United States Court of Appeals
For the First Circuit
No. 02-1279
JANET DONOVAN; THOMAS DONOVAN,
Plaintiffs, Appellants,
v.
CITY OF HAVERHILL; JAMES RURAK, Mayor;
JAMES FLAHERTY, Individually and as agent
of the City of Haverhill,
Defendants, Appellees,
VERIZON COMMUNICATIONS, INC.
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Torruella, Circuit Judge,
B. Fletcher,* Senior Circuit Judge,
and Lipez, Circuit Judge.
Rosemary A. Macero, with whom Macero and Associates, P.C. was
on brief, for appellants.
Gregg J. Corbo, with whom Joseph L. Tehan, Jr. and Kopelman
and Paige, P.C. were on brief, for appellees.
November 15, 2002
*
Hon. Betty B. Fletcher, of the Ninth Circuit, sitting by
designation.
TORRUELLA, Circuit Judge. Plaintiffs-appellants, Janet
and Thomas Donovan ("the Donovans"), appeal from the district
court's grant of judgment on the pleadings in favor of defendants-
appellees.1 After a thorough review of parties' briefs and the
record, we affirm the district court's determination for the
reasons stated below.
I. Background
On June 14, 2000, the Donovans submitted an application
to move their house on a public road in Haverhill. The city
responded with a list of requirements that the Donovans would have
to meet before the permit could issue, such as having the telephone
company remove the wires along the route and obtaining a foundation
permit. Once the Donovans fulfilled these initial conditions, the
Donovans contend that Flaherty and Mayor Rurak added new
requirements in bad faith. For example, Flaherty told the Donovans
that they would have to pay for the trimming of the trees along the
4.4 miles of their move route, and that they would need police and
fire department approval. In addition, Mayor Rurak asked the
Haverhill City Council to hold two hearings regarding the house
move.
On October 30, 2000, the Donovans filed an Emergency
Motion for Injunctive Relief in Essex Superior Court to force Mayor
1
Defendants include the city of Haverhill ("Haverhill"); the
mayor of Haverhill, James Rurak ("Mayor Rurak"); and Haverhill's
public works director, James Flaherty ("Flaherty").
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Rurak to issue the permit. The court denied the claim as unripe.
Then, on November 6, 2000, Mayor Rurak issued the permit, allowing
the Donovans to move their house on November 12-13, 2000. Due to
the delay created by the additional conditions, the Donovans
brought multiple claims in Essex Superior Court against defendants,
including violations of their right to travel on the public ways,
42 U.S.C. § 1983, due process, and equal protection. In addition,
they brought several state law claims. Defendants removed to
federal district court and filed a motion for judgment on the
pleadings, which the district court granted.
II. Standard of Review
We review Rule 12 dispositions de novo. Rosa v. Park
West Bank & Trust Co., 214 F.3d 213, 215 (1st Cir. 2000). This
means that "[w]e accept as true the well-pleaded factual
allegations of the complaint, draw all reasonable inferences
therefrom in the plaintiff's favor, and determine whether the
complaint, so read, sets forth facts sufficient to justify recovery
on any cognizable theory." TAG/ICIB Servs., Inc. v. Pan Am. Grain
Co., 215 F.3d 172, 175 (1st Cir. 2000).
III. Dismissal of the Complaint Without Granting Leave
to Amend and Undertake Discovery
The Donovans summarily argue that the district court
erred as a matter of law by dismissing their complaint without
granting them leave to amend and undertake discovery to avoid
dismissal. We need not reach the merits of this claim because
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plaintiffs failed to develop their argument and, consequently, have
waived it for purposes of appeal. See FDIC v. LeBlanc, 85 F.3d
815, 820 (1st Cir. 1996) (stating that "'issues averted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, [will be] deemed waived for purposes of appeal'"
(quoting Grella v. Salem Five Cent Sav. Bank, 42 F.3d 26, 36 (1st
Cir. 1994))). Other than making a bald assertion of abuse,
plaintiffs fail to explain how the district court abused its
discretion or allege what evidence they would have presented had
the court granted their request to amend. Therefore, plaintiffs
have waived this claim.
IV. Right to Travel
The Donovans contend that the right to move a building on
a public way is a subset of the right to travel and, as such, is
the fundamental right underlying their claims. Whether or not
house-moving is protected, reasonable regulation is permissible and
necessary. The ordinance and its application here did not exceed
the bounds of reasonable regulation to protect the public.
Therefore, we affirm dismissal of the Donovans' claims based on the
right to travel.
V. Section 1983 Claims
The Donovans next claim that defendants violated their
rights to equal protection and substantive due process,
constitutional violations warranting relief under 42 U.S.C.
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§ 1983.2 Plaintiffs contend that defendants violated the Equal
Protection Clause by increasing the procedural bars for plaintiffs
in contrast to another person who applied for and received a permit
in 1996.3 While we realize that a successful equal protection
claim can be brought by a "class of one," the Donovans must allege
that they have "been intentionally treated differently from others
similarly situated and that there is no rational basis for the
difference in treatment." Village of Willowbrook v. Olech, 528
U.S. 562, 564 (2000) (per curiam). The Donovans have failed to do
so.
Although the Donovans allege that, by adding conditions
to the permit application, Flaherty and Mayor Rurak acted in bad
faith and with malicious intent, they do not provide any
information about how any other party was similarly situated or
present a motive to explain why the Haverhill officials would treat
them arbitrarily or irrationally. Thus, the Donovans do not allege
the elements of a viable equal protection claim. See Wojcik v.
