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   WILFRED CLOUTIER, ET AL., Plaintiffs, Appellants, v. THE
  TOWN OF EPPING, ET AL., Defendants, Appellees; WILFRED
  CLOUTIER, ET AL., Plaintiffs, Appellees, v. THE TOWN OF
 EPPING, Defendant, Appellee; ROBERT J. CHAMBERLAIN, ROGER E.
  GAUTHIER, BRENDAN SPLAINE and ROBERT K. DODGE, Defendants,
   Appellants; WILFRED CLOUTIER, ET AL., Plaintiffs, Appellees,
     v. THE TOWN OF EPPING, Defendant, Appellant; WILFRED
   CLOUTIER, ET AL., Plaintiffs, Appellees, v. THE TOWN OF
    EPPING, Defendant, Appellee; PATRICK JACKSON, Defendant,
    Appellant; WILFRED CLOUTIER, ET AL., Plaintiffs, Appellees,
    v. THE TOWN OF EPPING, ET AL., Defendants, Appellees, ROGER
   VOGLER, DOROTHY HALL, RICHARD SANBORN, WILLIAM CALLAWAY and
                HAROLD LaPIERRE, Defendants, Appellants.

                No. 82-1800; 83-1094; 83-1095; 83-1101; 83-1138

              UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

                                 714 F.2d 1184


                                 August 5, 1983

PRIOR HISTORY: APPEALS FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF NEW HAMPSHIRE [Hon. Edward S. Northrop, * U.S.
District Judge] [547 F. Supp. 1232]

COUNSEL: Robert F. Sylvia, Roderick MacLeish, Jr., Alfred W.
Ricciardi, Fine & Ambrogne, Christopher P. Sullivan, Carolan &
Sullivan, Wilfred L. Sanders, Jr., Sanders & McDermott for Wilfred
Cloutier, et al.

   Ronald L. Snow, James E. Morris, Orr and Reno, P.A., for Richard
Sanborn, Roger Vogler, Dorothy Hall, William Callaway and Harold
LaPierre.

   Michael J. Donahue, Kearns, Colliander, Donahue & Tucker, P.A.,
Peter J. Loughlin, for Town of Epping.

   John W. Barto, Mark H. Puffer, Barto & Gfroerer, for Patrick
Jackson.

   G. Wells Anderson, Charles P. Bauer, Hall, Morse, Gallagher &
Anderson, for Robert J. Chamberlain, Roger E. Gauthier, Brendan
Splaine, and Robert K. Dodge.

OPINIONBY: CAMPBELL

OPINION:   [*1186]

   Before Cambell, Chief Judge, McGowan, ** Senior Circuit Judge,
and Selya, *** District Judge.

   ** Of the District of Columbia Circuit, sitting by designation.   *** Of the District of Rhode Island, sitting by designation.

   CAMPBELL, Chief Judge. This "Epic of Epping" concerns a dispute
over the development of a mobile home park in Epping, New
Hampshire.  Wilfred and Mary
    PAGE  161                               714 F.2d 1184, *1186
                     LEXSEE

Cloutier, and Pine & Pond, Inc. are developers who brought the
present action in the district court claiming that Epping and
several of its officers violated their civil rights by revoking a
sewage connection permit, denying them other permits, and engaging
in a pattern of harassment aimed at retarding or destroying their
development plans.  Concluding that plaintiffs had failed to raise
a substantial federal question, the court below dismissed the case
for lack of jurisdiction.  Although we cannot say that the court
lacked jurisdiction, we affirm the dismissal.

   I.

   We present the facts in a light most favorable to appellants.
Epping, New [*1187]   Hampshire is a town with a population of
about 3,000.  Zoning, land use, and developmenthave long been
heated issues in the town.  In the mid-1960's the Cloutiers began
making plans to develop a large mobile home park in Epping. They
obtained a road entrance permit in 1965 and approval from the
Planning Board in 1968. n1

   n1 The Cloutiers allege that the Planning Board was never
properly formed.

   On April 27, 1972 the Cloutiers applied for and received from
one of the three sewer commissioners a permit to connect the mobile
home park to the town's newly constructed sewage system.  On May 4,
1972 the other two sewer commissioners, defendants Robert
Chamberlain and Brendan Splaine, met informally and revoked this
permit.  The Cloutiers were invited to discuss the revocation at
the commission's next meeting several days later.

