United States Court of Appeals For the First Circuit
No. 21-1463
ST. PAUL'S FOUNDATION; SHRINE OF ST. NICHOLAS THE WONDERWORKER, PATRON OF SAILORS, BREWERS AND REPENTANT THIEVES,
Plaintiffs, Appellants,
v.
ROBERT IVES, in his official capacity as Interim Building Commissioner for the Town of Marblehead; TOWN OF MARBLEHEAD,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Lynch, Kayatta, and Barron, Circuit Judges.
Kevin P. Martin, with whom Michael K. Murray, William E. Evans III, and Goodwin Procter LLP were on brief, for appellants. Felicia H. Ellsworth, Eric L. Hawkins, Simon B. Kress, and Wilmer Cutler Pickering Hale and Dorr LLP, on brief for the Orthodox Church in America and the Union of Orthodox Jewish Congregations of America, amici curiae. Gregor A. Pagnini, with whom Leonard H. Kesten, Deidre Brennan Regan, and Brody, Hardoon, Perkins & Kesten, LLP were on brief, for appellees. March 24, 2022 BARRON, Circuit Judge. This case arises from a suit
under the Religious Land Use and Institutionalized Persons Act
("RLUIPA"). The plaintiffs, St. Paul's Foundation and the Shrine
of St. Nicholas the Wonderworker, Patron of Sailors, Brewers and
Repentant Thieves (collectively, "St. Paul's"), claim that their
religious exercise was substantially burdened in violation of
RLUIPA by the defendants, the Town of Marblehead (the "Town") and
its Buildings Commissioner. The dispute concerns the defendants'
failure to reinstate a building permit that St. Paul's had secured
for the redevelopment of the site in the Town on which the Shrine
of St. Nicholas is located but that had been suspended prior to
the completion of that construction. The District Court granted
summary judgment to the defendants. We affirm.
I.
We set forth some relevant legal background as well as
some basic facts relating to the underlying claim that are not in
dispute between the parties on appeal. See United States v. Union
Bank for Savs. & Inv. (Jordan), 487 F.3d 8, 11 (1st Cir. 2007).
We also review the travel of the case.
A.
Under Massachusetts law, parties seeking to perform
construction work on buildings must apply for and receive two
permits before the finished building can be used or occupied.
First, before construction begins, a local building commissioner
- 3 - must issue a building permit authorizing specific construction.
780 Mass. Code Regs. 105.1; see also id. 202 (defining "building
official" to include a building commissioner); Mass. Gen. Laws ch.
143, § 3 (directing municipalities to appoint building
commissioners "to administer and enforce the state building
code"). The permit must be based on specific plans that display
and explain the proposed work. 780 Mass. Code Regs. 105.3(4),
107.1, 107.2. Under Massachusetts law, no construction work may
be done that is not approved in the building permit unless state
law otherwise authorizes it. See id. 105.1-105.2, 105.4.
The submitted plans must "[i]ndicate the use and
occupancy for which the proposed work is intended." Id. 105.3(3).
Massachusetts has adopted the 2015 version of the International
Building Code (the "IBC 2015") with some amendments. See id.
101.1. The IBC 2015 requires plans to employ use designation
groups. IBC 2015 § 302.1.1 These groups are indicated by an
alphanumeric code, such as A-2 or F-1. Id. Each use designation
carries with it "requirements that are applicable to . . . the
purposes for which the room or space will be occupied." Id.
Once construction is complete, the local building
commissioner must issue a second permit, called a certificate of
occupancy, before the structure can be used or occupied. 780 Mass.
The IBC 2015 is available at https://codes.iccsafe.org/ 1
content/IBC2015.
- 4 - Code Regs. 111.1. The certificate of occupancy sets out, based on
the use-designation code and compliance with other regulations,
such as the state plumbing code, the maximum allowable occupancy
of the space. Id. 111.2(8).
B.
St. Paul's is an Orthodox Christian monastic
organization. It established the Shrine of St. Nicholas to
practice and evangelize the Orthodox Christian faith.
On August 30, 2017, St. Paul's purchased property on
Pleasant Street in Marblehead (the "Property") to serve as its
monastic complex. The Property had a preexisting mixed-use
structure on it, which St. Paul's planned to redevelop.
St. Paul's retained an architectural firm, Siemasko +
Verbridge, to act as the registered design professional for the
project. Architects at that firm, including John Harden, a partner
at Siemasko + Verbridge who was primarily responsible for the
project, drew up the plans that St. Paul's would need to submit in
order to secure a building permit from the Town that would permit
construction to begin.
The plans that Siemasko + Verbridge prepared for St.
