Petition for Writ of Certiorari — Gennimi v. Town of Lewisboro
Supreme Court brief2010
Ask Donna
What actually matters in this document.
Text
Gupreme Cot US.
7 98-813 voy 27 aap
OFFICE OF THE CLERK
IN HE
Supreme Court of the Hnited States
WENDY GENNIMI, PETITIONER
v.
TOWN OF LEWISBORO, JAY FAIN, JAY FAIN &
ASSOCIATES, MARGARET CLARK, JAMES NORDGREN,
JACQUELINE DZALUK, JOSEPH DECAMINADA, FREDA
HALPERN, MAUREEN MAGUIRE, P.J. ROSSI, AND
WILLIAM CARGAIN
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
PETITION FOR WRIT OF CERTIORARI
ALEXANDRA T. MANBECK,
Counsel of Record
45381 University Avenue
San Diego, CA 92105
(619) 578-8189
RECEIVED
DEC 2 - 2009
OFFICE OF THE CLERK
SUPREME COURT, U.S._|
| SUPREME
CURRY &@ TAYLOR @ (202) 393-4141
a
QUESTIONS PRESENTED
1. Whether in deciding the petitioner’s case the federal
courts were entitled to disregard findings of fact made on
the same issues by a New York state court in a parallel
state court action that was brought by the respondent
Town against the petitioner and that was decided while
the federal action was pending.
2. Whether the Town Wetlands law, which had previously
defined town jurisdictional wetlands in reliance upon the
definition of federal wetlands pursuant to the Clean
Water Act and its applicable regulations, 33 C.F.R. §
328.3 (b), but which was amended in 2004 to remove two
of the three federal criteria, that is, that the land be
capable of sustaining wetland vegetation but not
requiring that it actually sustain such vegetation, is void
for vagueness.
3. Whether respondent Jay Fain, who was a private
contractor illegally employed as a town wetland inspector
in violation of New York Town Law §23, violated
petitioner’s Fourth Amendment rights by repeatedly
entering upon her property which was posted with “No
Trespassing” signs.
4. Whether the Second Circuit departed from established
Fourth Amendment jurisprudence in holding that an
illegitimate government official, Jay Fain, was entitled to
invoke a “serious needs” exception to respond to
neighbors’ complaints and perform warrantless searches
of the curtilage of the petitioner’s home.
ti
TABLE OF CONTENTS
Page
QUESTIONS Fe eats ice teecsesecereceecesseccnccecccccsces i
TABLE OF BUT eitiattnteseeticcnscesscoececccccoees iii
OPINIONS TOI cnc ee isaatnenecavscececececessczcce cece 1
JURISDICTION osccccocscesieeaaee ME ta asttictsenenenceeccvececeocvesece 1
RELEVANT PROVISIONS INVOLVED ..........csecsccceeeesseccesseeseceesees 1
STATEMENT occccsccueceee eI atirtatesesecsececcecsocoseseoese 2
REASONS FOR GRANTING THE PETITION ...............cc0cccceeeeeee sees 7
CON CL USIOIN cacscsenscsece tte titcececesesvaseeesssceceseosse 36
APPENDIX
Circuit Court of Appeals Opiniom..................-.0--0-s00se0e00++ la
District Comte Gr i arestasenceeseeere coc eeceesee 9a
Magistrate Report & RecommMendation..............s-.cee0-eeee 12a
Order Demeyitigg TREMOR TIIG oscececerecceessssencceseenessvaseceersese0ese0e~ 42a
New York State Supreme Court Decision & Order......... 44a
New York State Supreme Court Order on
Fo ec a 47a
Relevant Provisions Fooled ....-.......-<<.c<0.0c.ecesessse0c000-0-- 48a
wt
TABLE OF AUTHORITIES
Page
CASES
ALLEN V. MCCURRY, 449 U.S. 90, 94, 101 S. CT. 411
5 ERS Nery Spe en NIN Ae Re re Ne Te 11
CAL. RIVER WATCH V. CITY OF HEALDSBURG, 496
F.3D 998, 999-1000 (9TH CIR. 2007)...........c..ceccccesersecseesceeeees 21
CALIFORNIA V. CIRAOLO, 476 U.S. 207, 213, 106 S. CT.
pi ry eR ei MRT eee, ON Re a a 32, 33
CAMARA V. MUNICIPAL COURT OF SAN FRANCISCO,
387 U.S. 523, 530-31, 87S. CT. 1727 (1967) ..............-000002 32, 34
COLAUTTI V. FRANKLIN, 439 U.S. 379, 395, 99 S.CT.
POND wsiciccscsiiiaiiaiecacsiaicitsisinceaiibgadatadn mat lataceaale aebaaibceiacenciaemminai 18
COOLIDGE V. NEW HAMPSHIRE, 403 U.S. 443, 91
Te Fg, | SR Re ree en eee en aT EN 25
Dow CHEMICAL Co. Vv. UNITED STATES, 476 U.S. 227,
Sr, Se sehca acs nsinivopesictiibabeictiatinactdaeantienseanesaitin 33
EARLS, 536 U.S. 822, 836, 122 S. CT. 2559 (2002)................000 31
EXXON MOBIL CORP. V. SABIC, 544 U.S. 280, 125 S.
Rs Te Ce ch ceoscissinsssiecnccitenanetesdsadn tei anshaiaerdinceecinsiitomstcaned 13
FLORIDA V. RILEY, 488 U.S. 445, 449, 109 S. CT. 693
(Ce ainsi arith tain Ne a a 33
FOURTH AMENDMENT. SAFFORD UNIFIED SCHOOL
DISTRICT V. REDDING, 129 S. CT. 2633 (2009)...............000+- 31
GRAYNED V. CITY OF ROCKFORD, 408 U.S. 104, 108,
ee a ee iictinthrcntnipeacdcataiiiainicsetcientinatettecesnnsncnes 17
GRIFFIN V. WISCONSIN, 483 U.S. 868, 873-74, 1075S.
eatin becca ascnsgince ea catiiciceaeacaivtcadetietorns 29
IN RE NEEDHAM, 354 F.3D 340, 345-346 (5TH CIR.
LIAO oe MORE ROE EO an CS MHS ON RAT ee OTS 21
JUSTICE KENNEDY. UNITED STATES V. ROBISON,
505 F.3D 1208, 1221-22 (11TH CIR. 2007).............-...--00-0--e-200+ 21
KOLENDER V. LAWSON, 461 U.S. 352, 357 (1983)...............-..- 18
LUCAS V. SOUTH CAROLINA COASTAL COUNCIL, 505
Bea i ee iin cisenssitcececisencaencesnentbansnanaticareacinsas 12
MEDELIN V. TEXAS, 552 U.S. 491, 128S. Cr. 1346
Fv cnivnsicecsesistaiceccsionecbaieatibaailchece asicedenaceldeeadiubatbian setedaaeaidmarDiciaciinaces 13
w
NEW JERSEY V. T.L.O., 469 U.S. 325, 341, 105 S.CT.
, 2 ESET AOR SAE ene tot) cS RA Tees On NOE OR 30
OLIVER V. UNITED STATES, 466 U.S. 170, 180, 104
es a cithseinemancendd 32
ORANGE ENVIRONMENT, INC. V. COUNTY OF
ORANGE, 923 F.. SUPP. 529, 533 (S.D.N.Y. 1996)................. 17
PALMIERI V. LYNCH, 392 F.3D 73 (2D CIR. 2004)............. 28, 31
RAPANOS V. UNITED STATES, 126 S.CT. 2208 (2006)............. 17
RAPANOS V. UNITED STATES, 547 U.S. 715, 126 S. CT.
ERE RE tte ARE heme nee Ne Pe > NR 20
SAN REMO HOTEL, L.P. Vv. CITY AND COUNTY OF
SAN PRANCIBOO, BOG U Be: DOB. cance cniccscsctsvsiccoccscosccsoscesecesevees ll
SAN REMO, 545 U.S. 323, 125S. CT. 2491 (2005)................0000- 12
SANTINI V. CONNECTICUT HAZARDOUS WASTE
MANAGEMENT SERVICE, 342 F.3D 118 (2D Cir.
SEU seniticirvincsiinsminetintniniaiihenticidisininibinanintionaaiianatnmmen mimeo 12
SOKOLOV V. VILLAGE OF FREEPORT, 52 N.Y.2D 341,
SE er ee I ericceniinctittemnmnnsomiiietimaaienininianiinmnninen 35
Suss v. ASPCA, 823 F.SUPP. 181, 189 (S.D.N.Y. 1993)... 25, 28
UNITED STATES V. BAILEY, 571 F.3D 791 (8TH CIR.
NERS Ae acd on Doerr Se SIL gr Soa eee a 21
UNITED STATES V. CUNDIFF, 555 F.3D 200, 210-13
ea cstcenicnsnceicticadicsdicenerashdidipnenssabandinnnibheninaiueanininidsendits 21
UNITED STATES V. DUNN, 480 U.S. 294, 301, 107 S.CT.
Riis scsnccusitincsabecinsatincnadeaieetiadanGainn As 31
UNITED STATES V. GERKE EXCAVATING, INC., 464
F.3D 723, 724-25 (7TH CIR. 2006) (PER CURIAM)................. 21
UNITED STATES V. HATFIELD, 333 F.3D 1189, 1198
Ea I cain cocci ns scien dasiaciinapscadadiadinainidaniicaeaneiniiiods 33
UNITED STATES V. JENKINS, 124 F.3D 768, 774 (6TH
Fe ee eS ere Re Ey TN a aR 33
UNITED STATES V. JOHNSON, 467 F.3D 56, 66 (1ST
Sere SUIT asst cisesccamsceiscniipcbesspcltinadheionisaechtaieiihcidhsidatalendetisisaassincauinenstcands 21
UNITED STATES V. LUCAS, 516 F.3D 316, 327 (5TH
SS MIN ksi ascents iecohcidceacincehtihenaediataaleehcaicnicadaie 21
STATUTES
I i I sss casicnsicarnasstdeopatiissensnutisncsenenpeunsannnemeensicenkabeencins 6
I civic linc taesieonitunccsninnonniseeiasaeecendasentenntabmaciae 6
aR TIT ite saistlakstesnbainenecehdpbsbieeundincealniunanaanoacndaiaieniiel 10, 12
a Is i SI besencesinivwsnseneseicrdednsmpentanmbnnstennbtinsucscosea’ 14, 20, 21
REGULATIONS
Par ana IID suis assassins abkiibacscocadeuiidptelp medaidindasidegaiaaiocnn 15
1
OPINIONS BELOW
The summary order of the Second Circuit Court
of Appeals, the court below, Wendy Gennimi, et al. v.
Town of Lewisboro, et al., 08-1543-cv was not published
but included in App. A. The opinion of the U.S. District
Court, Southern District of New York, affirming the
Magistrate Judge’s Report and Recommendation, filed
on March 23, 2008, was not published but is included in
App. D. The Magistrate Judge’s Report and
Recommendation was filed on March 4, 2008 and is
included in App. F. The State Court decision was filed
on August 29, 2007 and is included in App. G.
The Judgment of the U.S. District Court,
Southern District of New York, is dated March 23,
2008. The Mandate of the Second Circuit Court of
Appeals is dated September 8, 2009.
The Order of the Second Circuit Court of
Appeals denying rehearing is dated August 31, 2009.
JURISDICTION
The judgment of the Court of Appeals for the
Second Circuit was entered on May 29, 2008. That
court's denial of the Petition for Rehearing En Banc
was entered on August 31, 2009, App. B. This Court has
jurisdiction under 28 U.S.C. § 1254(1).
RELEVANT PROVISIONS INVOLVED(see appendix)
2
Introduction
Since 2002, Wendi Gennimi has been embroiled
in a dispute with the Town of Lewisboro, New York
over regulation of her property, which the town claims
to constitute a wetlands or wetland buffer. For the past
eight years she has had to defend herself in court
against an expansive interpretation of the town’s
Wetlands law - a strict liability civil and criminal
statute that raises serious constitutional issues.