   Following revocation, the Cloutiers filed an action in
Rockingham County Superior Court for a writ of mandamus.
Plaintiffs contend that it was only in the course of the litigation
that they learned the commission's real reasons for revoking the
permit: a 1968 zpning ordinance prohibiting mobile homes in the
town's "sewered zone," and commission regulations forbidding the
connection of structures more than 200 feet from the sewer main.
Plaintiffs further allege that defendants gave erroneous and
perjured testimony at the trial before the Superior Court.  The
court found for the town, and plaintiffs appealed.

   While their appeal was pending before the New Hampshire Supreme
Court, plaintiffs continued to attempt to obtain the permit from
defendants.  At the direction of the sewer commission, the
Cloutiers brought the issue before the March 1975 town meeting.
The meeting passed an article requiring the connection of the
Cloutiers' park to the sewer system.  The meeting also defeated a
proposed amendment to the zoning ordinance put forward by the
Planning Board which would have limited the number of mobile homesin Epping.

   Despite the Cloutiers' victories before the town meeting,
defendants continued to oppose the connection of Pine & Pond to the
sewer system.  The sewer commission told plaintiffs that another
town meeting vote would be required before the permit would be
granted and that Planning Board approval would also be necessary.
The Planning Board, meanwhile, posted another amendment to the
town's zoning laws that was similar to the one that had just been
defeated by the meeting.

   On May 29, 1976 the New Hampshire Supreme Court rendered its
decision. Cloutier v. Epping Water and Sewer Commission, 116 N.H.
276, 360 A.2d 892 (1976). The court ruled that the 1968 zoning
ordinance forbidding mobile homes
    PAGE  162                               714 F.2d 1184, *1187
                     LEXSEE

within the town's sewered zone was invalid because the zone had not
been adequately defined.  The court held that the town had to
connect the mobile homes that were within 200 feet of the sewer
system.  Id. at 279, 360 A.2d at 895. But it also held that the
sewer commission regulation barring the connection of structures
beyond 200 feet from the main was valid and that the town meeting
lacked authority to override the commission.  Id. at 280, 360 A.2d
at 896. The court refused to decide whether or not zoning was ever
validly enacted in Epping, finding that there was no reason why the
"newly discovered evidence" put forward by the Cloutiers could not
have been presented to the Superior Court.  Id. at 278.

   Following the New Hampshire Supreme Court's decision, the
dispute continued to heat up and expand in several new directions.
First, the Cloutiers again brought the issue before the town
meeting which once again voted in favor of their position.
Defendants, however, still refused to grant the permit.  Then, on
August 3, 1976, defendants sought an injunction from the Rockingham
County Superior Court against the Cloutiers' development of a
second mobile home park in Epping on the ground that the lot was
substandard.  Following the filing of the state action, Wilfred
Cloutier commenced the present case in federal district court,
charging that the state action and the previous denials of the
sewer   [*1188]   permit for Pine & Pond constituted a deprivation
of property without due process, a denial of equal protection, and
a violation of the privileges and immunities clause of the
fourteenth amendment.  The complaint sought damages and an
injunction against the Superior Court action.  On November 3, 1976
the district court, citing the Younger doctrine, 401 U.S. 37
(1971), denied Cloutier's request for a preliminary injunction.
The Superior Court action was dismissed in 1978 by a subsequent
board of selectmen.

   The election of new town officials in 1978 led to the Cloutiers'
finally obtaining a sewer connection permit and a water connection
permit.  The day after the permits were issued defendant Roger
Gauthier filed a lawsuit to invalidate the appointment of the new
commissioner.  This action was dismissed by the state court.

   After receiving the sewer connection permit, the Cloutiers still
had to obtain a discharge permit from the New Hampshire Water
Supply and Pollution Control Commission (WSPCC).  According to
plaintiffs, defendants gave false information to the WSPCC,
delaying its approval of the permit until July 1981.

