Back Beach Neighbors Committee v. Town of Rockport, 605 F.Supp.3d 243

Back Beach Neighbors Committee (an association of abutters) sued the Town of Rockport over commercial scuba diving at Back Beach, alleging (1) Article VI of the Massachusetts Declaration of Rights was violated by conferring special benefits on scuba divers and (2) First Amendment retaliation for the Committee’s complaints and litigation.
After a permit lapse, the Town reinstated a uniform permit process (no fee) for all commercial/group uses of any of its 21 public beaches and parks in 2019; scuba operators obtained many permits but under the same application process as others.
Rockport bylaws prohibit diving in defined “Rockport harbors,” but that definition does not include Back Beach; state law bars denying access for scuba diving from public beaches.
The police and Town officials communicated with Committee members, enforced regulations (parking, public undressing), adjusted parking arrangements for aggrieved residents, and responded to complaints from both sides.
The Committee did not file a timely written opposition to the Town’s summary judgment motion but argued orally; the court nonetheless evaluated the motion on the merits and granted summary judgment for the Town on both remaining counts.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Town conferred a special benefit on scuba divers (Article VI)	Town created a special class of divers exempt from rules by issuing unrestricted, no‑fee permits and staffing bodies with diver interests	Permits and no‑fee policy applied uniformly to all commercial beach uses; Back Beach is not within the bylaw’s harbor prohibition; no evidence of special franchise	Court: No special benefit shown; Article VI claim fails
Whether the Town engaged in First Amendment retaliation	Committee members were subject to adverse actions (permit rescission, delayed/denied permits, threats, FOIA denial, parking tickets) in retaliation for protected speech/petitioning	Actions (requests to remove posts, parking enforcement, FOIA disputes, parking and concert matters) were legitimate, applied neutrally, and would have occurred absent the Committee’s speech	Court: No causal link or adverse‑action pattern established; retaliation claim fails
Whether the court could grant summary judgment despite the Committee’s failure to file a timely written opposition	N/A (procedural)	An unopposed motion does not automatically win; court must still assess whether undisputed facts entitle movant to judgment	Court: Evaluated merits, took defendant’s facts as uncontested where supported, and found summary judgment appropriate

Aguiar-Carrasquillo v. Agosto-Alicea, 445 F.3d 19 (1st Cir. 2006) (district court must examine merits of unopposed summary‑judgment motion)
Pérez-Cordero v. Wal‑Mart P.R., 440 F.3d 531 (1st Cir. 2006) (court may treat facts in unopposed statement as uncontested)
NEPSK, Inc. v. Town of Houlton, 283 F.3d 1 (1st Cir. 2002) (same)
Sheinkopf v. Stone, 927 F.2d 1259 (1st Cir. 1991) (court need not credit conclusory allegations unsupported by record)
Commonwealth v. Ellis, 429 Mass. 362 (Mass. 1999) (Article VI prohibits improper use of state power for private interests)
Leigh v. Bd. of Registration in Nursing, 399 Mass. 558 (Mass. 1987) (Article VI does not bar conferral of benefits where public is served)
Shirley Wayside Ltd. P'ship v. Bd. of Appeals, 461 Mass. 469 (Mass. 2012) (enforce bylaws according to plain wording)
D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26 (1st Cir. 2012) (two‑step framework for First Amendment retaliation)
González‑Droz v. González‑Colón, 660 F.3d 1 (1st Cir. 2011) (causation and Mt. Healthy burden‑shifting in retaliation claims)
Monell v. N.Y.C. Dep’t of Social Servs., 436 U.S. 658 (U.S. 1978) (municipal liability requires a policy or custom)
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (U.S. 1977) (retaliation burden‑shifting framework)
Garcetti v. Ceballos, 547 U.S. 410 (U.S. 2006) (public‑employee speech/official‑capacity distinction)