Paul's proposed converting the first floor of the existing
structure on the site in question into three separate areas. One
area would serve as a place in which monks could brew beer in
accord with Orthodox Christian tradition. A second area would be
- 5 - converted into a chapel for liturgical services. The last area
was to be converted into a "fellowship hall" that would host Bible
studies, prayer groups, religious education, communal religious
meals, and overflow from the chapel. St. Paul's also intended to
use the fellowship hall to serve the beer that the monks would
brew.
The use designation codes set forth in the plans
indicated that the use for the area designated to be the fellowship
hall was an A-2 use. A-2 uses "include[] assembly uses intended
for food and/or drink consumption including, but not limited to:
Banquet Halls[,] Casinos (gaming areas)[,] Nightclubs[,]
Restaurants, cafeterias and similar dining facilities (including
associated commercial kitchens)[, and] Taverns and bars." IBC
2015 § 303.3.
The plans indicated that the use for the area designated
to serve as the site of the chapel was an A-3 use. The IBC defines
an A-3 use to include "assembly uses intended for worship,
recreation or amusement and other assembly uses not classified
elsewhere in Group A." Id. § 303.4. The IBC lists several
examples of A-3 uses, including community halls, funeral parlors,
lecture halls, museums, pool and billiard parlors, and places of
religious worship. Id.
The plans indicated that the area designated to be the
brewery was an F-2 use. The IBC defines use group F-2 as "[l]ow-
- 6 - hazard factory industrial," meaning "uses that involve the
fabrication or manufacturing of noncombustible materials that
during finishing, packing or processing do not involve a
significant fire hazard." Id. § 306.3.
To secure a building permit for the site, Andrew Bushell,
who was the "protos" of St. Paul's and whom the parties refer to
as "Father Andrew", submitted the plans sometime in June or July
2018 to Richard Baldacci, who was at the time the Marblehead
Building Commissioner. Baldacci approved the plans, which
included the use designations described above, and issued a
building permit for the project on July 3, 2018.
The building permit listed Harden as the builder. Father
Andrew signed the permit as the owner/agent, although the printed
name was Harden's. The permit stated that the "proposed work"
included a "change [in] the use of the first floor from a retail
to an assembly, A-2," and the addition of "two bathrooms and [an]
A-2 hour fire rated ceiling, a bar area with taps and a dishwasher,
commercial kitchen and walk-in cooler and concrete slab."
In the Fall of 2018, Baldacci sent three letters -- one
each in September, October, and November -- that notified Father
Andrew that St. Paul's was "serving beer" on the premises of the
Shrine even though no certificate of occupancy had been issued for
the building. The second of these letters directed that the
plaintiffs cease and desist using the fellowship hall "as a Group
- 7 - A-2 Assembly" until an A-2 certificate of occupancy issued. The
third one notified Father Andrew that Baldacci had "issued a non-
criminal Building Code Violation" and a fine.
St. Paul's appealed the violation to the state Building
Code Appeals Board (the "BCAB"). The BCAB affirmed the violation.
In November 2018, Baldacci received an unsigned letter
that bore the architectural license and stamp of a principal at
Siemasko + Verbridge and that claimed that the Shrine was in
compliance with the state plumbing code. Baldacci requested that
Harden provide "a Construction Control Affidavit, following an
[i]nspection of the facility, or a code review addressing" various
requirements that had to be met prior to full occupancy.
Harden replied to Baldacci's email. Harden stated in
his reply that "there is some confusion regarding the change of
occupancy, the proposed project as drawn, and the request for a
certificate of occupancy." He added that he would review the
requests and give thought to the work required. He noted in
conclusion that "we are working hard with Father Andrew to address
your concerns" and "[w]e believe that everyone is trying to operate
here in good faith."
Harden left Siemasko + Verbridge in December 2018.
Thaddeus Siemasko, a principal at the firm, took over the project.
That month, Siemasko met with Baldacci and other town officials to
discuss topics related to the construction project at the Shrine.
- 8 - According to a summary of the meeting that Siemasko prepared, the
meeting participants agreed that the new use of the fellowship
hall would be an "A" use.
At this meeting, Baldacci restated his position that all
work authorized by the permit had to be completed before any beer
was served on site. Following the meeting, according to an email
Siemasko sent Baldacci the next day, Siemasko sent notes describing
the discussion to Father Andrew. Siemasko reported to Baldacci
that Father Andrew had called Siemasko to express his frustration
that Baldacci had not advocated for a higher occupancy of the first
floor based on a more generous interpretation of the state plumbing
code.
C.
