Martone Place, LLC et al v. City of Springfield et al

Filing 38

Judge Michael A. Ponsor: ORDER entered. The Report and Recommendation (Dkt. No. 31), upon de novo review, is hereby ADOPTED in its entirety. The court, in its discretion, declines to exercise jurisdiction over Plaintiffs' one remaining state cl aim. Defendants' motion to dismiss (Dkt. No. 10) is hereby ALLOWED, as follows: Counts I and II of Plaintiffs' complaint are dismissed with prejudice based on their lack of merit; Counts III, V, and VI are dismissed with prejudice based on the lack of any objection to the Report and Recommendation; and Count IV is dismissed without prejudice to its refiling in state court. The clerk will enter judgment for Defendants. This case may now be closed. It is So Ordered. (See attached order for details.) (Attachments: # 1 Report and Recommendations) (Kaplan, Jennifer)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MARTONE PLACE, L.L.C. AND HDC FOUR,
L.L.C.,
Plaintiffs
v.

CITY OF SPRINGFIELD, CHRISTOPHER
CIGNOLI, PHILIP DROMEY, STEVE
DESILETS, AND ALLAN CHWALEK,
Defendants

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)
)
)
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) Civil Action No. 3:16-cv-30170-MAP
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REPORT AND RECOMMENDATION REGARDING DEFENDANTS' MOTION TO
DISMISS
(Dkt. No. 10)
ROBERTSON, U.S.M.J.
I.

INTRODUCTION

Plaintiffs Martone Place, L.L.C. ("Martone") and HDC Four, L.L.C. ("HDC")
(collectively "Plaintiffs") own abutting properties at 36 and 60 Martone Place and 575 St. James
Avenue in Springfield, Massachusetts. Martone contracted with the Massachusetts Department
of Transportation ("MassDOT") to construct a building at 36 Martone Place and to lease it to
MassDOT for a new Registry of Motor Vehicles building ("RMV"). In the aftermath of the
cancellation of the contract, Plaintiffs have sued the City of Springfield, and its Department of
Public Works ("DPW") director Christopher Cignoli, Office of Planning and Economic
Development ("OPED") director Philip Dromey, Building Commissioner Steve Desilets, and
former DPW director Allan R. Chwalek (collectively referenced herein as "City Officials" or
"Defendants") individually and in their official capacities alleging that they "intentionally and

1

maliciously intended to injure [Plaintiffs] to prevent the development of the RMV and cause the
termination of [Plaintiffs'] lease with MassDOT" (Dkt. No. 1 ¶ 129).
The six count complaint presents two federal causes of action: a claim under 42 U.S.C. §
1983 for violating the Fifth and Fourteenth Amendments to the United States Constitution based
on Defendants' conspiracy to deprive Plaintiffs of their procedural and substantive due process
rights (Count I); and a claim under 42 U.S.C. §§ 1983 and 1985 for conspiring to violate the
Equal Protection Clause (Count II). Plaintiffs' pendant state law claims allege a violation of the
Massachusetts Civil Rights Act ("MCRA"), Mass Gen. Laws ch. 12, §§ 11H, 11I (Count III),
tortious interference with contractual relations (Count IV), and a constructive taking (Count VI).
In addition, Plaintiffs seek a declaratory judgment (Count V).1
Defendants' motion to dismiss the complaint under Fed. R. Civ. P. 12(b)(6) has been
referred to this court for a report and recommendation (Dkt. Nos. 10, 22 at 4). See 28 U.S.C.
§636(b)(1)(b); Fed. R. Civ. P. 72. For the reasons detailed below, this court recommends that
Defendants' motion be GRANTED as to Counts I and II, which are the only federal claims
asserted in the complaint. If the recommendation to dismiss Counts I and II is adopted, the
presiding District Judge may choose, in his discretion, to dismiss the remaining state law claims
without prejudice to their refiling in state court. See 28 U.S.C. § 1367(c)(3). In the event that
the presiding District Judge does not adopt the recommendation to dismiss Counts I and II, or

1

The complaint asserts claims for deprivation of procedural and substantive due process against
all Defendants (Count I). Plaintiff brings the following claims against Cignoli, Dromey,
Desilets, and Chwalek individually: conspiracy to deprive Plaintiffs of the equal protection of
the laws (Count II); deprivation of rights protected by the MCRA (Count III); and tortious
interference with contractual relations (Count IV). Plaintiffs seek a declaratory judgment against
the city and Cignoli in his official capacity (Count V). The claim for a constructive taking is
asserted against the city (Count VI) (Dkt. No. 1 at 17-21).
2

elects to retain jurisdiction of the remaining state law claims, this court recommends that
Defendants' motion to dismiss be GRANTED as to Counts III, V, and VI and DENIED as to
Count IV.
II.

BACKGROUND2

2

The facts are taken from the complaint, Dkt. No. 1, and certain materials Defendants submitted
in support of their motion to dismiss to which Plaintiffs have not lodged an objection. "On a
motion to dismiss, the court may properly take into account four types of documents outside the
complaint without converting the motion into one for summary judgment: (1) documents of
undisputed authenticity; (2) documents that are official public records; (3) documents that are
central to plaintiff's claim; and (4) documents that are sufficiently referred to in the complaint."
Doe v. Brandeis Univ., Civil Action No. 15-11557-FDS, 2016 WL 1274533, at *6 n.1 (D. Mass.
Mar. 31, 2016) (citing Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)). Defendants submitted
the following court records: the docket of the Massachusetts Supreme Judicial Court for Suffolk
County in HDC Four, L.L.C. v. Building Comm'r of Springfield, SJ-2014-0316 (Dkt. No. 23-1 at
3); the Order of Transfer to the Superior Court Department of the Trial Court for the County of
Hampden for Civil Business (Botsford, J.) in SJ-2014-0316 (Dkt. No. 23-1 at 4); the docket of
the Massachusetts Superior Court Department of the Trial Court for the County of Hampden in
HDC Four, L.L.C. v. Building Comm'r. of Springfield, Civil Action No. 1479CV00627 (Dkt.
No. 23-1 at 2); Memorandum of Decision on Verified Emergency Petition for Mandamus Relief
of September 25, 2014 (Josephson, J.), in HDC Four L.L.C. v. Building Comm'r of Springfield,
Hampden Superior Court Department Civil Action No. 1479CV00627 (Dkt. No. 23-5 at 3-8);
complaint and exhibit filed in Hunter Dev. Co., L.L.C. v. Benjamin Swan, Jr., et al.,
Massachusetts Land Court Department of the Trial Court, docket number 15 MISC 000257 (Dkt.
No. 23-4 at 3-11); docket of the Massachusetts Land Court Department of the Trial Court in No.
15 MISC 00257; Stipulation of Dismissal without Prejudice of May 3, 2016 in Massachusetts
Land Court docket number 15 MISC 000257 (Dkt. No. 23-2 at 11-12). See Giragosian v. Ryan,
547 F.3d 59, 66 (1st Cir. 2008) ("A court may consider matters of public record in resolving a
Rule 12(b)(6) motion to dismiss. Matters of public record ordinarily include 'documents from
prior state court adjudications.'") (quoting Boateng v. InterAmerican Univ., Inc., 210 F.3d 56, 60
(1st Cir. 2000) (citation omitted)). The court also considers the following documents, whose
authenticity is not disputed, as they are public records, see Watterson, 987 F.2d at 3: Springfield
City Clerk's correspondence of December 27, 2005 regarding special permits for 36 Martone
Place, 559 St. James Avenue, and 11-13 Tapley Street (Dkt. No. 23-7 at 10-15). In addition, the
following documents are "sufficiently referred to in the complaint," id.: the OPED's
Administrative Site Plan Review (Tier 1) – Supplemental Review of July 30, 2014 (Dkt. No. 236 at 2-3); comments by City Engineer James J. Czach of the DPW, dated July 31, 2014 (Dkt. No.
23-6 at 4-15); OPED's Administrative Site Plan Review (Tier 1) of May 5, 2015 (Dkt. No. 23-7
at 2-4, 16-31); and provisions of the Springfield Zoning Ordinance, amended to March 19, 2014
(Dkt. No. 30-1). The following documents fall outside the purview of categories of documents
that the court is permitted to consider: HDC Two, L.L.C.'s petition to the Springfield City
Council to amend an existing special permit, OPED's analysis and approval of the proposed
3

A.

Springfield's Zoning Ordinance

A description of the pertinent provisions of Springfield's Zoning Ordinance ("Zoning
Ordinance") is fundamental to the court's discussion. The property at 36 Martone Place is
located in a Business B zone where non-medical office buildings, such as the one Plaintiffs
proposed for the RMV project, are permitted as of right (Dkt. No. 1 ¶¶ 40, 41; Dkt. No. 30-1 at
90). Because the proposed building's area was to be under 20,000 square feet, § 12.1.21B of the
Zoning Ordinance required Plaintiffs to submit a Tier 1 Administrative Site Plan to OPED for
review (Dkt. No. 1 ¶¶ 41, 42; Dkt. No. 30-1 at 81, 269).3
Sections 12.0 to 12.2 of Article 12 of the Zoning Ordinance address the procedures and
criteria for the administrative site plan reviews that OPED conducts (Dkt. No. 1 ¶ 43; Dkt. No.
30-1 at 269-74). Section 12.2.11 requires a complete application for administrative site plan
review to include "a plan of the subject parcel on a location map (i.e. a tax map) showing
boundaries and dimensions of the parcel and identifying contiguous properties and streets that
are within fifty (50) feet of a proposed structure as well as any easements or rights-of-way" (Dkt.
No. 30-1 at 271). 4 In addition, § 12.2.12B gives OPED discretion to require a site plan subject

amendment of the special permit, and HDC Two, L.L.C.'s withdrawal of the request to amend
the special permit on November 24, 2014 (Dkt. No. 23-3); a letter to the Springfield City
Solicitor regarding the ownership of Martone Place and related materials (Dkt. No. 23-7 at 5-9);
application for a Tier 1 Administrative Site Plan Review for proposed RMV at Martone Place,
and revisions (Dkt. No. 23-7 at 16-31); and a letter of February 8, 2016 from an abutter on
Martone Place (Dkt. No. 23-8).
3

The Zoning Ordinance establishes "Review Tiers" (Tiers 1, 2, and 3) "based on the scale and
potential impact of a particular use" (Dkt. No. 30-1 at 77).

4

The Zoning Ordinance uses all upper case letters for words that are defined in its definition
section. For clarity, the court does not follow this format when quoting portions of the Zoning
Ordinance (Dkt. No. 30-1 at 21).
4

to Tier 1 review to include "[t]he proposed location and arrangements of structures and uses on
the site, including means of ingress and egress, parking, circulation of traffic, and outdoor refuse
storage areas" (id.).
Section 12.2.32 of the Zoning Ordinance mandates that OPED review an application and
notify an applicant whether its application is complete or incomplete within five (5) business
days of submission (id. at 273). OPED is required by § 12.2 to conduct administrative site plan
reviews "in cooperation with the building commissioner's office, Department of Public Works,
and other departments that have jurisdiction" (id. at 271). Accordingly, once OPED determines
that the application is complete, OPED "shall circulate it to other agencies and departments that
have jurisdiction over the application as determined by . . . [OPED]" (id. at 273). Section
12.2.34 requires the other city departments to comment on the application within twenty days
and requires OPED to complete its administrative site plan review within thirty days of
determining that the application is complete (id. at 273).
Sections 12.2.20 – 12.2.24 of the Zoning Ordinance state the following administrative
site plan review criteria:
§ 12.2.21

In order to grant administrative approval of a site plan, . . . [OPED] must
find that the application complies with this Ordinance and other applicable
laws, including applicable overlay districts, site and use standards.

§ 12.2.22

In making its decision, . . . [OPED] may refer for guidance to the review
criteria in Section 12.3.[5]0 Planning Board Site Plan Review Criteria.

§ 12.2.23

[OPED] shall not deny approval of an application that meets all
applicable requirements.

