Miller v. Wenham, MA, et al

Filing

OPINION issued by Rogeriee Thompson, Appellate Judge; Bruce M. Selya, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Published. [15-2337]

Case: 15-2337

Document: 00117041167

Page: 1

Date Filed: 08/10/2016

Entry ID: 6024424

United States Court of Appeals
For the First Circuit
No. 15-2337
LAWRENCE MILLER,
Plaintiff, Appellant,
v.
TOWN OF WENHAM, Commonwealth of Massachusetts; JEREMY COFFEY,
Member of the Zoning Board of Appeals - Town of Wenham; ANTHONY
M. FEEHERRY, Member of the Zoning Board of Appeals - Town of
Wenham; SHAUN HUTCHINSON, Member of the Zoning Board of Appeals
- Town of Wenham; 110, INC.,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]

Before
Thompson, Selya, and Kayatta,
Circuit Judges.

Benjamin B. Tymann, with whom Tymann LLC - Law & Compliance
was on brief, for appellant.
Joseph A. Padolsky, with whom Douglas I. Louison and Louison,
Costello, Condon & Pfaff, LLP were on brief, for appellees Town of
Wenham, Jeremy Coffey, Anthony M. Feeherry, and Shaun Hutchinson.

August 10, 2016

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KAYATTA,

Circuit

Page: 2

Judge.

Date Filed: 08/10/2016

Plaintiff

Entry ID: 6024424

Lawrence

Miller

challenges under both state and federal law the manner in which
the Town of Wenham, Massachusetts (the "Town") has chosen not to
prohibit a company named 110, Inc. from operating a substance abuse
treatment facility on land that abuts Miller's residence.

After

Miller filed this lawsuit in Massachusetts Superior Court, the
defendants removed it to federal court, and then moved to dismiss
Miller's complaint under Federal Rule of Civil Procedure 12(b)(6).
The district court determined that the complaint failed to state
a claim under 42 U.S.C. § 1983 for the deprivation of property
without due process.

The court also dismissed one state law claim

as moot, and remanded a remaining state law claim to state court.
For the following reasons, we affirm the dismissal of the federal
claim, vacate the determination that one state law claim is moot,
and otherwise affirm the remand of the remaining state law claim
to state court.
I.

Background

Because this appeal is from a decision granting a motion
to dismiss, we take as true the well-pleaded allegations as they
appear in the complaint.

Guerra-Delgado v. Popular, Inc., 774

F.3d 776, 780 (1st Cir. 2014).
Miller resides at 66 Topsfield Road in the Town of
Wenham.

His property abuts property used by 110, Inc.

On that

abutting property sits a single-family home with a carriage house.

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Both

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properties

District.

are

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located

Date Filed: 08/10/2016

within

the

Town's

Entry ID: 6024424

Residential

According to Miller, under the Town's zoning by-laws,

commercial facilities, multi-family housing, and lodging houses
are

not

allowed,

either

by

right

or

special

permit,

in

the

Residential District.
In the fall of 2013, 110, Inc. approached the Town
Administrator and the Town Planner about opening a substance abuse
treatment facility on the abutting property.

110, Inc. argued

that it did not need to secure a special permit, variance, or any
other discretionary approval from the Town to operate such a
facility on the abutting property.

Rather, it contended that its

proposed use of the abutting property would be by right under the
so-called Dover Amendment, Mass. Gen. Laws ch. 40A, § 3, ¶ 2, which
provides

preferential

zoning

educational uses of land.

treatment

to

religious

and

110, Inc. claimed that its proposed

land use fell under the educational category and that it was,
therefore, exempt from any Town board permitting process.
On November 17, 2013, the Town's lawyer informed the
Town Administrator that he had accepted 110, Inc.'s assertion that
the Dover Amendment applied to 110, Inc.'s proposed land use. Soon
thereafter, a Town official informed 110, Inc. that it could open
for business.

