Clark v. Boscher

United States Court of Appeals
For the First Circuit

No. 06-2473

ARTHUR L. CLARK, individually; RITA M. CLARK, individually;
RAYMOND A. CLARK, Trustee of the E. Mt. Rd. Nominee Trust, and
as Trustee of the Arthur L. Clark Family Trust and as Trustee
of the Clark Sons Realty Trust; RICHARD J. CLARK, Trustee of the
E. Mt. Rd. Nominee Trust, and as Trustee of the Arthur L. Clark
Family Trust and as Trustee of the Clark Sons Realty Trust;
JAMES F. CLARK, Trustee of the E. Mt. Rd. Nominee Trust, and as
Trustee of the Arthur L. Clark Family Trust and as Trustee of the
Clark Sons Realty Trust; ARTHUR J. CLARK, Trustee of the E. Mt.
Rd. Nominee Trust, and as Trustee of the Arthur L. Clark Family
Trust and as Trustee of the Clark Sons Realty Trust;
THEODORE PÉREZ, individually; GOLDEN ACRES DEVELOPMENT CORP.,

Plaintiffs, Appellants,

v.

LYNNE BOSCHER, PHILIP McEWAN, KEVIN BOWLER, ANTHONY PETRUCELLI,
RANDALL RACINE, JOHN WYSOCKI, WILLIAM ONYSKI and ANDREW DENARDO,
individually and as Members of the Westfield Planning Board
During 2003; JOHN SULLIVAN, RONALD COLE and THOMAS FLAHERTY,
individually and as Westfield Sewer Commissioners During 2002;
JANA CANTUCCIO, JOSEPH SPAGNOLI and LEE PÉREZ, individually and
as Westfield Water Commissioners During 2002; RICHARD K.
SULLIVAN, individually ans as Mayor of the City of Westfield;
and CHARLES MEDEIROS, BARBARA SWORDS, ADAM LIPTAK, JR.,
DAVID BANNISH, BRENT BEAN, BRIAN SULLIVAN, CHRISTOPHER CREAN,
JAMES CASEY, MARTIN CANTY, DANIEL KNAPIK, and CHRISTOPHER KEEFE,
individually and as Members of the Westfield City Council
During 2003,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]
 Before

Boudin, Chief Judge,
Torruella and Dyk,* Circuit Judges.

William J. Pudlo, for appellants.
Kenneth C. Pickering, with whom Jessica H. Munyon and Mirick,
O'Connell, DeMallie & Lougee, LLP, were on brief, for appellees.

January 31, 2008

*
Of the Federal Circuit, sitting by designation.

-2-
 TORRUELLA, Circuit Judge. Appellants Arthur L. and

Rita M. Clark, the trustees of the several Clark family trusts,

Theodore Pérez, and Golden Acres Development Corporation

(collectively, "Appellants") brought suit against the former mayor

of the City of Westfield and various former city council members

and commissioners (collectively, "Westfield") for obstructing the

development of a residential subdivision on their land. Appellants

asserted constitutional substantive due process and equal

protection claims and sought monetary damages under 42 U.S.C.

§ 1983. The District Court for the District of Massachusetts, on

recommendation from the magistrate judge, dismissed Appellants'

suit under Fed. R. Civ. P. 12(b)(6) for failing to state claims

upon which relief could be granted. Appellants now appeal. For

the reasons set forth below, we affirm the district court's

dismissal.

I. BACKGROUND

Arthur L. and Rita M. Clark acquired several parcels of

land in Westfield, Massachusetts, which they sought to develop as

a residential subdivision. In furtherance of this plan, they

transferred portions of their real estate holdings to various

family trusts (collectively, "the Clarks") and hired an engineering

firm to prepare the necessary subdivision plans.

The Clarks' first subdivision plan was submitted to the

City of Westfield's Planning Board in 1997. Following a hearing,

-3-
the Planning Board rejected the plan because it included a fifty-

foot strip of land surrounding Chapin Pond that was allegedly owned

by the city. The Clarks unsuccessfully revised and resubmitted the

plan four times between 1997 and 2001.1 In 1998 the Clarks also

filed a petition in the Massachusetts Land Court to compel the city

to try title to Chapin Pond. Nine years later on March 2, 2007,

the Land Court found the City of Westfield to be the record title

holder of Chapin Pond.2

In 2001, the Clarks entered into an agreement with their

neighbor and Co-Appellant Theodore Pérez to combine their

contiguous lands and develop them into residential subdivisions.

Together they created the Golden Acres Development Corporation and

in December 2001 submitted plans for two proposed subdivisions to

the Westfield Planning Board.3 The Planning Board summarily

rejected both these proposals in February 2002.

