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Maroney v. Fiorentini

United States District Court, D. Massachusetts

December 7, 2017

MICHAEL J. MARONEY, as TRUSTEE OF PREMIERE REALTY TRUST and MARONEY CONSTRUCTION COMPANY INC., Plaintiffs,
v.
JAMES J. FIORENTINI, INDIVIDUALLY and in his capacity as MAYOR of the CITY OF HAVERHILL, ROBERT E. WARD, INDIVIDUALLY and in his capacity as DEPUTY DIRECTOR OF PUBLIC WORKS OF THE CITY OF HAVERHILL, WATER/WASTEWATER DIVISION, and THE CITY OF HAVERHILL, Defendants. v.

          MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS (DKT. #24) AND PLAINTIFFS' MOTION TO AMEND (DKT. #27)

          DONALD L. CABELL, U.S.M.J.

         This case arises from developer Michael Maroney's efforts to complete a subdivision of homes in the city of Haverhill (“the City”). Having been denied certain permits, he brought suit through his business entities against the City and two of its officials, for violations of 42 U.S.C. § 1983 and state law, based on an “unlawful scheme to deprive [the] Plaintiffs of their property rights and constitutional rights to equal protection and due process.” (Dkt. No. 1, ¶ 1). The defendants move for judgment on the pleadings. (Dkt. No. 24). The plaintiffs oppose the motion and in the alternative move for leave to amend the complaint to assert additional facts. (Dkt. Nos. 26, 27). For the reasons that follow, the motion for judgment on the pleadings is ALLOWED IN PART and DENIED IN PART. The motion for leave to amend is ALLOWED.[1]

         I. BACKGROUND

         The facts are taken from the Amended Complaint, Doc. No. 27 (“Compl.” ¶ ___), and certain documents submitted by the defendants in connection with their motion. See Dkt. Nos. 25-1, 25-2.[2] This does not constitute a finding by the court that any or all of the alleged facts are true. At this stage of the proceedings, the law requires the court to accept the plaintiffs' allegations as true and to draw all reasonable inferences flowing therefrom in the plaintiffs' favor. Watterson, 987 F.2d at 3.

         The Parties and the Project

         The plaintiffs are the related entities of (1) Premiere Realty Trust, (2) Michael J. Maroney as Premiere's trustee, and (3) Maroney Construction Company, Inc., of which Michael Maroney is the president. (Compl. ¶¶ 4-5). The defendants are the City, its mayor James Fiorentini (the Mayor), and Robert Ward (Ward), at the time the Deputy Director of Public Works for the City's Water/Wastewater Division. (Compl. ¶¶ 6-8).

         In or around 2009, Premiere purchased land off North Broadway in Haverhill with the intent to develop a subdivision known as the Crystal Springs Cluster Development. (Compl. ¶ 9). The development plan consisted of 50 residential lots on Back Nine Drive and Front Nine Drive. (Compl. ¶ 9). Maroney Construction Company, Inc. (MCC) was general contractor for the subdivision, on which development began in 2009. (Compl. ¶¶ 9, 10).

         The City had at that time received an engineer's water system evaluation report from Wright-Pierce (the May 2009 report), which indicated that adequate water pressure could not be supplied to the proposed development, and that supplemental pumping might be required in order to ensure adequate fire flow capacity throughout the proposed development. (Compl. ¶ 11). On June 12, 2009, Premiere entered into an agreement with the Haverhill Planning Board. Under the agreement, Premiere agreed to construct and install municipal ways and services, including a water booster station. In exchange, the Planning Board agreed to release lots for construction. (Compl. ¶ 10).

         The Planning Board approved Premiere's subdivision plan on January 25, 2010. (Compl. ¶ 11). However, the issuance of building permits was conditioned on the plaintiffs either installing and testing the utilities shown on the plan, or posting a security bond of $250, 000 to guarantee construction of the water booster station, with an effective bond date of November 1, 2016. The plaintiffs chose this latter option. (Compl. ¶¶ 13-15). Because no completion deadline was imposed by the subdivision approval, the water booster station only had to be constructed upon completion of the subdivision, i.e., the effective bond date of November 1, 2016. (Compl. ¶ 13).

