Back Beach Neighbors Committee v. Town of Rockport

United States District Court

District of Massachusetts

)

Back Beach Neighbors Committee, )

)

Plaintiff, )

)

v. ) Civil Action No.

) 20-11274-NMG

Town of Rockport, )

)

Defendant. )

)

MEMORANDUM & ORDER

GORTON, J.

This case arises out of a dispute between the Back Beach

Neighbors Committee (“Committee”) and the Town of Rockport,

Massachusetts (“Town”) over the purported failure of the Town to

enforce regulations and municipal bylaws against individuals

engaging in commercial and recreational scuba diving.1 Pending

before the Court is the motion of defendant to dismiss

plaintiff’s complaint.

1 In using the term “commercial” scuba diving, the Court refers

to professional divers who provide equipment and instruction to

paying customers rather than companies or individuals engaged in

commercial fishing operations.

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I. Background

Rockport is one of two municipalities on Cape Ann on the

North Shore of Massachusetts. The Committee is an

unincorporated organization of Rockport residents who live in

the vicinity of Back Beach, a public beach in the harbor of

Rockport. Back Beach has a small bathroom facility and is the

only beach in the Town to offer public parking which makes it

especially attractive to tourists.

For several years, members of the Committee have complained

to Town officials about commercial/recreational scuba diving

being conducted in the waters off of Back Beach. The Committee

alleges that divers undress in the street, trespass and litter

on the property of Committee members, block the street and

driveways with their vehicles and create excessive noise through

the clanging of air tanks. On weekends during the summer

months, night divers engage in such behavior well after sunset.

According to the Committee, Town officials consider diving

to be an acceptable tourist activity and fail to enforce several

municipal rules and regulations against divers, including

undressing in public, misuse of day and nighttime beach access

and illegal parking. The Committee also asserts that the Town

has only intermittently enforced a Town bylaw that prohibits

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commercial activities on public beaches without a permit and

that Committee members have suffered an array of harms

therefrom.

Plaintiff filed suit in this Court in July, 2020, and

before defendant responded it filed an amended complaint as of

right in September, 2020.

In the amended complaint, the Committee asserts nine counts

against the Town, including: violation of the Equal Protection

Clause of the Fourteenth Amendment to the United States

Constitution (Count I); private nuisance (Count II); violation

of Article IV of the Commonwealth of Massachusetts Declaration

of Rights (Count III); declaratory judgment (Count IV); ten

taxpayer relief pursuant to M.G.L. c. 40, § 53 (Count V);

violation of M.G.L. c. 136 (Count VI); public nuisance (Count

VII); failure to act in violation of 42 U.S.C. § 1983 (Count

VIII); and retaliation in violation of the First Amendment to

the United States Constitution (Count IX).

The Town filed a motion to dismiss the amended complaint

pursuant to Fed. R. Civ. P. 12(b)(6) in September, 2020, which

plaintiff timely opposed.

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II. Motion to Dismiss

A. Legal Standard

To survive a motion to dismiss, a claim must contain

sufficient factual matter, accepted as true, to “state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). In considering the merits of

a motion to dismiss, the Court may only look to the facts

alleged in the pleadings, documents attached as exhibits or

incorporated by reference and matters of which judicial notice

can be taken. Nollet v. Justices of Trial Court of Mass., 83 F.

Supp. 2d 204, 208 (D. Mass. 2000), aff’d, 228 F.3d 1127 (1st

Cir. 2000).

Furthermore, the Court must accept all factual allegations

in the claim as true and draw all reasonable inferences in the

claimant’s favor. Langadinos v. Am. Airlines, Inc., 199 F.3d 68,

69 (1st Cir. 2000). If the facts in the claim are sufficient to

state a cause of action, a motion to dismiss must be denied. See

Nollet, 83 F. Supp. 2d at 208.

Although a court must accept as true all the factual

allegations in a claim, that doctrine is not applicable to legal

conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Threadbare recitals of legal elements which are supported by

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mere conclusory statements do not suffice to state a cause of

action. Id.

B. Count I – Equal Protection Violation

The Town first moves to dismiss Count I of the amended

complaint, which asserts a “class of one” equal protection claim

against the Town.

An equal protection claim may be brought on a “class of

one” theory by a plaintiff demonstrating that he or she

has been intentionally treated differently from others

similarly situated and that there is no rational basis for

the difference in treatment.

Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Such

a theory requires “an extremely high degree of similarity”

between the plaintiff and those who are purportedly in a similar

situation. Freeman v. Town of Hudson, 714 F.3d 29, 38 (1st Cir.

