Walz v. Town of Smithtown

• Decision Date: 24 January 1995
• Docket Number: D,No. 1996,1996
• Parties: 25 Envtl. L. Rep. 20,770 Robert WALZ, Lana Sue Walz, and Robert Walz, Jr., Plaintiffs-Appellees, v. TOWN OF SMITHTOWN and James Dowling, personally and as Superintendent of Highways of the Town of Smithtown, Defendants-Appellants, Suffolk County Water Authority, Defendant. ocket 94-7268.
• Court: U.S. Court of Appeals — Second Circuit

Page 162

46 F.3d 162

25 Envtl. L. Rep. 20,770

Robert WALZ, Lana Sue Walz, and Robert Walz, Jr., Plaintiffs-Appellees, v. TOWN OF SMITHTOWN and James Dowling, personally and as

Superintendent of Highways of the Town of

Smithtown, Defendants-Appellants,

Suffolk County Water Authority, Defendant.

No. 1996, Docket 94-7268.

United States Court of Appeals, Second Circuit.

Argued Aug. 8, 1994.

Decided Jan. 24, 1995.

L. Kevin Sheridan, Smithtown, NY (Thomas J. Spellman, Jr., Devitt & Spellman, Smithtown, NY, of counsel), for defendants-appellants.

William D. Wexler, North Babylon, NY (Kevin Snover, of counsel), for plaintiffs-appellees.

Before: WINTER and LEVAL, Circuit Judges, and SKRETNY, ^* District Judge.

WINTER, Circuit Judge:

The Town of Smithtown ("Smithtown") and James Dowling, the town's Superintendent of Highways, appeal from an adverse jury verdict awarding damages for violating the substantive due process rights of Robert Walz, Lana Sue Walz, and Robert Walz, Jr. (the "Walzes"). The Walzes were denied access to public water supply when Dowling refused to issue a permit allowing the county water authority to excavate a public street in order to connect the Walzes' home to the public water system. Dowling's refusal was intended to coerce the Walzes to convey some of their land to Smithtown. We affirm.

BACKGROUND

The Walzes own a home on a parcel of land on Ketcham Avenue in Smithtown, New York. For approximately twenty-six years, water was supplied by a well on the property. In late December 1991, the Walzes experienced problems with the well, which was shut down on New Year's Day, 1992.

On January 9, 1992, the Walzes applied to the Suffolk County Water Authority for public water service. As instructed by the Authority When processing emergency applications for water service, the Water Authority typically obtains an excavation permit on behalf of the applicant by telephoning for verbal authorization. On January 16, a person in the Water Authority made such a call to the Highway Department to obtain a permit. A clerk at the Highway Department gave verbal authorization. She then typed a permit that stated: "EMERGENCY Water Service--verbal approval 1/16/92." On the morning of January 17, Dowling signed the permit. Later that morning, Dowling instructed the clerk to void the permit. After doing so, the clerk informed the Water Authority that the permit was now void. The person with whom the clerk spoke at the Water Authority asked whether Dowling was aware that the Walzes had been "without water and heat since before the holidays." The clerk stated that Dowling was aware of this fact. Dowling also telephoned a District Manager for the Water Authority to inform him that the permit had been cancelled.

they dug a trench on their property for the water line, which was approved by the Water Authority on January 16. That day, the Walzes paid the Water Authority the $1,100 required fee. However, an excavation permit from Smithtown was required in order to excavate Ketcham Avenue, which was a public street.

Dowling then telephoned Mrs. Walz and asked her whether the Walzes would deed the front fifteen feet of their property to Smithtown for road widening purposes. During the conversation, Dowling told her that the Walzes would not receive water supply service until the fifteen foot wide strip of land was conveyed to Smithtown. Mr. Walz went to the Water Authority, but it was unable to provide any help.

Shortly after Mr. Walz returned home from the Water Authority, a Highway Department employee arrived at the Walzes' home with a draft deed by which the Walzes would convey the front fifteen feet of their property to Smithtown. The Walzes confronted Dowling at the offices of the Highway Department and told him that they would not give up their land to obtain water supply service.

The next day, January 18, Dowling left for a four-week vacation, during which he made no inquiry regarding the status of the Walzes' permit application. Upon returning from vacation, Dowling contacted the Smithtown Town Attorney for help in obtaining the strip of property from the Walzes. In a letter to the Town Attorney, Dowling wrote that he wanted to improve Ketcham Avenue--which in front of the Walz property was unpaved, and too narrow--but that the residents of Ketcham Avenue were uncooperative.