As a result of this dispute and other related civi!
and criminal charges filed against her by the town,
Wendi Gennimi was fined $25,000 in October 2004 and
has been facing foreclosure of her home. While she is
appealing a criminal conviction arising from the
wetland charges and building code violations related to
the installation of a fence around her property, she is
still potentially subject to fines and mitigation fees that
could exceed $425,000.
STATEMENT
Wendi Gennimi owns a house sitting on over two
acres of land which she bought in 1997. Since the
purchase, her husband has been doing periodic
renovation work on the house to address severe
structural problems. Even town officials have
recognized that the house had structural defects that
“presented a health and safety hazard.” Although there
had been complaints from neighbors against Gennimi
about various alleged wetland and building code
violations since 2000, former wetland inspector William
Cargain, a full-time town employee, refused to charge
Gennimi with wetland violations. Wetland Inspector
3
Cargain was accused by some town officials of being too
lenient because he refused to issue summonses against
alleged wetland violators such as Ms. Gennimi.
On August 1, 2002, the town hired Mr. Jay Fain
and Fain & Associates, as the town’s Wetland Inspector
. In appointing Mr. Fain as the Wetland Inspector, the
Town did not pay him a monthly salary like other town
employees, such as Mr. Cargain, but let him bill for his
services on an hourly basis as ‘an “independent
contractor” for time spent on all wetland matters. In
hiring Mr. Fain, a resident of Connecticut, as wetlands
inspector, the town violated New York State law
([Town Law Section 23 and Section 3 of the Public
Officers law]) which mandated that the wetland
inspector be a town resident, 7.e., a resident of the
Town of Lewisboro.
A. The State Court’s August 29, 2007 Decision
Immediately after being appointed Wetland
Inspector, on the basis of neighbors’ complaints, Mr.
Fain searched Ms. Gennimi’s property and charged her
with numerous wetland violations. Mr. Fain testified at
a hearing before the Planning Board on November 26,
2002 and presented pictures which he took of the
property. After the hearing, the Planning Board
convicted Ms. Gennimi of four charges of wetland
violations and fined her $1,500 and ordered her to
implement a planting scheme costing tens of thousands
of dollars that was to be supervised by Mr. Fain. On
April 17, 2003, Mr. Fain issued a second summons
charging Ms. Gennimi with wetland violations for
failing to implement the planting, and testified at a
hearing before the Planning Board on July 10, 2003,
4
where he recommended that Ms. Gennimi be fined
$425,000. Mr. Fain also testified that he did not know
where the wetland boundaries were on Ms. Gennimi’s
property, but that the Gennimi house could be used as a
“benchmark.” On July 25, 2003, on the basis of Mr.
Fain’s testimony, and pictures obtained from the
searches, the Planning Board again convicted Ms.
Gennimi of wetland violations for failing to finish the
planting scheme. On June 17, 2004, after repeated
searches of the property around her house, Mr. Fain
again charged Ms. Gennimi with wetland violations
arising from her husband’s construction of a fence
around the property to prevent searches by town
officials. Mr. Fain also issued stop work orders
preventing Ms. Gennimi from completing the repairs on
her house even though, as noted above, the house had
severe structural problems and was deemed a safety
hazard. From 2002 until his resignation in December
2006, Mr. Fain repeatedly searched and took pictures of
Ms. Gennimi’s property and the curtilage of house at
the urging of neighbors, in spite of her protests and the
“no trespassing” signs she posted at the property’s
entrance. His testimony and pictures were evidence
that were presented at Planning Board hearings to
obtain convictions.
On October 26, 2004 the Planning Board
convicted Ms. Gennimi of wetland violations for the
construction of the fence and fined her $25,000. In early
2005, Mr. Fain again charged Ms. Gennimi with wetland
violations - this time based on the fact that she had
moved out of her house the previous year and a sewer
pipe broke during the winter while the house was
unoccupied - and recommended that criminal charges
be filed in town justice court. As her house went into
5
foreciosure, Ms. Gennimi filed an action in federal
district court and moved for a preliminary injunction
against the town’s enforcement of the fines and the
Wetland laws against her. At a July 21, 2005 hearing,
District Court Judge Charles Brieant granted Ms.
Gennimi a stay of the $25,000 fine. Immediately
afterward, on September 15, 2005, the town brought
misdemeanor charges in town justice court against Ms.
Gennimi for violating stop work orders and repairing a
deck attached to her house without a permit, the town
having withheld the permit ecause of the wetland
convictions. In July 2008 Ms. Gennimi was convicted of
misdemeanors and is_ presently appealing the
convictions. In February 2007, while the federal action
and the criminal charges were pending, the town
brought civil charges of wetland violations against Ms.
Gennimi in New York State Supreme Court, which
made findings of facts and conclusions of law that those
charges were identical to wetland issues pending before
the federal district court. On August 29, 2007, the New
York State Supreme Court declined to entertain the
Town’s parallel state suit. App. 46a. On June 17, 2008,
the Appellate Division dismissed the Town’s appeal.
App. 47a.
B. The District Court’s March 24, 2008 decision
On November 30, 2007, Gennimi filed a Request
for Judicial Notice of the State Supreme Court decision.
However, on March 4, 2008, the Magistrate Judge
issued the Report without considering therein any
collateral estoppel effect of the New York State court’s
findings of fact and conclusions of law, although on
March 4, 2008, the same day that the Magistrate Judge
issued the Report, the Magistrate Judge stated that
6
“the Court will take [the State decision] into
consideration”. By summary order, the District Court
affirmed the Report on March 24, 2008, a few days after
Ms. Gennimi filed her objections. The District Court
did not make any de novo review. By summary order
dated May 29, 2009, the Second Circuit Court of
Appeals affirmed the district court’s summary decision.
BASIS FOR FEDERAL JURISDICTION’ IN
DISTRICT COURT
Jurisdiction of the District Court was invoked
pursuant to Title 28 U.S.C. § 1343(3) which confers
original jurisdiction on United States District Courts
over suits to redress the deprivation, under color of any
state law, statute, ordinance, regulation, custom or
usage, of any right, privilege or immunity secured by
the Constitution of the United States or by any Act of
Congress providing for equal rights of citizens or of all
persons within the jurisdiction of the United States.
The petitioner further invoked the jurisdiction of the
District Court pursuant to the supplemental
jurisdictional provisions contained in 28 U.S.C. § 1367.
According to the District Court, which affirmed
the Magistrate Judge’s Report and Recommendations
by summary order, since the Gennimi backyard abuts
New York state wetlands, the Town Wetlands Law is
not unconstitutionally vague as applied to her.
However, she was convicted of charges of wetland
violations not involving any state wetlands - in spite of
Mr. Fain’s repeated notifications to state inspectors -
but instead involving the construction of a fence in the
immediate vicinity of her home, which Mr. Fain claimed
is a wetland “buffer’ subjecting her to the town
7
Wetlands law. By summary order, the Second Circuit
affirmed the district court’s decision.
REASONS FOR GRANTING THE PETITION
The decision of the Second Circuit. Ceurt of
Appeals conflicts with the decisions of a New York
state court and other U.S. Courts of Appeals on the
same important matter (Rule 10(a)) and decides
important federal questions in a way that conflicts with
relevant decisions of this Court (Rule 10(c)).
There are three reasons for granting the writ.
Kirst, by affirming the judgment of the U.S. District
Court, the Second Circuit Court of Appeals eroded and
undermined the full faith and credit afforded to state
court judgments’ findings of fact. Second and third, the
Second Circuit undermined the protections afforded
citizens of the United States by the Fourth and the
Fourteenth Amendments to the U.S. Constitution.
Specifically, the decisions of the District Court and
Circuit Court of Appeals will encourage governmental
agencies to apply broad constructions of the “wetland”
definition and the “serious needs” doctrine to override
the people's Fourth and Fourteenth Amendment rights
whenever such agencies find it expedient.
8
I. THE DECISIONS OF THE COURTS BELOW
CONFLICT WITH THE FINDING OF A STATE
COURT AND FAILED TO ACCORD FULL FAITH
AND CREDIT TO THE NEW YORK STATE
COURT’S FINDINGS OF FACT REGARDING
IDENTICAL WETLAND CLAIMS
The decisions of the courts below represent a
significant and unwarranted departure from the New
York State Supreme Court’s decision in a related case,
insofar as the New York court made findings of fact
adverse to the town six months prior to the Magistrate
Judge’s issuance of his Report and Recommendations.
A. The Town voluntarily initiated a state court
action while the federal action was pending
After District Court Judge Charles Brieant issued a
stay of the $25,000 fines on July 21, 2005, and while
discovery was being conducted in federal court, the
town initiated a parallel actionin State Supreme court
in February 2007 accusing Ms. Gennimi of wetlands
violations and again seeking enforcement of the
Wetlands law. Town of Lewisboro v. Wendy Gennimi,
Index No. 2771/07(Westchester Supreme Ct. 2007). On
August 29, 2007 the State Supreme Court issued a
decision staying the town’s civil action based on the
following findings of fact and conclusions of law, which
have collateral estoppel effect since the Town failed to
appeal (App. Decision, App. H):
Upon the foregoing papers, it appears that on
July 15, 2004 Defendant Gennimi was charged by
the Lewisboro Planning Board (the “Planning
Board”) with constructing a fence without a
9
permit in violation of the Town of Lewisboro
Wetlands Law. After several hearings before
the Planning Board, on October 26, 2004, the
Planning Board determined that Gennimi
had violated the Wetlands Law and imposed
fines totaling $25,000. In July 2005, the
Defendants joined a federal action (pending
before United States District Judge Charles L.
Brieant) as party-plaintiffs. In that action, the
Defendants herein challenged the
constitutionality of the Wetlands Law on its face
and as applied to them and sought to enjoin the
Town of Lewisboro from enforcing the fines. On
July 21, 2005, the Federal Court issued
injunctions staying enforcement activity for
the balance of the action and by a
Memorandum and Order dated November 10,
2005 directed that discovery should proceed
on the constitutional claims.
All of the foregoing notwithstanding, on
February 16, 2007, Plaintiff [Town of Lewisboro]
commenced the instant action...
State Supreme Court decision, August 26, 2008
(emphasis added). Judge Gerald Loehr of the State
Supreme Court reviewed the Planning Board’s file,
including its October 26, 2004 decision and clearly held
that the Planning Board fined Ms. Gennimi $25,000 for
“construction of the fence without a [Wetlands]
permit”. State Judge Loehr reviewed the late Judge
Brieant’s July 21, 2005 injunction staying the fines and
all other actions pending in town Justice Court and
declined to enforce the Wetlands law against Ms.
Gennimi or enjoin her from construction of the fence.
10
Thus the state Supreme Court’s decision is
notable for the fact that it declined to assert jurisdiction
over purported charges brought by the town alleging
violations of “state” wetlands. In fact, the State has
never charged or investigated Ms. Gennimi with or for
any wetland violations. The State Supreme Court’s
findings of fact also flatly controverted the Report’s
finding that “the Planning Board never determined the
innocence or guilt of plaintiff [Gennimi] in the instant
action.” The District Court’s and the Second Circuit’s
summary order adopting the Report’s contrary findings
of fact and ignoring the prior State Supreme Court’s
fact findings failed to afford full faith and credit to the
State Supreme Court’s opinion. See U.S. Const., Art.
IV, § 1, 28 U.S.C. § 1738.
B. The State Court Decision has Preclusive
Effect
In summary, while discovery was being
conducted in the district court, the Town filed a new
action in state court to enforce the Wetlands Law to
seek payment of fines in addition to the $25,000 fines
and prospective fines of $425,000. The Town upped the
ante to make an end-run around Judge Brieant’s July
21, 2005 order staying enforcement of the $25,000 fines,
in the midst of the federal action, and would have
obtained collateral estoppel with double jeopardy effect
had it been successful. However, on August 29, 2007 the
State Supreme Court held that “/ajfter several
hearings...the Planning Board determined that
Gennimi had violated the Wetlands Law and imposed
fines totaling $25,000” and found that the Planning
Board imposed those fines against Gennimi for
“constructing a fence without a permit in
11
violation of the Town of Lewisboro Wetlands
Law”. App. 45a. Six months later, on March 4, 2008 the
Magistrate Judge issued a Report containing findings
of fact that flatly contradicted the August 26, 2007
State Court’s decision, by stating in the Report that
“the planning board never determined the innocence or
guilt of the plaintiffs in the instant action,” and that
“Gennimi admitted to the allegations”. App. 33a-34a.
