well due to a malfunctioning septic system at the Town's Hurley Middle School. (Id. ¶ 31). Bernardo also stated that increased nitrates from the development "could lead to significant health issues of the public in Seekonk, including but not limited to the risk of pregnant or nursing mothers having their infant children contract `Blue Baby Syndrome,' a severe medical condition that causes infants to asphyxiate." (Id. ¶ 32). The plaintiffs characterize these statements as being "unsupported by fact [or] law" and "completely baseless." (Id. ¶ 33). However, the EPA has set maximum contaminant level goals for nitrates in drinking water pursuant to the Safe Drinking Water Act. As stated on the EPA website:
See http://water.epa.gov/drink/ contaminants/basicinformation/nitrate.cfm.
A meeting was held on September 20, 2012 among members of the Board of Selectmen,
A Planning Board meeting was held on December 11, 2012. (Id. ¶ 41). According to Najas, although the Planning Board's engineer had not expressed any concerns about potential groundwater contamination, a member of the Planning Board had published an article in the local newspaper expressing concern about the effects of nitrates in the public water supply. (Id. ¶¶ 42-44). Furthermore, Bernardo appeared at the Planning Board meeting, challenged Najas' engineer's conclusions, and opposed the Project. (Id. ¶¶ 45, 48). Bernardo expressed the same concerns as before, and argued that a clean-up of nitrates could cost over a million dollars. (Id. ¶¶ 46-48). The Planning Board voted to continue the meeting until January 22, 2013, at which time it voted 4-3 to deny the Pine Hill Estates Project. (Id. ¶¶ 49-50).
Najas appealed the Planning Board's denial to the Massachusetts Land Court pursuant to Mass. Gen. Laws ch. 41, § 81BB. (Id. ¶ 51). The parties settled the case, with Najas reducing the number of lots from 10 to 9, and agreeing to shorten the roadway length. (Id. ¶ 52). A public hearing was held on March 12, 2013 on the revised plan. (Id. ¶ 53). Although Bernardo opposed the plan, the Planning Board approved the revised plan. (Id. ¶¶ 54-56). No party appealed. (Id. ¶ 57).
The Water District then filed a petition to rescind and/or modify the Pine Hill Estates Project with the Planning Board, as authorized by Mass. Gen. Laws ch. 41, § 81W. (Id. ¶ 58). Bernardo and the Water District engaged in a campaign to convince the public of what Najas contends are baseless potential health problems and clean-up costs if the Project was approved. (Id. ¶¶ 59-63). Despite the defendants' extensive campaign, the Planning Board denied the Water District's petition to rescind. (Id. ¶ 64). The Water District attempted to appeal the denial to Bristol Superior Court, but apparently the matter was dismissed. (Id. ¶ 65; see Defs. Mem. (Docket No. 37) at 8-9). In October 2013, the Water District granted permission for the Pine Hill Estates subdivision to connect to the Seekonk water supply. (Id. at 9). Najas contends that as a result of the defendants' "actions and statements" the plaintiffs have lost sales on previously reserved lots, and lost "future contracts for construction of single family homes on those same lots." (Compl. ¶ 66).
While the plaintiffs' primary objection is to the handling of their proposal to develop the Pine Hill Estates, they also object to the way their application for another Project was handled by the Seekonk Water District. Specifically, Najas owns a 14 acre parcel in Seekonk on which the plaintiffs intend to construct an 8-lot conservation subdivision known as "Orchard Estates." (Id. ¶ 68). The Project was approved by the Planning Board in June 2012, but then Bernardo and the Water District required Najas to "loop" the water line that would service the Project, instead of allowing the line to "dead end." This allegedly added tens of thousands of dollars to the cost of the development unnecessarily. (Id. ¶¶ 70-78). In addition,
Additional facts will be provided below where appropriate.
"The standard for evaluating a Rule 12(c) motion for judgment on the pleadings is essentially the same as that for deciding a Rule 12(b)(6) motion." Pasdon v. City of Peabody, 417 F.3d 225, 226 (1st Cir.2005). Thus, the court must accept as true all well-pleaded facts and draw all reasonable inferences in favor of the non-moving party. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007); Cooperman v. Individual, Inc., 171 F.3d 43, 46 (1st Cir.1999). Dismissal is appropriate only if the pleadings, so viewed, fail to support "`a plausible entitlement to relief.'" Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 95 (1st Cir.2007) (quoting Twombly, 550 U.S. at 559, 127 S.Ct. at 1967).