   On April 26, 1977 and again on January 2, 1981, the complaint in
the federal action was amended to include Mary Cloutier and Pine &
Pond, Inc., as plaintiffs, to add numerous local officials as
defendants, and to include new allegations, including ones relating
to the events occurring after 1976. Pendent state claims were alsoadded.  After the district court denied defendants' various motions
to dismiss, the case went forward to trial, with the district court
ordering that no additional motions be presented, except those
related to evidentiary matters.  On September 28, 1981 a jury was
empaneled. During the course of the trial, however, the district
judge became ill, and a mistrial was ordered.  The case was
assigned to a different district judge.  On July 20, 1982,
defendants moved for summary judgment on the basis of the Supreme
Court's recent decision in Harlow v. Fitzgerald, 50 U.S.L.W. 4815
(June 25, 1982), and this court's decision in Creative
Environments, Inc. v. Estabrook, 680 F.2d 822 (1st Cir.), cert.
denied, 51 U.S.L.W. 3363 (Nov. 8, 1982).  The district court then
continued the trial and ordered briefings and arguments on the
motions for summary judgment.  On September 16, 1982 the district
court
    PAGE  163                               714 F.2d 1184, *1188
                     LEXSEE

dismissed the complaint for lack of federal jurisdiction.

   II.  JURISDICTION

   While we agree with the substance of the district court's
analysis, we are not sure that the claims are all so patently
frivolous as to warrant dismissal for lack of federal jurisdiction.
Complaints should not be dismissed for failing to raise a federal
question unless they are "insubstantial, implausible, foreclosed by
prior decisions of [the Supreme Court], or otherwise completely
devoid of merit. . . ." Oneida Indian Nation v. County of Oneida,
414 U.S. 661, 666 (1974). See also Bell v. Hood, 327 U.S. 678,
682-85 (1946); Chiplin Enterprises, Inc. v. City of Lebanan, No.
83-1062, slip op. at 11 (1st Cir. Aug. 1, 1983).

   Still, looking at the record -- which besides the pleadings
includes affidavits, depositions and other supporting papers -- in
the light most favorable to appellants, we are satisfied, in the
words of Fed. R. Civ. P. 56, that there is no genuine issue as to
any material fact and that defendants are entitled to judgment as
a matter of law.  Because defendants moved below for summary
judgment, and plaintiffs had a full opportunity to respond to those
motions, we think it proper to affirm the dismissal on that basis.
See Wright, Miller & Kane, Federal Practice & Procedure @ 2716 (2d
ed. 1983); 6 Moore's Federal Practice @ 56.27[2] (1982).  Cf.
Chiplin Enterprises, Inc. v. City of Lebanon, No. 83-1062, slip op.
at 11 (1st Cir. Aug. 1, 1983) (affirming case dismissed for lack of
federal jurisdiction for failure to state a claim upon which relief
can be granted).    [*1189]

   III.  ZONING DISPUTES, DUE PROCESS AND EQUAL PROTECTION

   Plaintiffs contend that zoning was never validly enacted in
Epping, that the New Hampshire Supreme Court held the zoning scheme
unenforceable, and that defendants' continued reliance on the
zoning laws violated 42 U.S.C.  @ 1983 by depriving plaintiffs of
due process and equal protection of the laws. Plaintiffs further
contend that defendants engaged in a number of malicious delaying
tactics which impeded plaintiffs' ability to proceed with their
development plans.  While plaintiffs ultimately achieved many of
their goals, they say that defendants deprived them of their
property without due process by adding years of delay and extra
costs. n2

   n2 In their complaint plaintiffs also alleged that defendants
engaged in a conspiracy to infringe upon their civil rights in
violation of 42 U.S.C.  @ 1985. The district court dismissed that
claim on the basis that plaintiffs failed to allege discrimination
on the basis of membership in a suspect class. On appeal plaintiffs
have not argued that the district court erred in reaching thisconclusion.  We hold that plaintiffs have waived their section 1985
claim. See Harris v. Plastics Mfg. Co., 617 F.2d 438, 440 (5th Cir.
1980). For similar reasons, plaintiffs have waived their excess
taxation claim, and their claims based upon 42 U.S.C.  @ 1981, the
privileges and immunities clause, and state law.

