Santucci v. Levine

Background

Dennis Santucci and Kimberley Santucci sued the Town of Southeast, Town Building Inspector Michael Levine, Town Attorney Willis Stephens, and Town Supervisor Tony Hay under 42 U.S.C. § 1983. That statute provides a way to seek relief for violations of constitutional rights by government actors. The Second Amended Complaint asserted five claims:

The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal when a complaint does not state a legally sufficient claim. The court considered certain documents referenced in the complaint or subject to judicial notice. It also considered allegations from before the three-year limitations period as background for timely claims, but did not treat those older events as independently actionable.

Selective-enforcement claims

The Santuccis alleged that Town officials enforced zoning and building rules against them while failing to enforce similar rules against their neighbor, Heinecke. To state a selective-enforcement equal-protection claim, they needed to allege facts plausibly showing that their property and Heinecke’s property were similarly situated in all material respects, along with an improper discriminatory, retaliatory, malicious, or bad-faith motive.

The court held that the allegations did not plausibly show that the properties were similarly situated. The alleged similarities were that the properties were adjacent, were in the same type of zoning district, and may both have violated some grading and filling rules. The court found significant differences, including that Heinecke’s racetrack had been treated as a pre-existing nonconforming use and that the properties were used differently. The court also noted that the Santuccis were cited for matters such as keeping too many chickens, storing a commercial construction vehicle in a residential zone, and having an above-ground pool, while the allegations concerning Heinecke involved a racetrack and other uses.

The court therefore dismissed the first claim against Stephens and Levine. It also dismissed the second claim against the Town because that claim depended on the same alleged constitutional violation.

First Amendment retaliation claims

The Santuccis alleged that Stephens and Levine retaliated against them after they complained about conflicts of interest and unequal enforcement, including through violation notices, stop-work orders, and repeated property inspections. The court explained that protected speech must occur before the allegedly retaliatory action.

The court found that the key enforcement actions began in March 2014, before the Santuccis complained about unequal enforcement. It also found that the complaint did not plausibly allege that later enforcement actions were caused by complaints to the Town Board, the Planning Board, or the hiring of lawyers and experts. The court consequently dismissed the third claim against Stephens and Levine and the fourth claim against the Town.

Free-speech claim

The fifth claim concerned a November 15, 2017 Town Board meeting. The Santuccis alleged that Dennis Santucci tried to discuss selective enforcement of the zoning code during public comment, but Hay stopped him after it became clear that he intended to criticize Town officials. They also alleged that the meetings were open to the public, that people regularly spoke about public issues including zoning, and that the Town Board had not imposed content restrictions on public comments.

The court treated the meeting as a limited public forum, where speech restrictions must be reasonable and viewpoint neutral. It held that the allegations plausibly stated a First Amendment claim because the Town allegedly allowed similar public discussion but stopped Santucci when he began criticizing Town officials. The court denied the motion to dismiss this claim against the Town and Hay in his individual capacity.

The court dismissed the same claim against Hay in his official capacity as duplicative of the claim against the Town. It did not dismiss Hay from the case because the complaint did not specify his capacity and the court treated him as sued in his individual capacity as well.

Disposition

Judge Philip M. Halpern granted the defendants’ motion to dismiss in part. The first, second, third, and fourth claims were dismissed. The fifth claim was dismissed insofar as it was asserted against Hay in his official capacity. The fifth claim against the Town and Hay in his individual capacity was allowed to proceed to discovery. The defendants were directed to answer the Second Amended Complaint within fourteen days.