United States Court of Appeals For the First Circuit

No. 21-1463

ST. PAUL'S FOUNDATION; SHRINE OF ST. NICHOLAS THE WONDERWORKER, PATRON OF SAILORS, BREWERS AND REPENTANT THIEVES,

Plaintiffs, Appellants,

v.

ROBERT IVES, in his official capacity as Interim Building Commissioner for the Town of Marblehead; TOWN OF MARBLEHEAD,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before

Lynch, Kayatta, and Barron, Circuit Judges.

Kevin P. Martin, with whom Michael K. Murray, William E. Evans III, and Goodwin Procter LLP were on brief, for appellants. Felicia H. Ellsworth, Eric L. Hawkins, Simon B. Kress, and Wilmer Cutler Pickering Hale and Dorr LLP, on brief for the Orthodox Church in America and the Union of Orthodox Jewish Congregations of America, amici curiae. Gregor A. Pagnini, with whom Leonard H. Kesten, Deidre Brennan Regan, and Brody, Hardoon, Perkins & Kesten, LLP were on brief, for appellees. March 24, 2022 BARRON, Circuit Judge. This case arises from a suit

under the Religious Land Use and Institutionalized Persons Act

("RLUIPA"). The plaintiffs, St. Paul's Foundation and the Shrine

of St. Nicholas the Wonderworker, Patron of Sailors, Brewers and

Repentant Thieves (collectively, "St. Paul's"), claim that their

religious exercise was substantially burdened in violation of

RLUIPA by the defendants, the Town of Marblehead (the "Town") and

its Buildings Commissioner. The dispute concerns the defendants'

failure to reinstate a building permit that St. Paul's had secured

for the redevelopment of the site in the Town on which the Shrine

of St. Nicholas is located but that had been suspended prior to

the completion of that construction. The District Court granted

summary judgment to the defendants. We affirm.

I.

We set forth some relevant legal background as well as

some basic facts relating to the underlying claim that are not in

dispute between the parties on appeal. See United States v. Union

Bank for Savs. & Inv. (Jordan),

(1st Cir. 2007).

We also review the travel of the case.

A.

Under Massachusetts law, parties seeking to perform

construction work on buildings must apply for and receive two

permits before the finished building can be used or occupied.

First, before construction begins, a local building commissioner

- 3 - must issue a building permit authorizing specific construction.

; see also

(defining "building

official" to include a building commissioner);

(directing municipalities to appoint building

commissioners "to administer and enforce the state building

code"). The permit must be based on specific plans that display

and explain the proposed work.

(4),

107.1, 107.2. Under Massachusetts law, no construction work may

be done that is not approved in the building permit unless state

law otherwise authorizes it. See

.1-105.2, 105.4.

The submitted plans must "[i]ndicate the use and

occupancy for which the proposed work is intended."

.3(3).

Massachusetts has adopted the 2015 version of the International

Building Code (the "IBC 2015") with some amendments. See

.1. The IBC 2015 requires plans to employ use designation

groups. IBC 2015 § 302.1.1 These groups are indicated by an

alphanumeric code, such as A-2 or F-1. Id. Each use designation

carries with it "requirements that are applicable to . . . the

purposes for which the room or space will be occupied." Id.

Once construction is complete, the local building

commissioner must issue a second permit, called a certificate of

occupancy, before the structure can be used or occupied. 780 Mass.

The IBC 2015 is available at https://codes.iccsafe.org/ 1

content/IBC2015.

- 4 - Code Regs. 111.1. The certificate of occupancy sets out, based on

the use-designation code and compliance with other regulations,

such as the state plumbing code, the maximum allowable occupancy

of the space. Id. 111.2(8).

B.

St. Paul's is an Orthodox Christian monastic

organization. It established the Shrine of St. Nicholas to

practice and evangelize the Orthodox Christian faith.

On August 30, 2017, St. Paul's purchased property on

Pleasant Street in Marblehead (the "Property") to serve as its

monastic complex. The Property had a preexisting mixed-use

structure on it, which St. Paul's planned to redevelop.

St. Paul's retained an architectural firm, Siemasko +

Verbridge, to act as the registered design professional for the

project. Architects at that firm, including John Harden, a partner

at Siemasko + Verbridge who was primarily responsible for the

project, drew up the plans that St. Paul's would need to submit in

order to secure a building permit from the Town that would permit

construction to begin.

The plans that Siemasko + Verbridge prepared for St.