The Town officials reached this decision without

holding a public hearing and without informing Miller or any other
Town resident.

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At the end of April 2014, Miller observed that 110, Inc.
was operating a substance abuse treatment facility named Cross
Keys Retreat next door to his residence.

Miller promptly filed

with the Town's Building Inspector (who was also the Town's Zoning
Enforcement Officer) a Request for Zoning Enforcement pursuant to
Mass. Gen. Laws. ch. 40A, § 7, ¶ 1.

Miller's request stated that

the treatment facility was operating as a commercial operation
that housed up to fourteen people at a time, and was therefore not
compliant with the Town's zoning by-laws that restricted such land
use in the Residential District.

Miller supported his request

with legal memoranda and other documentation arguing that the
facility was not covered under the Dover Amendment and, even if it
were, that it was still subject to reasonable restrictions that
could be imposed by the Town after a public hearing.

At bottom,

Miller argued that the Town's unilateral, non-public approval of
110, Inc.'s use was unlawful.
On June 5, 2014, the Building Inspector held a public
meeting to give interested parties an opportunity to be heard on
the question of whether 110, Inc.'s operation was protected under
the Dover Amendment.

On July 2, 2014, after considering the oral

statements and written submissions made by counsel for 110, Inc.,
Miller, and members of the public, the Building Inspector granted
Miller's request to enforce the zoning ordinance against 110, Inc.,
finding that the facility was not an "educational use" under the

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Dover Amendment or otherwise permitted by that statute or the
Town's zoning by-laws.

The Building Inspector therefore ordered

the facility to cease operations, but stayed the order to allow
110, Inc. to appeal the decision to the Town's Zoning Board of
Appeals ("ZBA").
110, Inc. responded by first filing a complaint in the
U.S. District Court for the District of Massachusetts.
complaint,

110,

Inc.

alleged

that

the

Town,

in

In its

addition

to

violating the Dover Amendment, had illegally discriminated against
the

facility's

residents

under

the

Federal

Fair

Housing

Act

("FHA"), 42 U.S.C. § 3601 et seq.; the Americans with Disabilities
Act ("ADA"), id. § 12101 et seq.; and Chapter 40A, section 3, of
the Massachusetts General Laws.

Compl. at 6-8, 110, Inc. v. Town

of Wenham, No. 14-cv-13013 (D. Mass. July 16, 2014), ECF No. 1.
In addition to seeking compensatory, declaratory, and punitive
damages and relief, 110, Inc. also filed an "emergency motion"
seeking an injunction barring the Town from interfering with 110,
Inc.'s operation of the facility and enjoining the Town from
requiring it to appeal the Building Inspector's decision to the
ZBA.

Motion for Emergency Injunctive Relief at 2, 110, Inc. v.

Town of Wenham, No. 14-cv-13013 (D. Mass. July 16, 2014), ECF
No. 3.
On July 29, 2014, the district court held a hearing in
110, Inc.'s case against the Town on the emergency motion and

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decided to hold an expedited trial on the merits of 110, Inc.'s
claims, which it set for September 3, 2014.
August

1,

decision

2014,
to

considering

the

110,
ZBA.

numerous

Inc.

appealed

After
written

the

holding

a

A few days later, on
Building
public

submissions,

the

Inspector's
hearing
ZBA

and

denied

110, Inc.'s appeal on September 3, 2014, agreeing with the Building
Inspector that 110, Inc.'s use of the facility did not qualify as
an "educational use" under the Dover Amendment.
At the request of the parties in 110, Inc.'s case against
the Town, the court continued the September 3 trial date to the
end of September. During this time, the Town and 110, Inc. entered
into settlement discussions.

On September 5, 110, Inc.'s counsel

submitted a written request to both the Town Administrator and
Building Inspector requesting a "reasonable accommodation" under
the ADA and FHA.