On January 7, 2019, Siemasko + Verbridge informed
Baldacci that it had withdrawn from the project. That left the
project without "a Registered Design Professional to provide
construction control and a licensed professional to supervise the
project."
That being so, Baldacci notified Father Andrew that he
was suspending the building permit that had been issued. In
addition, Baldacci directed that construction cease and desist
"until such time that the building department receives a new
Initial Construction Control Affidavit from a Massachusetts
- 9 - Architect and a Licensed Construction Supervisor agrees to take
responsibility for the construction project."
On February 6, 2019, St. Paul's' attorney sent a letter
to Marblehead Town Counsel and copies of it to Baldacci and other
Town officials. The letter stated that "the proper
characterization of [the Property] for the purposes of the Building
Code is as a house of worship and as a monastery for purposes of
the Plumbing Code." The letter argued that a failure to recognize
that characterization "represents an impermissible judgment by the
Town and its officials about what constitutes religious exercise."
The letter noted that "work is ongoing and all of the rooms within
the first floor of 124 Pleasant Street including the chapel, entry
way, fellowship hall [sic] are routinely used for religious
purposes." The letter also requested "that the Town issue an
occupancy permit for 99 occupants at St. Nicholas."
Baldacci wrote a letter to St. Paul's attorney in
response. The letter stated that the submitted plans on which the
then-suspended building permit had been based had designated the
fellowship hall as an A-2 use under the IBC, rather than as a
monastery, which would have been an R-2 use. The letter stated as
well that Baldacci agreed with the A-2 designation indicated in
those plans.
In addition, the letter stated that a monastery use
designation -- as an R-2 use -- would "limit[] the occupants [of
- 10 - the structure] to members" of the monastery and that a certificate
of occupancy for 99 occupants would require the construction of at
least three toilets. Baldacci also noted that because there were
two existing toilets in the structure he could "issue a building
permit" for an A-3 use permitting up to 60 occupants in the
structure when certain emergency lighting and alarm systems were
"added to the entire building," but that St. Paul's could not use
that permit to serve food or alcohol to the public "until the
establishment of a Group A-2 occupancy, in accordance with" the
originally issued building permit.
On February 13, 2019, Ryan McShera, a principal at Red
Barn Architecture, emailed Baldacci and informed him that he would
"tak[e] over Construction Administration" for St. Paul's. McShera
provided a new construction control affidavit, which listed the
project title as "Monastery Renovation".
Baldacci responded nine days later. He wrote in an email
that the project was still "lacking a Construction Supervisor and
an Architect of record." In the email and an attached letter, he
expressed concern that he was "not certain that the building permit
accurately depicts the work proposed," and that it was not clear
to him whether St. Paul's was changing the scope of the work from
what had been indicated on the plans on which the building permit
was based.
- 11 - Specifically, Baldacci noted that McShera's affidavit
described the project title as "Monastery Renovation." Baldacci
thus requested a code review, including an analysis of the required
number of toilets under the plumbing code, along with a set of
shop drawings depicting the location of alarm systems. He wrote
that "[i]f the scope of work has changed or the occupancy requested
is not identical to that which was previously permitted, then the
building department will close [the original permit] and a new
application should follow."
McShera submitted the code review on May 1, 2019,
although Baldacci apparently missed his email until May 6. McShera
wrote that St. Paul's intended "to carry out the proposed work in
accordance with the previously submitted plans," and that its
"justification for this is based upon our code analysis." But,
the code review indicated that Siemasko + Verbridge's use
designations were incorrect and the building was a monastery that
should be classified as R-2. McShera indicated that "the two new
toilet rooms proposed" would be sufficient to meet plumbing code
requirements. McShera wrote that "[w]e are working to hire a sub-
contractor that will provide the requested shop drawings and
information."
Baldacci and McShera (and possibly Father Andrew) had a
telephone call on May 15. Baldacci memorialized that call in an
- 12 - email to McShera and Father Andrew the following day, and McShera
sent a response on May 31.
Baldacci's email recounted that Baldacci and McShera
agreed on the required number of fixtures, that a change to an R-2
use designation would require the installation of automatic fire
sprinklers, and that an A-3 use designation for the first floor
would accommodate "the requested maximum 200 occupants." Baldacci
also wrote that the parties agreed on the phone call "that, to
continue serving beer to the public, a use group A-2 designation
for the Fellowship Hall area will allow a maximum occupancy of up
to 100 without the requirement of providing a Fire Sprinkler
throughout the structure."
In addition, Baldacci conveyed in his email to McShera
a request from the Town Director of Public Health for new plans.
