United States Court of Appeals

For the First Circuit

No. 01-1414

THOMAS J. MACONE AND FRANK BRAMANTE,

TRUSTEES OF BRAMAC DEVELOPMENT TRUST,

Plaintiffs, Appellants,

v.

TOWN OF WAKEFIELD,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

Torruella, Circuit Judge,

Cyr, Senior Circuit Judge,

and Lipez, Circuit Judge.

David J. Gallagher, with whom Regnante, Sterio & Osborne LLP, were

on brief, for appellants.

Patrick J. Costello, with whom Merrick, Louison & Costello, were

on brief, for appellee.
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January 10, 2002
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TORRUELLA, Circuit Judge. Plaintiffs-appellants Thomas J.

Macone and Frank Bramante, Trustees of the BRAMAC Development Trust,

appeal from a grant of summary judgment for appellee, the Town of

Wakefield ("Wakefield"). Appellants brought suit against Wakefield

alleging violations of the Federal Fair Housing Act, 42 U.S.C. § 3604,

42 U.S.C. § 1983, and the Due Process and Equal Protection clauses of

the United States Constitution. These violations allegedly occurred

when Wakefield rescinded its support for appellants' proposed

affordable-housing project. Upon appellee's motion for summary

judgment, the district court found no material facts in dispute and,

thereafter, ruled in appellee's favor as a matter of law. We affirm.

I.

This suit arose out of appellants' dealings with Wakefield

when appellants sought, obtained, and, subsequently, lost local backing

for a proposed residential housing development. As designed, the

development, Hillside Estates, would consist of 133 to 160

condominiums, a significant percentage of which would be targeted to

low-income and minority families. It would be located on a 12.3 acre

parcel of land in Wakefield which the appellants already owned and

which had already been approved for a 28-lot subdivision by the

Wakefield Planning Board. Appellants hoped to move this project

through the Local Initiative Program ("LIP"), allowing them to bypass

many local zoning and regulatory hurdles.
1 For the purposes of this opinion, affordable housing is defined as

housing that low- and moderate-income families can afford.

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The Commonwealth of Massachusetts Department of Housing and

Community Development ("DHCD") established LIP in order to provide

cities and towns in Massachusetts with incentives to initiate the

construction and sale of minority and low-income family housing. In

furtherance of that goal, LIP provides non-financial assistance and

allows developers to obtain legal standing to appear before local

Zoning Boards of Appeals and request comprehensive permits. These

comprehensive permits potentially allow developers to circumvent local

requirements and regulations, including zoning laws.

As a first step in the LIP application process, a developer

must get the written endorsement of the chief elected official of the

municipality where the project is proposed. In Wakefield, this is the

Board of Selectmen ("Board"). The involvement and support of local

elected officials is important because proposed LIP developments enjoy

streamlined approval processes and participating municipalities may

share in the marketing and design of projects. While genuine local

support is important, DHCD expects local officials to act in good faith

and not unreasonably withhold support.

Additionally, Massachusetts has established a target goal

that ten percent of available housing stock in each community should be

affordable.1 See Mass. Gen. Laws ch. 40B, § 20. Wakefield has never
2 Appellants deposed all but one Board member.

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achieved that target percentage. Rather, the percentage of affordable

housing in Wakefield hovers around 4.5 percent of the total available

housing.

According to LIP regulations, appellants sought approval for

Hillview Estates from the Board. In their letter to the Board,

appellants stated, " It is important to note that in communities where

the percentage of available low to moderate income housing is below

10%, the DHCD expects local support for LIP Program proposed housing."

On May 13, 1998, the Board voted to approve the Hillview

Estates project proposed by appellants. Appellants suggest that the

Board originally gave this approval because it wanted to maintain some

control over the project, particularly over the type of residents.

According to appellants, the Board feared that the project would be

built even without Wakefield's participation, in which case Wakefield

would have no local preference and, thus, no control over who would

fill the low-income and minority units. They base that contention on

the statement of one Board member who said, in regard to the Hillview

Estates development, "I don't think that gives the flavor to what we

want in Wakefield and unfortunately - and I understand how the

neighbors down there probably feel, I'm not sure that's what they're

going to want to see at the end either." In response to this

contention, all deposed Board members2 explained that their initial
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approval stemmed from their concern that the town would suffer adverse

consequences, including a possible loss of funding from the state, if

they failed to approve all LIP proposals.