   This is not the first time we have considered claims of this
type.In Creative Environments, Inc. v. Estabrook, 680 F.2d 682 (1st
Cir.), cert. denied, 51 U.S.L.W. 3363 (Nov. 8, 1982), we refused to
entertain under section 1983 a claim that local officials had
misapplied zoning laws in order to thwart a development project.
We assumed that defendants might have engaged in "adversary and
even
    PAGE  164                               714 F.2d 1184, *1189
                     LEXSEE

arbitrary tactics," in order to stop plaintiffs' development plans.
Id. at 829. We said, however, that ""[t]he violation of a state
statute does not automatically give rise to a violation of rights
secured by the Constitution."" Id. at 833, quoting Crocker v.
Hakes, 616 F.2d 237, 239 (5th Cir. 1980) (per curiam), and that

   Every appeal by a disappointed developer from an adverse ruling
by a local . . . planning board necessarily involves some claim
that the board exceeded, abused or "distorted" its legal authority
in some manner, often for some allegedly perverse (from the
developer's point of view) reason.  It is not enough simply to give
these state law claims constitutional labels such as "due process"
or "equal protection" in order to raise a substantial federal
question under section 1983.

   Id. at 833.  We recently reaffirmed these principles in Chiplin
Enterprises, Inc. v. City of Lebanon, No. 83-1062, slip op. (1st
Cir. Aug. 1, 1983).  But see Wilkerson v. Johnson, 699 F.2d 325
(6th Cir. 1983).

   Plaintiffs attempt to distinguish Creative Environments and its
successors. First, they say the issue here is not the mere
misapplication of valid zoning laws, as was the case in Creative
Environments and Chiplin, but instead the blatant application of
ordinances which defendants knew were totally void. Second,
plaintiffs argue, defendants engaged in numerous unlawful tactics
that independently violated the Constitution.  Among the unlawful
actions alleged are the abuse of process, perjury, failing to come
forward with material evidence, and giving false information to a
state agency about the plaintiffs. n3

   n3 Plaintiffs also argue that defendants used the zoning laws in
retaliation for plaintiffs' exercise of their first amendment
rights.  We consider that argument infra.

   The contention that the Epping zoning laws were totally invalid
fails to withstand scrutiny.  In Cloutier the New Hampshire Supreme
Court held that Article II(A) of the Epping zoning regulations,
which prohibited placing mobile homes in the sewered zone, was
unenforceable because the zone had never been adequately defined.
The court never addressed the validity of the remaining provisions
of the zoning ordinance.  As the ordinance had a severability
clause and as severability is the general rule when construing
zoning ordinances in New Hampshire, Fernald v. Bassett, 107 N.H.
282, 220 A.2d 739 (1966), it was scarcely an act of lawlessness for
defendants to   [*1190]   continue relying upon the ordinance's
remaining provisions.  Cf. Harlow v. Fitzgerald, 50 U.S.L.W. 4815
(June 25, 1982) (good faith immunity depends upon an objective
assessment of the reasonableness of defendants' actions).
Moreover, the state court in Cloutier specifically approved of therevocation of plaintiffs' sewer connection permit, and found that
the sewer commission was not bound to connect the Cloutiers' park
on the basis of the town meeting votes.  116 N.H. at 280, 360 A.2d
at 896. Thus the state court did not unambiguously reject
defendants' positions; defendants' actions taken to enforce their
interpretations of the governing laws cannot be seen as a gross
abuse of power.  Compare Roy v. City of Augusta, No. 82-1942, slip
op. at 17 (1st Cir. July 28, 1983).

   Similarly, plaintiffs' long list of harassing actions reveals
not the type of egregious behavior that might violate the due
process clause, but rather, for the most part, further disputes
over the interpretation of the state and town zoning laws.
Plaintiffs contend that defendants maliciously abused state
    PAGE  165                               714 F.2d 1184, *1190
                     LEXSEE

process by commencing an action in Rockingham County Superior Court
to enjoin the Cloutiers' development of a second mobile home park
in Epping.  However, as the Fifth Circuit has stated,

   "Neither the Fourteenth Amendment nor the Civil Rights Acts
purported to secure a person against unfounded or even malicious
claims or suits in state courts, especially so when the laws of the
state are available and furnished adequate remedies to a person
aggrieved."

   Beker Phosphate Corp. v. Muirhead, 581 F.2d 1187, 1189 (5th Cir.
1978), quoting Curry v. Ragan, 257 F.2d 449, 450 (5th Cir.), cert.
denied, 358 U.S. 851 (1958). See also Cline v. Brussett, 661 F.2d
108, 112 (9th Cir. 1981).

   Here, plaintiffs made no effort to seek state remedies for the
alleged abuse of process.  Compare Roy v. City of Augusta, No.
82-1942, slip op. at 16. Moreover, because the suit was brought to
enforce the zoning laws, the question whether the prosecution was
malicious depends upon the proper interpretation of the state's
zoning laws.  Thus the malicious prosecution claim is nothing more
than a reformulation of plaintiffs' general claim of misapplication
of the zoning laws -- the very question that we have held not to be
cognizable under section 1983.

