McCoy v. Town of Pittsfield, NH
| Decision Date | 07 February 2023 |
| Docket Number | 21-1907 |
| Parties | JOSEPH MCCOY, Plaintiff, Appellant, v. TOWN OF PITTSFIELD, NH, Defendant, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE Hon. Joseph N. Laplante, U.S. District Judge
Leif A. Becker, with whom Becker Legal, PLLC was on brief, for appellant.
Robert J. Dietel, with whom Keelan B. Forey and Gallagher, Callahan & Gartrell, P.C. were on brief, for appellee.
Before Barron, Chief Judge, Selya and Lynch, Circuit Judges.
In 2015, Joseph McCoy, a resident of the Town of Pittsfield, New Hampshire (the "Town"), applied for and received a permit to keep a trailer on his property in order to store various belongings and tools, as required by the Town's zoning ordinance (the "Ordinance"). In January 2016, McCoy's son painted the words and "2016" on the side of the trailer facing New Hampshire Route 107.
Later in 2016 and again in 2017, the Town's Board of Selectmen (the "Board") granted McCoy permit extensions so that he could keep the trailer on his property as he completed home repairs and gradually unloaded the trailer. In June 2018 -- nearly a year after McCoy's son had repainted the trailer to depict a scene of hot air balloons -- the Board denied McCoy's request for a third extension and required him to remove the trailer from his property.
McCoy sued the Town, alleging that the Ordinance, as applied by the Board, was unconstitutionally vague and violated his First Amendment and equal protection rights. He now appeals the district court's entry of summary judgment for the Town. McCoy v. Town of Pittsfield, 565 F.Supp.3d 125, 146 (D.N.H. 2021). We affirm.
Because the district court granted summary judgment for the Town, we "describe the facts giving rise to this lawsuit in a light as favorable to [McCoy] as the record will reasonably allow." Travers v. Flight Servs. & Sys Inc., 737 F.3d 144, 145 (1st Cir. 2013).
The Town adopted the Ordinance in 1988 and has since amended it various times. Pittsfield, N.H., Zoning Ordinance (Mar. 9 2021).[1] As relevant here, Article 14 of the Ordinance regulates "storage containers" in order to "promote the general welfare by protecting the aesthetics of the [T]own." Id. art. 14, § 2. A "storage container" is defined as "a truck trailer, box trailer, school bus, manufactured housing unit, or similar mobile container parked continuously for 31 days or more and used principally for storage and not used for any person's residential occupancy or transient lodging." Id. art. 2, § 3 (emphasis omitted) . The Ordinance restricts the number and placement of storage containers in various zoning districts, requires permits for storage containers, and provides that storage containers cannot remain "on any one lot during any 15-month period . . . [for] more than 12 months." Id. art. 14, § 3(e) (emphasis omitted).
In early 2014, McCoy moved to the Town. To store his belongings and various tools, he purchased a 52-foot trailer and had it delivered to his property.
In August 2015, the Town's building inspector, Jesse Pacheco, informed McCoy that McCoy needed a storage container permit to keep the trailer on his property. McCoy applied for and received a permit, which took effect on September 1, 2015. The permit stated that storage containers "are not allowed on a permanent basis . . . within the Town of Pittsfield" and are permitted for only a "period of one year," and thus that McCoy's trailer "must be removed one year from [September 1, 2015]."
In January 2016, McCoy allowed his son to paint the side of the trailer with the words and "2016." The words were painted in large white letters and were visible from New Hampshire Route 107. McCoy posted an image of the painted trailer on Facebook. In August 2016, the Concord Monitor published an article about the trailer, including a photograph of the painted words.
After McCoy's storage container permit expired on September 1, 2016, Pacheco mailed McCoy a notice that the trailer must be removed pursuant to the Ordinance. McCoy then sent Pacheco a letter requesting a six-month extension because McCoy had "construction going on" including to repair a garage leak that would take "several months to fix." McCoy explained that he was "disabled, with just one working leg," and that he needed an extension "in order to keep [his] tools and materials inside th[e] trailer while [he] deal[t] with this emergency construction situation." He promised to "empt[y] and remove[]" the trailer "by the end of April 2017."
