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Copp v. Shane

United States District Court, D. Maine

December 7, 2018

ELVIN COPP and RANDALL COPP Plaintiffs,
v.
WILLIAM SHANE, WILLIAM LONGELY, and TOWN OF CUMBERLAND, Defendants.

          ORDER ON DEFENDANTS' MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM AND FOR LACK OF JURISDICTION

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.

         In conjunction with state tort claims, Plaintiffs, who are town residents, brought this suit pursuant to 42 U.S.C. 1983 and the Maine Civil Rights Act as well as a Maine Freedom of Access Act claim against a Maine municipality and two town employees seeking compensatory damages, punitive damages, injunctive relief, declaratory relief, and attorney's fees stemming from an alleged trespass on the construction site of one of the Plaintiff's single family residence. In this seemingly straightforward, but surprisingly complicated motion to dismiss, the Court concludes that the Plaintiffs' state tort claims are barred by the applicable statute of limitations, and that the federal and state constitutional claims either do not state a claim or are barred by qualified immunity. The Court remands the state freedom of access act claim to state court.

         I. BACKGROUND

         A. Procedural History

         On March 27, 2018, Elvin and Randall Copp (the Copps), filed a complaint in Cumberland County Superior Court for the state of Maine alleging various state tort claims, violations of their United States and Maine constitutional rights, as well as a violation of the Maine Freedom of Access Act (FOAA) by the Defendants. State Court Record, Attach. 3 Compl. (ECF No. 2) (2018 Compl.). On May 7, 2018, the Defendants filed a Notice of Removal to this Court. Notice of Removal (ECF No. 1). On May 21, 2018, the Defendants moved to dismiss the Copps' complaint under Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1). Mot. to Dismiss for Failure to State a Claim and Mot. to Dismiss for Lack of Subject Jurisdiction (ECF No. 4) (Defs.' Mot.). The Copps responded on June 11, 2018 and the Defendants filed their reply on June 25, 2018. Resp. in Opp'n to Dismiss for Failure to State a Claim and Mot. to Dismiss for Lack of Subject Jurisdiction (ECF No. 5) (Pls.' Opp'n); Reply to Resp. in Opp'n to Dismiss for Failure to State a Claim and Mot. to Dismiss for Lack of Subject Jurisdiction (ECF No. 6) (Defs.' Reply).

         B. The Alleged Facts[1]

         1. The Parties

         The Copps are residents of the town of Cumberland of Cumberland County, Maine. 2018 Compl. ¶¶ 2-3. William R. Shane is the town manager of the town of Cumberland and William Longley is the code enforcement officer (CEO) for the town of Cumberland. Id. ¶¶ 5-6. The town of Cumberland is a Maine municipality. Id. ¶ 4.

         2. Basis for Complaint

         Elvin Copp owns a parcel of property (the Copp property) located off Pointer Way in Cumberland, as shown on town of Cumberland Tax Map R-07, Lot 57C. Id. ¶ 7. Around July 28, 2009, the Copps began construction of a single-family residence on the Copp property after acquiring their first building permit from Mr. Longley. Id. ¶ 11. Randall Copp has since supervised the construction of his single-family residence. Id. ¶ 8. The Copps were issued a building permit around May 8, 2014 for the single-family residence and they performed work continuously for 180 days. Id. ¶¶ 13-14.[2] The Copp property was posted “No Trespassing.” Id. ¶ 15. Around August 5, 2015, without a request for inspection or authorization to enter the property, Randall Copp found Mr. Longley on the Copp property. Id. ¶ 16.

         Before September 24, 2015, the Copps had requested that any town official enter the property in the presence of either of the Copps. Id. ¶ 17. On or about September 24, 2015, the Copps took a photo of Mr. Shane entering and exiting the Copp property when neither Elvin Copp nor Randall Copp was present. Id. ¶¶ 18-19.[3]

         On or about October 27, 2015, the Copps received a Notice of Violation for Corrective Action (the Notice). Id. ¶ 20. The Notice stated that Mr. Longley had conducted a road inspection of the Copp property on September 24, 2015. Id. ¶ 21. This was the first Notice the Copps had received that Mr. Longley entered the Copp property on September 24, 2015. Id. The Notice was corrected on January 20, 2016 (Corrected Notice), and it cited a violation of Ordinance § 315-76(A) for “lack of progress or inspection during the 6 months after issuance, hence the permit has expired on or about 11-08-2014” but did not contain details as to how Mr. Longley made this determination over one year from the date of the alleged expiration. Id. ¶ 22.

