Finamore v. Piader

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

_______________________________________

)

MICHAEL FINAMORE and FINECAMP )

KOA, INC., d/b/a Webster Family ) CIVIL ACTION

Campground, ) NO. 4:19-40146-TSH

)

Plaintiffs, )

)

v. )

)

JASON PIADER, DANIEL COURNOYER, )

MARK MASON, CHRISTOPHER )

DAGGETT, and DANIEL FALES, as they )

are the members of the Town of Webster, )

Massachusetts Zoning Board of Appeals, )

and )

)

RANDALL BECKER, JENNIFER )

SULLIVAN, DOUGLAS WILLARDSON, )

THEODORE TETREAULT and )

MICHAEL SHAW, individually and in )

their official capacities as officials of the )

Town of Webster, Massachusetts, )

)

Defendants. )

______________________________________ )

ORDER AND MEMORANDUM ON DEFENDANTS’ MOTION FOR SUMMARY

JUDGMENT (Docket No. 53)

August 3, 2022

HILLMAN, D.J.

Michael Finamore and Finecamp KOA, Inc. (“Plaintiffs”) own and operate the Webster

Family Campground (the “Campground”) in the Town of Webster (the “Town”). In 2019, the

Town inspected the Campground, found several zoning violations, and ordered Plaintiffs to

remedy the violations. Plaintiffs appealed the order to the Town’s Zoning Board of Appeals (the

“ZBA”), which affirmed. In this action, Plaintiffs seek review of the ZBA’s decision. Plaintiffs

also assert a myriad of statutory and common law claims against various Town officials.

Defendants move for summary judgment. (Docket No. 53). For the following reasons, the Court

grants the motion.

Background

Plaintiffs, who own and operate the Campground, permit campers to use between eight and

twenty-five of the Campground’s approximately one hundred campsites year-round. During

winter months, the campsites do not have a direct supply of water. In 2011, the Massachusetts

Department of Public Health (“DPH”) determined that occupancy of year-round campsites at the

Campground without water supply during winter months violated the State Sanitary Code, 105

Code Mass. Regs. § 440.

In 2017, a DPH representative, along with the Town Building Commissioner, the Town

Health Director, and the Town Police Chief, inspected the Campground. At the time, Plaintiffs

had an “open-door policy,” permitting Town officials to “come on the campground any time they

wanted.” After the inspection, the Health Director informed Plaintiffs of several health violations

and ordered Plaintiffs to remedy the violations. In letters to the Town Administrator, Plaintiffs

complained of unequal treatment.

In July 2019, a DPH representative, the Town Building Commissioner, the Town Health

Director, and the Town Police Chief again inspected the Campground. Based on Plaintiffs’

previous complaints of unequal treatment, the group also inspected Indian Ranch, another

campground in the Town. After the inspection, the Building Commissioner notified Plaintiffs of

several zoning violations, and the Health Director notified Plaintiffs of several health violations.

The Building Commissioner found that Plaintiffs were in violation of, inter alia, § 650-40

of the Town’s zoning by-laws, which states, “No trailer or mobile home used as a permanent

habitation, office, camp or like purpose, whether on wheels, jacks or foundation and unregistered

for travel, shall be allowed.” Noting that some campers were residing at the Campground year-

round, the Building Commissioner ordered Plaintiffs to abate the zoning violation and inform the

year-round campers that they must find other living arrangements. Plaintiffs appealed the Building

Commissioner’s order to the ZBA.

Before the ZBA, Plaintiffs argued that the year-round use of campsites at the Campground

was a “grandfathered” use because it predated the enactment of § 650-40 in 1971. Plaintiffs

represented to the ZBA that, when they purchased the Campground in 1974, three or four

campsites were occupied year-round. Plaintiffs further argued that such use had been

uninterrupted since 1969. Plaintiffs provided no documentation to support their assertions.

The ZBA upheld the Building Commissioner’s order, concluding that Plaintiffs “failed [to]

demonstrate through persuasive testimony and/or documentary evidence that the year-round use

is grandfathered or that, even if so, that use has been uninterrupted since before the bylaw was

adopted, or that the use has not expanded improperly, or that the [sites] allegedly used year-round

are even the same location or number of sites currently used year-round.”

