Opinion
CIVIL ACTION NO. 00-11713-RWZ
July 16, 2001
MEMORANDUM OF DECISION
In 1997, plaintiff, Mrs. Inna Rubin, applied for several permits to construct a residential development on her property. After several hearings, the defendants, the members of the Town of Norton Planning Board ("Planning Board"), denied plaintiff a special permit to build in the commercial district. She appealed to the Bristol County Superior Court (the "zoning appeal") which annulled the Planning Board's denial of the permit, finding that it had acted in "extreme bad faith." The Planning Board's appeal from the Superior Court's decision is now pending in state court.
When she became disabled, her daughter, Ellen Rubin-O'Hearn, pursued the permits as her mother's attorney-in-fact. Ellen Rubin-O'Hearn filed a separate action in this court alleging various constitutional violations.
Plaintiff then filed the instant action in which she asserts various constitutional violations arising from defendants' denial of the special permit. The Complaint contains five counts: Count I asserts an equal protection claim; Counts II and III allege violations of plaintiff's procedural and substantive due process rights, respectively; Count IV alleges a violation of the First Amendment; and Count V asserts that defendants violated the Massachusetts Civil Rights Act ("MCRA"). Defendants, both in their individual and in their official capacities, move to dismiss all of plaintiff's claims.
Res Judicata
Defendants argue that, because plaintiff failed to raise these claims in the zoning appeal, she is barred from initiating this suit. Since these claims could have been brought in the earlier action, defendants maintain that, under the doctrine of res judicata and claim preclusion, plaintiff is foreclosed from splitting her claims by bringing this suit. See Chongris v. Board of Appeals of Town of Andover, 614 F. Supp. 998, 1002 (D. Mass. 1985), aff'd on other grounds, 811 F.2d 36 (1st Cir. 1987) (declining to decide the case on res judicata grounds).
The primary issue is whether Massachusetts law requires that civil rights claims be asserted in a zoning appeal. See Casagrande v. Agoritsas, 748 F.2d 47, 48 (1st Cir. 1984) (court must determine whether the law of the state would give the earlier decision preclusive effect). The operative zoning law, Mass. Gen. Laws ch. 40A, § 17, provides the exclusive remedy for judicial review of permit decisions. It requires that the appeal be brought within 20 days of the permit decision, specifies what the appeal must claim (i.e., that the decision exceeds the board's authority and a prayer for annulment), limits the relief available to the petitioner, and contains special notice requirements. I am not persuaded that the Massachusetts legislature intended to impose these limitations on civil rights and constitutional claims. There is little likelihood, for example, that the legislature would implicitly change the statute of limitations for civil rights claims from three years to a mere 20 days. This action, therefore, is not barred by res judicata.
Count II — Procedural Due Process Claim
Defendants move to dismiss plaintiff's procedural due process claim both because the plaintiff does not possess a property right in the special permit and because she did receive adequate process. In order to possess a constitutionally protected property interest in the issuance of a permit, plaintiff must demonstrate a claim of entitlement under Massachusetts state law. See Logan v. Zimmerman, 455 U.S. 422, 430 (1982). Under Massachusetts law, the greater the discretion a governmental body has to issue the permit, the less likely it is that there is a property interest in obtaining it. See, e.g., Rosenfeld v. Board of Health of Chilmark, 27 Mass. App. Ct. 621, 627 (Mass.App.Ct. 1989). While its decision may not be arbitrary, a special permit granting authority has ample discretion when deciding whether to issue a permit. See Mass. Gen. Laws ch. 40A, § 9. Thus, Massachusetts courts have consistently held that decisions regarding these types of permits are too discretionary to yield a property interest. See, e.g., K. Hovnanian at Taunton, Inc. v. City of Taunton, 37 Mass. App. Ct. 639, 646 (Mass.App.Ct. 1994); Rosenfeld, 27 Mass. App. Ct. at 627; Abbott v. Wright, 1995 WL 809945, at *3 (Mass.Super.Ct. 1995), aff'd, 40 Mass. App. Ct. 495 (Mass.App.Ct. 1996).
Even if plaintiff had a property interest in the permit, her claim would still fail because she received adequate process. Assuming that plaintiff's initial hearing before the planning board was procedurally tainted, her appeal provided her with sufficient means to correct errors and failures of the board. The existence of post-deprivation process defeats a plaintiff's procedural due process claim, since any infirmities in the original process are rectified through the subsequent appeal. See, e.g., Nestor Colon Medina Sucesores v. Custodio, 964 F.2d 32, 40 (1st Cir. 1992) (finding procedural due process claim meritless when plaintiffs had adequate post-deprivation process available to them). In this case, plaintiff not only utilized that process, but succeeded in annulling the Planning Board's decision. Because plaintiff had no property interest in the permit, and because she received sufficient procedural due process regardless, this claim must be dismissed.
