1

12

- 3746

- cv Musco Propane, LLP v. Town of Wolcott Planning and Zoning Comm’n, et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



## SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or af

ter January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electron ic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marsh all United States Courthouse, 40 Foley Square, in the City of New York, on the 3 rd day of September , two thousand thirteen.

PRESENT:

P IERRE N. L EVAL , J OSÉ A. C ABRANES , C HESTER J. S TRAUB ,

Circuit Judges

.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x M USCO P ROPANE , LLP

, Plaintiff

- Appellant

,

- v.

- No. 12

- 3746

- cv

T OWN OF W OLCOTT P LANNING AND Z ONING C OMMISSION , T OWN OF W OLCOTT Z ONING B OARD OF A PPEALS , T HOMAS G. D UNN , in his individual and official capacity

, D AVID K ALINOWSKI , in his individual and official capacity

, R AYMOND M

AHONEY , in his individual and official capacity

, S AMUEL Z OTTO , in his individual and official capacity

, P ETER C ARMODY , in his individual and offic ial capacity

, C ATHE S HERMAN , in h er individual and official capacity

, W ILLIAM O LMSTEAD , in his individual and official capacity

, S TEVEN G RANT , in his individual and official capacity

, B RETT M UCCINO , in his individual and official capacity

, P AUL M AZUREK , in his individual and official capacity

, J OHN J ONES , in his individual and official capacity

, T OWN OF W OLCOTT ,2 Defendant s

- Appell ees

.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

FOR PLAINTIFF

- APPELLANT : E RIC M. G R ANT , Yamin & Grant, LLC

, Waterbury, CT

.

FOR DEFENDANTS

- APPELLEE S : M ELINDA A. P OWELL (Johanna G. Zelman, on the brief )

, Rose Kallor, LLP

, Hartford, CT

.

Appeal from the September 4, 2012 judgment of the United States District Court for the
District of Connecticut (

Janet C. Hall

, Judge

).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the September 4, 2012 judgment of the District Court be AFFIRMED

. Plaintiff Musco Propane, LLP, (“Musco”) appeals an order of the District Court granting the motions for summary judgment of the defendants, who include the Town of Wolcott, its Planning and Zoning Commission (the “Zoning Commission”), and its Zoning Board of Appeals (the “Board of Appeals”), as well as the Mayor and individual membe rs of the Zoning Commission and Board of Appeals (referred to together as the “Town”). In substance , Musco claims that its

r ights under the First Amendment and the Equal Protection and Due Process Clauses of the
Fourteenth Amendment were violated when the Town denied Musco certain zoning permits and
issued Musco a Cease and Desist Order requiring it to halt its wholesaling of propane. We assume familiarity with the underlying facts and procedural history of this case.

BACKGROUND

Musc o is in the business of selling propane for home heating. In 2006, th e Zoning Commission approved Musco’s application to place a 30,000

- gallon, above

- ground propane st orage tank on its property in Wo lcott. From the end of 2006, when Musco received its Ce rtificate of Occupancy after installing the tank, until the s pring of 2009, Musco’s business proceeded without apparent problem. Indeed, we can infer that Musco’s business was at least somewhat successful, because in the spring of 2009 it applied to the Z oning Commission for permission to install a second 30,000

- gallon, above

- ground propane storage tank.

Unfortunately for Musco, the application for a second tank triggered a significant conflict with the Zoning Commission . According to Musco, soon after submitting its application, it received a letter from the Zoning Commission indicating that the Commission had “recently discovered” a zoning regulation that had been in effect since before Musco’s 2006 application had been granted, and that prohibited fue l storage tanks in excess of 10,000 gallons. Joint App’x 133. In response,
Musco withdrew its application for a second tank

.3

This was not the end of the story , however. At a meeting of the Town Council, on Octobe r 6, 2009 , Adolph Birkenberger, who liv ed near Musco

, demanded an investigation into the improper approval in 2006 of Musco’s original 30,000

- gallon tank. According to the minutes from that meeting, Birke nberger protested that the Zoni n g Commission had “permitted the installation of a 120,000 pound bomb within 800 feet of his house.” Id. at 689.

Around this same time, Musco’s 50%

- owner, Randy Petroniro, determined to become active in local politics. In November 2009, he was elected to the Town Council. A few months later, in January 2010, Mu sco re

- submitted its application for a second 30,000

- gallon tank, but this time included an alternative request for four 10,000

- gallon tanks

, as well as a proposal to amend Wolcott’s regulations to permit 30,000

- gallon propane tanks. On February 3, 2010, Musco’s attorney appeared at a Zoning Commission meeting to discuss his client’s requests. One of the members of the
Commission asked whether Musco carried on any wholesale business , noting that the applicabl e zoning regulation permitted only retail sales on Musco’s property . Musco’s attorney conceded that Musco had been engaged in both retail and wholesale activity since 2006. Shortly thereafter, the Zoning Commission denied the application for a second 30,000

- gallon tank and the proposed
amendment to t he Wolcott ’s Zoning Regulations . Musco appealed this decision to the Connecticut Superior Court.