In October 2019, Plaintiffs sued Defendants in state court, seeking review of the ZBA’s

decision under M. G. L. c. 40A, § 17, and asserting a myriad of statutory and common law claims

against the Building Commissioner, the Health Director, and the Police Chief -- as well as the

Town Administrator and the Chair of the Town Board of Selectman. Specifically, Plaintiffs allege

that the ZBA’s decision was arbitrary and capricious (Count I); that the Town officials conspired

to interfere with Plaintiffs’ contractual relationships (Count II); that the Town officials violated

Plaintiffs’ civil rights under federal law (Count III); that the Town officials violated Plaintiffs’

civil rights under Massachusetts law (Count IV); that the Town officials interfered with Plaintiffs’

contractual relationships (Count V); that declaratory judgment should enter stating that § 650-40

is unenforceable against the Campground (Count VI); and that the Building Commissioner and

Health Director defamed Plaintiffs (Count VII).1 In November 2019, Defendants removed the

case to federal court. In June 2022, Defendants moved for summary judgment. (Docket No. 53).

In opposition to Defendants’ motion for summary judgment, Plaintiffs submitted two

affidavits relating to year-round use of the Campground. In one affidavit, Bruce Holmes avers

that his father lived at the Campground year-round from 1970 to 1981, and that, during that same

period, two other individuals lived at the Campground year-round, and a third individual stayed at

the Campground during the winter. Holmes further avers that he lived at the Campground from

1971 to 1976, and that the Campground has rented campsites to ice fishermen during the winter

since at least 1970. In the other affidavit, Robert J. Miller avers that, when he was a delivery driver

from 1968 to 1974, he delivered dairy products to the Campground multiple times per week, and

that the Campground continued operations during the winter.

Legal Standard

Under Federal Rule of Civil Procedure 56, a court “shall grant summary judgment if the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” An issue is “genuine” when a reasonable factfinder could resolve it

in favor of the nonmoving party. Morris v. Gov’t Dev. Bank of Puerto Rico, 27 F.3d 746, 748 (1st

Cir. 1994). A fact is “material” when it may affect the outcome of the suit. Id. When ruling on a

1 Because the Complaint lists two separate claims as “Count 4,” the Court has, for ease of

reference in this order, restyled the claims as Counts I through VII.

motion for summary judgment, “the court must view the facts in the light most favorable to the

non-moving party, drawing all reasonable inferences in that party’s favor.” Scanlon v. Dep’t of

Army, 277 F.3d 598, 600 (1st Cir. 2002) (citation omitted).

Discussion

1. Zoning Claims

Plaintiffs allege that the ZBA’s decision was arbitrary and capricious (Count I), and that a

declaratory judgment should enter stating that § 650-40 is unenforceable against the Campground

(Count VI). A court may not disturb a ZBA decision unless the decision is based on an

“unreasonable, whimsical, capricious or arbitrary” exercise of the ZBA’s judgment, as applied to

the facts found by the court. See Wendy’s Old Fashioned Hamburgers of N.Y., Inc. v. Board of

Appeal of Billerica, 909 N.E.2d 1161, 1168 (Mass. 2009).

Plaintiffs take issue with two aspects of the ZBA’s decision. First, Plaintiffs argue that the

Building Commissioner exceeded his authority (and thus the ZBA’s decision to affirm was

erroneous) by ordering Plaintiffs to inform campers that campers cannot reside at the Campground

year-round. Plaintiffs seem to argue that, if anyone is in violation of § 650-40, it is the campers,

not them. As the owners and operators of the Campground, however, Plaintiffs are responsible for

complying with the Town’s zoning by-laws. See Town of Lexington v. Bean, 172 N.E. 867, 871

(Mass. 1930) (landlords and tenants alike may be enjoined from zoning violations). Therefore, it

was within the Building Commissioner’s authority to order Plaintiffs to remedy the violation.

Second, Plaintiffs argue that the ZBA erred by not finding that year-round use of the

Campground qualified as an existing nonconforming use. To be sure, a zoning ordinance does not

apply to uses of property lawfully in existence before the ordinance was first noticed to the public.

See M. G. L. c. 40A, § 6. Whether an existing nonconforming use is protected, however, “depends

upon whether the use reflects the nature and purpose of the use prevailing when the zoning by-law

took effect . . . whether there is a difference in quality or character, as well as the degree, of use .

