811 F.2d 36 (1st Cir. 1987), 86-1761, Chongris v. Board of Appeals of Town of Andover

Docket Nº:86-1761.
Citation:811 F.2d 36
Party Name:James CHONGRIS and George Chongris, Plaintiffs, Appellants, v. BOARD OF APPEALS OF the TOWN OF ANDOVER, et al., Defendants, Appellees.
Case Date:February 12, 1987
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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811 F.2d 36 (1st Cir. 1987)

James CHONGRIS and George Chongris, Plaintiffs, Appellants,

v.

BOARD OF APPEALS OF the TOWN OF ANDOVER, et al., Defendants,

Appellees.

No. 86-1761.

United States Court of Appeals, First Circuit

February 12, 1987

        Argued Jan. 5, 1987.

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        Arthur H. Goldsmith, Boston, Mass., for plaintiffs, appellants.

        Gerald F. Blair with whom Avery, Dooley, Post & Avery, Boston, Mass., was on brief for defendants, appellees.

        Suzanne E. Durrell, Asst. Atty. Gen., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., was on brief for intervenor.

        Before BOWNES, Circuit Judge, ROSENN, [*] Senior Circuit Judge, and SELYA, Circuit Judge.

        SELYA, Circuit Judge.

        James Chongris and George Chongris, brothers by birth and appellants by choice, felt mistreated at the hands of the powers-that-were in the suburban municipality of Andover, Massachusetts (Town). After they instituted a routine state court appeal of a municipal edict which stripped them of a building permit, see generally Chongris v. Board of Appeals of Andover, 17 Mass.App. 999, 459 N.E.2d 1245 (1984) (Chongris I ), they sought to give the Town fathers their gruel by prosecuting a civil rights action in federal district court under 42 U.S.C. Sec. 1983. They named as defendants the Town, its zoning board (Board), the individual members of the Board, the councillors of the Town's elected governing body (Selectmen), and others no longer before the court. The appellants challenged conduct attributable to the municipal defendants as well as the validity of certain state zoning statutes, viz., M.G.L. ch. 40A, Secs. 11, 15 and 17. The district court eventually dismissed the suit under Fed.R.Civ.P. 12(b)(6). See Chongris v. Board of Appeals of Andover, 614 F.Supp. 998 (D.Mass.1985) (Chongris II ). The plaintiffs appealed. We affirm the dismissal. 1

       I. BACKGROUND

        Because this appeal follows a district court's dismissal of the action under Rule 12(b)(6), we accept the well-pleaded factual averments of the latest (second amended) complaint as true, and construe these facts in the light most flattering to the plaintiffs' cause. Kugler v. Helfant, 421 U.S. 117, 125-26 & n. 5, 95 S.Ct. 1524, 1531-32 & n. 5, 44 L.Ed.2d 15 (1975); Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972) (per curiam). We exempt, of course, those "facts" which have since been conclusively contradicted by plaintiffs' concessions or otherwise, and likewise eschew any reliance on bald assertions, unsupportable conclusions, and "opprobrious epithets." See Snowden v. Hughes, 321 U.S. 1, 10, 64 S.Ct. 397, 402, 88 L.Ed. 497 (1944).

        The seeds of the current dispute were sown in August of 1979, when the Town's Building Inspector issued a permit for extensive renovations to convert a building owned by George Chongris to a Dunkin Donuts franchise. James Chongris then filed an application with the Selectmen to secure the common victualler's license which would be required for operation of the donut shop. See M.G.L. ch. 140, Sec. 6. Shortly thereafter, a neighborhood group known as the Friends of Shawsheen Village Association (Friends) registered an objection

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to the issuance of the building permit. Additionally, the Friends sought to appeal the action of the Building Inspector pursuant to M.G.L. ch. 40A, Secs. 8 and 15. Their petition to the Board rested upon four grounds: insufficient setback; insufficient parking; improper use of "club service"; and violation of the zoning bylaws regarding business signage.

        The Board advertised a public hearing which was held on November 1, 1979. Although appellants challenge the constitutional adequacy of the notice they received, see post, it is undisputed that James Chongris attended the hearing with counsel and presented arguments in favor of the proposed conversion of the building. Indeed, they convinced the Board to take a view of the premises before acting on the appeal. On November 13, 1979, following the view--which plaintiffs claim that they were unable to attend because of the Board's failure to advise them of the schedule in a timely fashion--the Board voted unanimously to reverse the decision of the Building Inspector and to revoke the permit. Soon thereafter, the plaintiffs filed suit in state superior court under M.G.L. ch. 40A, Sec. 17, seeking review of the Board's action. 2 And, the Selectmen took no significant action in respect to the victualling license, "tabling" the application.