         The town board conducted a hearing concerning the Corrected Notice on February 11, 2016, as proscribed by § 315-77(D)(3) of the ordinance. Id. ¶ 23.[4] At this hearing, the Copps put forth their appeal, along with photographs, invoices, drawings and additional evidence, which included the testimony of Randall Copp, addressing the alleged violations contained in the Corrected Notice. Id. ¶ 24. Randall Copp testified that the camera he installed at the entrance of the property captured Mr. Shane entering and exiting the property on September 24, 2015 and that he had notified both Mr. Shane and Mr. Longley on two prior occasions that towns employees were not authorized to be on the Copp property without the presence of either himself or Elvin Copp. Id. ¶¶ 25-26. Randall Copp also testified with photographs that the Copp property was posted “No Trespassing” prior to September 24, 2015. Id. ¶ 27.[5]

         At the end of the Copps' presentation, the town board found that it lacked jurisdiction to determine issues of trespass. Id. ¶ 28. Counsel for the Copps objected to any evidence obtained by Mr. Longley from his road inspection, claiming it was improper and unlawfully obtained. Id. ¶ 29. Mr. Longley made several statements “regarding a proposed Consent Agreement and testified as to the intent and the motivation of the Plaintiffs with regards to said Consent Agreement” and subsequently, “introduced a copy of the unsigned Consent Agreement into evidence.” Id. ¶¶ 30-31. The Copps view as improper Mr. Longley's statements about the Consent Agreement and his introduction of the unsigned agreement into evidence. Id.[6] The board accepted Mr. Longley's testimony derived from his unauthorized entry onto the Copp property. Id. ¶ 32.[7]

         In his initial testimony, Mr. Longley conceded that progress may have been made during the six months following the issuance of the most recent building permit and that he had no evidence that a period of 180 days had lapsed since May 8, 2014 without continued progress. Id. ¶ 33. Mr. Longley also acknowledged that the Copps presented him with photos taken prior to the Corrected Notice but that he failed and refused to view the photos. Id. ¶ 34. Counsel for the Copps sought to cross-examine Mr. Longley, but the chair of the town board denied this request. Id. ¶ 35. The town board considered issues, testimony, and documents outside the scope of the Corrected Notice. Id. ¶ 36.[8]

         The Copps provided testimony and documentation pursuant to § 315(C) of the ordinance, submitted a description of the intended use of the land and buildings, and provided further detail as Mr. Longley required, such as letters from both an engineering firm and an architect. Id. ¶ 42. Mr. Longley neither testified nor submitted evidence that the Copps knew or should have known that a demolition permit was required for the conversion of the manufactured office building to a single-family residence. Id. ¶ 44. The Copps relied on Mr. Longley's issuance of the building permit to proceed with the conversion in their application. Id. ¶ 45.

         At the end of the hearing, a motion to adopt the corrective actions of the Corrected Notice was submitted and passed without a statement of findings or conclusions. Id. ¶¶ 37-38.[9] The town board determined that the Copps had made progress during the 180 days after May 8, 2014, the date the town issued the permit, and that the permit did not expire on November 8, 2014. Id. ¶ 46. While the town board concluded there was no violation of ordinance § 315-76(A) and no lapse in the current building permit, the board continued the “Stop Work Order” that Mr. Longley implemented with the Corrected Notice “since no building permit is valid [, ] no continued road construction is authorized or allowed until all violations have been corrected to the satisfaction of the Town of Cumberland.” Id. ¶ 47. The town board required the Copps to request a “demolition permit or additional information to Mr. Longley” despite no notice from Mr. Longley that such a permit was required. Id. ¶ 48.[10] The board also enforced the demolition ordinance. Id. ¶ 49.[11] No. notice of the board's decision was provided to the Copps or their counsel within seven days of this decision. Id. ¶ 50.

