Creative Environments, Inc. v. Estabrook

Decision Date06 May 1982
Docket NumberNo. 81-1476,81-1476
Citation680 F.2d 822
PartiesCREATIVE ENVIRONMENTS, INC., et al., Plaintiffs, Appellants, v. Robert ESTABROOK, et al., Defendants, Appellees.
CourtU.S. Court of Appeals — First Circuit

Edward P. Leibensperger, Boston, Mass., with whom Patricia S. Nelson, and Nutter, McClennen & Fish, Boston, Mass., were on brief, for appellants.

J. Christopher Robinson, Boston, Mass., with whom Edward R. Lev, Boston, Mass., Thomas M. Zimmer, Concord, Mass., and Sullivan & Worcester, Boston, Mass., were on brief, for appellees Environmental Research and Technology, Inc. and Scott McCandless.

Joan A. Lukey, Boston, Mass., with whom J. Owen Todd, Jane D. Kaplan, and Hale & Dorr, Boston, Mass., were on brief, for appellees Robert R. Estabrook, et al.

Before CAMPBELL and BOWNES, Circuit Judges, and WYZANSKI, * Senior District Judge.

LEVIN H. CAMPBELL, Circuit Judge.

Creative Environments, Inc. ("CEI") and its president, Wayne E. Barber, appeal from the granting of summary judgment in favor of defendants Town of Bolton, Massachusetts, certain town officials, Environmental Research & Technology, Inc. ("ERT"), and Scott McCandless, an employee of ERT and a Bolton resident. CEI had sued all defendants except the town on February 5, 1976, charging a conspiracy to deny CEI its constitutional rights in connection with the Bolton Planning Board's rejection of a residential housing development promoted by Barber and CEI. As later amended, the complaint alleged violations of 42 U.S.C. §§ 1983, 1985(3), and 1986 and sought declaratory and injunctive relief as well as compensatory and punitive damages against all defendants. The Town of Bolton was added as a defendant in 1978.

After four years of discovery, the defendant officials, ERT, and McCandless moved for summary judgment. When considering the motion, the 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 entered on June 2, 1981. This appeal followed. We agree with the district court that there was no triable issue and that movants were entitled to judgment as a matter of law.


We set forth the facts of record at considerable length, taking pains to include in our narration those which tend to favor plaintiffs' claims.

CEI was incorporated by Wayne Barber in March 1971 for the purpose of constructing and developing residential housing. Prior to 1973 CEI had engaged in only limited development work, its primary project having been a 24-unit condominium in Walpole, Massachusetts. In February 1973, Barber became interested in a piece of property in the Town of Bolton known as Appleton Ridge. Bolton is a small town in central Massachusetts which, according to census data, had a 1980 population of some 2,530 persons. After making preliminary inquiries and acquainting himself with Bolton's zoning bylaws and the town's rules and regulations governing the subdivision of land, Barber purchased, in October 1973, some 183 acres for $177,000. Though CEI had never developed any subdivisions before, Barber's plan was to build an 80-unit housing subdivision composed of three and four home "clusters." Each cluster of houses was, according to Barber's plan, to be surrounded by a large area of open space, 1 and each cluster would share common services such as water and sewer. The land surrounding a cluster was to be left in its natural wooded state. The cluster configuration was an important part of Barber's concept for the subdivision. To satisfy the Bolton zoning requirement that individual single family homes be built on separate lots of at least 1.5 acres, Barber drew the lot lines around each home within a cluster in an unconventional, irregular shape. These lots preserved Barber's preference for having homes within a cluster close together and complied with at least the letter of the zoning rule, which had no express sideline specifications in addition to its requirement that each individual home have 1.5 acres surrounding it. Barber also hoped to provide common facilities such as a pool and community building for the use of the entire subdivision. He intended that each homeowner would own, in addition to his house, an interest in these facilities, and that owners would automatically become members of an association which would govern the use and maintenance of these common areas.