Two underlying principles must guide the court's assessment as to the adequacy of the pleadings to support a claim for relief. Maldonado v. Fontanes, 568 F.3d 263, 268 (1st Cir.2009). "`First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.' Such conclusory statements are `not entitled to the assumption of truth.'" Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)) (internal citation omitted). "`Second, only a complaint that states a plausible claim for relief survives a motion to dismiss.'" Id. (quoting Iqbal, 129 S.Ct. at 1950). "This second principle recognizes that the court's assessment of the pleadings is `contextspecific,' requiring `the reviewing court to draw on its judicial experience and common sense.' `[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not show[n] — that the pleader is entitled to relief.'" Id. (quoting Iqbal, 129 S.Ct. at 1950) (internal quotations and citation omitted; alternations in original).
Applying these principles to the instant case compels the conclusion that the defendants' motion for partial judgment on the pleadings be ALLOWED.
In Counts I-IV of the Amended Complaint, Najas alleges that the defendants retaliated against the plaintiffs for exercising their First Amendment rights "to petition the government for redress" (Counts I and III) and of free speech (Counts II and IV), in violation of federal and state constitutions.
"A claim under [42 U.S.C.] section 1983 has two essential elements. First, the challenged conduct must be attributable to a person acting under color of state law" and "second, the conduct must have worked a denial of rights secured by the Constitution or by federal law." Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir.1997). It is undisputed that Bernardo was acting at all relevant times under color of state law. Thus, this court's inquiry must focus on whether the plaintiffs' allegations support a claim that the defendants deprived them of their constitutional rights.
As a general statement, "[c]laims of retaliation for the exercise of First Amendment rights are cognizable under [42 U.S.C.] § 1983." Powell v. Alexander, 391 F.3d 1, 16 (1st Cir.2004). The First Amendment protects freedom of speech, as well as "the right to petition all branches of the government, including the courts." Id. (and authorities cited).
As an initial matter, the law is unclear as to whether the plaintiffs' conduct in seeking applications for building development constitutes "petitions for redress of grievances" which are protected by the First Amendment. Compare Hampton Bays Connections v. Duffy, 127 F.Supp.2d 364, 373 (E.D.N.Y.2001) (in a case of first impression court concludes that "applying to a town planning board or similar entity for special use exception permits, site approval plans, or building permits is conduct protected the First Amendment right to petition government for the redress of grievances") with WMX Techs., Inc. v. Miller, 197 F.3d 367, 372 (9th Cir.1999) ("application for a major use permit is not equivalent to a petition to the Government for redress of grievances under the First Amendment"). That issue, however, does not need to be resolved here. A most liberal reading of the Complaint fails to establish that the defendants engaged in unconstitutional retaliatory conduct.
In the instant case, the alleged "retaliatory conduct" engaged in by the defendants involved opposing the Pine Hill Estates Project through legal means. Bernardo challenged the potential increase in nitrate levels caused by the development, and cautioned that increased levels could result in "blue baby syndrome" and/or millions of dollars in clean up costs. Despite the plaintiffs' allegations that the defendant's comments were factually unsupportable, the record before this court establishes that the health risks and clean-up costs were potentially real if, in fact, the development caused nitrate levels to increase above those recommended by the EPA. "Blue baby syndrome" was not a phantom concern of the defendants, but rather was recognized by the EPA as a real risk in the event of increased nitrate levels. Since it is undisputed that the Middle School in the area of the proposed
As a general statement, "[c]ourts have not been receptive to retaliation claims arising out of government speech." Goldstein, 719 F.3d at 30, and cases cited. "This cautious approach to limiting government speech is warranted. Not only do public officials have free speech rights, but they also have an obligation to speak out about matters of public concern." Id. Here, the defendants voiced their opposition to the Project through regular channels and in public fora. The plaintiffs were able to publicly challenge the defendants' analyses, and were obviously successful in convincing the decision-making Boards of their positions, since the permits were issued and the Pine Hill Estates Project was approved. It is well-established that "full participation by persons and organizations and robust discussion of issues before legislative, judicial, and administrative bodies and in other public fora are essential to the democratic process[.]" Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 161, 691 N.E.2d 935, 939 (1998) (discussing legislative purpose behind Mass. Gen. Laws ch. 231, § 59H prohibiting SLAPP suits). In this case, the plaintiffs have failed to allege that the defendants did anything more than force them to fully justify the Pine Hill Estates Project before it was approved, in the face of opposition that the plaintiffs felt was groundless. This is insufficient to state a claim for unconstitutional retaliation. As the court held in S. Middlesex Opportunity Council, Inc. v. Town of Framingham, No. 07-12018-DPW, 2008 WL 4595369 (D.Mass. Sept. 30, 2008), in language equally applicable here:
Id. at *19 (where defendants' opposition "involved public hearings, legal discussions among governmental bodies, and internal debates about the Plaintiffs' applications," their opposition did not rise to the level of unconstitutional retaliation).