§ 12.2.24

[OPED] may impose reasonable conditions that are reasonably necessary,
to ensure compliance with applicable standards and any other applicable
provisions of this Ordinance, consistent with the limitations set forth in
Section 12.3.70. These conditions shall be incorporated into the building
permit conditions or other approval issued by the City related to the
proposed development.
5

(id. at 272). Section 12.2.22 refers OPED to the "Planning Board Site Plan Review Criteria," §§
12.3.50 – 12.3.51, which lists seven criteria to be used when reviewing a site plan (id. at 272,
278-79). Section 12.3.51 permits the imposition of conditions, including those designed to
ensure that the proposed use, development, or structure will "[n]ot impair pedestrian safety or
overload existing roads, considering their current width, surfacing, and condition" (id. at 27879). Section 12.2.24 directs OPED to §§ 12.3.70 - 12.3.71, which describe limits on the
conditions that OPED can impose on a site plan (id. at 272). These provisions state:
In granting approval of an application, [OPED] may impose reasonable conditions,
limitations and safeguards which shall be in writing and shall be part of such approval.
Such conditions shall be limited to those necessary to ensure compliance with the review
criteria in Section 12.3.51, to ensure access to the site and to minimize off-site impacts on
traffic and water quality both during and after construction.
(id. at 280).
According to § 12.2.51, "[a]n applicant may appeal a decision of . . . [OPED] to the
Planning Board by filing a request for review within ten (10) business days of the filing of . . .
[OPED's] decision in the City Clerk's Office" (id. at 274). The Zoning Ordinance designates the
Planning Board as a "special permit granting authority" (id. at 57). Section 17 of Mass. Gen.
Laws ch. 40A ("the Zoning Act") permits "[a]ny person aggrieved by a decision of . . . any
special permit granting authority" to appeal to the land court, the superior court, or the housing
court departments of the Massachusetts Trial Court. Mass. Gen. Laws ch. 40A, § 17.
According to Zoning Ordinance § 12.1.21C, after OPED reviews and approves a site
plan, the applicant submits a building permit application to the building commissioner's office,
"consistent with all conditions and requirements of such approval. The building commissioner,
in reviewing the application, shall insure that all such conditions and requirements have been
satisfied . . . and shall process the application as provided in Section 11.1.1[4]" (id. at 269).
6

Section 11.1.14 mandates that the building commissioner grant or deny a building permit "as
soon as practical, but in no event in more than thirty (30) days of receiving a complete
application, and shall inform the applicant by sending the permit or denial by mail, or by
delivering it in person to the applicant at the building commissioner's office, within that thirty
(30) day period" (id. at 263). If the building commissioner decides not to issue a building
permit, the applicant can appeal the decision to the Zoning Board of Appeals in accordance with
§ 11.2.11 (id. at 264). Section 17 of the Zoning Act permits an appeal of the Zoning Board of
Appeals' decision to the Massachusetts superior court, land court, or the Hampden County
Division of the housing court within twenty days of the Zoning Board's filing of its decision with
the Springfield City Clerk (id. at 267). See Mass. Gen. Laws ch. 40A, § 17.
B.

Facts

Because this is a motion to dismiss, "the court accepts as true the well-pleaded factual
allegations contained in the complaint, drawing reasonable inferences in the Plaintiffs' favor." S.
Commons Condo. Ass'n v. City of Springfield, 967 F. Supp. 2d 457, 460 (D. Mass. 2013), aff'd
sub nom. S. Commons Condo. Ass'n v. Charlie Arment Trucking, Inc., 775 F.3d 82 (1st Cir.
2014).
This law suit involves Plaintiffs' parcel of land that includes 36 and 60 Martone Place and
559 St. James Avenue (Dkt. No. 1 ¶¶ 9, 10, 11).5 The relocated Martone Place ("new Martone
Place") is a private way that meets St. James Avenue, a public way, near the intersection of

5

HDC owns 36 Martone Place and 575 St. James Avenue and Martone owns 60 Martone Place
(Dkt. No. 1 ¶¶ 9, 10). According to the complaint, "Martone is controlled by the principals of
HDC and, as a legal and practical matter, has control of the title to and development of 36
Martone Place and 575 St. James Avenue" (id. ¶ 11).
7

Tapley Street, also a public way (Dkt. No. 23-5 at 3).6 On December 27, 2005, the city council
issued special permits for HDC's construction of a car wash at 36 Martone Place and a gas
station/Dunkin Donuts with a drive-up window at HDC's contiguous properties at 559 St. James
Avenue and 11-13 Tapley Street (Dkt. No. 23-5 at 3; Dkt. No. 23-7 at 10-15).7 The special
permits imposed specific conditions on the developments, including converting the new Martone
Place from a private way to a public way and obtaining DPW's approval prior to applying for
building permits (Dkt. No. 23-5 at 3; Dkt. No. 23-7 at 10 ¶¶ 4, 5). HDC abandoned its plan to
build the car wash at 36 Martone Place (Dkt. No. 23-5 at 3; Dkt. No. 23-7 at 10-15).
In 2013, the Massachusetts Division of Capital Asset Management and Maintenance
("DCAMM") sought proposals for the construction and lease to MassDOT of an approximately

6

"If a road has never been dedicated and accepted, laid out by public authority, or established by
prescription, such road is private." W.D. Cowls, Inc. v. Woicekoski, 385 N.E.2d 521, 522 (Mass.
App. Ct. 1979). The court can take judicial notice of the facts that St. James Avenue and Tapley
Street are public ways within Springfield. See United States v. Bello, 194 F.3d 18, 23 (1st Cir.
1999) ("'official government maps have long been held proper subjects of judicial notice'")
(quoting Gov't of Canal Zone v. Burjan, 596 F.2d 690, 694 (5th Cir. 1979)); see also Fed. R.
Evid. § 201(b).
7

Section 9 of the Massachusetts Zoning Act addresses special permits as follows: "Zoning
ordinances or by-laws shall provide for specific types of uses which shall only be permitted in
specified districts upon the issuance of a special permit. Special permits may be issued only for
uses which are in harmony with the general purpose and intent of the ordinance or by-law, and
shall be subject to general or specific provisions set forth therein; and such permits may also
impose conditions, safeguards and limitations on time or use." Mass. Gen. Laws ch. 40A, § 9.
"Special permit procedures have long been used to bring flexibility to the fairly rigid use
classifications of Euclidean zoning schemes[,] [see Euclid v. Ambler Realty Co., 272 U.S. 365
(1926),] by providing for specific uses which are deemed necessary or desirable but which are
not allowed as of right because of their potential for incompatibility with the characteristics of
the district." SCIT, Inc. v. Planning Bd. of Braintree, 472 N.E.2d 269, 274 (Mass. App. Ct.
1984). In Springfield, the city council, the planning board, and the board of appeals are
authorized to issue special permits (Dkt. No. 30-1 at 57).

8

14,000 square foot office building to replace the "aged and obsolete" RMV building on Liberty
Street in Springfield (Dkt. No. 1 ¶¶ 12, 13). DCAMM awarded Martone the contract to construct
the building on its property at 36 Martone Place with parking at Plaintiffs' adjacent properties
(id. ¶¶ 14, 18). On February 26, 2014, Martone and MassDOT entered into a ten-year lease with
rental payments of $625,600 per year (id. ¶¶ 19, 20). Plaintiffs anticipated that the lease would
extend into the "2050's" (id. ¶ 21). The lease required "substantial completion" of the building
within about seven months (id. ¶ 22). The RMV's urgent need to replace its Liberty Street
facility dictated the accelerated timeline (id. ¶ 23).
In March 2014, Michael Frisbie ("Frisbie"), a principal of both Plaintiffs, and his attorney
met with Dromey of OPED and Cignoli of DPW to discuss the RMV project (id. ¶¶ 44, 47).
According to the complaint, Dromey and Cignoli displayed "immediate hostility" toward the
project during the meeting and Cignoli contested Plaintiffs' ownership of part of the site of the
proposed development (id. ¶¶ 48, 49). Plaintiffs allege that Cignoli's contention was erroneous
(id. ¶ 49). Chwalek's, Cignoli's, and Dromey's antagonism toward the project was allegedly
apparent a month later during a meeting they attended with Frisbie, Plaintiffs' traffic and civil
engineers, and representatives of MassDOT and the RMV (id. ¶¶ 50, 51). Plaintiffs claim that,
during the meeting, Chwalek, who was DPW director at the time, "angrily pounded on the plan
showing the proposed location of the new RMV [facility] and shouted, '[I]t's not going there!'"
(id. ¶ 52). After the meeting, Dromey purportedly told Frisbie that unsatisfied conditions on the
special permits that were issued for the earlier projects on the property (the gas station, drive-up
window, and car wash) would prevent the RMV project from advancing, despite the city's failure
to cite Plaintiffs for any noncompliance or violations (id. ¶¶ 54, 55; Dkt. No. 23-7 at 10-15).

9

On May 6, 2014, HDC filed with OPED an application for "Administrative Site Plan
Review (Tier 1)" for construction of a 14,300 square foot office building and parking lot at 36
Martone Place and Plaintiffs' neighboring properties (Dkt. No. 1 ¶ 59). According to Plaintiffs,
Dromey called their counsel on the day they filed the application complaining that the filing was
premature and that it "start[ed] the clock running" on OPED's thirty-day deadline to complete the
approval process (id. ¶ 60). The next day, Dromey notified Plaintiffs that the application was
incomplete (id. ¶ 63). HDC submitted a complete application for "Administrate Site Plan
Review (Tier 1)" on or about June 12, 2014 (id. ¶¶ 65, 66). On that day, Dromey notified HDC
that "'a full separate submission to DPW, for their review and approval, [would] still be
required'" (id. ¶ 67). Plaintiffs assert that, when questioned, Dromey could not cite the
provisions of the Zoning Ordinance that required the DPW's review and approval of the site plan
and Cignoli did not respond to Plaintiffs' questions about the DPW's "'approval process'" (id. ¶¶
68, 69, 78). Plaintiffs contend that, consistent with Cignoli's practice to exert control over city
development, he unlawfully erased the street number for 36 Martone Place after the existing
building was demolished and, without a street number, the building commissioner would not
issue a building permit (id. ¶¶ 80-85).
On June 13, 2014, after Cignoli told Plaintiffs that he had not received any information
about the project, they submitted the site plan, including the traffic impact and drainage analyses,
in order for Cignoli to assign a street number to the property at 36 Martone Place (id. ¶¶ 73, 85,
88). Five days later, Cignoli told Plaintiffs that DPW had begun reviewing their traffic impact
analysis (id. ¶ 89).
On July 1, 2014, OPED issued its Administrative Site Plan Review Conditional Approval
imposing "over a dozen conditions [that had] to be met before the building permit could be

10

issued" (Dkt. No. 1 ¶ 90; Dkt. No. 23-5 at 4). At least four of the conditions involved DPW's
review or approval (Dkt. No. 23-5 at 4). Specifically, OPED directed HDC to "obtain all
'reviews/approvals required by . . . [DPW]'" (Dkt. No. 1 ¶ 91; Dkt. No. 23-5 at 4).8
On July 18, 2014, HDC applied to Desilets, the building commissioner, for a building
permit for the RMV project at 36 Martone Place notwithstanding its failure to comply with the
DPW-related conditions included in OPED's site plan conditional approval (Dkt. No. 1 ¶ 101;
Dkt. No. 23-5 at 4). HDC's contractors began site work at 36 Martone Place based on a deputy
building commissioner's verbal representation that the building permit would be issued within a
week and that Plaintiffs could begin site work "immediately" (Dkt. No. 1 ¶¶ 104, 105). On July
23, 2014, Cignoli who, according to Plaintiffs, purported "to speak on behalf of the [c]ity," sent

8

OPED imposed the following conditions involving the DPW that Plaintiffs were required to
satisfy before applying for a building permit:
6.

Any and all reviews/approvals required by . . . [DPW] shall be obtained prior to
the issuance of a building permit. As part of that review, a final determination
shall be made regarding the status of the new Martone Place.

7.

If the final DPW review results in a change to the approved site plan, a revised
site plan shall be submitted to . . . [OPED] for review and approval prior to
issuing a building permit.

8.

If the determination is made that Martone Place is to remain a private way and is
approved as such by DPW, the petitioner shall apply to the City Council to amend
the existing special permits granted December 27, 2005 . . . requiring that the
newly laid out Martone Place become a public way . . . .

9.

If the determination is made that Martone Place is to become a public way and is
approved as such by DPW, all required material shall be submitted to the Board
of Public Works for the acceptance of Martone Place as a public way prior to
issuing a building permit.

(Dkt. No. 23-5 at 4).
11

an "unsolicited" email message to MassDOT telling them that the city and Plaintiffs were "'miles
apart'" and the project's timeline would be affected (Dkt. No. 1 ¶ 106).
Six days later on July 29, 2014, the building department and Commissioner Desilets
notified Frisbie that Desilets would not issue a building permit without first obtaining DPW's
approval (Dkt. No. 1 ¶¶ 108, 109, 112; Dkt. No. 23-5 at 5). A deputy building commissioner
told Plaintiffs that DPW "had an issue" that was preventing the issuance of the building permit
(Dkt. No. 1 ¶¶ 110, 111, 112).
Plaintiffs responded to the conditions imposed by DPW regarding the status of the new
Martone Place, which were included in the OPED's conditional site plan approval, by revising
the site plan to reflect that the new Martone Place would remain a private way (Dkt. No. 23-6 at
2-3). On July 30, 2014, OPED answered this change by supplementing its administrative site
plan review conditional approval with three conditions that had to be satisfied prior to Plaintiffs'
application for a building permit (Dkt. No. 23-6 at 2-3).9 These requirements and other
conditions, including required revisions of proposed traffic patterns and parking, were reflected

9

Plaintiffs were required to:
1.

Amend the special permits granted by the city council on December 27, 2005 for
36 Martone Place, 559 St. James Avenue, and 11-13 Tapley Street to reflect that
Martone Place would not become a public way as originally planned when the
special permits were granted.

2.

Obtain a variance from the Zoning Board of Appeals because the proposed RMV
building's frontage on private property (Martone Place) [would] not meet the
requirements of section 7.1.52 of the Zoning Ordinance, which require frontage
on a public way.

3.

Submit a revised site plan to OPED if "the continued DPW review results in a
change to the approved site plan and/or the submission of additional information."

