United States Court of Appeals For the First Circuit
No. 01-1414
THOMAS J. MACONE AND FRANK BRAMANTE, TRUSTEES OF BRAMAC DEVELOPMENT TRUST,
Plaintiffs, Appellants,
v.
TOWN OF WAKEFIELD,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Torruella, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lipez, Circuit Judge.
David J. Gallagher, with whom Regnante, Sterio & Osborne LLP, were on brief, for appellants. Patrick J. Costello, with whom Merrick, Louison & Costello, were on brief, for appellee. January 10, 2002
-2- TORRUELLA, Circuit Judge. Plaintiffs-appellants Thomas J.
Macone and Frank Bramante, Trustees of the BRAMAC Development Trust,
appeal from a grant of summary judgment for appellee, the Town of
Wakefield ("Wakefield"). Appellants brought suit against Wakefield
alleging violations of the Federal Fair Housing Act, 42 U.S.C. § 3604,
42 U.S.C. § 1983, and the Due Process and Equal Protection clauses of
the United States Constitution. These violations allegedly occurred
when Wakefield rescinded its support for appellants' proposed
affordable-housing project. Upon appellee's motion for summary
judgment, the district court found no material facts in dispute and,
thereafter, ruled in appellee's favor as a matter of law. We affirm.
I.
This suit arose out of appellants' dealings with Wakefield
when appellants sought, obtained, and, subsequently, lost local backing
for a proposed residential housing development. As designed, the
development, Hillside Estates, would consist of 133 to 160
condominiums, a significant percentage of which would be targeted to
low-income and minority families. It would be located on a 12.3 acre
parcel of land in Wakefield which the appellants already owned and
which had already been approved for a 28-lot subdivision by the
Wakefield Planning Board. Appellants hoped to move this project
through the Local Initiative Program ("LIP"), allowing them to bypass
many local zoning and regulatory hurdles.
-3- The Commonwealth of Massachusetts Department of Housing and
Community Development ("DHCD") established LIP in order to provide
cities and towns in Massachusetts with incentives to initiate the
construction and sale of minority and low-income family housing. In
furtherance of that goal, LIP provides non-financial assistance and
allows developers to obtain legal standing to appear before local
Zoning Boards of Appeals and request comprehensive permits. These
comprehensive permits potentially allow developers to circumvent local
requirements and regulations, including zoning laws.
As a first step in the LIP application process, a developer
must get the written endorsement of the chief elected official of the
municipality where the project is proposed. In Wakefield, this is the
Board of Selectmen ("Board"). The involvement and support of local
elected officials is important because proposed LIP developments enjoy
streamlined approval processes and participating municipalities may
share in the marketing and design of projects. While genuine local
support is important, DHCD expects local officials to act in good faith
and not unreasonably withhold support.
Additionally, Massachusetts has established a target goal
that ten percent of available housing stock in each community should be
affordable.1 See Mass. Gen. Laws ch. 40B, § 20. Wakefield has never
1 For the purposes of this opinion, affordable housing is defined as housing that low- and moderate-income families can afford.
-4- achieved that target percentage. Rather, the percentage of affordable
housing in Wakefield hovers around 4.5 percent of the total available
housing.
According to LIP regulations, appellants sought approval for
Hillview Estates from the Board. In their letter to the Board,
appellants stated, " It is important to note that in communities where
the percentage of available low to moderate income housing is below
10%, the DHCD expects local support for LIP Program proposed housing."
On May 13, 1998, the Board voted to approve the Hillview
Estates project proposed by appellants. Appellants suggest that the
Board originally gave this approval because it wanted to maintain some
control over the project, particularly over the type of residents.
According to appellants, the Board feared that the project would be
built even without Wakefield's participation, in which case Wakefield
would have no local preference and, thus, no control over who would
fill the low-income and minority units. They base that contention on
the statement of one Board member who said, in regard to the Hillview
Estates development, "I don't think that gives the flavor to what we
want in Wakefield and unfortunately - and I understand how the
neighbors down there probably feel, I'm not sure that's what they're
going to want to see at the end either." In response to this
contention, all deposed Board members2 explained that their initial
2 Appellants deposed all but one Board member.
-5- approval stemmed from their concern that the town would suffer adverse
consequences, including a possible loss of funding from the state, if
they failed to approve all LIP proposals.