In Counts X and XI of the Amended Complaint, the plaintiffs allege that the defendants violated their Fourteenth Amendment constitutional rights to equal protection by treating the Pine Hill Estates Project differently than other projects in the Town. In addition, the plaintiffs have moved to amend their Complaint to add further details about allegedly comparable developments. (Docket No. 50). Because this court concludes that, as amended, the Complaint still fails to state an equal protection claim, the motion to amend will be denied as futile and the motion to dismiss Counts X and XI of the Amended Complaint will be allowed.
"Because [Najas] contends that the government singled him out for differential treatment for reasons unique to him, rather than because of his membership in any group, his equal protection claim is of the `class of one' variety." Snyder v. Gaudet, 756 F.3d 30, 34 (1st Cir.2014). To prevail on this claim Najas "must show that he `has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.'" Id. (quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000)). In addition, Najas must establish that the defendants were "motivated by `bad faith or malicious intent to injure[.]'" Id. (quoting Rubinovitz v. Rogato, 60 F.3d 906, 911 (1st Cir.1995)). Because Najas has failed to sufficiently plead that Pine Hill Estates has been treated differently than any other similarly situated project, his claim must fail.
Snyder, 756 F.3d at 34. Here, however, in the proposed Second Amended Complaint (Docket No. 51-1), the plaintiffs allege merely that "[a] number of other subdivisions and land use projects have been permitted, approved, and built in the Town of Seekonk in which the Seekonk Water District and/or Bernardo reviewed the plans submitted for such projects[.]" (Id. ¶ 71). The plaintiffs then list the names of 10 projects without description, and contend that the defendants did not raise the issue of nitrates, impact on the water supply, potential health risks or the like in connection with any of the projects as they did with the Pine Hill Estates. (Id. at ¶¶ 71-78). The absence of any facts from which the court can determine whether these alleged "comparables" are in any way similar to the plaintiffs' Pine Hill Estates Project mandates that the equal protection claims fail. See Clark v. Boscher, 514 F.3d 107, 114 (1st Cir.2008) (equal protection claim brought by developers of residential subdivision dismissed where "Court must be able to compare apples to apples" and developers presented the court "with a fruit basket" of different types of allegedly comparable developments). For example, but without limitation, there are no allegations about the size of these developments, or how close these developments are to the town's water supply. The burden is on the plaintiffs to establish the extremely high degree of similarity between themselves and the entities to which they are to be compared. See Rectrix Aerodrome Ctrs., Inc. v. Barnstable Mun. Airport Comm'n, 610 F.3d 8, 16 (1st Cir.2010). The plaintiffs in the instant case have not met their burden.
The proposed Second Amended Complaint is equally deficient with respect to the plaintiffs' Orchard Estates Project. Therein, the plaintiffs allege only that the defendants allowed the Jacob Hill Estates subdivision in the Town of Seekonk to dead end its water line, instead of looping. (Docket No. 51-1 at ¶¶ 93-96). Again, however, there is no indication of in what ways, if any, the Jacob Hill Estates subdivision is comparable to the Orchard Estates Project. Therefore, the plaintiffs' equal protection claim concerning this Project must fail as well.
Courts are extremely reluctant "to entertain equal protection challenges to local planning decisions" for good reason. See Macone v. Town of Wakefield, 277 F.3d 1, 10 (1st Cir.2002). Again as the First Circuit explained:
Id. (quoting Creative Env'ts, Inc. v. Estabrook, 680 F.2d 822, 833 (1st Cir.1982)) (additional citations omitted). Otherwise,
In Counts XII and XIII of the Amended Complaint, the plaintiffs purport to allege that the defendants violated their Fourteenth Amendment substantive due process rights. For the reasons detailed herein, these counts fail to state a claim and will be dismissed.
