Full opinion text
MEMORANDUM OF DECISION GARRITY, District Judge. In this constitutional tort case, plaintiff Matthew A. Welch d/b/a Jakmaw Associates (“Welch”) alleges that defendants Town of Easton and various Town officials violated his rights to petition for redress of grievances, to free speech, and to procedural and substantive due process. Plaintiff is a developer; defendants Jeffrey Tufts, Patricia Hunt, William Hardin, Fred Clark and Daniel Churchill are present and former Easton Selectmen; defendant Kevin Paicos is Easton’s Town Administrator. This action arose when plaintiff sought to expand a development within Easton, but could proceed only with approval from the Town’s Board of Selectmen. Plaintiffs allegations center on his attempts to appear before the Selectmen to discuss this development, and what he calls their impermissible refusal to allow this appearance. Arguing that Paicos and the Selectmen have worked together to thwart his desired expansion, and that Ea-ston is liable for the actions of these officials, plaintiff seeks an injunction allowing him to build, and compensation for his alleged damages already sustained. After exhaustive and often contentious discovery, defendants Paicos, Tufts, Hunt, Hardin, Churchill and the Town have moved for summary judgment. We grant this motion in part, and deny it in part. I. BACKGROUND A. Massachusetts Law At least since the Second World War, our nation has faced the challenge of building homes that its poorer citizens can afford. See generally Affordable Housing and Urban Redevelopment in the United States (Willem van Vhet ed.1997). To build such affordable housing, of course, a planner or developer must locate a suitable construction site. There lies a rub: almost inevitably, wherever a development is planned, local residents will resist the construction of affordable homes. See Advisory Commission on Regulatory Barriers to Affordable Housing, Department of Housing and Urban Development, “Not In My Back Yard”: Removing Barriers to Affordable Housing (1991). Many suburban and rural communities have fiercely opposed construction of local affordable housing. See, e.g., Spallone v. United States, 493 U.S. 265, 110 S.Ct. 625, 107 L.Ed.2d 644 (1990). Such opposition may not be overt or even conscious: municipal zoning, permitting, and construction policies can frustrate or delay affordable housing, whether or not local authorities adopted them with such intent. See Paul K. Stock-man, Note, Anti-Snob Zoning in Massachusetts: Assessing One Attempt at Opening the Suburbs to Affordable Housing, 78 Va. L.Rev. 535, 539-42 (1992). For these as well as other reasons, the national supply of affordable housing remains well below demand. See id. at 535-37. Massachusetts first addressed this situation in 1969, when its legislature passed “An Act providing for the construction of low or moderate income housing in cities and towns in which local restrictions hamper such construction.” Mass. Acts 1969, ch. 774 (“the Act”) (codified as amended at Mass. Gen. Laws ch. 40B, §§ 20-23 and ch. 23B, § 5A (West 1994)). The Act, sometimes known as the ‘anti-snob zoning act/ was enacted “to provide expeditious relief from exclusionary local zooming bylaws and practices which might inhibit the construction of low and moderate income housing in the Commonwealth’s cities and towns.” Zoning Bd. of Appeals of Greenfield v. Housing Appeals Comm., 15 Mass.App.Ct. 553, 555, 446 N.E.2d 748 (1983) (Greaney, J.) (citing Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 353-54, 294 N.E.2d 393 (1973)). Under the Act, developers of subsidized housing follow a single, simple process. They need not seek the myriad permits from various agencies normally required for substantial construction; the Act thus shields these developers from seriatim municipal delays. Instead, qualified developers file only one application, addressed to the local Zoning Board of Appeals, or ZBA. Within thirty days of its filing, the ZBA must hold a public hearing on this application. See Mass. Gen. Laws ch. 40B, § 21. Within forty days of the hearing, after considering comments from affected local agencies, the ZBA must decide on the application’s merit. If the ZBA approves the application, it must immediately grant an extraordinary approval called a comprehensive permit. The comprehensive permit supersedes most local procedures and allows construction to commence. If the ZBA denies the comprehensive permit, or grants it only “with such conditions and requirements as to make the building or operation of [the] housing uneconomic,” the developer can appeal to the Housing Appeals Committee, or HAC. The HAC’s review “shall be limited to the issue of whether, in the case of the denial of an application, the decision of the [ZBA] was reasonable and consistent with local needs.” If the HAC finds that the ZBA’s denial was reasonable and consistent with local needs, it will affirm the ZBA’s denial of the comprehensive permit. Should the HAC find otherwise, it must reverse the ZBA and issue the permit. To qualify for the Act’s simplified process and procedural protections, a developer cannot simply decide to build inexpensive homes. The Act oversees only permit applications for “housing subsidized by the federal or state government under any program to assist the construction of low or moderate income housing as defined in the applicable federal or state statute.” Mass. Gen. Laws ch. 40B, § 20. As a result, the scope of the Act’s protection turns on the meaning of “subsidized,” which the Act does not itself define. In decisions interpreting this term, ZBAs and the HAC adopted a narrow construction, reading it “to mean financial subsidies only.” Mass. Regs.Code tit. 760, § 45.01. Under this definition, “cities and towns ... had little incentive to undertake housing initiatives which [did] not require direct state or federal financial assistance, but which in other respects [were] within the intent of the statute.” Id. To bring otherwise-unsubsidized programs under the Act, and thus to provide this incentive, the Executive Office of Communities and Development (“EOCD”) developed the Local Initiative Program (“LIP”). Under the LIP, the EOCD provides “subsidy, in the form of technical assistance, to each [development] approved as part of the Local Initiative Program.” This assistance constitutes the subsidy required by the Act, and thus brings a development “within the comprehensive permit process” of the Act. Id. § 45.01. To receive such technical assistance, a developer must meet the somewhat complicated LIP qualification criteria: The Department shall, upon application from the Chief Elected Official of a city or town, certify that a housing development is a valid Comprehensive Permit Project if such development meets the following minimum requirements: (1) at least 25% of the units in such development will be Low and Moderate Income Units; (2) the developer will execute a Regulatory Agreement; (3) the units will be subject to Use Restrictions for the longest period of time allowed by law; (4) the developer or owners of the project will implement an affirmative fair marketing plan in a form approved or required by the Department; and (5) the project has the written support, where applicable, of the Local Housing Partnership. Mass. Regs.Code tit. 760, § 45.04 (West 1999). Once approved by the EOCD under the LIP regulations, a project