Gagliardi v. Village of Pawling

• Decision Date: 09 March 1994
• Docket Number: No. 666,D,666
• Parties: Vincent GAGLIARDI and Sally Gagliardi, Plaintiffs-Appellants, v. The VILLAGE OF PAWLING; Joseph Governale; Louis Musella; Thomas Sage; Darrell Dumas; Robert Nielsen, individually and as members of the Board of Appeals of Pawling; the Board of Appeals of the Village of Pawling; The Planning Board of the Village of Pawling; the Board of Trustees of the Village of Pawling; Bluford Jackson, Building Inspector of the Village of Pawling, Defendants-Appellees, Lumelite Corporation, Defendant. ocket 93-7639.
• Court: U.S. Court of Appeals — Second Circuit

Page 188

18 F.3d 188

Vincent GAGLIARDI and Sally Gagliardi, Plaintiffs-Appellants, v. The VILLAGE OF PAWLING; Joseph Governale; Louis Musella;

Thomas Sage; Darrell Dumas; Robert Nielsen, individually

and as members of the Board of Appeals of Pawling; the

Board of Appeals of the Village of Pawling; The Planning

Board of the Village of Pawling; the Board of Trustees of

the Village of Pawling; Bluford Jackson, Building Inspector

of the Village of Pawling, Defendants-Appellees,

Lumelite Corporation, Defendant.

No. 666, Docket 93-7639.

United States Court of Appeals, Second Circuit.

Argued Nov. 15, 1993.

Decided March 9, 1994.

Robert A. Spolzino, Mt. Kisco, NY (Thomas J. Singleton, Mt. Kisco, NY, of counsel), for Plaintiffs-Appellants.

Lisa Shrewsbury, New York, NY (D'Amato & Lynch, New York, NY, of counsel), for Defendants-Appellees.

Before: MINER, MAHONEY and HEANEY, ^* Circuit Judges.

MINER, Circuit Judge:

Plaintiffs-appellants Vincent and Sally Gagliardi appeal from a judgment entered on May 27, 1993 in the United States District Court for the Southern District of New York (Brieant, J.) dismissing their complaint for failure to state claims under 42 U.S.C. Secs. 1983, 1985 & 1986. The Gagliardis allege in the complaint that the Village of Pawling, the Pawling Village Zoning Board of Appeals ("ZBA") and its individual members, the Pawling Village Planning Board ("Planning Board"), the Pawling Village Board of Trustees ("Board of Trustees") and Village Building Inspector Bluford Jackson (collectively, the "Municipal Defendants") made improper zoning decisions affecting industrially zoned property owned by the Lumelite Corporation adjacent to the Gagliardis' residentially zoned property. They also allege that the Municipal Defendants failed to enforce the zoning laws as to the Lumelite property, all in a series of purposeful, retaliatory and conspiratorial actions designed to deprive them of their constitutional rights to substantive and procedural due process, equal protection and free speech.

The district court dismissed the complaint, finding that the Gagliardis did not have a property right in the enforcement of the zoning laws against others and that they failed to establish any viable equal protection or free speech claims. The Gagliardis contend on appeal that the district court erred in dismissing the complaint. For the reasons that follow, we affirm the district court's dismissal of the due process and equal protection claims and reverse the dismissal of the free speech claim.

BACKGROUND

The Gagliardis purchased their residentially zoned property in the Village of Pawling, New York in 1975. Adjoining the property to the south is the industrially zoned property where Lumelite operates a plastics factory. In November of 1990, the Gagliardis commenced this lawsuit against the Village of Pawling, the ZBA, and its individual members, the Planning Board, the Board of Trustees, Building Inspector Bluford Jackson and Lumelite, alleging that these Municipal Defendants deprived the Gagliardis of their rights under the First, Fifth and Fourteenth Amendments, in violation of 42 U.S.C. Secs. 1983, 1985 & 1986, by making certain improper zoning decisions and by failing to enforce zoning regulations affecting the Lumelite property.

Given the posture of this proceeding, we accept the factual allegations in the complaint as true. In 1966, Lumelite entered into an agreement with Pawling whereby, in exchange for variances and rezoning, it promised (1) not to expand its operations to the north in the future; (2) to stucco and landscape its building; and (3) that machinery installed in the future would be located on the southern portion of the property. In 1981, Lumelite closed its main plant in Brewster, New York and consolidated its operations at the Pawling plant.

