United States Court of Appeals 

For the First Circuit 

No. 15-2337 

LAWRENCE MILLER, 

Plaintiff, Appellant, 

v. 

TOWN OF WENHAM, Commonwealth of Massachusetts; JEREMY COFFEY, 

Member of the Zoning Board of Appeals - Town of Wenham; ANTHONY 

M. FEEHERRY, Member of the Zoning Board of Appeals - Town of 

Wenham; SHAUN HUTCHINSON, Member of the Zoning Board of Appeals 

- Town of Wenham; 110, INC., 

Defendants, Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. William G. Young, U.S. District Judge] 

Before 

Thompson, Selya, and Kayatta, 

Circuit Judges. 

Benjamin B. Tymann, with whom Tymann LLC - Law & Compliance 

was on brief, for appellant. 

Joseph A. Padolsky, with whom Douglas I. Louison and Louison, 

Costello, Condon & Pfaff, LLP were on brief, for appellees Town of 

Wenham, Jeremy Coffey, Anthony M. Feeherry, and Shaun Hutchinson. 

August 10, 2016 
- 2 - 

KAYATTA, Circuit Judge. Plaintiff Lawrence Miller 

challenges under both state and federal law the manner in which 

the Town of Wenham, Massachusetts (the "Town") has chosen not to 

prohibit a company named 110, Inc. from operating a substance abuse 

treatment facility on land that abuts Miller's residence. After 

Miller filed this lawsuit in Massachusetts Superior Court, the 

defendants removed it to federal court, and then moved to dismiss 

Miller's complaint under Federal Rule of Civil Procedure 12(b)(6). 

The district court determined that the complaint failed to state 

a claim under 42 U.S.C. § 1983 for the deprivation of property 

without due process. The court also dismissed one state law claim 

as moot, and remanded a remaining state law claim to state court. 

For the following reasons, we affirm the dismissal of the federal 

claim, vacate the determination that one state law claim is moot, 

and otherwise affirm the remand of the remaining state law claim 

to state court. 

I. Background

Because this appeal is from a decision granting a motion 

to dismiss, we take as true the well-pleaded allegations as they 

appear in the complaint. Guerra-Delgado v. Popular, Inc., 774 

F.3d 776, 780 (1st Cir. 2014). 

Miller resides at 66 Topsfield Road in the Town of 

Wenham. His property abuts property used by 110, Inc. On that 

abutting property sits a single-family home with a carriage house. 
- 3 - 

Both properties are located within the Town's Residential 

District. According to Miller, under the Town's zoning by-laws, 

commercial facilities, multi-family housing, and lodging houses 

are not allowed, either by right or special permit, in the 

Residential District. 

In the fall of 2013, 110, Inc. approached the Town 

Administrator and the Town Planner about opening a substance abuse 

treatment facility on the abutting property. 110, Inc. argued 

that it did not need to secure a special permit, variance, or any 

other discretionary approval from the Town to operate such a 

facility on the abutting property. Rather, it contended that its 

proposed use of the abutting property would be by right under the 

so-called Dover Amendment, Mass. Gen. Laws ch. 40A, § 3, ¶ 2, which 

provides preferential zoning treatment to religious and 

educational uses of land. 110, Inc. claimed that its proposed 

land use fell under the educational category and that it was, 

therefore, exempt from any Town board permitting process. 