would qualify for, and eventually move through, the application process defined by the Act. To receive a comprehensive permit, a developer of affordable housing receiving no direct subsidy must therefore follow a mul-tistep procedure along these lines: (1) The developer selects a suitable site and formulates a development plan meeting the LIP criteria. (2) The developer secures the written support of the local housing partnership. (3) The developer signs a regulatory agreement with the EOCD and the municipality. (4) The municipality’s chief elected official submits a LIP application to the EOCD. (5) The EOCD approves this application and authorizes technical subsidy, qualifying the development under the Act. (6) The developer submits an application to the ZBA, asking for a comprehensive permit. (7) The ZBA or HAC grants this application. (8) Using the resulting comprehensive permit, the developer builds the project. In the matter before us, plaintiff successfully negotiated this bureaucratic labyrinth, apparently to the satisfaction of most parties involved. Trouble soon arose, however, when Welch sought to enlarge his development beyond the permitted size, and thus to modify his outstanding comprehensive permit. The Act does not contemplate modifications to already issued comprehensive permits. Similarly, the regulations governing LIP projects do not discuss modifications proposed after a project is approved. Massachusetts regulations do, however, provide a general mechanism for reviewing changes to comprehensive permits. See Mass. Regs.Code tit. 760, § 31.03(3). This procedure applies to comprehensive permit projects in general, not LIP projects in particular. Under § 31.03(3), a comprehensive permit holder wishing to modify his permit must submit the proposed modification to the ZBA. Within 20 days, the ZBA must classify the proposal as a substantial or insubstantial change. See § 31.03(3)(a). If the ZBA finds the proposal to be insubstantial, or fails to make a timely decision, the comprehensive permit is deemed modified. See § 31.03(3)(b). If the ZBA considers the change substantial, however, it must hold a hearing on the change, exactly as for a new permit, but considering only “[o]nly the changes in the [permit] or aspects of the [permit] affected thereby.” § 31.03(3)(c). The ZBA’s determination of substantiality or lack thereof, as well as its eventual findings on the merits of a substantial modification, can be appealed to the HAC. See § 31.03(3)(c), (d). LIP projects such as plaintiffs development, however, are governed not only by the Act and its regulations, but also by the EOCD’s rules for LIP projects. These are set forth in the “Local Initiative Program Guidelines,” a public document published by the EOCD. These guidelines contemplate modifications to LIP projects made “during the permitting process,” but do not discuss changes made after the comprehensive permit is issued: All Comprehensive Permit Projects undertaken through the Local Initiative Program must ... have the written endorsement of the chief elected official No further evidence of local support is required once a Comprehensive Permit Project has been approved by EOCD. The only exception is for projects which undergo substantial changes during the permitting process that render them inconsistent with the conditions of prior state and local approval. Pl.’s Ex. 45. When plaintiff sought to expand his development, thus, neither the Act, the regulations, nor the administrative guidelines explicitly stated what process a developer should use to modify a comprehensive permit granted to a LIP program. During most of the events leading up to this action, plaintiff contended that § 31.03(3) governed any modifications to his comprehensive permit. Thus, he concluded, he could modify his project with approval from the EHP and ZBA, without going to any other board. The EOCD, in contrast, contended that § 31.03(3) did not control, and that plaintiff must obtain EOCD approval before proceeding to the ZBA. The EOCD relied on the LIP regulations in Mass. Regs. Code tit. 760, ch. 45, the Local Initiative Program Guidelines, and the regulatory agreement governing plaintiffs development, which required EOCD approval of all changes. As noted above, the EOCD required “further evidence of local support” by the Selectmen only “for projects which undergo substantial changes.” The Town of Easton took a third view. Easton was a co-applicant for plaintiffs original LIP approval, the Town argued, and such municipal sponsorship was required by Mass. Regs. Code tit. 760, § 45.04. As a result, the Town concluded, plaintiff could not make any change to his development, no matter how insubstantial, without the approval of the Selectmen. Only with this approval could plaintiff proceed before the EOCD and, eventually, the ZBA. Thus the developer, the Town, and the agency held different conceptions of the procedure necessary to modify a LIP development subject to a comprehensive permit. The Massachusetts courts eventually resolved this dispute, ruling largely in favor of the EOCD. In this action, plaintiff presses constitutional claims related to, but separate from, this state litigation. As we must on summary judgment, we present the facts in the light most favorable to plaintiff, the non-moving party. See Rodriguen-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15, 19 (1st Cir.1999). B. Facts This action centers on Easton Country Estates (“the Estates”), plaintiffs development in Easton, Massachusetts. It also involves several long-running and sometimes vociferous disputes between plaintiff, an Easton resident, and defendant Town officials. Welch contends, in part, that these disputes improperly predisposed defendants against his development, violating his constitutional rights. Because Welch’s claims implicate the influence these quarrels had on the Estates’ progress through municipal channels, and thus on the confluence of several chains of events, we present the relevant facts chronologically, the better to plumb their alleged interaction. The roots of this action trace at least to 1990, when Michael Sites became a member of the Easton Conservation Commission. Sites had a skeleton in his closet: in 1987 he had resigned, in lieu of disbarment, from the practice of law. In so doing, he acknowledged transgressions including conversion of client funds, disclosed his addiction to alcohol over the period of his misdeeds, and described his subsequent treatment for alcoholism. The Supreme Judicial Court accepted Sites’ resignation. Michael G. Sites, No. 84-24BD (Mass. Aug. 2,1989). Two years after Sites joined the Conservation Commission, in a letter to the Selectmen dated October 19, 1992, plaintiff expressed his “outrage! ] that Mr. Sites [had] been appointed to a position of trust and sensitive nature within the Town of Easton,” despite his prior offenses. Two days later, Welch wrote directly to Paicos, as Town Administrator, again arguing that Sites should not occupy a position of trust. Neither Paicos nor the Selectmen took action against Sites in response to these letters, nor did Welch pursue the issue with defendants. In 1994, Sites became Chairman of the Conservation Commission. During this period, plaintiff was also designing the Estates. Welch planned the Estates as a LIP development; it could not proceed without approval from the Selectmen, acting as Easton’s