2013) (internal citation and quotation omitted). The First

Circuit Court of Appeals has cautioned that “class of one” suits

“should not transform every ordinary misstep by a local official

into a violation of the federal Constitution.” Middleborough

Veterans’ Outreach Ctr., Inc. v. Provencher, 502 Fed. Appx. 8,

11 (1st Cir. 2013).

As an initial matter, the Court doubts that the Committee

qualifies as a “class of one” because it is an association of

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several different individuals and “[b]y definition, a class of

one is not a class of many.” Cordi-Allen v. Conlon, 494 F.3d

245, 254 (1st Cir. 2007).

Even assuming that the Committee can be considered a “class

of one,” the amended complaint fails to state a claim for equal

protection. Plaintiff’s claim is based on allegations that Back

Beach has been treated differently from other public beaches in

Rockport and that scuba diving has been treated differently from

other commercial activity at Back Beach. Not only does the

Committee concede that other Rockport beaches are not relevant

comparators because Back Beach is “the only beach . . . which is

signed as public parking,” it also fails to identify any

individuals or groups to which it is similarly situated, such as

other residents or neighborhood associations in Rockport.

Consequently, the Committee has not met its burden of

“showing that [its] comparators are similarly situated in all

respects relevant to the challenged government action.”

Gianfrancesco v. Town of Wrentham, 712 F.3d 634, 640 (1st Cir.

2013). For that reason, defendant’s motion with respect to

Count I will be allowed.

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C. Counts II & VII – Public & Private Nuisance

Defendant next contends that plaintiff cannot maintain

claims for either public or private nuisance and, therefore,

Counts II and VII should be dismissed.

The amended complaint fails to state a claim for public

nuisance because it contains no factual assertions to support a

public nuisance claim against the Town. Instead, the Committee

alleges that the scuba divers have created a public nuisance by

“failing to adhere to OSHA safety rules and . . . illegally

parking” in a manner that blocks emergency access to the area.

Even if facts were effectively asserted against the Town, the

Committee cannot recover against it for a public nuisance

because “in no case . . . has recovery in public nuisance been

allowed against any public entity.” Town of Hull v. Mass. Port

Auth., 441 Mass. 508, 517-18 (2004) (quoting Connerty v.

Metropolitan Dist. Com., 398 Mass. 140, 150 (1986)).

As to private nuisance, that claim is subject to the

Massachusetts Tort Claims Act (“MTCA”), M.G.L. c. 258, § 1 et

seq., which is the “exclusive remedy for bringing tort claims

against the Commonwealth and its municipalities.” Magliacane v.

Gardner, 483 Mass. 842, 850 (2020); see also Morrissey v. New

Eng. Deaconess Ass’n, 458 Mass. 580, 592 (2010) (concluding that

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private nuisance claims against a municipality are within the

scope of the MTCA).

The MTCA abrogates the Commonwealth’s immunity in many tort

actions but preserves such immunity for certain claims

enumerated in M.G.L. c. 258, § 10. See Morrissey, 458 Mass. at

592. Relevant exceptions to the waiver of immunity include

claims for “failure or refusal to . . . deny, suspend or revoke,

any permit,” § 10(e), “failure to provide adequate police

protection,” § 10(h), and “failure to act to prevent or diminish

the . . . tortious conduct of a third person,” § 10(j).

Here, the private nuisance claim is premised on the Town’s

purported

failure to use its rights as the permitting authority, the

landowner, the enforcing agency, or the legislator, to

mitigate the harms posed by the divers.

Despite the Committee’s attempts to recast its allegations in

its opposition to the instant motion, the amended complaint

plainly alleges that the Town is liable for private nuisance for

failing 1) to deny or revoke the permits issued to the divers,

2) to enforce rules and laws against divers and 3) to protect

members of the Committee from the harmful acts of the divers.

Those purported failures are clearly subject to the exceptions

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listed in Chapter 258, § 10(e), (h) and (j) and thus the Town is

immune to such private nuisance claims.

Accordingly, Counts II and VII of the amended complaint

will be dismissed.

D. Count III – Conferral of Benefits

Article VI of the Massachusetts Declaration of Rights

(“Article VI”) “prohibits the improper use of State power for

private interests.” Commonwealth v. Ellis, 429 Mass. 362, 371

(1999). It does not, however, prohibit the conferral of

benefits to private individuals if the public is served thereby.

See Leigh v. Board of Registration in Nursing, 399 Mass. 558,

564 (1987).