Mass. State Lottery Comm'n, 300 F.3d 92, 104 (1st Cir. 2002)
(rejecting an equal protection claim where appellant "failed to
2
Plaintiffs have alleged no cognizable causes of action against
Flaherty or Mayor Rurak in their individual capacity for violations
of plaintiffs' civil rights. Therefore, we only consider the
claims asserted against Flaherty, and Mayor Rurak in their official
capacities.
3
We summarily affirm dismissal of plaintiff's other section 1983
claims on grounds identical to those of the district court.
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identify specific evidence concerning similarly situated
individuals who received more lenient treatment . . . or to adduce
evidence of an arbitrary or irrational motive" for the adverse
action).
VI. Vagueness Challenge to Local Ordinance
Lastly, the Donovans claim that the Haverhill ordinance
governing the moving of buildings, Haverhill General Code, ch. 123-
1, is void for vagueness on its face because it vests unfettered
discretion in Mayor Rurak to grant permits.4 We find that this
claim lacks merit.
To prevail in a facial challenge to an ordinance that
does not regulate constitutionally protected conduct, plaintiffs
must surmount a dauntingly high hurdle. See Village of Hoffman
Estates v. Flipside, Hoffman Estates, Inc, 455 U.S. 489, 498-99
(1982). Plaintiffs "must demonstrate that the law is impermissibly
vague in all of its applications." Whiting v. Town of Westerly,
942 F.2d 18, 22 (1st Cir. 1991); cf. United States v. Salerno, 481
U.S. 739, 745 (1987) (stating that "[a] facial challenge to a
legislative Act is, of course, the most difficult challenge to
mount successfully"). Thus, the Donovans have the formidable task
of showing that "'no standard of conduct is specified at all.'"
4
Plaintiffs also summarily argue that the Haverhill ordinance, as
applied, violates equal protection. Plaintiffs have waived this
claim because they fail to make any effort at developed
argumentation. See FDIC v. LeBlanc, 85 F.3d 815, 820 (1st Cir.
1996).
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Village of Hoffman Estates, 455 U.S. at 495 n.7 (quoting Coates v.
City of Cincinnati, 402 U.S. 611, 614 (1971)). Plaintiffs cannot
make this showing.
As a preliminary manner, we note that the terms of the
Haverhill ordinance clearly specify the conduct that is prohibited:
plaintiffs cannot move their house without a permit.5 Cf. City of
Chicago v. Morales, 527 U.S. 41, 57 (1999) (striking down an
ordinance for vagueness because it failed to describe what
"loitering" was permissible and what was prohibited).
Furthermore, contrary to plaintiffs' assertions, the
mayor's discretion in the grant of permits is not unrestrained.
Applicable Massachusetts law dictates that "selectmen" grant
permits "upon such terms as in their opinion the public safety may
require." Mass. Ann. Laws ch. 85, § 18 (2002) (emphasis added).6
In addition to restricting the exercise of the mayor's discretion
5
Haverhill General Code, ch. 123-1 states the following:
No building or structure shall be moved over or through
any public street or way in the city except under a
permit granted by the Mayor, and every such permit shall
state the streets or ways through or over which and the
time within which the building or other structure shall
be moved and also every other provision and condition
which the Mayor shall deem necessary.
6
In its entirety, section 18 reads: "No person shall move a
building in a public way without written permission from the
selectmen or road commissioners, to be granted upon such terms as
in their opinion the public safety may require; and the superior
court shall have jurisdiction in equity to enforce this section."
Massachusetts applies this section to cities as well as towns.
Commonwealth v. Byard 200 Mass. 175, 176 (1908).
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to public safety concerns, section 18 provides applicants with
notice that to secure a moving permit they may have to meet
requirements necessary to ensure public safety. As we have stated
before, "[w]here a standard is not so vague that reasonably
intelligent people 'must necessarily guess at its meaning,' we must
presume that state courts will give it a limiting construction that
will preserve its facial constitutionality." Fantasy Book Shop,
Inc. v. City of Boston, 652 F.2d 1115, 1123 (1st Cir. 1981)
(quoting Broadrick v. Oklahoma, 413 U.S. 601, 607 (1973)).
The grant of discretion in the issuance of moving permits
is a practical necessity. Because every house and route is
different, an individual assessment of the impact of each move on
the community is required. See id. (stating that a vague factor
"may be reasonably necessary to embrace all of its legitimately
intended objectives without creating an encyclopedic and unwieldy
ordinance"); see also Brasslett v. Cota, 761 F.2d 827, 838 (1st
Cir. 1985) (explaining that the Supreme Court and the First Circuit
have upheld "catch-all" clauses where it is impractical to
formulate an exhaustive list of actionable conduct). In this case,
the Haverhill ordinance necessarily contained a "catch-all"
provision because inclusion of all possible conditions would have
created an "unwieldy ordinance." Further, section 18 put
plaintiffs on notice that receipt of a moving permit would be
subject to meeting conditions reasonably related to the public
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safety, and, in accordance with the terms of the law, city
officials only imposed conditions so related.
VII. Conclusion
For the foregoing reasons, we affirm the district court's
grant of judgment on the pleadings to defendants.7 Costs are
assessed against plaintiff-appellants.
7
To the extent that plaintiffs make any state claims, we
interpret the district court order as declining to exercise
supplemental jurisdiction over the pendent state claims pursuant to
28 U.S.C.A. § 1367(c)(3) (2000).
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