Paul's proposed converting the first floor of the existing

structure on the site in question into three separate areas. One

area would serve as a place in which monks could brew beer in

accord with Orthodox Christian tradition. A second area would be

- 5 - converted into a chapel for liturgical services. The last area

was to be converted into a "fellowship hall" that would host Bible

studies, prayer groups, religious education, communal religious

meals, and overflow from the chapel. St. Paul's also intended to

use the fellowship hall to serve the beer that the monks would

brew.

The use designation codes set forth in the plans

indicated that the use for the area designated to be the fellowship

hall was an A-2 use. A-2 uses "include[] assembly uses intended

for food and/or drink consumption including, but not limited to:

Banquet Halls[,] Casinos (gaming areas)[,] Nightclubs[,]

Restaurants, cafeterias and similar dining facilities (including

associated commercial kitchens)[, and] Taverns and bars." IBC

2015 § 303.3.

The plans indicated that the use for the area designated

to serve as the site of the chapel was an A-3 use. The IBC defines

an A-3 use to include "assembly uses intended for worship,

recreation or amusement and other assembly uses not classified

elsewhere in Group A." Id. § 303.4. The IBC lists several

examples of A-3 uses, including community halls, funeral parlors,

lecture halls, museums, pool and billiard parlors, and places of

religious worship. Id.

The plans indicated that the area designated to be the

brewery was an F-2 use. The IBC defines use group F-2 as "[l]ow-

- 6 - hazard factory industrial," meaning "uses that involve the

fabrication or manufacturing of noncombustible materials that

during finishing, packing or processing do not involve a

significant fire hazard." Id. § 306.3.

To secure a building permit for the site, Andrew Bushell,

who was the "protos" of St. Paul's and whom the parties refer to

as "Father Andrew", submitted the plans sometime in June or July

2018 to Richard Baldacci, who was at the time the Marblehead

Building Commissioner. Baldacci approved the plans, which

included the use designations described above, and issued a

building permit for the project on July 3, 2018.

The building permit listed Harden as the builder. Father

Andrew signed the permit as the owner/agent, although the printed

name was Harden's. The permit stated that the "proposed work"

included a "change [in] the use of the first floor from a retail

to an assembly, A-2," and the addition of "two bathrooms and [an]

A-2 hour fire rated ceiling, a bar area with taps and a dishwasher,

commercial kitchen and walk-in cooler and concrete slab."

In the Fall of 2018, Baldacci sent three letters -- one

each in September, October, and November -- that notified Father

Andrew that St. Paul's was "serving beer" on the premises of the

Shrine even though no certificate of occupancy had been issued for

the building. The second of these letters directed that the

plaintiffs cease and desist using the fellowship hall "as a Group

- 7 - A-2 Assembly" until an A-2 certificate of occupancy issued. The

third one notified Father Andrew that Baldacci had "issued a non-

criminal Building Code Violation" and a fine.

St. Paul's appealed the violation to the state Building

Code Appeals Board (the "BCAB"). The BCAB affirmed the violation.

In November 2018, Baldacci received an unsigned letter

that bore the architectural license and stamp of a principal at

Siemasko + Verbridge and that claimed that the Shrine was in

compliance with the state plumbing code. Baldacci requested that

Harden provide "a Construction Control Affidavit, following an

[i]nspection of the facility, or a code review addressing" various

requirements that had to be met prior to full occupancy.

Harden replied to Baldacci's email. Harden stated in

his reply that "there is some confusion regarding the change of

occupancy, the proposed project as drawn, and the request for a

certificate of occupancy." He added that he would review the

requests and give thought to the work required. He noted in

conclusion that "we are working hard with Father Andrew to address

your concerns" and "[w]e believe that everyone is trying to operate

here in good faith."

Harden left Siemasko + Verbridge in December 2018.

Thaddeus Siemasko, a principal at the firm, took over the project.

That month, Siemasko met with Baldacci and other town officials to

discuss topics related to the construction project at the Shrine.

- 8 - According to a summary of the meeting that Siemasko prepared, the

meeting participants agreed that the new use of the fellowship

hall would be an "A" use.

At this meeting, Baldacci restated his position that all

work authorized by the permit had to be completed before any beer

was served on site. Following the meeting, according to an email

Siemasko sent Baldacci the next day, Siemasko sent notes describing

the discussion to Father Andrew. Siemasko reported to Baldacci

that Father Andrew had called Siemasko to express his frustration

that Baldacci had not advocated for a higher occupancy of the first

floor based on a more generous interpretation of the state plumbing

code.

C.