Indeed, the Report totally ignored the prior
state court factual findings and made de novo contrary
factual findings by stating as follows:
Wendy Gennimi has been assessed civil penalties
totaling $25,000 as a result of four separate
violations, each violation averaging less than the
$7,500 penalty allowed by the [Wetlands]
statute. The total figure of $25,000 was only
assessed after Ms. Gennimi’s repeated failure to
remedy her initial infraction and bring her
property into compliance with the Towns’
wetlands law.
Report, App. F, p. 26a. By affirming the district court’s
summary order that adopted the Report, the Second
Circuit completely disregarded this Court’s direction to
the lower courts that they defer to state courts’
findings of fact. San Remo Hotel, L.P. v. City and
County of San Francisco, 545 U.S. 232, 125 S.Ct. 2491
(2005). Under the Full Faith and Credit Act, the New
York Supreme Court’s findings of fact are binding on
the federal courts. Allen v. McCurry, 449 U.S. 90, 94,
101 S. Ct. 411 (1980) (collateral estoppel prevents
federal court relitigation of issue of fact adjudicated in
state court); see also Lucas v. South Carolina Coastal
12
Council, 505 U.S. 1008, 120-22 (1992) (in regulatory
takings case, Supreme Court defers to factual findings
of state court). Instead, the Second Circuit, by
summary order, unquestionably adopted the Report
and substituted its own judgment for the state court’s.
Indeed, the Second Circuit condones the town’s two
bites at the judicial apple, first by bringing charges of
wetland violations in state court, and after being
unsuccessful in that forum, relitigating the identical
claims in federal court in violation of the Full Faith and
Credit Act, 28 U.S.C. § 1738 (the “Act”). The Act is a
central component of the doctrine of federalism that
requires federal courts to defer to state court findings
of fact. Such deferral was especially appropriate in this
case insofar as the town was the forum-shopping party
who filed a parallel action in state court during the
pendency of the federal action. The Second Circuit
repeated the same mistake it made in Santini v.
Connecticut Hazardous Waste Management Service,
342 F.3d 118 (2d Cir. 2003), cert. denied on other
grounds, 125 S.Ct. 104 (2004) of giving the town’s
claims de novo review even where the facts of the
federal and state claims are identical, and even when
the town voluntarily instituted litigation of the same
claims in state court.
Asides from the fact that this Court overruled
Santini in San Remo, 545 U.S. 323, 125 S. Ct. 2491
(2005), unlike the claimant in Santini, the town
respondents here were not involuntary litigants in
state court. Accordingly, the town could have litigated
the wetland issues in the federal forum had they not
voluntarily filed a parallel case in state court against
Ms. Gennimi. To allow the lower courts to make de novo
fact findings concerning the same wetland claims that
13
the New York Supreme Court has already determined
adversely to the town would unfairly penalize Gennimi
and reward the town for forum-shopping. Indeed, when
the Second Circuit affirmed what was in effect the
District Court’s reversal ofthe State Supreme Court’s
determination that the Planning Board fined Gennimi
$25,000 for construction of a fence in violation of the
Wetlands law, it departed from the guiding principles
of the Full Faith and Credit Act set forth by this Court
in Exxon Mobil . Vv. Sabic, 544 U.S. 280, 125 S. Ct.
1517 (2005), and reiterated in Medelin v. Texas, 552
U.S. 491, 128 S. Ct. 1346 (2008) (State court decisions
are binding upon the federal government over
international treaties) . In view of the manifest error of
the Second Circuit in failing to accord full faith and
credit to a binding prior state court judgment, the
Court should grant the petition for writ of certiorari, or
consider summary reversal.
Il. CERTIORARI SHOULD BE GRANTED TO
RESOLVE CONFLICTS BETWEEN THE COURTS
CONCERNING WHAT CONSTITUTES A
WETLAND
After hiring Mr. Fain as wetlands inspector in
August 2002, the town amended its Wetlands law in
2004 to redefine “wetland” and thus gave maximum
discretion to Mr. Fain to determine that much of the
town is a wetland or wetland buffer subject to town
jurisdiction. Mr. Fain never conducted any wetland
delineation and admitted at hearings that he did not
know the exact location of all wetland boundaries, thus
requiring Ms. Gennimi, as well as numerous other
accused violators, to map the wetlands on their
properties as part of the penalty. Particularly at a July
14
10, 2003 hearing, when the Gennimis complained that
they could not afford the thousands of dollars required
to determine the wetland boundaries, Mr. Fain
suggested that they could use their own home as the
“benchmark” or wetland boundary, and thus under the
Wetlands law, all land within a 150-radius of the home
became a town jurisdictional wetland “buffer” subject
to the similar regulations as town jurisdictional
wetlands.
A. The Original Town Wetlands Law was a strict
liability statute which adopted the Clean Water
Act definition of “wetland”
Prior to the 2004 amendment, the town
Wetlands law adopted the definition of “wetland”
found in the federal Clean Water Act, which relies on
two criteria, including soil composition (i.e., wet soil),
and the presence of wetland vegetation. Specifically,
the definition of “wetlands” in the predecessor statute,
Local Law 3-1995, reproduced the federal Clean Water
Act’s (“CWA”, 33 U.S.C.A. § 1251 et seq.) definition, as
follows:
WETLAND/FRESHWATER WETLAND - all
areas that comprise hydric soils and/or are
inundated or saturated by surface or ground
water at a frequency and duration sufficient to
support, and that under normal
circumstances do support, a prevalence of
hydrophytic vegetation as defined herein or by
the Federal Interagency Committee for
Wetland Delineation, 1989. Federal Manual
for n and Delineating
Jurisdictional Wetlands, US Army Corps of
15
Engineers, US Environmental Protection
Agency, US Fish and Wildlife Service, and
USDA Soil Conservation Service,
Washington, DC. Cooperative Technical
Publication, attached hereto as appendix A.
L.L. 3-1995, (bold parts are those that have been
removed from the current Wetiands Law L.L. 1-2004).
The relevant CWA regulations define wetlands
as "those areas that are inundated or saturated by
surface or ground water at a frequency and duration
sufficient to support, and that under normal
circumstances do support, a prevalence of vegetation
typically adapted for life in saturated soil conditions."
33 C.F.R. § 328.3(b) (emphasis added). L.L. 3-1995
mandated that wetland delineations to determine the
presence and extent of local wetland be conducted
using the criteria set forth in the 1987 Corps of
Engineers Wetlands Delineation Manual (1987 Manual),
which is still being used by the Corps in federal wetland
delineation. In general, the 1987 Manual defines land as
a “wetland” when, under normal conditions: (1) the land
is dominated by hydrophytic vegetation (plants that
have the ability to grow, effectively compete, reproduce
and/or persist in anaerobic soil conditions caused by
inundated or saturated soil conditions); (2) the land has
wetland hydrology (inundated or saturated to the
surface for at least five percent of the growing season in
most years); and (3) the land consists of hydric soils
(soils formed under conditions of saturation, flooding, or
ponding long enough during the growing season to
develop anaerobic conditions in the upper part of the
soil). Exactly as with the CWA, L.L. 3-1995 relied on
field indicators to determine whether the land is
16
wetland by investigating the plants, water, and soil.
B. The 2004 Amended Wetland law removed the
requirement that wetland vegetation be
present and is a strict liability statute that is
void for vagueness
The amended town Wetlands Law L.L.1-2004 remains a
strict liability statute but removes all reference to the
requirement that wetland vegetation be present, as in
the Federal guidelines, and defines “wetlands” as
follows:
All areas that comprise hydric soils and/or are
inundated or _ saturated by surface’ or
groundwater at a frequency and duration
sufficient to support a prevalence of hydrophytic
vegetation.
Wetlands Local Law 1-2004 § 217-2(B). Thus since
January 1, 2004 the town has claimed that a town
jurisdictional wetland is any area that has one of the
following characteristics, regardless of size or
geographical location:
(1) hydric soils or
(2) is inundated or saturated by surface or
(3) is saturated by groundwater at a frequency
and duration sufficient to support a prevalence of
hydrophytic vegetation.
Unless the area is “inundated” or physically
“saturated by surface” with water for extended time so
that it is obvious that it is “wet”, a person of “ordinary
intelligence,” Grayned v. City of Rockford, 408 U.S.
17
104, 108, 92 S. Ct. 2294 (1972), could not possibly know
what L.L. 1-2004 means by terms such as “hydric soil”
or “a prevalence of hydrophytic vegetation” that under
the town Wetlands Law converts his or her property
into a jurisdictional wetland. The removal of “that
under normal circumstances do support” makes the
existence of a “wetland” depend on the presence of
“hydric soil” or “groundwater” - conditions that are
invisible and unnoticeable to a person “of ordinary
intelligence”- instead of the visible “swamp” or “bog”
mentioned by the district court in Orange
Environment, Inc. v. County of Orange, 923 F. Supp.
529, 533 (S.D.N.Y. 1996). In other words, a
homeowner’s private property becomes a_ town-
regulated wetland if the town wetland inspector
determines that the property “may” support
hydrophytic vegetation, without requiring any
additional criteria either listed in the Federal Manual
or the New York State Wetlands Delineation manual.
Furthermore, even if the words “that under normal
circumstances do support” had been retained in L.L. 3-
1995, a “person of ordinary intelligence” simply cannot
readily recognize whether his property has a presence
of “hydric soil” or “groundwater” or “a prevalence of
hydrophytic vegetation”. The difficulty in knowing that
one’s property contains town-jurisdictional wetlands is
exacerbated by the fact that, in contrast to the federal
CWA which requires that an area be at least one acre
and be connected to “navigable waters” to be a federal
jurisdictional wetland, Rapanos v. United States, 126
S.Ct. 2208 (2006), or to New York State environmental
law which requires that an area be at least 12.4 acres to
be state-jurisdictional (ECL § 24-301), L.L. 1-2004 does
not specify any minimum acreage, thus making any
temporary puddle in a homeowner’s property a
18
potential town jurisdictional wetland subjecting its
owner to civil and criminal penalties at the wetland
inspector’s total discretion. By removing the reference
to the Federal Manual and the requirement that an
area under normal circumstances support certain types
of wetland vegetation to be treated as a “wetland”, the
Wetlands law L.L.1-2004 dispenses with any guidelines
on identifying wetlands and is so indeterminate that
“ordinary [homeowners] cannot understand what is
prohibited.” Kolender v. Lawson, 461 U.S. 352, 357
(1983).
Secondly, “the constitutionality of a vague
statutory standard is closely related to whether that
standard incorporates a requirement of mens rea.
Colautti_v. Franklin, 439 U.S. 379, 395, 99 S.Ct. 679
(1979). L.L. 1-2004 is a strict liability statute that leaves
its enforcement to the total discretion of the town’s
wetland inspector. The Wetlands law vests virtually
complete discretion in the hands of [law enforcement]
to determine whether the{homeowner] has satisfied [its
provisions]. Kolender, 461 U.S. at 358, 103 S.Ct. 1855.
In other words, the Wetlands law’s definition of
“wetland” is is so “indefinite” that it encourages, and
did encourage, arbitrary and erratic charges and
convictions of Gennimi by inspector Jay Fain based on
neighbors’ complaints. Colautti_v. Franklin, 439 U.S.
379, 391. Not only does the Wetlands law expansively
define “wetlands” as any puddle regardless of size that
“may” contain hydric or wet soil and dispense with any
requirement that wetland vegetation be found and with
all other state and federal guidelines for wetland
delineation, it also defines a “buffer zone” of a 150-foot
radius surrounding the purported “wetland” and makes
the buffer subject to the same regulation as the
19
wetland. The term “buffer” is defined as follows:
L.L. 1-2004 § 217-2 Definitions; word usage
BUFFER AREA - The area extending one-
hundred-fifty (150) linear feet along the surface,
away from, and around the perimeter of the
outermost boundary of a “wetland” or
“watercourse”.