(Dkt. No. 23-6 at 2-3).
12

in the July 31, 2014 report of a DPW engineer who studied Plaintiffs' project and denied
approval of the site plan pending Plaintiffs addressing the comments to DPW's "satisfaction"
(Dkt. No. 1 ¶¶ 95, 114; Dkt. No. 23-5 at 4-5; Dkt. No. 23-6 at 4-15).
Desilets and Cignoli issued cease and desist orders for the site work that began after HDC
applied for the building permit and obtained verbal approval to commence work (Dkt. No. 1 ¶
116). According to Plaintiffs, Desilets and Cignoli "or their representatives" told HDC's site
contractor "that he would never work in Springfield again" and DPW's employees told the site
contractor's workers, "'[N]ow we have your neck in a noose'" (id. ¶¶ 117, 118).10
Notwithstanding Plaintiffs' alleged compliance with all DPW's conditions, DPW issued
"scores of more comments" that Plaintiffs were required to address in order to obtain a building
permit and Desilets continued to refuse to issue the permit (id. ¶¶ 99, 100, 119). Cignoli
allegedly made the removal of Frisbie and Plaintiffs' legal counsel conditions precedent to
further discussions (id. ¶ 120). Plaintiffs agreed to Cignoli's purported demands, hired a
consultant to negotiate with Cignoli, and obtained "numerous additional traffic studies, all of

10

On July 31, 2014, Plaintiffs filed a "Verified Emergency Petition for Mandamus Relief" in the
Supreme Judicial Court for Suffolk County, docket number SJ-2014-0316 (Dkt. No. 23-1 at 3).
After a telephonic hearing on August 6, 2014, the single justice of the Massachusetts Supreme
Judicial Court transferred the case to the Superior Court Department of the Trial Court for
Hampden County for Civil Business (Dkt. No. 23-1 at 3, 4). There, Plaintiffs sought mandamus
relief in the form of a court order directing the Springfield building commissioner to issue the
building permit (Dkt. No. 23-5 at 3). On September 25, 2014, Massachusetts Superior Court
Judge Bertha D. Josephson denied Plaintiffs' petition for mandamus relief finding that: (1) under
the Zoning Ordinance, the building commissioner did not have the authority to issue the building
permit because Plaintiffs had not complied with the conditions imposed by the administrative
site plan conditional approval; and (2) Plaintiffs had not exhausted their administrative remedies
because the Zoning Act, Mass. Gen. Laws ch. 40A, § 8, provides for an appeal of the denial of a
building permit (Dkt. No. 23-5 at 5-7). Judge Josephson determined that there was no support
for Plaintiffs' argument that the building commissioner's failure to issue the building permit was
"due to improper DPW interference" (id. at 6).
13

which resulted in the conclusion that the project design was appropriate" (id. ¶¶ 119, 122).
Cignoli, however, withheld his approval (id. ¶ 121). Although Plaintiffs were "legally required"
to keep open a right of way onto Tapley Street, they allege that Cignoli indicated that he would
not approve "any plan for any use" of the site that permitted RMV customers to use a right of
way to access Tapley Street and to turn left onto Tapley Street (id. ¶¶ 123, 124) (emphasis
original).
In 2015, Plaintiffs submitted another site plan for OPED's review and approval (id. ¶
127).11 This plan included relocating the proposed RMV building to 60 and 70 Martone Place
with parking at 36 Martone Place and 575 St. James Avenue (Dkt. No. 1 ¶ 127; Dkt. No. 23-7 at
2). On May 1, 2015, OPED determined that the site plan did not comply with the Zoning
Ordinance (Dkt. No. 23-7 at 2-4). One reason for OPED's rejection of the site plan was the fact
that "the plans continue to show a connection to Tapley Street which has previously been
identified by DPW as having significant existing traffic related safety concerns" (id. at 4).
Plaintiffs appealed OPED's decision to the Planning Board, which denied the appeal on June 19,
2015 (Dkt. No. 23-4 at 7). On July 7, 2015, Plaintiffs' appeal of the Planning Board's decision
was entered onto the docket of the Land Court Department of the Massachusetts Trial Court
(Dkt. No. 23-2 at 2). See Mass. Gen. Laws ch. 40A, § 17. The parties entered into a stipulation
of dismissal of the case without prejudice on May 3, 2016 (id. at 11-12).

11

Although the date Plaintiff submitted the second site plan is absent from the complaint, the
court infers that it was submitted in 2015 based on the requirement that OPED act on a complete
site plan within thirty days of its submission and OPED's rejection of the site plan on May 1,
2015 (Dkt. No. 1 ¶ 2-4; Dkt. No. 30-1 at 273). The exact date of Plaintiffs' submission is
inconsequential because the allegations in the complaint stem from the site plan that was
submitted on or about June 12, 2014 (Dkt. No. 1 ¶ 65, 66).
14

Meanwhile, on May 21, 2015, after OPED rejected Plaintiffs' second site plan, Albany
Road-St. James Avenue, L.L.C. in partnership with Davenport Advisors, L.L.C. ("Davenport
Advisors") purchased the building at 1250 St. James Avenue in Springfield (Dkt. No. 1 ¶¶ 28,
125, 126). The next day, MassDOT terminated the lease with Martone based on its failure to
substantially complete the RMV project on time (id. ¶ 125).
The Davenport Companies are partners with MGM Springfield ("MGM") for the
development of MGM's casino in Springfield (id. ¶¶ 7, 25). 12 Plaintiffs describe themselves as
"outsiders," in contrast to the Davenport Companies who Plaintiffs contend are "insider[s]" and
the city's "preferred developers" (id. ¶¶ 45, 46). According to the complaint, Springfield's mayor
praised the Davenport Companies "for their 'belief and investment in Springfield [that] has been
[an] integral part of the Springfield renaissance'" (id. ¶ 31). The Davenport Companies formed
Davenport Advisors in May 2014 "to provide advisory services and operate real estate" (id. ¶
27). Davenport Advisors was ultimately awarded the RMV lease for a building at 1250 St.
James Avenue (id. ¶ 128).13

12

According to Plaintiffs, in February 2015, after Chwalek's retirement as DPW director in May
2014, the Springfield Redevelopment Authority hired him to be a "consultant liason" to MGM
"to assist MGM by expediting the casino construction process" (Dkt. No. 1 ¶ 7).
13

Plaintiffs allege that an unidentified "politically connected and influential Springfield
businessman," whose property was not chosen for the casino project, expressed an interest in the
RMV project after MassDOT had awarded the lease to Plaintiffs (Dkt. No. 1 ¶¶ 32-34). When
DCAMM told the unidentified businessman's representative that it was "too late" to bid on the
RMV project because Plaintiffs and RMV had signed a lease, the representative allegedly told
DCAMM, "'[T]hat doesn't matter. [A] signed lease doesn't mean anything in the City of
Springfield" (id. ¶¶ 35, 37, 39). Plaintiffs interpret this comment as conveying the message to
DCAMM "that the Springfield businessman had sufficient influence over city officials to ensure
that Martone's development plans would be quashed by the [c]ity, such that MassDOT and
DCAMM would have to move on to others to insure timely construction of the new RMV" (id. ¶
139). However, Plaintiffs do not allege that this businessman bid for the RMV project or was
connected to Davenport Advisors.
15

III.

STANDARD OF REVIEW

All the claims in Plaintiffs' complaint are related to their applications for site plan review
and a building permit in 2014. Defendants have moved to dismiss the complaint under Fed. R.
Civ. P. 12(b)(6) (Dkt. No. 10). "Motions to dismiss under Rule 12(b)(6) . . . test the sufficiency
of the pleadings." Hagenah v. Cmty. Enters., Inc., Case No. 15-cv-30036-KAR, 2016 WL
1170963, at *3 (D. Mass. Mar. 23, 2016). "To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to 'state a claim [for] relief that is plausible on
its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). "Plausibility does not demand a showing that the claim is likely to
succeed. It does, however, demand a showing of 'more than a sheer possibility' of success."
Butler v. Balolia, 736 F.3d 609, 616 (1st Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In order to
meet the plausibility standard, "[t]he plaintiff must proffer more than mere 'labels and
conclusions' or 'naked assertions devoid of further factual enhancement.'" Garrity, Levin &
Muir, LLP v. United States, CIVIL ACTION NO. 15-11405-RGS, 2015 WL 6126816, at *2 (D.
Mass. Oct. 16, 2015) (quoting Iqbal, 556 U.S. at 678). "Dismissal is appropriate if the complaint
does not set forth '"factual allegations, either direct or inferential, respecting each element
necessary to sustain recovery under some actionable legal theory."'" S. Commons Condo. Ass'n,
967 F. Supp. 2d at 463 (quoting Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406
F.3d 1, 6 (1st Cir. 2005)).
IV.

DISCUSSION

A.

Section 1983 Procedural and Substantive Due Process Claims Against All
Defendants (Count I)

Plaintiffs' due process claims are brought against all Defendants pursuant to 42 U.S.C. §
1983 (Dkt. No. 1 at 17). See Santiago v. Puerto Rico, 655 F.3d 61, 68 (1st Cir. 2011) ("'Section
16

1983 supplies a private right of action against a person who, under color of state law, deprives
another of rights secured by the Constitution or by federal law.'") (quoting Redondo-Borges v.
U.S. Dep't of HUD, 421 F.3d 1, 7 (1st Cir. 2005)). "The Due Process Clause of the Fourteenth
Amendment prohibits a state from depriving any person of 'life, liberty, or property, without due
process of law.'" Harron v. Town of Franklin, 660 F.3d 531, 535 (1st Cir. 2011) (quoting U.S.
Const. amend. XIV, § 1). "This prohibition guards against 'the arbitrary exercise of the powers of
government.'" Id. (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845 (1998)). It "applies
fully to a state's political subdivisions, including municipalities and municipal agencies."
DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st Cir. 2005) (citing Home Tel. & Tel. Co. v. City of
Los Angeles, 227 U.S. 278, 286–87 (1913)). Plaintiffs claim Defendants violated the procedural
and substantive components of the Due Process Clause.
1.

Procedural Due Process

Plaintiffs allege that Defendants impermissibly imposed conditions on the issuance of the
building permit for the 2014 RMV project with the intent of preventing Plaintiffs from meeting
the deadline for completion under their contract with MassDOT (Dkt. No. 1 ¶ 64). According to
Plaintiffs, by requiring DPW's review and approval as a condition precedent to obtaining a
building permit, OPED created "a separate DPW process," which deprived Plaintiffs of their
property without due process because they had no available means to challenge DPW's decisions
(Dkt. No. 20 at 4). Defendants rejoin that Plaintiffs failed to avail themselves of the avenues of
relief afforded by the Zoning Ordinance and Zoning Act (Dkt. No. 22 at 17). For the reasons
stated below, Defendants' contention is persuasive as a matter of law.
"Procedural due process guarantees that a state proceeding which results in a deprivation
of property is fair . . . ." Licari v. Ferruzzi, 22 F.3d 344, 347 (1st Cir. 1994).

17

The First Circuit generally approaches procedural due process challenges to local landuse and zoning decisions with considerable skepticism: "where . . . the state has erected a
complex statutory scheme and provided for avenues of appeal to the state courts, property
is not denied without due process simply because a local [authority] rejects a proposed
development for erroneous reasons or makes demands which arguably exceed its
authority under the relevant state statutes."
Brockton Power LLC v. City of Brockton, 948 F. Supp. 2d 48, 67 (D. Mass. 2013) (quoting
Creative Env'ts, Inc. v. Estabrook, 680 F.2d 822, 832 n.9 (1st Cir. 1982)). "The First Circuit's
concern is that without a high bar to such claims, federal courts would 'sit as a "zoning board of
appeals" . . . [involved] in political disputes better left to local governments.'" Mongeau v. City
of Marlborough, 462 F. Supp. 2d 144, 149 (D. Mass. 2006), aff'd, 492 F.3d 14 (1st Cir. 2007)
(quoting Nestor Colon Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32, 46 (1st Cir. 1992)).
See also Raskiewicz v. Town of New Boston, 754 F.2d 38, 44 (1st Cir. 1985). "To allege a
procedural due process claim under 42 U.S.C. § 1983, a plaintiff must allege: '(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.'" Brockton Power LLC, 948 F. Supp. 2d at
67 (quoting Licari, 33 F.3d at 347).
Defendants do not dispute that they acted under color of state law (Dkt. No. 22 at 17-19).
HDC, the owner of 36 Martone Place, and Martone, the lessor under the MassDOT lease, had a
protected property interest (Dkt. No. 1 ¶¶ 9, 11, 19; Dkt. No. 22 at 17 & n.1).14 The central

