First Circuit Affirms Dismissal of Developer’s Entire Suit: Najas Realty v. Seekonk Water District


Najas Realty v. Seekonk Water District, 821 F.3d 134 (1st Cir. 2016)

PDP attorneys John Davis and Seth Barnett were successful in convincing the United States Court Of Appeals for the First Circuit, to affirm the trial court’s dismissal of the plaintiff-developer’s case in its entirety.

Najas Realty sought to develop a ten-acre parcel of property in the Town of Seekonk. During the hearings before the Board of Health and Planning Board, the Superintendent of the Seekonk Water District, Robert Bernardo (Bernardo), raised concerns about the prospective subdivision’s proximity to soil with elevated nitrate levels and, concomitantly, the potential hazard to the water supply of the subdivision proposed by Najas Realty.  Although Najas Realty was eventually awarded the necessary permits to proceed with the project, Najas Realty filed suit alleging that the Superintendent’s “interference” with the proposed subdivision ran afoul of several of its constitutional rights.

The District Court rejected Najas Realty’s claims and, on appeal, the First Circuit affirmed.  Commenting on Najas Realty’s rather tenuous First Amendment claim, the First Circuit observed that, as the Water District’s Superintendent, Bernardo had a “duty” to raise objections about the water supply he deemed valid and Bernardo was doing nothing more than fulfilling this duty. 

In light of a public official’s obligation to speak out on matters of public concern, the First Circuit reiterated that,

“courts are not typically receptive to retaliation claims arising from government speech”

and this case was no exception.  Turning to plaintiff’s substantive due process claim, the First Circuit repeated that in the land use context, such claims are limited to those cases in which the conduct involved was “truly horrendous.”

Here, although Najas Realty strongly disagreed with the water quality concerns raised by Bernardo, his (Bernardo’s) concerns were not baseless and, as noted above, involved a concern “that Bernardo was obligated to explore.”   In sum, the decision in Najas Realty again recognizes that, at least in the land use arena, federal courts are loath to jump into the constitutional fray.


John J. Davis


Seth B. Barnett