On November 17, 2013, the Town's lawyer informed the 

Town Administrator that he had accepted 110, Inc.'s assertion that 

the Dover Amendment applied to 110, Inc.'s proposed land use. Soon 

thereafter, a Town official informed 110, Inc. that it could open 

for business. The Town officials reached this decision without 

holding a public hearing and without informing Miller or any other 

Town resident. 
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At the end of April 2014, Miller observed that 110, Inc. 

was operating a substance abuse treatment facility named Cross 

Keys Retreat next door to his residence. Miller promptly filed 

with the Town's Building Inspector (who was also the Town's Zoning 

Enforcement Officer) a Request for Zoning Enforcement pursuant to 

Mass. Gen. Laws. ch. 40A, § 7, ¶ 1. Miller's request stated that 

the treatment facility was operating as a commercial operation 

that housed up to fourteen people at a time, and was therefore not 

compliant with the Town's zoning by-laws that restricted such land 

use in the Residential District. Miller supported his request 

with legal memoranda and other documentation arguing that the 

facility was not covered under the Dover Amendment and, even if it 

were, that it was still subject to reasonable restrictions that 

could be imposed by the Town after a public hearing. At bottom, 

Miller argued that the Town's unilateral, non-public approval of 

110, Inc.'s use was unlawful. 

On June 5, 2014, the Building Inspector held a public 

meeting to give interested parties an opportunity to be heard on 

the question of whether 110, Inc.'s operation was protected under 

the Dover Amendment. On July 2, 2014, after considering the oral 

statements and written submissions made by counsel for 110, Inc., 

Miller, and members of the public, the Building Inspector granted 

Miller's request to enforce the zoning ordinance against 110, Inc., 

finding that the facility was not an "educational use" under the 
- 5 - 

Dover Amendment or otherwise permitted by that statute or the 

Town's zoning by-laws. The Building Inspector therefore ordered 

the facility to cease operations, but stayed the order to allow 

110, Inc. to appeal the decision to the Town's Zoning Board of 

Appeals ("ZBA"). 

110, Inc. responded by first filing a complaint in the 

U.S. District Court for the District of Massachusetts. In its 

complaint, 110, Inc. alleged that the Town, in addition to 

violating the Dover Amendment, had illegally discriminated against 

the facility's residents under the Federal Fair Housing Act 

("FHA"), 42 U.S.C. § 3601 et seq.; the Americans with Disabilities 

Act ("ADA"), id. § 12101 et seq.; and Chapter 40A, section 3, of 

the Massachusetts General Laws. Compl. at 6-8, 110, Inc. v. Town 

of Wenham, No. 14-cv-13013 (D. Mass. July 16, 2014), ECF No. 1. 

In addition to seeking compensatory, declaratory, and punitive 

damages and relief, 110, Inc. also filed an "emergency motion" 

seeking an injunction barring the Town from interfering with 110, 

Inc.'s operation of the facility and enjoining the Town from 

requiring it to appeal the Building Inspector's decision to the 

ZBA. Motion for Emergency Injunctive Relief at 2, 110, Inc. v. 

Town of Wenham, No. 14-cv-13013 (D. Mass. July 16, 2014), ECF 

No. 3. 

On July 29, 2014, the district court held a hearing in 

110, Inc.'s case against the Town on the emergency motion and 
- 6 - 

decided to hold an expedited trial on the merits of 110, Inc.'s 

claims, which it set for September 3, 2014. A few days later, on 

August 1, 2014, 110, Inc. appealed the Building Inspector's 

decision to the ZBA. After holding a public hearing and 

considering numerous written submissions, the ZBA denied 

110, Inc.'s appeal on September 3, 2014, agreeing with the Building 

Inspector that 110, Inc.'s use of the facility did not qualify as 

an "educational use" under the Dover Amendment. 

At the request of the parties in 110, Inc.'s case against 

the Town, the court continued the September 3 trial date to the 

end of September. During this time, the Town and 110, Inc. entered 

into settlement discussions. On September 5, 110, Inc.'s counsel 

submitted a written request to both the Town Administrator and 

Building Inspector requesting a "reasonable accommodation" under 

the ADA and FHA. This request set no limitations on 110, Inc.'s 

proposed use of the property as a substance abuse treatment 

facility, except that it capped at fourteen the number of clients 

for whom 110, Inc. could provide services at any one time. 