Finally, Baldacci stated that he would "release the building
permit" "[w]hen we are in agreement with the code review and I am
in receipt of a stamped plan from the health department, showing
acceptance of the Fellowship Hall fixtures and sinks, per 2013
Food Code," and when he received "an application made by a plumbing
and gas fitter and an electrician."
McShera wrote in response to Baldacci's email that
Baldacci had, during the call, stated that the Marblehead Town
Bylaws required an A-2 designation. McShera requested copies of
those bylaws and the dates they were adopted. He also wrote that
- 13 - the fellowship hall was not related to the type of uses provided
as examples of A-2 uses in the IBC, and that, at any rate, "we do
not see how this issue has an affect [sic] on lifting the
suspension of our building permit since the underlying and
previously permitted construction work has not changed."
With respect to the request to McShera from the Town's
Director of Public Health that Baldacci had conveyed in his email,
McShera responded that "the plan previously submitted has already
been reviewed and approved," and "[w]e are not proposing any
changes from what was originally approved for permit in regards to
the fixtures being installed (all will meet health code
requirements . . . )" (emphasis added). With respect to Baldacci's
statement in his email that he would not reinstate the permit,
McShera responded: "This is not what we discussed. You said you
would un-suspend the permit last time we spoke. Please lift the
suspension of the permit so that our carpenter may get underway
constructing the new walls in the space. We are working to sign
on licensed plumbers and electricians and will have them apply for
permits once they are under contract."
Following this email exchange, on June 11, Baldacci
wrote a letter to McShera in which he officially declined to
reinstate the building permit that had been suspended. His letter
stated that the appropriate use designation of the fellowship hall
was A-2 and that that designation was required by the IBC, which
- 14 - the state building code had adopted, rather than a Marblehead
Bylaw. Baldacci claimed that the IBC "does not provide any
provision for allowing a place of religious worship, a group A-3
occupancy, to have a permanent accessory provision for serving
beer to the public." Baldacci, citing IBC § 105.3, wrote that
"[u]ntil the use of the structure is agreed upon, I cannot lift
the suspension of the building permit." In response to McShera's
statement in the prior email that plans had already been approved
by the health department, Baldacci wrote that the health department
required "an updated set of plans describing the Fellowship Hall
bar area."
Baldacci concluded this letter by laying out two
conditions that St. Paul's would have to meet before he reinstated
the building permit that had been suspended. First, Baldacci
stated, St. Paul's would have to submit "an updated set of plans
describing the Fellowship bar area along with the health department
stamped and approved fixtures." Second, he stated, St. Paul's
would have to agree "to declare the use of the Fellowship Hall an
A-2 use group occupancy with a maximum occupancy of 100," or obtain
"a Variance from the Building Code of Appeals Board allowing an
accessory use to the group A-3, Place of Worship." As Baldacci
had done in each prior letter, he added a sentence describing St.
Paul's' right to appeal his decision to the BCAB.
- 15 - D.
St. Paul's filed the complaint in this case in the
District of Massachusetts on July 9, 2019, along with a motion for
preliminary injunctive relief. St. Paul's also appealed
Baldacci's refusal to reinstate the permit to the BCAB on July 25,
2019.
The BCAB held a hearing on August 20, 2019. At the
hearing, according to the BCAB decision, St. Paul's "represented
. . . that they want to complete the project fully in accordance
with the original plans that were approved as part of issuing the
building permit on July 3[, 2018]" (emphasis in original). St.
Paul's further represented "that it fully understands the risks
associated with completing the project in accordance with the
original plans, especially if, later, there are changes in Use
Group and/or change of occupancy which could require further
physical changes to the building (based on, among other things,
changes in occupant loads)." The BCAB noted that, "[a]s a result,
[St. Paul's] was clear; it will 'abide by the letter of the
existing [building] permit'" (alteration in original).
On September 24, 2019 the BCAB issued a conditional
order, to which the Town did not object. The condition regarding
health department approval mirrored the one Baldacci had set out
in his June 11 letter, except that, rather than requiring anything
specific regarding the use dispute, the BCAB's second condition
- 16 - stated only that "all submissions from Appellant to the Building
Department made after January 15, 2019 [would] be disregarded."
The Building Permit was deemed to be reinstated following the
issuance of the order.
Following the BCAB decision, St. Paul's withdrew its
motion for preliminary injunctive relief in this case. St. Paul's
then moved for partial summary judgment once discovery had been
completed. The defendants filed a cross-motion for summary
judgment. The District Court denied St. Paul's' motion and granted
the defendants' cross-motion. This appeal from the denial of St.
Paul's motion for summary judgment and the grant of the cross-
motion followed.
II.
