COUSINS v. TOWN OF TREMONT

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

ROBERT L. COUSINS, et al., )

)

Plaintiffs )

)

v. ) 1:20-cv-00420-GZS

)

TOWN OF TREMONT, et al., )

)

Defendants )

RECOMMENDED DECISION AFTER REVIEW

OF PLAINTIFFS’ COMPLAINT

Plaintiffs allege that the town of Tremont (the Town) and its officials and employees

deprived them of certain constitutional protections in connection with a dispute between

Plaintiffs and the Town regarding the status and use of Plaintiffs’ real property. (Complaint,

ECF No. 1.)

Plaintiffs also filed an application to proceed in forma pauperis (ECF No. 4), which

application the Court granted. (ECF No. 6.) In accordance with the in forma pauperis

statute, a preliminary review of Plaintiffs’ complaint is appropriate. 28 U.S.C. §

1915(e)(2). Following a review of Plaintiffs’ filings, I recommend the Court dismiss the

complaint.

STANDARD OF REVIEW

When a party is proceeding in forma pauperis, “the court shall dismiss the case at

any time if the court determines,” inter alia, that the action is “frivolous or malicious” or

“fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B).

“Dismissals [under § 1915] are often made sua sponte prior to the issuance of process, so

as to spare prospective defendants the inconvenience and expense of answering such

complaints.” Neitzke v. Williams, 490 U.S. 319, 324 (1989).

When considering whether a complaint states a claim for which relief may be

granted, courts must assume the truth of all well-plead facts and give the plaintiff the

benefit of all reasonable inferences therefrom. Ocasio-Hernandez v. Fortuno-Burset, 640

F.3d 1, 12 (1st Cir. 2011). A complaint fails to state a claim upon which relief can be

granted if it does not plead “enough facts to state a claim to relief that is plausible on its

face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “The relevant question

... in assessing plausibility is not whether the complaint makes any particular factual

allegations but, rather, whether ‘the complaint warrant[s] dismissal because it failed in toto

to render plaintiffs’ entitlement to relief plausible.’” Rodríguez–Reyes v. Molina–

Rodríguez, 711 F.3d 49, 55 (1st Cir. 2013) (quoting Twombly, 550 U.S. at 569 n. 14).

Although a pro se plaintiff’s complaint is subject to “less stringent standards than

formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972), the

complaint may not consist entirely of “conclusory allegations that merely parrot the

relevant legal standard,” Young v. Wells Fargo, N.A., 717 F.3d 224, 231 (1st Cir. 2013).

See also Ferranti v. Moran, 618 F.2d 888, 890 (1st Cir. 1980) (explaining that the liberal

standard applied to the pleadings of pro se plaintiffs “is not to say that pro se plaintiffs are

not required to plead basic facts sufficient to state a claim”).

BACKGROUND FACTS

In December 2013, a fire destroyed Plaintiffs’ restaurant and residence in the village

of Bass Harbor within the town of Tremont, Maine. In April 2014, the Tremont Planning

Board approved Plaintiffs’ application for a permit to rebuild within the existing footprint

of the structure. (Complaint ¶ 40).

In December 2014, Plaintiffs filed a complaint in this Court against several

individuals and entities, including the Town and members of the Town’s fire department,

related to the fire. See Cousins v. Higgins, et al., No. 1:14-cv-00515-DBH. In March 2017,

the Court dismissed claims against some of the defendants, and in August 2018, the Court

granted summary judgment in favor of the Town and the members of the fire department.

(Cousins v. Higgins, No. 1:14-CV-00515-DBH, 2018 WL 3186927, (D. Me. June 28,

2018), report and recommendation adopted, No. 1:14-CV-515-DBH, 2018 WL 3715703

(D. Me. Aug. 3, 2018). The First Circuit affirmed. Cousins v. Higgins, No. 18-1832, 2019

WL 11234276 (1st Cir. Aug. 13, 2019).