Third, the removal from the “wetland”
definition of the requirement that wetland vegetation
be present on the land and the enactment of the 150
foot-buffer allowed Mr. Fain to convert much of the
town into a “wetland” or “wetland buffer” subject to
regulation, since it left him with complete discretion.
Mr. Fain himself had never made any wetland
delineation studies on Gennimi’s property. Indeed, in
charging Ms. Gennimi with violations, Mr. F'ain claimed
that the Gennimi home and backyard are in New York
state wetlands or parts of the wetland “buffer”.
However, in spite of Mr. Fain’s numerous calls to state
wetlands inspectors, the state has never asserted any
jurisdiction over the Gennimi’s backyard or home. In
2002, 2003 and in 2004, Ms. Gennimi was convicted of
wetland violations for building a fence around her home
- to stop wetland inspector Jay Fain and other town
officials from searching the property - which Mr. Fain
claimed was located in the wetland or “buffer” and thus
subject to the same criminal and civil penalties imposed
on activities proscribed on town jurisdictional wetlands.
Mr. Fain admitted that he originally brought charges
against Ms. Gennimi pursuant to neighbors’ complaints
since he resided out of town and relied on neighbors’
surveillance to enforce the Wetlands law.
20
Cc. The Second Circuit’s definition of
“wetlands” conflicts with other Circuits’
definition
Further, the Second Circuit’s decision approving
the town’s expansive application of the term “wetland”
to any soil which might possibly support wetland
vegetation and to a 150-feet radius to cover a purported
buffer, created a conflict with other circuits which have
required “wetland” to possess the three characteristics
of vegetation, water and soil. Under the Second
Circuit’s summary order, any land could be a wetland if
a wetland inspector decides that the land could
“possibly” sustain wetlands vegetation without the
need to prove that such vegetation actually could grow
on such land. The situation is similar to that of Rapanos
v. United States, 547 U.S. 715, 126 S. Ct. 2208 (2006), in
which a closely divided Court found that the
government’s over-expansive reading of the Clean
Water Act (CWA) had extended jurisdiction over and
“engulfed entire cities and immense arid wastelands” as
“navigable waters of the United States.” In the town of
Lewisboro, the town’s amendment of the Wetlands law,
the CWA counterpart, and its illegal appointment of an
ineligible Wetland Inspector to enforce the Wetlands
Law, has converted much of the town into a town
jurisdictional wetland or wetland buffer area
subjecting property owners to onerous burdens and
criminal prosecutions in any land use, no matter how
trivial.
In Rapanos, the Supreme Court addressed
whether the wetlands at issue were "navigable waters"
covered by the Clean Water Act, 33 U.S.C. § 1251, and
whether the government had impermissibly extended
21
its regulatory jurisdiction under the Act. The plurality
opinion limits federal authority over "navigable waters"
to "those wetlands with a continuous surface connection
to bodies that are 'waters of the United States’, so that
there is no clear demarcation between ‘waters' and
wetlands. However, Justice Kennedy determined that
the government's jurisdiction under the Act extends to
wetlands that "possess a significant nexus to waters
that are or were navigable in fact.”Jd. at 759 (internal
quotations omitted). Given the various opinions in
Rapanos, the circuits are likewise split. The Seventh,
the Ninth and the Eleventh Circuits have followed the
substantial nexus test set forth by Justice Kennedy.
United States v. Robison, 505 F.3d 1208, 1221-22 (11th
Cir. 2007), N. Cal. River Watch v. City of Healdsburg,
496 F.3d 993, 999-1000 (9th Cir. 2007); United States v.
Gerke Excavating, Inc., 464 F.3d 723, 724-25 (7th Cir.
2006) (per curiam). The First, Sixth and Eighth Circuits
have followed the dissent’s instruction if either the
plurality's test or Justice Kennedy's test is satisfied.
United States v. Johnson, 467 F.3d 56, 66 (lst Cir.
2006); United States v. Cundiff, 555 F.3d 200, 210-13
(6th Cir. 2009); United or-oary v. Bailey, 571 F.3d 791
(8 Cir. 2009); see also United States v. Lucas, 516 F.3d
316, 327 (5th Cir. 2008).
Although this case does not involve federal
wetlands, the Second Circuit’s finding that any soil
assessed to have the potential for, but not actual,
wetlands vegetation, can be a local government’s
jurisdictional wetland is related to the ongoing conflict
between the circuits concerning the application of the
Rapanos opinion. In re Needham, 354 F.3d 340, 345-346
(5" Cir. 2003) (“Consequently, in this circuit the United
States may not simply impose regulations over puddles,
22
sewers, roadside ditches and the like”). None of the
circuits adopted the Second Circuit’s holding that a
wetlands need only exhibit characteristics of wet soil as
defined in L.L.1-2004. In this case, to dispense with the
requirements that a wetlands has to possess the three
federal characteristics of soil, water and vegetation
would allow regulation that would obliterate the
distinction between what is dry land and what is
wetland. Moreover, it is axiomatic that to allow
government regulation of any land that could possibly
support wetland vegetation, without any such
vegetation visible to the naked eye and without any
other criteria, would convert any property into wetland
or wetland buffer subjecting its owner to strict liability.
So long as a wetlands permit is required to use any such
property, the local government can prosecute any
homeowners over local land use as long as the local
wetland inspector decides that the land could possibly
grow wetland vegetation. If the local government can
regulate all lands determined to be capable of
sustaining vegetation, no matter if no vegetation is
ever found on such land, there is virtually nothing that
the local government could not regulate under the
Wetlands Law. This was the flaw in the town
government's arguments: they provided no logical
stopping point to prosecutorial authority and converted
a land use law into a strict liability civil and criminal
statute that did not involve a commercial or economic
regulatory scheme at all.
23
Iii, CERTIORARI SHOULD BE GRANTED
BECAUSE THE DECISIONS BELOW CONFLICT
WITH OTHER CIRCUITS’ DECISIONS AND THIS
COURT'S DECISION IN CAMARA
The implications of suggesting Gennimi’s house
be made a wetland “benchmark” from which to
determine the wetlands boundary become clearer in the
context of Mr. Fain’s continuous searches of the
property pursuant to neighbors’ complaints. Since the
wetland inspector declared Gennimi’s home to be in a
wetland or wetland buffer, he was able to subject the
home and its immediate vicinity to unlimited searches,
regardless of the facts that he was illegally appointed
and that the searches were initiated in response to
neighbors’ complaints without any basis in fact or law
to believe that there was illegal or criminal activity
requiring warrantless searches.
A. The lower court’s decision departs from
established Fourth Amendment principles by
permitting per se illegal searches of Ms.
Gennimi’s property and warrants this Court’s
immediate review
On January 14, 2008, Town Attorney Jessica
Bacal proclaimed to the Town Board in an open forum
that the town’s employment of Jay Fain as Wetland
Inspector from August 1, 2002 to December 21, 2006
constituted a violation of State law because during that
period Town Law §23 (a New York State statute)
required that the Wetlands Inspector be a Lewisboro
resident (which Mr. Fain was not). Since there is no
factual dispute that Mr. Fain was a private contractor
and was also an ineligible Wetland Inspector, the lower
24
courts should have found that all searches that Mr. Fain
performed on Ms. Gennimi’s property beginning on
September 17, 2002 and continuing until 2006 violated
her Fourth Amendment right to be free from an
unreasonable warrantless administrative search. Mr.
Fain: admitted to searching the subject property
numerous times over the years and taking pictures
which he showed to Planning Board members at all
hearings. The Minutes of the November 26, 2002
hearing stated:
He [Mr. Fain] displayed pictures of the rear of
the site.
The Minutes of the October 12, 2004 hearing
state:
Exhibit C - Photograph taken byJay Fain
depicting excavation of north side of
residence takenJuly 2004.
..Mr . Fain produced a photograph of the July
15, 2004 Stop Work Order which had been posted
on the garage. He advised that he posted two
additional Stop Work Orders on the telephone
pole...
Exhibit D - Photograph of Stop Work Order
posted on the garage at 19 Lower Salem
Road on July 15, 2004.
Exhibit E & F - 2 Additional Photographs
photographed by Mr. Fain on July 20, 2004
depicting the trees and brush cut on the
Site.
Mr. Fain stated that the July 22, 2008 Planning
Board Resolution stated that the construction
debris shall be removed.. He submitted a
photograph taken July 20, 2004 depicting
material stockpiled on property the subject of
25
many complaints.
There is no dispute that Mr. Fain searched Ms.
Gennimi’s property and took pictures used to convict
her of wetland violations. Furthermore Mr. Fain
testified that he searched Ms. Gennimi’s house in 2005,
as follows:
Mr. Fain advised that he had inspected the
house and advised that when the homeowner
had excavated in the rear side yard the soil pipe
for the septic system became vulnerable..He
distributed photographs he had taken of
the affected area on April 25, 2005 advising
that it was his opinion that as shown in the
photographs that there was effluent on the
ground...Mr .Fain advised that he would like to
get the code enforcement officer, the NYC DEP,
NYS DEC and Westchester County Department
of Health involved in this matter.
Planning Board Minutes of April 26, 2005 hearing
(emphasis added). Since Mr. Fain was illegally hired as
Wetland Inspector in violation of State Law , Mr. Fain
did not have the statutory authority to perform
searches, take pictures, issue Stop Work orders,
initiate prosecution by issuing summonses and Notices
of Violations, or to testify at the hearings against Ms.
Gennimi. The pictures were illegally obtained by an
ineligible Wetland Inspector and as such “did not
satisfy the requirements of the Fourth Amendment as
made applicable to the States by the Fourteenth”.
Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022
(1971); Suss v. ASPCA, 823 F.Supp. 181, 189 (S.D.N.Y.
1993)(A warrantless search directed by a non-neutral
26
private party is an event with many strikes against it
whether analyzed under the due process clause alone,
or under that clause as a trigger for Fourth
Amendment considerations).
In footnote 1 at page 7, the Second Circuit stated
that it declined to consider arguments involving the
defendants’ violation of Town Law § 23 because the
town’s wetlands inspector was not a resident of
Lewisboro, as follows:
We decline to consider these state law arguments
raised for the first time on appeal
The Second Circuit’s finding is incorrect in view of the
fact that the issue has been raised at least four times,
first on May 2, 2006 in the pleadings.
On May 2, 2006, the issue of Mr. Fain’s illegal
employment as Wetlands Inspector in violation of Town
Law § 23 was raised in plaintiffs’ Third Amended
Complaint, Paragraph 12, which defendant stipulated to
its filing and which Magistrate Judge Yanthis
approved, and which states as follows:
12. On January 1, 2003! (sic) the town promoted
Jay Fain to the position of wetland inspector, in
violation of Town Law § 23 which mandates that
the wetland inspector be a town resident,
whereas Fain resides in Connecticut. On
February 25, 2004 the Town amended its
Wetland and Watercourse Law to increase the
1 The actual date is August 1, 2002, based on an employment
contract between Mr. Fain and the town supervisor.
27
buffer distance from 100 feet to 150 feet and to
increase the authorized fines per violation from
$5,000 to $7,500 per day. Furthermore, the town
amended the definition of “wetland” removed
the term “and that under normal circumstances
do support” from the CWA . definition of
wetland, making all dry lands that could
possibly, but not actually, support certain
wetland vegetation subject to town jurisdiction...
Third Amended Complaint. The Third Amended
Complaint was approved and filed by the court on May
2, 2006. On September 28, 2007, plaintiffs filed their
opposition brief to Fain’s motion for summary
judgment stating as follows:
I- FAIN BECAME WETLAND INSPECTOR
BEGINNING AUGUST 1, 2002
From 1986 to July 31, 2002 Fain worked
as a consultant for the town Planning Board
and the town wetland inspector, who was then
also the town building inspector. [cite]. The
plaintiffs’ action concerns Fain’s postition as the
town’s wetland inspector subsequent to August 1,
2002. On August 1, 2002, at the urging of
chairwoman Jackie Dzaluk and other Planning
Board members, town Supervisor Thomas
Herzog appointed Fain as the town wetland
inspector, although such appointment violated
Town Law § 28, which mandated that the
wetland inspector must be a resident of the town
appointing him. The contract also states that
beginning August 1, 2002, Fain would work as
“an independent contractor” with duties of
investigating complaints of wetland violations,
28
issuing notices of violations and providing
testimony before the Planning Board. Herzog
recalled that although he signed the contract, it
was the Planning Board who actually hired
Fain, as “Fain was their boy, they want to
continue working with Jay” (Herzog:79) and did
not consider anyone else. Id., even though the
Board was aware that Fain resided in
Connecticut and therefore under State law was
not eligible to be appointed as wetland inspector .
