601 F.2d 9 (1st Cir. 1979), 79-1085, Des Vergnes v. Seekonk Water Dist.

Docket Nº:79-1085.
Citation:601 F.2d 9
Party Name:Roger G. DES VERGNES et al., Plaintiffs, Appellants, v. SEEKONK WATER DISTRICT, Defendant, Appellee.
Case Date:June 25, 1979
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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601 F.2d 9 (1st Cir. 1979)

Roger G. DES VERGNES et al., Plaintiffs, Appellants,


SEEKONK WATER DISTRICT, Defendant, Appellee.

No. 79-1085.

United States Court of Appeals, First Circuit

June 25, 1979

Argued May 9, 1979.

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Stephen D. Clapp, North Attleboro, Mass., with whom Armstrong, Pollis & Clapp, North Attleboro, Mass., was on brief, for plaintiffs, appellants.

John J. Graham, Boston, Mass., with whom William E. Hickey, Quincy, Mass., was on brief, for defendant, appellee.

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Before COFFIN, Chief Judge, BOWNES, Circuit Judge, WYZANSKI, Senior District Judge. [*]

WYZANSKI, Senior District Judge.

This is an appeal from the District Court's dismissal, for failure to state a cause of action, of a three-count complaint. Plaintiffs contend that their complaint, properly construed, alleges that the defendant with the intent of discriminating against low-income persons and black persons denied plaintiff Heritage's petition to have its real estate included within the Seekonk Water District thus causing damages to plaintiffs, and that such allegations state causes of action under 42 U.S.C. §§ 1981, 1983, and 1985(3) as well as the Thirteenth and Fourteenth Amendments.

Because Count III, invoking 42 U.S.C. § 1981, has the most inclusive and specific allegations, we start with the following summary of and, where necessary, quotations from that count.

Plaintiff Heritage Homes of Attleboro, Inc. is a Massachusetts corporation which owns in the town of Seekonk a parcel of land (called "the locus") abutting upon the land of Seekonk Water District. Plaintiff Roger G. Des Vergnes is president, sole stockholder, and guarantor of the notes of Heritage.

Defendant Seekonk Water District is a municipal corporation created by Mass.St.1945, c. 381 (hereinafter "the Act"). Other defendants named in the complaint are not appellees in this court. Although the complaint does not quote, it refers to Sections 1 and 13 of the Act.

Section 1 of the Act provides that "the inhabitants of the town of Seekonk liable to taxation in said town and residing within" a specified area of the town "shall constitute a water district and are hereby made a body corporate . . . for the purpose of supplying themselves with water . . . ."

Section 13 of the Act, governing possible enlargement of the District, provides:

Upon a petition in writing addressed to said board of water commissioners requesting that certain real estate, accurately described therein, located in said town and abutting on said district and not otherwise served by a public water supply be included within the limits thereof, and signed by the owners of such real estate, or a major portion of such real estate, said water commissioners shall cause a duly warned meeting of the district to be called, at which meeting the voters may vote on the question of including said real estate within the district. If a majority of the voters present and voting thereon vote in the affirmative the district clerk shall within ten days file with the town clerk of said town and with the state secretary an attested copy of said petition and vote; and thereupon said real estate shall become and be part of the district and shall be holden under this act in the same manner and to the same extent as the real estate described in section one.

In February 1976, plaintiff Des Vergnes told the Board of Water Commissioners of the District that Heritage was contemplating purchasing and developing a parcel in the town of Seekonk abutting the District, but the acquisition was dependent upon the District supplying water. The Board members stated that they had plans for including the locus in the District, that there was adequate water, and that inclusion of the locus was a mere formality. In April 1976, relying on these assurances, Heritage bought the locus and Des Vergnes guaranteed the purchase notes.

In accordance with Section 13 of the Act, Heritage addressed a petition to the Board of Water Commissioners to have its locus including within the limits of the District. Thereupon the board issued a warrant for a May 11, 1976 meeting of the voters of the District. Among the items of the warrant, # 17 called for a vote on the Heritage petition, and # 18 called for a vote on a petition of Monterey Corporation "for the inclusion within the District of a tract of

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land substantially similar to the locus in proximity, topography, and size" and "in furtherance of development plans substantially similar to those of Heritage" (Count III, par. 16, R. 14).

After the publication of the warrant, Mann, Devine and Tortolani, individual voters of the District, began telling other voting members of the District that the Heritage subdivision would consist of Federally subsidized low-income housing and/or housing consisting of shacks designed to attract low-income people and/or colored people. (Count III, par. 21, R. 53).

"The discussion which preceded the vote on Heritage's Article # 17 disclosed that as a result of the acts of the defendants Mann, Devine and Tortolani the vast majority of the voters present were unalterably motivated by a class-based invidiously discriminatory prejudice and fear concerning Federally subsidized low-income housing, shacks which were designed to attract low-income people and colored people to the town of Seekonk." (Count III, par. 25, R. 56).

"Prior to the vote taken on Article # 17 the District's agents, Olean and Benson, informed the members that the District had more than adequate supplies of water to serve both the Heritage and the Monterey subdivisions and that both of the proposed subdivisions met the criteria previously applied by the District for all other applicants." (Count III, par. 26, R. 56)

"The vote(s) of the members of the Water District on May 11, 1976, Article 17 and Article 18 were as follows:

(Count II, par. 28, R. 56)

"The District's denial of the plaintiffs' request for inclusion was because the voting members believed that the plaintiffs would contract for the sale of houses in the subdivision to black families. The denial of inclusion was also because the plaintiffs had demonstrated in the sale of their North Attleborough property a willingness to contract with black families. The denial was for the purpose of keeping black people out of the District and punishing the plaintiffs for their willingness to contract with black people." (Count III, par. 30, R. 56)

The denial of the Heritage petition injured plaintiff Heritage by making the lots in its parcel of real estate less valuable and injured plaintiff Des Vergnes by adversely affecting his earning power and by causing him to face insolvency presumably because of his losses as an officer, stockholder, and guarantor of the notes of Heritage.

Count III ends with prayers for damages, a preliminary injunction, and a permanent injunction directing the District to extend its boundaries and water supply to include the Heritage locus.

We now consider Seriatim (1) the correct construction of Count III, (2) whether Heritage has a constitutional standing to sue, (3) whether Heritage has a statutory standing to sue, (4) whether the District as a municipal corporation may be held liable under 42 U.S.C....

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