chief elected official. Plaintiff originally hoped the Estates would comprise around 130 units, one-quarter of which would be priced below market. When the Selectmen criticized this proposal as too large, plaintiff scaled the Estates back to 76 units, with 19 priced below market. See Welch v. Executive Office of Communities and Development, 44 Mass.App.Ct. 1103, 688 N.E.2d 475 (table), No. 96-P-447, slip op. at 1-3 (Dec. 2, 1997) [hereinafter Welch v. EOCD ], review denied, 427 Mass. 1101, 692 N.E.2d 963 (1998). On February 8, 1993, Ken Love and John Reach presented the revised, 76-unit plan to the Selectmen. Though the meeting’s minutes are not explicit/ Love apparently represented the EHP, while Reach appeared for Jakmaw Associates. The EHP had endorsed the project, Love explained, subject to further review by a state consultant. After this presentation, the Selectmen decided to reconvene later, to hear more detailed information on the project. Before this second hearing took place, plaintiff renewed his investigation into Ea-ston officials, newly focused on defendant Paieos. On February 22,1993, through his attorney Sheldon Drucker, plaintiff requested, under Massachusetts’ public-records law, Paieos’ resume, his cover letter applying for employment as Town Administrator, minutes of certain executive sessions of the Selectmen, and Article 10-8 of the Easton By-Laws, “pertaining to Military Leave.” On March 3, Paieos wrote to Welch, informing him that his public-records request had been referred to Town Counsel. Paieos went on to describe a phone conversation with Welch: In our conversation you made it perfectly clear that you intended to make a “reprisal” against me for my actions regarding the processing of your allegations against Conservation Commission member Michael Sites. You have indicated that such reprisal is taken against me in my official capacity as Town Administrator. Your manner throughout this conversation was overbearing and coercive. You have made clear your intentions to conduct some sort of smear campaign against me, as a reprisal for my various official actions as Town Administrator. This letter is to advise you of my intent to seek the assistance of private counsel, as well as law enforcement authorities including the District Attorney and Attorney General. Your activities as described in this letter are yet a further example of your attempt to coerce Easton public officials to yield to your will in an inappropriate manner. The activities you have begun with members of the Easton Conservation Commission, and now with me[,] are repugnant to the proper democratic functioning of local government. Pl.’s Ex. 13. Neither Paieos nor the Town gave Welch the documents he had requested. As far as the record shows, plaintiff did not immediately renew or follow up on this request. The Selectmen’s second hearing on the Estates took place as scheduled, on March 23, 1993. The meeting convened in a larger room for a renewed presentation and public discussion of the Estates proposal, again describing a 76-unit development. Paieos was present. After a question-and-answer period, the Selectmen voted, 3-2, to approve the project. Defendants Clark and Hardin, along with then-Selectman Kathleen McDonald, supported the resolution; defendants Tufts and Hunt opposed. On April 7, 1993, plaintiff filed papers with the EOCD, requesting LIP status for the Estates. Exactly as presented to the Selectmen, the application proposed building 76 homes, with 19 priced below market. The below-market units would have three bedrooms, cost $80,500, and be available only to households earning $33,000 or less annually. Fifteen of the nineteen would be reserved for Easton residents or town employees. The market-rate units would sell from $125,000 to $165,000. On April 21, the EOCD confirmed receipt of this application, but noted that the papers filed were incomplete: While the required community support letter was included in the application, the community information -sheet is missing from the application submitted to EOCD. We cann not [sic] begin the application review process until the application is complete. The missing information is labeled page 3 in the application form and should be filled out with all applicable local official information and signatures. This section should in-elude a dated signature of the chief elected official confirming review of the attached application. Pl.’s Ex. 4; Defs.’ Ex. A. Plaintiff presumably submitted the required information, for on June 3, 1993, the EOCD approved the application and conferred LIP status on the Estates. This approval included several conditions. First, “the specifics of this project must be formalized in a regulatory agreement signed by the municipality, the project sponsor, and EOCD prior to starting construction.” In addition, several “conditions ... must be met prior to final EOCD approval,” including: 2. EOCD must approve any changes to the application we have just reviewed and approved, including but not limited to alterations in unit mix, sales price, development team, unit design or site plan. As the Easton Country Estates local initiative homes near completion of construction, EOCD staff will visit the site to ensure that the development meets program guidelines. Defs.’ Ex. B. The EOCD’s approval qualified the Estates as subsidized housing under the Act, allowing plaintiff to seek a comprehensive permit for the development. Plaintiff promptly sought a comprehensive permit from the Easton ZBA. On July 14, 1993, the ZBA held the required public hearing. No one spoke against plaintiffs request, and the ZBA unanimously granted it. The approval was conditioned upon, inter alia, “[compliance with all conditions and requirements of EOCD approval as stated in EOCD letter dated June 3, 1993.” Defs.’ Ex. C. The approval waived several Easton regulations, but noted that “[a]ll Town of Easton and Commonwealth of Massachusetts rules, regulations and zoning by-laws shall be complied with except those modified by this decision.” Id. On November 17, 1993, plaintiff, the EOCD, and the Town signed the regulatory agreement mentioned in the EOCD’s approval letter and required by Mass. Regs.Code tit. 760, § 45.04. The agreement governed the design of the affordable homes, including requirements regarding their size, construction, and pricing, and requiring deed restrictions designed to prevent their resale at market rates. The agreement also restricted plaintiffs profit to 20% of his total development costs. It allowed amendments only if “in writing and executed by all of the parties” to the agreement. Defs.’ Ex. D. Several months passed without relevant event. Then, in early 1994, plaintiff sought to modify his plan for the Estates (“First Modification”). If allowed, the First Modification would increase the developed area by 3.2 acres, reduce the total units from 76 to 75, and increase the number of below-market units from 19 to 21. In proposing this modification, plaintiff did not seek approval from the Selectmen or EOCD. Following his interpretation of Massachusetts law, plaintiff sought approval only from the EHP and the ZBA. The EHP endorsed the First Modification on January 24, 1994. After a hearing on March 2, 1994, the ZBA approved the First Modification in a decision filed with the Town Clerk on March 9, 1994. Under plaintiffs conception of governing Massachusetts law, he could now implement the modification. Under the Town’s or the EOCD’s, he could not. Shortly thereafter, plaintiff again filed a public-records request seeking information on Paicos’ employment background. On March 14, 1994, Welch wrote Paicos to request “[a]ny and all documents submitted by [Paicos] in his application for employment as ... Town Administrator.” Paicos declined to tender any responsive documents. Later that day, the Selectmen held a regularly scheduled meeting. The topic of the Estates was on the agenda. Plaintiff was present. The Selectmen addressed the Estates, however, well after the time scheduled for its discussion had passed and plaintiff, had left the meeting. No party submitted evidence showing the substance of this discussion. The Selectmen took no recorded action. On March 18, 1994, nine days after the ZBA filed its approval of the First Modification and four days after plaintiff again requested Paicos’ employment documents, the Town reacted to the First Modification. In a memorandum sent to Easton permitting authorities and copied to Welch and the EOCD, Paicos ordered: As you may be aware the developer of the comprehensive permit housing project off Eastman Street [the Estates] recently proposed substantial changes to his project. The Board of Appeals has approved these changes. The Board of Selectmen, as one of the original permitting/review agencies[,] has asked the Executive Office of Communities and Development to determine if the Board may also review those proposed changes. Pending some resolution of this issue, no town agency may issue any permit, license or permission of any time. Pl.’s Ex. 28; Defs.’ Ex. E. Presumably alerted by the Paicos memorandum, the EOCD wrote a stern rebuke to Welch. In a letter dated March 23, 1994, the EOCD informed plaintiff of its legal position, essentially, that he would have to repeat the LIP process before he could implement the First Modification: It has come to our attention ... that you may be considering modifications to the approved development plan for this project. I would like to take this opportunity to remind you of condition 2 of the June 3, 1993 approval letter for this project which requires review and approval of any development plan changes by EOCD. Should you choose to modify the approved development plan, please submit documentation of all aspects of the proposed change to this office accompanied with evidence of support of the local housing partnership and the chief elected official. Defs.’ Ex. F. Meanwhile, pursuant to the Paicos memorandum, the Town denied the Estates at least one municipal permit. On April 4, 1994, Welch filed suit in Bristol County Superior Court, seeking declaratory relief and an order restraining the permit moratorium created by the Pai-cos communique. Shortly thereafter, in a letter dated April 6, 1994, the Selectmen advised plaintiff that “approval of the Board of Selectmen, as municipal sponsor, of proposed modifications is required under the Local Initiative Program.” Defs.’ Ex. H. The letter invited Welch to submit an application to the Selectmen “for approval of municipal sponsor ... regarding your proposed modifications.” Id. Five days after the Selectmen’s letter, the court enjoined interference with permit applications made under the original comprehensive permit, but allowed the Town to block permits affected by the First Modification. See Welch v. Paicos, No. C94-00504 (Super.Ct. Apr. 11, 1994). The court further required that Welch “verify ... that each permit, license or permission relates to his original Comprehensive Permit project ... and not to any changes in the Comprehensive Permit project.” Id. No party states that others violated this order; there is no record of an appeal. On the day of the court’s decision, plaintiff made another public-records request. In a letter to the Selectmen dated April 11, 1994, Welch identified an article in the Brockton Enterprise describing the Selectmen’s investigation into allegations Welch had previously made. The story reported the Selectmen’s conclusion that Welch’s allegations were untrue. In his letter, Plaintiff requested “[a]ny and all documents” regarding these investigations and conclusions. Meanwhile, plaintiff filed a petition with the Commonwealth’s Supervisor of Public Records, challenging Paicos’ refusal to disclose his employment documents. On May 3, 1994, the Supervisor ordered Paicos to disclose a redacted copy of his resume, omitting descriptions of prior employment, specific college courses taken and specific grades received. Paicos did not obey this order. On May 6, 1994, plaintiff again filed suit in Bristol County Superior Court, this time seeking to compel production of the documents listed by his three outstanding records requests- — two for papers relating to Paicos’ hiring, and one for records relating to the Selectmen’s consideration of his allegations. The suit named, in their official capacities, defendants Paicos, Tufts, Hunt, Hardin, and Clark, as well as then-Selectman Kathleen McDonald. The officials defended their withholding of these documents under exceptions to the public records law protecting confidential personnel information and maintaining the attorney-client privilege. See Welch v. Paicos, No. 94-00717, slip op. at 1-2 (Super. Ct. June 30, 1994) (Travers, J.) [hereinafter Welch Public Records Case I ]. One month later, the parties settled one of their disputes. Plaintiff, the Town, and the EOCD reached"an agreement allowing Welch to implement the First Modification. The Selectmen approved this modification on June 6, 1994, and the EOCD approved it on June 30. On the same day, the Bristol Superior Court denied Welch’s request for records relating to discussion of his allegations, and ordered in camera review of records relating to Paicos’ hiring. See Welch Public Records Case I, slip op. at 5-6. The Selectmen tendered the requested documents to the court. On July 27, 1994, Welch and the EOCD signed an amendment to their regulatory agreement. The amendment codified the parties’ agreement to allow the First Modification, and provided that “[a]ny further modifications to the Project, including but not limited to alterations in the unit mix, sales price, development team, unit design or site plan must be approved by EOCD.” Within a few months, plaintiff again proposed a modification to the comprehensive permit governing the Estates. The Second Modification would add 62 single-family units, including 17 below-market units, to the existing 75-unit development. The Estates would expand onto 44 acres of adjacent property also owned by Welch. If the Second Modification was approved, the Estates would include 137 units, including 38 priced below market; it would thus approximate the plaintiffs original proposal, later reduced at the Town’s request. At a meeting on September 21, 1994, the EHP approved the Second Modification, adding a few immaterial provisos. Two weeks later, the Bristol court completed its in camera review and ruled on the remaining public-records requests. Welch v. Paicos, No. 94-00717, slip op. at 2 (Super.Ct. Oct. 6, 1994) (Tierney, J.) [hereinafter Welch Public Records Case II], The court ordered disclosure of Paieos’ cover letter and resume, except for his grade-point average, see id. at 5, and minutes of executive sessions regarding Pai-cos’ military leave payment. See id. at 6-7. The defendants disclosed