A few days later, on September 9, counsel for an investor 

in 110, Inc., who held title to the parcel on which the company 

operated, sent a demand letter to the Town Administrator, Town 

Counsel, and Special Town Counsel, claiming that the decisions by 

the Building Inspector and the ZBA had caused him financial loss 

and threatening to bring a separate lawsuit against the Town if it 
- 7 - 

did not allow the facility to continue its operations. On 

September 11, the Town relented, and the Building Inspector signed 

110, Inc.'s "reasonable accommodation" request. This act, Miller 

alleges, was done on the advice of the Town's lawyers for the 

purpose of resolving the ongoing federal litigation brought by 

110, Inc. and to avoid the further litigation that had been 

threatened by the owner of the abutting property. Neither the 

Town's receipt of 110, Inc.'s "reasonable accommodation" request 

nor the Building Inspector's decision to sign it were disclosed at 

the time to Miller or any member of the public. 

Soon thereafter, on September 26, the Town and 110, Inc. 

entered into a Settlement Agreement resolving 110, Inc.'s lawsuit 

against the Town. The terms of the Agreement included (1) a 

$125,000 payment from the Town to 110, Inc., (2) an agreement that 

by virtue of a "reasonable accommodation" 110, Inc. could continue 

operating the facility in accordance with the limitations set forth 

in its September 5 request for a "reasonable accommodation," 

(3) an agreement that the abutting property "is exempt from any 

zoning restrictions that would interfere with" the services 

provided by the facility, (4) a promise from the Town that it would 

not "obstruct or impede in any way" the facility's operations, and 

(5) the withdrawal of the Building Inspector's Dover Amendment 

decision and an agreement that 110, Inc. could pursue Dover 

Amendment approval in the future. In the Agreement, the parties 
- 8 - 

also agreed that 110, Inc. would withdraw its appeal of the 

Building Inspector's Dover Amendment order and that the matter 

before the ZBA "is hereby dismissed." At this time, neither Miller 

nor any member of the public was informed of the Settlement 

Agreement, but they did learn that the Building Inspector had 

recently acceded to 110, Inc.'s position that the ADA and FHA 

called for accommodating 110, Inc.'s use under the zoning laws. 

On October 10, Miller and another neighbor filed their 

own appeal to the ZBA, challenging the new position of the Building 

Inspector that 110, Inc.'s unrestricted use of the property was 

allowed as a reasonable accommodation under the FHA. On 

October 20, unaware of the provision in the Settlement Agreement 

that the Building Inspector's July 2 Dover Amendment decision be 

withdrawn and 110, Inc.'s appeal of that decision to the ZBA be 

dismissed, the ZBA filed its written decision affirming the 

Building Inspector's decision to reject 110, Inc.'s claim of use 

by right under the Dover Amendment. 

Just over two weeks later, Miller learned of the 

existence of the Settlement Agreement after his counsel reviewed 

public records that the Town produced on November 6, 2014. In 

those records, the Town also disclosed a memo sent by the Building 

Inspector on October 23, 2014, to 110, Inc., Town Counsel, and a 

ZBA member, in which the Building Inspector stated that the Town's 

Board of Selectmen had ratified the Settlement Agreement on 
- 9 - 

October 7, 2014. This ratification had not been publicly disclosed 

prior to November 6. 

After holding several days of hearings and considering 

written submissions on Miller's challenge to the Building 

Inspector's acquiescence to 110, Inc.'s position under the FHA, 

and after learning of the Settlement Agreement, the ZBA ultimately 

upheld the Building Inspector's grant of a reasonable 

accommodation to 110, Inc., albeit with certain limitations and 

requirements on the facility's operation. These limitations and 

requirements concerned aspects of the facility's operation such as 

the facility's admission criteria, security measures, hours of 

outdoor operations, screening and fencing plan, noise reduction 

plan, signage and parking, outdoor lighting, and liability 

insurance. 