On January 7, 2019, Siemasko + Verbridge informed

Baldacci that it had withdrawn from the project. That left the

project without "a Registered Design Professional to provide

construction control and a licensed professional to supervise the

project."

That being so, Baldacci notified Father Andrew that he

was suspending the building permit that had been issued. In

addition, Baldacci directed that construction cease and desist

"until such time that the building department receives a new

Initial Construction Control Affidavit from a Massachusetts

- 9 - Architect and a Licensed Construction Supervisor agrees to take

responsibility for the construction project."

On February 6, 2019, St. Paul's' attorney sent a letter

to Marblehead Town Counsel and copies of it to Baldacci and other

Town officials. The letter stated that "the proper

characterization of [the Property] for the purposes of the Building

Code is as a house of worship and as a monastery for purposes of

the Plumbing Code." The letter argued that a failure to recognize

that characterization "represents an impermissible judgment by the

Town and its officials about what constitutes religious exercise."

The letter noted that "work is ongoing and all of the rooms within

the first floor of 124 Pleasant Street including the chapel, entry

way, fellowship hall [sic] are routinely used for religious

purposes." The letter also requested "that the Town issue an

occupancy permit for 99 occupants at St. Nicholas."

Baldacci wrote a letter to St. Paul's attorney in

response. The letter stated that the submitted plans on which the

then-suspended building permit had been based had designated the

fellowship hall as an A-2 use under the IBC, rather than as a

monastery, which would have been an R-2 use. The letter stated as

well that Baldacci agreed with the A-2 designation indicated in

those plans.

In addition, the letter stated that a monastery use

designation -- as an R-2 use -- would "limit[] the occupants [of

- 10 - the structure] to members" of the monastery and that a certificate

of occupancy for 99 occupants would require the construction of at

least three toilets. Baldacci also noted that because there were

two existing toilets in the structure he could "issue a building

permit" for an A-3 use permitting up to 60 occupants in the

structure when certain emergency lighting and alarm systems were

"added to the entire building," but that St. Paul's could not use

that permit to serve food or alcohol to the public "until the

establishment of a Group A-2 occupancy, in accordance with" the

originally issued building permit.

On February 13, 2019, Ryan McShera, a principal at Red

Barn Architecture, emailed Baldacci and informed him that he would

"tak[e] over Construction Administration" for St. Paul's. McShera

provided a new construction control affidavit, which listed the

project title as "Monastery Renovation".

Baldacci responded nine days later. He wrote in an email

that the project was still "lacking a Construction Supervisor and

an Architect of record." In the email and an attached letter, he

expressed concern that he was "not certain that the building permit

accurately depicts the work proposed," and that it was not clear

to him whether St. Paul's was changing the scope of the work from

what had been indicated on the plans on which the building permit

was based.

- 11 - Specifically, Baldacci noted that McShera's affidavit

described the project title as "Monastery Renovation." Baldacci

thus requested a code review, including an analysis of the required

number of toilets under the plumbing code, along with a set of

shop drawings depicting the location of alarm systems. He wrote

that "[i]f the scope of work has changed or the occupancy requested

is not identical to that which was previously permitted, then the

building department will close [the original permit] and a new

application should follow."

McShera submitted the code review on May 1, 2019,

although Baldacci apparently missed his email until May 6. McShera

wrote that St. Paul's intended "to carry out the proposed work in

accordance with the previously submitted plans," and that its

"justification for this is based upon our code analysis." But,

the code review indicated that Siemasko + Verbridge's use

designations were incorrect and the building was a monastery that

should be classified as R-2. McShera indicated that "the two new

toilet rooms proposed" would be sufficient to meet plumbing code

requirements. McShera wrote that "[w]e are working to hire a sub-

contractor that will provide the requested shop drawings and

information."

Baldacci and McShera (and possibly Father Andrew) had a

telephone call on May 15. Baldacci memorialized that call in an

- 12 - email to McShera and Father Andrew the following day, and McShera

sent a response on May 31.

Baldacci's email recounted that Baldacci and McShera

agreed on the required number of fixtures, that a change to an R-2

use designation would require the installation of automatic fire

sprinklers, and that an A-3 use designation for the first floor

would accommodate "the requested maximum 200 occupants." Baldacci

also wrote that the parties agreed on the phone call "that, to

continue serving beer to the public, a use group A-2 designation

for the Fellowship Hall area will allow a maximum occupancy of up

to 100 without the requirement of providing a Fire Sprinkler

throughout the structure."

In addition, Baldacci conveyed in his email to McShera

a request from the Town Director of Public Health for new plans.