This request set no limitations on 110, Inc.'s

proposed use of the property as a substance abuse treatment
facility, except that it capped at fourteen the number of clients
for whom 110, Inc. could provide services at any one time.
A few days later, on September 9, counsel for an investor
in 110, Inc., who held title to the parcel on which the company
operated, sent a demand letter to the Town Administrator, Town
Counsel, and Special Town Counsel, claiming that the decisions by
the Building Inspector and the ZBA had caused him financial loss
and threatening to bring a separate lawsuit against the Town if it

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did

not

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allow

the

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facility

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to

its

continue

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operations.

On

September 11, the Town relented, and the Building Inspector signed
110, Inc.'s "reasonable accommodation" request.

This act, Miller

alleges, was done on the advice of the Town's lawyers for the
purpose of resolving the ongoing federal litigation brought by
110, Inc. and to avoid the further litigation that had been
threatened by the owner of the abutting property.

Neither the

Town's receipt of 110, Inc.'s "reasonable accommodation" request
nor the Building Inspector's decision to sign it were disclosed at
the time to Miller or any member of the public.
Soon thereafter, on September 26, the Town and 110, Inc.
entered into a Settlement Agreement resolving 110, Inc.'s lawsuit
against the Town.

The terms of the Agreement included (1) a

$125,000 payment from the Town to 110, Inc., (2) an agreement that
by virtue of a "reasonable accommodation" 110, Inc. could continue
operating the facility in accordance with the limitations set forth
in its September 5 request for a "reasonable accommodation,"
(3) an agreement that the abutting property "is exempt from any
zoning

restrictions

that

would

interfere

with"

the

services

provided by the facility, (4) a promise from the Town that it would
not "obstruct or impede in any way" the facility's operations, and
(5) the withdrawal of the Building Inspector's Dover Amendment
decision and an agreement that 110, Inc. could pursue Dover
Amendment approval in the future.

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In the Agreement, the parties

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also agreed that 110, Inc. would withdraw its appeal of the
Building Inspector's Dover Amendment order and that the matter
before the ZBA "is hereby dismissed." At this time, neither Miller
nor any member of the public was informed of the Settlement
Agreement, but they did learn that the Building Inspector had
recently acceded to 110, Inc.'s position that the ADA and FHA
called for accommodating 110, Inc.'s use under the zoning laws.
On October 10, Miller and another neighbor filed their
own appeal to the ZBA, challenging the new position of the Building
Inspector that 110, Inc.'s unrestricted use of the property was
allowed

as

a

reasonable

accommodation

under

the

FHA.

On

October 20, unaware of the provision in the Settlement Agreement
that the Building Inspector's July 2 Dover Amendment decision be
withdrawn and 110, Inc.'s appeal of that decision to the ZBA be
dismissed,

the

ZBA

filed

its

written

decision

affirming

the

Building Inspector's decision to reject 110, Inc.'s claim of use
by right under the Dover Amendment.
Just

over

two

weeks

later,

Miller

learned

of

the

existence of the Settlement Agreement after his counsel reviewed
public records that the Town produced on November 6, 2014.

In

those records, the Town also disclosed a memo sent by the Building
Inspector on October 23, 2014, to 110, Inc., Town Counsel, and a
ZBA member, in which the Building Inspector stated that the Town's
Board

of

Selectmen

had

ratified

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the

Settlement

Agreement

on

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October 7, 2014. This ratification had not been publicly disclosed
prior to November 6.
After holding several days of hearings and considering
written

submissions

on

Miller's

challenge

to

the

Building

Inspector's acquiescence to 110, Inc.'s position under the FHA,
and after learning of the Settlement Agreement, the ZBA ultimately
upheld

the

Building

Inspector's

grant

of

a

reasonable

accommodation to 110, Inc., albeit with certain limitations and
requirements on the facility's operation.

These limitations and

requirements concerned aspects of the facility's operation such as
the facility's admission criteria, security measures, hours of
outdoor operations, screening and fencing plan, noise reduction
plan,

signage

and

parking,

outdoor

lighting,

and

liability

insurance.
Miller then filed in state court the complaint that is
the subject of this appeal.