Miller then filed in state court the complaint that is 

the subject of this appeal. In his complaint, Miller alleged four 

causes of action, including a federal procedural due process claim 

(Count II) and a claim for a declaratory judgment to annul the 

land use approvals contained in the Settlement Agreement 

(Count IV). After the Town removed the case to federal court, the 

district court granted its motion to dismiss Miller's federal 

procedural due process claim and his state law declaratory judgment 

claim, and remanded to state court the remaining state law claim 

challenging the ZBA's decision under Mass. Gen. Laws ch. 40A, § 17 
- 10 - 

(Count I).1 The district court found that the procedural due 

process claim was not cognizable and that the declaratory judgment 

claim had been rendered moot by the June 2, 2015, decision of the 

ZBA. We now consider Miller's appeal from the dismissal of these 

two claims. 

II. Analysis

We review de novo a district court's dismissal of claims 

under Federal Rule of Civil Procedure 12(b)(6). Cardigan Mountain 

Sch. v. N.H. Ins. Co., 787 F.3d 82, 84 (1st Cir. 2015). In doing 

so, "we accept as true all well-pled facts alleged in the complaint 

and draw all reasonable inferences in [the plaintiff's] favor." 

Evergreen Partnering Grp., Inc. v. Pactiv Corp., 720 F.3d 33, 36 

(1st Cir. 2013). To survive a Rule 12(b)(6) motion to dismiss, 

the complaint must contain "enough facts to state a claim to relief 

that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 570 (2007). 

A. Procedural Due Process

Miller brings his sole federal claim by way of 42 U.S.C. 

§ 1983. To succeed, he must show: (1) that the complained-of 

conduct was committed under the color of state law, and (2) that 

such conduct violated his constitutional or federal statutory 

 1 Prior to the district court's order on the Town's motion to 

dismiss, Miller had voluntarily dismissed Count III of the 

complaint alleging a violation of due process under Article X of 

the Massachusetts Declaration of Rights. 
- 11 - 

rights. Chongris v. Bd. of Appeals, 811 F.2d 36, 40 (1st Cir. 

1987). In an effort to make such a showing, he alleges that in 

making three decisions under color of state law, the Town violated 

his rights under the Due Process Clause of the Fourteenth 

Amendment, which provides that no "State [shall] deprive any person 

of life, liberty, or property, without due process of law." U.S. 

Const. amend. XIV, § 1. Those decisions were, in chronological 

order: (1) the decision by several Town officials in November 

2013 that 110, Inc.'s proposed use of the abutting property was an 

educational use under the Dover Amendment, and therefore lawful 

under the zoning ordinance; (2) the decision by the Building 

Inspector in September 2014 to accede to 110, Inc.'s claim that 

federal law required the Town to accommodate 110, Inc.'s desire to 

operate as intended; and (3) the decision by the Town to enter 

into the Settlement Agreement with 110, Inc., pursuant to which 

the Town agreed, in relevant substance, to recognize the lawfulness 

of 110, Inc.'s use of the property as a reasonable accommodation 

under federal law, and to make no effort to obstruct or impede 

110, Inc.'s operation of the facility on the property.

The Town does not argue that any of those decisions were 

anything other than state action. It does, however, contend that 

none of those decisions violated Miller's constitutional right to 

procedural due process. 
- 12 - 

To plead that the state violated his constitutional 

right to procedural due process, Miller "must allege facts which, 

if true, establish that [he] (1) had a property interest of 

constitutional magnitude and (2) was deprived of that property 

interest without due process of law." Clukey v. Town of Camden, 

717 F.3d 52, 54–55 (1st Cir. 2013). Our inquiry, then, consists 

of examining whether and in what manner Miller had a 

constitutionally protected property interest relevant to his 

claim, whether and to what extent the Town deprived him of that 

interest, and whether the procedures provided him were sufficient.

"Property interests . . . are not created by the 

Constitution[,] [but] rather . . . are created and their dimensions 

are defined by existing rules or understandings that stem from an 

independent source such as state law--rules or understandings that 

secure certain benefits and that support claims of entitlement to 

those benefits." Bd. of Regents of State Colls. v. Roth, 408 U.S. 

