Posted by: Patricia Salkin | July 19, 2013

Fed. Dist. Ct in Conn Dismisses First Amendment Retaliation and Equal Protection Claims

Property owner, Musco Propane (“Musco”), brought a § 1983 action against defendants, the town of Wolcott (“Wolcott”), and its planning and zoning commission (“PZC”), zoning board of appeals (“ZBA”), zoning enforcement officer (“ZEO”) among others, claiming that the defendants had violated their right to equal protection, and that they retaliated against them in violation of their First Amendment right to freedom of speech.

 

In 2006, Musco made an application to install a 30,000 gallon above-ground, propane storage tank on its property with the intent to use it as a bulk tank for loading propane tanks, for deliveries thru out their service area. Even though the zoning regulations allowed for retail sale and distribution of heating fuel and natural gas, it excluded storage tanks having a capacity in excess of 10,000 gallons. The zoning regulations prohibited Musco’s installation of the proposed 30,000-gallon tank. The PZC still approved Musco’s application. In 2009, Musco sought to install a second above ground 30,000-gallon tank with the intent that the stored propane would be sold for wholesale use for other companies as well as use for Musco’s customers. At the town meeting for the proposed plan a local resident complained about the 2006 tank approval.  Before a public hearing could be held on Musco’s application, Musco was notified that its application would be denied because of a recently discovered zoning regulation prohibiting fuel storage tanks in excess of 10,000 gallons, and it was also advised that its 2006 application had been granted in error. Musco subsequently withdrew its 2009 application. A month later Musco’s 50 % owner, Petroniro, was elected to the Wolcott Town Council.

 

In 2010, an investigation began into the granting of the 2006 application where the PZC members questioned Musco’s alleged wholesale activity and approximately one month later a cease and desist order was issued by the ZEO that instructed Musco to stop the wholesale of propane. Musco appealed and re-submitted its application and also included an alternative application for the installation of four 10,000 gallon above ground propane storage tanks and an amendment to the Zoning Regulations to allow for propane storage tanks up to 30,000 gallons. In reviewing the applications, the PZC also took in account a letter from the Town Planner, dated approximately two weeks prior to the filing of the appeal, stating that there was a regulation that prohibited bulk fuel storage tanks with a capacity in excess of 10,000 gallons, which also did not include the bulk storage of fuel or petroleum products. The PZC also took in account another letter stating that the PZC had approved Musco’s 2006 application in error. Based on the regulations and the letters the PZC denied the 30,000 tank and text amendment applications and accepted the 10,000-tank application for review. Musco appealed and the federal district court granted defendant’s motions for summary judgment holding that (1) Musco failed to show that adverse actions against it were retaliatory; (2) that the other applicants that obtained permission to install non-conforming propane storage tanks on their property were not similarly situated so as to support a class-of-one equal protection claim; (3) the other businesses that were allegedly allowed to engage in wholesale operations with impunity were not similarly situated; and (4) that Musco failed to show that its selective treatment was based on impermissible considerations.

On the matter of Musco failing to show that the adverse actions taking against it were retaliatory and in violation of their First Amendment right to freedom of speech, Musco was required to show that its conduct was protected by the First Amendment and that its conduct prompted or substantially caused the defendant’s actions. Musco asserted that it was retaliated against as a result of Petroniro’s election because they asserted that immediately after his election, the town council investigated Musco’s zoning permit, and as a result of its decision to appeal the denial, a cease and desist order was issued less than one month after. In its argument Musco supported its claims by relying on temporal proximity between its protected activity and the defendant’s adverse actions.

The defendants had also argued that Musco was required to demonstrate that its speech was “actually chilled” as a result of the their conduct, while Musco argued that a demonstration of “actual chill” was not required where a retaliation claim is based upon the misapplication of a zoning code. The court held that Musco failed to show that defendant’s actions were prompted or substantially caused by Petroniro’s election or its appeal to the state court. In fact, the complaint over the initial approval of the 2006 tank approval, and the opposition to the further expansion of its wholesale propane business predated the election and the appeal. The court also held that the “actual chilled” argument did not need to be resolved because Musco had failed to establish a disputed issue of material fact as to whether its protected conduct “prompted or substantially caused” any of the defendants’ adverse actions. Thus, the court granted summary judgment in favor of each of the defendants on Musco’s First Amendment retaliation claim.

With respect to other applicants obtaining permission to install non-conforming propane storage tanks, the court held that they were not similarly situated to Musco. The court stated that to support a class-of-one equal protection claim, Musco had to show a high degree of similarly between themselves and the persons to whom they compared themselves. They also had to prove that they had been intentionally treated differently from those persons and that there was no rational basis for the difference in the treatment. The court held that the other applicants that obtained permission from the town to install non-conforming propane storage tanks, despite the zoning ban on fuel storage tanks larger than 10,000 gallons, were not similarly situated to Musco, because their tank applications were granted five to six years prior to the denial of Musco’s applications, and Musco had not offered any evidence that the other applicant’s applications would have been granted had they applied to install non-conforming tanks when Musco did.

Addressing the allegation that other businesses that were allegedly allowed to engage in wholesale operations with impunity for purposes of the cease and desist order, the court held they were not similarly situated to Musco and the claim could not support Musco’s class of one equal protection claim. It was because these other businesses were not engaged in wholesale distribution of heating fuel or natural gas, but rather wholesale distribution of lumber and party supplies. The town’s zoning ban did not prohibit wholesaling of any kind, but prohibited only the wholesaling of heating fuel and natural gas. The failure to issue cease and desist orders for these companies did not single out Musco for unequal treatment.

On the matter of Musco failing to show that its selective treatment was based on impermissible considerations, the court stated that a plaintiff trying to establish a selective equal protection claim must show that compared to others similarly situated, it was selectively treated, and that treatment was based on impermissible considerations. Which include race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person. The court held that even if Musco could establish that the other businesses that obtained permission from town to install non-conforming propane storage tanks on their property, or that were allegedly allowed to engage in wholesale operations with impunity, were similarly situated, Musco still had failed to show sufficient evidence to support impermissible considerations. At best, the court stated, the record suggested that the defendants were hostile towards Musco’s business, but the hostility could not support an equal protection claim.

Musco Propane v. Town of Wolcott, 891 F.Supp.2d 261 (D. CT 8/30/2012)

The opinion can be accessed at: http://scholar.google.com/scholar_case?case=15595266849451852194&hl=en&as_sdt=2&as_vis=1&oi=scholarr


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