James Chongris and George Chongris v. Board of Appeals of The Town of Andover, 811 F.2d 36, 1st Cir. (1987)
James Chongris and George Chongris v. Board of Appeals of The Town of Andover, 811 F.2d 36, 1st Cir. (1987)
2d 36
Because this appeal follows a district court's dismissal of the action under Rule
12(b)(6), we accept the well-pleaded factual averments of the latest (second
amended) complaint as true, and construe these facts in the light most flattering
to the plaintiffs' cause. Kugler v. Helfant, 421 U.S. 117, 125-26 & n. 5, 95 S.Ct.
1524, 1531-32 & n. 5, 44 L.Ed.2d 15 (1975); Cruz v. Beto, 405 U.S. 319, 322,
92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972) (per curiam). We exempt, of
course, those "facts" which have since been conclusively contradicted by
plaintiffs' concessions or otherwise, and likewise eschew any reliance on bald
assertions, unsupportable conclusions, and "opprobrious epithets." See
Snowden v. Hughes, 321 U.S. 1, 10, 64 S.Ct. 397, 402, 88 L.Ed. 497 (1944).
The seeds of the current dispute were sown in August of 1979, when the
Town's Building Inspector issued a permit for extensive renovations to convert
a building owned by George Chongris to a Dunkin Donuts franchise. James
Chongris then filed an application with the Selectmen to secure the common
victualler's license which would be required for operation of the donut shop.
See M.G.L. ch. 140, Sec. 6. Shortly thereafter, a neighborhood group known as
the Friends of Shawsheen Village Association (Friends) registered an objection
to the issuance of the building permit. Additionally, the Friends sought to
appeal the action of the Building Inspector pursuant to M.G.L. ch. 40A, Secs. 8
and 15. Their petition to the Board rested upon four grounds: insufficient
setback; insufficient parking; improper use of "club service"; and violation of
the zoning bylaws regarding business signage.
The Board advertised a public hearing which was held on November 1, 1979.
Although appellants challenge the constitutional adequacy of the notice they
received, see post, it is undisputed that James Chongris attended the hearing
with counsel and presented arguments in favor of the proposed conversion of
the building. Indeed, they convinced the Board to take a view of the premises
before acting on the appeal. On November 13, 1979, following the view--which
plaintiffs claim that they were unable to attend because of the Board's failure to
advise them of the schedule in a timely fashion--the Board voted unanimously
to reverse the decision of the Building Inspector and to revoke the permit. Soon
thereafter, the plaintiffs filed suit in state superior court under M.G.L. ch. 40A,
Sec. 17, seeking review of the Board's action. 2 And, the Selectmen took no
significant action in respect to the victualling license, "tabling" the application.
5
Some eleven months after their zoning appeal had been instituted in the
superior court and while it was still pending (although lying fallow), the
plaintiffs filed this action in the federal district court on October 14, 1980. The
complaint averred that the Friends,3 the Board, and the Town, together with and
through the individual defendants, had deprived the plaintiffs of property (i.e.,
the building permit) without compensation and/or due process of law. In
addition, the plaintiffs alleged that the refusal of the Selectmen to act on the
application for the conditional common victualler's license (or alternatively, to
explain their refusal to act) likewise denied them property without due process.
In February of 1981, plaintiffs filed in both the state and federal forums a socalled "reservation" of their federal claims purporting to save adjudication of all
pertinent federal law questions for the federal district court. In so doing, the
plaintiffs relied upon the Supreme Court's decision in England v. Louisiana
Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440
(1964), vouchsafing that England stood as authority for this procedure.4 There
is nothing in the record before us to suggest that this reservation was
contemporaneously called to the attention of any judge, federal or state.
On December 29, 1982, the state superior court annulled the Board's revocation
edict, holding that the Friends lacked standing to mount the initial challenge.