After the Board approved the Hillview Estates proposal,
appellants submitted their application to DHCD. Pursuant to this
application, appellants met with DHCD representatives on November 5,
1998. At that meeting, DHCD asked appellants to consider reducing the
size of the Hillview Estates project and obtain additional confirmation
of Wakefield's support for the project. Therefore, on November 9,
1998, appellants resubmitted the Hillview Estates proposal to the
Board, reducing the number of units by twenty. Four days later,
Wakefield responded that the Board was happy to see that the number of
units had been reduced and that the Board continued to support the
Hillview Estates project.
On November 30, 1998, members of the Board met with DHCD
representatives to discuss LIP and related projects. At this meeting,
it became clear to the Board that Wakefield would not suffer adverse
consequences from the simple failure to approve all LIP proposals. The
DHCD representatives made clear that they believed that the Board had
been making a good faith effort to comply with program goals.
In a letter dated December 21, 1998, DHCD informed the Board
that it had approved the Hillview Estates project. However, the letter
also noted that "both the size of the proposed project and the density
-6- per acre are greater than the size or density typically allowed by
[DHCD] within the [LIP]. However since the [Board] has endorsed the
Hillview Estates [project] application, [DHCD] grants certification."
The letter also required that five of the affordable units be set aside
for minority applicants.
On March 8, 1999, the Board voted to rescind their prior
approval of the Hillview Estates project. This vote occurred without
any prior notice to appellants. The next day, March 9, the Board
notified DHCD of the rescission and asked whether the Hillview Estates
project remained eligible to seek a comprehensive permit from the
Zoning Board of Appeals. The Board did not notify appellants of the
rescission until two days after the vote, March 10. On March 19, 1999,
DHCD cancelled its prior certification and site approval letter for the
Hillview Estates project, preventing appellants from obtaining a
comprehensive permit.
II.
We review the district court's grant of summary judgment de
novo after drawing all reasonable conclusions of fact in favor of the
appellants. See Rubinovitz v. Rogato, 60 F.3d 906 (1st Cir. 1995).
Only if no genuine dispute of material fact exists will we affirm the
grant of summary judgment. See Fed. R. Civ. P. 56. Appellants are
"entitled to all inferences which are fairly supported by the evidence,
but are not permitted to build their case on mere 'opprobrious
-7- epithets' of malice . . . or the 'gossamer threads of whimsey,
speculation and conjecture.'" Creative Env'ts, Inc. v. Estabrook, 680
F.2d 822, 830 (1st Cir. 1982) (citations omitted).
-8- III.
Two of appellants' claims are brought under the Federal Fair
Housing Act, 42 U.S.C. §§ 3601-3631. They allege that the Board, by
rescinding its support for the Hillview Estates project, violated the
Fair Housing Act. To prove a violation of the Fair Housing Act,
appellants can show either discriminatory intent or disparate impact.
See Gamble v. City of Escondido, 104 F.3d 300, 304-05 (9th Cir. 1997).
Appellants advance both theories here, so we address each in turn.
A.
Appellants argue that the Board and Wakefield intended to
eliminate thirty-four affordable and five minority-owned housing units
when they rescinded their support for the Hillview Estates project. In
support of this argument, appellants point to several pieces of
evidence. First, at the original hearing granting approval, a Board
member said, "I don't think that gives the flavor to what we want in
Wakefield." Second, appellants contend that the Board only approved
the project in an effort to take advantage of local preference
provisions of LIP. These local preference provisions would supposedly
limit the number of minorities accepted as residents of the Hillview
Estates project. Third, the revocation was admittedly a substantial
departure from normal procedures. This departure includes the
unannounced reconsideration of the Hillview Estates proposal and the
allegation that one Board member orchestrated the unprecedented
-9- rescission. Fourth, appellants declare that this same Board member
notified the DHCD that he would file an appeal on behalf of local
residents if appellants received a comprehensive permit. Fifth is the
related point that local officials allegedly assisted in local
opposition to the Hillview Estates project. Sixth, the Board failed to
state any reasons for its decision at the time of rescission and later
pointed to facts which were properly before the Zoning Board of
Appeals. Such reliance is allegedly questionable because the Board did
not have the factual background to adequately assess the project and
because the Zoning Board of Appeals was more than equipped to deal with
those issues. Finally, the Board knew that its decision would
eliminate thirty-four affordable and five minority-owned housing units
from being built in Wakefield.
None of the facts pointed to by appellants demonstrates any
discriminatory intent, except for arguably the "flavor" comment. Even
if we grant appellants that this comment betrays a racial concern by
one Board member, we still cannot find that this one comment supports
appellants' contention that the earlier rescission was racially
motivated. First, this comment was made months earlier, during a
hearing where the Board voted to support the Hillview Estates project.
