Cloutier v. Town of Epping, s. 82-1800

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtBefore CAMPBELL; LEVIN H. CAMPBELL
Citation714 F.2d 1184
PartiesWilfred CLOUTIER, et al., Plaintiffs, Appellants, v. The TOWN OF EPPING, et al., Defendants, Appellees. Wilfred CLOUTIER, et al., Plaintiffs, Appellees, v. The TOWN OF EPPING, Defendant, Appellee. Robert J. Chamberlain, Roger E. Gauthier, Brendan Splaine and Robert K. Dodge, Defendants, Appellants. Wilfred CLOUTIER, et al., Plaintiffs, Appellees, v. The TOWN OF EPPING, Defendant, Appellant. Wilfred CLOUTIER, et al., Plaintiffs, Appellees, v. The TOWN OF EPPING, Defendant, Appellee. Patrick Jackson, Defendant, Appellant. Wilfred CLOUTIER, et al., Plaintiffs, Appellees, v. The TOWN OF EPPING, et al., Defendants, Appellees, Roger Vogler, Dorothy Hall, Richard Sanborn, William Callaway and Harold LaPierre, Defendants, Appellants.
Docket Number83-1101 and 83-1138,83-1094,83-1095,Nos. 82-1800,s. 82-1800
Decision Date05 August 1983

Robert F. Sylvia, Boston, Mass., with whom Roderick MacLeish, Jr., Alfred W. Ricciardi, Fine & Ambrogne, Christopher P. Sullivan, Carolan & Sullivan, Boston, Mass., Wilfred L. Sanders, Jr., and Sanders & McDermott, Hampton, N.H., were on brief, for Wilfred Cloutier, et al.

Ronald L. Snow, Concord, N.H., with whom James E. Morris, and Orr & Reno, P.A., Concord, N.H., were on brief, for Richard Sanborn, Roger Vogler, Dorothy Hall, William Callaway and Harold LaPierre.

Michael J. Donahue, Exeter, N.H., with whom Kearns, Colliander, Donahue & Tucker, P.A., Exeter, N.H., Peter J. Loughlin, Portsmouth, N.H., were on brief, for Town of Epping.

John W. Barto, Mark H. Puffer, and Barto & Gfroerer, Concord, N.H., on brief for Patrick Jackson.

G. Wells Anderson, Charles P. Bauer, and Hall, Morse, Gallagher & Anderson, Concord, N.H., on brief for Robert J. Chamberlain, Roger E. Gauthier, Brendan Splaine, and Robert K. Dodge.

Before CAMPBELL, Chief Judge, McGOWAN, ** Senior Circuit Judge, and SELYA, *** District Judge.


This "Epic of Epping" concerns a dispute over the development of a mobile home park in Epping, New Hampshire. Wilfred and Mary Cloutier, and Pine & Pond, Inc. are developers who brought the present action in the district court claiming that Epping and several of its officers violated their civil rights by revoking a sewage connection permit, denying them other permits, and engaging in a pattern of harassment aimed at retarding or destroying their development plans. Concluding that plaintiffs had failed to raise a substantial federal question, the court below dismissed the case for lack of jurisdiction. Although we cannot say that the court lacked jurisdiction, we affirm the dismissal.


We present the facts in a light most favorable to appellants. Epping, New Hampshire is a town with a population of about 3,000. Zoning, land use, and development have long been heated issues in the town. In the mid-1960's the Cloutiers began making plans to develop a large mobile home park in Epping. They obtained a road entrance permit in 1965 and approval from the Planning Board in 1968. 1

On April 27, 1972 the Cloutiers applied for and received from one of the three sewer commissioners a permit to connect the mobile home park to the town's newly constructed sewage system. On May 4, 1972 the other two sewer commissioners, defendants Robert Chamberlain and Brendan Splaine, met informally and revoked this permit. The Cloutiers were invited to discuss the revocation at the commission's next meeting several days later.

Following revocation, the Cloutiers filed an action in Rockingham County Superior Court for a writ of mandamus. Plaintiffs contend that it was only in the course of the litigation that they learned the commission's real reasons for revoking the permit: a 1968 zoning ordinance prohibiting mobile homes in the town's "sewered zone," and commission regulations forbidding the connection of structures more than 200 feet from the sewer main. Plaintiffs further allege that defendants gave erroneous and perjured testimony at the trial before the Superior Court. The court found for the town, and plaintiffs appealed.