"Where, as here, a plaintiff's substantive due process claims challenge the constitutionality of certain executive acts, the plaintiff must show both that the acts were so egregious as to shock the conscience and that they deprived him of a protected interest in life, liberty, or property." Harron v. Town of Franklin, 660 F.3d 531, 536 (1st Cir.2011) (quoting Pagan v. Calderon, 448 F.3d 16, 32 (1st Cir. 2006)). Acts will be deemed to "shock the conscience" only if they are "truly outrageous, uncivilized, and intolerable," and "the requisite arbitrariness and caprice must be stunning, evidencing more than humdrum legal error." Id. (internal quotations and citations omitted). The First Circuit has "stated with `a regularity bordering on the monotonous' that to be liable for a violation of substantive due process rights, a defendant must have engaged in behavior that is `conscience-shocking': `the substantive due process doctrine may not, in the ordinary course, be invoked to challenge discretionary permitting or licensing determinations of state or local decisionmakers, whether those decisions are right or wrong.'" Mongeau v. City of Marlborough, 492 F.3d 14, 17 (1st Cir.2007) (quoting Pagan, 448 F.3d at 33).
In the instant case, the plaintiffs have alleged, at most, that the defendants blindly adhered to their belief that the Project would harm the town's drinking water and create significant health risks, despite persuasive evidence to the contrary. This conduct is not so egregious as to rise to the level of a substantive due process violation. See PFZ Props., Inc. v. Rodriguez, 928 F.2d 28, 32 (1st Cir.1991) ("Even assuming that [the permitting authority] engaged in delaying tactics and refused to issue permits ... based on considerations outside the scope of its jurisdiction ..., such practices, without more, do not rise to the level of violations of the federal constitution under a substantive due process label.").
In Count XV of the Amended Complaint, the plaintiffs have sued Bernardo individually for tortious interference with advantageous business relations. (Compl. ¶¶ 207-12).
At common law, "a public official, exercising judgment and discretion, is not liable for negligence or other error in the making of an official decision if the official acted in good faith, without malice, and without corruption." Nelson v. Salem State Coll., 446 Mass. 525, 537, 845 N.E.2d 338, 348 (2006) (citing, inter alia, Gildea v. Ellershaw, 363 Mass. 800, 820, 298 N.E.2d 847 (1973)). Moreover, Bernardo's "conduct and actions are covered by the rule that `[t]here is every presumption in favor of the honesty and sufficiency of the motives actuating public officers in actions ostensibly taken for the general welfare.'" S. Boston Betterment Trust Corp. v. Boston Redev. Auth., 438 Mass. 57, 69, 777 N.E.2d 812, 820 (2002) (quoting Foster from Gloucester, Inc. v. City Council of Gloucester, 10 Mass.App.Ct. 284, 294, 407 N.E.2d 363 (1980)).
Even the most liberal reading of the facts alleged by the plaintiffs does not indicate that Bernardo "acted in bad faith, maliciously or corruptly." Gildea, 298 N.E.2d at 859 (city officials entitled to immunity where the plaintiff "has neither alleged nor produced evidence that the defendants acted in bad faith, maliciously or corruptly"). Despite the conclusory allegations of bad faith and malice, the record establishes that the nitrate levels in the drinking water in the Town of Seekonk were of some concern, as evidenced by the monitoring at the Middle School. The potential of "blue baby syndrome" was recognized by the EPA as a potential health risk linked to high nitrate levels. Thus, Bernardo's efforts to highlight concerns regarding the potential for high clean up costs and serious health risks were well within his authority as Superintendent of the Water Department, and did not raise issues which were beyond the realm of possibilities. Moreover, Bernardo's challenges were made publicly, through appropriate channels, and the plaintiffs were given the opportunity to, and did, in fact, fully respond to Bernardo's concerns. Finally, while the plaintiffs may have been forced to fully support their claim that the proposed Project would not increase nitrate levels beyond those approved by the EPA, they were not obligated to do anything illegal or to provide information beyond that which was appropriately considered in connection with a real estate development project. In short, the plaintiffs have failed to allege any facts to support a conclusion that any "interference" by Bernardo was improper. See S. Boston Betterment Trust Corp., 438 Mass. at 69, 777 N.E.2d at 821 (where Mayor's involvement with potential development of convention center was not improper, and mayor did not act "in bad faith, corruptly, or with malice," claim of interference with actual and potential business
The purpose of the common law immunity is "to allow public officials to speak freely on matters of public importance during the exercise of their official duties." Mulgrew v. City of Taunton, 410 Mass. 631, 635, 574 N.E.2d 389, 392 (1991). This is precisely what Bernardo did. The fact that, according to Najas, Bernardo was seriously mistaken in his analysis does not raise his speech to a level of a tort for which he may be held liable under Massachusetts law.
For all the reasons detailed herein, defendants' Motion for Partial Judgment on the Pleadings (Docket No. 36) is ALLOWED, and Counts I-IV, X-XIII and XV of the Amended Complaint are dismissed. Plaintiffs' Motion to File a Second Amended Complaint (Docket No. 50) is DENIED as futile.