   Plaintiffs' charge that defendants gave false information to the
New Hampshire WSPCC is similarly a mere rephrasing of the overall
zoning law issue. Plaintiffs claim that the defendants falsely told
the commission that the Cloutiers' plans did not conform to local
zoning regulations and required Planning Board approval prior to
obtaining the state permit.  Whether or not such statements were
false, however, obviously depends upon the validity of defendants'
interpretation of the zoning laws.  Thus we see no distinction from
Creative Enviornments.

   Nor do we see any possible federal issue in plaintiffs' claim
that defendants violated a duty of good faith by failing to come
forward with material evidence in the mandamus action.  Even if
defendants were under such an obligation under state law, the
breach of duty alone would not violate the Constitution.  See
Creative Environments, 680 F.2d at 833. Under our adversary system,
parties in civil trials are normally responsible for obtaining
their own evidence, and except, perhaps, under the most unusual
circumstances, not presented here, due process is not violated by
an adversary's failure to come forward voluntarily with evidence
helpful to an opponent.

   Plaintiffs' perjury charge presents, on its face, a more
substantial claim. Nevertheless, we need not decide if the perjury
charged here could have violated the due process clause because theSupreme Court has recently held that witnesses are absolutely
immune for damages actions under section 1983. Briscoe v. Lahue, 51
U.S.L.W. 4247 (Mar. 7, 1983).  The Court relied in part upon the
concept that "when a private party gives testimony in open court in
a criminal trial,   [*1191]   that act is not performed "under
color of law."" Id. at 4248.

   The Supreme Court's reasoning in Briscoe compels us to find not
only that the individual defendants are absolutely immune for any
damages arising from the alleged perjury, but also that the town
cannot be liable for the defendants' actions.  In Monell v.
Department of Social Services, 436 U.S. 658 (1978), the Court held
that although a city was a "person" within the meaning of section
1983, it could not be liable on a respondeat superior theory.  Id.
at 691. In
    PAGE  166                               714 F.2d 1184, *1191
                     LEXSEE

order for cities to be liable, the constitutional wrong must be
committed pursuant to official policy.  Id. Because witnesses
always testify in a personal capacity and are not acting under
color of law when they testify, Briscoe, 51 U.S.L.W. at 4248, their
perjury cannot, except in the most extraordinary circumstances, be
considered to be pursuant to official policy and the basis of
municipal liability.  We therefore hold that neither the town nor
the individual defendants can be held liable for the alleged
perjury. n4

   n4 Plaintiffs also charge that defendants violated an agreement
between the town and the Federal Farmers Home Administration in
denying the Cloutiers the sewer connection permit.  The breach of
such a contract, however, does not create a constitutional
violation.  See Casey v. Depetrillo, 697 F.2d 22 (1st Cir. 1983)
(per curiam); Jimenez v. Almodovar, 650 F.2d 363, 370 (1st Cir.
1981).

   The fact that plaintiffs allege many claims does not change the
foregoing. It is the nature of the allegations, not their quantity,
which is significant. Here, although plaintiffs raise numerous
charges, the vast majority merely concern disputes over the town's
zoning laws.  The rest of the charges either fail to state a
federal claim or concern matters for which damages are unavailable.

   IV.  PROCEDURAL DUE PROCESS

   Plaintiffs also seem to contend that defendants deprived them of
procedural due process by revoking the original sewer permit
without first granting them a hearing. n5

   n5 To the extent that plaintiffs argue that the revocation
violated the substantive requirements of the due process clause,
they do not state a federal claim.  See supra; Creative
Environments, 680 F.2d at 833.

   The due process clause of the fourteenth amendment requires that
states provide individuals with procedural protections when they
are deprived of either their property or their liberty.  The type
of process that must be afforded varies, however, depending upon
the particular situation.  See Mathews v. Eldridge, 424 U.S. 319,
334 (1972). Even if we assume that plaintiffs acquired a property
right in the sewer connection permit once it was issued, but see
Hermer v. City of Dover, 106 N.H. 534, 215 A.2d 693 (1965) (builder
has no vested rights in a permit issued under mistake of law or in
violation of law), and thus a right to some procedural protections
before its revocation, they received here all of the process the
Constitution required.

