Posted by: Patricia Salkin | May 19, 2016

Fed Dist. Court in NY Denies Motion to Dismiss Malicious Prosecution, Equal Protection, First Amendment Retaliation, and Abuse of Process Claims Arising from Zoning Dispute

In September 2002, Plaintiff John Macdonough purchased a skid steer and dump trailer and contacted Spaman, Code Enforcement Officer for the Town of Frankfort to see if he would be allowed to store this equipment on his property at 114 Hayes Road in Frankfort, New York (“Hayes property”). Spaman advised Plaintiff that since this equipment was agricultural in nature, it could be stored on the property in accordance with town zoning law as the Hayes property was within a Residence-Agriculture District. In June 2003, Plaintiff purchased an excavator and again contacted Spaman to determine if this additional piece of equipment could be stored on the Hayes property; Spaman told Plaintiff the storage of this equipment was also permitted use of the property. In March 2007, Plaintiff completed the purchase of property located at 2236 Albany Road in Frankfort, New York. Before closing on this property, Plaintiff contacted Spaman to determine if all of the aforementioned equipment could be stored on the property, and she said it could be stored there in compliance with town regulations.

Piazza sent an email to Joseph Kinney, Town Supervisor for the Town of Frankfort, requesting that Plaintiff be prosecuted for the Albany Road property’s alleged lack of compliance with local zoning law. Spaman served Plaintiff with a Notice and Order to Remedy, later calling Plaintiff to apologize because “she was ordered from ‘higher up’ to issue” the Notice, even though she believed he was in compliance with RA District zoning regulations. Plaintiff sought a special use permit from the Town’s Zoning Board of Appeals (“ZBA”), which was denied following a public hearing. In July 2012, Plaintiff filed an Article 78 Petition in Herkimer County Supreme Court challenging the ZBA’s denial of his special use permit application. The decision stated that as long as the equipment is agricultural equipment, there was no need for a special use permit, and as a result, Plaintiff’s application for a special use permit was unnecessary and therefore denied. After the court’s decision in the Article 78 proceeding, Defendants reinitiated criminal prosecution of Plaintiff for his alleged violation of zoning laws, and sought imprisonment, fines at the rate of $250 per day, and “serious legal repercussions.” Plaintiff was found not guilty, and the Town’s attorney sent a letter to Plaintiff threatening further legal action after the verdict was rendered. Plaintiff then brought this action, claiming malicious prosecution and a host of retaliation and due process claims.

At the outset, the court noted that since the Town of Frankfort was named as a Defendant in this action, all claims against Spaman and Kinney in their official capacities were dismissed as redundant of the claims asserted against the Town. However, the Court found that Plaintiff adequately alleged that Spaman was an official with final decision-making authority and that she could have caused or contributed to the constitutional violations. Here, Spaman identified herself as the head of a department with the final authority on determinations as to whether landowner’s use of property conformed with Town code and zoning law. The court therefore found that Plaintiff established liability on behalf of a municipality under § 1983.

As to the malicious prosecution claim, the court found that Plaintiff adequately pleaded a deprivation of liberty since he was required to appear no fewer than nine times for this matter. Moreover, the Second Circuit has held that the requirement that a defendant released on his own recognizance “render himself at all times amenable to the orders and processes of the court” is sufficient to implicate the Fourth Amendment. The court also denied the motion to dismiss Plaintiff’s class-of-one claim since there was no rational basis for the difference in treatment accorded to the comparator Leitz and Tomaino properties. Here, Plaintiff and Leitz used their property in a similar fashion from 2007 to 2009 without incident; in 2010 Defendants began citing Plaintiff for zoning violations, although they have never cited Leitz. Furthermore, the Tomaino property was also used similarly to Plaintiff’s property “for many years” without receiving a citation.

The court also found that Plaintiff’s selective enforcement, abuse of process, and First Amendment retaliation claims were adequately plead, since it was plausible that Defendants’ decision to resume criminal proceedings against Plaintiff following his victory in the Article 78 proceeding was motivated by retaliatory animus. Conversely, Plaintiff’s substantive due process claim was denied, as Plaintiff failed to establish a “clear entitlement” to maintain excavation equipment on the Albany Road property. Here, the Frankfort Town Code § 88-8 provides uses as of right and special uses that are permitted “in the discretion of the Board of Appeals.” Lastly, the court rejected Defendants’ qualified immunity defense because the court could not find as a matter of law that a reasonable official in Defendant Spaman’s position would not have understood that it would be wrong to irrationally treat the Plaintiff and his property differently than the other owners and properties related to this case.

Macdonough v Spaman, 2016 WL 1298134 (NDNY 3/31/2016)

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