Counts I and IV — Equal Protection and First Amendment Claims
Defendants move to dismiss the equal protection and first amendment claims because plaintiff only ascribed improper motives to two board members of a seven-member board. While the permit decision requires a two-thirds majority vote of the Planning Board, it is not yet clear whether the remaining board members acted in concert with the two members or if they were themselves motivated by discriminatory animus. At this early stage of the litigation, plaintiff's allegations concerning two members of the board are sufficient. See Scott-Harris v. City of Fall River, 134 F.3d 427, 438 (1st Cir. 1997) ("Where . . . a plaintiff alleges that a city's councilors connived to victimize her . . . it may be overly mechanistic to hold her to strict proof of the subjective intentions of a numerical majority of council members."), rev'd on other grounds, 523 U.S. 44 (1998). While, ultimately, plaintiff needs to show "(a) bad motive on the part of at least a significant bloc of [board members], and (b) circumstances suggesting the probable complicity of others," at this point, claims about only two board members are adequate to survive a motion to dismiss. Id.
Defendants also argue that the factual allegations supporting these claims fail to meet the heightened pleading standard required for claims alleging discriminatory animus. See Judge v. City of Lowell, 160 F.3d 67, 75 (1st Cir. 1998) (citation omitted). Indeed, plaintiff's complaint contains only the barest of allegations. In her brief, however, plaintiff alludes to specific facts which, if included in the complaint, might be sufficient to withstand a motion to dismiss. For this reason, plaintiff is granted leave to amend her complaint to provide the necessary detail to support these claims.
These facts consist of specific comments made by defendants that suggest both religious bias and retaliation for the exercise of free speech.
Count III — Substantive Due Process Claim
Plaintiff may bring a substantive due process claim under either of two theories. Under the first, she must allege the deprivation of a constitutionally protected property interest. Under the second, she must demonstrate that the government's conduct "shocks the conscience." See Brown v. Hot, Sexy Safer Prods., Inc., 68 F.3d 525, 531 (1st Cir. 1995) (citations omitted), cert. denied, 516 U.S. 1159 (1996). As discussed earlier, plaintiff does not possess a property interest, so she may not pursue her claim under the first theory. With respect to the second theory, based on the thin allegations in the complaint, defendants' actions do not rise to the level of conscience-shocking conduct. In this respect as well, plaintiff has alluded to evidence that, if included in her complaint, may imply conduct that shocks the conscience. As with the claims above, plaintiff will be permitted to amend her complaint.
Count V — Massachusetts Civil Rights Act Claim
In order to maintain her claim under the MCRA, Mass. Gen. Laws ch. 12, § 11I, plaintiff must demonstrate that "(1) [her] exercise or enjoyment of rights secured by the Constitution or the laws of either the United States or the Commonwealth, (2) were interfered with, or attempted to be interfered with, and (3) that the interference or attempted interference was by 'threats, intimidation or coercion.'" Murphy v. Town of Duxbury, 40 Mass. App. Ct. 513, 518 (Mass.App.Ct. 1996) (citation omitted). Whether plaintiff is able to meet the first prong is obviously dependent on her ability to maintain the constitutional claims discussed above, which, at a minimum, would require her to amend the complaint. To allege a scheme of harassment sufficient to meet the third prong of the test, plaintiff must proffer "some evidence of animus against [her] or [her] project and an attempt to thwart the project through adverse administrative action unrelated to the board's legitimate concerns." Id. The specific factual allegations discussed earlier might be sufficient to meet this standard. Plaintiff, therefore, will also be permitted to amend her complaint with respect to her MCRA claim. Defendants in their Official Capacities
Defendants filed a separate motion to dismiss all claims made against them in their official capacities. Municipal liability can attach for injuries caused by a single decision if it was made by those who possess the final authority on the matter. See, e.g., Small v. Inhabitants of City of Belfast, 796 F.2d 544, 552-53 (1st Cir. 1986) (announcing First Circuit's adherence to the "final authority" approach); Lasota v. Town of Topsfield, 979 F. Supp. 45, 49 (D.Mass. 1997). The Planning Board clearly does have final authority to issue permits subject only to appeals to state courts. See Mass. Gen. Laws ch. 40A, § 17. It also has the power to adopt and amend rules relative to issuing permits, and it makes policy choices regarding whether a permit is "socially and economically desirable" or "satisf[ies] an existing need." See Norton Zoning By-Law § 10.10; Mass. Gen. Laws ch. 40A, § 9. On the existing record, and for the purposes of a motion to dismiss, the Planning Board had the final policymaking authority for denying plaintiff's permit. Defendants may, therefore, be sued in their official capacities.
Accordingly, defendants' motion to dismiss is allowed as to Count II, the procedural due process claim. It is also allowed as to the remaining counts (Counts I, III, IV, and V), but plaintiff is granted 20 days to file an amended complaint as to those claims. The motion to dismiss all claims against defendants only in their official capacities is denied. So ordered.