Creative Environments, Inc. v. Estabrook, Civ. A. No. 76-453-Mc.

Citation491 F. Supp. 547
Decision Date17 June 1980
Docket NumberCiv. A. No. 76-453-Mc.
PartiesCREATIVE ENVIRONMENTS, INC., et al. v. Robert R. ESTABROOK et al.
CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts

COPYRIGHT MATERIAL OMITTED

Edward P. Leibensperger, Nutter, McClennen & Fish, Boston, Mass., for plaintiffs.

Joan A. Lukey, Jane D. Kaplan, Hale & Dorr, J. Christopher Robinson, Sullivan & Worcester, Boston, Mass., for defendants.

MEMORANDUM AND ORDERS ON MOTIONS FOR SUMMARY JUDGMENT

McNAUGHT, District Judge.

This action came on to be heard on motions for summary judgment filed by:

(1) members of the Planning Board of the Town of Bolton (Robert Estabrook, Robert Fischer, Ronald Kelley, Berneda A. Serfass, Gordon Slater and Thomas Murphy, named as defendants in such capacities);
(2) members of the Board of Selectmen and the Law Committee of the Town of Bolton (Pierino A. Bonazzoli, Robert N. Mechlin and Francis G. Mentzer, Jr.);
(3) members of the Law Committee of the Town of Bolton (Waldo G. Henry and the Estate of Robert G. Horton);
(4) members of the Conservation Commission of the Town of Bolton (Warren K. Colby, Robert J. Held, Walter H. Phillips, Bonnie B. Potter, Eric F. Salmela, Richard W. Sullivan and Wayne D. Wetzel, Jr.);
(5) Town Counsel of the Town of Bolton, Arthur S. Hill, Esq.;
(6) Environmental Research and Technology, Inc. and Scott McCandless;
(7) all defendants collectively called the municipal defendants, except for members of the Planning Board, with a motion directed toward the prayer for a mandatory injunction in the complaint; and
(8) all municipal defendants, including members of the Planning Board, on a motion to dismiss Count II which seeks a declaratory judgment.
BACKGROUND

These motions for summary judgment are directed at claims of violation of the Civil Rights Acts, Title 42, U.S.Code, §§ 1983, 1985(3) and 1986. The plaintiffs are Creative Environments, Inc. (CEI), a Massachusetts corporation, and its President, Majority Shareholder and Chief Executive Officer, Wayne E. Barber. The defendants are elected or appointed officials of the Town of Bolton, Massachusetts, a corporation known as Environmental Research and Technology, Inc. (ERT), and an employee of that firm, Scott McCandless. ERT is a Delaware corporation, with a place of business in Concord, Massachusetts. It is engaged in the business of environmental consulting. It should be noted that Scott McCandless, the ERT employee, is a resident of the Town of Bolton.

The Town of Bolton itself is a party defendant to this action, having been added as a party on August 16, 1978. The Town filed a motion to dismiss Count IV of the Complaint. This motion has become moot by reason of a stipulation of dismissal being entered into by the parties as of June 13, 1980.

The plaintiff CEI is in the business of real estate development for the construction and sale of residential housing. The basic claim as against all of the defendants, in the amended complaint, is that the Town officials, ERT and McCandless conspired over a period from October 1973 to December 1975 to deprive the plaintiffs of constitutional rights, under Title 42, U.S.Code, §§ 1983, 1985(3) and 1986.

The following facts appear to be undisputed. CEI planned the purchase of a 183-acre parcel of land in the Town of Bolton, intending to build approximately 90 homes on that parcel, in clusters. The homes would be erected on lots of 1.5 acres (required by the zoning ordinances), but would not necessarily be on rectangular lots. The "cluster" concept would have four houses located close together, sharing common services with land around the houses left open in a natural wooded state. A subdivision was contemplated, consisting of a number of clusters, plus common facilities. It allegedly, was anticipated by the plaintiffs that homeowners in the subdivision would own group facilities in common, and would organize in an association in which each homeowner would automatically become a member. The plaintiffs anticipated that the members, acting under bylaws, would not only govern the use of common facilities, but might perform other functions, both social and "political". CEI bought the property. Mr. Barber, by way of his deposition, states that the members of the Conservation Commission were apparently impressed by the design concept, but that members of the Planning Board and the Board of Selectmen were negative immediately. (Barber Dep., Vol. 5, pp. 66-68.)

A preliminary subdivision plan was submitted to the Planning Board on December 3, 1973. (Barber Dep., Vol. 3, p. 6.) The cluster aspect of the original concept was contained within it, but it contemplated a "gerrymandered" layout of the lots.

According to his deposition, Scott McCandless resided in the Town of Bolton from December of 1973. He became a reporter for the Bolton Citizens News. He covered the activities of the Bolton Planning Board for the next one to one-and-a-half years.

On February 1, 1974, the Bolton Planning Board, in a letter to Barber, disapproved the preliminary plan. (Barber Answer to Ints., No. 22(c).) Certain defects were noted by the Board. The Town, on July 2, 1973, had adopted a subdivision Regulation 3.3.1.28 which required land developers to file with the Planning Board environmental and financial impact studies endorsed by a professional planning engineer which demonstrates "that all available alternatives have been explored and evidence is provided that the plans submitted represent the best interest of the Town."

On March 11, 1974, Mr. Barber submitted a "Response" to this section of the subdivision regulations.