Meanwhile, in October 2015, the code enforcement officer at the time, Debbi

Nickerson, issued a Stop Work Order and a Notice of Violation concerning the location of

a new concrete slab relative to the property lines and the footprint of the original structure.

(Id. ¶¶ 38–46; Notice, ECF No. 1-19; Photographs, ECF No. 1-20). That notice stated that

Plaintiffs did not have the right to appeal to the Board of Appeals, but Plaintiffs attempted

to raise the issue at Planning Board meetings and continued to dispute the issue with the

code enforcement officer in 2015 and 2016. (Complaint ¶¶ 43–46, 89-I). In 2017,

Plaintiffs challenged the decision in state court, but did not obtain relief. (Id. ¶ 89-G).

On September 27, 2018, Plaintiff met with the code enforcement officer, John

Larson, who issued to Plaintiffs a “Notice of Violation and Order to Correct Violations of

Title 30-A Junkyard” regarding Plaintiffs’ property. (Complaint ¶¶ 17, 28, 31; Notice,

ECF No. 1-4). The Notice listed several specific violations which the code enforcement

officer claimed to have observed between June 2017 and June 2018 and which Plaintiffs

denied; the violations included the presence of worn-out or discarded items, unregistered

box trucks, a new unpermitted driveway, and the use of a camper and a bus as a living

space. (Complaint ¶¶ 31–35). Plaintiffs asked for an administrative consent agreement to

resolve the new issues, (id. ¶ 18), and in October 2018, Plaintiffs filed an application for

an appeal to the Board of Zoning Appeals; the application was denied. (Id. ¶¶ 19, 55;

Application to Appeal, ECF No. 1-13.)

In November 2018, the Town drafted an administrative consent agreement.

(Complaint ¶¶ 20, 36.) The agreement would have required Plaintiffs to admit several

statements of fact that Plaintiffs deny. (Id. ¶¶ 36–37, 50–57; Consent Agreement and

Compliance Order, ECF Nos. 1-5, 1-6.) Under the proposed consent agreement, in

consideration for the admissions of fact, satisfactorily addressing the alleged violations, a

$200 fine, and the dismissal of all federal and state claims against the Town and the Fire

Department, the Town would agree to release Plaintiffs from all causes of action the Town

had against them resulting from the alleged violations. (Consent Agreement and

Compliance Order ¶ 10 A–H.)

On December 3, 2018, the Town’s selectpersons authorized the filing of a complaint

against Plaintiffs in accordance with Maine Rule of Civil Procedure 80K.1 (Id. ¶ 58.) The

1 Maine Rule of Civil Procedure 80K governs the state court process to enforce land use statutes, codes,

rules and regulations.

complaint evidently was filed in state court. Plaintiffs have not alleged whether the matter

remains pending or the results of the state court action.

DISCUSSION

Plaintiffs allege (1) a procedural due process claim based on the Town’s alleged

taking of property without affording Plaintiffs an opportunity to be heard, (id. ¶ 72); (2) a

substantive due process claim based on an alleged deprivation of property, (id. ¶ 77); (3) a

first amendment claim based on the Town’s requirement that Plaintiffs terminate their

claims against the Town and its fire department, (id. ¶ 82); (4) an equal protection claim,

asserting that they were deprived of the right to appeal to the Board of Appeals while other

residents were permitted to appeal “under significantly similar circumstances,” (id. ¶ 67);

and (5) a taking of property without adequate compensation. (Id. ¶ 86.)

A. Due Process Claims

The Fourteenth Amendment prohibits state deprivations of “life, liberty, or property,

without due process of law.” U.S. Const. amend. XIV, § 1. This protection has both

substantive and procedural components. Amsden v. Moran, 904 F.2d 748, 753–54 (1st Cir.

1990). In either context, “a plaintiff, as a condition precedent to stating a valid claim, must

exhibit a constitutionally protected interest in life, liberty, or property.” Centro Medico del

Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 8 (1st Cir. 2005).