the documents and did not appeal. On the following day, October 7, 1994, plaintiff asked the ZBA to approve the Second Modification. Despite the requirement of prior EOCD approval expressed in the EOCD’s approval letter and the original regulatory agreement, and reiterated in Item 7 of the amended agreement, plaintiff persisted in his interpretation of Massachusetts law, and went directly to the ZBA without clearance from the EOCD. On October 20, the ZBA found that the Second Modification constituted a substantial change from the outstanding permit, see Mass. Regs. Code tit. 760, § 31.03(3)(a), and scheduled the hearing required to consider any substantial change. See id. § 31.03(3)(c); see generally supra at 144-45. On October 26, 1994, plaintiff wrote the Selectmen, asking “to be put on the agenda of your Board to discuss Easton Country Estates.” On November 1, 1994, the ZBA held a hearing on the Second Modification, which it took under advisement. On November 7,1994, in a letter signed by defendant Hunt, the Selectmen responded to plaintiff as follows: In response to your letter of October 26, 1994, the Board of Selectmen understands that you are interested in making a substantial modification to your LIP project on Eastman Street [the Estates]. When you have submitted your application for the approval of this Board in accordance with the regulations, we will process your request for a hearing. Pl.’s Ex. 36. Plaintiff responded with an angry letter dated November 21, 1994. In this letter, Welch again asked for agenda time to discuss expansion of the Estates. Also on November 21, 1994, the ZBA declined to allow the Second Modification. The ZBA found, 4-1, that this modification was equivalent to “a new project by virtue of [its] size, scope, and potential impact on the Town.” Defs.’ Ex. K. The ZBA ruled that plaintiff had no standing to seek a comprehensive permit for a new LIP project, whether constructive or actual, without the prior approval of the Selectmen and EOCD. The ZBA thus unanimously denied the application “on the ground of lack of jurisdiction to render a decision.” Id. Welch appealed to the HAC, arguing that once a comprehensive permit is issued, the ■ ZBA “alone has the power to modify” it, and that the “EOCD’s role is limited to monitoring the developer’s profit margins and the level of participation in the project by low and moderate income persons.” Welch v. EOCD at 7. On February 28, 1995, the HAC disagreed with plaintiff and affirmed the ZBA’s denial; plaintiff did not seek judicial review. See id. Following this decision, Welch applied for a new comprehensive permit allowing development of the 44-acre parcel adjacent to the Estates. In this filing, plaintiff sought not a modification to his existing permit, but an unrelated permit for a separate development called Chestnut Estates. The Chestnut Estates would comprise 71 units, including 13 below market, built immediately adjacent to Easton Country Estates. Plaintiff filed this petition without sponsorship from the EOCD or any other subsidizing organization. On February 6, 1995, the ZBA wrote to Welch, asking for documentation showing that Chestnut Estates was “fundable by a subsidizing agency under a low and moderate income housing subsidy program,” as required by Mass Regs.Code tit. 760, § 31.01. The ZBA repeated this request at a hearing on February 21, 1995; when plaintiff did not produce such documentation, the ZBA continued the hearing until March 14, 1995, and again requested funding information from plaintiff. At the continued hearing, the ZBA unanimously denied the Chestnut Estates comprehensive permit for jurisdictional failures, “including the failure of the Applicant to provide a written determination of project eligibility or site approval from a subsidizing agency.” Defs.’ Ex. M. Plaintiff did not appeal to the HAC. See Welch v. EOCD at 8. Following the demise of Chestnut Estates, plaintiff developed a new tactic. He again asked the ZBA to modify his outstanding permit for Easton Country Estates (“Third Modification”), but this time sought to add only 6 units to the 75 allowed by the First Modification, for a total of 81 units. On March 29, 1995, the ZBA approved the Third Modification. In so doing, the ZBA apparently interpreted Mass. Regs.Code tit. 760, § 31.03(2)(a)(2) (increases of more than. 10% in proposed units will ordinarily be considered substantial changes to development proposals), to mean that an increase of less than 10% would ordinarily be considered an insubstantial modification, and allowed the Third Modification on that ground. Apparently encouraged by the Third Modification’s approval, on April 4, 1995, plaintiff again filed with the ZBA, seeking to add 8 new units (“Fourth Modification”) for a total of 89 homes. On April 19, 1995, the. ZBA allowed the Fourth Modification. In May 1995, plaintiff sought to add 5 more units (“Fifth Modification”), for a grand total of 94 units. Meanwhile, on April 14, 1995, the EOCD inspected the Estates. By then plaintiff had built 28 units, 11 priced below market. The EOCD inspector found and reported problems in two areas. First, the below-market units were externally distinguishable from the market-rate units, in violation of LIP guidelines. Second, the house designs did not match those approved by EOCD, despite the requirement, memorialized in the EOCD’s approval letter of June 3, 1993, that the “EOCD must approve any changes to the application we have just reviewed and approved.” Both violations sprang from plaintiffs addition of garages, additions, and fireplaces to some market-rate, but no below-market, homes. In a letter dated May 4, 1995, the EOCD described these deficiencies and ordered plaintiff to add the extra features to “proportionate numbers” of “affordable units at no extra charge to the affordable buyer.” Defs.’ Ex. 0. The Selectmen received a copy of this letter. The Town received the letter on May 8, 1995; the Selectmen held a meeting that night. At the meeting, Paicos informed the Selectmen not only of the EOCD’s deficiency letter, but also of the ZBA’s approval of the Third and Fourth Modifications. Paicos characterized these modifications as “taking advantage of ... a so-called loop hole [the 10% presumption] in the EOCD regulations” which “should be viewed as improper and should be vigorously opposed.” Pl.’s Ex. 34. Paicos recommended that the Selectmen send a letter to the ZBA stating that further modifications under the 10% presumption would be “an obvious circumvention of the intent of the CMR,” and vote to deny permits for the Third and Fourth Modifications. Id. Paicos portrayed his plan of action as a “catalyst to have the developer either ... submit the project for your approval or take his appeal to the Housing Appeals Committee [and resolve] the interpretation of the regulation.” Id. After some discussion, the Selectmen approved three motions: first, to send a letter to the ZBA protesting what they felt was its violation of the intent animating the 10% presumption in § 31.03; second, to deny permits and water hook-ups to units covered by the Third and Fourth Modifications, subject to review by Attorney Hamilton, Easton’s Special Counsel for various matters including the Estates; and third, to authorize Hamilton to take any actions necessary to support the first two motions. All three approvals were by 4-1 votes, with Clark the sole opponent. On