Finally, Baldacci stated that he would "release the building

permit" "[w]hen we are in agreement with the code review and I am

in receipt of a stamped plan from the health department, showing

acceptance of the Fellowship Hall fixtures and sinks, per 2013

Food Code," and when he received "an application made by a plumbing

and gas fitter and an electrician."

McShera wrote in response to Baldacci's email that

Baldacci had, during the call, stated that the Marblehead Town

Bylaws required an A-2 designation. McShera requested copies of

those bylaws and the dates they were adopted. He also wrote that

- 13 - the fellowship hall was not related to the type of uses provided

as examples of A-2 uses in the IBC, and that, at any rate, "we do

not see how this issue has an affect [sic] on lifting the

suspension of our building permit since the underlying and

previously permitted construction work has not changed."

With respect to the request to McShera from the Town's

Director of Public Health that Baldacci had conveyed in his email,

McShera responded that "the plan previously submitted has already

been reviewed and approved," and "[w]e are not proposing any

changes from what was originally approved for permit in regards to

the fixtures being installed (all will meet health code

requirements . . . )" (emphasis added). With respect to Baldacci's

statement in his email that he would not reinstate the permit,

McShera responded: "This is not what we discussed. You said you

would un-suspend the permit last time we spoke. Please lift the

suspension of the permit so that our carpenter may get underway

constructing the new walls in the space. We are working to sign

on licensed plumbers and electricians and will have them apply for

permits once they are under contract."

Following this email exchange, on June 11, Baldacci

wrote a letter to McShera in which he officially declined to

reinstate the building permit that had been suspended. His letter

stated that the appropriate use designation of the fellowship hall

was A-2 and that that designation was required by the IBC, which

- 14 - the state building code had adopted, rather than a Marblehead

Bylaw. Baldacci claimed that the IBC "does not provide any

provision for allowing a place of religious worship, a group A-3

occupancy, to have a permanent accessory provision for serving

beer to the public." Baldacci, citing IBC § 105.3, wrote that

"[u]ntil the use of the structure is agreed upon, I cannot lift

the suspension of the building permit." In response to McShera's

statement in the prior email that plans had already been approved

by the health department, Baldacci wrote that the health department

required "an updated set of plans describing the Fellowship Hall

bar area."

Baldacci concluded this letter by laying out two

conditions that St. Paul's would have to meet before he reinstated

the building permit that had been suspended. First, Baldacci

stated, St. Paul's would have to submit "an updated set of plans

describing the Fellowship bar area along with the health department

stamped and approved fixtures." Second, he stated, St. Paul's

would have to agree "to declare the use of the Fellowship Hall an

A-2 use group occupancy with a maximum occupancy of 100," or obtain

"a Variance from the Building Code of Appeals Board allowing an

accessory use to the group A-3, Place of Worship." As Baldacci

had done in each prior letter, he added a sentence describing St.

Paul's' right to appeal his decision to the BCAB.

- 15 - D.

St. Paul's filed the complaint in this case in the

District of Massachusetts on July 9, 2019, along with a motion for

preliminary injunctive relief. St. Paul's also appealed

Baldacci's refusal to reinstate the permit to the BCAB on July 25,

2019.

The BCAB held a hearing on August 20, 2019. At the

hearing, according to the BCAB decision, St. Paul's "represented

. . . that they want to complete the project fully in accordance

with the original plans that were approved as part of issuing the

building permit on July 3[, 2018]" (emphasis in original). St.

Paul's further represented "that it fully understands the risks

associated with completing the project in accordance with the

original plans, especially if, later, there are changes in Use

Group and/or change of occupancy which could require further

physical changes to the building (based on, among other things,

changes in occupant loads)." The BCAB noted that, "[a]s a result,

[St. Paul's] was clear; it will 'abide by the letter of the

existing [building] permit'" (alteration in original).

On September 24, 2019 the BCAB issued a conditional

order, to which the Town did not object. The condition regarding

health department approval mirrored the one Baldacci had set out

in his June 11 letter, except that, rather than requiring anything

specific regarding the use dispute, the BCAB's second condition

- 16 - stated only that "all submissions from Appellant to the Building

Department made after January 15, 2019 [would] be disregarded."

The Building Permit was deemed to be reinstated following the

issuance of the order.

Following the BCAB decision, St. Paul's withdrew its

motion for preliminary injunctive relief in this case. St. Paul's

then moved for partial summary judgment once discovery had been

completed. The defendants filed a cross-motion for summary

judgment. The District Court denied St. Paul's' motion and granted

the defendants' cross-motion. This appeal from the denial of St.

