Petition for ReHearing — Dyno v. Village of Johnson City, New York (No. 07-905)

| FILED

MAY 8 - 2008

~~ es om

! OFFICE OF THE CLERK |

Docket # 07 - 905 SUPREME COURT, U.S.

Supreme Court of the United

States

Thomas Lamont Dyno

Petitioner

OF

The Village of Johnson City,

New York

Respondent

On Petition for Writ of Certiorari to

The United States Court of Appeals

For the Second Circuit

Petition for Rehearing

Thomas Lamont Dyno

46 Academy Street

Johnson City, New York 13790

(607) 729-0839

CONTENTS

POI shin tiliccccoeciaeatdecten eaten Pages li - 111

Jurisdiction & Timeliness ..................... Page 1

The reason for rehearing is .................. Page 1

Statement of Facts ......... ................. Pages 1-3

Facts in re Deep Issue ......... .............5. Pages 2 -3

a POT TOG aa ison cnn dacancisavinusecas Page 3

Argument ............ satan Pages 4-12

(1) Imposition of an administrative

zoning pr rea recondition

of my right to petition deprived me of

OR ooo 5 osc dn uaasecnnnn Pages 4 - 8

Jurisdictional Limits on

Judges & Zoning Boards .................. Page 5

Constitutional Right of Trial by Jury... Page 5

The Strict Construction Doctrine ......... Page 6

Interpretation v Strict Construction ...... Page 6

Limited Powers of Municipalities ...... ... Page 7

There is no right to impose a

WUT DUI oo sid ecccen sacred acatenaaes Page 8

If there is "Room for Interpretation"... Page 8

(ll) Letting the Village policy stand allows the

Village to subject and cause persons to be subject to

ARES CI os on sd scp ecdakssnueisdcanevees Page 9

Property Rights Protected .................. Page 10-11

TN cya ee dasarener eee oe Page 11-12

AUTHORITIES

U.S. Constitution

Ne connenncctccvncececaccsceecs 8

14™ Amondment .................2..cccceces ceceee: 3, 9

Statutes

TE MRO LD... ccccccccc cccccccccccccccecss: 5

MEE EOD, oc cccccsvccccccccccccscvccccccvesss 2

NYS Village Law §7-714 ......................08. 4

CC 4

le | eee ces ea idata erodes 1

Case Law

Aldred's Case 9 Coke Rep. F. 57b ....... ...... 11

Arkan N ral a : Arkans

Railroad Commission 261 U.S. 379 ......... 8

Booth v. R., W., & O.T.R.R. Co 140 NY 257

EE 11

Catlette v U.S, 132 F2d 902 .................... 8

Cogswell v NY, NH & H. R.R. Co.

| Pet uce as 6

In re Jacobs 98 NY 98 @105 ............... .. 10

Keystone Bituminous Coal Assn

v Benedictus 480 U.S. 470, 491 n. 20...... 8

Klostermann v Cuomo 61 NY 2d 525

475 NYS 2d 247; 463 NE 2d 588 ................ 12

Little Jo h Realty, Inc. v Town of Babylon

41 NY 2d 738; 363 NE 2d 1163;

ee a ee ee I kos de hice ha dca dacdedancaeicus 4, 5

Lugar v Edmonson Oil Co. 457 U.S. 922 ...4

Matter of 440 East 102°4 Street Corp. v

Mardinek 285 NY 298 .............................. 6

Matter of Hines v LaGuardia 293 NY 207 6

Matter of Scherbyn v Wayne Finger-Lakes

Brd. of Co-op Ed. Services, et al. 77 NY 2d

yi Boye fi eo SOE sper ies Seen eee spencer 5

Meyer v Nebraska (1923) 262 US 390, 399, 43 S.

Ct. 625, 67 L. ed. 1042, 29 ALR 1446 ........... 8

Munn v. Illinois 94 U.S. 113, 4 Otto 113, 24 L.

