UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-2047
ARTHUR J. LICARI, AS HE IS TRUSTEE OF
COLONIAL DRIVE REALTY TRUST,
Plaintiff, Appellant,
v.
JOSEPH FERRUZZI, PATRICK J. McNALLY,
STANLEY I. BORNSTEIN, KENNETH J. SAVOIE
WILLIAM E. BINGHAM, CATHERINE LEFEBVRE,
ELIZABETH WARE AND THE TOWN OF IPSWICH,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
Paul F. Denver, with whom Rossman, Rossman & Eschelbacher were on
brief for appellant.
Patrick M. Hamilton, with whom Richard E. Brody and Morrison,
Mahoney & Miller were on brief for appellees Patrick J. McNally,
Stanley I. Bornstein, Kenneth J. Savoie, William E. Bingham, Catherine
Lefebvre, Elizabeth Ware and the Town of Ipswich, Nancy Merrick, with
whom Douglas I. Louison and Merrick & Louison were on brief for
appellee Joseph Ferruzzi.
April 22, 1994
BOWNES, Senior Circuit Judge. This appeal arises
BOWNES, Senior Circuit Judge.
from an action for damages brought by a developer frustrated
by town planning and permitting authorities. Plaintiff-
appellant, Arthur J. Licari, as trustee of Colonial Drive
Realty Trust (hereinafter "Colonial"), appeals from an order
granting summary judgment for defendants-appellees, the Town
of Ipswich, the town building inspector, the town planner,
and members of the planning board. The complaint alleged due
process violations under 42 U.S.C. 1983, as well as
violations of Massachusetts civil rights laws and tortious
interference with contract. We affirm the decision for
defendants on the 1983 claims, but vacate the judgment on
the pendent state claims and remand so that those claims will
be adjudicated, or dismissed without prejudice.
I.
BACKGROUND
In 1987, Colonial's predecessor in interest sought
to develop property in Ipswich, Massachusetts, and obtained a
"special permit" from the planning board to comply with town
zoning laws.1 One part of the project included three
buildings. The building plans incorporated into the special
permit stated that Building 3 would be set back
1. A special permit is analogous to a variance. Under
Massachusetts law, a town's zoning ordinances may allow
particular developments, such as multifamily dwellings, to be
constructed in a given zoning district only upon the issuance
of a special permit. Mass. Gen. Laws ch. 40A, 9.
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"approximately forty-five (45) feet" from the road. Colonial
acquired three building permits and began construction in
1988.
At a hearing held on October 12, 1989, the planning
board discussed whether the location of Building 3 conformed
with the dimensions in the plans incorporated in the special
permit. One week later, the town planner wrote to Colonial
that Building 3 was seven feet closer to the road than the
special permit allowed. The letter requested Colonial's
confirmation or denial of those charges, in writing, before
the next board meeting on October 26 and stated that any
further work would be at the developer's risk. The record
does not indicate whether Colonial attended that meeting or
submitted any information to the board. During the October
26 meeting, the board issued and later recorded at the
registry of deeds a "Notice of Noncompliance," based on the
discrepancy between the special permit and the location of
Building 3.
Building 3's proximity to the road was discussed in
planning board meetings over the following months. Members
of the board informed Colonial at a hearing in November 1989
that Buildings 1 and 2 also contravened the special permit.
In November 1989, Colonial sought an amendment to the special
permit to cure the problems, but the board did not approve
that application until April 2, 1990. Meanwhile, on February
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1, 1990, Colonial once again argued to the board that there
were no discrepancies between the special permit and the
project as built.
On February 2, 1990, defendant Joseph Ferruzzi, the
town building inspector, revoked all three building permits
and ordered that further work cease. The reasons for the
revocation were that the buildings did not conform with the
special permit, and that Colonial had represented in applying
for building permits that the project was in compliance with
"project documents" and with zoning requirements. According
to Colonial, the board ordered the permits revoked. Colonial
initiated, but later abandoned, an appeal of Ferruzzi's
action to the Massachusetts Building Code Appeals Board.
Until new building permits were issued, work on the
project could not continue, and bank financing was suspended.
In May 1990, Ferruzzi promised to issue new permits, but did
not actually issue them until August. The bank's financing
commitment also expired in August. Colonial failed to
complete the project and defaulted on its loan.