1. Procedural Due Process

The procedural component of the due process guarantee “normally requires notice

and an opportunity for some kind of hearing” but “[w]hether the opportunity needs to be

furnished before the seizure or whether a post-seizure opportunity is sufficient depends on

the circumstances.” Herwins v. City of Revere, 163 F.3d 15, 18 (1st Cir. 1998) (quotation

omitted). Courts determine which procedural protections are required “according to a

sliding scale, balancing a number of factors, including the nature of the private and public

interests involved; the risk of erroneous deprivation accruing under the procedures used by

the state; and the probable benefit of demanding additional procedural safeguards.”

Amsden, 904 F.2d at 753. “[I]f a state provides adequate postdeprivation remedies—either

by statute or through the common-law tort remedies available in its courts—no claim of a

violation of procedural due process can be brought under § 1983 against the state officials

whose random and unauthorized conduct occasioned the deprivation.” Lowe v. Scott, 959

F.2d 323, 340 (1st Cir. 1992) (summarizing Parratt v. Taylor, 451 U.S. 527 (1981) and

Hudson v. Palmer, 468 U.S. 517 (1984)); see also, San Geronimo Caribe Project, Inc. v.

Acevedo-Vila, 687 F.3d 465, 478–81 (1st Cir. 2012).

Plaintiffs have not alleged facts that would support a finding that the Town’s

ordinance and the state’s planning and code enforcement scheme were deficient. Plaintiffs’

filings establish that Plaintiffs had notice and an opportunity to contest the enforcement

action the Town initiated in state court. While Plaintiffs challenge the procedure that the

Town employed prior to initiating the enforcement action, Plaintiffs’ failure to comply with

the Town’s notices and directives did not result in a loss of property without further

process. Rather, even after Plaintiffs failed to address the alleged violations, Plaintiffs were

afforded additional process, which included notice and an opportunity for a pre-deprivation

hearing. Plaintiffs have not alleged a basis to support their contention that more process

was required.

Plaintiffs’ main contention is that the local officials did not follow the proper

procedures according to local ordinance and state law, but when a party faults local officials

for “violat[ing] or abus[ing]” the established local and state procedures, the procedural due

process claims will generally fail if there is an adequate opportunity via the state courts to

challenge “the alleged administrative abuses.” Nestor Colon Medina & Sucesores, Inc. v.

Custodio, 964 F.2d 32, 40 (1st Cir. 1992). Plaintiffs point to delays that occurred as a result

of the Town’s notices, but the First Circuit has rejected § 1983 procedural due process

claims based on delays in the land use context when there are state remedies available,

even when the delays were the result of “unauthorized intransigence and illegal demands.”

Licari v. Ferruzzi, 22 F.3d 344, 349 (1st Cir. 1994).

In sum, Plaintiffs have not alleged facts to support an actionable procedural due

process claim.

2. Substantive Due Process

The substantive guarantee of the Due Process Clause “rests not on perceived

procedural deficiencies but on the idea that the government’s conduct, regardless of

procedural swaddling, was in itself impermissible.” Amsden, 904 F.2d at 753. “The

substantive component of the Due Process Clause is violated by executive action when it

can properly be characterized as arbitrary, or conscience shocking, in a constitutional

sense.” Espinoza v. Sabol, 558 F.3d 83, 87 (1st Cir. 2009) (quotation omitted); see also,

Pagan v. Calderon, 448 F.3d 16, 32 (1st Cir. 2006) (conduct must be “extreme and

egregious,” “truly outrageous, uncivilized, and intolerable,” “stunning”).

“In the context of land use disputes, substantive due process is a constitutional cause

of action that leaves the door slightly ajar for federal relief in truly horrendous situations.”

Najas Realty, LLC v. Seekonk Water Dist., 821 F.3d 134, 145 (1st Cir. 2016) (quotation

omitted). Courts have consistently rejected substantive due process claims when plaintiffs

merely believe local planning officials misapplied the law or reached “erroneous

conclusions in bad faith.” Freeman v. Town of Hudson, 714 F.3d 29, 40 (1st Cir. 2013).