AE FF ocacerbiceacestecceiasacikisde eas 10

NYC v NYS 86 N.Y.2d 286, 655 N.E.2d 649, 631

Be ccs ebnsvedaiveteaasnsteun nee ue 7

People ex rel W.S. Electric Co. v CT & ES Co.

Be ee WE pancatvaks elas ake 7

Railway Co, v Arkansas 235 U.S. 350 ...... 8

Shelley v Kraemer 334 US 1, 22;

Be akc ee I reas a hard coed bade veccntacdinces 9

Worcester _v_ Worcester Consol. Street R.

Sle UE I i ea a 7

Yick Wo v Hopkins 118 US 356 @373-374 .. 11

Jurisdiction & Timeliness

This petition for rehearing, authorized by Rule 44.2

of this Court is filed within 25 days of the April 14,

2008 denial of My Petition for a Writ of Certiorari;

and as certified in good faith is limited to other

substantial grounds not previously presented.

The reason for rehearing is

(1) That illegal uses of land are proliferating under

an official policy of the Village in violation of the

Federal Constitution to my injury in fact and to

those persons similarly situated; and that

(2) Said Village policy was facilitated by an

arbitrary administrative procedure resulting

from the irreparable injury rule; and

(3) That this Court overlooked and allows to stand

an official Village policy which allows the

municipality to subject and cause a private

single family residential house holder to be

subjected to an adjacent private intentional

nuisance in fact, by an "interpretation" of her

zoning ordinance, where strict construction is

Constitutionally required.

Statement of Facts

1. My Monell complaint declaring 3 official Village

Policy actions that subjected and caused me to be

subjected to a private adjacent intentional nuisance

in fact depriving me of property without due process

of law in violation of Federal equal protection was

dismissed under FRCP 12(b)(6).

2. The NYS Court of Appeals ruled as settled law:

that if a municipality fails to enforce her zoning

|

ordinance then a person injured in fact may petition

for injunctive relief against a violation (hereinafter

"right to petition"). [I, I(A) p. 4 infra]

3. In re equitable relief The NYS 38% Department

Appellate Division (hereinafter "the 34 Dept.")

imposes the irreparable injury rule, requiring proof

of municipal refusal; and will not grant mandamus,

to compel enforcement of local law;

4. To avoid dismissal under the irreparable injury

rule the alternative is to file a complaint with the

local code enforcement officer: with hir decision

appealable to the zoning board of appeals and by

statute, the board's decision, is subject to NYS

CPLR 1178 mandamus to review.

Facts in re Deep Issue

6. Imposing a local administrative zoning procedure

between my injury in fact and my right to petition is

without authority resulted in a judgment without

due process obtained by fraud on the court and

deprived me of my right to petition under NYS law.

7. The 3" Dept., practice of requiring me to file a

zoning complaint before petitioning for injunctive

relief provided a lawyer with the opportunity to

improperly influence and mislead the local zoning

board: 1*t by means of a non-appealable informal

letter which the board adopted in part as its decision

and 24 by submitting to the NYS Supreme Court, de

hors matter never served upon me: comprised of a

lawyer's misrepresentation of the actual zoning

board decision supported by his interpretation of

local law in lieu of the strict construction. [I (A)(iv),

(B)(ili); pp., 6-7, 8 respectively]

4

~

8. The result of the foregoing misrepresentation and

deceit was a judgement in violation of settled rules

relegating mandamus to review to the grounds

invoked by the board, and in violation of the doctrine

that a municipal zoning ordinance must be strictly

construed. [I (A)(i) thru (iv), pp. 5-7].

9. The foregoing judgment continues to serve as the

basis of a general Village policy: declaring a lawyer's

interpretation of a zoning ordinance, in licu of the

strict construction thereof, rendering an intentional

nuisance in fact legal: while under strict construction

of the ordinance, the use is a prima facie zoning

violation, the legality of which was never fully or

fairly determined under State or Federal law.