14

Without citation to authority in support of their position, Defendants apparently dispute -mostly in a footnote -- whether Plaintiffs adequately pled HDC's protected property interest in
Martone's lease "with a third party in a proposed building not yet constructed" (Dkt. No. 22 at 17
& n.1). See Nat'l Foreign Trade Council v. Natsios, 181 F.3d 38, 60 n.17 (1st Cir. 1999) ("We
have repeatedly held that arguments raised only in a footnote or in a perfunctory manner are
waived."). The court, however, need not resolve this question because "[i]n section 1983 claims
brought in the context of land-use disputes, the First Circuit has invariably assumed arguendo
that there was a property interest and examined whether there was sufficient process afforded the
would-be property developers." Mongeau, 462 F. Supp. 2d at 150. The court follows this
18

question for resolution is whether, when the smoke created by Plaintiffs' allegations of
Defendants' improper motives is cleared from the complaint, see, e.g., Iqbal, 556 U.S. at 678,
OPED's imposition of the condition requiring Plaintiffs to obtain "[a]ny and all
reviews/approvals required by DPW . . . prior to the issuance of a building permit" for the RMV
project created a discrete and "fictitious" DPW approval process that evaded review, thereby
depriving Plaintiffs of their property without due process (Dkt. No. 1 ¶¶ 74, 75, 76, 91, 132).
The answer to the question posed lies in an analysis of Plaintiffs' allegations within the
framework of the Zoning Ordinance and the Zoning Act. Because Plaintiffs' proposed project
was a use permitted by right under the Zoning Ordinance, Plaintiffs were required to apply to
OPED for site plan review before applying for a building permit (Dkt. No. 1 ¶¶ 40-43; Dkt. No.
30-1 at 269). "The Zoning Act . . . does not specifically recognize site plans as an independent
method of regulation. However, the use of site plan approval as a permissible regulatory tool for
controlling the aesthetics and environmental impacts of land use has been recognized [in
Massachusetts] since [1970]." Dufault v. Millennium Power Partners, LP, 727 N.E.2d 87, 89
(Mass. App. Ct. 2000) (citations omitted). "Site plan review . . . occurs with respect to
preliminary plans submitted by a developer, and the review requires the municipal [agency] to
assess the project's impact on the city or town (and the area where it will be located) with respect
to a variety of issues." St. Botolph Citizens Comm., Inc. v. Bos. Redevelopment Auth., 705
N.E.2d 617, 622 (Mass. 1999). The local reviewing agency is permitted to impose reasonable
terms and conditions on the anticipated project that are designed to protect the public. See id.
(citing Y.D. Dugout, Inc. v. Bd. of Appeals of Canton, 255 N.E.2d 732, 736-37 (Mass. 1970)).

approach and assumes, for purposes of this motion, that both Plaintiffs have sufficient property
interests.
19

See also Castle Hill Apartments Ltd. P'ship v. Planning Bd. of Holyoke, 844 N.E.2d 1098, 1103
(Mass. App. Ct. 2006) ("Site plan review . . . is not without some teeth. 'A board . . . possesses
discretion to impose reasonable conditions under a by-law's requirements in connection with
approval of a site plan, even if the conditions are objected to by the owner or are the cause of
added expense to the owner.'") (quoting Prudential Ins. Co. of Am. v. Bd. of Appeals of
Westwood, 502 N.E.2d 137, 141 n.9 (Mass. App. Ct. 1986)).
Section 12.2 of the Zoning Ordinance mandated DPW's involvement in OPED's
administrative site plan review, and §§ 12.2.24 and 12.2.35 permitted OPED to impose
reasonable conditions precedent to obtaining a building permit (Dkt. No. 30-1 at 271-273).
Plaintiffs do not challenge the facial adequacy of these provisions. Because OPED was required
to conduct its site plan review in cooperation with DPW and because OPED was permitted to
impose reasonable conditions, including those designed to ensure that "existing roads" were not
"overload[ed] . . . considering their current width, surfacing and condition," the Zoning
Ordinance permitted OPED to impose DPW-related conditions (id. at 271-273, 279).
Plaintiffs' contention – that DPW's comments and conditions should have been submitted
to OPED and included in its conditional approval – is based on a misreading of provisions of the
Zoning Ordinance (Dkt. No. 1 ¶ 97). Section 12.2 says: "Administrative Site Plan Review shall
be conducted by . . . [OPED] in cooperation with the building commissioner's office, Department
of Public Works, and other departments that have jurisdiction" (Dkt. No. 30-1 at 271) (emphasis
added). Section 12.2.32 directs OPED to circulate a complete application for administrative site
plan review to "all other agencies and departments that have jurisdiction over the application as
determined by . . . [OPED]" (id. at 273). The "other city departments" have twenty days to
comment on the application (id.). While §§ 12.2 and 12.2.32 give OPED discretion to determine

20

the other departments that have jurisdiction, the mandatory language of § 12.2 requires OPED to
include DPW in the application review process (id. at 271, 273). OPED included four DPWrelated conditions in its site plan approval (Dkt. No. 23-5 at 4).
Even if DPW's comments should have been submitted to OPED within twenty days, the
procedure used did not cause undue delay. Plaintiffs submitted their site plan to OPED on June
12, 2014 (Dkt. No. 1 ¶ 66). DPW began its review six days later (id. ¶ 89). OPED approved the
site plan on July 1, 2014, with conditions that included DPW's review or approval (id. ¶ 90).
Thereafter, Plaintiffs revised their site plan, OPED reviewed and approved the revisions, with
conditions, on July 30, 2014, and DPW issued its report and comments the next day denying
approval of the site plan pending Plaintiffs' addressing DPW's comments (Dkt. No. 1 ¶ 95; Dkt.
No. 23-6 at 2-15).
In order to determine whether Plaintiffs were deprived of procedural due process, the
court focuses on "what process the [s]tate provided and whether it was constitutionally
adequate." Zinermon v. Burch, 494 U.S. 113, 126 (1990). This inquiry "examine[s] the
procedural safeguards built into the statutory or administrative procedure of effecting the
deprivation, and any remedies for erroneous deprivations provided by statute or tort law." Id.
Here, the Zoning Ordinance and state law satisfied procedural due process by providing
adequate post-deprivation procedures that afforded Plaintiffs the opportunity to rectify what they
perceived to be DPW's unlawful conditions that resulted in delay of the RMV project. See
Mongeau, 462 F. Supp. 2d at 150 ("The First Circuit has affirmed the adequacy of the postdeprivation remedies available under Massachusetts zoning law."). "The First Circuit has
declared that 'where . . . the state offers a panoply of administrative and judicial remedies,
litigants may not ordinarily obtain federal court review of local zoning and planning disputes by

21

means of 42 U.S.C. § 1983.'" Id. (quoting Raskiewicz, 754 F.2d at 44); see also Chongris v. Bd.
of Appeals of Andover, 811 F.2d 36, 41–42 (1st Cir. 1987); Creative Env'ts, Inc., 680 F.2d at 832
n.9. Plaintiffs, although they fail to acknowledge this fact, had an adequate administrative and
judicial remedy. They applied for a building permit prior to obtaining DPW's review and
approval, which violated OPED's site plan approval conditions (Dkt. No. 23-5 at 4). When
Desilets refused to issue the permit due to Plaintiffs' failure to comply with the DPW-related
conditions that OPED imposed, Plaintiffs could have appealed the building commissioner's
decision to the Zoning Board of Appeals pursuant to § 11.2.11 (Dkt. No. 30-1 at 264 ["An appeal
to the Zoning Board of Appeals may be taken by any person aggrieved by reason of his inability
to obtain a permit . . . ."]). See Mass. Gen. Laws ch. 41A, §§ 8, 14. If dissatisfied with the
Zoning Board of Appeals' decision, Plaintiffs had the opportunity to seek review by the state
land court, superior court, or housing court, which all had authority to award most, if not all, of
the relief Plaintiffs seek in this court; that is, money damages for unlawful conduct. See
Sheppard v. Zoning Bd. of Appeal of Bos., 963 N.E.2d 748, 757 (Mass. App. Ct. 2012) (money
damages may be an appropriate remedy for a zoning law violation); Mass. Gen. Laws ch. 41A, §
17. Compare Licari, 22 F.3d at 348-49 (rejecting a developer's procedural due process claim
based on delay of the project where "the state provided adequate remedies"); Amsden v. Moran,
904 F.2d 748, 755 (1st Cir. 1990) ("The availability of judicial review is an especially salient
consideration in situations where permits and licenses have been denied or revoked by state or
local authorities in alleged derogation of procedural due process."). HDC's failure to exhaust

22

available administrative remedies is a reason for the Superior Court's denial of mandamus relief
in September 2014 (Dkt. No. 23-5).15
In addition, Plaintiffs acknowledge that § 12.2.51 of the Zoning Ordinance permits an
applicant for site plan review to appeal to the planning board the "reasonableness of any
conditions" OPED imposes (Dkt. No. 20 at 4; Dkt. No. 30-1 at 274). Plaintiffs contend that this
remedy was not available to them because DPW's requirements were somehow "outside
[OPED's] site plan approval process" (Dkt. No. 20 at 4). Based on the record, this contention is
unavailing. OPED imposed compliance with DPW's requirements as "conditions" required to be
satisfied before a building permit issued (Dkt. No. 23-5 at 4). Because OPED imposed DPW's
requirements as "conditions," their reasonableness was immediately appealable to the planning
board pursuant to § 12.2.51 of the Zoning Ordinance (Dkt. No. 30-1 at 274).
Plaintiffs had more than one adequate means of obtaining relief from OPED's allegedly
unlawful requirement that they comply with the conditions imposed by DPW prior to obtaining a
permit. See Licari, 22 F.3d at 348-49. Accordingly, the court recommends dismissal of
Plaintiffs' procedural due process claim.
2.

Substantive Due Process

Plaintiffs support their substantive due process violation claim with allegations that:
Defendants engaged in (1) a "deliberate and premeditated plan to stall [the project] and cause the
termination of the lease;" and (2) threatening behavior "in order to kill the project" (Dkt. No. 1 ¶¶
64, 85, 88; Dkt. No. 20 at 9-10). Defendants counter that the complaint lacks allegations of
conscious shocking behavior (Dkt. No. 22 at 19-20). When measured against the standards

15

HDC's petition for mandamus relief in the Massachusetts Superior Court Department of the
Trial Court for the County of Hampden sought an order directing Desilets to issue the building
permit (Dkt. No. 23-1 at 2; Dkt. No. 23-5).
23

previously articulated by the courts of this circuit, Plaintiffs' allegations -- even if proven at trial - fall short of stating a viable substantive due process claim.
"As distinguished from its procedural cousin, . . . a substantive due process inquiry
focuses on 'what' the government has done, as opposed to 'how and when' the government did it."
Amsden, 904 F.2d at 754. "'[S]ubstantive due process prevents "governmental power from being
used for purposes of oppression," or "abuse of government power that shocks the conscience," or
"action that is legally irrational in that it is not sufficiently keyed to any legitimate state
interests."'" PFZ Props., Inc. v. Rodriguez, 928 F.2d 28, 31-32 (1st Cir. 1991), overruled on
other grounds by San Geronimo Caribe Project, Inc. v. Acevedo-Vila, 687 F.3d 465 (1st Cir.
2012) (quoting U.S. Citizens in Nicaragua v. Regan, 859 F.2d 929, 943 (D.C. Cir. 1988)). See
Licari, 22 F.3d at 347 ("[S]ubstantive due process ensures that [a state proceeding which results
in deprivation of property] is not arbitrary and capricious."). "For Plaintiffs to adequately allege
a claim for violation of substantive due process [in the land-use context], they must show that (1)
Defendants violated a right protected by the substantive Due Process Clause and (2) Defendants'
actions 'shock the conscience.'" S. Commons Condo. Ass'n, 967 F. Supp. 2d at 468 (quoting
Martinez v. Cui, 608 F.3d 54, 64 (1st Cir. 2010)). See also Mongeau v. City of Marlborough,
492 F.3d 14, 19 (1st Cir. 2007). Defendants challenge the adequacy of the pleadings as to the
second element (Dkt. No. 22 at 19-20).16
"There is no precise formula for determining when [government] conduct rises to the
level of the conscience shocking behavior necessary to sustain a substantive due process claim."
Wyrostek v. Nash, 984 F. Supp. 2d 22, 27 (D.R.I. 2013) (citing Pagán v. Calderón, 448 F.3d 16,

16

Unlike a procedural due process claim, Plaintiffs are not required to demonstrate a property
interest to assert a substantive due process claim. See Mongeau, 462 F. Supp. 2d at 151.
24

32 (1st Cir. 2006)). Courts have described conscience shocking behavior as "extreme and
egregious," "truly outrageous, uncivilized and intolerable," and "stunning." Pagán, 448 F.3d at
32). See Harron, 660 F.3d at 536. "[T]he First Circuit has long been reluctant to apply
substantive due process analysis to alleged violations in the local planning and development
process," Collier v. Town of Harvard, No. Civ.A.95-11652-DPW, 1997 WL 33781338, at *5 (D.
Mass. Mar. 28, 1997), but has left "the door to substantive due process claims in the land use
context . . . 'slightly ajar' for 'truly horrendous situations.'" Glob. Tower Assets, LLC v. Town of
Rome, 810 F.3d 77, 90 (1st Cir. 2016) (quoting Licari, 22 F.3d at 350). See Licari, 22 F.3d at
349 ("'rejections of development projects and refusals to issue building permits do not ordinarily
implicate substantive due process'") (quoting PFZ Props., Inc., 928 F.2d at 31). Courts in this
circuit have indicated that "truly horrendous" government behavior in the land-use context may
include: "racial animus, political discrimination, or fundamental procedural irregularity in the
processing of the projects," PFZ Props., Inc., 739 F. Supp. at 72; bribing or threatening
municipal officials involved in the permitting process, Nestor Colon Medina & Sucesores, Inc.,
964 F.2d at 47; and an overall "corruption of the process," Collier, 1997 WL 33781338, at *7.
See also Brockton Power LLC, 948 F. Supp. 2d at 69.
Plaintiffs' substantive due process claim is based on their inability to obtain the building
permit due to the allegedly "fictitious" DPW approval process OPED imposed as a condition
precedent to the permit's issuance (Dkt. No. 1 ¶¶ 74, 75, 91, 132, 133; Dkt. No. 20 at 9; Dkt. No.
23-5 at 4). Plaintiffs allege that Cignoli, knowing of Plaintiffs' deadline for substantial
completion of the RMV project and using the authority Dromey unlawfully granted him,

