535 F.Supp.3d 57
D. Mass.2021Background:
- Back Beach in Rockport, MA is a public, heavily used beach with the town's only public parking; neighbors formed the Back Beach Neighbors Committee to complain about scuba divers.
- Committee alleges divers engage in public undressing, trespass, littering, blocking streets/driveways, excessive noise (tank clanging), and night diving, harming residents.
- Committee claims the Town tolerates commercial/recreational diving as a tourist activity, intermittently enforces a bylaw banning commercial beach activity without a permit, and issues permits without conditions or fees.
- Procedural posture: Committee filed an amended complaint (Sept. 2020) asserting nine counts (including equal protection, private/public nuisance, Article VI, declaratory relief, Ten Taxpayer claim, Common Day of Rest, §1983 failure to act, and First Amendment retaliation); Town moved to dismiss under Fed. R. Civ. P. 12(b)(6).
- Judgment on motion: Court dismissed most counts but denied dismissal as to Count III (Massachusetts Declaration of Rights Article VI — conferral of benefits) and Count IX (First Amendment retaliation); all other counts were allowed/dismissed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Equal Protection (class-of-one) | Back Beach and scuba diving were intentionally treated differently from other beaches/activities | No similarly situated comparators; Committee (an association) cannot be a "class of one"; lacks extreme similarity | Dismissed — failed to identify similarly situated comparators; association not a class-of-one |
| Public & Private Nuisance | Divers created nuisances; Town liable for failing to enforce permits/rules | Public entities cannot be sued for public nuisance; MTCA bars private nuisance claims tied to permitting, police protection, or failure to prevent third-party conduct | Dismissed — public nuisance not recoverable; private nuisance barred by MTCA §10 exceptions |
| Article VI (conferral of benefits) | Town conferred special benefits on divers (permits without conditions/fees) favoring private interests | Town says no distinct class benefited; public served by actions | Survives — complaint sufficiently alleges conferral of benefits claim |
| Ten Taxpayer Statute (M.G.L. c.40 §53) | Town expended resources and forewent revenue benefitting divers; may spend future funds (parking expansion) | §53 requires an actual vote to raise/expend money for an illegal purpose; statute not retroactive | Dismissed — no allegation of an actual impending vote; claim cannot reach past expenditures |
| Failure to Act (§1983 / due process) | Town promised enforcement but failed (underfunding/understaffing), violating constitutional rights by not enforcing laws | No affirmative constitutional duty to provide governmental protection or enforce laws | Dismissed — no cognizable due process claim for failure to enforce |
| First Amendment retaliation | Committee's petitioning (complaints and suit) led to pattern of official harassment and obstruction of members' applications | Municipality cannot be liable for employees' acts absent a municipal policy or custom | Survives — pleading alleges a municipal custom/pattern sufficient to proceed |
| Declaratory Relief & Common Day of Rest | Seeks declarations that diving is prohibited by bylaws/OSHA/Common Day of Rest and night diving bans apply | No live controversy after dismissal of most substantive claims; declaratory relief improper | Dismissed — no active controversy supporting declaratory judgment or Common Day of Rest claim |
Key Cases Cited
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (pleading must state a plausible claim)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (courts need not credit legal conclusions)
- Village of Willowbrook v. Olech, 528 U.S. 562 (U.S. 2000) (class-of-one equal protection doctrine)
- Cordi-Allen v. Conlon, 494 F.3d 245 (1st Cir. 2007) (a class of one is not a class of many)
- Freeman v. Town of Hudson, 714 F.3d 29 (1st Cir. 2013) (requires extremely high degree of similarity for class-of-one)
- Gianfrancesco v. Town of Wrentham, 712 F.3d 634 (1st Cir. 2013) (comparators must be similarly situated in relevant respects)
- Town of Hull v. Massachusetts Port Authority, 441 Mass. 508 (Mass. 2004) (public nuisance recovery not allowed against public entities)
- Morrissey v. New England Deaconess Association, 458 Mass. 580 (Mass. 2010) (private nuisance claims against municipalities fall under MTCA)
- Magliacane v. Gardner, 483 Mass. 842 (Mass. 2020) (MTCA is the exclusive remedy for tort claims against municipalities)
- Monell v. Department of Social Services, 436 U.S. 658 (U.S. 1978) (municipal liability requires a policy or custom)
- Walden v. City of Providence, 596 F.3d 38 (1st Cir. 2010) (municipal custom must be so well-settled that policymakers know and do nothing)
- D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26 (1st Cir. 2012) (elements of First Amendment retaliation claim)
- Barton v. Clancy, 632 F.3d 9 (1st Cir. 2011) (retaliation claims may arise outside employment contexts)
- Martinez v. Colon, 54 F.3d 980 (1st Cir. 1995) (no general affirmative due process duty to protect individuals from third parties)