The Massachusetts Appeals Court subsequently upheld the superior court's
decision, see Chongris I, and the building permit was restored. Notwithstanding
their state court triumph and the fact that they were able to obtain a later order
of the Massachusetts Appeals Court awarding them $1782 in fees and double
costs, the plaintiffs' thirst to punish the municipal defendants was unslaked.
They continued to press their claims in the federal court. In March 1985, the
plaintiffs filed a second amended complaint which, in addition to renewing the
bread-and-butter civil rights claims and updating the facts to reflect more recent
history, placed in issue the constitutionality of certain state statutes. Notice of
this initiative was served on the Commonwealth's Attorney General, see
M.G.L. ch. 231A, Sec. 8, who intervened.
believed, could have been litigated in the earlier state court proceeding--were
barred under principles of res judicata. See Chongris II, 614 F.Supp. at 100102. Nothing daunted, the plaintiffs unsuccessfully moved for reconsideration,
and thereafter docketed this appeal.
II. BATTLEGROUND
9
10
We turn initially to the allegation that the Board's rescission of the building
permit was unconstitutional. The plaintiffs seem to say that the Board denied
them the procedural due process guaranteed by the fourteenth amendment to
the federal Constitution in three different ways. First, they argue that the notice
of the hearing on the Friends' appeal was infirm in failing to spell out in so
many words that revocation of the building permit was being considered.
Second, they contend that the protocol itself was fatally flawed and afforded
them insufficient opportunity meaningfully to be heard. And third, the plaintiffs
urge that the revocation--ordered, as it was, in connection with the appeal of a
The two essential elements of an action under 42 U.S.C. Sec. 1983 are, of
course, (i) that the conduct complained of has been committed under color of
state law, and (ii) that this conduct worked a denial of rights secured by the
Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535,
101 S.Ct. 1908, 1914, 68 L.Ed.2d 420 (1981); Chiplin Enterprises, Inc. v. City
of Lebanon, 712 F.2d 1524, 1526-27 (1st Cir.1983). Although the first
requirement is met in this case, our painstaking excursion through the
prolixities of the second amended complaint has left us utterly unable to locate
any constitutional right of which the plaintiffs were deprived when the Board
revoked the building permit.
13
Assuming for present purposes that the plaintiffs enjoyed a tenable property
interest in the building permit once it had originally issued, see Cloutier v.
Town of Epping, 714 F.2d 1184, 1191 (1st Cir.1983), they nevertheless have
failed to demonstrate that they received less than their constitutional due. The
Supreme Court has repeatedly observed that not every deprivation of property
attributable to state action sinks to the depths of a fourteenth amendment
violation. E.g., Parratt, 451 U.S. at 537, 101 S.Ct. at 1913. Where state
procedures--though arguably imperfect--provide a suitable form of
predeprivation hearing coupled with the availability of meaningful judicial
review, the fourteenth amendment guarantee of procedural due process is not
embarrassed. Creative Environments, Inc. v. Estabrook, 680 F.2d 822, 829-30
(1st Cir.), cert. denied, 459 U.S. 989, 103 S.Ct. 345, 74 L.Ed.2d 385 (1982).
And, as an analysis of each of the three segments of the plaintiffs' building
permit lament will bear out, the procedures employed by the Board in this
instance easily pass constitutional muster.
14
1. Notice. The claim that the Board's notices of the hearing on the Friends'
appeal were constitutionally deficient--because they failed to inform the
appellants explicitly that revocation of the building permit was being
considered--is hollow at its core. It is important to note that the appellants do
not assert that they received no notice. The hearing was held on November 1,
1979. The plaintiffs concede that George Chongris, the owner of the premises,
received notice by mail well in advance of that date. They likewise
acknowledge that in mid-October notice was twice given by publication in a
local newspaper of general circulation. The announcements complied fully with
M.G.L. ch. 40A, Sec. 11. Each notice apprised all concerned of the time, date,
and place of the hearing, the identity of the petitioner, the location of the
subject premises, and the general nature of the action. In addition, the Friends'
underlying petition was filed in the Town Clerk's office as early as August 30,
1979. It was available for public inspection for over two full months before the
hearing.