In his complaint, Miller alleged four

causes of action, including a federal procedural due process claim
(Count II) and a claim for a declaratory judgment to annul the
land

use

(Count IV).

approvals

contained

in

the

Settlement

Agreement

After the Town removed the case to federal court, the

district court granted its motion to dismiss Miller's federal
procedural due process claim and his state law declaratory judgment
claim, and remanded to state court the remaining state law claim
challenging the ZBA's decision under Mass. Gen. Laws ch. 40A, § 17

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(Count I).1

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The district court found that the procedural due

process claim was not cognizable and that the declaratory judgment
claim had been rendered moot by the June 2, 2015, decision of the
ZBA.

We now consider Miller's appeal from the dismissal of these

two claims.
II.

Analysis

We review de novo a district court's dismissal of claims
under Federal Rule of Civil Procedure 12(b)(6).

Cardigan Mountain

Sch. v. N.H. Ins. Co., 787 F.3d 82, 84 (1st Cir. 2015).

In doing

so, "we accept as true all well-pled facts alleged in the complaint
and draw all reasonable inferences in [the plaintiff's] favor."
Evergreen Partnering Grp., Inc. v. Pactiv Corp., 720 F.3d 33, 36
(1st Cir. 2013).

To survive a Rule 12(b)(6) motion to dismiss,

the complaint must contain "enough facts to state a claim to relief
that is plausible on its face."

Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007).
A.

Procedural Due Process
Miller brings his sole federal claim by way of 42 U.S.C.

§ 1983.

To succeed, he must show:

(1) that the complained-of

conduct was committed under the color of state law, and (2) that
such conduct violated his constitutional or federal statutory

1

Prior to the district court's order on the Town's motion to
dismiss, Miller had voluntarily dismissed Count III of the
complaint alleging a violation of due process under Article X of
the Massachusetts Declaration of Rights.

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rights.
1987).

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Chongris v. Bd. of Appeals, 811 F.2d 36, 40 (1st Cir.
In an effort to make such a showing, he alleges that in

making three decisions under color of state law, the Town violated
his

rights

under

the

Due

Process

Clause

of

the

Fourteenth

Amendment, which provides that no "State [shall] deprive any person
of life, liberty, or property, without due process of law."
Const. amend. XIV, § 1.
order:

U.S.

Those decisions were, in chronological

(1) the decision by several Town officials in November

2013 that 110, Inc.'s proposed use of the abutting property was an
educational use under the Dover Amendment, and therefore lawful
under the zoning ordinance; (2) the decision by the Building
Inspector in September 2014 to accede to 110, Inc.'s claim that
federal law required the Town to accommodate 110, Inc.'s desire to
operate as intended; and (3) the decision by the Town to enter
into the Settlement Agreement with 110, Inc., pursuant to which
the Town agreed, in relevant substance, to recognize the lawfulness
of 110, Inc.'s use of the property as a reasonable accommodation
under federal law, and to make no effort to obstruct or impede
110, Inc.'s operation of the facility on the property.
The Town does not argue that any of those decisions were
anything other than state action.

It does, however, contend that

none of those decisions violated Miller's constitutional right to
procedural due process.

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To plead that the state violated his constitutional
right to procedural due process, Miller "must allege facts which,
if true, establish that [he] (1) had a property interest of
constitutional magnitude and (2) was deprived of that property
interest without due process of law."
717 F.3d 52, 54–55 (1st Cir. 2013).
of

examining

whether

constitutionally

and

protected

in

Clukey v. Town of Camden,
Our inquiry, then, consists

what

property

manner

interest

Miller
relevant

had
to

a
his

claim, whether and to what extent the Town deprived him of that
interest, and whether the procedures provided him were sufficient.
"Property

interests

.

.