564, 577 (1972). So, we must look at applicable Massachusetts law 

to determine whether and to what extent "an entitlement grounded 

in state law exists, recognizing that 'the types of interests 

protected as property are varied and, as often as not, intangible, 

relating to the whole domain of social and economic fact.'" 

Clukey, 717 F.3d at 55 (quoting Logan v. Zimmerman Brush Co., 455 

U.S. 422, 430 (1982)). 
- 13 - 

Massachusetts law allows municipalities to establish 

zoning ordinances. Mass. Gen. Laws ch. 40A, § 5, ¶ 1. The aim of 

such ordinances "is to stabilize property uses in the specified 

districts . . . and not to permit changes, exceptions or 

relaxations except after such full notice as shall enable all those 

interested to know what is projected and to have opportunity to 

protest." Moore v. Cataldo, 249 N.E.2d 578, 580 (Mass. 1969) 

(quoting Kane v. Bd. of Appeals of Medford, 173 N.E. 1, 3 (Mass. 

1930)). The Town, in turn, has adopted a Zoning By-Law, which 

requires that "the use of all premises in the Town[] shall be in 

conformity with the provisions of the Zoning By-Law" and provides 

that "[n]o building, structure, or land shall be used for any 

purpose or in any manner other than is expressly permitted within 

the district in which such building, structure or land is located." 

Wenham, Mass. Zoning By-Law ("By-Law") § 1.4 (2014). 

Massachusetts law also addresses the enforcement of 

zoning regulations. In the first instance, it charges an "officer 

or board" in each municipality (such as the Town's Building 

Inspector) "with the enforcement of the zoning ordinance or bylaw." Mass. Gen. Laws ch. 40A, § 7, ¶ 1. Section 7 anticipates 

precisely what we have here: the failure of an officer (the 

Building Inspector) on his or her own initiative to enforce the 

law as a person (Miller) wishes it to be enforced. In such an 

instance, § 7 provides that a person may "request[] in writing" 
- 14 - 

that the officer enforce the law against another person. Id. If 

the officer fails to act on the request, he must notify the 

requesting party of the decision and "the reasons therefor," id., 

and the requesting party, if "aggrieved," may "appeal [that 

decision] to the permit granting authority as the zoning ordinance 

or by-law may provide," id. § 8. 

Massachusetts law also allows the "permit granting 

authority" in each municipality to grant variances from applicable 

zoning laws, subject to certain conditions. Id. § 10. In 

addition, municipalities shall, in their zoning ordinances or 

by-laws, designate specific types of uses that shall only be 

permitted in certain districts upon the issuance of so-called 

"special permits." Id. § 9, ¶ 1. The "permit granting authority" 

is charged with issuing such permits after providing notice and a 

hearing to members of the public. Id. §§ 9, 11. Persons aggrieved 

by a decision of the "permit granting authority" may appeal to the 

land or superior court. Id. § 17.

Finally, local zoning ordinances and by-laws must be 

construed in accordance with and subject to certain statewide laws, 

see id. § 5, ¶ 1, and, under the Supremacy Clause of the United 

States Constitution, federal law, U.S. Const., art. VI, cl. 2. 

Relevant here are the Dover Amendment, providing, in part, that 

local zoning ordinances or by-laws shall not prevent uses of land 

for religious or educational purposes when the land is owned by 
- 15 - 

certain entities, Mass. Gen. Laws ch. 40A, § 3, ¶ 2, and the 

provisions of the FHA and ADA, requiring the reasonable 

accommodation of certain uses of land by or for disabled persons. 

See 42 U.S.C. §§ 3601 et seq., §§ 12101 et seq. 