Furthermore, on February 8, 2007, Ms. Gennimi filed a
request for Judicial Notice of the Town’s admission that
it was in violation of Town Law § 23 “for years”. Given
Ms. Gennimi’s repeated arguments that the town’s
appointment of Mr. Fain as wetlands inspector
implicated Town Law § 23, the arguments were not
raised for the first time at the Second Circuit level and
should have been addressed by the court.
B. Certiorari is warranted because the
decision below converting the “special
needs” into a “serious needs” conflicts with
this Court’s decision and the decisions of
other circuits
In this case, the courts below condoned the
warrantless administrative search of the curtilage of a
private residence in reliance upon the special needs
exception articulated in Palmieri v. Lynch, 392 F.3d 73
(2d Cir. 2004), in contravention of the decisions of every
other Circuit Court of Appeals in this nation and, as
well, the decisions of this Court. The courts below
lowered the “special needs” bar to the “serious needs”
requirement, impermissibly extending the _ special
29
needs exception to any neighbors’ complaints alleging
wetlands violations.
Before the special needs exception can be
invoked, a need beyond the normal need for law
enforcement must make the warrant and probable-
cause requirement impracticable because the delay
inherent in obtaining a warrant would make it more
difficult for probation officials to respond quickly to
evidence of misconduct (citation omitted) and would
reduce the deterrent effect that the possibility of
expeditious searches would otherwise create (citation
omitted) (Griffin v. Wisconsin, 483 U.S. 868, 873-74, 107
S. Ct. 3164 (1987).). Therefore, under Griffin, absent
some urgency to perform a search without a warrant
and a concomitant need to deter criminal activity, there
can exist no special need beyond the normal need for
law enforcement, particularly where, as here, Mr. Fain
conducted ongoing, numerous administrative searches
of the property of an ordinary resident not accused of
any crime but only because the neighbors called and
complained of wetland violations in connection with her
husband’s construction of a fence.
The courts below ruled that the town only
needed to have a serious need (rather than a “special
need’’) that outweighed the petitioner's expectation of
privacy. However, application of this exception
requires a threshold analysis whether there exists any
serious need, and it cannot be assumed that every
governmental regulation gives birth to a serious need .
Even if the town had a legitimate serious need beyond
the normal need for law enforcement to make the
warrant and probable-cause requirement impracticable,
the inquiry does not end there since even where a court
30
concludes that a statute or program qualifies as a
“special need,” beyond the normal need for law
enforcement, the reasonableness of the intrusion must
still be evaluated tarough a balancing analysis. “The
search as actually conducted [must be] reasonably
related in scope to the circumstances which justified
the interference in the first place.” New Jersey v.
T.L.O., 469 U.S. 325, 341, 105 S.Ct. 733 (1985).
The Nature and Immediacy of _ the
Government's Interest:
The nature of the government's interest does not
warrant application of the serious needs exception and
the courts below did not recite a single legitimate
governmental interest that would have _ been
compromised had the warrantless administrative
searches of the petitioner's property not taken place.
Although the courts below perceived an interest on the
part of respondent to perform a regulatory inspection
in order to protect the wetlands, no reason is given why
such interest is, in any way, compromised unless
petitioner's Fourth Amendment protections are
compromised. No cogent reason has been presented
why observing the warrant and probable-cause
requirement would have been impracticable, especially
since the case involved the construction of a fence that
took place over a period of several years, from 2004 to
2006. No reason has been suggested as to how
continuously violating petitioner's Fourth Amendment
rights in any way protects the wetlands, especially
since the wetlands inspector Jay Fain admitted that he
did not know where the wetlands boundaries were and
that the house should be used as a benchmark.
31
The courts below did not indicate that there
existed an immediate need to inspect petitioner's
property, especially since Mr. Fain resided out of town
and only searched the Gennimi property a day or more
after the neighbors lodged the original complaints. It
would logically follow that no governmental interest
would be at stake requiring any court to condone
respondents' repeated violation of petitioner's Fourth
Amendment protections; and there existed no reason
for Mr. Fain to forego the warrant requirement of the
Fourth Amendment._Safford Unified School District v.
Redding, 129 S. Ct. 2633 (2009); Board of Education v.
Earls, 536 U.S. 822, 836, 122 S. Ct. 2559 (2002); ; Griffin
v. Wisconsin, supra. at 483 U.S. 876.
Nature of the Privacy Interest Upon Which the
Search Intrudes:
Unquestionably, the curtilage of petitioner's
home was entitled to the most stringent Fourth
Amendment protection. The courts below minimized
the intrusion that occurred by characterizing it as
“minimally invasive insofar as they were of wetlands or
abutting areas, not of plaintiffs’ homes” and thus that
Gennimi had a diminished expectation of privacy. This
conclusion misstated facts that are critical to an
appropriate analysis of petitioner's Fourth Amendment
protections. Mr. Fain repeatedly testified at hearings
that he “had inspected the house” and its immediate
surroundings. Such surroundings constitute the
“curtilage” of the home and should be afforded the same
“Fourth Amendment protections that attach to the
home”. Palmieri, 392 F.3d at 94 (quoting United States
v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134 (1987); see
also Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct.
32
1735 (1984). Mr. Fain’s repeated inspection of the house
and its curtilage over a period of four years (2002-2006)
in response to neighbors’ complaints raised serious
Fourth Amendment concerns that cannot’ be
characterized as de minimus. Camara v. Municipal
Court of San Francisco, 387 U.S. 523, 530-31, 87 S. Ct.
1727 (1967) (even the most law-abiding citizen has a
very tangible interest in limiting the circumstances
under which the sanctity of his home may be broken by
official authority).
The Second Circuit’s decision trivializing the
repeated searches of Ms. Gennimi’s property conflicts
with other circuits’ precedents and the decisions of this
Court. The courts below held that petitioner had a
diminished expectation of privacy in the curtilage
around her home which is abutting “wetlands”. This
conclusion fails not only because petitioner is the owner
of the dwelling and the purported wetlands, but also
because it fails to afford sufficient weight to the fact
that Mr. Fain physically entered upon petitioner's
property and did not merely conduct a visual inspection
from a public road, a public waterway, public airspace,
or some other location where he ha[d] a right to be.
California v. Ciraolo, 476 U.S. 207, 218, 106 S. Ct. 1809
(1986). Rather he conducted his’ warrantless
administrative search on petitioner's property where
he had no right to be, and looked into the house through
windows.
Private areas of a home or curtilage visible to
members of the public are not protected from
inspection by governmental agents provided that they
do not enter upon the property and that they view such
private areas from a permissible vantage point such as
33
a public road or waterway. California v. Ciraolo, 476
U.S. 207 (1986); Dow Chemical Co. v. United States, 476
U.S. 227, 106 S. Ct. 1819 (1986).
Thus, if a person's living room can be seen from
the street by passers-by through a glass window, that
fact alone cannot permit entry into the home by
governmental agents because physical entry upon the
property is much more intrusive than a mere visual
inspection from the periphery (Dow Chemical Co. v.
United States, supra. at 237 (finding that aerial
inspection of area in question was permissible but
stating that “[a]ny actual physical entry by [the] EPA
into any enclosed area would raise significantly
different questions”); United States v. Hatfield, 333
F.3d 1189, 1198 (10% Cir. 2003);(explaining that if the
officer had “physically invaded the curtilage to make
his observation, that would have constituted a search
subject to the proscriptions of the Fourth Amendment”
); United States v. Jenkins, 124 F.3d 768, 774 (6 Cir.
1997)( “Visual inspection from a lawful vantage point,
however, is quite different from the physical assault on
defendants' backyard that occurred in this case”);
Florida v. Riley, 488 U.S. 445, 449, 109 S. Ct. 693 (1989)
({Tlhe home and its curtilage are not necessarily
protected from inspection that involves no physical
invasion As a general proposition, the police may see
what may be seen from a public vantage point where
[they have] a right to be’”” ); California v. Ciraolo, supra.
at 476 US. 213:
(“The Fourth Amendment protection of the
home has never been extended to require law
enforcement officers to shield their eyes when
passing by a home on public thoroughfares. Nor
34
does the mere fact that an individual has taken
measures to restrict some views of his activities
preclude an officer's observations from a public
vantage point where he has a right to be...” ).
In this case, Mr. Fain did not view petitioner's
backyard from a public road but rather entered upon
petitioner's property in order to view her backyard.
The overly dismissive view by the courts below that
the physical intrusion that occurred in this case was
justified because of the “government’s interests in
protecting natural resources” trivializes the importance
of the Fourth Amendment protections at stake and
illustrates the perils of defining “wetlands” as any area
that could possibly grow wetland vegetation. The fact
that the warrantless administrative inspection at issue
in this case involved a potential wetland does nothing to
excuse the constitutional violation, as determined by
the courts below, but rather exacerbates it, since it was
based on the vague definition of “wetland” discussed
above. See Camara, supra, at 387 U.S. at 531 (“the
possibility of criminal entry under the guise of official
sanction is a serious threat to personal and family
security”). Moreover, application of the “plain view”
doctrine to the facts of this case is impermissible absent
an allegation that petitioner was involved in criminal
activity.
The decision relied upon for the exceptionally
attenuated rationalization that the government’s
intrusion did not rise to a constitutional level in part
because it was de minimis ignored the fact that Mr.
Fain repeatedly searched the Gennimi’s property for
four years every time Mr. Fain received a complaint
from the neighbors. Such systematic searches could not
35
possibly be “de minimis,” especially when Mr. Fain took
pictures to be used in convicting Gennimi of wetlands
violations.
The fence was installed to prevent Mr. Fain’s
searches
The Second Circuit affirmed the Report’s finding
that “there is no indication in the record that any of the
plaintiffs went to the lengths of the plaintiff in Palmieri
(stockade fences and “keep out” signs) in preventing a
visual inspection of his property.” As discussed above,
the lower courts failed to give full faith and credit to
the State Supreme Court’s ruling that Ms. Gennimi was
fined $25,000 for installing a fence surrounding her
property. The sole reason for installing such fence was
to keep Mr. Fain and other town officials from
searching her property. Mr. Fain’s repeated searches
were not, as the Second Circuit affirmed, mere state
“trespass.” The decisions of the courts below also
represent a significant and unjustified departure from
the New York Court of Appeals case of Sokolov v.
Village of Freeport, 52 N.Y.2d 341, 488 N.Y.S.2d 257
(1981), which held that a local government’s intrusion
upon a citizen's property under color of law in order to
perform an illegal inspection as a condition precedent to
its issuance of a permit is impermissible.
The Second Circuit decision constitutes such a
radical departure from Supreme Court precedent, state
law and other Circuits’ case law, and in effect forces
homeowners like Gennimi to shutter their windows and
completely enclose their backyards with fences, or
surrender the privacy they enjoy in their homes and
curtilage. That Gennimi did install such a fence all
36
around her house and backyard and was fined for
wetland violations related to the fence installation
illustrate the implications of the Town’s vague
Wetlands law defining “wetland” as any soil that “may”
harbor wetland vegetation. In view of the manifest
error of the Second Circuit’s Fourth Amendment
analysis with respect to Gennimi’s property, and the
conflicts between the Circuits involving the proper
scope of searches of houses and their immediate
surroundings, this Court may wish to consider
summary reversal.
CONCLUSION
For the foregoing reasons, the Court should grant the
petition for writ of certiorari. The Court may also wish
to consider summary reversal.