In January 1993, Colonial filed suit in the United
States District Court for the District of Massachusetts. The
complaint alleged that Ferruzzi and the town failed to
provide due process by revoking the building permits without
a proper inquiry, notice, or hearing. The complaint included
claims that the arbitrary acts of defendants other than
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Ferruzzi violated Colonial's due process rights. Finally,
the complaint alleged that defendants interfered with
Colonial's contractual relations, and that defendants
violated Massachusetts civil rights laws. Defendants filed a
motion for summary judgment, which the district court
granted.
II.
ISSUES
Colonial argues on appeal [1] that the district
court erred in granting summary judgment on the 1983
claims; [2] that the court erred in denying Colonial's motion
for leave to engage in discovery under Fed. R. Civ. P. 56(f);
and [3] that the court erred in granting summary judgment for
defendants on the state law claims. We consider those
arguments seriatim.
The first issue is whether the district court erred
in granting summary judgment on the federal due process
claims. Our review of the district court's order is de novo.
Nestor Colon Medina & Sucesores, Inc. v. Custodio, 964 F.2d
32, 39 (1st Cir. 1992). Summary judgment is proper where no
material facts are in dispute, and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c).
Defendants argue that summary judgment was proper
because this case is analogous to our line of cases upholding
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pretrial orders disposing of 1983 due process claims
brought by frustrated applicants against local permitting
officials. See, e.g., Nestor Colon, 964 F.2d 32; PFZ
Properties, Inc. v. Rodriguez, 928 F.2d 28 (1st Cir. 1991),
cert. dismissed, 112 S. Ct. 1151 (1992); Creative Env'ts,
Inc. v. Estabrook, 680 F.2d 822 (1st Cir.), cert. denied, 459
U.S. 989 (1982). We agree. In this case, as in those cases,
the procedural and substantive due process claims were not
actionable under 1983.
III.
DUE PROCESS CLAIMS
DUE PROCESS CLAIMS
To avoid summary judgment on a procedural due
process claim, Colonial must show [1] that it had a property
interest defined by state law; and [2] that defendants,
acting under color of state law, deprived it of that interest
without adequate process. PFZ Properties, 928 F.2d at 30. A
viable substantive due process claim requires proof that the
state action was "in and of itself . . . egregiously
unacceptable, outrageous, or conscious-shocking." Amsden v.
Moran, 904 F.2d 748, 754 (1st Cir. 1990) (emphasis in
original), cert. denied, 498 U.S. 1041 (1991). Procedural
due process guarantees that a state proceeding which results
in a deprivation of property is fair, while substantive due
process ensures that such state action is not arbitrary and
capricious. Id. at 753-54.
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A. Revocation of Building Permits
Colonial argues that its right to procedural due
process was violated when defendant Ferruzzi, at the planning
board's behest, revoked the building permits in violation of
state law without prior notice and a hearing. Ferruzzi acted
under color of state law; the letter revoking the permits
cited the discrepancies between the special permit and the
project as built and stated that he could "revoke a permit .
. . in case of any false statement or misrepresentation of
fact in the application or the plans on which the permit . .
. was based." 22 Mass. Regs. Code tit. 780, 114.7.
Because we assume for the purposes of this opinion that
Colonial held a property interest in the permits, see PFZ
Properties, 928 F.2d at 30-31, the key issue is whether
Colonial was afforded adequate process.
To determine whether a procedural due process
violation has occurred, "it is necessary to ask what process
the State provided, and whether it was constitutionally
adequate. This inquiry would examine the procedural
safeguards built into the statutory or administrative
procedure . . . effecting the deprivation, and any remedies
for erroneous deprivations provided by statute or tort law."
Zinermon v. Burch, 494 U.S. 113, 126 (1990). We assess the
adequacy of procedures by balancing the government's interest
against the private interest affected by the action, the risk
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of an erroneous deprivation, and the value of additional
safeguards. Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
We begin our analysis by describing the procedural
protections afforded Colonial. Prior to the deprivation,
Colonial was notified of the board's allegations and had an
opportunity to rebut them. We take as true Colonial's claim
that the planning board was the ultimate decisionmaker
because it ordered the permits revoked. Colonial was
notified at planning board meetings in October and November
1989, by a letter from the town planner in October, and by
the "Notice of Noncompliance" filed at the registry of deeds
in November that there were alleged discrepancies between the
plans incorporated in the special permit and the project as
built. Those allegations underlay the finding that there
were false statements in the building permit application.