After the Board approved the Hillview Estates proposal,

appellants submitted their application to DHCD. Pursuant to this

application, appellants met with DHCD representatives on November 5,

1998. At that meeting, DHCD asked appellants to consider reducing the

size of the Hillview Estates project and obtain additional confirmation

of Wakefield's support for the project. Therefore, on November 9,

1998, appellants resubmitted the Hillview Estates proposal to the

Board, reducing the number of units by twenty. Four days later,

Wakefield responded that the Board was happy to see that the number of

units had been reduced and that the Board continued to support the

Hillview Estates project.

On November 30, 1998, members of the Board met with DHCD

representatives to discuss LIP and related projects. At this meeting,

it became clear to the Board that Wakefield would not suffer adverse

consequences from the simple failure to approve all LIP proposals. The

DHCD representatives made clear that they believed that the Board had

been making a good faith effort to comply with program goals.

In a letter dated December 21, 1998, DHCD informed the Board

that it had approved the Hillview Estates project. However, the letter

also noted that "both the size of the proposed project and the density
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per acre are greater than the size or density typically allowed by

[DHCD] within the [LIP]. However since the [Board] has endorsed the

Hillview Estates [project] application, [DHCD] grants certification."

The letter also required that five of the affordable units be set aside

for minority applicants.

On March 8, 1999, the Board voted to rescind their prior

approval of the Hillview Estates project. This vote occurred without

any prior notice to appellants. The next day, March 9, the Board

notified DHCD of the rescission and asked whether the Hillview Estates

project remained eligible to seek a comprehensive permit from the

Zoning Board of Appeals. The Board did not notify appellants of the

rescission until two days after the vote, March 10. On March 19, 1999,

DHCD cancelled its prior certification and site approval letter for the

Hillview Estates project, preventing appellants from obtaining a

comprehensive permit.

II.

We review the district court's grant of summary judgment de

novo after drawing all reasonable conclusions of fact in favor of the

appellants. See Rubinovitz v. Rogato, 60 F.3d 906 (1st Cir. 1995).

Only if no genuine dispute of material fact exists will we affirm the

grant of summary judgment. See Fed. R. Civ. P. 56. Appellants are

"entitled to all inferences which are fairly supported by the evidence,

but are not permitted to build their case on mere 'opprobrious
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epithets' of malice . . . or the 'gossamer threads of whimsey,

speculation and conjecture.'" Creative Env'ts, Inc. v. Estabrook, 680

F.2d 822, 830 (1st Cir. 1982) (citations omitted).
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III.

Two of appellants' claims are brought under the Federal Fair

Housing Act, 42 U.S.C. §§ 3601-3631. They allege that the Board, by

rescinding its support for the Hillview Estates project, violated the

Fair Housing Act. To prove a violation of the Fair Housing Act,

appellants can show either discriminatory intent or disparate impact.

See Gamble v. City of Escondido, 104 F.3d 300, 304-05 (9th Cir. 1997).

Appellants advance both theories here, so we address each in turn.

A.

Appellants argue that the Board and Wakefield intended to

eliminate thirty-four affordable and five minority-owned housing units

when they rescinded their support for the Hillview Estates project. In

support of this argument, appellants point to several pieces of

evidence. First, at the original hearing granting approval, a Board

member said, "I don't think that gives the flavor to what we want in

Wakefield." Second, appellants contend that the Board only approved

the project in an effort to take advantage of local preference

provisions of LIP. These local preference provisions would supposedly

limit the number of minorities accepted as residents of the Hillview

Estates project. Third, the revocation was admittedly a substantial

departure from normal procedures. This departure includes the

unannounced reconsideration of the Hillview Estates proposal and the

allegation that one Board member orchestrated the unprecedented
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rescission. Fourth, appellants declare that this same Board member

notified the DHCD that he would file an appeal on behalf of local

residents if appellants received a comprehensive permit. Fifth is the

related point that local officials allegedly assisted in local

opposition to the Hillview Estates project. Sixth, the Board failed to

state any reasons for its decision at the time of rescission and later

pointed to facts which were properly before the Zoning Board of

Appeals. Such reliance is allegedly questionable because the Board did

not have the factual background to adequately assess the project and

because the Zoning Board of Appeals was more than equipped to deal with

those issues. Finally, the Board knew that its decision would

eliminate thirty-four affordable and five minority-owned housing units

from being built in Wakefield.

None of the facts pointed to by appellants demonstrates any

discriminatory intent, except for arguably the "flavor" comment. Even

if we grant appellants that this comment betrays a racial concern by

one Board member, we still cannot find that this one comment supports

appellants' contention that the earlier rescission was racially

motivated. First, this comment was made months earlier, during a

hearing where the Board voted to support the Hillview Estates project.