On July 30, 1974, Mr. Barber submitted a definitive subdivision plan to the Planning Board. (Barber Dep., Vol. 3, p. 65.) In August of 1974, Thomas Murphy, Vice Chairman of the Planning Board, asked the defendant McCandless if he would review the CEI study for the Board. McCandless, by reason of his position in the Town, stated that he did not believe that an evaluation of the study by him would be credible. (McCandless Dep., pp. 18-19, 37-38.) He asked his employer, ERT, to do the evaluation, and ERT so agreed. ERT was hired to do the job for $400.00.

In September of 1974, ERT submitted a report critical of the Barber study. The report concluded that the methodology utilized by the study was acceptable, but that the CEI study's application of impact criteria appeared to be highly subjective and non-uniform. A controversy existed concerning the validity of Regulation 3.3.1.28. On September 23, 1974, Arthur Hill, Town Counsel, sent a letter to the Planning Board. The following day he wrote a second letter to the Board. In this second letter he stated: "I cannot find anything (in Chapter 41, § 81Q of the General Laws) which allows the Planning Board to make this type of regulation." He told the Board not to consider the content of any environmental impact report in determining whether to approve CEI's definitive plan.

On September 26, 1974, the Planning Board disapproved CEI's definitive plan. (Minutes of Planning Board Meeting, 9/26/74.) Seven reasons were given in the rejection letter. They did not have to do with CEI's environmental study or ERT's report.

On October 16, 1974, CEI commenced an action under Mass.General Laws, Ch. 41, § 81BB, to challenge the Planning Board's decision.

On November 26, 1974, an amendment to the Town's Zoning By-law, 2.3.3, was approved, and became effective February 13, 1975, prohibiting gerrymandered lots. On January 30, 1975, by which time CEI had submitted revisions to its definitive plan, the Planning Board conditionally approved the revised plan. On March 10, 1975, CEI submitted further revisions and the Planning Board again approved the definitive plan, but subject to a condition that CEI grant to the Town, in perpetuity, open space which CEI had offered earlier.

On April 10 and 11, 1975, the Chapter 41, § 81BB action went to trial. The issue was whether CEI would have to comply with the granting of the open space, in perpetuity and free of charge, in order to obtain subdivision approval. Associate Justice John Meagher of the Massachusetts Superior Court for Worcester County ordered CEI, subsequent to the trial, to submit the open-space plan to the Planning Board again. Mr. Justice Meagher held that the Planning Board could not make a grant of open space in perpetuity free of charge a condition for approval of the definitive plan, and remanded the matter back to the Planning Board to act in accordance with the subdivision control law.

Plaintiffs contend (p. 15 of Plaintiffs' Memorandum in Opposition to Defendants' Motion for Summary Judgment) that "(D)efendants conspired to use the judgment as a weapon to continue the conspiracy." On June 16, 1975, the Planning Board required CEI to submit another subdivision plan. Subsequently, CEI sought additional relief from the Superior Court, by way of a Petition for Contempt. The court refused to grant a hearing on this petition.

In the fall of 1975, a new regulation was adopted by the Town drastically increasing the filing fee required for new subdivision plans.

THE SECTION 1983 ISSUES

I assume, for the purposes of this motion only, that all of the defendants, the so-called municipal defendants and ERT and its employee McCandless, were acting under color of law. The municipal officials, of course, are entitled to a qualified immunity which is not enjoyed by the municipality itself. Owen v. City of Independence, ___ U.S. ___, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). I have culled the pleadings, affidavits, answers to interrogatories and depositions, and find nothing by way of evidence or the promise of evidence which could be considered by a factfinder, directly or by way of supporting a reasonable inference of intentional violation of the constitutional rights of the plaintiffs, or of reckless disregard of the civil rights of the plaintiffs. If, in fact, ordinary errors were committed by any of the public officials...

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7 cases
  • Martinez v. Winner
    • United States
    • U.S. District Court — District of Colorado
    • July 30, 1982
    ...statute of limitations would bar recovery in this lawsuit for any conduct prior to January 29, 1981. See Creative Environments, Inc. v. Estabrook, 491 F.Supp. 547 (D.Mass.1980). 88 In the Plaintiff's Brief in Response, counsel makes reference to unpleaded allegations that defendant Sandy Sp......
  • Salcedo v. Town of Dudley, Civil Action No. 06-40250-FDS.
    • United States
    • U.S. District Court — District of Massachusetts
    • March 20, 2009
    ...action has accrued"); see Burnett v. Grattan, 468 U.S. 42, 45 n. 5, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984); Creative Environments, Inc. v. Estabrook, 491 F.Supp. 547, 554 (D.Mass. 1980). Counts 2 and 4 assert claims for defamation and intentional infliction of emotional distress under Massach......
  • New Port Largo, Inc. v. Monroe County
    • United States
    • U.S. District Court — Southern District of Florida
    • November 21, 1988
    ...is specifically spelled out in the statute, and, thus, a court must always follow this limitation. See E.G. Creative Environment, Inc. v. Estabrook, 491 F.Supp. 547, 554 (D.Mass. 1980) (finding in dicta that all claims based upon activity occurring prior to one year before the filing of the......
  • Creative Environments, Inc. v. Estabrook
    • United States
    • U.S. Court of Appeals — First Circuit
    • May 6, 1982
    ...district court had before it affidavits, answers to interrogatories, and extensive depositions. It allowed the motion on June 17, 1980. 491 F.Supp. 547. On June 18, the Town of Bolton similarly moved for summary judgment. This motion was allowed on November 20, 1980 and final judgment was e......
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