On November 15, 2016, the Board unanimously approved McCoy's request. The motion to approve was made by Selectman Carl Anderson. At the time, Anderson, a self-proclaimed "life-long Republican" and "public supporter of President Trump," was aware of the painted words on the trailer, and Anderson later attested that this knowledge "did not factor into [his] deliberations." The Board had received several complaints about unpermitted storage containers in 2016, including one complaint concerning McCoy's trailer, and Anderson later wrote in a letter to McCoy that no complaint mentioned the words painted on the trailer.
In a meeting on May 23, 2017, the Board discussed McCoy's trailer. According to meeting minutes, the Board conferred on whether other trailers were in violation of the Ordinance, with Pacheco noting that it was unclear whether other trailers were "grandfathered or not." The minutes do not include any discussion of the words painted on McCoy's trailer. The Board tabled the matter.
On June 13, 2017, the Board met with McCoy to discuss the trailer. McCoy requested a second extension. According to the meeting minutes, McCoy explained that his "deck[] and porch [were] rotted" and "it [was] taking [him] more time then [sic] expected to do all the repairs needed." McCoy further stated that he "want[ed] to get rid of" the trailer "but just need[ed] more time to do the work needed on [his] home." There was no discussion at the meeting of the words painted on the trailer. The Board again unanimously approved McCoy's request, granting McCoy a new storage container permit effective for one year starting June 13, 2017.
In July 2017, McCoy allowed his son to repaint the trailer with an image of the Pittsfield hot air balloon rally. The trailer depicted an American flag and hot air balloons where the words and "2016" previously had been.
On May 22, 2018, the Board wrote to McCoy to remind him that the latest permit would expire in June 2018 and that the trailer must be removed at that time. In response, McCoy mailed a letter to the Board requesting a third extension. He explained that emptying the trailer was "not an easy task" because he was disabled and had brought a "huge ammount [sic] of belongings" when he moved to the Town. He did not mention the words that were previously painted on the trailer.
On June 12, 2018, the Board unanimously denied McCoy's request for a third extension. The Board discussed McCoy's prior representations to the Board that he would remove the trailer, and one selectman stated, "we need to keep [McCoy] at his word." The meeting minutes do not report any discussion of the previously painted words. During the June 12 meeting, the Board considered complaints regarding three other unpermitted storage containers and agreed to send a notice of violation to the owner of those storage containers. Since then, the Town has taken enforcement action against several other unpermitted storage containers.
A letter sent to McCoy on June 13, 2018, explained that "[w]hile [the Board] note[d] the personal circumstances that ha[d] caused delay, the Board ha[d] to balance the terms of the zoning ordinance with [McCoy's] request." Pacheco further informed McCoy that the decision to deny the third extension was "due to complaints."
The Board gave McCoy 30 days to remove the trailer. In July 2018, McCoy sold the trailer and removed it from his property. The Town later confirmed that McCoy had removed the trailer, but did not impose any other penalties against McCoy.
On March 20, 2020, McCoy sued the Town in the U.S. District Court for the District of New Hampshire, invoking 42 U.S.C. § 1983. In Count I of his complaint, McCoy alleged that the Ordinance, "as applied by the Town," was (1) an "unconstitutionally overbroad restriction on expressive activity," (2) an "unconstitutionally vague restriction on expressive activity," and (3) a "content-based and viewpoint-based restriction on speech." In Count II, McCoy claimed that the Ordinance, "as applied by the Town," violated the Equal Protection Clause of the Fourteenth Amendment because the Town selectively enforced the Ordinance against owners of storage containers that display political speech.
The Town moved for judgment on the pleadings on all counts. The district court granted the motion in part and denied it in part. McCoy v. Town of Pittsfield, No. 20-cv-362, 2020 WL 7321522, at *8 (D.N.H. Dec. 10, 2020). With respect to Count I, the district court dismissed McCoy's First Amendment overbreadth claim[2] but allowed his other claims to proceed, stating that McCoy's "complaint contains enough facts that, when construed in his favor, support the inference that the Town . . . applied the [O]rdinance against him in a way that discriminates against either the content or viewpoint of his speech, and that the Town's application of the [O]rdinance was unconstitutionally vague." Id. at *1. The district court also allowed Count II to proceed, holding that McCoy pleaded "sufficient facts to satisfy . . . his 'class of one' equal protection claim." Id.
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