10. The foregoing 3% Dept practice and judgment

deprived me of a full and fair opportunity under

settled NYS law to litigate an action for injunctive

relief against a prima facie zoning violation. [I, I (A)]

The Federal Issue

ll. The judgment dismissing the mandamus to

review petition was not based on the grounds

invoked by the board nor strict construction of the

ordinance but instead was based on a lawyer's

interpretation of the ordinance in violation of the

settled rule for mandamus to review and the strict

construction doctrine | pp. 5-7];

12. The Federal Issue arose when the Village Mayor

and Board of Trustees adopted said judgment and by

official Village policy action(s) declared all such uses

of land legal; and thereby created and defended a

private property interest outside the bounds of the

14» A. to the U.S. Constitution [I (B) ff (iv) pp. 8-9]

3

Argument

I) Imposition of an administrative zoning procedure

as a precondition of my right to petition deprived

me of Federal due process.

The Statutory Procedural Scheme of NYS Village

Law §7-714, as construed in Little Joseph Realty,

Inc. v Town of Babylon 41 NY 2d 738; 363 NE 2d

1163; 395 NYS 2d 428 @ NYS 24 431 headnote [1, 2]

declares that if a municipality fails to enforce her

ordinance a person injured in fact may petition for

injunctive relief against the zoning violation

Lugar v Edmonson Oil Co, 457 U.S. 922, 937, 941:

"(T]he deprivation must be caused by the

exercise of some right or privilege created by the

State ... Second, the party charged with the

deprivation must be a person who may fairly be

said to be a state actor .... [T]he procedural

scheme created by the statute obviously is the

product of state action. This is subject to

constitutional restraints and properly may be

addressed in a 1983 action, if the second

element of the state-action requirement is met

as well”.

[ was deprived of my right to petition so that a

lawyer's interpretation where strict construction is

required might serve as pretence to declare a private

nuisance and zoning violation legal.

(A) 28 USC 1652 requires the Federal Courts to

accept "[t]lhat the laws of the several states

shall be regarded as rules of decisions in trials

at the common law".

Under NYS Law:

(1) Jurisdictional Limits on Judges & Zoning Boards

Judges or Zoning boards or are not authorized to

rezone Little Joseph Realty, Inc. v. Town of

Babylon (op cit) 363 NE 2d 1168@ hdn [11]:

“[Wjhen it has been established that a

defendant violates a valid zoning ordinance,

there is no need for judicial accommodation of

the defendant’s use to that of the plaintiff. For

a court to do so would be for it to usurp the

legislative function ... If the defendants can

continue the unlawful use of property ... the

trial court’s judgment would have worked to

rezone the land ... notwithstanding the fact

that the power to do so is reserved to the town

board alone (National Land & Inv. Corp. v.

Easttown Twp. Bd. of Adjustment, 419 Pa.

904, 521-522, 215 A. 2d 597)”.

Ed. Services, etal, 77 NY 2d 753; 573 NE 2d 562:

“It is a settled rule that judicial review of an

administrative determination is limited to the

grounds invoked by the agency ... . If those

grounds are inadequate or improper, the court is

powerless to affirm the administrative action by

substituting what it considers to be a more

adequate or proper basis’

(ii) Constitutional Right of Trial by Jury

CPLR 4101.2 a private intentional nuisance in

fact is a triable issue and summary Judgment

cannot stand where a triable issue is present.

5

(111) The Strict Construction Doctrine

Matter of 440 East 102"° Street Corp. v

Murdock 285 NY 298 @ 304-305:

"Zoning laws which curtail and limit uses of

property confer no privilege upon property

owners. Even though in case of necessity such

laws are properly within the exercise of the

police power, the whole and each and every

one of the parts must be given a strict

construction since they are in derogation of

common-law rights”

Cogswell v NY, NH & H. R.R. Co. 103 NY 10 @ 21

“Statutes in derogation of private rights, or

which may result in imposing burdens upon —

private property, must be strictly construed....

