Brockton Power LLC v. City of Brockton

• Decision Date: 30 May 2013
• Docket Number: Civil No. 12–11047–LTS.
• Citation: 948 F.Supp.2d 48
• Parties: BROCKTON POWER LLC, et al., Plaintiffs, v. CITY OF BROCKTON, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

948 F.Supp.2d 48

BROCKTON POWER LLC, et al., Plaintiffs,

v.CITY OF BROCKTON, et al., Defendants.

Civil No. 12–11047–LTS.

United States District Court, D. Massachusetts.

May 30, 2013.

Mark E. Robinson, Caleb J. Schillinger, Deana K. El–Mallawany, Siobhan E. Mee, Bingham McCutchen LLP, Boston, MA, for Plaintiffs.

David E. Condon, Douglas I. Louison, Patrick J. Costello, Stephen C. Pfaff, Louison, Costello, Condon & Pfaff, LLP, John J. Davis, Adam Simms, Seth B. Barnett, Pierce, Davis & Perritano, LLP, Philip A. Tracy, Jr., Jason A. Kosow, Dimento & Sullivan, William P. Breen, Jr., Christian B.W. Stephens, Eckert Seamans Cherin & Mellott, LLC, Boston, MA, Kurt B. Fliegauf, Conn, Kavanaugh, Rosenthal, Peisch & Ford, LLP, Boston, MA, for Defendants.

MEMORANDUM AND ORDER ON DEFENDANTS' MOTIONS TO DISMISS

SOROKIN, United States Chief Magistrate Judge.

The plaintiffs are developers who wish to build an electric power generating facility on land they own in Brockton, Massachusetts (“the City”). They have sued the City, its planning board and city council, and seven of its present and former officials, alleging violations of 42 U.S.C. § 1983 and state law based on a “conspir[acy] to systematically deprive [the] plaintiffs of [various] constitutional rights,” including “the right to develop their land.” Doc. No. 48 at ¶ 2. All defendants except the City and its planning board have moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.¹ Doc. Nos. 54, 58, 60, 62, 64. For the reasons that follow, the pending motions are DENIED.

I. BACKGROUND

The facts set forth below are taken from the Amended Complaint, Doc. No. 48, and certain exhibits submitted by individual defendants in connection with their motions, Doc. Nos. 59–1, 59–2, 63–1, 76–1.² This does not constitute a finding by the Court that any or all of the facts alleged are true. At this stage of the proceedings, the law requires the Court to accept the plaintiffs' allegations as true and to draw all reasonable inferences flowing therefrom in the plaintiffs' favor. Watterson, 987 F.2d at 3.

A. The Parties and the Project

The plaintiffs are Brockton Power LLC and Brockton Power Company LLC (“Brockton Power”). The former is run by Dennis and Leo Barry (“the Barry Brothers”), and it owns land on Oak Hill Way in Brockton (“the Generator Site”). Doc. No. 48 at ¶ 17. The latter, backed by energy investors including Siemens Corporation, has “a binding option to purchase the Generator Site” and also owns a second piece of land nearby (“the Switchyard Site”). Id. at ¶¶ 18, 36.

The defendant entities are the City, the Planning Board, and the City Council.³Id. at ¶¶ 19–21. The individual defendants are Brockton's current mayor, Linda Balzotti; Balzotti's predecessor, James Harrington, who was mayor through the end of 2009; City Council members Thomas Brophy, Michelle DuBois, and Jass Stewart; the Planning Board chairperson, Wayne McAllister; and Planning Board member Susan Nicastro. Id. at ¶¶ 22–28. Each individual defendant lives in Brockton. Id.

In the late 1990s, the Barry Brothers, along with a project developer from Brockton, began plans to build an electric power generating plant on the Generator Site. Id. at ¶¶ 30, 33. The Generator Site was zoned for industrial uses, including such a plant. Id. at ¶ 31. By May 2000, the Barry Brothers had received necessary permits from the Brockton Zoning Board of Appeals, the Conservation Commission, and the Department of Public Works. Id. at ¶ 34. They also had obtained approvals for access to drinking water at the facility, and an agreement to purchase “2 million gallons of effluent cooling water per day” from “the City's wastewater treatment plant,” which is adjacent to the Generator Site. Id. at ¶¶ 34, 136(ii). The Barry Brothers abandoned the project, however, due to economic concerns following the Enron bankruptcy. Id. at ¶ 35.

In late 2006, Brockton Power sought to pick up where the Barry Brothers had stopped, initiating a new plan to develop an electric power plant on the Generator Site, and to connect it to the National Grid regional transmission line via the Switchyard Site. Id. at ¶¶ 36, 39. Along with an option to purchase the Generator Site, the Barry Brothers “assigned to Brockton Power their rights and assets under all contracts and prospective contracts relating to the development of an electric generation facility on the Generator Site.” Id. at ¶ 37–38. Based on this assignment, Brockton Power anticipated “an advantageous business relationship with the City,” which it hoped would include agreements to supply power to the City and to obtain drinking and cooling water from the City. Id. at ¶ 42.