Colonial had an opportunity to contest those allegations with
respect to Building 3 during the October 12 hearing and in
the two weeks preceding the planning board's issuance of the
Notice of Noncompliance. Although it is unclear from the
record whether Colonial actually responded to those
allegations, it is enough to satisfy the Due Process Clause
that the opportunity for such a response existed.
Furthermore, on February 1, 1990, Colonial disputed the
allegations with respect to all three buildings, several
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months after receiving notice of them, and one day prior to
the revocation.
The notice Colonial received prior to the
revocation never specifically informed it that the
inconsistency between the special permit and the project
might be a basis for finding a "misrepresentation" in the
building permit application, justifying the revocation of the
permits. Colonial argues that it was thereby denied an
opportunity to be heard on that issue. We disagree. First,
Colonial received a letter from the town planner describing
the discrepancy between the special permit and the location
of Building 3 and indicating that further work would be at
the developer's risk. That letter, the Notice of
Noncompliance, and later discussions with the board informed
Colonial that town officials deemed the discrepancies
significant. Furthermore, Ferruzzi's letter revoking the
building permits claimed that plans submitted to him prior to
the issuance of the permits stated that the project complied
with zoning and with "project documents." A letter from
Colonial's architect appended to Colonial's Opposition to
Defendants' Motion for Summary Judgment supports that
statement of the facts, and nothing in the record contradicts
it. Cf. 22 Mass. Regs. Code tit. 780, 113.5 (application
for building permit must include site plans). Finally, a
state regulation authorized Ferruzzi to revoke building
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permits based on false statements in building permit
applications.2 Id. 114.7. The existence of that
regulation, the warning in the planner's letter, the repeated
discussions with the board, and the contents of plans
submitted on Colonial's behalf to the building inspector
provided Colonial with sufficient notice and an opportunity
to respond.
There is a further reason why the revocation of the
building permits did not violate Colonial's right to
procedural due process: postdeprivation remedies were
available. See Zinermon, 494 U.S. at 126 ("The
constitutional violation actionable under 1983 is not
complete when the deprivation occurs; it is not complete
unless and until the State fails to provide due process.").
Colonial had numerous opportunities to meet formally and
informally with town officials to recover the permits. See
Amsden, 904 F.2d at 755 (informal negotiations are part of
process provided). Such negotiations ultimately yielded the
result Colonial desired, the issuance of new permits.
Moreover, Colonial had the right to an administrative appeal
2. An affidavit of Jason Sokolov, Colonial's attorney before
the planning board, states, "On information and belief, th[e]
accusation [of a misrepresentation in the building permit
application] was untrue." We express no opinion on whether,
as a matter of state law, those statements in the plans
submitted to Ferruzzi constituted "misrepresentation[s] of
fact in the [building permit] application." 22 Mass. Regs.
Code tit., 780 114.7.
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of the building inspector's decision, which could have been
heard by the zoning board of appeals or by the state Building
Code Appeals Board, and a right to judicial review
thereafter. See 22 Mass. Regs. Code tit. 780, 126.1,
126.6; 126.7.1.
Colonial misses the mark by arguing that those
remedies are insufficient solely because relief might be
delayed, and damages are unavailable. In the first place,
delays, while endemic to administrative and judicial fora,
are minimized in these proceedings because the Appeals Board
adheres to a timetable. 22 Mass. Regs. Code tit. 780,
126.3.4, 126.4.3. Furthermore, a damage remedy is not an
essential component of constitutionally adequate review
procedures. Chongris v. Board of Appeals, 811 F.2d 36, 44-45
(1st Cir.), cert. denied, 483 U.S. 1021 (1987). We conclude
that Colonial had sufficient notice and an opportunity to be
heard prior to the revocation, and adequate administrative
and judicial review procedures afterwards; no further process
was exigible. Id. at 40.
B. Notice of Noncompliance
Colonial adverts that the planning board violated
procedural due process by summarily issuing and recording at
the registry of deeds a Notice of Noncompliance, which stated
that Colonial's buildings did not comply with the
requirements of the special permit. That issue appears in
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the brief without citation to legal authority, and with scant
elaboration on whether or how the board's act affected any
property right. We express no opinion on the merits because
we deem it waived. "Issues adverted to on appeal in a
perfunctory manner, unaccompanied by some developed
argumentation, are deemed to have been abandoned." Gamma
Audio & Video, Inc. v. Ean-Chea, 11 F.3d 1106, 1113 (internal
quotation marks and citation omitted).