         The Copps' request for reconsideration stated that the board's decision failed to apply the proper standard set forth in § 315-77(B)(1) of the ordinance. Id. ¶ 51. The Copps asserted the board failed and refused to determine whether Mr. Longley's decisions were in conformity with the town's ordinances, to interpret the meaning in cases of uncertainty as provided in ordinance § 315-77(B)(1), and to determine if Mr. Longley's entry on to the Copps' property was conducted in accordance with IRC-R § 104.6. Id. ¶¶ 52-53.

         The Copps served a Notice of Claim pursuant to the Maine Tort Claims Act (MTCA), 14 M.R.S. § 8107 et seq, on the Defendants on or about March 29, 2016. Id. ¶ 54. Around February 27, 2017, the Copps made a FOAA, [12] 1 M.R.S. § 400 et seq, request regarding all records referencing their property specifically held by Mr. Shane and Mr. Longley, and the Copps received an acknowledgement that their request was received on or about March 2, 2017. Id. ¶ 56. The Copps made another FOAA request on March 30, 2017. Id. ¶ 57. The Copps were not provided with requested information and their request was denied. Id. ¶ 58.

         C. Copp v. Town of Cumberland Board of Adjustment & Appeals:

         The Rule 80B Appeal[13]

         1. The 2016 Complaint

          On March 25, 2016, Elvin Copp and Randall Copp filed a complaint in the Cumberland County Superior Court for the state of Maine. Notice of Removal Attach. 1, Docket Entries at 1, No. 2:16-cv-00213-JDL (ECF No. 1). The Copps' 2016 Complaint contained 139 paragraphs and four counts. Notice of Removal Attach. 2, Compl. at 1-13, No. 2:16-cv-00213-JDL (ECF No. 2) (2016 Compl.) Many of the factual allegations in the 2016 Complaint are identical to the factual allegations in the 2018 Complaint now pending before the Court. Compare 2016 Compl. ¶¶ 6-7, 12, 14, 16, 18-20, 22, 28-33, 36, 39-42, 50-51, 53-60, 62, 72-73, 78-80, 82, 89-90, with 2018 Compl. ¶¶ 11-15, 17-21, 23-28, 30-53.

         The 2016 Complaint contained four counts: (1) Count One-the 80B appeal, (2) Count Two-Due Process Violations in the Corrective NOV, (3) Count Three-Due Process Violations by the Board of Adjustment and Appeals, and (4) Count Four- Civil Rights Due Process Violations. 2016 Compl. at 1-13. Count Two alleged that the Corrective NOV failed to provide them with “sufficient notice of the claims against them.” Id. ¶ 93. Count Three alleged that the town board had violated their due process rights in the following ways: (1) by considering evidence improperly or unlawfully obtained by the town CEO and town manager, (2) by hearing evidence from the town CEO and manager beyond the alleged violations in the Corrective NOV, (3) by refusing to permit counsel for the Copps to cross-examine the CEO in violation of 30-A M.R.S. § 2691(3)(D), (4) by improperly allowing the CEO to submit documents not provided to Copps before the hearing, (5) by failing to include a statement of findings and conclusions in violation of 30-A M.R.S. § 2691(3)(E), (6) by failing to provide a written notice of its decision to the Copps within seven days of its decision in violation of 30-A M.R.S. § 129, and (7) by failing to provide findings of fact, conclusions of law, interpretation of the ordinances or any other written notice of its decision. Id. ¶¶ 121-30. Count Four alleged that the Defendants had deprived the Copps of a protected property interest without due process of law in violation of the Maine and United States Constitutions. Id. ¶¶ 137-39.

         2. Copp v. Town of Cumberland Board of Adjustment & Appeals: The Prior Federal Case

         The Copps' 2016 lawsuit against the town board briefly visited the federal court before being remanded to state superior court. Copp v. Town of Cumberland Board of Adjustment & Appeals, No. 2:16-cv-00213-JDL. On April 22, 2016, the town board filed a notice of removal from state to federal court on the ground that the Copps' claims of constitutional violations were presumably pursuant to 42 U.S.C. § 1983. Notice of Removal. On June 10, 2016, the Copps filed a notice of voluntary dismissal, giving notice that they were voluntarily dismissing Counts II through IV of their Complaint to allow them to pursue their Rule 80B appeal in Maine Superior Court. Pls.' Notice of Voluntary Dismissal Without Prejudice of Counts II-IV Pursuant to F. R. Civ. P. 41(a)(1)(a) (I) (ECF No. 9). On June 29, 2016, the Copps moved to have the case remanded to state court, Pls.' Mot. to Remand (ECF No. 14), and on June 30, 2016, this Court remanded the case to the state of Maine Superior Court. Order Granting an Unopposed Mot. to Remand to State Ct. (ECF No. 15).