Following the exchange between Musco’s attorney and the Zoning Commission , Musco came under scrutiny for operating a wholesale propane business. After consu lting with the Zoning Commission, Wolcott’s Zoning Enforcement Officer, defendant David Kalinowski, issued a Cease and Desist Order, instruct ing Musco to cease any wholesaling of propane. On April 7, 2010, Musco appealed the Cease and Desist Order to the Board of Appeals. That same day, the Zoning Commission held a hearing on Musco’s application for four 10,000

- gallon tanks. On May 19,
2010

— in what could not

, at this point , have been a surprise

— the Zoning Commission denied the application for the 10,000

- gallon tanks. Musco also appealed this decision to the Connecticut Superior Court. Finally, on August 9, 2010, the Board of Appeals upheld the Cease and Desist Order, and, soon thereafter, Musco appealed once again to the Connecticut Superior Court.

On S eptember 2, 2010, Musco brought this suit in the District Court for the District of
Connecticut , complaining that (1) the Town had retaliated against Musco in violation of the First Amendment, both for Petroni r o’s election to the Town Council and for Musco ’s decision to file lawsuits in the Connecticut Superior Court challenging the Zoning Commissio n’s decisions; (2) the
Town had denied Musco equal protection of the law both through selective enforcement and discrimination against it as a so

- called class

- of

- one; and (3) the Town had denied Musco due pr ocess of law by infringing on its property rights. On July 28, 2011, the Distr ict Court granted the Town’s motion to dismiss the complaint, but permitted Musco to re

- plead its retaliation and equal protection claims. After Musco filed an amended complaint and the parties proceeded through a course of discovery, on August 30, 2012, the District Court granted the Town’s motion s for4

summary judgment as to Musco’s remaining claims. On September 4, 2012, the Distr ict Court

en tered judgment in favor of the Town

.

DISCUSSION

We review de novo a district c ourt’ s decision to grant a motion to dismiss under Rule 12(b)(6), accepting all well

- pleaded facts in the complaint as true, and drawing all reasonable inferences in favor of the plaintiff. Fink v. Time Warner Cable , 7 14 F.3d 739

, 740

- 41 (2d Cir. 2013). We similarly
review de novo a d istrict court’ s grant of summary judgment, drawing all factual inferences in favor of
the non

- moving party. Maraschiell o v. City of B uffalo Police Dep’ t , 709 F.3d 87, 92 (2d Cir. 2013). Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A

genu ine issue exists for summary judgment purposes where the evidence, viewed in the light most favorable to the nonmoving party, is such that a reasonable jury could decide in that party’ s favor.” Rivera v. Rochester Genesee Reg’ l Transp. Auth. , 702 F.3d 685 , 693 (2d Cir. 2012) (citation and quotation marks omitted).

To prevail on its First Amendment retaliation claim, Musco “must show that (1) [its] conduct was protected by the First Amendment

, and (2) such conduct prompted or substantially caused
defendant ’s action .” Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals , 282 F.3d 83, 91 (2d Cir. 2002) (citations omitted); see also Zherka v. Amicone , 634 F.3d 642, 645 (2d Cir. 2011). There is no reasonable dispute that Petroni r o’s election to the Town Co uncil and Musco’s filing of lawsuits to challenge the Zoning Commission’s decisions were activities protected by the First Amendment. See,

e.g. , Elrod v. Burns , 427 U.S. 347, 356 (1976); Mozzochi v. Borden , 959 F.2d 1174, 1180 (2d Cir. 1992). The questio n is whether Musco has adduced evidence from which a reasonable juror could infer that the various denials of Musco’s zoning applications and the issuance of the Cease and Desist Order were prompted or substantially caused by Musco’s protected activities.

Musco first directs us to the timing of events, claiming that there was a “close temporal proximity” between its protected speech and the adverse actions. Musco Br. 17

. Of course, in some cases, such temporal proximity might be enough to overcome summar y judgment, where that proximity could give rise to an inference of causation. See, e.g.

, Nagle v. Marron , 663 F.3d 100, 111 (2d Cir. 2011). But in this case, Musco’s own recounting of events makes clear that the adverse actions began with the Zoning Com mission’s “discovery” of the relevant provisions of the Zoning Regulations

—

which happened well before Musco or Petroni r o engaged in any protected speech

. 1 Indeed, it was after this discovery, but before Musco or Petr o n ir o engaged in any protected speech

, that Adolph Birkenberger requested a “formal investigation” into the approval of Musco’s first tank.