C. Delays
Colonial contends that the board's delay in
approving the application for an amended special permit
violated its right to procedural due process. Assuming that
Colonial held a property interest in the permit prior to its
issuance, and that the delay itself constituted a
"deprivation," we disagree with Colonial's contention. We
take as true the allegation that the delay resulted from
defendants' unauthorized intransigence and illegal demands.
We have rejected similar 1983 claims, however, where--as in
this case--the deprivation was unauthorized, the value of
further process was negligible, and the state provided
adequate remedies. E.g., Nestor Colon, 964 F.2d at 40; PFZ
Properties, 928 F.2d at 31; see also Mass. Gen. Laws ch. 40A,
9 (failure of permitting board to act on permit application
within 90 days after public hearing deemed to be approval of
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application); id. 17 (final decisions of permitting board
subject to expedited judicial review).
D. Substantive Due Process Claims
The substantive due process claims are based on the
same factual allegations underlying the procedural due
process claims, i.e., the revocation of the building permits,
the unauthorized issuance of enforcement orders, and the
delays in the processing and approval of Colonial's
application for an amended permit. Those acts allegedly
manifest "a persistent and consistent hostility and animus
toward [Colonial]," aimed at coercing Colonial to reduce the
size of the project.
"This Court has repeatedly held . . . that
rejections of development projects and refusals to issue
building permits do not ordinarily implicate substantive due
process." PFZ Properties, 928 F.2d at 31; see also, e.g.,
Creative Env'ts, 680 F.2d at 832 n.9, 833. There is nothing
in the record to differentiate this case from those in which
we have found no viable basis for a 1983 claim. We note
that Colonial has neither argued, nor offered evidence that
defendants' "hostility and animus" was aimed at any political
affiliation, belief, stance, or immutable characteristic of
Colonial. Rather, Colonial's brief states that defendants'
improper conduct "was motivated by the defendants' wrongful,
outrageous goal" of compelling it to reduce the size of the
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project. Cf. Creative Env'ts, 680 F.2d at 833 ("Every appeal
. . . from an adverse ruling by a . . . planning board
necessarily involves some claim that the board exceeded,
abused or `distorted' its legal authority . . ., often for
some allegedly perverse (from the developer's point of view)
reason. It is not enough simply to give these state law
claims constitutional labels . . . in order to raise a
substantial federal question under section 1983." (emphasis
in original)).
Colonial argues that this court should "overrule"
the cases in this circuit rejecting substantive due process
claims in local planning disputes, so that its claims might
be litigated. Colonial contends that there are cases from
other circuits permitting 1983 actions based on arbitrary
or capricious conduct by local land use officials, and that
this court should follow suit in this case. See, e.g.,
Littlefield v. City of Afton, 785 F.2d 596 (8th Cir. 1986)
(collecting cases). But see Lemke v. Cass County, 846 F.2d
469, 470-71 (8th Cir. 1987) (en banc) ("Whether a substantive
due process claim may arise from a denial of a zoning permit
is an open question in this circuit . . . .").
There is a problem with Colonial's argument that
goes beyond its assumption that this panel would overrule
precedent in this circuit: we have never announced a rule
precluding district courts from finding substantive due
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process violations by land use planning officials in every
conceivable case. Rather, "[o]ur cases make clear that a
regulatory board does not transgress constitutional due
process requirements merely by making decisions `for
erroneous reasons' or by making `demands which arguably
exceed its authority under the relevant state statutes.'"
Amsden, 904 F.2d at 757 (quoting Creative Env'ts, 680 F.2d at
832 n.9); see also, e.g., Chiplin Enters. v. City of Lebanon,
712 F.2d 1524, 1528 (1st Cir. 1983). "We have left the door
slightly ajar for federal relief [based on substantive due
process] in truly horrendous situations." Nestor Colon, 964
F.2d at 45. Nevertheless, "the threshold for establishing
the requisite `abuse of government power' is a high one
indeed." Id.
There is a sound basis for our approach to such
claims in land use planning disputes:
Substantive due process, as a theory for
constitutional redress, has . . . been
disfavored, in part because of its
virtually standardless reach. To apply
it to claims [alleging that permitting
officials were motivated by political
factors and parochial views of local
interests] would be to insinuate the
oversight and discretion of federal
judges into areas traditionally reserved
for state and local tribunals.
