Posted by: Patricia Salkin | January 16, 2010

Town Planning Director Not Required to Meet with Potential Applicant after Litigation is Initiated

Plaintiff is a principal of a development company that obtained the right to acquire land and develop residences.  Plaintiff was scheduled to meet with the Town’s Board of Selectmen to extend the Town’s sewer system to the land being developed but the meeting was delayed upon learning that the Plaintiff had a pending lawsuit against a police officer.  After a delay, the Board met with the Plaintiff and rejected his request by a 5-0 vote.

In response, plaintiff filed two lawsuits.  The first alleged that the Board rejected the sewer extension in retaliation for the lawsuit with the police officer.  Following filing of the suit, plaintiff requested a meeting with the Town’s Director of Planning and Zoning.  Following the advice of an attorney, the Town official notified plaintiff that all communication would have to be done in writing.  Plaintiff then filed a second suit alleging that the Town official’s refusal to meet with him was “a retaliatory deprivation of his First Amendment right to petition the government and a violation of his Fourteenth Amendment equal protection rights.”

The Second Circuit Court of Appeals stated that while the First Amendment prohibits retaliation against an individual who exercises their right to sue the government, a government official is not expected “to behave with a litigation adversary exactly as they would if the person were not a litigation adversary.”  The precautions taken by the Town officials were reasonable and prudent to avoid prejudice in the pending suit, especially when the plaintiff suffered no harm.  Furthermore, the floodgates of litigation would open if government officials that take such prudent precautions were open to a subsequent suit for unconstitutional retaliation.  The Court also noted that the Plaintiff had no official business with the Town and had not filed any applications.

Tuccio v. Marconi, 2009 WL 4877777 (2nd cir. Conn 12/18/2009).

The opinion can be accessed here

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