The same principle is stated with unusual force

of language by Chief Justice Marshall in_lU/nited

States v Fisher (2 Cranch, 390). He says: ‘Where

rights are infringed, where fundamental

principles are overthrown, where the general

system of laws is departed from, the legislative

intention must be expressed with irresistible

clearness to induce a court of justice to suppose

a design to effect such objects”

(iv) Interpretation v Stnct Construction

Matter of Hines v LaGuardia 293 NY 207, 216

“(We do not find] ambiguity sufficient to raise a

reasonable doubt as to the intention of the

framers of those laws. In such circumstances,

we may not... give weight to administrative

practice [that] followed a course not approved by

6

P

either statute or rule. Administrative practice

may not thwart a statute the purposes of which

are as clear as those here involved [citing inter

alia| Neuberger v. Commiss. 311 U.S. 83, 88-89”.

x rel W.S. El j ' T&E

187 NY 58, 66-67:

“We are asked to adopt the interpretation of the

act of 1887 which would sustain the position of

the appellant on the ground that for several years

the statute was practically construed in

accordance with that view by various public

officers of the city of New York .... There is no

room for the application of the doctrine of

practical construction in the case of a statute free

from ambiguity or nut subject to any reasonable

doubt as to the meaning of its provisions....‘Where

no ambiguity or doubt appears in the law we

think the same rule obtains here as in other

cases, that the court should confine its attention

to the law and not allow extrinsic circumstances

to introduce a difficulty where the language is

plain’ (Cooley’s Const. Limitations [6 ed], p. 84”.

(v) Limited Powers of Municipalities

NYC vNY N.Y N. 1

N.Y.S.2d 553 citing Worcester v Worcester

Consol, Street R. Co. 196 US 539, 548-551.

Municipalities are mere agents of the State and

thus her only powers are those granted to her by

the Legislature; consequently she cannot have

any powers which the State does not or cannot

itself have; and no Judge can change that reality

with hir absolute immunity or otherwise.

_

(B) FVII, cl, 2 of the U.S. Const, in conjunction with

28 USC $1652 incorporates the foregoing State

law as well as the following precedents for the

vindication of my Federally protected rights:

(i) There is no right to impose a Private Nuisance

Keystone Bituminous Coal Assn v Benedictus

480 U.S. 470, 491 n. 20:

“(Nlo individual has a right to use his property

so as to create a nuisance or otherwise harm

others, the State has not ‘taken’ anything when

it asserts its power to enjoin the nuisance-like

activity”.

(ii) Common Law Property rights Federally protected

Catlette v U.S, 132 F2d 902 @ 906 hdn 3 alludes

to some rights protected under U.S. Const. 14t? A.

Citing Meyer v Nebraska (1923) 262 US 390,

399, 43 S. Ct. 625, 67 L. ed. 1042, 29 ALR 1446:

“(The mght] to enjoy those privileges long

recognized at common law as essential to the

orderly pursuit of happiness by free men”.

(iii) If there is "Room for Interpretation"

Arkan N ral as ” Arkansas

Railroad Commission 261 U.S. 379, 383 citing

Railway Co. v Arkansas 235 U.S. 350

“The rule is fundamental that, if a statute

admits of two constructions, the effect of one

being to render the statute unconstitutional

and of the other to establish its validity, the

courts will adopt the latter’.

If no individual can legally impose a private nuisance

[1(B)(i) supra] then a municipality or a court can't

make such imposition legal [I(A)(v)]. Under NYS

law, an alleged private nuisance cannot be ruled

legal without Trial by Jury [I(A)(ii)] and thus

dismissal of a mandamus to review petition cannot

make a private intentional nuisance in fact legal

under a municipal zoning ordinance governing single

family residential districts. Under strict construction

of the ordinance, the use is not allowed and all illegal

uses of land are zoning violations. I have the right

under NYS law to have a full and fair opportunity to

prove the violation in an action for injunctive rehef

[1(A)(i)]. Interference with that right by the

municipality and/or the Judiciary is a violation of

Federally protected due process: any judgment

obtained therefrom or action thereon is as equally

devoid of due process.

hell Kr r 334 US 1, 22; 92 L. Ed

1161:

“(T]he power of the State to create and enforce

property interests must be exercised within the

boundaries defined by the Fourteenth

Amendment. Cf. Marsh v. Alabama, 326 U.S.