1 W e note that Musco has made no allegation, let alone adduced any evidence

, that this “ discovery, ” such as it was, was made in anything other than good faith.5

Each of the actions taken thereafter by the Zoning Commission w as a natural outgrowth of the concerns voiced by Adolph Birkenberger. 2 In short, w e would be hard

- pressed to find a rational juror who could infer that a course of action begun before Musco’s protected speech could be caused by retaliation for that First Amendment activity

. See Slattery v. Swiss Reinsurance Am. Corp. , 248 F.3d 87, 95 (2d Cir. 2001) (“ Where timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an
inference of retaliation does not arise. ”).

Musco next refers us to the state ments of one of the members of the Zoning Commission

, Billy Olmstead. At his deposition

, Olmstead indicated that one reason he supported issuing an order directing Musco to cease and desist from engaging in the wholesale propane business was that
Musco wa s suing Wolcott and so should not be “give[n] a break.” Joint App’x 1462. This statement certainly suggests retaliatory animus on the part of Olmstead , but Musco has failed to demonstrate any causal nexus between Olmstead’s views and the decision to issu e the Cease and Desist Order. See Dougherty , 282 F.3d at 91. As the District Court explained, the Cease and Desist Order was not issued by the Zoning Commission, but rather by the Zoning Enforcement Officer and nothing in
the record shows that the Office r ever communicated with Olmstead about the decision to issue the Order. In sum, Musco has pointed to no evidence from which a reasonable juror could conclude that any adverse actions were taken by the Town on account of any of Musco’s First

- Amendment

pro tected activity. See id.

As for the equal protection claim, we agree with the District Court that no rational juror could find that a similarly

- situated company was treated any differently, as required for either a class

of

- one or a selective enforceme nt theory

. See Musco Propane , 891 F. Supp. 2d at 271

- 74 ; see generally
Fortress Bible Church v. Feiner , 694 F.3d 208, 222 (2d Cir. 2012) (class

- of

- one claims); Doninger v. Niehoff

, 642 F.3d 334, 357 (2d Cir. 2011) (selective enforcement claims)

.

2 Specifically, the Zoning Commission first denied Musco’s renewed appli cation for a 30,000

- gallon tank and its request to amend Wolcott’s regulations to permit 30,000

- gallon propane tanks. Both proposals were, of course, contrary to Wolcott’s regulations, and, if granted, would have exacerbated community opposition to Wolcot t’s already

- existing 30,000

- gallon t ank. The Town next ordered Musco to cease and desist from engaging in the wholesale of propane, which Musco’s attorney had admitted at a public meeting was occurring, and which at least appeared to be in direct

contrave ntion of the applicable zoning regulation. See Joint App’x 873 (permitting “ [r] etail sale and distribution of heating fuel and natural gas, specifically excluding storage tanks having a capacity in excess o f 10,000 gallons ”). To the extent that Musco con tends that it was covered by a separate regulation that did permit wholesa le business , we see nothing retaliatory in the Zoning Commission’ s view

— even assuming it might ultimately be found to be incorrect

— that the regulation pertaini ng specifically to heat ing fuel applied to Musco. See id. at 579

- 80. Finally, the Zoning Commission denied Musco’s application for four 10,000

- gallon tanks. Although it is true that the regulations do not appear to prohibit the installation of four 10,000

- gallon tanks, the Zo ning Commission’s decision not to approve the r equest was related, among other things, to safety concerns associated with the already significant amount of propane stored in the 30,000

- gallon tank on Musco’s property , as well as to Musco’s wholesaling, whi ch the Commission reasonably believed to be in violation of the Town’s regulations

. See id. at 580. Each of the steps taken by the Town was logically connected, in sequence, to the original public complaint, lodged prior to any speech protected by the Fi rst Amendment, that Musco had installed an illegal tank.6

Finally , as the District Court explained, even if Musco were entitled to the permits it requested

— a question we surely do not answer in the affirmative

— nothing in its complaint could plausibly give rise to the inference that the Zoning Commission’s decisions were arbitrary or abusive, as would be required to prevail on a substantive due process claim. See Musco Propane, LLP v. Town of
Wolcott , Civil Case No. 3:10

- cv

- 1400 (JCH), 2011 WL 3267756, at *5

- 8 (D. Conn. July 28, 2011) ; see generally Ferran v. Town of Nas sau , 471 F.3d 363, 369

- 70 (2d Cir. 2006)

.
We emphasize that we make no comment as to whether the Town’s actions were proper as a matter of state law. We conclude only that Musco has failed to adduce sufficient evidence from which a rational juror could c onclude that the actions of the defendants amounted to a violations of Musco’s rights under the Constitution of the United States. It is for the state courts of Connecticut to determine whether Musco may have otherwise been the su bject of illegal action b y the T own.

CONCLUSION

We have revi ewed the record and the parties’ arguments on appeal. For the reasons set out above, we AFFIRM the September 4 , 2012 judgment of the District Court.

FOR THE COURT, Catherine O’Hagan Wolfe, Clerk of Court