Maroney as Tr. of Premiere Realty Tr. v. Fiorentini

673 F.Supp.3d 30

Michael J. MARONEY, AS TRUSTEE OF PREMIERE REALTY TRUST,and Maroney Construction Company, Inc., Plaintiffs, v. James J. FIORENTINI, Individually and in his Capacityas Mayor of the City of Haverhill, Robert E. Ward,Individually and in his Capacity as Deputy Director of Public Works ofthe City of Haverhill, Water/Wastewater Division,and The City of Haverhill, Defendants.

No. 16-CV-11575-DLC

United States District Court, D. Massachusetts

Signed May 18, 2023

Michael P. Sams, Alexander R. Zwillinger, David R. Kerrigan, Kenney & Sams, P.C., Southborough, MA, for Plaintiffs.

Leonard H. Kesten, Thomas R. Donohue, Jeremy I. Silverfine, Judy A. Levenson, Brody, Hardoon, Perkins & Kesten, LLP, Boston, MA, Michele E. Randazzo, KP Law, P.C., Boston, MA, Mark T. Stopa, Stopa & Associates, LLC, Foxboro, MA, for Defendant James J. Fiorentini.

Michele E. Randazzo, Deborah I. Ecker, KP Law, P.C., Boston, MA, Judy A. Levenson, Brody, Hardoon, Perkins & Kesten, LLP, Boston, MA, for Defendant Robert E. Ward.

Michele E. Randazzo, Deborah I. Ecker, KP Law, P.C., Boston, MA, for Defendant City of Haverhill.

MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

CABELL, United States Magistrate Judge

This case arises from efforts by Michael J. Maroney ("Maroney") to develop a subdivision of homes in the City of Haverhill ("the City"). Having been denied certain permits, Maroney filed this action through his business entities against the City and two City officials for violations of 42 U.S.C. § 1983 ("section 1983") and Massachusetts state law.¹

The defendants, Robert E. Ward ("Ward"), deputy director of the City's Department of Public Works ("the Water Department"), and James E. Fiorentini, the City's mayor, ("the Mayor") (collectively "the defendants"), move for summary judgment on the remaining claims in the operative amended complaint ("operative complaint") (D. 51). (D. 95). These claims are: a violation of substantive due process under section 1983; a violation of the Massachusetts Civil Rights Act, M.G.L. c. 12, § 11I ("MCRA"); interference with contractual or economic relations; and civil conspiracy. (D. 51).

The defendants argue that Ward and other City officials denied permits and refused to sign off on site plans because of Maroney's delay in designing and building a water booster station to serve the subdivision's homes. Relatedly, so they contend, Maroney never submitted a final revised design of the station after October 2013 as required by the City and its outside engineering firm. The defendants further submit that Maroney never provided a compliant design after Ward required a different pumping system in January 2016. (D. 96, 110).

The plaintiff argues in opposition that Ward repeatedly denied permits and imposed unfounded requirements without a reasonable basis with respect to designing and building the water booster station. The plaintiff also contends that the Mayor made threats to Maroney to drop a July 2015 state court lawsuit Maroney filed to secure the necessary permits to develop the subdivision. Ward purportedly carried out those threats by continuing to deny permits, changing the pumping system design in January 2016, and opposing an extension of time to construct the water booster station in the fall of 2016.

In response, the defendants argue that Ward acted the same before and after Maroney filed the state court lawsuit. For the reasons that follow, the summary judgment motion (D. 95) is allowed in part and denied in part. In particular, the motion is allowed as to Ward, and allowed as to the Mayor except for the interference with contractual or economic relations claim.

I. STANDARD OF REVIEW

Entitlement to summary judgment requires the movant to demonstrate "there is no genuine dispute as to any material fact." Dusel v. Factory Mut. Ins. Co., 52 F.4th 495, 503 (1st Cir. 2022) (citation omitted). If the movant is "able to make a showing that there is no genuine issue of material fact, the burden shifts to the non-moving party, who must, with respect to each issue on which [he] would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in [his] favor." Id. (citation omitted); see Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir. 2006) ("[A]s to any essential factual element of its claim on which the non-movant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment.") (citation omitted).

The record, including all reasonable inferences, is viewed in the nonmovant's favor. See Motorists Com. Mut. Ins. Co. v. Hartwell, 53 F.4th 730, 734 (1st Cir. 2022). Uncontroverted statements of fact in the movant's L.R. 56.1 statement comprise part of the summary judgment record. See, e.g., Cochran v. Quest Software, Inc., 328 F.3d 1, 12 (1st Cir. 2003). Viewed under the foregoing standard, the facts are as follows.