These same two plans were revised and resubmitted one

month later. Concurrently, the Clarks' attorney sent a letter to

the Westfield City Council requesting that the city's master plan

take into account the increased water and sewage capacity required

1
The Planning Board rejected all of these submissions for various
reasons, including inadequate access, danger to the local aquifer,
and the city's claim of title over Chapin Pond.
2
An adverse possession claim put forth by the Clarks as a part of
this same action is still pending.
3
These were the Fairway Club Estates and Emerald Acres Estates
subdivision projects.

-4-
by the Clarks' proposed subdivisions. The request was unanimously

rejected by the City Council and in April 2002, the Planning Board

also rejected at least one of Appellants' revised subdivision plans

because it included property over which the city claimed ownership.

In June 2002, the Clarks' engineer met with the Westfield

Water Commission to connect the proposed subdivisions to the

municipal water supply. At that meeting the engineer was advised

that the commissioners did not intend to grant Appellants municipal

water service because "the City did not want the project there."

Despite the finding by a Water Department contractor that the loop

created by the proposed subdivisions would benefit the entire city

with increased water pressure and flow, the Water Commission voted

to formally deny the Clarks' request on July 12, 2002. On

September 6, 2002, Appellants filed suit against the Water

Commission in Massachusetts Superior Court. The suit was dismissed

for lack of jurisdiction.

Appellants assert that they were denied municipal water

service because they failed to first secure a connection to the

municipal sewer line. While the request before the Water

Commission was pending, however, the Clarks' engineer also

petitioned the Westfield Sewer Commission for service, and was

turned down because Appellants had not yet been connected to the

municipal water line. The Sewer Commission was also concerned

about the sewer system's capacity and the Appellants' proposed

-5-
number of lots, and it indicated that any excess capacity that

existed in the sewer system would be allocated to other developers

who had previously requested service.

In October 2002, Appellants submitted their final

subdivision plan to the Westfield Planning Board. Due to the

denial of municipal water and sewage service, this plan proposed

fewer lots and relied on the use of on-site water and waste

disposal systems. This time the Planning Board solicited comments

from all interested municipal boards and commissions, and the Water

Commission responded by expressing its concern that the proposed

subdivision would threaten the municipal water supply and that its

primary access route crossed over a dam. The city's health

director also worried about the impact that the onsite septic

systems would have on the underlying aquifer, and recommended that

the city consider granting access to the municipal sewer and water

lines. After a public hearing, the Planning Board voted to deny

the modified plan on January 3, 2003.

On January 24, 2003, Appellants responded by filing a

complaint against the Planning Board and the Water Commission in

Massachusetts Land Court. The Land Court eventually dismissed all

claims against the Water Commission for lack of jurisdiction.4 In

4
As of the filing of this appeal the charges against the Planning
Board were ongoing.

-6-
April 2003, Appellants also filed a new request with the Westfield

Sewer Commission to gain access to the municipal sewer line.5

On October 7, 2003, the City of Westfield exercised its

eminent domain power to occupy thirty-eight acres of Pérez's

property for the purpose of water supply protection. Appellants

allege that such taking rendered their development plans

unfeasible, as the proposed subdivision's access to the municipal

roadway was planned through the Pérez land.

Appellants filed the instant suit in district court on

July 8, 2005, asserting violations of the due process and equal

protection guarantees of the Fourteenth Amendment, and requesting

damages under 42 U.S.C. § 1983.6 They alleged that Westfield

conspired to interfere with the residential development of their

lands. Westfield moved to dismiss under Federal Rule of Civil

Procedure 12(b)(6) and the district court referred the matter to a

magistrate judge.

On August 14, 2006, the magistrate judge issued a report

and recommendation that Appellants' claims be dismissed because

"land usage controversies between a plaintiff and state or local

administrative and political entities do not rise to the level of

due process violations, absent evidence of 'fundamental procedural

5
At the time of filing of this appeal, the Commission had taken
no action on the Appellants' request.
6
Appellants also asserted state equal protection and civil
conspiracy charges, which were dismissed and are not appealed.

-7-
irregularity, racial animus, or the like,'" which Appellants did

not allege or produce. Report and Recommendation With Regard to

Defendants' Motion to Dismiss at 7, Clark v. Boscher, No. 05-30163-

MAP (D. Mass. August 14, 2006)(quoting Matney v. City of N. Adams,

359 F. Supp. 2d 20, 23 (D. Mass. 2005) (internal quotations

omitted)). The magistrate judge also recommended dismissal for the

equal protection claim. Having failed to raise a colorable

constitutional or federal statutory cause of action, Appellants

were not entitled to recovery under § 1983. The district court

adopted the magistrate judge's report and recommendation in its

entirety and dismissed Appellants' claims.