Second, appellants can point to no other evidence which supports a
finding of discriminatory intent on the part of the Board.
-10- Appellants suggest that they have sufficient corroborating
evidence of discriminatory intent, but we disagree. Most of the
arguments raised by the appellants relate to the procedural
abnormalities surrounding the Board's rescission.3 While procedural
abnormalities can provide a basis for finding discriminatory intent,
see Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.
252, 267 (1977) ("Departures from the normal procedural sequence also
might afford evidence that improper purposes are playing a role."),
such abnormalities are only relevant within a larger scope. Id. Here,
appellants can point only to the "flavor" comment, made months earlier,
to create that larger context. Additionally, appellants would have us
ignore a whole host of events which occurred between the original
approval and the rescission. Most importantly, the Board learned a
significant amount about LIP and the Board's responsibilities under it.
This is an undisputed fact.
Appellants attempt to deal with the Board's increased
knowledge by arguing that the additional information simply led the
Board to realize that it could entirely eliminate the Hillview Estates
project without penalty, not just limit its impact. This argument
3 Appellants point to the fact that the vote was not previously scheduled and appellants received no notice of the vote. However, appellants also raise several related points which we consider together. These include the facts that an individual Board member threatened to appeal any grant of a comprehensive permit, Board members allegedly assisted in local opposition to the Hillview Estates project, and the Board provided no reason for the rescission at the time.
-11- hinges on appellants' assertion that the Board originally approved the
project in order to take advantage of the local preference provisions
of LIP,4 as this would supposedly limit the number of minority families
moving into Wakefield. However, there is no support in the record for
this assertion. The record of the Board meeting shows quite clearly
that the members were very concerned about the absolute level of
development in the town. They were also afraid of losing control of
the project entirely and allowing appellants to bypass the local
planning process. Finally, the Board members expressed a clear
interest in developing Wakefield so that residents could become
"lifelong" residents, instead of being forced to leave at retirement,
when their income might decrease. None of the comments by Board
members reflects any racial concerns, just legitimate concerns about
the amount and type of development.
The Board also received information regarding DHCD's
expectations. They learned that the Hillview Estates project was
larger and more dense than the typical projects approved under the LIP.
In fact, DHCD was quite clear that it had significant reservations
about the project and only granted its approval because of the Board's
support for the project. Combining that knowledge with the fact that
4 As represented in the record, the local preference provision allows a community to require that up to 70 percent of the low- and moderate- income units be granted preferentially to local residents or their relatives.
-12- DHCD believed the Board and Wakefield to be working steadily toward
providing the target percentage of affordable housing, the evidence
would not support a finding that racial considerations drove the
Board's rescission. Larger concerns about the Hillview Estates
proposal predominated.
Finally, appellants argue that we should look to the Board's
knowledge that its rescission would prevent affordable and minority-
owned housing units from being built in Wakefield. While the Board may
have prevented these few units from being constructed, the Board also
knows that it must continue to make progress toward the ten-percent
goal of affordable housing. Future projects may or may not include the
local preference provision which was included in the Hillview Estates
proposal. Therefore, the Board, if anything, faces a more uncertain
future regarding the movement of minorities into Wakefield. If keeping
minorities out of Wakefield were actually a concern for the Board,
blocking the Hillview Estates project would hardly further that goal.
In this context, it is clear that the "flavor" comment does
not get appellants past summary judgment. See Nat'l Amusements, Inc.
v. Town of Dedham, 43 F.3d 731, 743-44 (1st Cir. 1995) ("While
ambiguous remarks may, under some circumstances, help to illuminate the
summary judgment record, such remarks rarely will suffice to conceive
an issue of material fact when none otherwise exists."). We are not
required to enter into the realm of fantasy and conjecture when
-13- reviewing a grant of summary judgment, see id. at 735, and appellants
cannot show discriminatory intent on such flimsy evidence. Therefore,
the district court properly granted summary judgment on the
discriminatory intent claim.
B.
Another route to establishing a prima facie case of racial
discrimination under the Fair Housing Act is to show that appellee's
actions "actually or predictably [result] in racial discrimination."
United States v. City of Black Jack, 508 F.2d 1179, 1184 (8th Cir.
1975). The important distinction here is that we look only at the
effect of the Board's actions, not its motivation. See id. at 1185.
Appellants argue that the Board's rescission of its support for the
Hillview Estates project has a discriminatory impact. However, we find
that appellants provide no evidence and can only speculate about any
such impact. Therefore, we hold that they fail to establish a prima
facie case of discriminatory impact.