   Plaintiffs received a written notification of the revocation
which invited them to discuss the situation with the commission at
its next meeting only three days later.  And whether or not the
Cloutiers attended that meeting, there are indications in the
record that the Cloutiers and their attorney did at some later time
discuss the matter with the commission.  Following that discussion,
the sewer commission reviewed and affirmed the revocation.  The
Cloutiers then brought an action in state court for a writ of
mandamus.

   These procedures were adequate.  Full judicial-type hearings are
not required when local boards engage in the quasi-legislative task
of granting or revoking zoning or similar types of permits.
O'Neill v. Town of Nantucket, No. 82-1744, slip op. (1st Cir. July
13, 1983).  Moreover, the permit here had been in
    PAGE  167                               714 F.2d 1184, *1191
                     LEXSEE

plaintiffs' possession only a few days before it was revoked.  And
plaintiffs were not shown to have acted in reliance on it.  Cf.
Henry & Murphy, Inc. v. Town of   [*1192]   Allenstown, 120 N.H.
910, 424 A.2d 1132 (1980) (zoning rules may be changed to
developer's detriment except where the developer has made
substantial construction in reliance upon old rules).  Given
plaintiffs' limited interest and the risk they might act in
reliance upon the permit and thus gain a greater interest in it as
time went on, defendants were entitled to revoke without the delay
of a prerevocation hearing. n6 The prompt, informal proceedings
offered by the town coupled with the judicial review provided by
the state courts satisfied the requirements of the due process
clause.  See Mathews v. Eldridge, 424 U.S. 319 (1972); O'Neill v.
Town of Nantucket, No. 82-1744, slip op. (1st Cir. July 13, 1983);
Creative Environments, 680 F.2d at 830. n7

   n6 Plaintiffs also stress that defendants failed to notify them
of the true reasons for the revocation.  The revocation letter
notified them that the permit was being revoked because the mobile
homes were outside of the sewered district. Although this was not
the reasoning upon which defendants ultimately prevailed, we see no
due process error in defendants pressing other points before the
state court.

   n7 Even if defendants had violated plaintiffs' due process
rights, the claim against the town would be barred on the basis of
res judicata since the revocation occurred prior to the state court
action and the claim could have been brought there.  See Roy v.
City of Augusta, No. 82-1942, slip op. (1st Cir. July 28, 1983);
Lovely v. Laliberte, 498 F.2d 1261 (1st Cir.), cert. denied, 419
U.S. 1039 (1974).

   V.  FIRST AMENDMENT CLAIMS

   Plaintiffs also advance, belatedly, a first amendment ground for
recovery. They tell us they were denied a sewer connection permit,
and were subjected to other forms of harassment, in retaliation for
the Cloutiers' vociferous and pointed political opposition to
defendants and their anti-development positions.

   Plaintiffs never explicitly pressed this claim below as a
separate ground for relief.  Even if their quiescence did not
amount to a waiver, see Johnston v. Holiday Inns, Inc., 595 F.2d
890 (1st Cir. 1979), we think it raises no genuine issue.  In order
to surmount a supported motion for summary judgment, plaintiffs
were required to set forth specific facts showing a triable issue.
See Packish v. McMurtrie, 697 F.2d 23, 26-27 (1st Cir. 1983);
Manego v. Cape Cod Five Cents Savings Bank, 692 F.2d 174 (1st Cir.
1982). Plaintiffs have not done so.
   Although they engaged in years of discovery and compiled a vast
record, plaintiffs point only to Wilfred Cloutier's own affidavit
in support of their first amendment claim.  The only statements in
the affidavit relevant to such a claim are those attesting that
Cloutier had engaged in political opposition to defendants and, as
a member of the Epping Betterment Committee, had participated in
circulating cartoons which portrayed defendants in an unflattering
light. From this, plaintiffs wish us to infer that defendants
fought the Cloutiers' development plans in retaliation for Wilfred
Cloutier's political activity. However, the Cloutiers' development
plans were the subject of a political controversy in which all
parties were engaged.  It is difficult to infer that defendants
were motivated by dislike of plaintiffs' exercise of free speech
rather than simply by disapproval of the proposed development.  The
former inference is less obvious than that of racial discrimination
in Manego v. Cape
    PAGE  168                               714 F.2d 1184, *1192
                     LEXSEE