         3. The Facts and Procedure Before the Superior and Supreme Court

         This federal case is the second lawsuit in which the Copps have challenged the actions of the town of Cumberland Board of Adjustment & Appeals. In Copp v. Town of Cumberland Board of Adjustment & Appeals, No. AP-16-012, 2017 WL 1398185, at *1-2, 2017 Me. Super. LEXIS 75, at *1-5 (Mar. 9, 2017), a Maine state Superior Court Justice provided the background for this first lawsuit. Elvin Copp is the father of Randall Copp, and Elvin, not Randall, owns the parcel of land on Pointer Way in Cumberland, where the Copps have been building a single-family residence. Id., 2017 WL 1398185, at *1, 2017 Me. Super. LEXIS 75, at *1. In July 2009, the Copps obtained their first building permit for the residence and began construction and subsequently, the town CEO issued them a series of building permits. Id., 2017 WL 1398185, at *1, 2017 Me. Super. LEXIS 75, at *2. On May 14, 2015, the CEO issued the permit that became the source of controversy for the first litigation. Id.

         On January 20, 2016, the CEO issued the Copps a Corrected Notice of Violation Order for Corrective Action (NOV), which included a description of the violations the CEO observed while at the property on September 24, 2015, a stop work order, and the corrective action that the Copps were required to take before the town would reissue a building permit. Id., 2017 WL 1398185, at *1, 2017 Me. Super. LEXIS 75, at *2-3. The CEO found that the construction did not conform with the plans the Copps had submitted for their permit. Id., 2017 WL 1398185, at *1, 2017 Me. Super. LEXIS 75, at *3. On November 8, 2014, the building permit that the town had issued on May 8, 2014 expired because the Copps had made no progress over the six months. Id. The stop work order prohibited all construction on the property until the town was satisfied that the violations had been corrected and the town issued the NOV that required the Copps to take certain corrective actions before the town would reissue the building permit. Id., 2017 WL 1398185, at *1-2, 2017 Me. Super. LEXIS 75, at *3-4.

         On January 27, 2016, the Copps appealed the NOV to the town board. Id., 2017 WL 1398185, at *2, 2017 Me. Super. LEXIS 75, at *4. In their appeal, they argued that their building permit had not expired, that the stop work order was not the proper remedy for the alleged violations, and the NOV should be dismissed because the CEO's entrance onto their property on September 24, 2015 was illegal. Id.

         On February 11, 2016, the town board heard the appeal. Id. The attorney for the Copps, Randall Copp, the CEO, counsel for the CEO and town, a concerned neighbor, and the town manager all made presentations to the town board. Id. The town board voted to uphold the NOV “except for the CEO's finding that the permit expired on November 8, 2014.” Id. (alterations in original). On February 22, 2016, the Copps filed a motion for reconsideration pursuant to 30-A M.R.S. § 2691(3)(F). Id. The town's attorney opposed the motion and on March 10, 2016, the town board denied the motion for reconsideration. Id., 2017 WL 1398185, at *2, 2017 Me. Super. LEXIS 75, at *4-5.

         On March 25, 2016, the Copps filed an appeal pursuant to Maine Rule of Civil Procedure 80B. Id., 2017 WL 1398185, at *2, 2017 Me. Super. LEXIS 75, at *5.

         4. Proper Party on Appeal

          The Copps brought the Rule 80B appeal against the town board itself. Under Maine law, a zoning board of appeals “is not a proper party to an appeal in the Superior Court from its own decision.” Id. (quoting Boothbay Harbor v. Russell, 410 A.2d 554, 559 (Me. 1980)). “The municipal officers or the CEO would be the proper defendants.” Id. (citation omitted). The Superior Court Justice noted that the Copps had not moved to amend their complaint and the town board had not moved to dismiss the Rule 80B appeal, but she concluded that the appeal should be dismissed because it was moot. Id., 2017 WL 1398185, at *3, 2017 Me. Super. LEXIS 75, at *5-6.