        Some eleven months after their zoning appeal had been instituted in the superior court and while it was still pending (although lying fallow), the plaintiffs filed this action in the federal district court on October 14, 1980. The complaint averred that the Friends, 3 the Board, and the Town, together with and through the individual defendants, had deprived the plaintiffs of property (i.e., the building permit) without compensation and/or due process of law. In addition, the plaintiffs alleged that the refusal of the Selectmen to act on the application for the conditional common victualler's license (or alternatively, to explain their refusal to act) likewise denied them property without due process.

        In February of 1981, plaintiffs filed in both the state and federal forums a so-called "reservation" of their federal claims purporting to save adjudication of all pertinent federal law questions for the federal district court. In so doing, the plaintiffs relied upon the Supreme Court's decision in England v. Louisiana Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964), vouchsafing that England stood as authority for this procedure. 4

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There is nothing in the record before us to suggest that this reservation was contemporaneously called to the attention of any judge, federal or state.

        On December 29, 1982, the state superior court annulled the Board's revocation edict, holding that the Friends lacked standing to mount the initial challenge. The Massachusetts Appeals Court subsequently upheld the superior court's decision, see Chongris I, and the building permit was restored. Notwithstanding their state court triumph and the fact that they were able to obtain a later order of the Massachusetts Appeals Court awarding them $1782 in fees and double costs, the plaintiffs' thirst to punish the municipal defendants was unslaked. They continued to press their claims in the federal court. In March 1985, the plaintiffs filed a second amended complaint which, in addition to renewing the bread-and-butter civil rights claims and updating the facts to reflect more recent history, placed in issue the constitutionality of certain state statutes. Notice of this initiative was served on the Commonwealth's Attorney General, see M.G.L. ch. 231A, Sec. 8, who intervened.

        A spate of concentrated activity followed: the plaintiffs moved for summary judgment, the defendants filed dismissal motions, and the intervenor sought dismissal as well. On July 30, 1985, the district court allowed the motions to jettison the suit. The court found the plaintiffs' purported England reservation to be ineffective, and held that the federal claims--all of which, the district court believed, could have been litigated in the earlier state court proceeding--were barred under principles of res judicata. See Chongris II, 614 F.Supp. at 1001-02. Nothing daunted, the plaintiffs unsuccessfully moved for reconsideration, and thereafter docketed this appeal.

       II. BATTLEGROUND

        The second amended complaint, structurally convoluted and verbose as it is, presents difficulties for reasoned analysis. Yet, after what wheat can be found is separated from the conspicuous quantities of chaff, the pleading can be viewed as fomenting three discrete sets of claims: those which challenge the actions of the Board in revoking the building permit, those which indict the Selectmen for refusing to issue the victualler's license, and those which attack the facial validity of the state statutes. 5 This triumvirate is fastened together by at least one common thread: we find that the plaintiffs, on all three theories, fail to state federally cognizable causes of action.

        Before proceeding to a discussion of particular issues, however, one generic point deserves clarification. The plaintiffs have mixed and matched their assorted claims in a rather haphazard manner. George Chongris owned the premises and was the named applicant for the building permit; James, who appears to have been an employee at will of his brother, had no real interest in the permit in his own right. Conversely, James was the sole applicant for the victualler's license, and George's standing with regard to that aspect of the case is tenebrous at best. Nevertheless, the second amended complaint draws no distinctions: James and George sponsor all claims jointly and severally. We need not dwell on this dishevelment. Inasmuch as we conclude that neither plaintiff has asserted any actionable claim for relief, we will overlook the sloppiness of the pleadings and treat the brothers as if they shared in common any entitlements which existed.

  1. The Building Permit

            We turn initially to the allegation that the Board's rescission of the building permit

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    was unconstitutional. The plaintiffs seem to say that the Board denied them the procedural due process guaranteed by the fourteenth amendment to the federal Constitution in three different ways. First, they argue that the notice of the hearing on the Friends' appeal was infirm in failing to spell out in so many words that revocation of the building permit was being considered. Second, they contend that the protocol itself was fatally flawed and afforded them insufficient...

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