. . and whether the current use is different in kind.” Hall v. Zoning Bd. of Appeals of Edgartown,

549 N.E.2d 433, 439 (Mass. App. Ct. 1990) (cleaned up). “The property owner bears the burden

of proving the requisite similarity between the current use and the original nonconforming use.”

Cape Resort Hotels, Inc. v. Alcoholic Licensing Bd. of Falmouth, 431 N.E.2d 213, 217 (Mass.

1982).

In concluding that year-round use was not “grandfathered,” the ZBA reasoned that

Plaintiffs had failed to demonstrate that such use had been uninterrupted since before § 650-40

was adopted, and that such use had not expanded improperly. The Holmes and Miller affidavits,

which the Court may consider even though they were not before the ZBA, see Wendy’s, 909 N.E.2d

at 1167 n.20, lend credence to Plaintiffs’ assertion that the Campground was used year-round since

before 1971, when § 650-40 was adopted. Drawing all inferences in Plaintiffs’ favor, the Holmes

affidavit suggests that at least three individuals lived year-round at the Campground from 1970 to

1981. Nonetheless, the continuity of use is not the only factor determining whether a use should

be protected. The quality, character, degree, and kind of use also are to be considered. See Hall,

549 N.E.2d at 439. The record before the Court suggests that year-round use of the Campground

expanded from three or four campsites before enactment of § 650-40 to between eight and twenty-

five campsites today. While, as Plaintiffs argue, an increase in quantity is not itself determinative,

see Building Inspector of Seekonk v. Amaral, 401 N.E.2d 158, 159 (Mass. App. Ct. 1980),

Plaintiffs have done nothing to establish, as is their burden, that the use of eight to twenty-five

year-round campsites today is of similar quality and character as the use of three or four year-

round campsites in 1970. Accordingly, on the record before the Court, a ZBA rationally could

conclude that year-round use of the Campground is not a protected nonconforming use. Thus, the

ZBA’s decision must stand, and the Court grants summary judgment on Count I.

The Court likewise grants summary judgment on Count VI. A request for declaratory relief

is not an independent cause of action. See Buck v. American Airlines, Inc., 476 F.3d 29, 33 n.3

(1st Cir. 2007); Doe v. Brown Univ., 166 F. Supp. 3d 177, 197 (D.R.I. 2016). Plaintiffs’ request

that the Court declare § 650-40 unenforceable against the Campground, separate and apart from

the ZBA’s decision regarding § 650-40, is an attempted end-run around the ZBA’s decision.

2. Civil Rights Claims

Plaintiffs allege that the Building Commissioner, the Health Director, the Police Chief, the

Town Administrator, and the Chair of the Board of Selectmen violated Plaintiffs’ civil rights under

42 U.S.C. §§ 1983 and 1985 (Count III) and M. G. L. c. 12, § 11I (Count IV).

Plaintiffs frame their federal civil rights claim as a “class of one” equal protection claim.

Plaintiffs complain that Indian Ranch, the other campground in the Town, was not inspected in

2017 or subjected to an enforcement action. To prevail on a “class of one” equal protection claim,

Plaintiffs must show that they were “intentionally treated differently from others similarly situated

and that there is no rational basis for the difference in treatment.” Vill. of Willowbrook v. Olech,

528 U.S. 562, 564 (2000). At the threshold, see Freeman v. Town of Hudson, 714 F.3d 29, 38 (1st

Cir. 2013), Plaintiffs must demonstrate that they were “similar in relevant respects” to Indian

Ranch, see Cordi-Allen v. Conlon, 494 F.3d 245, 251 (1st Cir. 2007). Plaintiffs have failed to do

so. There is no indication in the record that Indian Ranch, like the Campground, had a history of

health violations. Without more, no reasonable jury could conclude that, relative to the 2017

inspection and later enforcement action, Indian Ranch and the Campground were “similarly

situated.” Accordingly, the Court grants summary judgment on Count III.

Plaintiffs’ state civil rights claim contends that the Town officials interfered with Plaintiffs’

property rights secured by federal and Massachusetts law. To establish a claim under M. G. L. c.