         5. Mootness

         The Superior Court Justice noted that the Copps had submitted “revised building plans, obtained a demolition permit, and adhered to the Board's required action in the NOV in order to have the stop work order lifted, which was achieved.” Id., 2017 WL 1398185, at *3, 2017 Me. Super. LEXIS 75, at *6. After reviewing the mootness doctrine, the Superior Court Justice wrote:

In this case, plaintiffs complied with the decision that they appealed, and the Town has lifted the stop work order and issued plaintiffs a new permit. The demand for judgment in plaintiffs' complaint asks the court to remand this case to the Board for a new hearing. At this point, remand would not provide plaintiffs any effective relief to justify the application of limited judicial resources. Plaintiffs' claim is thus moot.

Id., 2017 WL 1398185, at *4, 2017 Me. Super. LEXIS 75, at *8. The Court then considered and rejected the possibility that the Copps' claim fit within one of the exceptions to the mootness doctrine. Id., 2017 WL 1398185, at *4, 2017 Me. Super. LEXIS 75, at *9. She concluded that the issues the Copps were presenting were not matters of great public concern and that they were not likely to be repeated. Id., 2017 WL 1398185, at *4-5, 2017 Me. Super. LEXIS 75, at *10-11.

         6. Disposition

         The Superior Court concluded that the Copps had not named the proper party to their Rule 80B appeal and “the court can no longer provide plaintiffs with any real or effective relief” because they had “fully complied with the Board's decision and their claim is moot.” Id., 2017 WL 1398185, at *5, 2017 Me. Super. LEXIS 75, at *11-12. The Court sustained the position of the Board of Adjustment & Appeals. Id., 2017 WL 1398185, at *5, 2017 Me. Super. LEXIS 75, at *12.

         7. The Maine Supreme Judicial Court

         On October 24, 2017, the Maine Supreme Judicial Court in a memorandum of decision issued a brief order, affirming the Superior Court. Copp v. Town of Cumberland, No. Cum-17-137, 2017 Me. Unpub. LEXIS 105 (Oct. 24, 2017). It read in part:

Contrary to the Copps' contention, their claims that the Board erred were rendered moot when they complied with the NOV. Upon the Copps' compliance with the NOV, the CEO lifted the stop work order, and the Copps were free to continue building their home. There remains no practical effect resulting from the resolution of their claims to justify our review.

Id. at *1.

         D. The 2018 Complaint

         As noted earlier, the Copps' 2018 Complaint contains many of the same allegations that formed the basis for their 2016 Complaint. This time, however, the Copps posit nine counts: (1) Count One-Trespass against Mr. Shane, (2) Count Two-Trespass against Mr. Longley, (3) Count Three-Intentional Infliction of Emotional Distress (IIED) against all Defendants, (4) Count Four-Negligent Infliction of Emotional Distress (NIED) against all Defendants, (5) Count Five- Nuisance against Mr. Shane and Mr. Longley, (6) Count Six-42 U.S.C. § 1983 against Defendants Shane and Longley, (7) Count Seven-42 U.S.C. § 1983 against the town of Cumberland, (8) Count Eight-5 M.R.S. § 4682 against all Defendants, and (9) Count Nine-Violation of Maine's Freedom of Access Act. 2018 Compl. at 8-17.

         II. LEGAL STANDARDS

         A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

         A 12(b)(1) motion questions whether a court has subject matter jurisdiction over the action before it. United States v. Lahey Clinic Hosp., Inc., 399 F.3d 1, 8 n.6 (1st Cir. 2005) (internal citation omitted). “If the Court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3). The plaintiff has the burden to sufficiently allege facts that illustrate that he or she is proper party to invoke federal subject-matter jurisdiction. Dubois v. United States Dep't of Agric., 102 F.3d 1273, 1281 (1st Cir. 1996). When ruling on a Rule 12(b)(1) motion, the Court “must construe the complaint liberally, treating all well-pleaded facts as true and indulging all reasonable inferences in favor of the plaintiff.” Aversa v. United States, 99 F.3d 1200, 1209-10 (1st Cir. 1996). “[T]he court may [also] consider whatever evidence has been submitted.” Id.