.

are

not

created

by

the

Constitution[,] [but] rather . . . are created and their dimensions
are defined by existing rules or understandings that stem from an
independent source such as state law--rules or understandings that
secure certain benefits and that support claims of entitlement to
those benefits."

Bd. of Regents of State Colls. v. Roth, 408 U.S.

564, 577 (1972).

So, we must look at applicable Massachusetts law

to determine whether and to what extent "an entitlement grounded
in state law exists, recognizing that 'the types of interests
protected as property are varied and, as often as not, intangible,
relating to the whole domain of social and economic fact.'"
Clukey, 717 F.3d at 55 (quoting Logan v. Zimmerman Brush Co., 455
U.S. 422, 430 (1982)).

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Massachusetts law allows municipalities to establish
zoning ordinances.

Mass. Gen. Laws ch. 40A, § 5, ¶ 1.

The aim of

such ordinances "is to stabilize property uses in the specified
districts

.

.

.

and

not

to

permit

changes,

exceptions

or

relaxations except after such full notice as shall enable all those
interested to know what is projected and to have opportunity to
protest."

Moore v. Cataldo, 249 N.E.2d 578, 580 (Mass. 1969)

(quoting Kane v. Bd. of Appeals of Medford, 173 N.E. 1, 3 (Mass.
1930)).

The Town, in turn, has adopted a Zoning By-Law, which

requires that "the use of all premises in the Town[] shall be in
conformity with the provisions of the Zoning By-Law" and provides
that "[n]o building, structure, or land shall be used for any
purpose or in any manner other than is expressly permitted within
the district in which such building, structure or land is located."
Wenham, Mass. Zoning By-Law ("By-Law") § 1.4 (2014).
Massachusetts law also addresses the enforcement of
zoning regulations.

In the first instance, it charges an "officer

or board" in each municipality (such as the Town's Building
Inspector) "with the enforcement of the zoning ordinance or bylaw."

Mass. Gen. Laws ch. 40A, § 7, ¶ 1.

precisely what we have here:

Section 7 anticipates

the failure of an officer (the

Building Inspector) on his or her own initiative to enforce the
law as a person (Miller) wishes it to be enforced.

In such an

instance, § 7 provides that a person may "request[] in writing"

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that the officer enforce the law against another person.

Entry ID: 6024424

Id.

If

the officer fails to act on the request, he must notify the
requesting party of the decision and "the reasons therefor," id.,
and

the

requesting

party,

if

"aggrieved,"

may

"appeal

[that

decision] to the permit granting authority as the zoning ordinance
or by-law may provide," id. § 8.
Massachusetts

law

also

allows

the

"permit

granting

authority" in each municipality to grant variances from applicable
zoning laws, subject to certain conditions.

Id. § 10.

In

addition, municipalities shall, in their zoning ordinances or
by-laws, designate specific types of uses that shall only be
permitted in certain districts upon the issuance of so-called
"special permits."

Id. § 9, ¶ 1.

The "permit granting authority"

is charged with issuing such permits after providing notice and a
hearing to members of the public.

Id. §§ 9, 11.

Persons aggrieved

by a decision of the "permit granting authority" may appeal to the
land or superior court.

Id. § 17.

Finally, local zoning ordinances and by-laws must be
construed in accordance with and subject to certain statewide laws,
see id. § 5, ¶ 1, and, under the Supremacy Clause of the United
States Constitution, federal law, U.S. Const., art. VI, cl. 2.
Relevant here are the Dover Amendment, providing, in part, that
local zoning ordinances or by-laws shall not prevent uses of land
for religious or educational purposes when the land is owned by

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certain entities, Mass. Gen. Laws ch. 40A, § 3, ¶ 2, and the
provisions

of

the

FHA

and

ADA,

requiring

the

reasonable

accommodation of certain uses of land by or for disabled persons.
See 42 U.S.C. §§ 3601 et seq., §§ 12101 et seq.
Having thus summarized the applicable law, we ask next
whether and to what extent that law creates an entitlement that
qualifies as a constitutionally protected interest.
717 F.3d at 55.