The Committee alleges that “[t]he Town has created a

special class of people,” namely scuba divers, who are exempt

from local rules and regulations. The Town rejoins that there

is no association of persons who have received an advantage

distinct from the general public but the complaint clearly

alleges that the Town has provided scuba divers with permits

“without conditions, for no fee in contrast to other special

permitted activity.”

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Accordingly, plaintiff has pled sufficient facts to state a

claim for the conferral of benefits and thus defendant’s motion

to dismiss that claim will be denied.

E. Count V – Ten Taxpayer Claim

The Town asserts that Count V of the amended complaint

should be dismissed because the Committee fails to state a claim

under M.G.L. c. 40, § 53.

The so-called “Ten Taxpayer Statute” provides that ten

taxpayers of a municipality may bring suit against local

officials when such municipality is “about to raise or expend

money or incur obligations” for an illegal purpose. M.G.L. c.

40, § 53. To bring a claim under the Ten Taxpayer Statute,

there must be allegations of actual vote to raise or to pay

money or to pledge credit for an illegal purpose.

Quigley v. City of Newton, No. 16–P–425, 2016 WL 7381735, at *2

(Dec. 19, 2016) (quoting Fuller v. Trustees of Deerfield

Academy, 252 Mass. 258, 260 (1925)).

Here, the Committee alleges that the Town has expended

“substantial sums of money, public resource[s], and police time”

to benefit commercial/recreational divers. It also alleges that

the Town “openly foregoes revenue from the divers” by failing to

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collect permitting fees and that the Town does not require

divers to pay for emergency services should the need arise.

To the extent that the Committee seeks reimbursement to the

Town for money already spent or revenue foregone, the § 53 claim

fails because the statute is not retroactive and thus “cannot be

made to reach past transactions.” Richards v. Treasurer &

Receiver General, 319 Mass. 672, 675 (1946). As to any

allegations of future conduct involving the permitting or

enforcement of laws with respect to commercial/recreational

divers, the Committee’s claim also fails because the amended

complaint contains no allegation of an actual, forthcoming vote

to raise or spend taxpayer dollars.

The amended complaint contains an allegation of a future

expenditure with respect to the expansion of public parking at

Back Beach but that does not constitute a § 53 claim because the

amended complaint alleges no facts to support an inference that

the expenditure of such funds would be contrary to “the legal

and constitutional right and power to raise or expend money” as

required by the Ten Taxpayer Statute. M.G.L. c. 40, § 53. As a

result, the amended complaint does no more than raise a “sheer

possibility” that the Town will act unlawfully which is

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insufficient to state a claim. Iqbal, 556 U.S. at 678. Count V

will be dismissed.

F. Count VIII – Failure to Act

In Count VIII, the Committee alleges that it has received

specific promises from the Town to enforce certain beach

regulations and town bylaws but that the Town has failed to do

so because the local police department is understaffed and

underfunded. Accordingly, the crux of the Committee’s claim is

that the Town has acted in an unconstitutional manner by failing

to enforce local rules and regulations.

Although Count VIII is not clear as to which constitutional

rights have allegedly been violated, the amended complaint makes

a passing reference to a potential due process violation with

respect to that count. There is, however, generally no

affirmative due process right to governmental assistance. See

Martinez v. Colon, 54 F.3d 980, 984 (1st Cir. 1995) (“[T]he Due

Process Clause ordinarily does not require the state to protect

an individual's life, limb, or property against the marauding of

third parties not acting to the state's behoof.”). Plaintiff

has provided no basis for recognizing an exception to that

general rule under the facts alleged as other courts have held

under similar scenarios. See, e.g., Hendricks v. Bald, No. 01-

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307-M, 2002 U.S. Dist. LEXIS 4407, *10 (D.N.H. Mar. 12, 2002)

(“[T]he Due Process Clause imposes no obligation upon the

defendants to enforce laws or ordinances prohibiting or

otherwise restricting the use of motorized recreational vehicles

on property abutting plaintiffs’ home.”).

Accordingly, Count VIII of the amended complaint will be

dismissed.

G. Count IX – First Amendment Retaliation

Defendant submits that the Committee fails to state a claim

of unlawful retaliation under the First Amendment to the United

States Constitution and that, therefore, Count IX should be

dismissed.

A plaintiff bringing a First Amendment retaliation claim

must show that

(1) he or she engaged in constitutionally protected

conduct, (2) he or she was subjected to an adverse action

by the defendant, and (3) the protected conduct was a

substantial or motivating factor in the adverse action.

D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 43 (1st Cir.