15
As required by M.G.L. ch. 40A, Sec. 15, the petition itself spelled out, in the
clearest terms imaginable, the grounds upon which it rested. See ante at 38. It
was a direct and unambiguous objection to the Building Inspector's issuance of
the permit. It specifically identified the zoning bylaws which, in the Friends'
view, conflicted with the plaintiffs' project. The record reflects that at least one
of the plaintiffs, accompanied by counsel, met with the Building Inspector to
review the likely bases of the anticipated opposition a day or two before the
hearing. There was never any doubt but that reversal of the Building Inspector's
decision (and thus, by necessary implication, revocation of the permit) was the
objectors' desired remedy. And, given that such a remedy fell within the
purview of the Zoning Board's jurisdictional authority under M.G.L. ch. 40A,
Sec. 14--a fact of which plaintiffs (who were represented throughout by
counsel) had constructive knowledge, cf. Cappuccio v. Zoning Board of
Appeals of Spencer, 398 Mass. 304, 313, 496 N.E.2d 646, 651 (1986)--the
appellants' belated claim that they were "surprised" by the revocation is plainly
disingenuous. To be sure, they may have been "surprised" that they lost the
permit (the Building Inspector, after all, was clearly on their side)--but the
suggestion that they were unaware that revocation was a possible outcome of
the Friends' petition and the November 1 hearing is as preposterous as it is
incredible.
16
17
represented them at the November 1, 1979 hearing and was (along with James
Chongris himself) afforded an opportunity to argue in opposition to the Friends'
appeal. The mere fact that the Board may not have sent an engraved invitation
to the appellants suggesting that their lawyer would be welcome strikes us as
altogether immaterial. What matters, from a constitutional perspective, is that
the plaintiffs apparently knew that they had a right to counsel, exercised that
right, and encountered no interference from the Board.
18
19
conclusions and outlandish legal theories--as proven, the hearing process which
the Board employed was fully consistent with what the federal Constitution
demanded.
20
3. Standing. The last of the plaintiffs' remonstrances against the Board reduces
to the curious contention that, by acting upon the appeal of a party later found
to lack standing under state law, the Board ipso facto deprived plaintiffs of
property without due process of law. Such a proposition cannot survive
scrutiny.
21
The Supreme Court has noted that not all violations of state statutes infringe
constitutional rights. Paul v. Davis, 424 U.S. 693, 700, 96 S.Ct. 1155, 1160, 47
L.Ed.2d 405 (1976). As we observed in Creative Environments, 680 F.2d at
832 n. 9, "property is not denied without due process simply because a local
planning board rejects a proposed development for erroneous reasons or makes
demands which arguably exceed its authority under the relevant state statutes."7
The case at bar blends nicely into the Creative environment.
22
23
The appellants' assertions against the Selectmen have even less nutritive value
than the charges levied against the Board. The Chongris brothers contend that
there has been a bite taken out of procedural due process by reason of the
Selectmen's failure (in 1979 and thereafter) to issue--or take any action on,
other than to table--a conditional common victualler's license to which plaintiffs
felt entitled under M.G.L. ch. 140, Sec. 6. In serving up this bill of fare, the
appellants concocted nothing upon which relief could properly have been
granted below.
25
It is hornbook law that, to fashion a procedural due process claim under the
fourteenth amendment, the plaintiffs must have possessed some constitutionally
cognizable interest--in the present circumstances, a protectible property interest.
Parratt, 451 U.S. at 536, 101 S.Ct. at 1913; Board of Regents v. Roth, 408 U.S.