The First Circuit has explained the rationale for the high bar to federal substantive due

process claims:

Virtually every alleged legal or procedural error of a local planning authority

or zoning board of appeal could be brought to a federal court on the theory

that the erroneous application of state law amounted to a taking of property

without due process. Neither Congress nor the courts have, to date, indicated

that section 1983 should have such a reach.

Creative Environments, Inc. v. Estabrook, 680 F.2d 822, 831 (1st Cir. 1982); see also,

Licari, 22 F.3d at 350.

Plaintiffs allege that the Town and the code enforcement officers acted in bad faith

and with malicious intent. They also allege that the issues in the enforcement action were

frivolous and fraudulent. (Complaint ¶ 60.) A plausible pleading, however, must do more

than rely only on “labels,” “conclusions,” or “formulaic recitations of the elements,” free

from “further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Glob.

Tower Assets, LLC v. Town of Rome, 810 F.3d 77, 91 (1st Cir. 2016) (“the Applicants’

vague allegations of conflicts of interest and financially motivated conspiracy do not—at

least without far more—show that the Planning Board acted in the kind of conscience-

shocking fashion that we require for substantive due process challenges to make it past the

gate”).2 Plaintiffs have not alleged facts that would support a claim that any of the named

defendants engaged in conduct that would constitute a substantive due process

deprivation.3

B. First Amendment Retaliation Claim

“[A]s a general matter the First Amendment prohibits government officials from

subjecting an individual to retaliatory actions” for engaging in activities covered by the

First Amendment. Hartman v. Moore, 547 U.S. 250, 256 (2006). “Retaliation, though it

is not expressly referred to in the Constitution, is nonetheless actionable because retaliatory

actions may tend to chill individuals’ exercise of constitutional rights.” Powell v.

Alexander, 391 F.3d 1, 16–17 (1st Cir. 2004). “To prevail on such a claim, a plaintiff must

establish a causal connection between the government defendant’s retaliatory animus and

the plaintiff's subsequent injury.” Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019)

(quotation omitted).

Plaintiffs might have an actionable retaliation claim if the allegations and record

demonstrated that the Town and its officials intentionally and falsely raised the local land

2 While Plaintiffs allege some details concerning historical antagonism between members of the fire

department and Plaintiffs, the allegations concerning other town officials, such as the selectpersons and

town attorney, reflect that other town officials did not engage in the conduct about which Plaintiffs

complained, but instead considered and attempted to address Plaintiffs’ concerns. (See Complaint ¶¶ 89-

K–Q).

3 Plaintiffs arguably suggest that the local officials targeted their rebuild project with false accusations in

order to pressure Plaintiffs to dismiss their lawsuit against the Town and the members of the fire department

regarding the fire that destroyed their restaurant and home. Without more, however, that conclusion falls

short of a plausible claim to relief. See infra, Part B. The argument is analyzed in more detail below

because it is more consistent with a First Amendment claim than a substantive due process claim. Pagan,

448 F.3d at 33 (“Substantive due process is an inappropriate avenue of relief when the governmental

conduct at issue is covered by a specific constitutional provision”).

use code violations in order to pressure Plaintiffs to dismiss their lawsuit or as retribution

Plaintiffs for asserting the claims against the Town and members of its fire department.