Paul's motion for summary judgment and the grant of the cross-

motion followed.

II.

RLUIPA prohibits local governments from "impos[ing] or

implement[ing] a land use regulation in a manner that imposes a

substantial burden on the religious exercise of a person, including

a religious assembly or institution," outside of narrow

circumstances. 42 U.S.C. § 2000cc(a)(1). A "land use regulation"

is defined as "a zoning or landmarking law, or the application of

such a law, that limits or restricts a claimant's use or

development of land (including a structure affixed to land), if

the claimant has" certain property interests "in the regulated

land." Id. § 2000cc-5(5).

- 17 - The District Court granted summary judgment to the

defendants on two independent grounds: (1) the defendants, in

refusing to reinstate the building permit, had not "impos[ed] or

implement[ed] a land use regulation" (emphasis added); and (2) if

the defendants had imposed "a land use regulation" by refusing to

reinstate that permit, no juror could reasonably find on this

record that the defendants' actions in doing so substantially

burdened the plaintiffs' religious exercise. St. Paul's Found. v.

Baldacci,

, 154, 157 (D. Mass. 2021). Because

we agree with the District Court's latter holding (if not all of

the reasoning underlying it), we do not address whether the Town

implemented "a land use regulation." See San Jose Christian Coll.

v. City of Morgan Hill,

, 1036 (9th Cir. 2004) (taking

this approach); Lin v. TipRanks, Ltd.,

(1st Cir.

2021) ("We . . . may affirm the District Court's ruling on any

ground manifest in the record.").

A.

We have previously identified several "factors that

courts have considered relevant when determining whether a

particular land use restriction imposes a substantial burden on a

particular religious organization." Roman Cath. Bishop of

Springfield v. City of Springfield,

(1st Cir.

2013). These include "whether the regulation at issue appears to

target a religion, religious practice, or members of a religious

- 18 - organization because of hostility to that religion itself";

"whether local regulators have subjected the religious

organization to a process that may appear neutral on its face but

in practice is designed to reach a predetermined outcome contrary

to the group's requests"; and "whether the land use restriction

was 'imposed on the religious institution arbitrarily,

capriciously, or unlawfully.'"

at 96-97 (quoting Westchester

Day Sch. v. Village of Mamaroneck,

(2d Cir.

2007)).

"[L]ocal regulators" may be found to have acted

arbitrarily and capriciously when they "disregard objective

criteria and instead act adversely to a religious organization

based on the objections of a small but influential group" or "base

their decisions on misunderstandings of legal principles." Id. at

97. Conduct also may be deemed to be arbitrary and capricious if

it is unlawful under state or local law, see Westchester Day Sch.,

, or where it "evince[s] animus or otherwise

suggests that the plaintiffs have been, are being, or will be (to

use a technical term of art) jerked around," Thai Meditation Ass'n

of Ala., Inc. v. City of Mobile,

(11th Cir.

2020).

St Paul's expressly states in its briefing to us that,

in seeking to overturn the District Court's grant of summary

judgment to the defendants with respect to the "substantial burden"

- 19 - issue, it is challenging the District Court's ruling only with

respect to the determination that no reasonable juror could find

that the defendants' refusal to reinstate the permit, and thus

their "prohibit[ion] of all construction at the Shrine" was

"arbitrary and capricious."2 St. Paul's presses this contention

2 St. Paul's does not argue that its religious exercise would have been substantially burdened merely by the Town's designation of the "fellowship hall" as an A-2 rather than an A-3 use. It argues only that the Town's refusal to permit any construction while this issue regarding the dispute over the A-2 versus the A-3 use designation was resolved was arbitrary and capricious and for that reason substantially burdened its religious exercise. Thus, although the record shows that St. Paul's' preferred outcome was not an A-2 use designation, we do not understand St. Paul's to be arguing on appeal that it was subject to a process that may have appeared neutral on its face but in practice was designed to reach a "predetermined outcome contrary to the group's requests," Roman Cath. Bishop of Springfield,

. We therefore treat any such argument as waived. See United States v. Zannino,

(1st Cir. 1990). St. Paul's also makes no argument that "the land use restriction was imposed on [it] . . . unlawfully," Roman Cath. Bishop of Springfield,

- 97, that it was targeted by a land use regulation because of hostility to Orthodox Christianity, or that some factor not yet defined in our case law demonstrates a substantial burden. Moreover, we emphasize that St. Paul's argues to us only that the defendants acted arbitrarily and capriciously by refusing to reinstate the permit in full, without at any point suggesting that the defendants so acted because they refused to reinstate the building permit in part, such that construction in at least the areas designated to be for the chapel and the brewery (but not the fellowship hall) could go forward under that partially reinstated permit. Thus, any such argument is also waived. Zannino,

. We do note, though, that there is nothing in the record to suggest that a request for a partial reinstatement was made by St. Paul's during the extensive back and forth over reinstatement with Baldacci. We note, too, that St. Paul's has not identified any authority under state law that would allow such a partial reinstatement.