25

imposed obstacles to Desilets's issuance of the building permit (Dkt. No. 1 ¶¶ 95, 99, 100, 109,
110, 112, 121-124).17
Taking these allegations as true, Plaintiffs allege that Dromey, Cignoli, and Desilets
abused their authority. Abuse of authority, however, is not the type of egregious behavior that
deprives developers of substantive due process. See Hasenfus v. LaJeunesse, 175 F.3d 68, 72
(1st Cir. 1999). "Every appeal by a disappointed developer from an adverse ruling by a local
Massachusetts [official] necessarily involves some claim that the [official] exceeded, abused or
'distorted' [his] legal authority in some manner, often for some allegedly perverse (from the
developer's point of view) reason." Creative Env'ts, Inc., 680 F.2d at 833. Consequently, federal
courts have rejected claims involving "'the rights and wrongs of local planning disputes' unless
there is a 'truly horrendous situation[].'" Mongeau, 492 F.3d at 19 (quoting Nestor Colon Medina
& Sucesores, Inc., 964 F.2d at 45). Plaintiffs have not alleged facts that meet that strict standard.
Compare Gianfrancesco v. Town of Wrentham, 712 F.3d 634, 639 (1st Cir. 2013) ("a pattern of
selective and excessive enforcement of municipal regulations" did not "plausibly allege" a
substantive due process violation); Licari, 22 F.3d at 346, 349-50 (holding 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" and rejecting a substantive due process claim based on delays in
processing and approval of developer's application for an amended building permit); PFZ Props.,

17

According to the complaint, Cignoli intended to "extort compliance with his illegal approval
process" when he erased the street number of the building at 36 Martone Place after its
demolition and refused to issue another number, thereby preventing Plaintiffs from securing the
building permit (Dkt. No. 1 ¶¶ 80-85; Dkt. No. 20 at 9 ¶ 85). Plaintiffs do not allege, however,
that the building permit was denied due to the absence of a street number, nor can such an
inference reasonably be drawn from the complaint.
26

Inc., 928 F.2d at 32 ("Even assuming that [the permitting authority] engaged in delaying tactics
and refused to issue permits for the . . . project based on considerations outside the scope of its
jurisdiction under Puerto Rico law, such practices, without more, do not rise to the level of
violations of the federal constitution under a substantive due process label."); cf. Cloutier v.
Town of Epping, 714 F.2d 1184, 1190 (1st Cir. 1983) ("[P]laintiffs' long list of harassing actions
reveals not the type of egregious behavior that might violate the due process clause [because they
involved] further disputes over the interpretation of the state and town zoning laws.").
Moreover, the fact that "the allegations underlying Plaintiffs' substantive due process claims are
to a very large extent indistinguishable from those underlying Plaintiffs' procedural due process
claim . . . is usually the hallmark of a weak substantive due process claim." S. Commons Condo.
Ass'n, 967 F. Supp. 2d at 469.
Plaintiffs fare no better with their allegations that Defendants' "threats" deprived them of
their constitutional rights by intentionally obstructing the RMV project and causing MassDOT to
cancel the lease with Plaintiffs for noncompliance with the deadline (Dkt. No. 20 at 10). To
support this claim, Plaintiffs point to Chwalek's statement – "'[I]t's not going there!'" – as he
pounded the project's plan, Cignoli's communication with MassDOT in July 2014, alleged threats
to workers preparing the site, the cease and desist orders that Cignoli and Desilets issued, and
Cignoli's refusal to discuss the project with Frisbie and HDC's attorney (Dkt. No. 20 at 10 ¶¶ 52,
106, 116, 118, 120). Viewing the allegations in the complaint in the light most favorable to
Plaintiffs, Defendants' words and actions are inadequate to sustain a successful substantive due
process claim because they are similar to challenges that courts have rejected in other land-use
cases. Compare Mongeau, 492 F.3d at 19 (upholding dismissal of a substantive due process
claim based on defendant's alleged "'hostility and animus'" that motivated his denial of a building

27

permit and interference with the zoning process) (quoting Licari, 22 F.3d at 349); Nestor Colon
Medina & Sucesores, Inc., 964 F.2d at 46 (rejecting a substantive due process claim based on
"political interference with the permitting process alone"); Raskiewicz, 754 F.2d at 45
(permitting authority's alleged lack of cooperation and official's statement that plaintiff "'would
never be given a . . . permit'" was insufficient to support a substantive due process claim).
This case lacks the characteristics of viable substantive due process claims. See
González–Fuentes v. Molina, 607 F.3d 864, 881 (1st Cir. 2010) ("A hallmark of successful
[substantive due process] challenges is an extreme lack of proportionality, as the test is primarily
concerned with 'violations of personal rights . . . so severe . . . so disproportionate to the need
presented, and . . . so inspired by malice or sadism rather than a merely careless or unwise excess
of zeal that it amounted to a brutal and inhumane abuse of official power literally shocking to the
conscience.'") (quoting Moran v. Clarke, 296 F.3d 638, 647 (8th Cir. 2002) (en banc)). See
Brockton Power LLC, 948 F. Supp. 2d at 69-70 (developers stated a valid claim where
defendants "often acted against the advice of legal counsel, to further their own personal
interests, and while knowing that there was no legal justification for their actions" and essentially
deprived plaintiffs of the ability "to develop their land for any purpose"); Collier, 1997 WL
33781338, at **5-7 (denying defendants' motion for summary judgment based on evidence of
defendants' attempt to extort an easement from the landowner for the personal benefit of a local
official). Here, there is no allegation that Defendants sought to extort money from Plaintiffs and
their acts were not comparably conscience shocking. Plaintiffs' completion of the RMV project
within seven months was complicated by its location, including the new Martone Place's status
as a private way and the related conditions imposed by the 2005 special permit, with which
Plaintiffs had failed to comply. The city had a legitimate interest in compliance with the Zoning

28

Ordinance's DPW-related provisions addressing pedestrian safety and traffic flow (Dkt. No. 30-1
at 278-79, 280). See González–Fuentes, 607 F.3d at 883 ("[T]he executive actions most likely to
shock the conscience are those that are 'intended to injure in some way unjustifiable by any
government interest.'") (quoting Lewis, 523 U.S. at 849).
Because the facts alleged in the complaint fail to demonstrate that this case differs from
the "'run of the mill' land-use claims often brought by disappointed developers and rejected by
federal courts in this jurisdiction," Brockton Power LLC, 948 F. Supp. 2d at 69, the court
recommends dismissal of the substantive due process claim.18
B.

Sections 1983 and 1985(3) Equal Protection Claim Against City Officials
Individually (Count II).

Count II of the complaint alleges that the City Officials, who were "motivated by a
malicious and bad faith intent . . . to benefit a similarly situated competing developer who is
more influential and politically connected in the city" than Plaintiffs, conspired to deprive
Plaintiffs of their constitutional right to the equal protection of the laws by "intentionally and
wrongfully singl[ing] [them] out for unfavorable treatment in the RMV development process
without any rational basis for the difference in treatment" (Dkt. No. 1 at 18). The City Officials
counter that the complaint fails to allege sufficient facts to establish (1) the substantial similarity
requirement for a plausible equal protection violation, and (2) the existence of a conspiracy to
deprive Plaintiffs of their constitutional rights (Dkt. No. 22 at 20-24). The City Officials'
arguments are persuasive. Indeed, Plaintiffs do not dispute the absence of facts to support a
conspiracy.

18

Without expressly alleging a violation of 42 U.S.C. § 1985(3), the complaint makes a passing
reference to a conspiracy to deprive them of their due process rights (Dkt. No. 1 ¶ 131). As
explained more fully below, Plaintiffs do not dispute Defendants' argument that the complaint
fails to state a claim for conspiracy.
29

1.

Equal Protection

"The Equal Protection Clause of the Fourteenth Amendment provides that similarly
situated persons are to receive substantially similar treatment from governmental authorities."
Pawtucket Transfer Operations, LLC v. City of Pawtucket, 539 F. Supp. 2d 513, 522 (D.R.I.
2008) (citing Tapalian v. Tusino, 377 F.3d 1, 5 (1st Cir. 2004)). Plaintiffs assert a "'class of
one'" equal protection claim. Cordi–Allen v. Conlon, 494 F.3d 245, 250 (1st Cir. 2007) (quoting
Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). To prevail on a "class of one" equal
protection violation, a plaintiff must prove all of these four elements: "'1) that [they were]
intentionally treated differently 2) from others similarly situated 3) without a rational basis for
that difference in treatment and 4) that the difference in treatment was due to malicious or bad
faith intent on the part of the defendants to injure [the plaintiff].'" Priolo v. Town of Kingston,
839 F. Supp. 2d 454, 460 (D. Mass. 2014) (quoting Walsh v. Town of Lakeville, 431 F. Supp. 2d
134, 145 (D. Mass. 2006)). See also Brockton Power, LLC, 948 F. Supp. 2d at 70; Mimeault v.
Peabody, Civil Action No. 08-11909-TSH, 2010 WL 2724002, at *4 (D. Mass. July 8, 2010).
Plaintiffs' claim is doomed by their failure to meet their "significant burden" of
identifying a similarly situated project that was treated differently. Bos. Exec. Helicopters, LLC
v. Maguire, 196 F. Supp. 3d 134, 144 (D. Mass. 2016). "'The "similarly situated" requirement
[is] enforced with particular rigor in the land-use context' to prevent disappointed developers
from elevating 'every zoning decision' to a federal constitutional claim." Brockton Power, LLC,
948 F. Supp. 2d at 70 (quoting Cordi–Allen, 494 F.3d at 251). See also Torromeo v. Town Of
Fremont, 438 F.3d 113, 118 (1st Cir. 2006) ("[O]nly in 'extreme circumstances' will a land-use
dispute give rise to an equal protection claim.") (citation omitted). "Two persons or entities are
similarly situated if 'a prudent person, looking objectively at the incidents [complained of],

30

would think them roughly equivalent and the protagonists similarly situated . . . "in all relevant
respects."'" Clark v. Boscher, 514 F.3d 107, 114 (1st Cir. 2008) (quoting Barrington Cove Ltd.
P'ship v. R.I. Hous. & Mortg. Fin. Corp., 246 F.3d 1, 8 (1st Cir. 2001)). See Cordi-Allen, 494
F.3d at 251 (requiring "an extremely high degree of similarity"). "'Exact correlation is neither
likely nor necessary, but the cases must be fair congeners. In other words, apples should be
compared to apples.'" Barrington Cove Ltd. P'ship, 246 F.3d at 8 (citation omitted).
Although Plaintiffs identify Davenport Advisors' RMV project at 1250 St. James Avenue
as a comparator, Plaintiffs fail to establish the requisite degree of similarity between the two
projects. See Bos. Exec. Helicopters, LLC, 196 F. Supp. 3d at 144. In fact, Plaintiffs fail to
identify any similarities, but, instead, apparently seek to rely on discovery to develop "the
requirements placed on the MGM developer" (Dkt. No. 20 at 11). Such conclusory allegations
are insufficient, even at this early stage of the litigation. See id. Davenport Advisors purchased
its property in May 2015 (Dkt. No. 1 ¶ 28). Plaintiffs filed suit more than a year later, in October
2016, giving them the opportunity to visually examine Davenport Advisors' site for similarities,
such as the obvious impediment of a private way. Compare Freeman v. Town of Hudson, 714
F.3d 29, 39-40 (1st Cir. 2013) ("The complaint's failure to do more than conclusorily state that
the [plaintiffs] were both similarly situated to and treated differently from unspecified 'other
contractors' is insufficient to survive the defendants' motion to dismiss."); Gianfrancesco, 712
F.3d at 640 (affirming dismissal of class of one claim where the complaint made "no effort to
establish how or why [an identified comparator was] similarly situated to [plaintiff's business] in
any relevant way," and failed to mention "any other putative comparator"); Cordi-Allen, 494
F.3d at 251 ("[T]he proponent of the equal protection violation must show that the parties with
whom he seeks to be compared have engaged in the same activity vis-à-vis the government

31

entity without such distinguishing or mitigating circumstances as would render the comparison
inutile."); Rubinovitz v. Rogato, 60 F.3d 906, 910 (1st Cir. 1995) ("Plaintiffs claiming an equal
protection violation must first 'identify and relate specific instances where persons situated
similarly "in all relevant aspects" were treated differently, instances which have the capacity to
demonstrate that [plaintiffs] were "singled . . . out for unlawful oppression."'") (quoting
Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 19 (1st Cir. 1989), overruled on other
grounds by Educadores Puertorriqueños en Acción v. Hernández, 367 F.3d 61 (1st Cir. 2004)).
Contrast SBT Holdings, LLC v. Town of Westminster, 547 F.3d 28, 34-35 (1st Cir. 2008) (in an
action by condominium developers alleging an equal protection violation, the complaint survived
dismissal because condominiums that were developed and sold by plaintiffs as part of the same
project were the identified comparators); Brockton Power, LLC, 948 F. Supp. 2d at 71 (plaintiffs'
complaint alleged facts to show that another project was "'virtually identical' to the plaintiffs'
project 'in all material respects'").
Because Plaintiffs fail to adequately identify a comparable project, they also fail to
adequately allege different treatment and the concomitant lack of a rational basis for the
difference in treatment. See Priolo, 839 F. Supp. 2d at 460; Trafford v. Penno, 800 F. Supp.
1052, 1057 (D.R.I. 1992) ("Absent proof of differing treatment, an equal protection claim must
fail."). The complaint's failure to meet the "similarly situated" requirement eliminates the need
to consider Plaintiffs' allegations of bad faith. See Freeman v. Town of Hudson, 849 F. Supp. 2d
138, 152 n.8 (D. Mass. 2012), aff'd, 714 F.3d 29 (1st Cir. 2013) (citing Barrington Cove, 246
F.3d at 10). Consequently, the complaint fails to state a claim for relief as a matter of law and
the court recommends dismissal of Count II.
2.