On March 3, the Walzes commenced an Article 78 proceeding in the New York Supreme Court seeking an order compelling Dowling to issue a permit to the Water Authority and compelling the Water Authority to connect the Walzes' home to the public water supply. The defendants argued that the proceeding was moot in light of an excavation permit issued on March 6. However, this excavation permit included special requirements that a concrete curb be installed along the edge of the roadway, that a jacking fee of $900 be paid to dig beneath the road, and that a fee of $1,100 be paid for patching the road. The permit also required the posting of a $3,678 cash bond. The typical excavation permit contains no such conditions.

On March 27, Justice William L. Underwood ruled that the curbing requirement was unreasonable and ordered Dowling to issue a permit consistent with his opinion. On April 6, a new permit was issued which was identical to the March 6 permit but for the omission of the curbing requirement and a corresponding reduction in the cash bond requirement. The Walzes, believing that the April 6 permit was inconsistent with Justice Underwood's order, filed a motion to hold Dowling in contempt. The motion was returnable on April 27, but on April 24, Dowling issued a permit at the standard fee of $35 and the Walzes' were connected to the public water supply on April 28.

The Walzes subsequently brought the present Section 1983 action for damages on the ground that Dowling's conduct violated the substantive component of the Due Process Clause of the Fourteenth Amendment.

In answer to a series of special interrogatories, set out in pertinent part in the margin, ¹ the jury found that Dowling was aware on January 17, 1992, that the Walzes were without water and that Dowling's reason for voiding the excavation permit was to deprive the plaintiffs of water. The jury further found that Dowling had an improper motive for voiding the permit, refusing to issue another permit, and attaching unreasonable conditions to the permits of March 6 and April 6. This motive was to compel Robert Walz to deed a portion of his property to Smithtown. The jury awarded a total of $102,000 in compensatory damages against Smithtown and Dowling and $9,500 in punitive damages against Dowling. The district court then awarded $48,276 in attorney's fees.

DISCUSSION

On appeal, Smithtown and Dowling ² contend that: (i) the Walzes have no constitutionally protected property interest at stake; (ii) any such property interest would be subject only to procedural, rather than substantive, due process protection; (iii) Dowling is protected by qualified immunity; (iv) the district court erred by allowing the jury to award compensatory damages based upon emotional distress and pain and suffering and the jury award is excessive; and (v) the district court erred in calculating attorney's fees.

A. The Existence of a Protected Property Right

The district court held that there is a fundamental right to water supply protected by the Due Process Clause. This is a novel ruling. We may take judicial notice of the fact that a multitude of local governments do not supply water to their residents, and there is no authority suggesting that these governmental units are in violation of the Constitution. To be sure, a denial of water supply to one resident while providing it to others in similar circumstances, or, as here, an exacting in the case of one applicant of onerous and extortionate conditions that were unrelated to the merits of the application, might give rise to an Equal Protection claim, see Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985) (Equal Protection clause "is essentially a direction that all persons similarly situated should be treated alike."), but no such claim was pleaded in this action.

However, we need not address this issue. Whether the Walzes had a property right was resolved as a matter of law, and the special interrogatories submitted to the jury focused upon Dowling's conduct in voiding the original excavation permit and refusing later to issue an unconditional permit. ³ See Note 1, supra. If the Walzes had, as a matter of law, a property interest in the issuance of an excavation permit, the district court's reliance upon a supposed property right in water supply would not affect the jury's verdict, although the deprivation of water supply would be relevant to damages. Because we believe that the Walzes had a property right in an excavation permit, we need not reach the issue of a right to water supply.

When an unsuccessful applicant for a governmental permit claims that an official or regulatory body has violated due process, the framework for evaluating the claim is the well-developed property interest analysis, which has its origins in the Supreme Court's In Yale Auto Parts, 758 F.2d at 59, we stated that a "legitimate claim of entitlement" exists where, "absent the alleged denial of due process, there is either a certainty or a very strong likelihood that the application would have been granted." This test focuses on the amount of discretion committed to the issuing authority, not the estimated probability that the authority would act favorably in a particular case. See RRI Realty, 870 F.2d at 918. As we observed in RRI Realty, "[t]he 'strong likelihood' aspect of Yale Auto Parts comes into play only when the discretion of the issuing agency is so narrowly circumscribed that approval of a proper application is virtually assured; an entitlement does not arise simply because it is likely that broad...