12, § 11I, Plaintiffs must prove that the Town officials interfered or attempted to interfere with

Plaintiffs’ civil rights by “threats, intimidation, or coercion.” Swanset Dev. Corp. v. City of

Taunton, 668 N.E.2d 333, 337 (Mass. 1996). Plaintiffs argue that the Town officials’ “improper

and defamatory notices” were designed to close the Campground in the winter. Plaintiffs appear

to contend that they had a right, secured by federal or Massachusetts law, to operate the

Campground in the winter. To the contrary, one of the allegedly improper “notices” was from the

Health Director, stating the Campground was in violation of the State Sanitary Code because, inter

alia, “No direct water is provided to camp sites for year round residents.” Plaintiffs do not argue

that the Health Director’s order, which effectively ordered the Campground closed when water is

not directly supplied to campsites, was erroneous. Viewing the facts in Plaintiffs’ favor, no jury

reasonably could conclude that the Town officials violated M. G. L. c. 12, § 11I. Thus, the Court

grants summary judgment on Count IV.

3. Tort Claims

Plaintiffs allege that the Building Commissioner, the Health Director, the Police Chief, the

Town Administrator, and the Chairman of the Board of Selectmen, individually and in conspiracy,

tortiously interfered with their contractual relationships (Count II and V), and that the Building

Commissioner and Health Director defamed them (Count VII).

To prevail on a claim of tortious interference, Plaintiffs must establish that the Town

officials’ interference was “improper in motive or means.” Hamann v. Carpenter, 937 F.3d 86,

90 (1st Cir. 2019). Plaintiffs appear to argue that the Town officials improperly attempted to close

the Campground due to personal or political hostility between the Chair of the Board of Selectmen

and Finamore. Based on the admissible evidence in the record, however, Plaintiffs’ theory is mere

speculation. See Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)

(summary judgment appropriate where nonmoving party rests on conclusory allegations,

improbable inferences, and unsupported speculation).

Plaintiffs also appear to argue that the Building Commissioner was not authorized to

inspect the Campground. Under Massachusetts law, however, the Building Commissioner is

charged with enforcing of the Town’s zoning by-laws. See M. G. L. c. 40A, § 7. There is no

indication in the record that, during the 2019 inspection, Plaintiffs told the Town or the Building

Commissioner that the Building Commissioner was not permitted on the Campground. While

Plaintiffs were notified that the purpose of the 2019 inspection was to ensure compliance with the

State Sanitary Code, Plaintiffs also were notified that the Town’s “code enforcement team,” along

with a DPH representative and Town counsel, would be present. Based on the summary judgment

record, no jury reasonably could find that the Town officials’ inspection and enforcement was

“improper in motive or means.” Accordingly, the Court grants summary judgment on Count V.

To prevail on a claim for civil conspiracy, Plaintiffs must demonstrate the commission of

an underlying tort.2 See Thomas v. Harrington, 909 F.3d 483, 490 (1st Cir. 2018). Because

Plaintiffs cannot sustain the underlying claim of tortious interference, the Court grants summary

judgment on Count II.

Finally, to prevail on a claim for defamation, Plaintiffs must establish that the allegedly

defamatory statement was false. See Yohe v. Nugent, 321 F.3d 35, 40 (1st Cir. 2003). Plaintiffs

2 Plaintiffs do not appear to assert the “very limited cause of action in Massachusetts for

civil conspiracy based on the defendants’ allegedly unique ability to exert a peculiar power of

coercion when acting in unison.” Snyder v. Collura, 812 F.3d 46, 52 (1st Cir. 2016) (quotations

omitted).

allege that the Building Commissioner and Health Director defamed them by stating that there was

“raw sewage” on the ground at the Campground. No evidence in the record suggests that this

statement was false. The Building Commissioner and Health Director supported the statement

with testimony at the ZBA hearing. The Building Commissioner stated that he observed 10-12

different pipes discharging liquid onto the ground at the Campground; the Health Director stated

that the leaking fluids were determined to be raw sewage and “gray water” based on visual

observation and smell. At their depositions in this case, moreover, both confirmed that they

observed raw sewage leaking from multiple trailers at the Campground. While, as Plaintiffs point

out, the observed liquid was never chemically tested, Plaintiffs have offered no evidence to

otherwise doubt the observations of the Building Commissioner and Health Director. Based on

the summary judgment record, therefore, no jury reasonably could find the Building Commission

and Health Director liable for defamation. Accordingly, the Court grants summary judgment on

Count VII.

Conclusion

For the reasons stated, the Court grants Defendants’ motion for summary judgment.

(Docket No. 53).

SO ORDERED

/s/ Timothy S. Hillman

TIMOTHY S. HILLMAN

DISTRICT JUDGE