Cod Five Cents Savings Bank, 692 F.2d 174 (1st Cir. 1982), in which
we affirmed the district court's grant of summary judgment. n8

   n8 Below plaintiffs argued that defendants violated section 1983
by speaking out against plaintiffs' development plans.  The first
amendment protects the defendants as well as the plaintiffs: all of
the parties were entitled to engage in the rough and tumble of
political debate and action, based on their personal views.  Cf.
FTC v. Cement Institute, 333 U.S. 683 (1948) (commission may rule
on issue despite the fact that commissioners previously expressed
their opinion on the subject); K. Davis, Administrative Law
Treatise @ 19.2 (1980).

   We have searched the record with some care and have found
nothing which suggests that this case concerns valid first
amendment issues.  We therefore hold that   [*1193]   summary
judgment is appropriate.  See Packish v. McMurtrie, 697 F.2d at 23;
Mangeo v. Cape Cod Five Cents Savings Bank, 692 F.2d at 174.

   VI.  FIFTH AMENDMENT CLAIMS

   Plaintiffs raise two fifth amendment claims.  First, they argue
that defendants inversely condemned their land by posting proposed
zoning regulations that had the effect of lowering the land's value
until the ordinances were defeated by the town meeting.  Second,
they argue that the laying of sewer pipes under the Cloutiers' land
constituted a taking for which they have not been justly
compensated.  Neither claim is one on which plaintiffs may prevail.

   Damages -- the only relief now open to plaintiffs for their
inverse condemnation claims -- are not ordinarily available in a
federal court for such claims.  Citadel Corp. v. Puerto Rico
Highway Authority, 695 F.2d 31 (1st Cir. 1982); Pamel Corp. v.
Puerto Rico Highway Authority, 621 F.2d 33 (1st Cir. 1980). We know
of no reason to alter that rule here, especially where the town's
legislative body, the town meeting, ultimately voted down the
proposed regulations.

   Plaintiffs eminent domain claim presents a slightly different
situation.Defendants admit that a taking occurred in 1970 and that
plaintiffs have not yet received just compensation.  However, after
the instant case was commenced, the town instituted proceedings
before the New Hampshire Eminent Domain Commission and issued a
bond to secure plaintiffs' judgment.  Plaintiffs, however, sought
a continuance of the state action in order that the matter by
litigated in the federal forum.That continuance was granted.

   These proceedings reversed the proper roles of the federal and
state courts. Plaintiffs' federal claim depends upon their
inability to obtain just compensation from the town.  Had the stateproceedings gone forward, plaintiffs, presumably, would have
obtained just compensation and would have no federal claim. n9
Plaintiffs sould not be able to manufacture a federal claim by
continuing the state proceeding.

   n9 Plaintiffs contend that they cannot be fully compensated by
the state court because the state board cannot order damages for
the loss of use and enjoyment of the property since 1971.  Whether
or not this is a correct interpretation of state law, we see
nothing in the record to suggest a triable issue of fact on the
question whether the plaintiffs suffered such damages. Plaintiffs,
indeed, admit to not knowing that the property was taken until
    PAGE  169                               714 F.2d 1184, *1193
                     LEXSEE

1976.  They could not, therefore, have suffered any loss of use or
enjoyment because of the taking.

   VII.  ATTORNEYS" FEES

   On cross-appeal defendants argue that the district court erred
in refusing to order attorneys' fees pursuant to 42 U.S.C.  @ 1988,
which empowers the district court to award attorneys' fees to the
prevailing party in actions brought under 42 U.S.C.  @ 1983. We
find no abuse of discretion.

   Defendants are entitled to attorneys' fees under section 1988
only when

   a court finds that [the plaintiff's] claim was frivolous,
unreasonable, or groundless, or that the plaintiff continued to
litigate after it clearly became so.

   Hughes v. Rowe, 449 U.S. 4, 14-15 (1980) (per curiam), quoting
Christianberg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978).
Although lacking in merit, we cannot say plaintiffs' claims, when
brought, were so patently frivolous as to have required the
district court to award fees.

   We have considered defendants' other arguments on their cross-appeal, including their argument that the court was obliged to make
more comprehensive findings, and find them all to be without merit.

   The judgments of the district court dismissing the complaint and
denying attorneys' fees to the defendants are affirmed.