Conspiracy

32

Plaintiffs allege that Chwalek and Cignoli of DPW conspired with Dromey, the OPED
director, and Desilets, the building commissioner, to "scuttle" Plaintiffs' project because they
favored another developer (Dkt. No. 1 ¶¶ 113, 115). The City Officials argue that the complaint
fails to state an actionable claim for a conspiracy to harm Plaintiffs or to discriminate against
them and Plaintiffs have waived opposition to this claim by failing to address it in their
opposition to the motion to dismiss (Dkt. No. 20 at 11; Dkt. No. 22 at 23-24). See Perkins v.
City of Attleboro, 969 F. Supp. 2d 158, 177 (D. Mass. 2013).19 Consequently, the court
recommends dismissal of so much of Count II as alleges conspiracy.
C.

Federal Immunity

The City Officials argue that, insofar as the complaint alleges valid causes of action
under 42 U.S.C. § 1983 and to the extent they are sued in their individual capacities, they are
entitled to absolute immunity based on their quasi-judicial functions and to qualified immunity
(Dkt. No. 22 at 24-25). The court will discuss these two theories of immunity in turn. 20

19

The complaint fails to allege a cognizable conspiracy claim. "[T]he complaint must allege
facts showing that the defendants conspired against the plaintiffs because of their membership in
a class and that the criteria defining the class were invidious." Harrison v. Brooks, 519 F.2d
1358, 1360 (1st Cir. 1975). Even reading the complaint under the deferential standard afforded
to motions to dismiss and reasonably inferring from the individual City Officials' statements that
they conspired to delay Plaintiffs' project, the complaint is devoid of allegations of "'some racial,
or perhaps otherwise class-based, invidiously discriminatory animus'" (Dkt. No. 1 at 17-18).
Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996) (quoting Griffin v. Breckenridge, 403 U.S. 88,
102 (1971)).
20

To the extent the City Officials are sued in their official capacities, they contend that these
claims are duplicative of the claims against the city and should be dismissed (Dkt. No. 22 at 25).
The court agrees. "A suit against a municipal official in his or her official capacity is considered
a suit against the municipality itself." Diaz-Garcia v. Surillo-Ruiz, Civil No. 13-1473 (FAB),
2014 WL 4403363, at *5 (D.P.R. Sept. 8, 2014) (citing Kentucky v. Graham, 473 U.S. 159, 166
(1985); Surprenant v. Rivas, 424 F.3d 5, 19 (1st Cir. 2005)). "A municipality can be sued
directly under section 1983 for monetary, declaratory, and injunctive relief." Id. (citing Monell
v. Dep't. of Soc. Servs. of N.Y., 436 U.S. 658, 690 (1978)). "When a municipality is sued
directly, claims against municipal employees in their official capacities are redundant and may
33

1.

Quasi-Judicial Immunity

The City Officials allege that the doctrine of quasi-judicial immunity renders them
absolutely immune from liability because they performed quasi-judicial functions (Dkt. No. 22 at
25-26). See Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435-36 (1993). Quasi-judicial
immunity applies to "certain 'quasi-judicial' agency officials who, irrespective of their title,
perform functions essentially similar to those of judges or prosecutors in a setting similar to that
of a court." Bettencourt v. Bd. of Registration in Med. of Com. of Mass., 904 F.2d 772, 782 (1st
Cir. 1990).
The First Circuit's analysis for determining whether an official has engaged in a quasijudicial act "'involves answering three questions, each designed to determine how closely
analogous the adjudicatory experience of a Board member is to that of a judge.'" Diva's Inc. v.
City of Bangor, 411 F.3d 30, 41 (1st Cir. 2005) (quoting Bettencourt, 904 F.2d at 783).
First, does a Board member, like a judge, perform a traditional "adjudicatory" function, in
that he decides facts, applies law, and otherwise resolves disputes on the merits (free
from direct political influence)? Second, does a Board member, like a judge, decide
cases sufficiently controversial that, in the absence of absolute immunity, he would be
subject to numerous damages actions? Third, does a Board member, like a judge,
adjudicate disputes against a backdrop of multiple safeguards designed to protect [the
complaining party's] rights?
Bettencourt, 904 F.2d at 783. Applying this test here, the City Officials' decisions were not
made under traditional adjudicative-type circumstances. Compare Cutting v. Muzzey, 724 F.2d
259, 260 & n.1, 262 (1st Cir. 1984) (denying quasi-judicial immunity to members of a town
planning board's "routine exercise of administrative discretion;" they conditioned approval of
plaintiff's development on the completion of a road); Brockton Power, LLC, 948 F. Supp. 2d at

be dismissed." Id. See Decotiis v. Whittemore, 635 F.3d 22, 26, 38 (1st Cir. 2011) (affirming
dismissal of official-capacity defendant as redundant of the suit against local government
agency).
34

65-66) (planning board members were not entitled to quasi-judicial immunity for their "plainly
administrative" decisions). Accordingly, the City Officials are not entitled to quasi-judicial
immunity.
2.

Qualified Immunity

On the other hand, in the court's view, if the complaint states viable claims, the City
Officials are entitled to qualified immunity. "Qualified immunity is a judge-made doctrine
created to limit the exposure of public officials to damages actions, thereby fostering the
effective performance of discretionary functions in the public sector." Pagán, 448 F.3d at 31
(citing Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982)). The qualified immunity doctrine
shields "government officials performing discretionary functions . . . from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known." Harlow, 457 U.S. at 818; see also
Pagán, 448 F.3d at 31 (qualified immunity "protects all but 'the plainly incompetent [and] those
who knowingly violate the law'") (quoting Malley v. Briggs, 475 U.S. 335, 341 (1982)). Relying
on Supreme Court precedent, the First Circuit has "developed a three-step algorithm for the
determination of whether a state actor is entitled to qualified immunity." Pagán, 448 F.3d at 31
(citing Limone v. Condon, 372 F.3d 39, 44 (1st Cir. 2004)).
In sequential order, "[courts] consider (i) whether the plaintiff's allegations, if true,
establish a constitutional violation; (ii) whether the constitutional right at issue was
clearly established at the time of the putative violation; and (iii) whether a reasonable
officer, situated similarly to the defendant, would have understood the challenged act or
omission to contravene the discerned constitutional right."
Id. (quoting Limone, 372 F.3d at 44).
Notwithstanding that the constitutional right to use and enjoy property is "clearly
established," even if the complaint had sufficiently alleged that the individual defendants

35

violated Plaintiffs' due process or equal protection rights -- which it does not -- it cannot be said
that similarly situated city officials would have understood that their actions deprived Plaintiffs
of these rights based on the First Circuit's long-standing reluctance to find constitutional
violations in the land-use and zoning contexts. Id. See, e.g., Chiplin Enters., Inc. v. City of
Lebanon, 712 F.2d 1524, 1527-28 (1st Cir. 1983); Creative Env'ts., Inc., 680 F.2d at 833; Carter
v. Rollins Cablevision of Mass., Inc., 618 F. Supp. 425, 429 (D. Mass. 1985) ("[D]isappointed
parties involved in land use disputes alleging violations of their rights of due process and equal
protection may not invoke federal jurisdiction pursuant to 42 U.S.C. § 1983."). Similarly, based
on Plaintiffs' project's site at a busy intersection in Springfield, a reasonable person would not
have known that DPW conditions and approval as a condition precedent to the issuance or denial
of a building permit could amount to a constitutional infringement. See Cotnoir v. Univ. of Me.
Sys., 35 F.3d 6, 10 (1st Cir. 1994) ("[T]he [qualified immunity] inquiry focuses on the objective
reasonableness of a defendant's actions, in light of whether the plaintiff's rights were clearly
established, and whether the contours of that right were sufficiently clear such that a reasonable
official would have understood that the actions he took violated that right."); Bourne v. Town of
Madison, 494 F. Supp. 2d 80, 93–94 (D.N.H. 2007).
D.

State Law Claims

The remaining counts in Plaintiff's complaint are state law claims over which the court
has pendant jurisdiction. "Once a case is properly before a federal district court, however, that
court has broad authority to retain jurisdiction over pendant state law claims even if the federal
claim[s are] . . . dismissed." Delgado v. Pawtucket Police Dep't, 668 F.3d 42, 48 (1st Cir. 2012).
See Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 256–57 (1st Cir. 1996); 28 U.S.C. §
1367(c)(3). "In determining whether to retain jurisdiction on such an occasion, the court must

36

take into account considerations of judicial economy, convenience, fairness to the litigants, and
comity." Delgado, 668 F.3d at 48. Because the court has discretion to hear the claims, this court
analyzes the state law claims and, with the exception of Count IV, recommends that the district
court dismiss them.
1.

MCRA Claim Against the City Officials Individually (Count III)

In Count III, Plaintiffs allege that the City Officials, individually "and in conspiracy with
each other" interfered with Plaintiffs' rights under the Constitution and laws of Massachusetts
"including their property rights and due process rights in connection with the use and
development of 36 Martone Place . . . through threats, intimidation or coercion" (Dkt. No. 1 at
18-19). In their opposition to the motion to dismiss, Plaintiffs refer only to economic coercion
(Dkt. No. 20 at 11). The City Officials argue that the complaint fails to state an actionable claim
for an MCRA violation due to the absence of: (1) Plaintiffs' property interest in a building
permit that was never issued; and (2) the necessary element of coercion, including economic
coercion (Dkt. No. 22 at 26-27).
The City Officials' first argument fails because the cases upon which they rely for their
position that Plaintiffs did not have a property right are distinguishable (id. at 27). In Roslindale
Motor Sales v. Police Comm'r of Bos., 538 N.E.2d 312 (Mass. 1989), the court addressed the
denial of plaintiff's license to buy and sell used motor vehicles. Id. at 314-15. K. Hovnanian at
Taunton, Inc. v. Taunton, 642 N.E.2d 1044 (Mass. App. Ct. 1994), analyzed a subdivision
developer's right to connect to a sewer line. Id. at 1049-50. On the other hand, this case
addresses Plaintiffs' right to develop the new RMV building on their property pursuant to their
contract with MassDOT. See Swanset Dev. Corp. v. Taunton, 668 N.E.2d 333, 338 (Mass. 1996)
("[A]n owner of real property has a constitutional right to use and improve that property, subject,

37

of course, to limitations on development lawfully imposed by [s]tate law or by municipal
regulation.").
The court, however, agrees with the City Officials' contention that Plaintiffs fail to allege
sufficient facts to show that their rights were impaired by coercion. Section 11I of the MCRA,
incorporating § 11H, states:
Any person whose exercise or enjoyment of rights secured by the constitution or laws of
the United States, or of rights secured by the constitution or laws of the commonwealth,
has been interfered with, or attempted to be interfered with, [by any person by means of
threats, intimidation, or coercion,] may institute and prosecute in his own name and on
his own behalf a civil action for injunctive and other appropriate equitable relief . . .
including the award of compensatory money damages.
Mass. Gen. Laws Ann. ch. 12, §§ 11H, 11I. "To establish a claim under the [MCRA] the
plaintiffs must prove that (1) their exercise or enjoyment of rights secured by the Constitution or
laws of either the United States or of the Commonwealth, (2) have been interfered with, or
attempted to be interfered with, and (3) that the interference or attempted interference was by
'threats, intimidation or coercion.'" Swanset Dev. Corp., 668 N.E.2d at 337 (quoting Mass. Gen.
Laws ch. 12, § 11I). "The MCRA is coextensive with 42 U.S.C. § 1983, except that the Federal
statute requires [s]tate action whereas its [s]tate counterpart does not, and the derogation of
secured rights must occur by threats, intimidation or coercion." Sietins v. Joseph, 238 F. Supp.
2d 366, 377–78 (D. Mass. 2003) (quotations and citations omitted).
"[B]y the Civil Rights Act, 'the Legislature did not intend to create "a vast constitutional
[and statutory] tort,"' and . . . the insertion by the Legislature of the requirement of threats,
intimidation or coercion was specifically intended to limit liability under the Act." Freeman v.
Planning Bd. of W. Boylston, 646 N.E.2d 139, 149 (Mass. 1995) (quoting Bally v. Ne. Univ., 532
N.E.2d 49, 52 (Mass. 1989)).
For purposes of the MCRA, "a '[t]hreat' . . . involves the intentional exertion of pressure
to make another fearful or apprehensive of injury or harm. . . . 'Intimidation' involves
38