See Clukey,

Oddly, Miller's briefs on appeal do not clearly

identify precisely the property interest of which he claims to
have been deprived.

He makes passing reference to the "interest"

of "abutters" and to "abutter property interests."

He also cites

to a federal district court case in which the property interest,
under the applicable local and state law, was identified as "a
property right in the protection of his own property against
incompatible
property."

uses

of

adjacent

property

which

devalue

his

Everett v. City of Tallahassee, 840 F. Supp. 1528,

1539 (N.D. Fla. 1992).
overstated.

Certainly, though, such a description is

Property uses can easily change in many manners, even

from one use by right to another, with adverse effects on the value
of

adjoining

properties.

No

one

can

reasonably

claim

an

entitlement to be immune to all such changes.
We could perhaps read Miller as raising a more nuanced
claim:

that Massachusetts law creates a property interest in

securing enforcement of the zoning laws against currently unlawful

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uses of property that harm him, and that the Town's decision to
allow such uses by 110, Inc. deprived him of that interest without
prior notice or an opportunity to be heard.

But even if we did so

construe Miller's claim, and even if we also assumed, without
deciding, that such an interest is a constitutionally protected
property interest, we would still find no due process violation.
The Town never deprived Miller of any right to obtain enforcement
of the zoning laws against 110, Inc.

It did eventually decide not

to take enforcement action itself in light of its view that
110, Inc.'s use was lawful.

Miller himself, however, retained the

ability to seek such enforcement on his own under the abovedescribed remedial scheme provided by Massachusetts law.

Miller

was therefore not deprived of the right to have the zoning laws
enforced against 110, Inc.

He was deprived only of the ability to

enlist the support of Town administrative officials in this effort.
For three principal reasons, we find such a deprivation not to be
the type of action that requires prior notice.
First, the language of the relevant statute--Mass. Gen.
Laws ch. 40A, § 7, ¶ 1--only grants Miller the right to "request[]"
that the Building Inspector take a particular position regarding
the proposed or actual use of property.

Granting Miller the right

to make such a "request[]" implies that Miller has no right to
demand or expect that the Building Inspector himself will take the
enforcement action desired.

See Town of Castle Rock v. Gonzales,

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545 U.S. 748, 765–66 (2005) (statutory grant of right to request
enforcement of restraining order cuts against contention that
beneficiary of the order has a protected property interest in
prosecutor initiating enforcement action).
Second, under Massachusetts law, town officials, at
least those who do not sit on the "permit granting authority,"
have no power to grant any "special permit" to allow use of a
structure that would otherwise violate the zoning ordinances or
by-laws.

See Mass. Gen. Laws ch. 40A, § 9.

Rather, in this

circumstance the Building Inspector's enforcement decision is
limited to determining whether a proposed or actual use is allowed
under the law.

That decision, in turn, is reviewable by the

"permit granting authority," id. § 8, which, in the Town and with
respect to the claims in this case, is the ZBA, By-Law §§ 4.1,
4.2.3, 13.2.2 (conferring authority on the ZBA to grant "special
permits" for non-exempt educational uses of land).

The ZBA's

decisions may then be reviewed by the state courts.

See Mass.

Gen. Laws ch. 40A, § 17.

Thus, Miller had the right under this

procedure to request enforcement by the Building Inspector, to
state fully his position to the Building Inspector, to receive a
written explanation of the reasons for the denial of that request,
and to participate as a party in the administrative and judicial
reviews of the ultimate question:

Is 110, Inc.'s use of the

abutting property lawful in the absence of a special permit?

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Third,

it

would

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impractical

to

treat

Entry ID: 6024424

the

non-

enforcement decisions of the Building Inspector as the type of
decisions that must be preceded by notice and an opportunity to be
heard.