RLUIPA prohibits local governments from "impos[ing] or
implement[ing] a land use regulation in a manner that imposes a
substantial burden on the religious exercise of a person, including
a religious assembly or institution," outside of narrow
circumstances. 42 U.S.C. § 2000cc(a)(1). A "land use regulation"
is defined as "a zoning or landmarking law, or the application of
such a law, that limits or restricts a claimant's use or
development of land (including a structure affixed to land), if
the claimant has" certain property interests "in the regulated
land." Id. § 2000cc-5(5).
- 17 - The District Court granted summary judgment to the
defendants on two independent grounds: (1) the defendants, in
refusing to reinstate the building permit, had not "impos[ed] or
implement[ed] a land use regulation" (emphasis added); and (2) if
the defendants had imposed "a land use regulation" by refusing to
reinstate that permit, no juror could reasonably find on this
record that the defendants' actions in doing so substantially
burdened the plaintiffs' religious exercise. St. Paul's Found. v.
Baldacci, 540 F. Supp. 3d 147, 154, 157 (D. Mass. 2021). Because
we agree with the District Court's latter holding (if not all of
the reasoning underlying it), we do not address whether the Town
implemented "a land use regulation." See San Jose Christian Coll.
v. City of Morgan Hill, 360 F.3d 1024, 1036 (9th Cir. 2004) (taking
this approach); Lin v. TipRanks, Ltd., 19 F.4th 28, 36 (1st Cir.
2021) ("We . . . may affirm the District Court's ruling on any
ground manifest in the record.").
We have previously identified several "factors that
courts have considered relevant when determining whether a
particular land use restriction imposes a substantial burden on a
particular religious organization." Roman Cath. Bishop of
Springfield v. City of Springfield, 724 F.3d 78, 98 (1st Cir.
2013). These include "whether the regulation at issue appears to
target a religion, religious practice, or members of a religious
- 18 - organization because of hostility to that religion itself";
"whether local regulators have subjected the religious
organization to a process that may appear neutral on its face but
in practice is designed to reach a predetermined outcome contrary
to the group's requests"; and "whether the land use restriction
was 'imposed on the religious institution arbitrarily,
capriciously, or unlawfully.'" Id. at 96-97 (quoting Westchester
Day Sch. v. Village of Mamaroneck, 504 F.3d 338, 350 (2d Cir.
2007)).
"[L]ocal regulators" may be found to have acted
arbitrarily and capriciously when they "disregard objective
criteria and instead act adversely to a religious organization
based on the objections of a small but influential group" or "base
their decisions on misunderstandings of legal principles." Id. at
97. Conduct also may be deemed to be arbitrary and capricious if
it is unlawful under state or local law, see Westchester Day Sch.,
504 F.3d at 351-52, or where it "evince[s] animus or otherwise
suggests that the plaintiffs have been, are being, or will be (to
use a technical term of art) jerked around," Thai Meditation Ass'n
of Ala., Inc. v. City of Mobile, 980 F.3d 821, 832 (11th Cir.
2020).
St Paul's expressly states in its briefing to us that,
in seeking to overturn the District Court's grant of summary
judgment to the defendants with respect to the "substantial burden"
- 19 - issue, it is challenging the District Court's ruling only with
respect to the determination that no reasonable juror could find
that the defendants' refusal to reinstate the permit, and thus
their "prohibit[ion] of all construction at the Shrine" was
"arbitrary and capricious."2 St. Paul's presses this contention
2 St. Paul's does not argue that its religious exercise would have been substantially burdened merely by the Town's designation of the "fellowship hall" as an A-2 rather than an A-3 use. It argues only that the Town's refusal to permit any construction while this issue regarding the dispute over the A-2 versus the A-3 use designation was resolved was arbitrary and capricious and for that reason substantially burdened its religious exercise. Thus, although the record shows that St. Paul's' preferred outcome was not an A-2 use designation, we do not understand St. Paul's to be arguing on appeal that it was subject to a process that may have appeared neutral on its face but in practice was designed to reach a "predetermined outcome contrary to the group's requests," Roman Cath. Bishop of Springfield, 724 F.3d at 96. We therefore treat any such argument as waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). St. Paul's also makes no argument that "the land use restriction was imposed on [it] . . . unlawfully," Roman Cath. Bishop of Springfield, 724 F.3d at 96- 97, that it was targeted by a land use regulation because of hostility to Orthodox Christianity, or that some factor not yet defined in our case law demonstrates a substantial burden. Moreover, we emphasize that St. Paul's argues to us only that the defendants acted arbitrarily and capriciously by refusing to reinstate the permit in full, without at any point suggesting that the defendants so acted because they refused to reinstate the building permit in part, such that construction in at least the areas designated to be for the chapel and the brewery (but not the fellowship hall) could go forward under that partially reinstated permit. Thus, any such argument is also waived. Zannino, 895 F.2d at 17. We do note, though, that there is nothing in the record to suggest that a request for a partial reinstatement was made by St. Paul's during the extensive back and forth over reinstatement with Baldacci. We note, too, that St. Paul's has not identified any authority under state law that would allow such a partial reinstatement.