Alexandra T. Manbeck,
Counsel of Record,
4531 University Avenue,
San Diego, CA 92105
(619) 573-8139
la
(any footnotes trail end of each document)
No. 08-1543-cv
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
PETER C. MANBECK, DOES 1-1000, JOHN
ANONYMOUS, BRUCE CASCIO, EFRAIN
CUBIDES, CAROL DURANTE, JAY DURANTE,
WENDY GENNIMI, DAVID GUTTERMUTH,
LYNN GUTTERMUTH, JERILYNN HAGAN,
MICHAEL HONIG, ROGER MOISTER JR., Trustee,
MARK MOSELLO, MARY CLARK, individually and
on behalf of all others similarly situated, DANIEL
PRITCHARD, individually and on behalf of all others
similarly situated and GEORGE SHAW, individually
and on behalf of all others similarly situated,
Plaintiffs-Appellants,
SIRO CORTINA, LUIGI IMPERIA and GORAN
DJORDJEVSKI, individually and on behalf of all
others similarly situated,
Plaintiffs,
MARK CLARK, individually and on behalf of all others
similarly situated and DAVID S. OLTMAN,
individually and on behalf of all others similarly
situated,
Consolidated-Plaintiffs-Appellants,
v.
TOWN OF LEWISBORO, JAMES NORDGREN,
Town Supervisor, individually and in his official
capacity, PETER BARRETT, Deputy Building
Inspector, and other unnamed Building Inspectors,
individually and in their official capacity, JAY FAIN,
2a
Wetland Inspector, individually and in his official
capacity, Planning Board, JACQUELINE DZALUK,
JOSEPH DECAMINADA, Member of the Planning
Board, individually and in his official capacity,
FREIDA HALPERN, Member of the Planning Board,
individually and in her. official capacity, MAUREEN
MAGUIRE, individually and in her official capacity,
P_J. ROSSI, individually and in his official capacity,
WILLIAM CARGAIN, CONSERVATION
ADVISORY COUNCIL, BUILDING
DEPARTMENT, ALLEN HERSHOWITZ, Town
Councilman, individually and in his official capacity,
JAY FAIN & ASSOCIATES, L.L.C., VINCENT
VETRANO, former Chairman of the Planning Board,
individually and in his official capacity, Conservation
Advisory Council and MARK PATEK, Chairman of the
Conservation Advisory Council individually and in his
official capacity,
Defendants-Appellees,
WILLIAM AGRESTA, Consolidated-Defendant-
Appellee.
May 29, 2009, Decided
NOTICE: PLEASE REFER TO FEDERAL RULES
OF APPELLATE PROCEDURE RULE 32.1
GOVERNING THE CITATION TO UNPUBLISHED
OPINIONS.
Appeal from the United States District Court for the
Southern District of New York (Charles L. Brieant,
Judge; George A. Yanthis, Magistrate Judge).
COUNSEL: APPEARING FOR APPELLANTS:
NICK FIORE, Pound Ridge, New York
3a
ALEXANDRA T. MANBECK, Cross River, New
York.
ROBERT I. GOODMAN, Rye Brook, New York.
APPEARING FOR APPELLEES: JAMES A.
RANDAZZO, Santangelo Randazzo & Mangone, LLP,
Hawthorne, New York.
DANIEL E. O'NEILL, Boeggeman, George & Corde,
P.C., White Plains, New York.
PRESENT: HONORABLE JOSEPH M.
McLAUGHLIN, HONORABLE REENA RAGGI,
Circuit Judges, HONORABLE JANE A. RESTANI,
Judge. *
SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the
district court's March 25, 2008 judgment is
AFFIRMED.
Plaintiffs appeal from the district court's March 25,
2008 judgment, which adopts the magistrate judge's
March 4, 2008 recommendation that summary judgment
be granted in favor of defendants on plaintiffs' claims
under 42 U.S.C. § 1983; the Racketeer Influenced and
Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968; the
Hobbs Act, 18 U.S.C. § 1951(a); and numerous New
York state laws. The claims arise from defendants’
enforcement of certain local laws concerning the
protection of wetlands. See Lewisboro, N.Y., Wetlands
4a
and Watercourses Law, L.L. No. 1 (2004); Lewisboro,
N.Y., Wetlands and Watercourses Law, L.L. No. 3
(1995). The three groups of plaintiffs raise numerous
claims of error in more than 330 pages of opening briefs,
none of which has any merit, and many of which raise
only issues of state law not cognizable under § 1983. See
Sybalski v. Indep. Group Home Living Program, Inc.,
546 F.3d 255, 257 (2d Cir. 2008) (noting that under §
1983 plaintiff must show deprivation of "rights,
privileges, or immunities secured by the Constitution
and laws" of the United States). We assume the parties'
familiarity with the facts and procedural history, which
we reference only as necessary to explain our decision.
"We review a district court's grant of summary
judgment de novo, construing the evidence in the light
most favorable to the non-moving party and drawing all
reasonable inferences in that party's favor."
Mathirampuzha v. Potter, 548 F.3d 70, 74 (2d Cir. 2008)
(alterations omitted) (quoting Allianz Ins. Co. v.
Lerner, 416 F.3d 109, 113 (2d Cir. 2005)). We will affirm
a grant of summary judgment only where the record
presents "no genuine issue as to any material fact." Fed.
R. Civ. P. 56(c).
As to at least one issue, the district court appears to
have applied a "clearly erroneous" standard of review,
rather than de novo review as required by 28 U.S.C. §
636(b)(1) and Fed. R. Civ. P. 72(b). See Manbeck v.
Town of Lewisboro, No. 05-4576, 2008 U.S. Dist. LEXIS
109120, *4 (S.D.N.Y. Mar. 24, 2008). Nevertheless, this
error was harmless because there was no material
factual dispute such that the difference in the standard
of review would affect the outcome. See Fed. R. Civ. P.
61.
5a
Turning to the merits of plaintiffs' claims, we have little
difficulty concluding that summary judgment was
correctly entered in favor of defendants on the core
complaint that plaintiffs were deprived of due process.
The "pre-deprivation" hearing afforded defendants
prior to imposition of the challenged fines by the
Planning Board, coupled with the availability of a "post-
deprivation" Article 78 proceeding to challenge any
allegedly illegal action by the Planning Board satisfies
the requirements of the Due Process Clause. See
Rivera-Powell v. New York City Bd. of Elections, 470
F.3d 458, 466-67 (2d Cir. 2006) (collecting cases and
noting that "at least some form of pre-deprivation
hearing” together with adequate post-deprivation
hearing satisfied Due Process Clause). Accordingly, we
reject each of plaintiffs’ due process arguments,
including those faulting (1) the town for contracting
with a private corporation to do wetlands inspections
and with an attorney advisor, (2) the Planning Board
for "prejudg{ing]" plaintiffs' claims, because the Board
has a pecuniary interest in finding violations; and (3)
the Planning Board for relying on the findings of its
inspector.’
Summary judgment was also properly entered in favor
of defendants on Plaintiffs’ Fourth Amendment claims
because, as in Palmieri v. Lynch, (1) the plaintiffs had
significantly diminished expectations of privacy
because they had applied for construction permits, see
392 F.3d 73, 83 (2004), or (2) the challenged inspections
were "minimally invasive" insofar as they were of
wetlands or abutting areas, not of plaintiffs' homes, see
id. at 84, or both; and (3) the government has a "serious"
interest in protecting natural resources, see id. at 84-85.
6a
Plaintiffs’ selective prosecution and "class of one" claims
under the Equal Protection Clause fare no better. The
selective prosecution claim fails as a matter of law
because plaintiffs’ have not demonstrated that
defendants possessed "malicious or bad faith intent" to
injure them. Cobb v. Pozzi, 363 F.3d 89, 110 (2d Cir.
2004). Plaintiffs’ class of one claim fails because
defendants’ pursuit of violations of the wetlands law
was rationally related to the legitimate goals of the
town wetlands department. See Bizzarro v. Miranda,
394 F.3d 82, 88-89 (2d Cir. 2005) ("[A Jn Olech-type [class
of one] equal protection claim focuses on whether the
official's conduct was rationally related to the
accomplishment of the work of their agency.").?
For the reasons stated in the magistrate judge's report,
adopted in full by the district court, we conclude that
plaintiffs’ following claims also fail as a matter of law:
(1) the wetlands laws are unconstitutionally vague as
applied to plaintiffs; (2) the process by which the
Gutermuths and Shaw acknowledged having violated
the relevant law raises constitutional issues; (3) the civil
fines imposed by defendants violate the Eighth
Amendment; (4) Gennimi was deprived of substantive
due process rights when defendants denied her request
for a building permit.
Finally, to the extent plaintiffs challenge the district
court's decision not to assert supplemental jurisdiction
over plaintiffs’ state law claims, we conclude that the
district court did not abuse its discretion in so ruling.'
See Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305 (2d
Cir. 2003) ("[I]n the usual case in which all federal-law
claims are eliminated before trial, the balance of factors
to be considered under the pendent jurisdiction
Ta
doctrine . . .will point toward declining to exercise
jurisdiction over the remaining state-law claims.").
We have considered all of the plaintiffs' remaining
arguments and conclude that they are uniformly lacking
in merit. Accordingly the district court's award of
summary judgment in favor of defendants is
AFFIRMED.
Footnotes
*The Honorable Jane A. Restani, Chief Judge of the
United States Court of International Trade, sitting by
designation.
1Plaintiffs also argue that defendants violated one or
more plaintiffs' due process rights by (1) failing to
maintain hearing records; (2) failing to issue .Peter
Manbeck a certificate of occupancy for construction of,
inter alia, a tennis court; (8) finding Wendy Gennimi
"guilty of charges not listed in the summons"; and (4)
not according Gennimi "voir dire” when she admitted to
the violation before the board, thereby rendering her
admission constitutionally suspect because it was not
knowingly, voluntarily and _ intelligently made.
Although it appears that we need not consider these
claims because plaintiffs failed to raise them before the
district court, see In re Nortel Networks Corp. Sec.
Litig., 539 F.3d 129, 133 (2d Cir. 2008), we note that our
resolution of those due process claims plaintiffs did
raise would, in any event, require us to reject these
claims.
2Gennimi suggests in her brief to this court that
defendants pursued her for wetlands violations in an
8a
attempt to drive her out of town because of her race.
Gennimi did not plead this allegation in her complaint
and raised it for the first time in opposition to
defendants' motion for summary judgment. Whether it
was properly raised before the district court or not, we
have no trouble rejecting Gennimi's claim of racial
discrimination as conclusory and without any
admissible evidentiary support in the record. See
Rivera-Powell v. New York City Bd. of Elections, 470
F.3d 458, 470 (2d Cir. 2006).
1Plaintiffs also argue that (1) defendants violated Town
Law § 23 because the town's wetlands inspector was
not a resident of Lewisboro; and (2) the town's denial of
Gennimi's request for a building permit was arbitrary
and capricious. We decline to consider these state-law
arguments raised for the first time on appeal. See In re
Nortel Networks Corp. Sec. Litig., 589 F.3d at 133.
9a
05 Civ. 4576 (CLB) (GAY)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
PETER MANBECK, et al.,
Plaintiffs,
- against —
TOWN OF LEWISBORGO, et al.,
Defendants.
2008 U.S. Dist. LEXIS 109120
March 24, 2008, Decided
Memorandum and Order
Brieant, J.
Before this Court for consideration is the Report and
Recommendation of the Hon. George A. Yanthis,
United States Magistrate Judge, filed March 4, 2008
and Objections to the Report and Recommendation
filed by Plaintiffs, received by this Court on March 20,
2008. Familiarity therewith on the part of the reader is
assumed
The Report of the Magistrate Judge recommends the
granting of a long pending Summary Judgment motion.
The Magistrate Judge concluded, essentially as a
matter of law, that the motion should be granted and all
10a
claims against Defendants in this long pending
litigation should be dismissed.