Having thus summarized the applicable law, we ask next 

whether and to what extent that law creates an entitlement that 

qualifies as a constitutionally protected interest. See Clukey, 

717 F.3d at 55. Oddly, Miller's briefs on appeal do not clearly 

identify precisely the property interest of which he claims to 

have been deprived. He makes passing reference to the "interest" 

of "abutters" and to "abutter property interests." He also cites 

to a federal district court case in which the property interest, 

under the applicable local and state law, was identified as "a 

property right in the protection of his own property against 

incompatible uses of adjacent property which devalue his 

property." Everett v. City of Tallahassee, 840 F. Supp. 1528, 

1539 (N.D. Fla. 1992). Certainly, though, such a description is 

overstated. Property uses can easily change in many manners, even 

from one use by right to another, with adverse effects on the value 

of adjoining properties. No one can reasonably claim an 

entitlement to be immune to all such changes. 

We could perhaps read Miller as raising a more nuanced 

claim: that Massachusetts law creates a property interest in 

securing enforcement of the zoning laws against currently unlawful 
- 16 - 

uses of property that harm him, and that the Town's decision to 

allow such uses by 110, Inc. deprived him of that interest without 

prior notice or an opportunity to be heard. But even if we did so 

construe Miller's claim, and even if we also assumed, without 

deciding, that such an interest is a constitutionally protected 

property interest, we would still find no due process violation. 

The Town never deprived Miller of any right to obtain enforcement 

of the zoning laws against 110, Inc. It did eventually decide not 

to take enforcement action itself in light of its view that 

110, Inc.'s use was lawful. Miller himself, however, retained the 

ability to seek such enforcement on his own under the abovedescribed remedial scheme provided by Massachusetts law. Miller 

was therefore not deprived of the right to have the zoning laws 

enforced against 110, Inc. He was deprived only of the ability to 

enlist the support of Town administrative officials in this effort. 

For three principal reasons, we find such a deprivation not to be 

the type of action that requires prior notice. 

First, the language of the relevant statute--Mass. Gen. 

Laws ch. 40A, § 7, ¶ 1--only grants Miller the right to "request[]" 

that the Building Inspector take a particular position regarding 

the proposed or actual use of property. Granting Miller the right 

to make such a "request[]" implies that Miller has no right to 

demand or expect that the Building Inspector himself will take the 

enforcement action desired. See Town of Castle Rock v. Gonzales, 
- 17 - 

545 U.S. 748, 765–66 (2005) (statutory grant of right to request 

enforcement of restraining order cuts against contention that 

beneficiary of the order has a protected property interest in 

prosecutor initiating enforcement action). 

Second, under Massachusetts law, town officials, at 

least those who do not sit on the "permit granting authority," 

have no power to grant any "special permit" to allow use of a 

structure that would otherwise violate the zoning ordinances or 

by-laws. See Mass. Gen. Laws ch. 40A, § 9. Rather, in this 

circumstance the Building Inspector's enforcement decision is 

limited to determining whether a proposed or actual use is allowed 

under the law. That decision, in turn, is reviewable by the 

"permit granting authority," id. § 8, which, in the Town and with 

respect to the claims in this case, is the ZBA, By-Law §§ 4.1, 

4.2.3, 13.2.2 (conferring authority on the ZBA to grant "special 

permits" for non-exempt educational uses of land). The ZBA's 

decisions may then be reviewed by the state courts. See Mass. 

Gen. Laws ch. 40A, § 17. Thus, Miller had the right under this 

procedure to request enforcement by the Building Inspector, to 

state fully his position to the Building Inspector, to receive a 

written explanation of the reasons for the denial of that request, 

and to participate as a party in the administrative and judicial 

reviews of the ultimate question: Is 110, Inc.'s use of the 

abutting property lawful in the absence of a special permit? 
- 18 - 

Third, it would be impractical to treat the nonenforcement decisions of the Building Inspector as the type of 

decisions that must be preceded by notice and an opportunity to be 

heard. Quite literally, Wenham's Building Inspector daily makes 

hundreds of decisions--by default--not to assert that current uses 

of properties are unlawful. It is unrealistic to deem each of 

those decisions not to pursue enforcement action to be a potential 

deprivation of a property interest for which prior notice need be 

given. See Hudson v. Palmer, 468 U.S. 517, 531-32 (1984); Parratt 

v. Taylor, 451 U.S. 527, 539 (1981). 