We begin by noting that the Federal Fair Housing Act
certainly imposes no affirmative obligation on municipalities to
approve all proposed affordable or minority housing projects. See
Vill. of Arlington Heights, 429 U.S. at 270-71 (holding that the simple
failure of the village to rezone property, so that a low-income,
racially diverse housing project could be built, did not violate the
Fair Housing Act). At the same time, municipalities cannot frustrate
-14- the underlying policy of providing fair housing within their
communities. See Smith v. Town of Clarkton, 682 F.2d 1055, 1068 (4th
Cir. 1982). Therefore, actions that have a discriminatory effect can
violate the Fair Housing Act.
In trying to show a discriminatory effect, appellants rely
heavily on City of Black Jack, but the case before us fails to present
similar evidence. 508 F.2d at 1179. There, the record contained
extensive information regarding the racial segregation of the immediate
area. Id.; see also Kennedy Park Homes Ass'n v. City of Lackawanna,
436 F.2d 108, 113 (2d Cir. 1970) (relying on evidence of blatant
segregation within the defendant city in affirming the judgment against
the city). The court also found that this racial segregation was the
result of "deliberate racial discrimination in the housing market."
City of Black Jack, 508 F.2d at 1186. We have no such comparable
information here.
Appellant would have us look exclusively to the fact that
Wakefield is a predominately white community. However, they present no
information regarding the surrounding area and certainly no information
about historical patterns of racial housing discrimination in the
Wakefield area. The fact that a community is not racially integrated
does not automatically mean that we will find a violation of the Fair
Housing Act. Arlington Heights had 27 black residents out of a total
population of 64,000 when the village refused to rezone a parcel of
-15- land to accommodate a proposed low-income housing development. Vill.
of Arlington Heights, 429 U.S. at 255. Yet, the Supreme Court found no
violation of the Fair Housing Act. Id.
Appellants also fail to address an even more salient
distinction between their case and City of Black Jack. In City of
Black Jack, plaintiffs presented "ample proof" of minority interest in
the blocked development. 508 F.2d at 1179. Here, there is no
information that any minorities would actually move into the Hillview
Estates project. At best, appellants can point to the requirement that
five of the affordable units be set aside for minority applicants.
There is no assurance that any minority applicants would appear or that
any would actually secure housing in Hillview Estates. In short, there
is absolutely no proof that any minority would actually be denied
housing in Wakefield due to the Board's rescission of its approval for
the Hillview Estates project. Therefore, we find that appellants have
failed to produce sufficient evidence to establish a prima facie case
of discriminatory impact under the Fair Housing Act and that the
district court properly granted summary judgment on this count.
IV.
Appellants also brought a variety of constitutional claims.
First, they allege that the Board's actions deprived them of property
without due process of law. Second, appellants allege that the Board's
actions were arbitrary, capricious and confiscatory, violating their
-16- substantive due process rights. Finally, they allege that the Board's
actions deprived them of equal protection of the laws. All of these
claims were brought under 42 U.S.C. § 1983. We address these claims
below and find that, for each, appellants fail to present sufficient
evidence to survive a motion for summary judgment.
To bring a successful section 1983 action, appellants must
establish two elements: (1) the conduct complained of was carried out
under color of state law and (2) this conduct deprived appellants of
rights, privileges or immunities secured by the Constitution or laws of
the United States. See Chiplin Enters. v. City of Lebanon, 712 F.2d
1524, 1526-27 (1st Cir. 1983). There is no question that the first
requirement is met here, so we proceed to the second element for each
of appellants' claims.
First, we address the due process concerns raised by
appellants. To establish a due process claim, substantive or
procedural, appellants must first establish a property interest. See
Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 569-70 (1972).
They contend that because the Board issued three written indications of
support for the Hillview Estates project, they had a property interest
in the Board's support which triggers due process rights. Appellants
also point to the fact that the Board knew they had spent thousands of
dollars in continuing to develop the Hillview Estates proposal.
-17- However, the discretionary nature of the Board's act in
rescinding its approval negates any entitlement claim asserted by
appellants. See Bd. of Regents, 408 U.S. at 577 ("To have a property
interest in a benefit, a person clearly must have more than an abstract
need or desire for it. He must have more than a unilateral expectation
of it. He must, instead, have a legitimate claim of entitlement to
it."). We have consistently rejected substantive due process claims
arising out of disputes between developers and land planning
authorities while leaving the door "slightly ajar" for "truly
horrendous situations." Néstor Colón Medina & Sucesores, Inc. v.