         B. Motion to Dismiss for Failure to State a Claim

         Rule 12(b)(6) requires dismissal of a complaint that “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To state a claim, a complaint must contain, among other things, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). That is, a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v Twombly, 550 U.S. 550, 570 (2007)). A claim is facially plausible when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “Plausible . . . means something more than merely possible and gauging a pleaded situation's plausibility is a ‘context-specific' job that compels [the Court] ‘to draw on' [the judge's] ‘judicial experience and common sense.'” Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (quoting Iqbal, 556 U.S. at 679).

         “The plausibility inquiry necessitates a two-step pavane.” García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013) (citing Rodríguez-Reyes v. Molina- Rodríguez, 711 F.3d 49, 53 (1st Cir. 2013)). “First, the court must distinguish ‘the complaint's factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited).'” Id. (citation omitted). “Second, the court must determine whether the factual allegations are sufficient to support ‘the reasonable inference that the defendant is liable for the misconduct alleged.'” Id. (citation omitted).

         III. POSITION OF THE PARTIES A. The Defendants' Motion

         Defendants contend that the Copps' tort claims of trespass, nuisance, NIED, and IIED, are all subject to the MTCA and are time-barred by its two-year statute of limitations. Defs.' Mot. at 6-7. They say since the Copps filed their Complaint on March 27, 2018, “any tort claims that accrued before March 27, 2016 are time-barred . . . . [and] Plaintiffs do not allege any facts to suggest that any of their tort claims accrued after March 27, 2016.” Id. at 7. Defendants aver that:

The only events that the Plaintiffs allege occurred after that date are: [1] service by the Plaintiffs of a notice of claim (on March 29, 2016); [2] a request by Mr. Longley to inspect the Property (February of 2017); [3] requests by the Plaintiffs to the Town for documents under the Maine Freedom of Access Act, 1 M.R.S. §§ 400 to 414 (“FOAA”) (February 27, 2017 and March 30, 2017); [4] an acknowledgement of the Plaintiffs' FOAA request by the Town's attorney (March 2, 2017); and [5] the Town's denial of the Plaintiffs['] FOAA requests (date not specified).

Id. The Defendants argue that these events do not relate to their tort claims. Id. at 7-8.[14] Alternatively, the Defendants argue that Mr. Longley and Mr. Shane are not liable under the MTCA because the Defendants assert that discretionary function immunity shields them because they were engaged in functions as government employees previously recognized as protected under discretionary function immunity. Id. at 8-10 (citing various Maine state law precedent).

         The Defendants assert the majority of Copps' civil rights claims are barred by Maine Rule of Civil Procedure 80B's exclusivity. Id. at 11. The Defendants claim that direct review “pursuant to Maine Rule of Civil Procedure 80B is exclusive unless inadequate.” Id. (citing Colby v. York Cty. Comm'rs, 442 A.2d 544, 547 (Me. 1982)). In their eyes, to the degree the Copps' claims stem from “irregularities of the process” at the town board hearing, they are barred by claim preclusion since the Copps have largely asserted the same claims here as they did in their Rule 80B appeal. Id. at 12.

         In response to the Copps' procedural due process claim, the Defendants argue that the First Circuit views “procedural due process challenges to local land-use and zoning decisions with considerable skepticism, ” and that Rule 80B provides a means to complain of alleged procedural violations, as the Plaintiffs have. Id. at 15 (citing Brockton Power LLC v. City of Brockton, 948 F.Supp.2d 48, 67 (D. Mass. 2013) (quoting Creative Env'ts, Inc. v. Estabrook, 680 F.2d 822, 832 n.9 (1st Cir. 1982)). Thus, the Defendants argue, the Copps cannot make out a procedural due process claim. Id.

         Turning to the substantive due process claim, the Defendants contend that “a plaintiff ‘must plausibly allege that the actions taken against him were so egregious as to shock the conscience and that they deprived him of a protected interest in life, liberty, or property.'” Id. at 16 (quoting Gianfrancesco v. Town of Wrenthem, 712 F.3d 634, 639 (1st Cir. 2013)). They assert that because “the Plaintiffs do not allege anything more than procedural irregularities ...


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