See Powell, 391 F.3d at 17 (discussing retaliation claims invoking the protected right to

petition the courts). Plaintiffs have not alleged that the Town asserted the violations in

response to Plaintiffs’ other lawsuit. Instead, Plaintiffs have alleged that in response to

Plaintiffs’ request for a consent agreement, the Town asserted it would enter into a consent

agreement provided Plaintiffs dismissed their other lawsuit involving the Town. The

Town’s attempt to resolve all pending or potential claims involving Plaintiffs in response

to Plaintiffs’ request for a consent agreement would not support a retaliation claim. That

is, given that the Town’s proposal is alleged to have been made after the violations had

been identified and communicated to Plaintiffs, given that the Town’s proposal was made

in response to Plaintiffs’ request for a consent agreement to resolve the issues, and given

that the consent agreement was proposed three years after Plaintiffs’ commenced the other

action and after the trial court had dismissed or granted summary judgment on all Plaintiffs’

claims, the proposed consent agreement cannot reasonably be construed to reflect a

retaliatory motive. The proposed agreement is thus insufficient to move Plaintiffs’ First

Amendment claim across “the line between possibility and plausibility of entitlement to

relief.” Twombly, 550 U.S. at 557 (quotation omitted).

C. Equal Protection Claim

The Fourteenth Amendment prohibits the “den[ial] to any person . . . the equal

protection of the laws.” U.S. Const. amend. XIV. The Fourteenth Amendment, by its

terms, applies to state action. However, “the Due Process Clause of the Fifth Amendment

is treated as containing an equal protection component that binds the federal government

in the same way that the Equal Protection Clause [of the Fourteenth Amendment] binds the

states.” Gonzales-Maldonado v. MMM Healthcare, Inc., 693 F.3d 244, 247 n.2 (1st Cir.

2012). The evaluation of an equal protection claim begins with consideration of two issues:

(1) whether “the person, compared with others similarly situated, was selectively treated”;

and, if so, (2) whether “such selective treatment was based on impermissible considerations

such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or

malicious or bad faith intent to injure a person.” Rubinovitz v. Rogato, 60 F.3d 906, 910

(1st Cir. 1995) (quoting Yerardi’s Moody St. Rest. & Lounge, Inc. v. Bd. of Selectmen, 878

F.2d 16, 21 (1st Cir. 1989)).

Courts employ “strict scrutiny” to suspect classifications such as race, alienage and

national origin, “intermediate scrutiny” to gender-based classifications, and “rational basis

review” to ordinary matters of commercial, tax, and economic regulation. Massachusetts

v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1, 9 (1st Cir. 2012). When an individual

alleges the government singled that person out for reasons unique to the person, rather than

for the person’s membership in any group, that “class of one” claim requires the individual

to show that he or she was “intentionally treated differently from others similarly situated

and that there is no rational basis for the difference in treatment.” Snyder v. Gaudet, 756

F.3d 30, 34 (1st Cir. 2014) (quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)

(per curiam)).

As with their substantive due process and First Amendment claims, given the

applicable standard, Plaintiffs’ allegations are insufficient to support an equal protection

claim in the context of local land use regulation. Najas Realty, 821 F.3d at 144 (“simply

rehashing a First Amendment retaliation claim is not sufficient to make out a valid equal

protection claim”); PFZ Properties, Inc. v. Rodriguez, 928 F.2d 28, 32 (1st Cir. 1991)

(rejecting equal protection claim in the land use context because it was “in effect, a

recharacterization of its substantive due process claim”). “[O]nly in extreme circumstances

will a land-use dispute give rise to an equal protection claim.” Torromeo v. Town Of

Fremont, NH, 438 F.3d 113, 118 (1st Cir. 2006). “[W]hether under a due process or equal

protection theory, departures from administrative procedures established under state law

or the denial of a permit based on reasons illegitimate under state law, do not normally

amount to a violation of the developer’s federal constitutional rights.” PFZ Properties,

928 F.2d at 32; see also, Pagan, 448 F.3d at 35 (“This is a high hurdle, but its height makes

eminently good sense. Otherwise, a disappointed applicant for a state or local benefit could

manufacture a constitutional claim by the simple expedient of alleging differential

treatment. Were that the rule, the correctness of every state or local benefit denial would

become a federal case”). Plaintiffs’ assertions of malice and intent to injure represent

“conclusory allegations that merely parrot the relevant legal standard” and thus are not

actionable. Young, 717 F.3d at 231.