In sum, the property interest here, assuming one exists, 

is in having the ordinance or by-law enforced, not in having the 

Building Inspector pursue enforcement. Cf. Town of Castle Rock, 

545 U.S. at 766. And no one deprived Miller of that interest 

without notice and an opportunity to be heard. 

But, says Miller, Town officials and the Building 

Inspector did more than decide not to seek enforcement. Rather, 

he argues, by "granting" 110, Inc. a reasonable accommodation, 

they effectively gave 110, Inc. a special permit to do what it 

wants. The law is quite clear, though, that "special permits" can 

only be granted by the "permit granting authority," which in this 

case was the ZBA. Miller makes no claim that the actions of Town 

officials or the Building Inspector could bind the ZBA. Indeed, 

the ZBA's decision, while ultimately allowing 110, Inc.'s use of 
- 19 - 

the abutting property as a substance abuse treatment facility, 

imposed restrictions on such usage contrary to the terms of the 

Settlement Agreement. 

Miller also argues that, by refusing to enforce the 

zoning ordinances and by-laws, and purportedly granting what 

Miller claims to be an invalid special permit, the Building 

Inspector shifted the burden of proof in the proceeding before the 

ZBA. For example, had the Building Inspector insisted that 

110, Inc.'s use was unlawful unless it obtained a special permit 

from the ZBA, 110, Inc. would have had the burden to persuade all 

three members of the ZBA to grant it the permit. See Mass. Gen. 

Laws ch. 40A, § 9, ¶ 12. But, as a consequence of the Building 

Inspector's decision not to require 110, Inc. to obtain a special 

permit, Miller had to carry the burden of convincing a unanimous 

ZBA to reverse the Building Inspector's non-enforcement decision. 

Id. § 15, ¶ 4.2

We will assume (without deciding) that Miller is 

correct; i.e., that under Massachusetts law the Building 

Inspector's decision in favor of 110, Inc. meant that Miller had 

to persuade three rather than one ZBA member in order to prevail. 

So, in theory, the "interest" that Miller lost was a procedural 

 2 Indeed, this very argument highlights the fact that the ZBA, 

not the Building Inspector, was the final arbiter as to the 

lawfulness of 110, Inc.'s use of the property. 
- 20 - 

one that would have given him the potential advantage inherent in 

defending against rather than challenging a zoning decision. But 

the shifting allocation of such a procedural advantage under state 

law, while still leaving Miller with notice and a meaningful right 

to be heard by the permit granting authority, does not constitute 

a deprivation of a substantive interest protected by the Fourteenth 

Amendment. See Olim v. Wakinekona, 461 U.S. 238, 250 (1983) 

(explaining that "[p]rocess is not an end in itself[,]" but that 

"[i]ts constitutional purpose is to protect a substantive interest 

to which the individual has a legitimate claim of entitlement"); 

Town of Castle Rock, 545 U.S. at 771 (Souter, J. concurring) ("[A] 

[s]tate [does not] create a property right merely by ordaining 

beneficial procedure unconnected to some articulable substantive 

guarantee."). 

