Posted by: Patricia Salkin | September 16, 2013

2nd Circuit Court of Appeals Finds No Violation of First Amendment Protection from Retaliation and No Equal Protection or Due Process Violations from Enforcement of Zoning

In 2006, home-heating propane vendor Musco Propane LLP applied for and received approval and a Certificate of Occupancy to locate a 30,000-gallon, above-ground propane storage tank on company-owned property in Wolcott, Connecticut. After running the business successfully through 2009, Musco applied in the spring of 2009 to install another tank of the same size on the same parcel. The Town of Wolcott Zoning Commission was unhappy with the second application, and notified Musco by letter that they had recently discovered a zoning provision which actually prohibited fuel storage tanks in excess of 10,000 gallons, which had been in effect in 2006 when Musco had received its first approval. Musco withdrew its application for the second tank.

Shortly thereafter, in October 2009, an individual resident whose property was near the Musco tank demanded that the Town Council investigate the improper approval of Musco’s first tank, calling the storage tank “a 120,000 pound bomb within 800 feet of his house.” During this time, Randy Petroniro, a half-owner of Musco, ran for and was elected to the Wolcott Town Council. Once on the Town Council, Petroniro submitted a new application on behalf of Musco for a second 30,000-gallon propane storage tank or, in the alternative, four 10,000-gallon storage tanks, to be sited on the Musco property. Petroniro also sought to change the Town Law prohibiting storage tanks over 10,000 gallons, proposing to increase the limit to 30,000 gallons.

At a February 2010 meeting, it was revealed that Musco had been engaging in retail and wholesale propane sales from its property since 2006, despite zoning regulations allowing only retail sales in that zone. The Zoning Commission subsequently denied both of Musco’s applications for additional tanks, as well as Petroniro’s proposed amendment to the Town storage tank law, and Musco appealed all of these decisions in state court. Shortly after the February 2010 meeting at which it was revealed that Musco had been illegally operating a wholesale business from its property, the Town Zoning Enforcement Officer issued Musco a Cease and Desist Order, directing the company to stop selling propane wholesale. Musco also appealed this Cease and Desist Order. In September 2010, Musco filed a claim in federal court, alleging that the Town had violated its First Amendment rights by retaliating for Petroniro’s election to the Town Council and for Musco’s lawsuits in state court; that the town had engaged in selective zoning enforcement, in violation of Musco’s right to equal protection; and that the Town had infringed on Musco’s property rights, in violation of due process. The District Court
granted summary judgment to the Town on the due process issue, and entered judgment in favor of the town on the retaliation and equal protection issues. Musco appealed.

On the First Amendment retaliation claim, the Second Circuit held that the First Amendment did protect Petroniro’s election to the Town Board and Musco’s decision to file suit in state court, but failed to find the second element of First Amendment retaliation — that Musco’s conduct prompted or substantially caused the town’s response. Musco attempted to claim there was “close temporal proximity” between its political and legal activities and the Town’s allegedly retaliatory response, however, the Court held that the Town’s decision to enforce its zoning laws against Musco had happened back in 2009 when it discovered the zoning provisions barring Musco’s second storage tank and considered investigating the decision, which was before Musco or Petroniro had engaged in any protected speech. Thus, subsequent permit denials and enforcement actions were “forseeable outgrowths” of the Town’s discovery of new information, not merely from Musco’s and Petroniro’s protected speech. For those reasons, the Court could simply find no evidence of a First Amendment violation in this case, and the District Court’s holding in favor of the Town was affirmed.

On the matter of equal protection, the Court echoed the District Court, which had held that no rational juror could find a company similarly-situated to Musco had been treated differently, which Musco would have needed to prove under either a class-of-one or selective enforcement equal protection claim. Further, the Court found no evidence suggesting the Town’s denial of Musco’s permit requests was arbitrary or capricious, and thus that there had been no substantive due process violation. Lastly, the Court emphasized that its holding was silent on the matter of whether the Town had acted illegally toward Musco as a matter of state law, an issue it left up to the Connecticut courts to determine under Musco’s state law claims.

Musco Propane LLP v. Town of Wolcott Planning and Zoning Commission, 2013 WL 4711633 (2d Cir. 9/3/13)

The opinion can be accessed at:

The District Court decision appears on the blog here:

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s


%d bloggers like this: