Grossi Development LLC et al v. Town of Rehoboth et al

Filing 37

Judge Rya W. Zobel: ORDER entered granting 24 Motion to Dismiss (Urso, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 10-10728-RWZ

GROSSI DEVELOPMENT LLC and
THOMAS GROSSI
v.
TOWN OF REHOBOTH, et al.

ORDER
August 25, 2011
ZOBEL, D.J.
Plaintiff Thomas Grossi, through his company and plaintiff Grossi Development
LLC, proposed a low-income housing development in Rehoboth, Massachusetts,
consisting of 44 single-family homes. Plaintiffs were unable to secure necessary
permits from the Zoning Board of Appeals and the Conservation Commission. They
now sue the Zoning Board, the Commission, 13 current and former members of the
Commission, the Town of Rehoboth, and the town administrator, in a 102-count
complaint brought under 42 U.S.C. § 1983 alleging that the denial of the permits
violated constitutional guarantees of procedural and substantive due process and
equal protection. Now pending is a motion to dismiss plaintiffs’ amended complaint
filed by all defendants save former Commission member Roger Breault.

I.

Background
So far as can be gleaned from the limited factual averments in the complaint,

plaintiffs applied on April 27, 1999, to the Zoning Board of Appeals for a Mass. Gen.
Laws “40B” comprehensive development permit. Numerous public hearings were held
at which, plaintiffs allege, they were denied an opportunity to be heard, and the permit
application was denied on September 14, 1999. Multiple appeals to the Housing
Appeals Committee and the Massachusetts Superior Court followed. These appeals
were partially successful and some form of comprehensive permit issued. In 2009 a
different government body, the Conservation Commission, denied an “application for
superseding conditions” which was required because the proposed housing
development encroached on wetlands. Plaintiffs allege that “various members of the
Zoning Board of Appeals and other Town Officials” opposed the project “and made
remarks such as ‘[W]e are not going to allow Rehoboth to become South Providence.’”
Am. Compl. “Factual Allegations” ¶ 6, Docket # 17. This statement by an unidentified
individual at an unidentified time and place is, plaintiffs argue, a coded reference to
race.
II.

Analysis
“To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544 (2007)). The facts must allow the court to draw a
reasonable inference that defendants are liable for the alleged misconduct. Id. A
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simple recitation of elements, or statements of legal conclusion, will not suffice. Iqbal,
129 S. Ct. at 1949; see SEC v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010) (“If the
factual allegations in the complaint are too meager, vague, or conclusory to remove the
possibility of relief from the realm of mere conjecture, the complaint is open to
dismissal”).
Plaintiffs assert that they were denied procedural due process before the Zoning
Board which, in addition, acted in contravention of orders from the Housing Appeals
Committee and the Massachusetts Superior Court. Procedural due process protections
are triggered when there is a deprivation of a property interest; notice and a hearing
are required and may be sufficiently provided for with post-deprivation process. See,
e.g., SFW Arecibo, LTD. v. Rodriguez, 415 F.3d 135, 139 (1st Cir. 2005). Assuming
that denials of the permit applications constituted a deprivation of a protected property
interest, plaintiffs could, and in fact did, appeal those denials to the Housing Appeals
Committee and the Massachusetts Superior Court, which constitutes constitutionally
sufficient process and is an adequate post-deprivation remedy for any actions of the
Zoning Board that may have contravened appellate orders issued by the
Commonwealth. While the factual allegations concerning procedural due process and
the Zoning Board are scarce and fail to state a claim, such allegations are entirely
absent, and also therefore insufficient, in regards to the other defendants.
Plaintiffs next contend that the denials of a comprehensive permit by the Zoning
Board and an application for superseding conditions by the Conservation Commission
constituted violations of substantive due process. The constitutional right to
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substantive due process protects against an abuse of government power that shocks
the conscience. Id. at 141. Plaintiffs’ sole non-conclusory allegation conceivably
indicative of discriminatory intent, the all but unattributed remark that “[w]e are not
going to allow Rehoboth to become South Providence,” falls far short of plausibly
suggesting the denial of the permit and application shocks the conscience. Further,
there is nothing in the complaint, even given a generous reading, that suggests this
remark could be attributed to the Conservation Commission and its members, or could
give rise to municipal liability for the Town of Rehoboth.
Finally, a single conclusory paragraph asserts an equal protection violation
because plaintiff was treated differently than two other “similar applications.” As with
the substantive due process claims, the complaint lacks adequate factual heft to
support a plausible equal protection claim. See id. at 141-42.
III.

Conclusion
The motion to dismiss (Docket # 24) is ALLOWED.

/s/Rya W. Zobel
RYA W. ZOBEL
UNITED STATES DISTRICT JUDGE

August 25, 2011
DATE

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