putting in fear for the purpose of compelling or deterring conduct. . . . ['Coercion'
involves] 'the application to another of such force, either physical or moral, as to
constrain [a person] to do against his will something he would not otherwise have done.'"
Bos. Exec. Helicopters, LLC, 196 F. Supp. 3d at 145 (quoting Planned Parenthood League of
Mass., Inc. v. Blake, 631 N.E.2d 985, 990 (Mass. 1994)). See Farrah v. Gondella, 725 F. Supp.
2d 238, 247 (D. Mass. 2010).
Because Plaintiffs fail to allege that they were placed in fear, the court focuses its
analysis on coercion; that is, whether Plaintiffs have alleged that the City Officials sought to
compel them "to do or not to do" something. Pheasant Ridge Assoc. Ltd. P'ship v. Town of
Burlington, 506 N.E.2d 1152, 1158 (Mass. 1987). In support of their claim of coercion,
Plaintiffs cite: (1) Dromey's and Cignoli's "immediate hostility toward the project" at their first
meeting with Frisbie in March 2014, after Martone had secured the MassDOT lease, and their
continued animus toward "the RMV project" a month later during a meeting with representatives
of MassDOT and RMV; (2) Chwalek's "[p]ounding on the plan" and vocally disapproving the
project's location before his retirement in May 2014; (3) Cignoli's e-mail message notifying
MassDOT of the delay caused by the absence of DPW's approval; (4) Desilets's and Cignoli's
issuance of cease and desist orders requiring Plaintiffs to stop all site work; (5) Desilets's and
Cignoli's or their representatives' threatening that an HDC site contractor "would never work in
Springfield again;" (6) DPW employees telling HDC's site contractor's employees, "'Now we
have your neck in a noose;'" (7) Cignoli's refusal to discuss the project with Frisbie and Plaintiff's
attorney, and requiring Plaintiffs to hire a consultant; (8) Cignoli's repeated refusals to approve
the project thereby compelling Plaintiffs to comply with the DPW-related conditions or risk
losing the MassDOT lease; (9) Desilets's denial of the building permit based on Cignoli's failure
to approve the project; and (10) a political insider's statement to DCAMM from which it could

39

be reasonably inferred that the city had the ability to "quash" Martone's development plans (Dkt.
No. 1 ¶¶ 7, 47, 48, 50-52, 54, 106, 107, 80-85, 106, 108, 109, 116-124, 139, 141). 21
Although "purely economic pressures may constitute actionable coercion under the
MCRA . . . ." Nolan v. CN8, 656 F.3d 71, 77 (1st Cir. 2011) (citing Buster v. George W. Moore,
Inc., 783 N.E.2d 399, 410 & n.17 (Mass. 2003)), these facts do not establish a viable claim of
coercion, even under the Plaintiff-friendly standard applicable to motions to dismiss. See
Meuser v. Fed. Express Corp., 524 F. Supp. 2d 142, 147 (D. Mass. 2007), aff'd, 564 F.3d 507
(1st Cir. 2009) ("the exception for claims based on non-physical coercion remains a narrow
one"). It is not alleged that the City Officials sought to "force the [P]laintiffs to do something
against their will that they would not have done otherwise." Kennie v. Nat. Res. Dept. of Dennis,
889 N.E.2d 936, 945 (Mass. 2008). There is no plausible allegation that the City Officials
sought to coerce Plaintiffs to withdraw from their contract with MassDOT, to use their property
for some other purpose, or to meet conditions unrelated to DPW's legitimate areas of concern
(e.g., traffic and pedestrian safety) that were imposed through an allegedly illegal process.
Instead, MassDOT cancelled the lease in May 2015, which was nine months beyond the original
substantial completion date, due to the project's delay (Dkt. No.1 ¶¶ 22, 125). Compare Swanset
Dev. Corp., 668 N.E.2d at 338 ("While the plaintiffs allege that the defendants acted in concert
to delay and impede the development of their property, they do not allege that any defendant
sought to persuade them to alter or to amend their plans to conform with conditions which the
defendants sought to impose illegally on the plaintiffs."); Freeman, 646 N.E.2d at 150 & n.18
(planning board's attempts to impose an unlawful condition related to its legitimate concerns

21

Count III also references "threats of fines and unjustified fines," without any supporting
factual allegations (Dkt. No. 1 ¶ 141).
40

about safety did not interfere with the plaintiffs' rights in the land by coercion). Contrast Kennie,
889 N.E.2d at 944-45 (shellfish constable's actions could be viewed as sufficiently coercive
under the MCRA to survive a motion for summary judgment where constable's actions could be
construed as aimed at coercing plaintiffs to withdraw their permit request for their preferred
location for a dock); Pheasant Ridge Assoc. Ltd. P'ship, 506 N.E.2d at 1159 ("If the trier of fact
concludes that the selectmen's words could reasonably be understood only to express an intention
to use lawful means to block the development, those words would not be a threat, intimidation,
or coercion actionable under § 11I."); Tortora v. Inspector of Bldgs. of Tewksbury, 668 N.E.2d
876, 878 (Mass. App. Ct. 1996) (town officials were not entitled to summary judgment where
they "sought to cause the plaintiffs to cease attempts to pursue lawful avenues to use and enlarge
their property").
Fairly read, Plaintiffs' complaint alleges that the City Officials intentionally delayed
Plaintiffs' project so that they would lose their contract with MassDOT (Dkt. No. 1 ¶¶ 56, 62, 98,
129). This, however, is an allegation of a direct deprivation of rights that is not actionable under
the MCRA. "[A] direct deprivation of rights, even if unlawful, is not coercive because it is not
an attempt to force someone to do something the person is not lawfully required to do."
Freeman, 646 N.E.2d at 149. See Swanset Dev. Corp., 668 N.E.2d at 338 ("[T]o the extent that
the plaintiffs allege that various delays were a deliberate attempt to frustrate their development
plans, they have alleged a direct deprivation of rights rather than an attempt at coercion.").
In the land-use context, the line between direct deprivation and coercion is not
necessarily a bright line. Adverse administrative action may "rise to the level of . . . coercion" if
it is "part of a scheme of harassment." Murphy v. Town of Duxbury, 665 N.E.2d 1014, 1018
(Mass. App. Ct. 1996) (citing Smith v. Longmeadow, 563 N.E.2d 697, 699 (Mass. App. Ct.

41

1990)). "In order to establish a 'scheme of harassment' there must be some evidence of animus
against the plaintiffs or their project and an attempt to thwart the project through adverse
administrative action unrelated to the board's legitimate concerns." Id. (citing Freeman, 646
N.E.2d at 149 n.17). Even if these elements are present, the alleged "scheme of harassment"
must be designed to force a property owner to forgo development in order to constitute coercion
that is actionable under the MCRA. See Kennie, 889 N.E.2d at 944-45. Because Plaintiffs in
this case had a contract with a third party – MassDOT – and there is no allegation that the City
Officials used delay to coerce Plaintiffs to withdraw from that contract, as opposed to delaying
the project to cause its failure, this case falls into the category of those in which plaintiffs have
alleged a direct deprivation of rights.
Plaintiffs' allegations are not sufficient to state a claim for relief against the City Officials
for violating the MCRA. Accordingly, the court recommends that Defendants' motion to dismiss
Count III be allowed. 22
2.

Martone's Tortious Interference with Contractual Relations Claim Against
the City Officials Individually (Count IV)

The City Officials seek dismissal of Martone's allegation that they improperly interfered
with its contract with MassDOT by "preventing the issuance of permits in time for substantial
completion of the RMV [project] required by the lease" (Dkt. No. 20 at 12). The City Officials
contend that they did not act with the requisite improper motive or means and that the alleged
harm they caused is "too speculative" (Dkt. No. 22 at 28). The court disagrees with these
contentions.

22

The qualified immunity principles developed under § 1983 apply equally to claims under the
MCRA. See Duarte v. Healy, 537 N.E.2d 1230, 1232-33 (Mass. 1989). Because Plaintiffs have
failed to state a viable MCRA claim, the court does not reach the issue of qualified immunity.
42

As a preliminary matter, the City Officials' argument that Martone's claim of damages is
"too speculative" is wholly unpersuasive. Martone's ten-year lease with MassDOT provided for
rent of $625,600 per year (Dkt. No. 1 ¶ 20). See O'Brien v. Pearson, 868 N.E.2d 118, 127
(Mass. 2007) ("'Prospective profits may be recovered in an appropriate action when the loss of
them appears to be the direct result of the wrong complained of . . . .'") (quoting Lowrie v. Castle,
113 N.E. 206, 210 (Mass. 1916)).
As to the elements of the claim, a claim for tortious interference is established only
"when interference resulting in injury to another is wrongful by some measure beyond the fact of
interference itself." United Truck Leasing Corp. v. Geltman, 533 N.E.2d 647, 650 n.2 (Mass.
App. Ct. 1989), rev'd in part by 551 N.E.2d 20 (Mass. 1990). Accord James L. Miniter Ins.
Agency, Inc. v. Ohio Indem. Co., 112 F.3d 1240, 1250 (1st Cir. 1997). To establish a claim of
intentional interference with contractual relations, Martone must prove that "(1) [it] had a
contract with a third party; (2) the defendant knowingly induced the third party to break that
contract; (3) the defendant's interference, in addition to being intentional, was improper in
motive or means; and (4) the plaintiff was harmed by the defendant's actions." G.S. Enters., Inc.
v. Falmouth Marine, Inc., 571 N.E.2d 1363, 1369 (Mass. 1991). As to the third prong, which is
at issue here, Martone need only establish either improper means or motive, not both, to sustain a
claim of tortious interference. See Cavicchi v. Koski, 855 N.E.2d 1137, 1142 (Mass. App. Ct.
2006).
"The propriety of an actor's motives in a particular setting necessarily depends on the
attending circumstances, and must be evaluated on a case-by-case basis." G.S. Enters., Inc., 571
N.E.2d at 1370. Some factors that are considered in determining whether or not an actor
improperly interfered with contractual relations are: "the nature of the actor's conduct, . . . the

43

actor's motive, . . . the proximity or remoteness of the defendant[s'] conduct to the interference
and . . . the relations between the parties." Pine Polly, Inc. v. Integrated Packaging Films IPF,
Inc., Civil Action No. 13-11302-NMG, 2014 WL 1203106, at *6 (D. Mass. Mar. 19, 2014)
(quoting Restatement (Second) of Torts § 767(a), (b), (f), (g)).
Applying these factors and drawing all reasonable inferences in Martone's favor, the City
Officials' statements and acts sufficiently demonstrate the officials' potential liability for
improperly interfering with Martone's contract with MassDOT by delaying the RMV project
thereby preventing Martone from delivering it on time. The City Officials knew the substantial
completion date under Martone's contract and controlled the timing of the issuance of the permits
that Martone required to meet the completion deadline. The officials' purported statements,
which conveyed their ill will toward Martone or its project from its inception, in combination
with their dilatory acts are sufficient to support the inference that they intended to injure
Martone. In fact, MassDOT cancelled the contract with Martone based on its failure to meet the
substantial completion date under the contract (Dkt. No. 1 ¶ 125). Compare Brockton Power,
LLC, 948 F. Supp. 2d at 75 (defendants' "concerted efforts to destroy the project out of malice
directed at the plaintiffs and their project" warranted denial of the motion to dismiss); Petricca v.
City of Gardner, 429 F. Supp. 2d 216, 225 (D. Mass. 2006) (finding liability for intentional
interference based on city official's false statements and other evidence of improper motive for
preventing plaintiff from selling his properties); cf. Draghetti v. Chmielewski, 626 N.E.2d 862,
869 (1994) (a history of "strained relations" between a police officer and his chief of police
together with evidence of a physical confrontation between them and severe disparate treatment
of the officer by the chief was sufficient to demonstrate that the chief acted with improper
motives in interfering with the officer's part-time employment at a police training academy).

44

Given that questions of motive and intent are not conducive to resolution at this stage of
the litigation, see, e.g., Getty Petroleum Mktg., Inc. v. 2211 Realty, LLC, Civil Action No. 1140003-FDS, 2012 WL 527655, at *6 (D. Mass. Feb. 16, 2012), the complaint contains sufficient
factual allegations to state a plausible claim for relief for intentional interference with Martone's
contractual relations. See United Truck Leasing Corp., 551 N.E.2d at 24 (suggesting that a
motive to injure plaintiff would sustain an intentional interference action); Cavicchi, 855 N.E.2d
at 1142 ("As to improper motive, evidence of retaliation or ill will toward the plaintiff will
support the claim."). Accordingly, the court recommends that the City Officials' motion to
dismiss Count IV be denied.
3.