Second, appellants can point to no other evidence which supports a

finding of discriminatory intent on the part of the Board.
3 Appellants point to the fact that the vote was not previously

scheduled and appellants received no notice of the vote. However,

appellants also raise several related points which we consider

together. These include the facts that an individual Board member

threatened to appeal any grant of a comprehensive permit, Board members

allegedly assisted in local opposition to the Hillview Estates project,

and the Board provided no reason for the rescission at the time.

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Appellants suggest that they have sufficient corroborating

evidence of discriminatory intent, but we disagree. Most of the

arguments raised by the appellants relate to the procedural

abnormalities surrounding the Board's rescission.3 While procedural

abnormalities can provide a basis for finding discriminatory intent,

see Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.

252, 267 (1977) ("Departures from the normal procedural sequence also

might afford evidence that improper purposes are playing a role."),

such abnormalities are only relevant within a larger scope. Id. Here,

appellants can point only to the "flavor" comment, made months earlier,

to create that larger context. Additionally, appellants would have us

ignore a whole host of events which occurred between the original

approval and the rescission. Most importantly, the Board learned a

significant amount about LIP and the Board's responsibilities under it.

This is an undisputed fact.

Appellants attempt to deal with the Board's increased

knowledge by arguing that the additional information simply led the

Board to realize that it could entirely eliminate the Hillview Estates

project without penalty, not just limit its impact. This argument
4 As represented in the record, the local preference provision allows

a community to require that up to 70 percent of the low- and moderateincome units be granted preferentially to local residents or their

relatives.

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hinges on appellants' assertion that the Board originally approved the

project in order to take advantage of the local preference provisions

of LIP,4 as this would supposedly limit the number of minority families

moving into Wakefield. However, there is no support in the record for

this assertion. The record of the Board meeting shows quite clearly

that the members were very concerned about the absolute level of

development in the town. They were also afraid of losing control of

the project entirely and allowing appellants to bypass the local

planning process. Finally, the Board members expressed a clear

interest in developing Wakefield so that residents could become

"lifelong" residents, instead of being forced to leave at retirement,

when their income might decrease. None of the comments by Board

members reflects any racial concerns, just legitimate concerns about

the amount and type of development.

The Board also received information regarding DHCD's

expectations. They learned that the Hillview Estates project was

larger and more dense than the typical projects approved under the LIP.

In fact, DHCD was quite clear that it had significant reservations

about the project and only granted its approval because of the Board's

support for the project. Combining that knowledge with the fact that
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DHCD believed the Board and Wakefield to be working steadily toward

providing the target percentage of affordable housing, the evidence

would not support a finding that racial considerations drove the

Board's rescission. Larger concerns about the Hillview Estates

proposal predominated.

Finally, appellants argue that we should look to the Board's

knowledge that its rescission would prevent affordable and minorityowned housing units from being built in Wakefield. While the Board may

have prevented these few units from being constructed, the Board also

knows that it must continue to make progress toward the ten-percent

goal of affordable housing. Future projects may or may not include the

local preference provision which was included in the Hillview Estates

proposal. Therefore, the Board, if anything, faces a more uncertain

future regarding the movement of minorities into Wakefield. If keeping

minorities out of Wakefield were actually a concern for the Board,

blocking the Hillview Estates project would hardly further that goal.

In this context, it is clear that the "flavor" comment does

not get appellants past summary judgment. See Nat'l Amusements, Inc.

v. Town of Dedham, 43 F.3d 731, 743-44 (1st Cir. 1995) ("While

ambiguous remarks may, under some circumstances, help to illuminate the

summary judgment record, such remarks rarely will suffice to conceive

an issue of material fact when none otherwise exists."). We are not

required to enter into the realm of fantasy and conjecture when
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reviewing a grant of summary judgment, see id. at 735, and appellants

cannot show discriminatory intent on such flimsy evidence. Therefore,

the district court properly granted summary judgment on the

discriminatory intent claim.

B.

Another route to establishing a prima facie case of racial

discrimination under the Fair Housing Act is to show that appellee's

actions "actually or predictably [result] in racial discrimination."

United States v. City of Black Jack, 508 F.2d 1179, 1184 (8th Cir.

1975). The important distinction here is that we look only at the

effect of the Board's actions, not its motivation. See id. at 1185.

Appellants argue that the Board's rescission of its support for the

Hillview Estates project has a discriminatory impact. However, we find

that appellants provide no evidence and can only speculate about any

such impact. Therefore, we hold that they fail to establish a prima

facie case of discriminatory impact.