The Gagliardis allege that Lumelite then began violating provisions of the Pawling Zoning Code (the "Code") and the 1966 agreement with the Village by adopting manufacturing The Gagliardis assert that the Municipal Defendants have engaged in a purposeful course of conduct designed to prefer unfairly the commercial interests of Lumelite. In 1981, for example, Lumelite constructed two industrial chillers on the northerly side of its property, allegedly without the approval of the Planning Board and in violation of the Code. The chillers purportedly cause excessive noise and vibration, also in violation of the Code, and, despite consistent complaints, the Municipal Defendants have done nothing to correct the situation. In 1985, in response to complaints by the Gagliardis and others, Pawling enacted a noise ordinance that set limits for noise generated by commercial and industrial operations in the Village. Allegedly, Lumelite's operations, including the chillers, are in continuous violation of the noise ordinance, and the Municipal Defendants have neither developed a procedure for testing noise levels generated by Lumelite nor taken measures to enforce the ordinance.

procedures that caused excessive noise and vibration and storing explosive material that created a hazardous situation and in various other ways. These violations allegedly have continued in varying degrees since 1981. The Gagliardis contend that they complained to Building Inspector Jackson and to Lumelite, and attended public meetings of the Board of Trustees, the Planning Board and the ZBA to voice their concerns about the violations, all to no avail.

Also in 1985, Lumelite sought to construct two storage silos on the northern side of its property adjacent to the Gagliardi premises. Building Inspector Bluford granted Lumelite a building permit to erect the silos without approval of the Planning Board or the ZBA, in violation of the Code. The Gagliardis allege that, in response to their protest, the Municipal Defendants allowed Lumelite to submit an "after the fact" environmental assessment form and that, on November 4, 1985, the Planning Board held an "unannounced and secret" meeting to confirm the "illegal actions." On November 7, 1985, Lumelite constructed the silos.

In December of 1985, the Gagliardis filed an Article 78 petition in the New York Supreme Court, Dutchess County (Beisner, J.) against Building Inspector Jackson, the Board of Trustees, the Planning Board and the ZBA, seeking to compel cancellation of the building permit issued with respect to the silos. While this petition was pending, the ZBA granted Lumelite a height variance for the silos, contingent on Lumelite taking certain protective measures relating to parking and the loading and unloading of tank trucks. Also, Lumelite was required to plant trees to form a screening barrier on the northern side of its property, on the border of the Gagliardi property. The Gagliardis allege that these provisions were insufficient to protect their rights and, in any event, have not been complied with or enforced. In a December 22, 1987 judgment, the New York Supreme Court granted their petition and annulled the building permit and site plan approval granted by the Planning Board. The Gagliardis allege that the defendants failed to comply with the 1987 judgment and that the silos were removed in September of 1990 for unrelated reasons.

Finally, in 1990, Lumelite arranged a property "swap" with the Masonic Guild of Pawling (the "Guild"). The Guild had operated a lodge, which was destroyed by fire in January of 1989, on property adjacent to the southwest portion of the Lumelite property. In May of 1989, the Guild had been denied a site plan approval for the restoration of the lodge because it needed certain variances. The Guild then filed an application for the necessary variances with the ZBA but later entered into an agreement with Lumelite to exchange the Guild's property for a parcel of land on the Northwest portion of the Lumelite property, adjoining the Gagliardi property.

The Guild modified its pending ZBA application to seek seven area variances and two use variances for the reconstruction of the lodge on the swapped property. After hearings in March, April and May of 1990, at which Sally Gagliardi voiced strong opposition to the granting of the variances, the ZBA, on May 31, 1990, granted the Guild the relief requested. The ZBA determined that the Guild's application was "a relocation of a nonconforming building and nonconforming use and therefore the strict application of the The Gagliardis thereafter commenced this action against the Municipal Defendants and Lumelite, alleging that the foregoing events comprised a series of purposeful, retaliatory and conspiratorial actions designed to deprive the Gagliardis of their constitutional rights. The complaint includes seven causes of action. The first four allege deprivation of the Gagliardis' rights to procedural and substantive due process, equal protection and free speech, in violation of 42 U.S.C. Sec. 1983. The fifth and sixth causes of action allege a conspiracy and neglect to prevent a conspiracy to violate the Gagliardis' constitutional rights, in violation of 42 U.S.C. Secs. 1985 & 1986. The seventh cause of action alleges common law nuisance.

                criteria ordinarily applied to a use variance are not required."   The Gagliardis commenced a second Article 78 proceeding in Supreme Court, Dutchess County, challenging the May 31, 1990 determination on the grounds that the decision of the ZBA was in violation of applicable zoning laws and statutory and common law rules of zoning.  That proceeding was dismissed on July 29, 1990 as time barred
                

By stipulation, the complaint was dismissed without prejudice against Lumelite in December of 1990. On December 19, 1990, the Municipal Defendants moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. The district court sua sponte converted the motion to one for summary judgment and, in a Memorandum Decision and Order dated ...