May 18, 1995, Welch wrote the Selectmen to request “a meeting ... in order to hold all issues up to the light of day.” There is no record of a reply to this letter. At the Selectmen’s meeting of May 22, 1995, Clark moved to place the Estates on the agenda. The motion failed for lack of a second. Despite the Selectmen’s letter of protest, the ZBA approved the Fifth Modification on May 24, 1995. The ZBA had thus approved the Third, Fourth, and Fifth Modifications, all as insubstantial modifications. These approvals added 19 units to the 75 approved in the First Modification, for a total increase of 25% and a grand total of 94 units approved by the ZBA. As it approved the Fifth Modification, the ZBA warned plaintiff “that any further requested changes would be deemed substantial.” Welch v. EOCD at 9. Welch’s next filing was much larger than the three prior modifications. On June 6, 1995, he asked the ZBA to “accept the 43 remaining proposed lots” on the Estates, which would thus total 137 units (“Sixth Modification”). Plaintiff asked the ZBA to find the Sixth Modification insubstantial; should the ZBA find it substantial, however, he agreed seek the Selectmen’s approval. At a meeting on June 21, 1995, the ZBA found that the Sixth Modification was indeed substantial, and scheduled for July 19, 1995 the hearing required by Mass Regs.Code tit. 760, § 31.08(3)(c). In a letter dated June 26, 1995, plaintiff informed the Selectmen of this action, and relayed that the ZBA had “requested that I bring this proposed modification before the Board of Selectmen for their endorsement.” Pl.’s Ex. 40. Welch then requested that the Selectmen schedule a hearing on the Sixth Modification. See id. The Selectmen asked Special Counsel Hamilton for advice on how to proceed; in a letter dated July 7, 1995, he noted that there was no explicit legal authority on the two questions crucial to the Selectmen: first, under what standard should they review a proposed modification to a LIP project, and second, whether Welch could proceed to the ZBA without the their approval. Hamilton recommended a “conservative approach” to the first question, under which the Selectmen would refrain from action that was “arbitrary and capricious.” Pl.’s Ex. 41. He further opined that Welch’s failure to obtain the Selectmen’s approval would render any proposed changes ineligible for LIP status. Id. Also on July 7,1995, the EOCD wrote to plaintiff, informing him that “its approval of the nineteen new units was required under the LIP program, notwithstanding the [ZBA’s] action on his comprehensive permit.” Welch v. EOCD at 9. The EOCD also informed plaintiff that it would not approve the new units unless Welch had the support of the Selectmen. See id. This letter essentially echoed the EOCD’s letter of March 23,1994. On July 12, 1995, the ZBA voted “to formally request that the Board of Selectmen schedule a public hearing on the 43 unit substantial change at it’s [sic] earliest possible convenience.” Five days later, in a letter dated July 17, 1995, the ZBA conveyed this request to the Board of Selectmen. The Selectmen scheduled a discussion for July 24, 1995. In a preparatory memo dated July 21, 1995, Pai-cos suggested information the Selectmen might ask plaintiff to submit, and might include in consideration of his development. Paicos also recommended that the Selectmen consider what standard of review to use in making that decision, referring to Hamilton’s letter of July 7, 1995. Finally, Paicos suggested that “the entire lottery process conducted on the first part of the project be reviewed.” At the meeting, Hardin noted that the Selectmen would not have “a discussion regarding the merits of the project, just the procedure to be followed.” Paicos suggested that the Selectmen consider two questions: what materials the Town should require in LIP applications, and whether plaintiffs application should be for 43 or 62 units. Shortly thereafter, plaintiff again sought relief from the Massachusetts courts. On August 16, 1996, he amended his complaint before the Bristol Superior Court in Welch v. Paicos, No. C94-00504. In this complaint, plaintiff contended that only the ZBA had authority to modify the comprehensive permit governing his development, that its approval of the Third, Fourth, and Fifth Modifications was therefore valid, and that the Town could not stop him from building the 19 units described by those modifications. Welch sought an injunction allowing construction of these units, as well as judicial explication of the procedure needed to modify his comprehensive permit. The court declined Welch’s motion for a preliminary injunction against the Town. Both sides moved for summary judgment. On August 28, 1995, in a letter from Special Counsel Hamilton to plaintiffs counsel Drueker, the Selectmen set forth their position on Welch’s claims. The letter read, in part: Mr. Welch has requested that the [Selectmen] review a proposed modification to the Project which would add 43 units [the Sixth Modification], Mr. Welch also seeks to modify the project by adding 19 additional units [the Third, Fourth, and Fifth Modifications]. Mr. Welch has indicated that he does not wish that the [Selectmen] review the proposal to modify the Project by adding the 19 units and only review the addition of the 43 units. It is the [Selectmen’s] position that if Mr. Welch intends to modify the Project by adding not only the 43 lots of the Project but also the additional 19 units, all 62 proposed units must be reviewed simultaneously in order to determine the impact of these proposed changes to the Project.... If Mr. Welch is prepared to have all 62 proposed units reviewed simultaneously ... the matter may proceed. If Mr. Welch wishes the [Selectmen] to review only the proposal to add 43 units to the Project, it must be accompanied by Mr. Welch’s withdrawal of his proposal to add the 19 units to the Project-The withdrawal would also require the dismissal of the pending action in Bristol Superior Court and the surrender of the approval by the Zoning Board of Appeals of the changefs] to the comprehensive permit for the proposed 19 units. It must also be accompanied by a plan showing the modified Project with only the 43 units remaining, and any remaining undeveloped area and how it relates to the Project as previously approved by the [Selectmen]. Pl.’s Exs. 44, 45. On September 6, 1995, plaintiff responded by writing that, “Without waiving any rights, I am prepared to have all 62 proposed units reviewed simultaneously.” On October 3, 1995, plaintiff followed up with another letter asking after the status of his prior letter. Presumably reacting to these letters, the Selectmen asked Attorney Hamilton whether plaintiff was, based on his acquiescence to review of all 62 proposed units, required to dismiss his pending litigation and surrender his ZBA approvals of the 19 units. In a letter dated October 25, 1995, Hamilton replied in the negative, explaining that his letter of August 23, 1995 offered plaintiff two options: he could submit all 62 units for the Selectmen’s review, or submit 43 units and renounce the ZBA’s approval of the other 19. Plaintiff had chosen the first option, Hamilton explained: Mr. Welch has elected to have all 62 proposed units reviewed simultaneously by the [Selectmen]. He has not waived his rights to contend that the [Selectmen have] no authority to review the 19 