564, 569-70, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). It is likewise a
black-letter certainty that property rights, while protected by the federal
Constitution, are creatures of state law. See Bishop v. Wood, 426 U.S. 341, 344
n. 7, 96 S.Ct. 2074, 2077 n. 7, 48 L.Ed.2d 684 (1976); Roth, 408 U.S. at 577,
92 S.Ct. 2709. We thus look to the provisions of Massachusetts law anent
victualler licensure to determine if these plaintiffs had any constitutionally
significant interest in the hoped-for conditional license which they say that the
Selectmen refused to issue to them.
26
M.G.L. ch. 140, Sec. 2 tells us that "[l]icensing authorities may grant licenses
to persons to be innholders or common victuallers." (emphasis supplied). The
statute goes on to state that it "shall not require the licensing authorities to grant
either of said licenses if, in their opinion, the public good does not require it."
Id. And, M.G.L. ch. 140, Sec. 6 provides in relevant part that:
27
29 licensing authorities are not now required to grant any licenses to common
The
victuallers. Whether any such licenses shall be granted and, if any, the number to be
granted rest in the sound judgment of the licensing board as to the demands of the
public welfare in the respective communities.
30
Liggett Drug Co. v. Board of License Comm'rs, 296 Mass. 41, 50, 4 N.E.2d
628, 634 (1936).
31
The plaintiffs launch their last constitutional missile against the facial validity
of portions of the Massachusetts zoning statutes. Insofar as they bombard the
sufficiency of the form of notice required under M.G.L. ch. 40A, Sec. 11 and
the adequacy of the protocol for the hearing which was held pursuant to M.G.L.
ch. 40A, Sec. 15, they do nothing more than recostume some of the
constitutional claims leveled against the practices of the Board--claims which
we have already rejected as unfounded. See ante Part II(A). These frayed
arguments take on no added allure in the garb of challenges to the
constitutionality of the statutes themselves. On the basis of the reasons which
we have previously articulated, we dismiss them out of hand.
33
The appellants' last strike is new to our treatment of the issues in the case--yet
we need not linger long in considering it. The plaintiffs urge that the postdeprivation remedies accorded them were constitutionally deficient.
Specifically, they argue that M.G.L. ch. 40A, Sec. 17, the pertinent text of
which is set forth in the margin, see ante n. 2, fails to allow them appropriate
compensation for their losses. And, we assume that such remuneration is
indeed beyond their reach as a matter of state law, since they admit that the
Board did not act "with gross negligence, in bad faith or with malice." See id.
Because they are given no state law damages remedy for the good faith--but
erroneous--revocation of the permit, the appellants contend that this means their
"property" was "taken" without recompense. They conveniently overlook the
ironic fact that the very statute which they now revile was itself the vehicle
through which they regained the permit, and insist that the Constitution entitles
them to a monetary anodyne.
34
35
Our decisions, both before and after Parratt and Hudson, are harmonious with
these tenets. See, e.g., Alton Land Trust v. Town of Alton, 745 F.2d 730, 73233 (1st Cir.1984) (rebuffing claim for damages under the due process and
takings clauses where denial of subdivision application led to loss of subject
property by foreclosure); Citadel Corp. v. Puerto Rico Highway Authority, 695
F.2d 31, 33-34 (1st Cir.1982) (damages not available under 42 U.S.C. Sec.
1983 for excessive state land-use regulation), cert. denied, 464 U.S. 815, 104
S.Ct. 72, 78 L.Ed.2d 85 (1983); Pamel Corp. v. Puerto Rico Highway
Authority, 621 F.2d 33, 35-36 (1st Cir.1980) (same). The plaintiffs here are no
differently situated insofar as state law remedies than were the litigants who,
precedent teaches, failed to state constitutional claims in Cloutier, Chiplin
Enterprises, and Creative Environments, all supra. The failure of the
Massachusetts statutory scheme to confer a more generous damages entitlement
falls well within the range of constitutionally acceptable choices which the
During the currency of this appeal, the appellees moved for the imposition of
attorneys' fees and double costs under Fed.R.App.P. 38. They branded the
entire proceeding as frivolous. The appellants, not to be outdone, cross-moved
for the fees involved in defending against what they deemed to be a capricious
request for sanctions.