D. Takings Claim

The Fifth Amendment prohibits “private property” from being “taken for public use,

without just compensation.” U.S. Const. amend. V. The Fifth Amendment applies to

federal actions, but “[t]hat prohibition . . . applies against the States through the Fourteenth

Amendment.” Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160 (1980).

“When the government physically takes possession of an interest in property for some

public purpose, it has a categorical duty to compensate the former owner, regardless of

whether the interest that is taken constitutes an entire parcel or merely a part thereof.”

Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 322

(2002) (citation omitted). The Supreme Court has also recognized that even without taking

physical possession, “if regulation goes too far it will be recognized as a taking.” Id. at

326 (quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).

A regulatory taking occurs “where government requires an owner to suffer a

permanent physical invasion of her property,” or “completely deprive[s] an owner of all

economically beneficial use of her property,” or demands an exaction as a condition to

approving development, such as a public easement, that is disproportionate to the impact

of the proposed development. Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538–39, 546–

48 (2005) (quotation omitted). Outside of the relatively narrow categories, when faced

with a regulatory takings claim, courts employ a “more nuanced, three-pronged inquiry

into (1) the extent to which the regulation interferes with the claimant’s reasonable

investment-backed expectations; (2) the regulation’s economic impact on the property

owner; and (3) the character of the government action.” Maine Educ. Ass’n Benefits Tr. v.

Cioppa, 695 F.3d 145, 153 (1st Cir. 2012) (citing Penn Cent. Transp. Co. v. City of New

York, 438 U.S. 104, 124 (1978)).

Here, the government action was allegedly initiated pursuant to ordinances

governing storage of discarded items, unregistered vehicles, occupancy of temporary living

quarters, and building footprints and permits. None of the three factors outlined by the

Supreme Court suggests that ordinary local land use regulations will give rise to a takings

claim. Compare to, Hodel v. Irving, 481 U.S. 704, 716 (1987) (finding a taking of property

when the regulation was “extraordinary” because it abrogated one of the oldest and most

fundamental property rights, the right to transfer property to heirs). In addition, to the

extent Plaintiffs believe the town officials used the regulations and notices as a pretext to

interfere with Plaintiffs’ efforts to rebuild their home and restaurant, Plaintiffs have not

alleged any facts to support such a claim. Plaintiffs’ conclusory allegations regarding the

officials’ motives fails to state a plausible regulatory takings claim for the same reasons

their due process, First Amendment, and equal protection claims fail. See supra.4

CONCLUSION

Based on the foregoing analysis, after a review in accordance with 28 U.S.C. § 1915,

I recommend the Court dismiss the complaint.

NOTICE

A party may file objections to those specified portions of a magistrate

judge’s report or proposed findings or recommended decisions entered

pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district

court is sought, together with a supporting memorandum, within fourteen

(14) days of being served with a copy thereof.

4 Plaintiffs also assert a takings claim based on the November 2015 notice requiring Plaintiffs to move a

trailer that was parked alongside a fence bordering one of the roads adjacent to their property and which

trailer the Town asserted was partially in the travel lane. (See Complaint ¶¶ 32, 34, 51, 86-A, 89-H).

Plaintiffs evidently do not agree with the code enforcement officer that the trailer was in the roadway.

Plaintiffs also allege their 2014 building permit included a condition that Plaintiffs remove the fence and

that any parking occur inside their property line. Plaintiffs allege, therefore, that the Town’s notice was not

an attempt to revoke Plaintiffs’ right to park adjacent to the road, but rather represents the Town’s

communication to Plaintiffs that they were exceeding the limits of their parking rights and the conditions

of the building permit. The essence of that taking claim, therefore, is that the Town erroneously concluded

that a regulatory violation was occurring. The factual dispute alleged does not support a takings claim.

Failure to file a timely objection shall constitute a waiver of the right

to de novo review by the district court and to appeal the district court’s order.

/s/ John C. Nivison

U.S. Magistrate Judge

Dated this 4th day of March, 2021.