units, and is proceeding with that claim in Bristol Superior Court. However, the Selectmen should' proceed in due course with their review of the proposed changes. Pl.’s Ex. 47. The Selectmen informed plaintiff that they would discuss the Estates on December 1, 1995. This discussion did not take place. On December 12, plaintiff again wrote the Selectmen to inquire after the status of his request. On December 15,1995, the Bristol Superior Court held oral argument on the parties’ summary judgment motions. After the hearing, the court denied Welch’s motion in a brief endorsement order. Welch v. Pazcos, No. 94-00504 (Super.Ct. Dec. 15, 1995) (Brady, J.). The court took the Town’s motion under advisement. Three days later, in a letter dated December 18, 1995, the Selectmen (through Hamilton) informed Welch (through Drucker) that: a hearing this month is not possible due to other business .... In addition, we have now held a hearing before Judge Brady on the cross motions for summary judgment in the suit filed by Mr. Welch in Bristol Superior Court. I anticipate that, based upon my prior experiences with Judge Brady, he will issue a decision on the case within the next four to six weeks. It is the Selectmen’s view that having the benefit of Judge Brady’s decision in the case will assist both the Selectmen and Mr. Welch in going forward on a review of the proposed modifications to the Project. If a decision from Judge Brady is not forthcoming by January, the Selectmen will reconsider whether they should go forward with a hearing without the Superior Court’s ruling. PL’s Ex. 50. As Hamilton predicted, the court ruled in mid-January, holding that “[p]ursuant to the Regulatory Agreement, as amended, any modifications or changes to the Easton Country Estates Local Initiative Program project require the approval of EOCD,” and granting summary judgment to the EOCD and the Selectmen. Welch v. Paicos, No. 94-00504 (Super Ct. Jan. 22, 1996) (Brady, J.). The court forbade Welch from proceeding with the 19 units unilaterally approved by the ZBA until the EOCD gave its approval. See id. On February 15,1996, Welch appealed this ruling to the Massachusetts Appeals Court. While his appeal was pending, plaintiff continued to seek a meeting with the Selectmen. Through counsel, the Selectmen told Welch that’ they would “not be in a position to address [his] proposal until after the completion of the Town Meeting,” which would commence on April 8, 1996. The Town Meeting apparently took place on schedule, but the Selectmen did not • subsequently contact plaintiff. On May 16, 1996, plaintiffs counsel wrote to Hamilton, noting that he had heard nothing from the Selectmen since the Town Meeting, and again seeking a meeting between Welch and the Selectmen. Avery also alleged that the Selectmen’s failure to meet with Welch violated his constitutional rights. On July 8, 1996, Hamilton informed Avery that, at their regularly scheduled meeting of July 15, 1996, the “Selectmen are planning to discuss the information they will need to review regarding Mr. Welch’s proposal.” Pl.’s Ex. 55. Hamilton’s letter warned that the discussion would be “among the Board of Selectmen only and it is not anticipated that the Board will be seeking or allowing any public comment from Mr. Welch or any other individuals at this time.” Id. Indeed, this discussion apparently took place in executive session. On July 24, 1996, plaintiff wrote to the Selectmen and asked for an “open discussion” of his project. No reply to this letter is on record. On August 4, 1996, the Selectmen again considered, apparently in open session, what information to require on LIP applications. Plaintiff was not present. Paicos submitted a proposed list of required information that expanded upon his list of July 21,1995. On November 20, 1996, plaintiff filed this action. His original complaint named as defendants only Paicos and the Town of Easton. Plaintiff sought injunctive relief against Easton and Paicos in his official capacity, and damages from him individually. Nearly three months later, through a letter from counsel dated February 5, 1997, the Selectmen sent Welch an “Application for Local Initiative Program Approval,” which would “apply to the modifications Mr. Welch seeks to make to the Easton County Estates project previously approved” by the Selectmen. Pl.’s Ex. 58. The application essentially specified information the Selectmen deemed necessary to their consideration of a LIP application. It appears to be based on, but expands considerably, the discussion points listed by Paicos in his memo of July 21, 1995. Plaintiff did not immediately submit an application according to this form. Months passed in effective stalemate. The record includes no material event until September 29, 1997, when the Town of Easton closed a deal (“the transaction”) with the Bay Path Corporation (“Bay Path”), involving land owned by Bay Path and abutting the Estates. The transaction included four principal elements. First, Bay Path divided its property, splitting off two parcels and keeping the rest undivided. The newly created parcels were Lot 1A, a ten-foot-wide strip of land where plaintiffs land touched Bay Path’s (“the strip”), and Lot IB, nineteen acres bordering the strip and including a house, barn, wetlands, and access to the road. Lot IB was irregular in shape, wrapping around the southern border of Bay Path’s remaining, undivided land. Second, the Town agreed to release Lot IB from conservation easehjent under Mass. Gen. Laws ch.. 61A, and to waive the approximately $5,000 in back taxes it would normally collect on such release. Third, Bay Path conveyed Lot 1A to the Town. Fourth, Bay Path and the Town signed a restrictive covenant providing, in relevant part, as follows: 1. The Covenantor [Bay Path] shall not grant, cause, allow or suffer any easements, rights of way, driveways, or roadways, so as to afford access, directly or indirectly, from that parcel of land shown as Lot IB on [the plan], to or from other land shown on said Plan as “N/F Matthew A. Welch”: 2. The Covenantor shall not make, allow, or suffer any sale or other transfer of any portion of the Premises, or its entirety or interest in it, so as to afford access, directly or indirectly, from said Lot IB to or from other land shown on said Plan as “N/F Matthew A. Welch”. 3. The Covenantor shall not sell or otherwise transfer said Lot IB, in its entirety or any portion thereof, or any interest therein, to the owner' of the said land on said Plan identified as “N/F Matthew A. Welch”. 