37
The appellees' motion presents, we think, a relatively close question. The fact
that we elected not to consider the res judicata ground on which the district
court dismissed the action is not any indication that we entertained substantial
qualms about the district court's holding. Accord Casagrande v. Agoritsas, 748
F.2d at 48 n. 1 ("Although we might well agree with the district court that
dismissal on the complaint is warranted because the district court lacks
jurisdiction to hear the case, we choose to affirm its judgment on an
independent ground.") (citations omitted). We reasoned, instead, that the case
was sufficiently clear in other respects that the temptation gratuitously to enter
the England thicket, see ante n. 4, should be avoided. This course of action
seemed especially inviting because the district court, on the res judicata point,
did not have the benefit of our opinion in Calderon Rosado v. General Electric
Circuit Breakers, Inc., 805 F.2d 1085 (1st Cir.1986), and thus gave no
consideration to acquiescence as a preclusory bar to invocation of a defense
premised upon claim-splitting. See id. at 1087. See also Diversified Mortgage
Investors v. Viking General Corporation, 16 Mass.App. 142, 450 N.E.2d 176,
179-80 (1983).9 Since we have eschewed detailed review of the district court's
rationale, however, it becomes more difficult for us, in fairness, to characterize
the plaintiffs' appeal as frivolous. See Natasha, Inc. v. Evita Marine Charters,
Inc., 763 F.2d 468, 472 (1st Cir.1985) (appeal "frivolous" when result is
obvious or all arguments are wholly meritless).
38
III. FOREGROUND
39
40
41
42
Affirmed.
Although the district court rested its decision on the doctrine of res judicata, see
Chongris II, 614 F.Supp. at 1002, we elect not to reach that issue but to affirm
the judgment on the independently sufficient ground that plaintiffs' complaint
failed to state a cognizable federal claim upon which relief could be granted.
Fed.R.Civ.P. 12(b)(6). There is ample precedent for this sort of fluctuation. See
Casagrande v. Agoritsas, 748 F.2d 47, 48 n. 1 (1st Cir.1984) (per curiam); Roy
v. City of Augusta, 712 F.2d 1517, 1520 n. 3 (1st Cir.1983). Cf. Cloutier v.
Town of Epping, 714 F.2d 1184, 1188 (1st Cir.1983). As the appellants
themselves have said, "the ultimate issue in this appeal ... is whether plaintiffs
have stated, if not established, a civil rights claim for compensatory relief."
Reply Brief for Plaintiffs/Appellants at 14. We simply take them at their word
2
The original complaint named the Friends, along with two functionaries
(Sellers, the president of the Friends, and Terranova, the attorney and principal
spokesman for the group) as defendants and coconspirators. This trio of
respondents were eventually dropped as parties. They are no longer in the case
The plaintiffs also named the Town as a defendant. Yet, they offered no facts
whatever which could attach liability to that entity under 42 U.S.C. Sec. 1983.
It is firmly settled--although the plaintiffs stubbornly insist to the contrary--that
Some frosting adorns this particular piece of cake: there is nothing in the record
before us, by way of averment or otherwise, to indicate that the plaintiffs ever
sought to cross-examine any witness or requested that the Board cede them this
"right."
Although we need not proceed further, the case against the Selectmen points up
the emptiness of the plaintiffs' federal grievances. During the period when the
Selectmen are accused of having engineered the "deprivation" of the
victualler's license, construction of the Dunkin Donuts restaurant had not begun.
For virtually all of that period, the building permit stood revoked. Thus, even if
the Chongrises had the victualler's license, it would have been a meaningless
piece of paper. The restaurant from which food was to have been dispensed did
not exist. Here, as in Cloutier, 714 F.2d at 1193 n. 9, there is "nothing in the
record to suggest a triable issue of fact on the question whether the plaintiffs
suffered [any] damages" from the interdicted action