The Objections raise essentially a dispute over issues of
law, and lend themselves more readily to a direct
appeal to the Second Circuit rather than reargument of
the issues visited by the Magistrate Judge. The first
point raised concerns the alleged failure of the
Magistrate Judge to give preclusive effect to the
Ridgeway case, Index No. 94-8987, decided by the
Westchester County Supreme Court on Federal
Constitutional grounds, as well as the opinion of the
New York Attorney General concerning the issues
resolved in Ridgeway. The latter is mentioned in the
Report of the Magistrate Judge. The Ridgeway case is
only part of an extensive Federal and State
jurisprudence relevant to the Constitutional claims in
this litigation, and does not present a basis for rejecting
the Report and Recommendation.
Further, the Objections tend to blur the _ distinction
between the charges of wetland violations, and the
evidence or arguments at the Town hearings. The
mixed conclusion of law and fact by the Magistrate
Judge, that adequate notice was given is not clearly
erroneous.
Insofar as concerns the State causes of action raised by
Plaintiffs, it is the ordinary practice to defer to the
State Courts where the only basis for subject matter
jurisdiction is our supplemental jurisdiction over State
claims having the same nucleus of fact as valid Federal
claims and if the Federal claims are dismissed out of
the case, it is better practice to dismiss the State claims
without prejudice and allow them to be adjudicated in
the State Courts.
lla
The other points raised have been considered by the
Court and do not lead to a rejection or modification of
the Report and Recommendation. The Report and
Recommendation is adopted as the decision of the
District Court. The Objections are disapproved. The
Clerk shall file a final judgment’ and terminate all
motions pending as of March 24, 2008 as moot and close
the case.
SO ORDERED.
Dated: White Plains, New York
March 24, 2008
/s/ Charles L. Brieant
Charles L. Brieant, U.S.D_J.
12a
05 Civ. 4576 (CLB)(GAY)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
PETER MANBECK, et al,
Plaintiffs,
-against-
TOWN OF LEWISBORO, et al, Defendants.
March 4, 2008, Decided
GEORGE A. YANTHIS, United States Magistrate
Judge. HONORABLE CHARLES L. BRIEANT,
United States District Judge.
REPORT AND RECOMMENDATION
TO THE HONORABLE CHARLES L. BRIEANT,
United States District Judge:
Plaintiffs commenced this action pursuant to 42 U.S.C.
§ 1983 and related New York state laws. Plaintiffs
claim that: (1) the Town's wetlands law is
unconstitutionally vague and violates the void-for-
vagueness doctrine, (2) the Town's wetlands law is
unconstitutionally vague as applied to the individual
plaintiffs, (3) the penalties provided for in the
violations sections of the wetlands law is prohibited by
the Excessive Fines Clause of the Eighth Amendment,
(4) the planning board's jurisdiction over wetlands
violations violates the Equal Protection Clause, (5) the
wetlands law does not permit those charged with
violations to be represented by counsel in violation of
l3a
the Sixth Amendment, (6) the wetlands law does not
afford those charged with violations due process, and
(7) the wetlands law provide for searches in violation
of the Fourth Amendment.
On June 8, 2005 a first amended complaint was filed.
After the court ordered that a second amended
complaint be stricken, plaintiffs' counsel filed a second
related action, with four additional plaintiffs. That case
was consolidated with the first.
Presently before this Court are the parties’ motions
for summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure ("FRCP"). For the
reasons set forth below, I respectfully recommend that
the plaintiffs’ motions be DENIED and_ the
defendants' motions be GRANTED.
I. PLAINTIFF'S FACTUAL ALLEGATIONS
The following facts—taken in the light most favorable
to plaintiff—are gleaned from the parties' statements
pursuant to Local Civil Rule 56.1 of the United States
District Courts for the Southern and Eastern Districts
of New York, from the pleadings and from affidavits
and affirmations:
A. Jay and Carol Durante
On March 23, 2005 Jay Fain ("Fain"), responding to a
complaint, inspected the Durante property on Autumn
Ridge road. After the inspection he determined that
the Durantes had cut down trees in a wetlands buffer
area and deposited the resulting wood chips in a
wetlands buffer area without a wetlands permit in
violation of the town wetlands law. Fain issued a stop
work order. Fain also issued a notice of wetland
14a
activity violation and a planning board summons which
were served on the plaintiffs. The summons included a
notice that they had a right to be represented by an
attorney at the scheduled hearing. By letter from the
planning board secretary, plaintiffs were advised that
they could be represented by counsel at the scheduled
hearing, present evidence on their own behalf and
cross examine witnesses. Carol Durante appeared at
the hearing without her husband and without counsel.
Fain and Carol Durante testified at the hearing. After
deliberation, the planning board adopted a resolution
finding that there was no violation regarding the tree
cutting but found a violation with regard to the
depositing of wood chips in a protected wetlands
buffer. Plaintiffs were assessed a civil penalty of $
500.00 and directed to prepare and implement a
restoration plan. Plaintiffs received the resolution,
have never paid the civil penalty, and never sought
judicial review of the decision of the planning board. .
B. Lynn and David Gutermuth
In 2002 the plaintiffs submitted an application to build
a pool on their property on Todd Hill Circle. As part of
the application process, Fain inspected the site and
observed that plaintiffs had already cleared and
stacked some brush on their property. As a result, on
January 3, 2003 Fain issued a notice of wetland
activity violation. By summons issued January 31, 2003
plaintiffs were directed to appear before the planning
board. The summons included a notice that they had a
right to be represented by an attorney at the
scheduled hearing. By letter from the planning board
secretary, plaintiffs were advised that they could be
represented by counsel at the scheduled hearing,
15a
present evidence on their own behalf and cross
examine witnesses. On April 22, 2003 . David
Gutermuth appeared at the public hearing with
counsel. At the hearing, plaintiffs admitted, through
counsel, that work was done in a regulated and deed
restricted area without permit and offered information
in mitigation. As a result the planning board imposed a
$ 250.00 civil penalty and directed that a restoration
plan be submitted and implemented. Plaintiffs have
never sought judicial review or reconsideration of the
planning board's determination.
C. Geoffrey Shaw
In 2000 the town's Zoning Board of Appeals granted
Mr. Shaw a special permit allowing the temporary
storage of contractor's equipment on his property. The
permit was to be renewed every two years; and was in
2002 and in 2004. Prior to the renewal in 2004,
neighbors of Mr. Shaw complained to the building
department that he was storing equipment and
materials not permitted under the special permit.
Based upon the complaints, Mr. Barrett, the building
inspector, inspected the property in connection with
the special permit. The building department issued an
order to remedy violation. Mr. Shaw admitted that he
was storing rock, wood chips, and culvert pipe on his
property.
After further complaints, Fain issued a notice of
wetland activity violation alleging that plaintiff was
dumping, grading, excavating and storing construction
equipment in a wetland or wetland buffer area. The
summons included a notice that they had a right to be
represented by an attorney at the scheduled hearing.
By letter from the planning board secretary, plaintiffs
16a
were advised that they could be represented by
counsel at the scheduled hearing, present evidence on
their own behalf and cross examine witnesses. Plaintiff
then secured a renewal of his special permit from the
Town zoning board of appeals, valid for a period of six
months.
Plaintiff appeared before the planning board on
January 25, 2005 without an attorney. During his
appearance Mr. Shaw admitted to the grading
allegation. As a result, the planning board imposed a $
500.00 civil penalty and directed that a restoration plan
be submitted and implemented. Plaintiffs have never
sought judicial review or reconsideration of the
planning board's determination.
D. Peter Manbeck
On February 26, 2004 plaintiff submitted plans to build
a swimming pool to the building department. The plans
were approved by the building department and
stamped with the legend: "pool not to be filled until
enclosure is completed." In October of 2004, building
inspector Peter Barrett ("Barrett") conducted a
routine inspection of the work in progress. During the
inspection, Barrett noticed that the Manbecks were
filling their pool although the enclosure was not yet in
place. Barrett discussed the situation with Mrs.
Manbeck and allowed her to temporarily safeguard the
pool with orange nylon construction fence until the
permanent enclosure was complete.
In February of 2005 Barrett conducted another
routine inspection of the ongoing construction. During
the inspection, plaintiffs contractors informed him of
the existence of a treehouse on the property. As a
17a
result, Barrett issued an order to remedy as the
treehouse 2d been built without the requisite building
permit. Barrett also advised Mrs. Manbeck to apply
for a building permit.
Fain conducted a routine inspection of the Manbeck
property in connection with the application for the
building permit for the treehouse. During the
inspection Fain determined that the treehouse was
built in a wetlands buffer area without a permit. As a
result, plaintiff was issued with a summons and notice
to answer charges of violating the town wetlands law.
The summons included a notice that they had a right to
be represented by an attorney at the scheduled
hearing.
During an April 28, 2005 inspection of the work in
progress, Barrett observed that a fifteen foot section
of the temporary fence had been removed. Barrett
immediately posted a stop work order, specifying that
no work be done on the premises until the missing
fence was replaced. On the same day, Fain issued two
additional violation notices for building a shed in the
wetlands setback without a wetlands permit and for
the clearing and grading of half an acre of forest within
the wetlands buffer. In connection with the later
charge Fain issued another stop work order.
At the hearing on May 10, 2005, Plaintiff told the
planning board that he had removed the treehouse. As
a result, that charge was withdrawn. It was also
confirmed that the summons and notices for the other
two violations had been returned to the planning board
secretary as unclaimed. During the hearing Ms.
Manbeck attempted to serve the planning board
members with a federal complaint and the hearing was
18a
adjourned. To date the hearing has not been concluded
and the planning board has not issued any
determination in the Manbeck matter.
E. Wendy Gennimi
On September 19, 2002 Fain, in response to neighbor
complaints, inspected the Gennimi property on Lower
Salem road. Fain observed that plaintiff was building a
stone wall in a wetlands area without a wetlands
permit. Fain issued a stop work order and a summons
and notice of wetlands activity violation. The summons
included a notice that they- had a right to be
represented by an attorney at the scheduled hearing.
By letter from the planning board secretary, plaintiff
was advised that she could be represented by counsel
at the scheduled hearing. On November 26, 2002,
plaintiff and her husband Mr. Schliman appeared and
admitted that they had worked in the regulated area
without a permit. They apologized and requested that
the stop work order be lifted. The planning board
adopted a resolution assessing a $ 1500.00 civil penalty
and directed that a restoration plan be submitted and
implemented and that plaintiff apply for the required
wetlands permit.
Plaintiff failed to pay the civil penalty and failed to
submit the required restoration plan. Mr. Schliman
appeared in response to another summons which
informed him of his right to be represented by counsel.
Mr. Schliman admitted that the planning board's
conditions had not been implemented. As a result, the
planning board adopted a resolution similar to the
previous resolution but also requiring that a stone wall
be constructed on the property pursuant to a plan
19a
approved by the wetlands inspector. A wetlands
permit for the work was issued and then extended.
Fain conducted a routine investigation of the of the
property on May 13, 2004 and observed that plaintiff
had failed to comply and was performing additional
excavation without the required permit. Fain then
issued a stop work order.
Plaintiff appeared on July 27, 2004 pursuant to another
summons which informed him of his right to be
represented by counsel. At this time plaintiff
requested an adjournment so that she might obtain
counsel. ‘Ihe hearing was adjourned for such purpose.
On Gctober 12, 2004 plaintiff and her husband
appeared without counsel. Mr. Schliman admitted to
failing to comply with planning board resolutions.
Based upon the admissions, the planning board
adopted a resolution which found four separate
violations and imposed four separate civil penalties
totaling $ 25,000. Plaintiff received the resolution, read
it and understood it.
Plaintiff filed a pro se Article 78 proceeding to
challenge the amount of the fine imposed. When
directed by the State to appear, plaintiff did not
appear. Subsequently, the Article 78 proceeding was
dismissed.
In April of 2005 another summons and notice of
wetland activity violation was served on plaintiffs for
allowing sewage from her house to discharge directly
into a protected area. The septic was repaired and the
violation was withdrawn.
F.. Mary Clark
20a
On February 17, 2000 Ms. Clark was issued a summons
and three notices of wetland activity violation for
working on two lots with heavy machinery without a
wetlands permit. At the public hearing plaintiff was
represented by counsel. By resolution dated May 9,
2000, the planning board determined that plaintiff
committed the above three violations and imposed civil
penalties of $ 12,500 for each lot, totaling $ 25,000.