While their appeal was pending before the New Hampshire Supreme Court, plaintiffs continued to attempt to obtain the permit from defendants. At the direction of the sewer commission, the Cloutiers brought the issue before the March 1975 town meeting. The meeting passed an article requiring the connection of the Cloutiers' park to the sewer system. The meeting also defeated a proposed amendment to the zoning ordinance put forward by the Planning Board which would have limited the number of mobile homes in Epping.

Despite the Cloutiers' victories before the town meeting, defendants continued to oppose the connection of Pine & Pond to the sewer system. The sewer commission told plaintiffs that another town meeting vote would be required before the permit would be granted and that Planning Board approval would also be necessary. The Planning Board, meanwhile, posted another amendment to the town's zoning laws that was similar to the one that had just been defeated by the meeting.

On May 29, 1976 the New Hampshire Supreme Court rendered its decision. Cloutier v. Epping Water and Sewer Commission, 116 N.H. 276, 360 A.2d 892 (1976). The court ruled that the 1968 zoning ordinance forbidding mobile homes within the town's sewered zone was invalid because the zone had not been adequately defined. The court held that the town had to connect the mobile homes that were within 200 feet of the sewer system. Id. at 279, 360 A.2d at 895. But it also held that the sewer commission regulation barring the connection of structures beyond 200 feet from the main was valid and that the town meeting lacked authority to override the commission. Id. at 280, 360 A.2d at 896. The court refused to decide whether or not zoning was ever validly enacted in Epping, finding that there was no reason why the "newly discovered evidence" put forward by the Cloutiers could not have been presented to the Superior Court. Id. at 278, 360 A.2d 892.

Following the New Hampshire Supreme Court's decision, the dispute continued to heat up and expand in several new directions. First, the Cloutiers again brought the issue before the town meeting which once again voted in favor of their position. Defendants, however, still refused to grant the permit. Then, on August 3, 1976, defendants sought an injunction from the Rockingham County Superior Court against the Cloutiers' development of a second mobile home park in Epping on the ground that the lot was substandard. Following the filing of the state action, Wilfred Cloutier commenced the present case in federal district court, charging that the state action and the previous denials of the sewer permit for Pine & Pond constituted a deprivation of property without due process, a denial of equal protection, and a violation of the privileges and immunities clause of the fourteenth amendment. The complaint sought damages and an injunction against the Superior Court action. On November 3, 1976 the district court, citing the Younger doctrine, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), denied Cloutier's request for a preliminary injunction. The Superior Court action was dismissed in 1978 by a subsequent board of selectmen.

The election of new town officials in 1978 led to the Cloutiers' finally obtaining a sewer connection permit and a water connection permit. The day after the permits were issued defendant Roger Gauthier filed a lawsuit to invalidate the appointment of the new commissioner. This action was dismissed by the state court.

After receiving the sewer connection permit, the Cloutiers still had to obtain a discharge permit from the New Hampshire Water Supply and Pollution Control Commission (WSPCC). According to plaintiffs, defendants gave false information to the WSPCC, delaying its approval of the permit until July 1981.

On April 26, 1977 and again on January 2, 1981, the complaint in the federal action was amended to include Mary Cloutier and Pine & Pond, Inc., as plaintiffs, to add numerous local officials as defendants, and to include new allegations, including ones relating to the events occurring after 1976. Pendent state claims were also added. After the district court denied defendants' various motions to dismiss, the case went forward to trial, with the district court ordering that no additional motions be presented, except those related to evidentiary matters. On September 28, 1981 a jury was empaneled. During the course of the trial, however, the district judge became ill, and a mistrial was ordered. The case was assigned to a different district judge. On July 20, 1982, defendants moved for summary judgment on the basis of the Supreme Court's recent decision in Harlow v. Fitzgerald, --- U.S. ----, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), and this court's decision in Creative Environments, Inc. v. Estabrook, 680 F.2d 822 (1st Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 345, 74 L.Ed.2d 385 (1982). The district court then continued the trial and ordered briefings and arguments on the motions for summary judgment. On September 16, 1982 the district court dismissed the complaint for lack of federal jurisdiction.


While we agree with the substance of the district court's analysis, we are not sure that the claims are all so patently frivolous as to warrant dismissal for lack of federal jurisdiction. Complaints should not be dismissed for failing to raise a federal question unless they are "insubstantial, implausible, foreclosed by prior decisions of [the Supreme Court], or otherwise completely devoid of merit ...." Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666, 94 S.Ct. 772, 777, 39 L.Ed.2d 73 (1974). See also Bell v. Hood, 327 U.S. 678, 682-85, 66 S.Ct. 773, 776-77, 90 L.Ed. 939 (1946); Chiplin Enterprises, Inc. v. City of Lebanon, 712 F.2d 1524, at 1528 (1st Cir.1983).

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