4.It is the intent of this Declaration of Restrictive, Covenant to effectively prohibit any easements, rights of way, driveways, or roadways, or any sale or other transfer of any portion of said Lot IB, or its entirety, or interest in it, so as to afford access, directly or indirectly, for the benefit of the property identified on said Plan, as “N/F Matthew A. Welch” or person owning said property identified on said Plan as “Matthew A. Welch”, Pl.’s Ex. 73. The covenant was effective in perpetuity, and bound Bay Path’s successors in interest, assigns, and agents. As its text reveals, the covenant prevents the unified development or common ownership of Lot IB and the Estates. After the transaction, Bay Path could sell Lot IB without paying back taxes and move towards developing its remaining land, the Commission held the wetlands as well as restraint ovér development on the south, and the Town received the covenant it sought. Plaintiff lost a possible future avenue 'of expansion for the Estates. On December 2, 1997, the Massachusetts Appeals Court issued Welch v. EOCD, supra page 153, affirming the Superior Court in all respects. Dismissing plaintiffs contention that the ZBA “alone is authorized and empowered to modify his comprehensive permit,” id. at 9, the court found that: Fundability is a jurisdictional fact in the comprehensive permit process .... Here, fundability, as expressed in the EOCD’s letter of June 3, 1993, was for a particular project under the LIP program “consisting] of 76 units, 19 of which will be ... subsidized .... ” That letter defined the parameters of the project for which jurisdictional approval was given for the comprehensive permit process. The [ZBA] lacked jurisdiction to consider any other project, including any modification, because the evidence (EOCD’s June 3, 1993 letter, which was incorporated into plaintiffs comprehensive permit) unequivocally showed that approval extended only to the seventy-six unit project. Id. at 12-13 (emphasis and altered quotation in original). In the alternative, the court grounded its result in the structure and purpose of the LIP regulations: In plaintiffs view, the [ZBA] has unlimited power to grant a modification to enlarge a comprehensive permit project beyond what the selectmen would have ever applied for. Such a result was never contemplated by the regulations .... [i]t violates the purpose of the LIP regulations, which is to encourage the chief elected officials of cities and towns to apply to the Commonwealth for assistance in constructing low and moderate income housing.... Chief elected officials could hardly be expected to take stock in a program that allows a developer to solicit their endorsement for his product, then use it to sell a different product with no opportunity to rescind the endorsement. Id. at 14. Finally, the court noted that the regulatory agreement is “an enforceable agreement” restricting Welch to a single development plan. Id. at 16. Plaintiff asked the Supreme Judicial Court to review Welch v. EOCD; on February 20, 1998, however, the SJC denied further appellate review. Welch v. Executive Office of Communities and Development, 427 Mass. 1101, 692 N.E.2d 963 (1998). With that action, Welch v. EOCD was final, and plaintiff was stuck. He remains stuck: he cannot petition the ZBA for a comprehensive permit without EOCD backing, he cannot obtain EOCD backing without the Selectmen’s approval, and the Selectmen’s approval is not forthcoming. Indeed, the Selectmen have neither voted on plaintiffs application nor provided him with a hearing that he deems satisfactory. On April 29, 1998, we allowed plaintiff to amend his complaint. The amended complaint added current and former Easton Selectmen as defendants, suing them as individuals for damages. They were Jeffrey Tufts, Patricia Hunt, William Hardin, Daniel Churchill, and Fred Clark. On June 15, 1998, plaintiff submitted an application outlined according to the Selectmen’s criteria of February 5, 1997. In this application, plaintiff asked the Selectmen to approve all 62 units originally proposed in the Second Modification, and again proposed though the Third, Fourth, Fifth and Sixth Modifications. As plaintiff himself noted, several areas of the application did not strictly conform to the Selectmen’s criteria. In all these areas, plaintiff noted, he submitted materials comparable to those supporting his first LIP application, which the Selectmen approved. Plaintiff concluded the application with detailed provisos: The Applicant’s submission of this application is made solely because of the Selectmen’s demand that he do so before the Selectmen' will review the Applicant’s proposal for the Project. By submitting this LIP application, the Applicant does not waive any objections he has to the Selectmen’s authority to require him to respond to the criteria set forth in the LIP application as promulgated by the Selectmen. The Applicant also reserves any and all of his rights to challenge the Selectmen’s requirement that he submit this application before the Project is considered for approval or that he provide all of the information listed in the Selectmen’s [criteria]. Pl.’s Ex. 60. Finally, plaintiff reserved his claims already pending in this action. See id. The Selectmen scheduled a special meeting to consider plaintiffs application for August 31, 1998. According to Paicos’ preparatory memorandum, the meeting was “strictly to review the adequacy of the application, not to discuss the merits of the filing.” Pl.’s Ex. 61 (emphasis in original). Welch attended, with his attorneys. The minutes of this meeting are not on record. Following the meeting, the Selectmen informed plaintiff that they would send “a letter specifying the additional information [concerning the application] sought by the Board.” Pl.’s Ex. 62. When no letter arrived by September 30, 1998, plaintiff inquired, through counsel, after this letter’s status. On October 16, 1998, the Selectmen responded through a letter from Attorney Hamilton. The Tetter waived two of the LIP application’s requirements, declined to waive two more and promised to send more information on those two requirements'. Finally, the letter reiterated the Selectmen’s requirement that plaintiff “agree that any project modification shall require the approval of the Board of Selectmen.” As of Paicos’ deposition on November 3, 1998, the extra materials had not yet been. provided; Paicos testified that the town was working on them. There the record, although not the story, ends. Plaintiff and defendants are at an impasse on the issue central to this action; on other fronts their skirmishing continues unabated. It appears, for example, that Welch sought disclosure of legal costs the Town incurred relating to the LIP application for the Estates, and filed suit, presumably under the public-records law, when the Town refused to produce this information. Such stalemates and disputes are, of course, commonplace to politics at all levels. The situation concerns this court only if defendants abrogated the Constitution in the process. II. STANDARD OF REVIEW We may grant summary judgment only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Terry v. Bayer Corp., 145 F.3d 28, 34 (1st Cir.1998). Thus plaintiff, the non-moving party, can thwart summary judgment by showing a genuine issue of material fact. An issue is genuine if a rational factfinder could resolve it in favor of either party, see Allstate Ins. Co. v. Occidental Intern., Inc., 140 F.3d 1, 2 (1st Cir.1998). A fact is material if it could “ ‘sway the outcome of the litigation under the applicable law.’ ” Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir.1997) (quoting National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.1995)). In opposing summary judgment, however, the non-moving party ‘“may not rest upon mere allegation or denials of [the movant’s] pleading, but must set forth specific facts’” showing a genuine issue of material fact. Hodgens v. General Dynamics Corp., 144 F.3d 151, 158 (1st Cir. 1998) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (alteration in original)). This evidence “ ‘cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve at an ensuing trial.’ ” Cadle Co., 116 F.3d at 960 (quoting Mack v. Great Atl. & Pac. Tea