- 20 - by pointing to the evidence that shows that Baldacci -- and thus
the Town -- refused to reinstate the original building permit
between February 13, 2019, when McShera submitted a new
construction control affidavit, and September 24, 2019, when the
permit was reinstated following the BCAB's conditional order.
Summary judgment is appropriate if "no 'reasonable fact-
finder, examining the evidence and drawing all reasonable
inferences helpful to the [plaintiffs],' could resolve the dispute
in the plaintiffs' favor." Hill v. Walsh, 884 F.3d 16, 21 (1st
Cir. 2018) (alteration in original) (citation omitted) (quoting
Cortés-Irizarry v. Corporación Insular de Seguros, 111 F.3d 184,
187 (1st Cir. 1997)). The question, then, is whether a reasonable
juror could find on this record that Baldacci's reason for refusing
to reinstate the building permit during that period was not a
permissible exercise of discretion and was instead an arbitrary
and capricious wielding of it. Reviewing de novo, see Laureano-
Quiñones v. Nadal-Carrión, 982 F.3d 846, 848 (1st Cir. 2020), for
the reasons that we will next explain, we conclude that no
reasonable juror could so find.
There is no dispute that the plans that Baldacci had
approved when he had originally issued the building permit provided
for two "A" uses and one "F" use and for fixtures and
infrastructure appropriate to those use groups. Nor is there any
- 21 - dispute that, a week prior to McShera's submission of the new
construction control affidavit, an attorney for St. Paul's had
contacted Baldacci and said that the proper characterization of
the use was as a "monastery," which is an R-2 use and so not a use
that the plans had designated. In addition, there is no dispute
that McShera's Construction Control Affidavit, which was submitted
on February 13, called the project a "Monastery Renovation."
At least up through the May 15 phone call between
Baldacci and McShera, moreover, the record shows -- indisputably,
in our view -- that Baldacci declined to reinstate the permit
because of St. Paul's' seeming description of the project in
seeking the permit's reinstatement as involving an R-2 use when
the plans that had been submitted initially to secure the permit
for that project involved no such use. Indeed, St. Paul's
identifies no evidence that indicates that Baldacci refused to
reinstate the permit during this period for some reason other than
the concern that he had about this deviation from the submitted
plans in the request for the permit's reinstatement.
In that regard, we note that the record shows that
Baldacci cited this discrepancy between the originally permitted
plans and the proposed "monastery" use in his February 11 letter,
repeated this same concern in his first email to McShera on
February 22 by stating that he was "not certain that the building
permit accurately depicts the work proposed," and stated again in
- 22 - the letter attached to that email that "[i]f the scope of work has
changed or the occupancy requested is not identical to that which
was previously permitted, then the building department will close
[the original permit] and a new application should follow." In
fact, the undisputed record further shows that Baldacci explained
in the May 15 phone call (and St. Paul's agreed) that changing the
intended use of the structure to a "monastery" use would require
construction -- namely the installation of a sprinkler system
"throughout" "the entire structure" -- that was not provided for
in the approved plans.
St. Paul's does assert that in the letter that McShera
sent to Baldacci that contained the code review, McShera wrote
that "it is [St. Paul's] intent to carry out the proposed work in
accordance with the previously submitted plans." But, the record
shows that, even as McShera was so representing, he was also
informing Baldacci that he understood the project for which he was
seeking the reinstated permit to entail an R-2 use, which the plans
submitted to secure the permit in question did not show would be
involved and, as Baldacci explained, could not accommodate because
those plans did not provide for the necessary fire sprinkler
system.
Thus, the record indisputably shows that, at least up
until the May 15 phone call, Baldacci reasonably understood St.