Quite literally, Wenham's Building Inspector daily makes

hundreds of decisions--by default--not to assert that current uses
of properties are unlawful.

It is unrealistic to deem each of

those decisions not to pursue enforcement action to be a potential
deprivation of a property interest for which prior notice need be
given.

See Hudson v. Palmer, 468 U.S. 517, 531-32 (1984); Parratt

v. Taylor, 451 U.S. 527, 539 (1981).
In sum, the property interest here, assuming one exists,
is in having the ordinance or by-law enforced, not in having the
Building Inspector pursue enforcement.
545 U.S. at 766.

Cf. Town of Castle Rock,

And no one deprived Miller of that interest

without notice and an opportunity to be heard.
But,

says

Miller,

Town

officials

and

the

Inspector did more than decide not to seek enforcement.

Building
Rather,

he argues, by "granting" 110, Inc. a reasonable accommodation,
they effectively gave 110, Inc. a special permit to do what it
wants.

The law is quite clear, though, that "special permits" can

only be granted by the "permit granting authority," which in this
case was the ZBA.

Miller makes no claim that the actions of Town

officials or the Building Inspector could bind the ZBA.

Indeed,

the ZBA's decision, while ultimately allowing 110, Inc.'s use of

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the abutting property as a substance abuse treatment facility,
imposed restrictions on such usage contrary to the terms of the
Settlement Agreement.
Miller also argues that, by refusing to enforce the
zoning

ordinances

and

by-laws,

and

purportedly

granting

what

Miller claims to be an invalid special permit, the Building
Inspector shifted the burden of proof in the proceeding before the
ZBA.

For example, had the Building Inspector insisted that

110, Inc.'s use was unlawful unless it obtained a special permit
from the ZBA, 110, Inc. would have had the burden to persuade all
three members of the ZBA to grant it the permit.
Laws ch. 40A, § 9, ¶ 12.

See Mass. Gen.

But, as a consequence of the Building

Inspector's decision not to require 110, Inc. to obtain a special
permit, Miller had to carry the burden of convincing a unanimous
ZBA to reverse the Building Inspector's non-enforcement decision.
Id. § 15, ¶ 4.2
We
correct;

will

i.e.,

assume

that

(without

under

deciding)

Massachusetts

that

law

the

Miller

is

Building

Inspector's decision in favor of 110, Inc. meant that Miller had
to persuade three rather than one ZBA member in order to prevail.
So, in theory, the "interest" that Miller lost was a procedural

2

Indeed, this very argument highlights the fact that the ZBA,
not the Building Inspector, was the final arbiter as to the
lawfulness of 110, Inc.'s use of the property.

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one that would have given him the potential advantage inherent in
defending against rather than challenging a zoning decision.

But

the shifting allocation of such a procedural advantage under state
law, while still leaving Miller with notice and a meaningful right
to be heard by the permit granting authority, does not constitute
a deprivation of a substantive interest protected by the Fourteenth
Amendment.

See Olim v. Wakinekona, 461 U.S. 238, 250 (1983)

(explaining that "[p]rocess is not an end in itself[,]" but that
"[i]ts constitutional purpose is to protect a substantive interest
to which the individual has a legitimate claim of entitlement");
Town of Castle Rock, 545 U.S. at 771 (Souter, J. concurring) ("[A]
[s]tate [does not] create a property right merely by ordaining
beneficial procedure unconnected to some articulable substantive
guarantee.").
In

sum,

Miller

has

not

been

deprived

of

any

constitutionally protected property interest without due process
of law.

He retained his right to initiate, receive notice of, and

participate in a ZBA proceeding challenging 110, Inc.'s use of its
property.

While he lost the advantage of having the Building

Inspector on his side, which may have shifted a greater burden of
persuasion to him, we find that he had no property interest in
having such an advantage. To rule otherwise would be to federalize
all sorts of discretionary calls made by municipal officials even
when applicable law does not render these calls binding or final.