- 20 - by pointing to the evidence that shows that Baldacci -- and thus

the Town -- refused to reinstate the original building permit

between February 13, 2019, when McShera submitted a new

construction control affidavit, and September 24, 2019, when the

permit was reinstated following the BCAB's conditional order.

Summary judgment is appropriate if "no 'reasonable fact-

finder, examining the evidence and drawing all reasonable

inferences helpful to the [plaintiffs],' could resolve the dispute

in the plaintiffs' favor." Hill v. Walsh,

(1st

Cir. 2018) (alteration in original) (citation omitted) (quoting

Cortés-Irizarry v. Corporación Insular de Seguros,

(1st Cir. 1997)). The question, then, is whether a reasonable

juror could find on this record that Baldacci's reason for refusing

to reinstate the building permit during that period was not a

permissible exercise of discretion and was instead an arbitrary

and capricious wielding of it. Reviewing de novo, see Laureano-

Quiñones v. Nadal-Carrión,

(1st Cir. 2020), for

the reasons that we will next explain, we conclude that no

reasonable juror could so find.

B.

There is no dispute that the plans that Baldacci had

approved when he had originally issued the building permit provided

for two "A" uses and one "F" use and for fixtures and

infrastructure appropriate to those use groups. Nor is there any

- 21 - dispute that, a week prior to McShera's submission of the new

construction control affidavit, an attorney for St. Paul's had

contacted Baldacci and said that the proper characterization of

the use was as a "monastery," which is an R-2 use and so not a use

that the plans had designated. In addition, there is no dispute

that McShera's Construction Control Affidavit, which was submitted

on February 13, called the project a "Monastery Renovation."

At least up through the May 15 phone call between

Baldacci and McShera, moreover, the record shows -- indisputably,

in our view -- that Baldacci declined to reinstate the permit

because of St. Paul's' seeming description of the project in

seeking the permit's reinstatement as involving an R-2 use when

the plans that had been submitted initially to secure the permit

for that project involved no such use. Indeed, St. Paul's

identifies no evidence that indicates that Baldacci refused to

reinstate the permit during this period for some reason other than

the concern that he had about this deviation from the submitted

plans in the request for the permit's reinstatement.

In that regard, we note that the record shows that

Baldacci cited this discrepancy between the originally permitted

plans and the proposed "monastery" use in his February 11 letter,

repeated this same concern in his first email to McShera on

February 22 by stating that he was "not certain that the building

permit accurately depicts the work proposed," and stated again in

- 22 - the letter attached to that email that "[i]f the scope of work has

changed or the occupancy requested is not identical to that which

was previously permitted, then the building department will close

[the original permit] and a new application should follow." In

fact, the undisputed record further shows that Baldacci explained

in the May 15 phone call (and St. Paul's agreed) that changing the

intended use of the structure to a "monastery" use would require

construction -- namely the installation of a sprinkler system

"throughout" "the entire structure" -- that was not provided for

in the approved plans.

St. Paul's does assert that in the letter that McShera

sent to Baldacci that contained the code review, McShera wrote

that "it is [St. Paul's] intent to carry out the proposed work in

accordance with the previously submitted plans." But, the record

shows that, even as McShera was so representing, he was also

informing Baldacci that he understood the project for which he was

seeking the reinstated permit to entail an R-2 use, which the plans

submitted to secure the permit in question did not show would be

involved and, as Baldacci explained, could not accommodate because

those plans did not provide for the necessary fire sprinkler

system.

Thus, the record indisputably shows that, at least up

until the May 15 phone call, Baldacci reasonably understood St.

