Creative Environments, Inc. v. Estabrook, 680 F.2d 822 (1st Cir. 1982)

Only 84 of the 90 homes were to be built on land within the Bolton town limits. The other six were to be built on areas in Appleton Ridge which fell within the boundaries of the neighboring town of Stow. The issues in this case are related only to the 84 homes — to be built in 21 clusters — within the Town of Bolton.

The Planning Board at this time was made up of Robert R. Estabrook (Chairman), Thomas Murphy, Berneda A. Serfass, and Bordon E. Slater. These officials — with the exception of Thomas Murphy, who died during the course of the litigation — are all defendants in the present action. Other named town officials who are defendants in this case include Planning Board members Fischer and Kelley, Town Counsel Hill, the Board of Selectmen, the town’s Law Committee, and the seven members of the Conservation Commission.

In the normal course, the state subdivision law prohibits a town from applying any new zoning ordinances or bylaws to a subdivision plan once a preliminary plan is filed. The filing of a state suit appealing a disapproval of a definitive plan preserves these rights and stays the application of any new ordinances “pending an order or decree of a court of final jurisdiction." Mass.G.L. c. 40A, § 7A.

Because of CEI’s state lawsuit, this new bylaw could apparently not be applied to CEI’s plan until after an order or decree by a state court pursuant to Mass.G.L. c. 40A, § 7A (as in effect prior to St. 1975, c. 808, § 3; see now Mass.G.L. c. 40A, § 6, para. 6). See note 3, supra.

Mass.G.L. c. 41, § 81Q provides that “No rule or regulation shall require, and no Planning Board shall impose, as a condition for the approval of a plan of a subdivision, that any of the land within said subdivision be dedicated to the public use . .. without just compensation to the owner thereof.”

While it is uncertain whether the state court’s order remanding the case to the Planning Board would have constituted a “final judgment” under applicable state law, see Mass.R. Civ.P. 54(a) (requiring final adjudication of rights of the parties), the order denying the new trial might have been appealable and subject to review for abuse of discretion or error of law provided the ground for granting the new trial arose for the first time on the motion. See Moran v. Pieroni, 326 Mass. 516, 95 N.E.2d 296 (1950).

Between the time CEI withdrew its state court appeal and filed its federal action, the Planning Board adopted a new regulation raising the filing fee for subdivision plans. CEI would be adversely affected by this regulation if forced to submit an entirely new subdivision plan — indeed its original $75 fee would be increased to some $19,856 — but CEI does not here separately challenge the regulation. It does assert, however, that the size of the fee— which was set to help the town defray its costs in processing plans — is further proof that the town intended to enforce its environmental study regulations.

Plaintiffs refer us to a number of statements in the record, such as the Board’s answer to CEI’s complaint in the state court proceeding and various statements by Board members, which are claimed to be admissions on the part of various defendants that this regulation played a central role in the denial of CEI’s September submission. We have examined these and find that they reflect, at most, a running disagreement among various Board members concerning the validity of the regulation. There is no evidence that that regulation was actually dispositive to the Board’s decision, while such evidence as there is supports the view that the Board expressly decided not to condition their approval or disapproval of the plan on CEI’s study on several occasions. The closest plaintiffs come to raising an issue of fact on the question is a cryptic answer by Planning Board member Fischer to a rather involved question put to him by CEI’s counsel during a 1975 deposition. This exchange was as follows: The answers of a single Board member to the above questions — all of which suggest a hypothetical situation rather than the actual motivation of the Board in deciding on CEI’s plan — is not a sufficient showing when placed beside the actual text of the rejection letter and the Board’s votes to raise an issue of fact as to whether the environmental study regulation played a dispositive role in the rejection of the plan. Nor does the Board’s answer to CEI’s state court complaint do more than merely reference the letter and the reasons for rejection stated therein. The district court, therefore, did not err in granting summary judgment on such a record. Cf. Room v. Caribe Hilton Hotel, 659 F.2d 5, 8 (1st Cir. 1981) (more than a mere scintilla of evidence required to overcome directed verdict).