         As of March 2015, the plaintiffs had constructed and transferred to purchasers 29 homes in the subdivision, completing the Back Nine Drive section of the subdivision, leaving 21 remaining lots on Front Nine Drive. (Compl. ¶¶ 17-18). In March 2015, however, the City, citing water pressure and fire flow capacity issues, abruptly refused to issue further permits related to site applications, foundation, building, and occupancy permits. (Compl. ¶¶ 13, 18, 19). The plaintiffs (through Maroney) met with the Planning and Water Departments on a number of occasions, both before and after March 2015, in an effort to resolve the City's concerns. (Compl. ¶ 21). Although each of these meetings appeared to result in an agreement on how to proceed, and although the plaintiffs subsequently took certain remedial steps recommended by the City, including the installation of a water line on North Broadway, the City ultimately refused to issue the plaintiffs the permits they needed. (Compl. ¶¶ 20-21).

         The State Court Lawsuit

         In an effort to compel the City to release the needed permits, the plaintiffs brought suit in state superior court against the City's Planning Department, Water Department and Building Inspector (the “state court lawsuit”). (Compl. ¶ 22; Maroney v. City of Haverhill Planning Board, et al., Dkt. No. 1577-CV-001251). The suit, which remains pending at the time of this opinion, alleges among other things breach of contract, breach of the implied covenant and good faith and fair dealing, and misrepresentation. The parties negotiated a settlement but the City refused to sign it unless Maroney first agreed to drop the lawsuit. (Compl. ¶ 24).

         Evidence of Animus and Disparate Treatment

         The plaintiffs suspect that the City has deliberately exaggerated concerns about water pressure and fire flow safety issues at Crystal Springs. (Compl. ¶ 26). The plaintiffs believe that the City has done so as part of a plan to compel the plaintiffs to alleviate real water pressure concerns at another nearby subdivision, Parsonage Hill. (Compl. ¶ 26). Parsonage Hill was completed several years earlier, in 1995, and the City subsequently allowed six more homes to be built thereafter in 2000, all without regard to whether or how the increased development might adversely impact low water pressure or adequate fire flow issues. (Compl. ¶ 26). The plaintiffs suspect that the City surmised that it could alleviate the issues at Parsonage Hill if it could get the plaintiffs to construct a water booster station in connection with Crystal Springs. (Compl. ¶ 26).

         Indeed, the City issued permits to at least three other area developers without requiring them to construct a water booster station. (Compl. ¶ 27). First, in 2012 the City allowed four new homes to be built across from the entrance to Front Nine Drive, using the same water main that Parsonage Hill and Front Nine Drive use. Id. The City did not tell the developer, Steve Franciosa, that there were fire flow or water pressure issues in the area. (Compl. ¶ 27).

         Then, in a second instance in 2015, the City approved a subdivision for seven homes at the DelHaven Estates on Broadway. (Compl. ¶ 27). The DelHaven water supply comes from the same water tower that supplies the plaintiffs' Crystal Springs development and the Parsonage Hill development. (Compl. ¶ 27). Moreover, the City's consultant, Wright-Pierce, approved the DelHaven Estates even though it had no fire flow and insufficient water pressure. (Compl. ¶ 27). Indeed, the City approved DelHaven Estates despite an elevation level so high that fire hydrants were omitted and individual water booster pumps had to be installed in each home to compensate for the low water pressure. (Compl. ¶ 27).

         Finally, the Water Department has allowed the owners of Lot 6, who are related to employees of the Water Department, to move into their house, which was listed in the allegedly unserviceable area. (Compl. ¶ 46).

         Current Conditions at Crystal Springs

         At present, the Haverhill Fire Department has signed off on all permits regarding the plaintiffs' development, most recently on July 7, 2016. (Compl. ¶ 28). The Water Department performed water logger tests which showed that there was more than sufficient water pressure, surpassing both the state and municipal minimum requirements. (Compl. ¶ 29). Recent fire flow testing also yielded results well within the state and municipal requirements. (Compl. ¶ 29).

         Despite these positive metrics, the City has refused to endorse a timetable for construction of the water booster station with benchmark deadlines, although it previously had done so. (Compl. ¶ 31). In fact, the plaintiffs have since July 2015 constructed a parallel water line as part of the first phase of building the water booster station, at a cost of ...


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