501, 90 L. Ed. 265, 66 S. Ct. 276 (1946)”.

If an adjacent use of land in a single family

residential suburban zoning district deprives a

person of the enjoyment of life and property then it is

9

triable as a nuisance [I(A)(ii)] and if it results from

policy actions of the municipality or those said to

represent it, then said actions are deprivations of

property without due process of law..

(A) Property Rights Protected

(i) In re Jacobs 98 NY 98 @105:

"The constitutional guaranty that no person

shall be deprived of his property without due

process of law may be violated without the

physical taking of property for public or private

use. Property may be destroyed, or its value

annihilated; it is owned or kept for some useful

purpose and it has no value unless it can be

used. Its capability for enjoyment and

adaptability to some use are_ essential

characteristics and attributes without which

property cannot be conceived; and hence any

law which destroys it or its value, or takes away

any of its essential attributes, deprives the

owner of his property"

(ii) Munn v. Illinois 94 U.S. 113, 4 Otto 113, 24 L.

Ed 77 @ U.S. 124-125, 142-143:

“If, for instance, the owner is prohibited from

using his building for the purposes for which it

was designed, it is of little consequence that he

is permitted to retain the title and possession;

or if he is compelled to take as compensation

for its use less than the expenses to which he is

subjected by its ownership, he is, for all

practical purposes, deprived of the property, as

effectually as if the legislature had ordered his

forcible dispossession”.

10)

(11) Booth v. R., W., & O.T.R.R. Co 140 NY 257, 35

NE 592 @ NY 274-275:

“The protection of property is doubtless one of

the great reasons for government. But it is

equal protection to all which the law seeks to

secure”

(iv) Yick Wo v Hopkins 118 US 356 @373-374

“Though the law itself be fair on its face, and

impartial in appearance, yet, if it is applied and

administered by public authority with an evil

eye and an unequal hand so as practically to

make unjust and _ illegal discriminations

between persons in similar circumstances,

material to their rights, the denial of equal

justice is still within the prohibition of the

constitution. This principle of interpretation

has been sanctioned by this court [cites

omitted|"

Solution

An order affirming my argument and declaring the

Village policy on the unpublished judgment of NYS

JSC Robert S. Rose, unconstitutional.

An unconstitutional Village Policy premised on the

unpublished opinion of NYS JSC Rose: that Pig is for

the sustenance of man, so that I ought not have, so

delicate a nose Aldred's Case 9 Coke Rep. F. 57b

Holmes would surely dissent. Accepting my sacrifice

of the last 13 years: tens of thousands of dollars in

court fees, printing, equal access to justice hours,

time and treasure, lost, that may never be regained;

rather than being misconstrued as cheering on the

roughshod I've received under Village policy hooves,

you may declare that policy unconstitutional

Klostermann v Cuomo 61 NY 2d 525; 475 NYS 2d

247; 463 NE 2d 588. Headnote [9] @NYS 2d 254:

"The primary purpose of declaratory judgment

is to adjudicate the parties’ rights before a

‘wrong’ actually occurs ... (see Matter of

Morgenthau v Erlbaum 59 NY 2d 143, 148; 464

NYS 2d 392, 451 NE 2d 150)"

In addition, remand for inquest on the quantum of

damages and/or for a trial and for any other order or

relief, which seems to this Court right and proper.

Pursuant to rule 44.2 of this Court: I the

undersigned do hereby certify in good faith that this

petition is restricted to other substantial grounds not

previously presented and is not intended as any form

of delay.

I declare under penalty of perjury that the foregoing

is true and correct.

DATED: May 6, 2008 yor - FA nord Dyes

State of New York Thomas Lamont Dyno

County of Broome