II. DISCUSSION

A. Standard of Review

We review a district court's grant of a Rule 12(b)(6)

motion to dismiss de novo. Garita Hotel Ltd. P'ship v. Ponce Fed.

Bank, F.S.B., 958 F.2d 15, 17 (1st Cir. 1992). In doing so, we

accept as true all of Appellants' well-pleaded facts "indulging all

reasonable inferences therefrom." Ramos-Piñero v. Puerto Rico, 453

F.3d 48, 51 (1st Cir. 2006). Nonetheless, we reject "'unsupported

conclusions or interpretations of law.'" Stein v. Royal Bank of

Canada, 239 F.3d 389, 392 (1st Cir. 2001) (quoting Wash. Legal

Found. v. Mass. Bar Found., 993 F.2d 962, 971 (1st Cir. 1993)). To

survive Rule 12(b)(6) dismissal, Appellants' well-pleaded facts

must "possess enough heft to 'sho[w] that [Appellants are] entitled

-8-
to relief.'" Bell Atlantic Corp. v. Twombly, __ U.S. __, 127 S.

Ct. 1955, 1959 (2007).

B. Recovery under 42 U.S.C. § 1983

42 U.S.C. § 1983 does not endow plaintiffs with any

substantive rights independent of those already granted under

federal law. Cruz-Erazo v. Rivera-Montañez, 212 F.3d 617, 621 (1st

Cir. 2000). To recover under § 1983, a plaintiff must prove that

a deprivation of "rights, privileges, or immunities secured by the

Constitution and laws" of the United States was carried out by

persons acting under color of state law. 42 U.S.C. § 1983 (2000);

Rodríguez-Cirilo v. García, 115 F.3d 50, 52 (1st Cir. 1997). Our

first line of inquiry then is to determine whether Appellants'

well-pleaded facts demonstrate violations of their constitutional

due process and equal protection rights under the Fourteenth

Amendment.

1. Substantive Due Process

Appellants contend that their averred facts state a valid

substantive due process claim entitling them to relief under § 1983

because "the actions of all City officials amount to an [sic]

pattern of arbitrary, unreasonable and capricious acts which

deprive the Plaintiffs of their right to reasonably and legally use

their property." We disagree.

Substantive due process is a constitutional cause of

action that leaves the door "slightly ajar for federal relief in

-9-
truly horrendous situations." Néstor Colón-Medina & Sucesores,

Inc. v. Custodio, 964 F.2d 32, 45 (1st Cir. 1992). In order to

assert a valid substantive due process claim, Appellants have to

prove that they suffered the deprivation of an established life,

liberty, or property interest, and that such deprivation occurred

through governmental action that shocks the conscience. Pagán v.

Calderón, 448 F.3d 16, 32 (1st Cir. 2006); Rivera v. Rhode Island,

402 F.3d 27, 33-34 (1st Cir. 2005). In the instant case, whether

Appellants have a recognized property interest in developing their

land is ultimately immaterial because they have failed to prove

that Westfield engaged in behavior that shocks the conscience.

See, e.g., Mongeau v. City of Marlborough, 492 F.3d 14, 17 (1st

Cir. 2007) (stating that in order to assert a valid substantive due

process claim, plaintiff who was involved in a land-use dispute was

required to prove that the defendant city government's actions

shocked the conscience).

We have repeatedly held that "'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.'" Id. (quoting Pagán, 448 F.3d at 33); see also PFZ

Properties, Inc. v. Rodríguez, 928 F.2d 28, 31 (1st Cir.

1991)("[R]ejections of development projects and refusals to issue

building permits do not ordinarily implicate substantive due

-10-
process."); Custodio, 964 F.2d at 45 ("[T]he due process clause may

not ordinarily be used to involve federal courts in the rights and

wrongs of local planning disputes. In the vast majority of

instances, local and state agencies and courts are closer to the

situation and better equipped to provide relief.").

Consequently, a run-of-the-mill land-use case such as

this one does not rise to the level of behavior that shocks the

conscience. Here, Appellants do not allege any "fundamental

procedural irregularity, racial animus, or the like." See Creative

Environments, Inc. v. Estabrook, 680 F.2d 822, 833 (1st Cir. 1982).

Nor do they contend that a fundamental principle has been violated.

See Amsden v. Moran, 904 F.2d 748, 754 (1st Cir. 1990). Appellants

merely complain that they were denied the necessary permits to

develop residential subdivisions on the Clark and Pérez land, and

that the City of Westfield denied such permits in furtherance of

its own interests.