The plaintiffs expect the project to prove beneficial to the region, not only economically, but also because it would “meet the region's growing energy needs” and help prevent “devastating interruptions and blackouts that have increasingly occurred in the New England power grid.” Id. at ¶¶ 5, 270. Since at least 2007, the project has been subjected to intense scrutiny by, and has won support from, state-level agencies including the Massachusetts Energy Facilities Siting Board (“the Siting Board”) and the Department of Environmental Protection (“DEP”). Id. at ¶¶ 6–7; see Doc. No. 59–1. After reviewing extensive submissions, holding lengthy hearings related to the project, and carefully considering questions like site selection, environmental impacts, and relevant state energy policies, the Siting Board has formally approved the project, subject to compliance with local zoning and permitting procedures, and the DEP has issued an air permit authorizing the proposed facility at the designated site. Doc. No. 48 at ¶ 7; Doc. Nos. 59–1, 59–2.

Any hopes of an advantageous relationship with the City, however, were extinguished—and the effect of the state agency approvals undermined—when the defendants “orchestrated [a] scheme to destroy the Project ... with improper motive and in bad faith.” Doc. No. 48 at ¶ 45. Almost from its inception, the project was plagued by a conspiracy in which each individual defendant knowingly and actively participated, id. at ¶ 46, “motivated by personal and political animus against the Project” and the plaintiffs, id. at ¶ 8. Pursuant to the alleged conspiracy, the defendants endeavored to “reject, deny and starve” the project in order “to fatally delay and ultimately kill” it. Id. at ¶¶ 8, 46. To accomplish this, the defendants employed a number of strategies, including: improper attempts to change applicable zoning regulations; refusal to process, or summary denial of, necessary review and approval of project plans and applications, without regard for applicable regulations and legal standards; discriminatory efforts to prevent the plaintiffs from gaining access to drinking and cooling water; persistent litigation and manipulation of state agency and court proceedings; total disregard for repeated warnings from the City's legal counsel; and stringent, public opposition to the project and its proponents. Id. at ¶¶ 46–49. According to the plaintiffs, such measures are extraordinary, and are not merely reflective of good-faith disagreement among the parties regarding the interpretation and application of relevant ordinances and procedures, or ordinary exercise of discretion by municipal bodies. Indeed, the plaintiffs allege that no other developer of a project in the City has had to endure a targeted campaign like the one visited upon the plaintiffs here. See id. at ¶¶ 68, 92, 122, 157, 187.

B. Zoning Changes

Both the Generator Site and the Switchyard Site are within an area designated as an “I–3 heavy industrial zone.” Id. at ¶¶ 31, 54; see Doc. No. 76–1 at 2 (noting the land is “within the Oak Hill Industrial Park”). When the plaintiffs acquired the Sites, electric power generating facilities had been a “principal permitted use” in the City's I–3 zones for decades. Doc. No. 48 at ¶¶ 31, 54. On January 13, 2009, well after Brockton Power set out to develop its power plant, the City Council voted to eliminate electric power generating plants as a permitted use in the City's I–3 zones. Id. at ¶ 54. According to the plaintiffs, this was an effort to “unilaterally target [ ]” them. Id. at ¶ 53. The effort was unsuccessful, id., as the defendants concede that the 2009 zoning change could not legally impact “the plaintiffs' right to build a power plant in an I–3 zone.” Doc. No. 63 at 7 n. 9.

Nearly a year and a half later, however, the City Council again attempted to undermine the plaintiffs' ability to proceed with the project by adopting another change to the relevant zoning regulations, this time entertaining a proposal to ban “sound attenuation walls” such as those Brockton Power had included in project designs then under review by state agencies. Doc. No. 48 at ¶ 57. According to the plaintiffs, the sole objective of this proposed zoning change was “to prevent [them] from using their property for the ‘principal permitted use’ for which they bought it,” and to “destroy[ ]” the plaintiffs' “expectations in developing their land.” Id. at ¶ 57.

Days before the City Council voted to approve the ban on sound attenuation walls, and in an effort to escape the reach of such a change, the plaintiffs submitted to the Planning Board a detailed preliminary subdivision plan for the Generator Site. Id. at ¶¶ 75, 78, 81. The submission, if deemed to comply with local regulatory requirements, would effect a “zoning freeze” under state law and prevent subsequently enacted changes to zoning regulations from impacting the project. Id. at ¶¶ 76–77. Officials in the Planning Department acting outside the alleged conspiracy initially accepted the plaintiffs' submission as “fully conform[ing] to the rules [and] regulations.” Id. at ¶ 79.

Realizing such an acceptance would nullify the conspirators' efforts by rendering the impending zoning change inapplicable to the...