HDC's Request for Declaratory Judgment Against Cignoli in his Official
Capacity and the City of Springfield (Count V)

Under the court's pendant jurisdiction, HDC seeks declaratory relief pursuant to the
Massachusetts declaratory judgment statute. Section 1 of Mass. Gen. Laws ch. 231A states:
The supreme judicial court, the superior court, the land court and the probate courts,
within their respective jurisdictions, may on appropriate proceedings make binding
declarations of right, duty, status and other legal relations sought thereby, either before or
after a breach or violation thereof has occurred in any case in which an actual controversy
has arisen and is specifically set forth in the pleadings and whether any consequential
judgment or relief is or could be claimed at law or in equity or not . . . .
Mass. Gen. Laws Ann. ch. 231A, § 1 (Dkt. No. 1 at 19-20; Dkt. No. 20 at 12-13).23 HDC asks
the court to: (1) declare that prospective developers do not have to comply with a separate DPW

23

According to § 2:
The procedure under section one may be used to secure determinations of right, duty,
status or other legal relations under . . . a charter, statute, municipal ordinance or by-law,
or administrative regulation, including determination of any question of construction or
validity thereof which may be involved in such determination. Said procedure under
section one may be used in the superior court to enjoin and to obtain a determination of
the legality of the administrative practices and procedures of any municipal, county or
state agency or official which practices or procedures are alleged to be in violation of the
45

approval process prior to obtaining a building permit; (2) permanently enjoin the building
commissioner from requiring an applicant for a building permit to obtain DPW approval; (3)
declare that Cignoli and DPW have no legal authority to eliminate or withhold street numbers;
and (4) permanently enjoin Cignoli and DPW from eliminating and withholding street numbers
(Dkt. No. 1 at 20).
This court has jurisdiction to evaluate a claim under the Massachusetts statute and to
award relief. See, e.g., Traincroft v. Ins. Co. of Pa., Civil No. 14-10551-FDS, 2014 WL
2865907, at *5 n.5 (D. Mass. June 23, 2014) (citing cases). The purpose of the statute is "to
remove, and afford relief from, uncertainty and insecurity with respect to rights, duties, status
and other legal relations." Mass. Gen. Laws ch. 231A, § 9. See also LeBeau v. Town of Spencer,
190 F. Supp. 2d 131, 137 (D. Mass. 2002). It "is to be liberally construed and administered."
Mass. Gen. Laws ch. 231A, § 9.
HDC fails to satisfy the requirement for obtaining declaratory relief because its requests
do not apply to any pending development, but are merely speculative. Declaratory judgment
actions "are concerned with the resolution of real, not hypothetical, controversies." Mass. Ass'n.
of Indep. Ins. Agents & Brokers, Inc. v. Comm'r of Ins., 367 N.E.2d 796, 799 (Mass. 1977).
"Parties are not entitled to decisions upon abstract propositions of law unrelated to some live
controversy." Cole v. Chief of Police, 45 N.E.2d 400, 401 (Mass. 1942). Accordingly, "[i]n
order for a declaratory judgment to issue under G.L. c. 231A, the plaintiff must demonstrate [1]

Constitution of the United States or of the constitution or laws of the commonwealth, or
are in violation of rules or regulations promulgated under the authority of such laws,
which violation has been consistently repeated . . . .
Mass. Gen. Laws Ann. ch. 231A, § 2.
46

that an actual controversy exists and [2] that he has legal standing to sue." Dist. Attorney for
Suffolk Dist. v. Watson, 411 N.E.2d 1274, 1280 (Mass. 1980) (citing Mass. Ass'n of Indep. Ins.
Agents & Brokers, Inc., 367 N.E.2d at 799. See also Villages Dev. Co. v. Sec'y of the Exec.
Office of Envtl. Affairs, 571 N.E.2d 361, 366 (Mass. 1991). An actual controversy within the
meaning of G.L. c. 231A, § 1, is "a real dispute . . . where the circumstances . . . indicate that,
unless a determination is had, subsequent litigation as to the identical subject matter will ensue."
City of Boston v. Keene Corp., 547 N.E.2d 328, 330 (Mass. 1989), quoting Hogan v. Hogan, 70
N.E.2d 821, 824 (Mass. 1947). See also Dist. Attorney for Suffolk Dist., 411 N.E.2d at 1280. In
order to have standing, the plaintiffs must be "in danger of suffering legal harm." Tax Equity All.
for Mass. v. Comm'r of Rev., 672 N.E.2d 504, 509 (Mass. 1996) (citing Doe v. The Governor,
412 N.E.2d 325, 326 (Mass. 1980)). See Town of Burlington v. Town of Bedford, 628 N.E.2d
1280, 1282 (Mass. 1994) ("Only persons who have themselves suffered, or who are in danger of
suffering" have standing). "Alleged injury that is 'speculative, remote, and indirect' will not
suffice to confer standing." Brantley v. Hampden Div. of the Probate and Family Ct. Dept., 929
N.E.2d 272, 280 (Mass. 2010) (quoting Ginther v. Comm'r of Ins., 693 N.E.2d 153, 157 (Mass.
1998)).
Because HDC fails to allege that it has a pending application for site plan review to
which its requested rulings would apply, it lacks an actual controversy and standing.
Accordingly, the court recommends dismissal of Count V.
4.

Constructive Taking Claim Against the City of Springfield (Count VI)

Finally, HDC and Martone allege that the city's "misuse" of the Zoning Ordinance
"deprived them of all practical value of their land" by "denying any use of the site that accesses
Tapley Street" (Dkt. No. 1 at 20-21). Plaintiffs' claim is based on Cignoli's alleged statement

47

that "he would not approve any plan for any use of the site that allowed customers of the RMV
to use a right of way to access Tapley Street and take a left turn onto Tapley Street" (id. ¶ 123)
(emphasis original). According to Plaintiffs, HDC is "legally required to keep the right of way
onto Tapley Street open" (id. ¶ 124). The city persuasively counters that, as a matter of law, the
denial of the building permit for the RMV project did not foreclose the property's use for other
development (Dkt. No. 22 at 29-30).
"Article 10 of the Massachusetts Declaration of Rights and the Fifth and Fourteenth
Amendments to the United States Constitution prohibit the taking of private property for public
use without just or reasonable compensation." Fitchburg Gas & Elec. Light Co. v. Dep't of Pub.
Utils., 7 N.E.3d 1045, 1052 (Mass. 2014). Takings in the land-use context are categorized as
either per se or regulatory takings. See id. "Government regulatory actions may be deemed per
se takings if a regulation causes a permanent physical invasion, see Loretto v. Teleprompter
Manhattan CATV Corp., 458 U.S. 419, 426–428 (1982), or if the regulation deprives a property
owner of any viable economic use of the property." Fitchburg Gas & Elec. Light Co., 7 N.E.3d
at 1052 (citing Lucas v. S. C. Coastal Council, 505 U.S. 1003, 1015–16 (1992); Blair v. Dep't of
Conservation & Recreation, 932 N.E.2d 267, 272 (Mass. 2010)). "A regulatory action also may
constitute a taking if it interferes too significantly with one's property use on balance with the
legitimate public purpose the interference serves." Id. (citing Penn Cent. Transp. Co. v. N.Y.C.,
438 U.S. 104, 124 (1978)). See Pa. Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). In
determining the degree of a regulation's interference with use of the property, courts apply a
three-pronged test. See Penn Cent. Trasp. Co., 438 U.S. at 124-25. The courts consider: (1)
"the economic impact of the regulation on the claimant"; (2) "the extent to which the regulation
has interfered with distinct investment-backed expectations"; and (3) "the character of the

48

governmental action." Blair, 932 N.E.2d at 273 (quoting Leonard v. Brimfield, 666 N.E.2d
1300, 1302 (Mass. 1996)). Plaintiffs appear to be advancing a per se taking claim (Dkt. No. 1 at
20-21).
Plaintiffs' contention is flawed in several respects. As a preliminary matter, there is a
procedural defect: Plaintiffs rely on Cignoli's statement, but fail to identify the regulation that
they allege deprived them of the use of their property. Instead, they take issue with the city's
interpretation of the Zoning Ordinance, which does not support a cause of action for a
constructive taking. See Fitchburg Gas & Elec. Light Co., 7 N.E.3d at 1052. Consequently, the
complaint fails to provide the court or the city with fair notice as to the basis of the claim. See
Twombly, 550 U.S. at 1964 (complaint needs to "'give the defendants fair notice of what the . . .
claim is and the grounds upon which it rests.'") (citation omitted); Fed. R. Civ. P. 8(a)(2); see
also Thomas v. Rhode Island, 542 F.3d 944, 948 (1st Cir. 2008).
If this procedural misstep is ignored and Plaintiffs are deemed to object to the sections of
the Zoning Ordinance that require DPW to participate in OPED's site plan review and permit
OPED to impose conditions on the issuance of a building permit, the court agrees with the city's
contention that Plaintiffs fail to demonstrate a viable cause of action based on either a per se or a
regulatory taking. The ordinance did not constitute a per se taking because Plaintiffs have not
adequately alleged that they were denied all economically beneficial use of the property. See
Lucas, 505 U.S. at 1015-16.24 Even viewed under the plaintiff-favorable standard applicable to
motions to dismiss, Cignoli's comment, as stated in the complaint, cannot reasonably be
construed to bar all uses of the property because it was specifically directed at the RMV project

24

Plaintiffs do not contend that the city physically occupied the property. See Lucas, 505 U.S. at
1028.
49

(Dkt. No. 1 ¶ 123). In addition, Cignoli only purported to prohibit left turns onto Tapley Street;
he did not purport to preclude other means of ingress and egress (id.). Moreover, the property
was in a zone that permitted non-medical office buildings as of right and in 2005 Plaintiffs were
granted a special permit for the construction of a car wash on the site (Dkt. No. 1 ¶ 41; Dkt. No.
23-7 at 10-11). These facts support the city's contention that the Zoning Ordinance did not "strip
[the] property 'of all practical value to [Plaintiffs] or to anyone acquiring it, leaving them only
with the burden of paying taxes on it.'" Lovequist v. Conservation Comm'n of Dennis, 393
N.E.2d 858, 866 (Mass. 1979) (quoting MacGibbon v. Bd. of Appeals of Duxbury, 340 N.E.2d
487, 490 (Mass. 1976)).
These facts also buttress the city's position that Plaintiffs fail to establish the three factors
necessary to support a claim for a constructive taking. "To determine the economic impact of the
[Zoning Ordinance] on the [P]laintiff's property, the first of the Penn Central factors, [courts]
consider the value of the property 'before and after the alleged taking.'" Blair, 932 N.E.2d at 276
(citing Giovanella v. Conservation Comm'n of Ashland, 857 N.E.2d 451, 725 (Mass. 2006)).
Plaintiffs fail to allege any diminution in value. See id. Similarly, Plaintiffs' inability to develop
the RMV project "did not interfere substantially with [their] investment-backed expectations,"
Blair, 932 N.E.2d at 276, because, in considering a motion to dismiss, the court is not permitted
to consider their conclusory allegation that other development was foreclosed (Dkt. No. 1 at 2021). See Iqbal, 556 U.S. at 678. Compare Daddario v. Cape Cod Comm'n, 681 N.E.2d 833, 838
(Mass. 1997) ("The denial of a particular plan cannot be equated with a refusal to permit any
development."); Lovequist, 393 N.E.2d at 866 ("[G]overnmental decisions may deprive an owner
of a beneficial property use even the most beneficial such use without rendering the regulation an
unconstitutional taking.") (citing Penn Cent. Transp. Co., 438 U.S. at 123-128). Finally, turning

50

to the last element -- the "character of the government action" -- the plaintiffs do not dispute that
the provisions of the Zoning Ordinance . . . were adopted for a legitimate purpose. Blair, 932
N.E.2d at 277. "[T]he avoidance of undue concentration and congestion of vehicular traffic of
any kind . . . [is a] valid interest[] which a zoning by-law is entitled to recognize and enforce . . .
." Davis v. Zoning Bd. of Chatham, 754 N.E.2d 101, 108 (Mass. App. Ct. 2001).
The provisions of the Zoning Ordinance that permitted DPW's involvement in the
permitting process did not deprive Plaintiffs of their land without just compensation.
Consequently, the court recommends dismissal of Count VI.

51

V.

CONCLUSION

For the above-stated reasons, the undersigned recommends that Defendants' motion to
dismiss (Dkt. No. 10) be granted as to Counts I and II, which are the only federal claims asserted
in the complaint. If the presiding District Judge adopts this court's recommendation to dismiss
Counts I and II, he may choose, in his discretion, to dismiss the remaining state law claims
without prejudice to their refiling in state court. In the event that the presiding District Judge
does not adopt the recommendation to dismiss Counts I and II, or elects to retain jurisdiction
over the remaining state law claims, this court recommends that Defendants' motion to dismiss
be granted as to Counts III, V, and VI and denied as to Count IV. 25
Dated: August 22, 2017

/s/ Katherine A. Robertson
KATHERINE A. ROBERTSON
UNITED STATES MAGISTRATE JUDGE

25

The parties are advised that under the provisions of Fed. R. Civ. P. 72(b) or Fed. R. Crim. P.
59(b), any party who objects to these findings and recommendations must file a written objection
with the Clerk of this Court within fourteen (14) days of the party=s receipt of this Report and
Recommendation. The written objection must specifically identify the portion of the proposed
findings or recommendations to which objection is made and the basis for such objection. The
parties are further advised that failure to comply with this rule shall preclude further appellate review
by the Court of Appeals of the District Court order entered pursuant to this Report and
Recommendation. See Keating v. Sec’y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir.
1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Scott v. Schweiker, 702 F.2d
13, 14 (1st Cir. 1983); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir. 1982); Park Motor
Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir. 1980). See also Thomas v. Arn, 474 U.S.
140, 154-55 (1985). A party may respond to another party=s objections within fourteen (14) days
after being served with a copy thereof.
52