Id.
We are not persuaded by Colonial that the
allegations and evidence in this case distinguish it from
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Nestor Colon and the other cases in this circuit rejecting
substantive due process claims in similar disputes. In
Amsden, 904 F.2d at 757, for example, in deciding an issue of
qualified immunity, we stated that plaintiff had not produced
evidence of conduct so "shocking or violative of universal
standards of decency" as to violate the Due Process Clause,
although the evidence suggested that plaintiff's license was
revoked to force his partner out of business. Id. (internal
quotation marks and citation omitted). Defendants' conduct
in this case, allegedly designed to force Colonial to reduce
the size of its project, is similarly not sufficiently
"conscious-shocking." Id. at 754. We hold that the district
court properly granted summary judgment on the due process
claims.
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IV.
DENIAL OF RULE 56(f) MOTION
Colonial argues that the district court erred in
denying its motion under Fed. R. Civ. P. 56(f) for leave to
engage in discovery. The district court stated that it was
denying the motion because "defendants are entitled to
judgment as a matter of law."
"To satisfy Rule 56(f), a party must `articulate a
plausible basis for the belief that discoverable materials
exist which would raise a trialworthy issue.'" Nestor Colon,
964 F.2d at 38 (citation omitted). With respect to the
federal claims that we consider in this appeal, Colonial's
motion asserted that discovery would yield evidence of
defendants' "animus" towards Colonial, and evidence of what
defendants "knew or believed" about the location of the three
buildings. We consider whether the denial of the motion was
an abuse of discretion. Id.
We find no abuse of discretion in this case because
the evidence sought by Colonial is not the type that would
render the 1983 claims viable. Colonial alleged that
defendants' improper conduct was motivated by the defendants'
goal of compelling it to reduce the size of the project.
Such a motive might be illegitimate as a matter of state law,
but it is not a basis for a 1983 claim. See Chiplin
Enters., 712 F.2d at 1528. Similarly, there would be no
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basis for relief under 1983, even if discovery yielded
proof that defendants knew that the buildings conformed with
the special permit. Id. ("A mere bad faith refusal to follow
state law in such local administrative matters simply does
not amount to a deprivation of due process where the state
courts are available to correct the error."). Consequently,
we conclude that the district court did not err in denying
the Rule 56(f) motion.
V.
DISMISSAL OF STATE CLAIMS
Finally, we consider whether judgment was properly
entered on the pendent state law claims. The district
court's summary judgment order consists of the following
notation on the first page of defendants' motion: "Allowed,
Nestor Colon Medina & Sucesores, Inc. v. Custodio, 964 F.2d
32 (1st Cir. 1992), PFZ Properties, Inc. v. Rodriguez, 928
F.2d 28 (1st Cir. 1991). Judgment may be entered for
defendants." We read that order as resting on Nestor Colon
and PFZ Properties, not as an endorsement of all arguments in
defendants' brief.
The reference to Nestor Colon and PFZ Properties
makes clear that the district court considered Colonial's
1983 claims. Nothing, however, indicates that the state
civil rights and tort claims were weighed. That adequate
state appeals procedures and remedies might protect a
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developer's federal due process rights, and thus preclude
1983 litigation, see Nestor Colon, 964 F.2d at 40, 45; PFZ
Properties, 928 F.2d at 31-32, is not germane to Colonial's
state law claims.
Although there is no indication that the district
court ever considered the pendent claims, the court's order
effectively dismissed those claims with prejudice. The
court's order on those claims was an abuse of discretion.
Defendants have not answered the complaint; there is support
in the record for the pendent claims; and Colonial has not
yet had the opportunity to engage in discovery.
Consequently, while we affirm the judgment on the 1983
claims, we vacate the judgment on the state law claims and
remand the case so that those claims will be adjudicated, or
dismissed without prejudice. See 28 U.S.C. 1367(c)
(district court may decline to exercise jurisdiction over
pendent claims if it has dismissed all federal claims);
Mercado-Garcia v. Ponce Federal Bank, 979 F.2d 890, 896 (1st
Cir. 1992); Figueroa Ruiz v. Alegria, 896 F.2d 645, 650 (1st
Cir. 1990).
It is so ordered.
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