We begin by noting that the Federal Fair Housing Act

certainly imposes no affirmative obligation on municipalities to

approve all proposed affordable or minority housing projects. See

Vill. of Arlington Heights, 429 U.S. at 270-71 (holding that the simple

failure of the village to rezone property, so that a low-income,

racially diverse housing project could be built, did not violate the

Fair Housing Act). At the same time, municipalities cannot frustrate
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the underlying policy of providing fair housing within their

communities. See Smith v. Town of Clarkton, 682 F.2d 1055, 1068 (4th

Cir. 1982). Therefore, actions that have a discriminatory effect can

violate the Fair Housing Act.

In trying to show a discriminatory effect, appellants rely

heavily on City of Black Jack, but the case before us fails to present

similar evidence. 508 F.2d at 1179. There, the record contained

extensive information regarding the racial segregation of the immediate

area. Id.; see also Kennedy Park Homes Ass'n v. City of Lackawanna,

436 F.2d 108, 113 (2d Cir. 1970) (relying on evidence of blatant

segregation within the defendant city in affirming the judgment against

the city). The court also found that this racial segregation was the

result of "deliberate racial discrimination in the housing market."

City of Black Jack, 508 F.2d at 1186. We have no such comparable

information here.

Appellant would have us look exclusively to the fact that

Wakefield is a predominately white community. However, they present no

information regarding the surrounding area and certainly no information

about historical patterns of racial housing discrimination in the

Wakefield area. The fact that a community is not racially integrated

does not automatically mean that we will find a violation of the Fair

Housing Act. Arlington Heights had 27 black residents out of a total

population of 64,000 when the village refused to rezone a parcel of
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land to accommodate a proposed low-income housing development. Vill.

of Arlington Heights, 429 U.S. at 255. Yet, the Supreme Court found no

violation of the Fair Housing Act. Id.

Appellants also fail to address an even more salient

distinction between their case and City of Black Jack. In City of

Black Jack, plaintiffs presented "ample proof" of minority interest in

the blocked development. 508 F.2d at 1179. Here, there is no

information that any minorities would actually move into the Hillview

Estates project. At best, appellants can point to the requirement that

five of the affordable units be set aside for minority applicants.

There is no assurance that any minority applicants would appear or that

any would actually secure housing in Hillview Estates. In short, there

is absolutely no proof that any minority would actually be denied

housing in Wakefield due to the Board's rescission of its approval for

the Hillview Estates project. Therefore, we find that appellants have

failed to produce sufficient evidence to establish a prima facie case

of discriminatory impact under the Fair Housing Act and that the

district court properly granted summary judgment on this count.

IV.

Appellants also brought a variety of constitutional claims.

First, they allege that the Board's actions deprived them of property

without due process of law. Second, appellants allege that the Board's

actions were arbitrary, capricious and confiscatory, violating their
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substantive due process rights. Finally, they allege that the Board's

actions deprived them of equal protection of the laws. All of these

claims were brought under 42 U.S.C. § 1983. We address these claims

below and find that, for each, appellants fail to present sufficient

evidence to survive a motion for summary judgment.

To bring a successful section 1983 action, appellants must

establish two elements: (1) the conduct complained of was carried out

under color of state law and (2) this conduct deprived appellants of

rights, privileges or immunities secured by the Constitution or laws of

the United States. See Chiplin Enters. v. City of Lebanon, 712 F.2d

1524, 1526-27 (1st Cir. 1983). There is no question that the first

requirement is met here, so we proceed to the second element for each

of appellants' claims.

A.

First, we address the due process concerns raised by

appellants. To establish a due process claim, substantive or

procedural, appellants must first establish a property interest. See

Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 569-70 (1972).

They contend that because the Board issued three written indications of

support for the Hillview Estates project, they had a property interest

in the Board's support which triggers due process rights. Appellants

also point to the fact that the Board knew they had spent thousands of

dollars in continuing to develop the Hillview Estates proposal.
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However, the discretionary nature of the Board's act in

rescinding its approval negates any entitlement claim asserted by

appellants. See Bd. of Regents, 408 U.S. at 577 ("To have a property

interest in a benefit, a person clearly must have more than an abstract

need or desire for it. He must have more than a unilateral expectation

of it. He must, instead, have a legitimate claim of entitlement to

it."). We have consistently rejected substantive due process claims

arising out of disputes between developers and land planning

authorities while leaving the door "slightly ajar" for "truly

horrendous situations." Néstor Colón Medina & Sucesores, Inc. v.