Paul's to be seeking reinstatement of the permit while proposing
- 23 - to use the completed structure in a way that would require
construction -- the aforementioned installation of sprinkler
systems -- that Baldacci had never approved in initially granting
the permit. In consequence, we do not see how Baldacci's refusal
to reinstate the permit up until that time could be deemed
arbitrary and capricious by a reasonable factfinder, as it hardly
is unreasonable for a building commissioner to ensure that the
party seeking to reinstate a permit is not engaged in a bait-and-
switch. Nor does St. Paul's identify any authority to suggest
otherwise, as none of the precedents to which it points in support
of its position involves a refusal to reinstate a suspended permit
in which the request for reinstatement was made by a party
proposing construction for a project that would involve a use
nowhere reflected in the plans submitted to initially secure the
permit. See Roman Cath. Bishop of Springfield, 724 F.3d at 84–
87; Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City
of New Berlin, 396 F.3d 895, 899 (7th Cir. 2005); Westchester Day
Sch., 386 F.3d at 185–86; Mintz v. Roman Cath. Bishop of
Springfield, 424 F. Supp. 2d 309, 313, 319 (D. Mass. 2006); Layman
Lessons Church v. Metro. Gov't of Nashville/Davidson Cty., No. 18-
cv-0107, 2019 WL 1746512, at *1, *3 (M.D. Tenn. Apr. 18, 2019).
The record does supportably show that during that May 15
phone call McShera and Baldacci apparently agreed that St. Paul's
would not pursue an R-2 use designation for any portion of the
- 24 - project. Thus, a reasonable factfinder could conclude that, at
least from that point on, there was no longer any basis for
Baldacci to be concerned that St. Paul's was pursuing a monastery
use in connection with the project. For that reason, St. Paul's
contends, a juror reasonably could find that it was arbitrary and
capricious for Baldacci to continue to decline to reinstate the
permit at least as of the end of the phone call on May 15.
But, St. Paul's does not dispute that, even after that
May 15 phone call, the record conclusively establishes that St.
Paul's did not "agree[] to declare the use of the Fellowship Hall
an A-2 use," which was the use designation in the original plans.
Nor does St. Paul's dispute that the reason that Baldacci gave for
declining to reinstate the suspended building permit from the
May 15 phone call was that the plaintiffs refused to clearly state
that they would follow the A-2 use designation and were suggesting
instead that the proper designation for the use was A-3.
St. Paul's nonetheless argues that a juror reasonably
could find that Baldacci's refusal to reinstate the permit was
arbitrary and capricious because the A-2 and A-3 use designations
do not require a different type of construction as an R-2 use
would. As St. Paul's sees it, because that is so, a juror
reasonably could find that Baldacci could have issued the permit
while the A-2/A-3 dispute was pending, thereby permitting the
construction to continue and leaving the dispute over the use
- 25 - designation to be resolved after construction had been completed.
In St. Paul's' view, therefore, the record reasonably supports the
conclusion that Baldacci's refusal to reinstate the permit without
resolving the A-2/A-3 dispute first was "a delaying game," Roman
Cath. Bishop of Springfield, 724 F.3d at 97, intended to force St.
Paul's to agree to an A-3 use before any construction could resume
and thus was arbitrary and capricious.
But, St. Paul's was not seeking a new building permit
based on an A-3 use. Indeed, St. Paul's was never outright denied
a building permit. It was seeking the reinstatement of a building
permit that already had been issued based on plans designating the
area in question as an A-2 use only and that had then been suspended
for reasons that St. Paul's does not dispute were permissible.
Thus, the decision that Baldacci had to make -- even after the
May 15 phone call -- was whether to reinstate a suspended building
permit that originally had been based on plans that showed one use
designation when the party seeking that permit's reinstatement was
not willing to confirm that same use designation applied to the
project for which it was seeking the reinstated permit.
So, even after the May 15 phone call, we do not see what
basis there would be for a juror to conclude that it was arbitrary
and capricious of Baldacci not to reinstate the permit. After
all, St. Paul's does not dispute that if it submitted new plans
for a new permit, it would be required to designate a use code for
- 26 - the area in question according to its planned use of that area.
Thus, if, as St. Paul's was seeming to represent to Baldacci, it
was planning an A-3 use, the plans that it would have needed to
submit to secure a new building permit presumably would have to
have contained that use designation and not the A-2 use designation
reflected in the plans that it submitted in originally securing
the permit. Yet, at no point did St. Paul's state clearly --
despite Baldacci's repeated requests that it do so -- that it
understood that the permit that it was seeking to have reinstated
was for only an A-2 and not an A-3 use and so would allow only
that use if the requested reinstatement of it were granted.
To be sure, St. Paul's claims in its briefs that it
"repeatedly told [the Town] that [St. Paul's] would scrupulously
adhere to the building permit's limits." But, that carefully
worded assertion fails to confront the fact that the record
indisputably shows that throughout this period St. Paul's was
unwilling to confirm that the use designation in the plans
underlying the original permit still applied, just as that
assertion fails to confront the fact that the record indisputably
shows that it was St. Paul's unwillingness on that score that led
Baldacci to refuse to reinstate the permit.
