Daily Development for Tuesday, August 10, 1999

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

Thanks to David Lindsey for the tip on this one.

CONSTITUTIONAL LAW; EQUAL PROTECTION; ZONING DECISIONS: Where interference of public official on the basis of personal animosity leads to a zone change applicant receiving disparate treatment before a city zoning board, city is liable for denial of Constitutional rights under color of law.

Thomas.v. City of West Haven, 249 Con.. 385, 1999 Conn. LEXIS 211 (March 14, 1999 )

Thomas and his partners had earlier obtained a special use permit to operate a pool hall and video arcade on their property. At that time, at least one member of the city's zoning commission had opposed such action and apparently developed a personal bias against Thomas.

Subsequently, Thomas terminated the pool hall use and initiated a process for a zone change before the Zoning Commission. The court quotes liberally from the transcript of this hearing, during which two commissioners, Chair and Vice Chair of the Commission, sometimes resorting to crude language, demanded that applicant submit a site plan with his application, even though the planning staff several times advised the commissioners that no site plan was required. Ultimately a trial court reversed this finding based upon lack of adequate procedure and bias, stating that the decision had been "predetermined and that there had been a lack of a fair and impartial hearing.

At a second hearing, the application was again denied. Both the Chair and Vice Chair participated in the hearing and refused to be replaced, although Thomas attorney so requested and planning staff so recommended. The two did, however, after heated argument with staff and, recuse themselves from the final vote. The rest of the commission voted to deny the zone change. The trial court's comment upon this hearing, after listing to audio tapes of it, was as follows:

"At this point in the hearing the tapes indicate an attitude of animosity and disdain on the part of . . . [the two commissioners] for George Thomas. The court concludes that the conversations and comments revealed on these tapes, viewed in the light most favorable to the plaintiffs, demonstrates that Lewis and Saldibar treated . . . George Thomas with animosity and disdain.

Accordingly, the court finds that the plaintiffs have demonstrated that . . [the two commissioners] acted with malice in considering their application of June 23, 1987."

The trial court denied summary judgment following the plaintiff's presentation of the evidence. The city appealed from that ruling:

On Appeal: held: Affirmed. Judged by the standards of summary judgment, the evidence was sufficient to raise an inference that the plaintiffs had been denied a constitutional hearing and had been deprived of constitutional equal protection of the law.

The appeals court focused on an analysis of city practices to reach the conclusion that other applicants for zone change were not required to file a site plan. In the second hearing, the City argued, there was not site plan requirement imposed, and the two Commissioners whose conduct was in question did not vote, and the application was denied. In response to this argument, it is best simply to quote the court, so that readers can make whatever they will of the court's comments:

"We agree with the decisions of those courts that have recognized that when a government official acts as the moving force behind a deprivation of a plaintiff's constitutional rights, this is sufficient for liability under 1983. Malley v. Briggs, 475 U.S. 335, 344 n.7, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986) ( 1983 is read against background of tort liability that makes one responsible for natural consequences of his actions); Jeffries v. Harleston, 21 F.3d 1238, 1247 (2d Cir. 1994) ("[a] plaintiff may establish causation under section 1983 if he shows that the defendants participated in, or were 'moving forces' behind, the deprivation"), rev'd on other grounds, 52 F.3d 9 (2d Cir. 1995); Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 561 (1st Cir. 1989) ("the requisite causal connection [for liability under 1983] can be established [**40] not only by some kind of direct personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict constitutional injury"); see also Warner v. Orange County Dept. of Probation, 115 F.3d 1068, 1071 (2d Cir. 1996) ("an actor [sued under 1983] may be held liable for those consequences attributable to reasonably foreseeable intervening forces, including the acts of third parties").

Thus, the fact that [the two Commissioners] did not vote on the June 23, 1987 rehearing on the plaintiffs' application is not fatal to the plaintiffs' prima facie case. We conclude that the evidence previously discussed, regarding how . . . prominent members of the commission, acted toward the plaintiffs throughout the course of the zone change application review process, would support the inference that their conduct influenced the votes of the other commissioners."

The court ruled that, although the decision itself was an isolated incident, there was nevertheless a pattern of conduct leading to the incident, and therefore there was a "municipal policy" carried out by these two Commissioners for which the City could be liable under Section 1983.

Comment 1: There is an analytic leap here from the fact that the applicant was required, inappropriately to file a site plan at first hearing and the conclusion that the applicant was denied equal protection in the second hearing, when no site plan was required. This perhaps could be explained by the fact that at the time of the second hearing the City had adopted a resolution establishing a moratorium on zone changes for the purposes presented by applicant (although it had not yet gone into effect.) Perhaps the court focused on the fact that the delay "fed" the applicant into the jaws of this moratorium process. But the opinion also could be read for the simple conclusion that the expressed animosity of the two Commissioner necessarily colored all hearings in which they actively participated, including the second one, and that this, and not the site plan requirement, was the denial of Equal Protection.

If, indeed, this is the way to read the opinion, it is far broader in scope.

Comment 2: All in all, of course, a bad day for West Haven. Section 1983 claims can include attorneys' fees. This is an expensive claim. We probably will see a settlement here and no further appeals. The case will stand as a major precedent because of the scarcity of cases in which courts have found definitively that animus led to denial of equal protection of the laws in zoning matters. Comment 3: There is not a breath of discussion in the case on whether, in a zone change proceeding, applicants have property interests at stake for which they can argue deprivation of Constitutional rights. This perhaps is because such an argument is inappropriate for Equal Protection purposes, although it has been raised when Procedural Due Process claims have been made.

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