Paul's to be seeking reinstatement of the permit while proposing

- 23 - to use the completed structure in a way that would require

construction -- the aforementioned installation of sprinkler

systems -- that Baldacci had never approved in initially granting

the permit. In consequence, we do not see how Baldacci's refusal

to reinstate the permit up until that time could be deemed

arbitrary and capricious by a reasonable factfinder, as it hardly

is unreasonable for a building commissioner to ensure that the

party seeking to reinstate a permit is not engaged in a bait-and-

switch. Nor does St. Paul's identify any authority to suggest

otherwise, as none of the precedents to which it points in support

of its position involves a refusal to reinstate a suspended permit

in which the request for reinstatement was made by a party

proposing construction for a project that would involve a use

nowhere reflected in the plans submitted to initially secure the

permit. See Roman Cath. Bishop of Springfield, 724 F.3d at 84–

87; Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City

of New Berlin,

(7th Cir. 2005); Westchester Day

Sch., 386 F.3d at 185–86; Mintz v. Roman Cath. Bishop of

Springfield,

(D. Mass. 2006); Layman

Lessons Church v. Metro. Gov't of Nashville/Davidson Cty., No. 18-

cv-0107,

, at *1, *3 (M.D. Tenn. Apr. 18, 2019).

The record does supportably show that during that May 15

phone call McShera and Baldacci apparently agreed that St. Paul's

would not pursue an R-2 use designation for any portion of the

- 24 - project. Thus, a reasonable factfinder could conclude that, at

least from that point on, there was no longer any basis for

Baldacci to be concerned that St. Paul's was pursuing a monastery

use in connection with the project. For that reason, St. Paul's

contends, a juror reasonably could find that it was arbitrary and

capricious for Baldacci to continue to decline to reinstate the

permit at least as of the end of the phone call on May 15.

But, St. Paul's does not dispute that, even after that

May 15 phone call, the record conclusively establishes that St.

Paul's did not "agree[] to declare the use of the Fellowship Hall

an A-2 use," which was the use designation in the original plans.

Nor does St. Paul's dispute that the reason that Baldacci gave for

declining to reinstate the suspended building permit from the

May 15 phone call was that the plaintiffs refused to clearly state

that they would follow the A-2 use designation and were suggesting

instead that the proper designation for the use was A-3.

St. Paul's nonetheless argues that a juror reasonably

could find that Baldacci's refusal to reinstate the permit was

arbitrary and capricious because the A-2 and A-3 use designations

do not require a different type of construction as an R-2 use

would. As St. Paul's sees it, because that is so, a juror

reasonably could find that Baldacci could have issued the permit

while the A-2/A-3 dispute was pending, thereby permitting the

construction to continue and leaving the dispute over the use

- 25 - designation to be resolved after construction had been completed.

In St. Paul's' view, therefore, the record reasonably supports the

conclusion that Baldacci's refusal to reinstate the permit without

resolving the A-2/A-3 dispute first was "a delaying game," Roman

Cath. Bishop of Springfield,

, intended to force St.

Paul's to agree to an A-3 use before any construction could resume

and thus was arbitrary and capricious.

But, St. Paul's was not seeking a new building permit

based on an A-3 use. Indeed, St. Paul's was never outright denied

a building permit. It was seeking the reinstatement of a building

permit that already had been issued based on plans designating the

area in question as an A-2 use only and that had then been suspended

for reasons that St. Paul's does not dispute were permissible.

Thus, the decision that Baldacci had to make -- even after the

May 15 phone call -- was whether to reinstate a suspended building

permit that originally had been based on plans that showed one use

designation when the party seeking that permit's reinstatement was

not willing to confirm that same use designation applied to the

project for which it was seeking the reinstated permit.

So, even after the May 15 phone call, we do not see what

basis there would be for a juror to conclude that it was arbitrary

and capricious of Baldacci not to reinstate the permit. After

all, St. Paul's does not dispute that if it submitted new plans

for a new permit, it would be required to designate a use code for

- 26 - the area in question according to its planned use of that area.

Thus, if, as St. Paul's was seeming to represent to Baldacci, it

was planning an A-3 use, the plans that it would have needed to

submit to secure a new building permit presumably would have to

have contained that use designation and not the A-2 use designation

reflected in the plans that it submitted in originally securing

the permit. Yet, at no point did St. Paul's state clearly --

despite Baldacci's repeated requests that it do so -- that it

understood that the permit that it was seeking to have reinstated

was for only an A-2 and not an A-3 use and so would allow only

that use if the requested reinstatement of it were granted.

To be sure, St. Paul's claims in its briefs that it

"repeatedly told [the Town] that [St. Paul's] would scrupulously

adhere to the building permit's limits." But, that carefully

worded assertion fails to confront the fact that the record

indisputably shows that throughout this period St. Paul's was

unwilling to confirm that the use designation in the plans

underlying the original permit still applied, just as that

assertion fails to confront the fact that the record indisputably

shows that it was St. Paul's unwillingness on that score that led

Baldacci to refuse to reinstate the permit.

It is true that the BCAB did ultimately order the permit

to be reinstated. But, it did so conditionally, and only after

St. Paul's did precisely what the record indisputably shows that

- 27 - it had not done over the long back and forth over reinstatement

with Baldacci: made "clear" that "it will 'abide by the letter of

the existing [building] permit'" (alteration in original). Thus,

we do not see how a reasonable juror could find that St. Paul's

was being "jerked around," Thai Meditation Ass'n,

.

If anything, then, the evidence shows that St. Paul's was more

worthy of having that description attached to its conduct, given

that it was willing to state before the BCAB what the record shows

it had not been willing to state throughout the negotiations with

Baldacci.

Nor does St. Paul's identify any authority in

Massachusetts law -- and we are not aware of any -- that indicates

that it is unreasonable under Massachusetts law for a building

commissioner to require that a party seeking the reinstatement of

a suspended building permit to confirm the use designations in the

plans that it had submitted to secure that permit initially, unless

the previously unapproved use would require a new type of

previously unapproved construction. Indeed, the relevant

provisions of state and local law would appear to support the

conclusion that it is perfectly reasonable for a building

commissioner to require such confirmation, given that permits may

only be issued based on the plans submitted to secure them and

that the plans must include use designations. See 780 Code Mass.

Regs. 105.3 ("To obtain a permit, the owner or authorized agent

- 28 - shall file a permit application . . . . Such applications shall:

. . . Indicate the use and occupancy for which the proposed work

is intended."); Marblehead, Mass., Bylaws § 30-9(A) ("Every person

intending to . . . make additions or alterations in any building

. . . shall before commencing the same . . . file an application

for a permit with the Building Commissioner, on forms furnished by

him which shall state the . . . purpose for which the building is

to be used."); id. § 200-2(E) ("If subsequent to the issuance of

a special permit, variance, or building permit, changes in approved

. . . use are desired, the applicant shall inform the Building

Commissioner in writing of these changes and his written approval

must be obtained in advance of any work commencing."). So, this

is not a case in which there is a record from which a juror could

find that the defendants in declining to reinstate the permit prior

to the BCAB ruling were acting out of step with their legal

obligations, see Westchester Day Sch.,

.

Consistent with this conclusion, moreover, Baldacci was

hardly obscure about his concerns or about the ways that St. Paul's

could seek (if not ultimately obtain) a permit based on the use

designation that it thought appropriate if it no longer thought

the ones contained in the plans used to secure the permit in

question were correct. To that point, the record establishes that

Baldacci informed St. Paul's that it could seek a new permit,

though he later implied that he would not approve an application

- 29 - for it if the plans St. Paul's submitted were the same save for

designating the use for the area of the project in question as an

A-3 use precisely because he disagreed that an A-3 use designation

could apply to the proposed use of that area. In addition, he

made clear to St. Paul's that it could appeal any decision that he

made with respect to his decision either not to reinstate the

permit or to deny a new one to the BCAB. Thus, we do not see what,

other than speculation, would allow a reasonable juror to find on

this record that Baldacci's reason for declining to reinstate the

permit was a desire to "gain leverage" through a "delaying game"

rather than the reason that he repeatedly gave -- that St. Paul's

was not willing to make clear that the use designations in the

plans that had been submitted to secure the permit at issue were

the ones that it was relying on in seeking to have that permit

reinstated following its suspension. See Brader v. Biogen Inc.,

(1st Cir. 2020) (noting that, to defeat a motion

for summary judgment, a "nonmovant cannot rely on conclusory

allegations, improbable inferences, and unsupported speculation"

(internal quotation omitted)).

St. Paul's does contend that the various precedents

cited above demonstrate that a juror reasonably could find on this

record that the defendants' conduct was arbitrary and capricious

at least after the May 15 call. But, we do not see how any of

them do so, because, as we have already explained, none of them

- 30 - involves a request to reinstate a permit that had been previously

issued and suspended for a valid reason, let alone a request to do

so in a circumstance in which Massachusetts law applied. See Roman

Cath. Bishop of Springfield, 724 F.3d at 84–87; Sts. Constantine

& Helen Greek Orthodox Church,

; Westchester Day

Sc., 386 F.3d at 185–86; Mintz,

; Layman

Lessons Church,

, at *1, *3. Accordingly, here,

too, St. Paul's fails to advance a basis for reversing the grant

of summary judgment.

III.

Affirmed.

- 31 -