It is true that the BCAB did ultimately order the permit
to be reinstated. But, it did so conditionally, and only after
St. Paul's did precisely what the record indisputably shows that
- 27 - it had not done over the long back and forth over reinstatement
with Baldacci: made "clear" that "it will 'abide by the letter of
the existing [building] permit'" (alteration in original). Thus,
we do not see how a reasonable juror could find that St. Paul's
was being "jerked around," Thai Meditation Ass'n, 980 F.3d at 832.
If anything, then, the evidence shows that St. Paul's was more
worthy of having that description attached to its conduct, given
that it was willing to state before the BCAB what the record shows
it had not been willing to state throughout the negotiations with
Baldacci.
Nor does St. Paul's identify any authority in
Massachusetts law -- and we are not aware of any -- that indicates
that it is unreasonable under Massachusetts law for a building
commissioner to require that a party seeking the reinstatement of
a suspended building permit to confirm the use designations in the
plans that it had submitted to secure that permit initially, unless
the previously unapproved use would require a new type of
previously unapproved construction. Indeed, the relevant
provisions of state and local law would appear to support the
conclusion that it is perfectly reasonable for a building
commissioner to require such confirmation, given that permits may
only be issued based on the plans submitted to secure them and
that the plans must include use designations. See 780 Code Mass.
Regs. 105.3 ("To obtain a permit, the owner or authorized agent
- 28 - shall file a permit application . . . . Such applications shall:
. . . Indicate the use and occupancy for which the proposed work
is intended."); Marblehead, Mass., Bylaws § 30-9(A) ("Every person
intending to . . . make additions or alterations in any building
. . . shall before commencing the same . . . file an application
for a permit with the Building Commissioner, on forms furnished by
him which shall state the . . . purpose for which the building is
to be used."); id. § 200-2(E) ("If subsequent to the issuance of
a special permit, variance, or building permit, changes in approved
. . . use are desired, the applicant shall inform the Building
Commissioner in writing of these changes and his written approval
must be obtained in advance of any work commencing."). So, this
is not a case in which there is a record from which a juror could
find that the defendants in declining to reinstate the permit prior
to the BCAB ruling were acting out of step with their legal
obligations, see Westchester Day Sch., 504 F.3d at 351-52.
Consistent with this conclusion, moreover, Baldacci was
hardly obscure about his concerns or about the ways that St. Paul's
could seek (if not ultimately obtain) a permit based on the use
designation that it thought appropriate if it no longer thought
the ones contained in the plans used to secure the permit in
question were correct. To that point, the record establishes that
Baldacci informed St. Paul's that it could seek a new permit,
though he later implied that he would not approve an application
- 29 - for it if the plans St. Paul's submitted were the same save for
designating the use for the area of the project in question as an
A-3 use precisely because he disagreed that an A-3 use designation
could apply to the proposed use of that area. In addition, he
made clear to St. Paul's that it could appeal any decision that he
made with respect to his decision either not to reinstate the
permit or to deny a new one to the BCAB. Thus, we do not see what,
other than speculation, would allow a reasonable juror to find on
this record that Baldacci's reason for declining to reinstate the
permit was a desire to "gain leverage" through a "delaying game"
rather than the reason that he repeatedly gave -- that St. Paul's
was not willing to make clear that the use designations in the
plans that had been submitted to secure the permit at issue were
the ones that it was relying on in seeking to have that permit
reinstated following its suspension. See Brader v. Biogen Inc.,
983 F.3d 39, 53 (1st Cir. 2020) (noting that, to defeat a motion
for summary judgment, a "nonmovant cannot rely on conclusory
allegations, improbable inferences, and unsupported speculation"
(internal quotation omitted)).
St. Paul's does contend that the various precedents
cited above demonstrate that a juror reasonably could find on this
record that the defendants' conduct was arbitrary and capricious
at least after the May 15 call. But, we do not see how any of
them do so, because, as we have already explained, none of them
- 30 - involves a request to reinstate a permit that had been previously
issued and suspended for a valid reason, let alone a request to do
so in a circumstance in which Massachusetts law applied. See Roman
Cath. Bishop of Springfield, 724 F.3d at 84–87; Sts. Constantine
& Helen Greek Orthodox Church, 396 F.3d at 899; Westchester Day
Sc., 386 F.3d at 185–86; Mintz, 424 F. Supp.2d at 313, 319; Layman
Lessons Church, 2019 WL 1746512, at *1, *3. Accordingly, here,
too, St. Paul's fails to advance a basis for reversing the grant
of summary judgment.
III.
Affirmed.
- 31 -