Indeed, the regulatory actions Appellants complain of are

virtually indistinguishable from others we have declined to find

actionable in the past. See, e.g., Creative Environments, 680 F.2d

at 826, 833-34 (holding that city planning board's denial of the

permits required to develop a residential subdivision, allegedly

premised on criteria that were arbitrary and capricious and

exceeded the planning board's discretion, did not constitute

behavior that shocked the conscience); SFW Arecibo, 415 F.3d at

-11-
140-41 (holding that state planning board's revocation of building

permits, allegedly without jurisdiction and thereby usurping the

jurisdiction of a state permitting agency, did not constitute

conduct that shocked the conscience); Licari v. Ferruzzi, 22 F.3d

344, 349-50 (1st Cir. 1994) (holding that city planning board's

revocation of building permits, delay in granting new permits, and

unauthorized enforcement actions allegedly motivated by hostility

towards developer did not amount to conduct that shocked the

conscience). Given that Appellants' well-pleaded facts have not

met the Mongeau "shocks the consciousness" standard, Appellants

have failed to establish a plausible violation of their

constitutional right to substantive due process.

2. Equal Protection7

Appellants contend that they "were treated differently

from others similarly situated" with regard to Westfield's refusal

to connect their proposed subdivisions to the municipal water and

sewer lines. In support of this contention, Appellants identify

three development projects that, unlike Appellants', were granted

municipal water and sewer service in April 2004 and May 2005. A

plausible equal protection violation is established when a

plaintiff shows by his or her well-pleaded facts that she was

7
Though Appellants mistakenly label this a due process claim in
their brief, the nature of their arguments and the allegations in
their complaint make clear that they are advancing an equal
protection claim.

-12-
treated differently from "others similarly situated . . . based on

impermissible considerations such as race, religion, intent to

inhibit or punish the exercise of constitutional rights, or

malicious or bad faith intent to injure a person." Aponte-Torres

v. Univ. of P.R., 445 F.3d 50, 57 (1st Cir. 2006) (quoting

Barrington Cove Ltd. P'ship v. R.I. Hous. and Mortgage Fin. Corp.,

246 F.3d 1, 7 (1st Cir. 2001)). Even granting Appellants every

reasonable inference, their well-pleaded facts fail to meet this

standard.8

Two persons or entities are similarly situated if "a

prudent person, looking objectively at the incidents [complained

of], would think them roughly equivalent and the protagonists

similarly situated . . . 'in all relevant respects.'" Barrington

Cove, 246 F.3d at 8 (quoting Dartmouth Review v. Dartmouth Coll.,

889 F.2d 13, 19 (1st Cir. 1989)). Applying the Barrington Cove

test, this Court must be able to compare apples to apples. See id.

Appellants in this case, however, have presented us with a fruit

basket. The three development projects identified by Appellants as

having been granted access to Westfield's water and sewer lines

8
In his report and recommendation, the magistrate judge
inexplicably treated Appellants' equal protection charge as a 42
U.S.C. § 1981(a) claim and recommended dismissal, "as there is no
argument that plaintiffs have been denied contract rights 'enjoyed
by white citizens.'" We find this analysis perplexing given that
Appellants' assertion of disparate treatment is not related to
their ability to enter or enforce contracts, nor is it related to
their race.

-13-
are: a private subdivision in the Munger Hill neighborhood, a 250-

unit affordable housing community, and an industrial park. All of

them were granted access in or after April 2004, almost two years

after the final time such access was denied to Appellants. By

their very nature, the affordable housing community and the

industrial park differ significantly from Appellants' proposed

subdivisions, and it is therefore expected that different policy

grounds influenced Westfield's decision to grant municipal

services. The Munger Hill subdivision, though of the same type as

Appellants' proposed development, is located on a parcel of land

different from Appellants'. As such, Westfield's concern

regarding the possible contamination of the aquifer underlying

Appellants' tract does not come into play. Neither does the still-

pending property dispute regarding Chapin Pond. Consequently, the

three identified development projects are not similarly situated

vis-à-vis Appellants' proposed subdivisions, and Appellants' well-

pleaded facts have failed to state a plausible violation of the

equal protection clause. We need not reach the question of whether

an equal protection claim would be established in this case if

differential treatment had been shown. See Buchanan v. Maine, 469

F.3d 158, 178 ("[A] plaintiff not relying on 'typical'

impermissible categories, such as race or religion, must show that

he was intentionally treated differently from others similarly

-14-
situated, . . . and that the different treatment was based on a

malicious or bad faith intent to injure.").

As Appellants' well-pleaded facts have not established a

plausible entitlement to relief under the Fourteenth Amendment,

their § 1983 claim does not survive Rule 12(b)(6) review, and was

properly dismissed.

III. CONCLUSION

For the foregoing reasons, we affirm the judgment of the

district court.

Affirmed.

-15-