The U.S. District Court for the District of Connecticut dismissed a complaint against the Town of Wolcott, holding that claims brought by Musco Propane LLP were not sufficiently pled to establish that actions taken by zoning officials violated the constitutional rights of the propane dealer and distributor. The court also granted Musco 21 days to amend its complaint, by pleading facts with more specificity, but noted that some of the allegations would be more appropriately handled in litigation already underway in Connecticut Superior Court.
Disputes arose in 2009, after Musco sought permission to install a 30,000-gallon propane storage tank on its property. A zoning enforcement officer discovered that permission for an existing 30,000-gallon storage tank had been granted in error in 2006, and told Musco that the company would not get permission for a second tank. The zoning enforcement officer further informed Musco that a directive preventing the expansion came from the mayor, but also suggested that zoning regulations did not limit the number of 10,000-gallon storage tanks that could be installed.
Musco responded by submitting three zoning applications: 1) to amend zoning regulations to permit 30,000-gallon storage tanks, 2) to permit a second 30,000-gallon storage tank on the Musco property, and 3) to permit four 10,000-gallon storage tanks on the Musco property. The town’s planning and zoning commission agreed to consider Musco’s application for 10,000-gallon tanks, but denied Musco’s other applications, and eventually denied an amended application for three 10,000-gallon tanks as well. Although the 2006 permit granting the existing 30,000-gallon storage tank did not limit the use of the tank to retail sales, the town began to question whether Musco, which sold some of its propane to other propane dealers, could act as a wholesale distributor. Eventually, the zoning enforcement officer issued a cease and desist order directing Musco to cease all wholesale propane sales.
In the federal court lawsuit, Musco alleged that it had been singled out for different treatment than other propane dealers, that the town’s actions infringed on Musco’s property interests in an irrational manner, and that the town issued the cease and desist order in retaliation for Musco’s appeal of the zoning decisions. The district court concluded that equal protection, due process and First Amendment retaliation claims had not been pled with adequate detail, but might withstand a motion to dismiss if Musco alleged specific examples of disparate treatment, established that the zoning board’s actions were arbitrary or irrational, and offered a timeline of events that supports the retaliation claim.
The court did not consider immunity defenses brought by the defendants, but stated that it would consider such claims if amended pleadings with a more fully developed factual record were sufficient to withstand a motion to dismiss.
Musco Propane, LLP v. Town of Wolcott, 2011 WL 3267756 (D. Conn 7/28/2011)