Custodio, 964 F.2d 32, 45 (1st Cir. 1992).
Simply put, appellants cannot demonstrate a property interest
in the Board's prior approval of the Hillview Estates project. The
record contains nothing but evidence that local approval of LIP
projects is entirely discretionary. Additionally, appellants had not
even obtained the comprehensive permit which they sought. This simple
fact distinguishes their case from that of Acorn Ponds at North Hills
v. Inc. Vill. of North Hills, 623 F. Supp. 688 (E.D.N.Y. 1985), on
which appellants rely. There, a district court distinguished the case
where all permits had issued and construction was largely complete from
the case where building permits had not been granted. Id. at 692.
When a developer has actually constructed a structure with the
appropriate permits, the court found that a property right may attach.
-18- Id. In contrast, here, there is simply no evidence that appellants
would have obtained a comprehensive permit and been allowed to continue
with their development, much less begun any construction. Furthermore,
any support from the Board and any money expended by appellants would
have failed to move the project along had such a permit been denied.
Therefore, appellants fall far short of showing any cognizable property
interest.
On the substantive due process element, it is true that we
have left the door open in truly horrendous situations. See Néstor
Colón Medina, 964 F.2d at 45. However, this is not such a case. As
discussed above, there is no indication that the Board acted with any
discriminatory intent. In fact, the evidence shows only that the Board
was legitimately concerned about the impact of this large development
on Wakefield.
Because appellants fail to show any property interest and
cannot demonstrate that the Board acted improperly in revoking its
prior support, the district court properly granted summary judgment to
the Board on the due process counts.
Finally, we address appellants' equal protection claim.
Here, we look for two elements: (1) whether the appellant was treated
differently than others similarly situated, and (2) whether such a
difference was based on an impermissible consideration, such as race.
-19- See Rubinovitz, 60 F.3d at 909-10 (citing Yerardi's Moody St. Rest. &
Lounge, Inc. v. Bd. of Selectmen, 878 F.2d 12, 21 (1st Cir. 1989)).
Appellants allege that they were treated differently than other LIP
developments based on the Board's desire to exclude minority residents
from Wakefield.
On appeal, appellants argue exclusively that the district
court erred when it found that appellants had not been treated
differently than others similarly situated. In making this
determination, the district court found that Hillview Estates was not
similarly situated in comparison to other LIP developments in Wakefield
due to its larger size. Appellants contend that such a finding by the
district court simply allows the Board to continue denying larger
projects, thereby furthering its allegedly discriminatory purpose.
Simply put, this argument fails to get appellants anywhere. Regardless
of whether the district court erred in holding that appellants were not
similarly situated to other LIP developers, appellants fail to present
any evidence to support their claim that the Board acted with
discriminatory intent, as discussed above. Absent such a showing,
appellants cannot make out either a due process or an equal protection
claim. See Rubinovitz, 60 F.3d at 909-10.
Additionally, we note our extreme reluctance to entertain
equal protection challenges to local planning decisions:
-20- Every appeal by a disappointed developer from an adverse ruling by a local Massachusetts planning board necessarily involves some claim that the board exceeded, abused, or "distorted" its legal authority in some manner, often for some allegedly perverse (from the developer's point of view) reason. It is not enough simply to give these state law claims constitutional labels such as "due process" or "equal protection" in order to raise a substantial federal question under section 1983.
Creative Env'ts, Inc., 680 F.2d at 833; see also Néstor Colón Medina,
964 F.2d at 44-45 (citing Vill. of Belle Terre v. Boraas, 416 U.S. 1,
12 (1974) (Marshall, J., dissenting) ("If disgruntled permit applicants
could create constitutional claims merely by alleging that they were
treated differently from a similarly situated applicant, the
correctness of virtually any state permit denial would become subject
to litigation in federal court. Limiting such claims is essential to
prevent federal courts from turning into 'zoning board[s] of
appeals.'")). Appellants fail to raise a claim that persuades us to
depart from this longstanding policy. This case does not concern a
blanket ordinance or regulation ruling against a certain type of
housing. Rather, it concerns an individualized decision about one
project. Other LIP projects are currently going forward in Wakefield,
and state officials have acknowledged the town's substantial efforts to
increase the amount of affordable housing available. Finally, this
case raises a matter of local concern and is fully reviewable under
state law.
-21- Therefore, we find that the district court properly granted
summary judgment against appellants on their equal protection claim.
For the foregoing reasons, we affirm the district court's
judgment granting summary judgment in favor of defendant-appellee.
-22-