Custodio, 964 F.2d 32, 45 (1st Cir. 1992).

Simply put, appellants cannot demonstrate a property interest

in the Board's prior approval of the Hillview Estates project. The

record contains nothing but evidence that local approval of LIP

projects is entirely discretionary. Additionally, appellants had not

even obtained the comprehensive permit which they sought. This simple

fact distinguishes their case from that of Acorn Ponds at North Hills

v. Inc. Vill. of North Hills, 623 F. Supp. 688 (E.D.N.Y. 1985), on

which appellants rely. There, a district court distinguished the case

where all permits had issued and construction was largely complete from

the case where building permits had not been granted. Id. at 692.

When a developer has actually constructed a structure with the

appropriate permits, the court found that a property right may attach.
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Id. In contrast, here, there is simply no evidence that appellants

would have obtained a comprehensive permit and been allowed to continue

with their development, much less begun any construction. Furthermore,

any support from the Board and any money expended by appellants would

have failed to move the project along had such a permit been denied.

Therefore, appellants fall far short of showing any cognizable property

interest.

On the substantive due process element, it is true that we

have left the door open in truly horrendous situations. See Néstor

Colón Medina, 964 F.2d at 45. However, this is not such a case. As

discussed above, there is no indication that the Board acted with any

discriminatory intent. In fact, the evidence shows only that the Board

was legitimately concerned about the impact of this large development

on Wakefield.

Because appellants fail to show any property interest and

cannot demonstrate that the Board acted improperly in revoking its

prior support, the district court properly granted summary judgment to

the Board on the due process counts.

B.

Finally, we address appellants' equal protection claim.

Here, we look for two elements: (1) whether the appellant was treated

differently than others similarly situated, and (2) whether such a

difference was based on an impermissible consideration, such as race.
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See Rubinovitz, 60 F.3d at 909-10 (citing Yerardi's Moody St. Rest. &

Lounge, Inc. v. Bd. of Selectmen, 878 F.2d 12, 21 (1st Cir. 1989)).

Appellants allege that they were treated differently than other LIP

developments based on the Board's desire to exclude minority residents

from Wakefield.

On appeal, appellants argue exclusively that the district

court erred when it found that appellants had not been treated

differently than others similarly situated. In making this

determination, the district court found that Hillview Estates was not

similarly situated in comparison to other LIP developments in Wakefield

due to its larger size. Appellants contend that such a finding by the

district court simply allows the Board to continue denying larger

projects, thereby furthering its allegedly discriminatory purpose.

Simply put, this argument fails to get appellants anywhere. Regardless

of whether the district court erred in holding that appellants were not

similarly situated to other LIP developers, appellants fail to present

any evidence to support their claim that the Board acted with

discriminatory intent, as discussed above. Absent such a showing,

appellants cannot make out either a due process or an equal protection

claim. See Rubinovitz, 60 F.3d at 909-10.

Additionally, we note our extreme reluctance to entertain

equal protection challenges to local planning decisions:
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Every appeal by a disappointed developer from an

adverse ruling by a local Massachusetts planning

board necessarily involves some claim that the

board exceeded, abused, or "distorted" its legal

authority in some manner, often for some

allegedly perverse (from the developer's point of

view) reason. It is not enough simply to give

these state law claims constitutional labels such

as "due process" or "equal protection" in order

to raise a substantial federal question under

section 1983.

Creative Env'ts, Inc., 680 F.2d at 833; see also Néstor Colón Medina,

964 F.2d at 44-45 (citing Vill. of Belle Terre v. Boraas, 416 U.S. 1,

12 (1974) (Marshall, J., dissenting) ("If disgruntled permit applicants

could create constitutional claims merely by alleging that they were

treated differently from a similarly situated applicant, the

correctness of virtually any state permit denial would become subject

to litigation in federal court. Limiting such claims is essential to

prevent federal courts from turning into 'zoning board[s] of

appeals.'")). Appellants fail to raise a claim that persuades us to

depart from this longstanding policy. This case does not concern a

blanket ordinance or regulation ruling against a certain type of

housing. Rather, it concerns an individualized decision about one

project. Other LIP projects are currently going forward in Wakefield,

and state officials have acknowledged the town's substantial efforts to

increase the amount of affordable housing available. Finally, this

case raises a matter of local concern and is fully reviewable under

state law.
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Therefore, we find that the district court properly granted

summary judgment against appellants on their equal protection claim.

V.

For the foregoing reasons, we affirm the district court's

judgment granting summary judgment in favor of defendant-appellee.