II. BACKGROUND

A. Subdivision Approval with Water Booster Station

In 2009, Premiere Realty Trust ("Premiere") purchased property in Haverhill to build a subdivision of homes known as Crystal Springs Cluster ("Crystal Springs"). (D. 104, ¶ 6).² Premiere owned the land and the Maroney Construction Company, Inc. ("Maroney Construction") was the general contractor. In addition to being Premiere's trustee, Maroney is the president of Maroney Construction. (D. 104, ¶¶ 1-3). As designed, the project consisted of 50 residential lots: 16 on a private way known as Back Nine Drive and 34 on a private way known as Front Nine Drive. (D. 97-13, p. 26).³

In March 2009, the Planning Board for the City of Haverhill ("the Planning Board" or "the Board") held a meeting regarding Maroney's application for a special permit to develop Crystal Springs. During the meeting, Maroney acknowledged the City's "concerns about water pressure" and "proposed building a water booster station" to address the concerns. (D. 104, ¶ 8). In fact, Maroney agreed a booster station would be needed to meet water pressure and fire hydrant flow requirements. (D. 104, ¶ 9).

In a May 2009 letter, the Water Department's outside engineering firm, Wright-Pierce, provided an analysis of the effect of the subdivision on the City's water supply. (D. 97-4, pp. 14-15). Without identifying specific lots, Wright-Pierce concluded that higher elevations in the subdivision could not be served without providing supplemental water boosting. (D. 97-4, pp. 15-17). The lots on Front Nine Drive have higher elevations than the lots on Back Nine Drive. (D. 97-2, pp. 13-14).

When the Mayor initially learned about the development in or around 2009 from William Pillsbury ("Pillsbury"), the City's planning director, the Mayor supported the project. In fact, the Mayor stated he was "all for it." (D. 97-12, p. 31).

In January 2010,⁴ the Planning Board approved the subdivision plan with the inclusion of documents from the Water Department "about the need for the water booster station." (D. 104, ¶ 10). The approved definitive subdivision plan required Maroney to build a water booster station. (D. 97-2, p. 86) (D. 97-4, pp. 93-94). Notably, the definitive plan did not set a deadline or a segmented timeline to complete construction of the booster station.⁵ (D. 104-3, p. 27). The plan did, however, allow Maroney to post a security bond for the water booster station or to build the station, according to John A. D'Aoust ("D'Aoust"), the City's water treatment plant manager.⁶ (D. 104-3, p. 98, ln. 6-8, 15-18).

B. Timing to Build Station, Form F, and Tri-Partite Agreements

In a prior opinion, the court determined that Maroney is estopped from arguing that he had until November 2016 to build the water booster station. (D. 77, p. 12). Rather, he agreed to build the station after completing Phase I, which was earlier than November 2016.⁷ (D. 77, p. 12). Accordingly, Maroney agreed to build the station earlier than November 2016.

In June 2009, Maroney executed the Planning Board's "Form F Covenant" for all lots in the subdivision. (D. 97-13, pp. 22-23). The form set a June 12, 2011 deadline for Maroney to complete the installation of "municipal services," which, by definition, included utilities such as the water booster station. (D. 97-13, p. 23) (D. 104-3, p. 98). Importantly, the form imposed a condition which required the installation of municipal services before any lot in the subdivision "may be built upon." (D. 97-13, p. 22).

As stated in the form, the Planning Board would release lots from this condition if the Board executed a performance guarantee "enumerating the specific lots to be so released." (D. 97-13, p. 23). In this regard, the Planning Board, Maroney, and Pentucket Bank (or the Lowell Five Cents Savings Bank) ("the bank") entered into successive Tri-Partite Agreements under which the Planning Board agreed to release certain enumerated lots from "any and all covenants," such as Form F, in return for the bank issuing irrevocable lines of credits designating the Planning Board as the sole beneficiary. (D. 97-13, pp. 26-47).

By way of example, in the first Tri-Partite Agreement dated June 8, 2010, the bank agreed to issue an irrevocable letter of credit to the Planning Board, the Planning Board released 16 enumerated lots on Back Nine Drive from "any and all covenants," and the parties extended the deadline for Maroney to install municipal services to January 28, 2012.⁸ (D. 97-13, p. 27). The last Tri-Partite Agreement extended the deadline to install municipal services to October 1, 2016.⁹ In essence, the letters of credit described in the Tri-Partite Agreements served as performance guarantees or security bonds to complete the installation of municipal services to adequately serve the houses on the released lots. (D. 97-13, pp. 26-27, 31, 34-35, 44-45).

To explain the construction approval process, the release of lots by the Planning Board under the Tri-Partite Agreements operated on a "separate track" from the...