In sum, Miller has not been deprived of any 

constitutionally protected property interest without due process 

of law. He retained his right to initiate, receive notice of, and 

participate in a ZBA proceeding challenging 110, Inc.'s use of its 

property. While he lost the advantage of having the Building 

Inspector on his side, which may have shifted a greater burden of 

persuasion to him, we find that he had no property interest in 

having such an advantage. To rule otherwise would be to federalize 

all sorts of discretionary calls made by municipal officials even 

when applicable law does not render these calls binding or final. 
- 21 - 

B. Declaratory Judgment Count

The second claim Miller presses on appeal is his 

declaratory judgment count, which seeks to invalidate the 

September 26, 2014 Settlement Agreement between the Town and 

110, Inc. Finding that this claim had been rendered moot by the 

June 2, 2015 decision of the ZBA, the district court dismissed it 

without any further discussion. Miller contests this ruling, 

arguing that the Settlement Agreement and ZBA decision have 

independent force and contain terms that are not coextensive. The 

Town, while making a conclusory argument that the district court's 

mootness finding was correct, principally relies on its contention 

that Miller has failed to demonstrate standing under Mass. Gen. 

Laws ch. 40A, § 17, to bring this claim. 

As explained above, the complaint in this case was 

originally filed in state court and was removed by the Town solely 

on the basis of Miller's federal procedural due process claim under 

§ 1983. Because we now affirm the district court's dismissal of 

that claim, we are left, as the district court was, with a 

complaint alleging two state-law claims. The first state law claim 

(Count I) was brought under Mass. Gen. Laws ch. 40A, § 17 to 

challenge the ZBA's "reasonable accommodation" decision. The 

second state law claim (Count IV) is the declaratory judgment count 

at issue. 
- 22 - 

On the basis of Miller's federal claim, the district 

court possessed "supplemental jurisdiction" over the remaining 

related state law claims. See 28 U.S.C. § 1367(a). When the court 

dismissed the only federal claim in the case, however, it was then 

required to "reassess its jurisdiction" by "engaging in a pragmatic 

and case-specific evaluation of a variety of considerations that 

may bear on [whether it should retain jurisdiction or remand the 

case back to state court]." Camelio v. Am. Fed'n, 137 F.3d 666, 

672 (1st Cir. 1998); see 28 U.S.C. § 1367(c)(3). These 

considerations include "the interests of fairness, judicial 

economy, convenience, and comity." Camelio, 137 F.3d at 672. We 

have said that when a federal claim upon which supplemental 

jurisdiction is based is dismissed early on in the litigation, 

"the balance of competing factors ordinarily will weigh strongly 

in favor of declining jurisdiction over [the remaining state law 

claims]." Id. This balance promotes comity by avoiding needless 

federal decisions of state law while at the same time promoting 

fairness "by procuring for [the parties] a surer-footed reading of 

applicable law." United Mine Workers of Am. v. Gibbs, 383 U.S. 

715, 726 (1966). 

The correctness of the district court's decision finding 

Count IV moot is, in our view, a question that may depend on 

whether and to what degree the ZBA's decision nullified the 

Settlement Agreement entered into by other Town officials and 
- 23 - 

ratified by the Town's Board of Selectmen. These are questions of 

state law with which the state courts are more familiar. 

Furthermore, because the district court correctly decided to 

remand Miller's zoning challenge, little is saved by having the 

district court decide the mootness issue under state law. See 

Camelio, 137 F.3d at 672 (stating that "it does not appear that 

the district court's disposition of some but not all of the state 

law claims will materially shorten the time . . . to resolve the 

parties' dispute as the remanded claims concern the same nucleus 

of operative fact as the dismissed claims"). And, if not moot, 

Miller's claim for declaratory relief may also depend upon whether 

he has adequately pled standing under Massachusetts General Law 

Chapter 40A, as interpreted by the Massachusetts state courts. 

All in all, we find no basis for deviating from the 

ordinary course of remanding Miller's state law declaratory 

judgment count. See id.; Desjardins v. Willard, 777 F.3d 43, 46 

(1st Cir. 2015). 

III. Conclusion

For the foregoing reasons, we affirm the district 

court's dismissal of the procedural due process claim but vacate 

its dismissal of the declaratory judgment claim. We direct the 

district court to remand what remains of this case to state court. 

Each party shall bear its own costs. 

So ordered.