United States District Court, D. Massachusetts
MICHAEL J. MARONEY, as TRUSTEE OF PREMIERE REALTY TRUST and MARONEY CONSTRUCTION COMPANY INC., Plaintiffs,
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)
L. CABELL, U.S.M.J.
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.
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. 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.
Parties and the Project
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).
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).
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).
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).
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.
State Court Lawsuit
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).
of Animus and Disparate Treatment
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).
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. ¶
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).
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).
Conditions at Crystal Springs
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.
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