On December 4, 1973, in accordance with Massachusetts subdivision laws, Mass.G.L. c. 41, § 81S, CEI filed a preliminary plan for the Appleton Ridge subdivision with the Bolton Planning Board. 2 On February 1, 1974, the Board disapproved this plan by unanimous vote. As reasons for disapproval, the Board noted that the plan provided for at least six dead-end streets which had not, as was required by the town bylaws, been previously approved by the Planning Board. The Board also stated that several lots lay across an approved town way "for which no legal abandonment has been approved nor has any relocation been approved." Several roads were found to have grades in excess of the allowed maximum of six percent, with insufficient "leveling areas," and the irregular lots were found to be "not in compliance with the intent of the town by-laws." The Board attached a report from the Bolton Board of Health, which also disapproved the plan, and noted that insufficient data on such matters as water holes, recreation areas, open space, utilities and street designs had been provided. Finally, the Board noted that no financial arrangements or conditions had been presented or discussed.

Barber took no exception to this disapproval but rather set about the task of preparing a "definitive plan" for the Appleton Ridge subdivision. Under Massachusetts law, the Board would be required to approve such a definitive plan so long as it complied with Bolton's zoning laws and the Board's own "reasonable" rules and regulations. Mass.G.L. c. 41, § 81M. One such Board regulation, which was in effect at the time Barber purchased Appleton Ridge, stated that, as a condition of approval, land developers were 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." Board Regulation No standards or criteria were provided in the regulation, or elsewhere, as to how this condition might be satisfied. Moreover, there was apparently some dispute among Board members and citizens regarding the rule's validity under state law. Scott McCandless, in particular, believed that the regulation was not valid.

Nevertheless, on March 11, 1974, in an attempt to comply with this requirement, CEI submitted to the Board a 33-page study prepared by Charles E. Downe Associates entitled, "Response to Section of The Bolton Subdivision Regulations." CEI heard nothing from the Board regarding this submission, however, and on July 30 CEI filed its full "definitive plan" with the Planning Board.

Unlike its preliminary plan, the definitive plan did not show lines breaking up each cluster into irregular lots. Rather, in an effort to defuse the 1.5 acre zoning issue, CEI designed the new plan to show only five large parcels divided by the proposed public ways. It was apparently understood by both Barber and the Board that, once the entire subdivision concept was approved, CEI would submit for Board approval individual plans for each house in accordance with a special provision of the subdivision laws. See Mass.G.L. c. 41, § 81P.

On August 27, 1974, the Planning Board met with CEI to discuss Appleton Ridge in detail. After CEI had finished its presentation and had departed, the Board drafted a letter, which it sent the following day, to all the major town boards and officials informing them of the CEI proposal. In this letter the Board informed these officials that a meeting was being scheduled at Town Hall for September 7 "for a review of the Creative Environments, Inc. definitive subdivision plan." It further noted that a public hearing would be held on September 9 to formally discuss the plan and that all recommendations had to be in the Planning Board's hands by the 14th. The letter closed by saying, "It is imperative that the Town Boards get together this September 7 to study, discuss and fully understand the impact that this definitive plan will have on the Town of Bolton." No copy of this letter was sent to Barber or CEI, and no representative was present at the September 7 meeting. Indeed, when Barber asked a Board member on September 5 when the next Planning Board meeting would be held, he was told only that it would meet on the 9th for the public hearing. Both the September 7 meeting of town leaders and September 9 public hearing took place as scheduled.

A few days after the public hearing, on September 12, at least in part because the Board intended at that time to rely upon CEI's environmental report in reaching its decision on the subdivision, the Planning Board commissioned ERT to evaluate the CEI study. Board member Murphy originally approached Scott McCandless to assist in this evaluation. McCandless was a town resident, an urban affairs specialist for ERT and a part-time reporter who covered the Planning Board for a local newsletter called the "Bolton Citizen's News." McCandless declined Murphy's invitation, however, because he had been covering the subdivision story as a reporter and felt it might be improper for him to get directly involved. McCandless referred Murphy to ERT, his employer, however, even though he had long personally felt (and had so expressed himself to the Board) that the environmental...

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