It is true that we stated in Moran that “if defendants [public officials] employed their official powers for the purpose of injuring the plaintiff, rather than to serve the proper ends of their ■ governmental duties, plaintiff might well have a claim under the civil rights statutes.” Moran v. Bench, 353 F.2d at 194. This was but general dicta, however, and even if it could here be shown that the Board members strayed wilfully from “the proper ends of their governmental duties,” their digression was not of “constitutional proportions.” Crocker v. Hakes, 616 F.2d 237, 239 n.2 (5th Cir. 1980) (per curiam) (rejecting section 1983 due process claim where city council voted to uphold issuance of a building permit). Where a state has provided reasonable remedies to rectify a legal error by a local administrative body (and CEI raises no challenge in this case to the constitutionality . of the state subdivision scheme itself), current authority indicates that due process has been provided, and that section 1983 is not a means for litigating the correctness of the state or local administrative decision in a federal forum. Cf. Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) (state tort remedies adequately vindicate due process where corporal punishment administered in schools); Parratt v. Taylor, 451 U.S. 527, 542, 101 S.Ct. 1908, 1916, 68 L.Ed.2d 420 (1981), quoting with approval Bonner v. Coughlin, 517 F.2d 1311, 1319 (7th Cir. 1975), modified en banc, 545 F.2d 565, cert, denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529 (1978) (Stevens, J.) (“[T]he existence of an adequate state remedy to redress property damage inflicted by state officials avoids the conclusion that there has been any constitutional deprivation of property without due process of law within the meaning of the Fourteenth Amendment.”). A different situation may be presented in some instances, particularly in the realm of equal protection, involving gross abuse of power, invidious discrimination, or fundamentally unfair procedures. For example, in Moran we cited Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), a case in which the Supreme Court found that a San Francisco building ordinance vesting unreviewable, arbitrary power in city officials was being enforced unconstitutionally so as to eliminate Chinese laundry operators. Different considerations may also be present where recognized fundamental constitutional rights are abridged by official action or state regulation. See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). But the ordinary state administrative proceeding involving land use or zoning does not present such a situation, regardless of how disappointed the license or privilege seeker may feel at being initially turned down. Thus, where — as here — 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 planning board rejects a proposed development for erroneous reasons or makes demands which arguably exceed its authority under the relevant state statutes.

In Kadar Corp. v. Milbury, 549 F.2d 230 (1st Cir. 1977), this court held that, at least as to a single defendant in that case, a federal cause of action might be stated in a conventional planning dispute context. That case involved review of a motion to dismiss for failure to state a claim, however, where courts-are traditionally very liberal in allowing plaintiffs to at least make a showing of their evidence. See Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). We do not construe Kadar as precedent for the bald proposition that federal due process is implicated whenever a town official withholds a permit in violation of state law.

Even were we to recognize that a constitutional claim was stated on these facts, we have serious doubts that CEI would prevail on this claim. As noted previously, the environmental study regulation was never used by the Board as a ground of disapproval. The open space question, meanwhile, was the subject of a state court decision which, even if not immediately appealable, could have been called into question in a subsequent action had CEI submitted another “plan” (of some sort) which was rejected by the Board. While this option may appear to be time-consuming, we note that CEI’s federal action has hardly been a speedy process. The present action was filed some six years ago. In addition, the town’s new bylaw against irregular lots and the new filing fee were both passed in accordance with proper state law procedures; CEI does not seriously contest their independent validity on either substantive or procedural grounds. Finally, *834even were this case to properly raise some type of a federal due process question, the conventional nature of the dispute and the strength of the state’s interest in overseeing land use issues might lead a federal court to abstain from an adjudication of the constitutional claim. See Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943); Allstate Insurance Co. v. Sabbagh, 603 F.2d 228 (1st Cir. 1979); Kent Island Joint Venture v. Smith, 452 F.Supp. 455 (D.Md.1978). We note, however, that where allegations of more extraordinary, egregious behavior by public officials are present, one court has found that abstention may not always be appropriate. Heritage Farms, Inc. v. Solebury Township, 671 F.2d 743 (3d Cir. 1982). See generally Note, Land Use Regulation, the Federal Courts, and the Abstention Doctrine, 89 Yale L.J. 1134 (1980).

We need not address the merits of CEI’s additional claim that it was denied a first amendment right to “freely associate” by virtue of the Board’s actions. CEI has no standing to litigate such a speculative claim — based as it is on the possible future existence of a politically active homeowners’ association— and we accordingly decline to address it. Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

Section 1985(3) provides an action for any person or class of persons injured by a conspiracy organized “for the purpose of depriving, either directly or indirectly, [such persons] of the equal protection of the laws . . .. ” 42 U.S.C. § 1985(3).

Section 1986 provides that anyone who knows of a conspiracy which would violate section 1985, has the power to prevent it, and fails to do so, is as liable as a conspirator. 42 U.S.C. § 1986.

We need not discuss in detail the separate factual patterns surrounding CEI’s claims against ERT and Scott McCandless since we have found that none of CEI’s substantive rights were violated by actions of any town officials. Suffice it to say that ERT was involved in the entire matter largely to the extent of a $400 contract for an evaluation of CEI’s environmental plan and of tentative negotiations for further work with the town. McCandless’s chief sins were that he opposed the CEI subdivision plan — a position he was entirely within his rights to take — and that he worked on the ERT review. The actions of neither of these defendants implicated any of CEI’s or Barber’s rights under the Constitution.

Of the District of Massachusetts, sitting by designation.