2012). Although such claims are normally brought in the context

of an employment relationship, “actionable retaliation may occur

outside the employment context altogether.” Barton v. Clancy,

632 F.3d 9, 28 (1st Cir. 2011). A pattern of informal

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harassment can support a First Amendment retaliation claim if

the alleged harassment has a chilling effect. See id. at 29.

The Committee alleges the Town has engaged in a “pattern of

official harassment and retaliation” as a direct result of the

Committee’s effort, including the filing of this action, to

petition the Town to curb the purported violations of local

regulations with respect to scuba diving at Back Beach. Because

“petition[ing] the Government for a redress of grievances” is

constitutionally protected conduct, U.S. Const. amend. I, and

because the complaint adequately alleges that such petitioning

by the Committee was the motivating factor for the adverse

actions it suffered, dismissal of the retaliation claim is

unwarranted.

The Town complains that the Committee’s First Amendment

retaliation claim should be dismissed because it cannot be

liable for the acts of its employees. Although it is true that

a municipality generally cannot be held liable for the tortious

acts of its employees, see Monell v. Dep’t of Soc. Servs., 436

U.S. 658, 691, a municipality is responsible for constitutional

violations resulting from the application of a municipal “policy

or custom.” See McElroy v. City of Lowell, 741 F. Supp. 2d 349,

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353 (D. Mass. 2010). To find municipal liability on the basis

of a custom, that custom must be

so well-settled and widespread that the policy making

officials of the municipality can be said to have either

actual or constructive knowledge of it yet did nothing to

end it.

Walden v. City of Providence, 596 F.3d 38, 57-58 (1st Cir.

2010).

As noted above, the complaint alleges a “pattern of

official harassment and retaliation,” that such harassment has

“permeated throughout the Town’s officialdom,” and that the Town

has obfuscated or ignored various applications of Committee

members in order to harass them. At this early stage in the

litigation, such allegations are sufficient to survive a motion

to dismiss. As a result, the Town’s motion to dismiss Count IX

will be denied.

H. Counts IV & VI – Declaratory Relief & Common Day of

Rest Law Claim

In Count IV, the Committee seeks a declaration of rights

pursuant to The Massachusetts Declaratory Judgment Act, M.G.L.

c. 231A (“Chapter 231A”). Although plaintiff’s claim under the

Common Day of Rest Law, M.G.L. c. 136 § 1 (Count VI) is pled as

a separate count, the claims are clearly related and will

therefore be addressed together.

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Chapter 231A provides that a court may

make binding declarations of right, duty, status and other

legal relations sought thereby, either before or after a

breach or violation thereof has occurred in any case in

which an actual controversy has arisen.

M.G.L. c. 231A, § 1. A court confronted with a claim pursuant

to Chapter 231A must first evaluate whether the claim is

properly brought and then determine whether the facts alleged in

the complaint are sufficient to state a claim for declaratory

relief. See Buffalo-Water 1, LLC v. Fidelity Real Estate

Company, LLC, 481 Mass. 13, 18 (2018). Even if the claim has

been properly brought and all factual allegations are true, the

court may dismiss it for failure to state a claim. Id. at 20.

In Counts IV and VI, plaintiff seeks a declaration that:

1) the waters off Back Beach fall within the bylaw prohibiting

scuba diving in Rockport’s four harbors, 2) regulations of the

Occupational Safety and Health Administration apply to the scuba

diving off Back Beach, 3) the Town’s bylaw requiring special

permission for commercial use of beaches applies to paid scuba

diving instruction off Back Beach, 4) the Massachusetts Diving

Access Law or the Town Beach Regulations prohibit night diving,

and 5) the Common Day of Rest Law prohibits scuba diving off a

public beach.

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Assuming arguendo that those claims have been properly

brought, the Committee is not entitled to such a declaratory

judgment. The Court has already determined that the complaint

fails to state claims for relief except as to Counts III and IX.

Those counts relate to purported retaliatory measures taken by

the Town against members of the Committee and alleged benefits

improperly conferred upon scuba divers. Because the legality of

scuba diving off Back Beach is no longer an active controversy

in the instant action, the Committee has failed to state a claim

for such declaratory judgment or for relief under the Common Day

of Rest statute.

Accordingly, Counts IV and VI will be dismissed.

ORDER

For the foregoing reasons, the motion of defendant Town of

Rockport to dismiss plaintiff’s amended complaint (Docket No. 9)

is, with respect to Counts III and IX, DENIED, but otherwise,

ALLOWED.

So ordered.

/s/ Nathaniel M. Gorton

Nathaniel M. Gorton

United States District Judge

Dated April 21, 2021

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