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B.

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Declaratory Judgment Count
The

declaratory

second
judgment

claim
count,

Miller
which

presses
seeks

on
to

appeal

is

his

invalidate

the

September 26, 2014 Settlement Agreement between the Town and
110, Inc.

Finding that this claim had been rendered moot by the

June 2, 2015 decision of the ZBA, the district court dismissed it
without any further discussion.
arguing

that

the

Settlement

Miller contests this ruling,

Agreement

and

ZBA

decision

independent force and contain terms that are not coextensive.

have
The

Town, while making a conclusory argument that the district court's
mootness finding was correct, principally relies on its contention
that Miller has failed to demonstrate standing under Mass. Gen.
Laws ch. 40A, § 17, to bring this claim.
As explained above, the complaint in this case was
originally filed in state court and was removed by the Town solely
on the basis of Miller's federal procedural due process claim under
§ 1983.

Because we now affirm the district court's dismissal of

that claim, we are left, as the district court was, with a
complaint alleging two state-law claims. The first state law claim
(Count I) was brought under Mass. Gen. Laws ch. 40A, § 17 to
challenge the ZBA's "reasonable accommodation" decision.

The

second state law claim (Count IV) is the declaratory judgment count
at issue.

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On the basis of Miller's federal claim, the district
court possessed "supplemental jurisdiction" over the remaining
related state law claims.

See 28 U.S.C. § 1367(a).

When the court

dismissed the only federal claim in the case, however, it was then
required to "reassess its jurisdiction" by "engaging in a pragmatic
and case-specific evaluation of a variety of considerations that
may bear on [whether it should retain jurisdiction or remand the
case back to state court]."
672

(1st

Cir.

1998);

considerations

include

see
"the

Camelio v. Am. Fed'n, 137 F.3d 666,
28

U.S.C.

interests

economy, convenience, and comity."

§

1367(c)(3).

of

fairness,

These
judicial

Camelio, 137 F.3d at 672.

We

have said that when a federal claim upon which supplemental
jurisdiction is based is dismissed early on in the litigation,
"the balance of competing factors ordinarily will weigh strongly
in favor of declining jurisdiction over [the remaining state law
claims]."

Id.

This balance promotes comity by avoiding needless

federal decisions of state law while at the same time promoting
fairness "by procuring for [the parties] a surer-footed reading of
applicable law."

United Mine Workers of Am. v. Gibbs, 383 U.S.

715, 726 (1966).
The correctness of the district court's decision finding
Count IV moot is, in our view, a question that may depend on
whether and to what degree the ZBA's decision nullified the
Settlement Agreement entered into by other Town officials and

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ratified by the Town's Board of Selectmen.
state

law

with

Furthermore,

which

because

the

the

state

district

Entry ID: 6024424

These are questions of

courts
court

are

more

correctly

familiar.
decided

to

remand Miller's zoning challenge, little is saved by having the
district court decide the mootness issue under state law.

See

Camelio, 137 F.3d at 672 (stating that "it does not appear that
the district court's disposition of some but not all of the state
law claims will materially shorten the time . . . to resolve the
parties' dispute as the remanded claims concern the same nucleus
of operative fact as the dismissed claims").

And, if not moot,

Miller's claim for declaratory relief may also depend upon whether
he has adequately pled standing under Massachusetts General Law
Chapter 40A, as interpreted by the Massachusetts state courts.
All in all, we find no basis for deviating from the
ordinary

course

judgment count.

of

remanding

Miller's

state

law

declaratory

See id.; Desjardins v. Willard, 777 F.3d 43, 46

(1st Cir. 2015).
III.
For

the

foregoing

Conclusion
reasons,

we

affirm

the

district

court's dismissal of the procedural due process claim but vacate
its dismissal of the declaratory judgment claim.

We direct the

district court to remand what remains of this case to state court.
Each party shall bear its own costs.
So ordered.

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