Ms. Clark challenged the planning board's
determination and penalty by way of an Article 78
proceeding. By decision, order, and judgment dated
January 9, 2002, the Supreme Court of the State of
New York, County of Westchester, overturned the
planning board's determination and remanded the
matter for further proceedings.
Thereafter Ms. Clark and the Town of Lewisboro
entered into a stipulation of settlement resolving all
issues related to the wetlands violations. As a
condition of the stipulation of settlement, Ms. Clark
agreed to withdraw her claims against the town in the
action and also agreed to pay a fine in the amount of $
7,000.
G. Daniel Pritchard
In September of 2002 Mr. Pritchard applied for a
wetlands activity permit to construct a poo! on his
property. Plaintiff subsequently appeared before the
planning board with counsel. During the review
process, it was discovered that plaintiffs house had
been constructed entirely within the wetlands buffer
without a permit. As a result, the planning board
requested that plaintiff legitimize his house, or bring it
into compliance with the town's wetlands law. After
Z2la
plaintiff agreed to legitimize his house, he withdrew
his application for the pool without the planning board
ever making a decision on the application. To this date
Mr. Pritchard has never been issued a notice of
wetlands activity violation. To this date Mr. Pritchard
has never challenged any finding of the planning
board.
H. David Oltman
In August, 2001 plaintiff met with Will Agresta, the
Town's planning and development consultant. The
purpose of the meeting was to discuss Oltman's
proposal to develop a 113 acre parcel located on Todd
Hill Road. At this time Oltman's proposed plan called
for a thirty acre parcel for his home, a seventy acre
donation of land for open space and subdivision of the
remaining acreage into five or six lots. Mr. Agresta
opined that the proposal was reasonable but could take
from one to two (1-2) years for the applicable boards to
approve.
Oltman initially submitted an application to the
planning board for a subdivision of two lots. Before the
planning board could consider the proposal, he
withdrew his application and resubmitted plans to
subdivide the parcel into five building lots and
incorporate conservation easements over 97.1 acres. In
May of 2003, Mr. Oltman prepared a _ revised
subdivision plan that provided for a seventy acre gift
to the town as open space. After several revisions, Mr.
Oltman entered into discussions with the NYC DEP
and by October of 2004 had agreed to sell them a
portion of the parcel. Due to this development, Mr.
Oltman again withdrew his five lot subdivision
22a
application and submitted a new proposed subdivision
application for two lots.
On March 22, 2005, the resolution issuing final
subdivision plat approval was adopted by the planning
board. On June 7, 2005 Mr. Oltman sold the 103 acre
parcel to a private entity, Todd Farm LLC.
Il. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate "if the pleadings,
depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material
fact and that the moving party is entitled to a
judgment as a matter of law.” FRCP 56(c). Specifically,
the party seeking summary judgment has the burden
of demonstrating that no genuine issue respecting any
material fact exists. See LaFond v. General Physics
Servs. Corp., 50 F.3d 165, 171 (2d Cir. 1995). If the
moving party meets its burden, the burden shifts to
the opposing party to come forward with "specific facts
showing that there is a genuine issue for trial." FRCP
56(e). Where a plaintiff fails to establish an essential
element of her claim, "there can be no genuine issue as
to any material fact, since a complete failure of proof
concerning an essential element of the nonmoving
party's case necessarily renders all other facts
immaterial." Celotex Corp. v. Catrett, 477 U.S. 317,
322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)
(internal quotations and citations omitted).
When deciding a summary judgment motion, the court
must resolve all ambiguities and draw all factual
inferences in favor of the party opposing the motion.
See McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.
23a
1999). The question is whether, in light of the evidence,
a rational jury could find in favor of the nonmoving
party. See Gallo v. Prudential Residential Servs., Ltd.
Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994).
Summary judgment must be denied, therefore, if the
court finds "there are any genuine factual issues that
properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of
either party." Anderson v. Liberty Lobby, 477 U.S.
242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
Ill. CLAIMS THAT THE TOWN WETLANDS
LAW IS UNCONSTITUTIONALLY VAGUE
Plaintiffs claim that the definition of wetlands in the
Town wetlands law is unconstitutionally vague on its
face and as applied. Specifically, plaintiffs contrast the
Town wetlands law, which relies on written definitions
of wetlands, with the state and federal statutes, which
are only applicable to wetlands identified on agency
wetland maps.
"The clarity of a statute that does not involve First
Amendment freedoms is to be evaluated on an ‘as
applied’ basis." Ass'n of Intern. Auto Mfrs., Inc. v.
Abrams, 84 F.3d 602, 613-14 (2d Cir. 1996). As the
Town of Lewisboro's definition of wetlands does not
involve First Amendment rights, this Court should
limit itself to an analysis of the statute as applied to
each plaintiff.
Of the six plaintiffs who were charged with wetlands
law violations, five acknowledged in deposition that
they were aware of "wetlands" on their property
before the alleged violations occurred. Of these five,
the Gutermuth property was also subject to a
2Aa
wetlands deed restriction in the County land records.
The Durantes, the Manbecks, Mary Clark, and Mr.
Shaw also admit knowledge of a Town wetlands law.
Because these plaintiffs had actual knowledge of
wetlands on their property, a challenge that the
definition of wetlands contained in the Town wetlands
law is unconstitutionally vague as applied to these
plaintiffs is without merit. As landowners with actual
knowledge of wetlands on their property, these
plaintiffs are charged with knowledge of the statutory
provisions which affect. the control or disposition of
their property. Texaco v. Short, 454 U.S. 516, 102 S.
Ct. 781, 70 L. Ed. 2d 738 (1982); see also Drexler v.
New Castle, 62 N.Y.2d 418, 465 N.E.2d 836, 477
N.Y.S.2d 116 (1984) (New York Court of Appeals holds
that town may regulate wetlands which are not
mapped where plaintiff had actual knowledge of
wetlands on her property). Among the statutes which
affect the control or disposition of their property is the
Town wetlands law.
While Wendy Gennimi alone claimed to be ignorant of
any “wetlands” on her property before being charged
with wetlands law violations, her property borders
mapped State DEC wetlands. As_ such, the
identification of the controlling wetlands in this case
was not made pursuant to the allegedly vague
language in the Town wetlands law. Rather, it was
identified by the State and designated as such on the
State DEC map. As such, her property was also
subject to regulation by the New York State DEC.
Clearly, the definition of wetlands found in the Town
Wetlands law is neither applicable nor vague as
applied to this plaintiff.
25a
For the above reasons, it is respectfully recommended
that with respect to this claim, plaintiffs' motion should
be DENIED and defendants' motion should be
GRANTED.
IV. EIGHTH AMENDMENT EXCESSIVE
FINES CLAIM
Plaintiffs principally rely on two Supreme Court cases
to argue that civil penalties of the kind at issue here
are subject to the Eighth Amendment prohibition
against excessive fines. First, plaintiffs rely on Austin
v. United States, 509 U.S. 602, 113 S. Ct. 2801, 125 L.
Ed. 2d 488 (1993), in which the Supreme Court held
that, under certain circumstances, civil forfeiture
amounted to a monetary punishment subject to the
limitations of the Eighth Amendment. As the instant
matter does not deal with civil forfeiture, this case is of
limited use. Second, plaintiffs rely on United States v.
Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487
(1989), for the proposition that both civil and criminal
sanctions can be punitive and therefore subject to the
Eighth Amendment. As an initial matter, Halper deals
with the subject of criminal and civil sanctions within
the context of Double Jeopardy. Regardless, the
methodology laid out in Halper has been explicitly
abrogated by the Court in Hudson v. United States,
522 U.S. 93, 118 S. Ct. 488, 189 L. Ed. 2d 450 (1997).
Hudson, in sharp contrast with Halper, gives
considerable deference to the legislative intent and
specifically to the legislative characterization of a
sanction. In the present case, the wetlands law
specifically provides for both criminal penalties and
administrative civil penalties. As all of the plaintiffs
charged with wetlands violations were done so under
26a
the provision for civil penalties, the Court should at a
minimum give considerable weight to the Town's
characterization as such.
Outside of these two inapplicable cases, plaintiffs cite
no authority for the proposition that administrative
penalties of the sort challenged here are subject to the
Eighth Amendment. See New York State Federation
of Taxi Drivers, Inc. v. City of New York, 270 F. Supp.
2d 340 (E.D.N.Y. 2003).
Assuming, arguendo, that the Excessive Fines clause
does apply to administrative civil penalties in the same
way that it does to criminal penalties, plaintiffs would
have to show that the penalties levied were "grossly
disproportionate to the gravity of the offense.” United
States v. Bajakajian, 524 U.S. 321, 333, 118 S. Ct. 2028,
14i L. Ed. 2d 314 (1998). Of the six plaintiffs who were
charged with wetlands violations, only five were
assessed civil penalties. Of these five, three were
assessed penalties of $ 500.00 or less.
Of the remaining plaintiffs, Mary Clark was originally
assessed penalties totaling $ 25,000 for six violations,
but later entered into a stipulation of settlement and
agreed to pay $ 7,500. Wendy Gennimi has been
assessed civil penalties totaling $ 25,000 as a result of
four separate violations, each violation averaging less
than the $ 7,500 penalty allowed by the statute. The
total figure of $ 25,000 was only assessed after Ms.
Gennimi's repeated failure to remedy her initial
infraction and bring her property into compliance with
the Town's wetlands law. Under the circumstances,
plaintiff has not shown that such penalty is grossly
disproportionate to the gravity of the offense.
27a
For the above reasons, it is respectfully recommended
that with respect to this claim, plaintiffs' motion should
be DENIED and defendants’ motion should be
GRANTED.
V. EQUAL PROTECTION CLAIMS
Plaintiffs initially claim that the planning board's
jurisdiction over administrative wetlands violations
implicates the plaintiffs' equal protection rights. As all
administrative wetlands charges are heard before the
planning board and not in the town court, plaintiffs’
equal protection rights are not so implicated.
Plaintiffs next premise an equal protection claim on
the assertion that while the Town pursued wetlands
violations against six of the plaintiffs, it failed to
pursue wetlands violations against the School District,
the Town of Lewisboro Highway Department, and
Town resident and landowner Adam Rose (collectively
the "similarly situated").
As an initial matter, plaintiffs' equal protection claim
only implicates defendant Fain as the initiator of the
wetlands violation process. Individual defendants on
the planning board could hardly have pursued
wetlands charges against the alleged similarly situated
parties if Fain never initiated the charges. Defendant
municipality is also not implicated as the allegation
that Fain failed to charge three wetlands violators falls
well short of showing the policy or custom required to
invoke municipal liability. Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611
(1978). In fact, plaintiffs do not allege that Fain acted
under a common motive when he failed to enforce the
28a
wetlands law against the similarly situated, let alone
that he was implementing a policy or custom.
Second, plaintiffs' comparison between plaintiffs, the
Highway Department and the School District is
misplaced. The wetlands law provides that the law can
only be enforced against a "person or property owner."
As neither the town itself nor the School district is a
person or property owner for the purposes of this law,
Fain as a wetlands inspector, lacked the jurisdiction to
initiate wetlands violations against these entities.
Therefore, any comparison between Fain's treatment
of these entities and his treatment of plaintiffs is
without effect.
With regard to Adam Rose, the remaining similarly
situated, plaintiffs advance two related equal
protection arguments to state a claim under the
-Fourteenth Amendment..
A. Selective Proseution
First, plaintiffs claim a denial of equal protection as a
result of having been subjected to a "selective
prosecution." Cobb v. Pozzi, 363 F.3d 89, 109 (2d Cir.
2004). To prevail on a claim of selective prosecution, a
plaintiff must "show both (1) that [she was] treated
differently from other similarly situated individuals,
and (2) that such differential treatment was based on
impermissible considerations such as race, religion,
intent to inhibit or punish the exercise of constitutional
rights, or malicious or bad faith intent to injure a
person.” Id. Selective enforcement is a "murky corner
of equal protection law in which there are surprisingly
few cases." LeClair v. Saunders, 627 F.2d 606, 608 (2d
Cir. 1980). A successful plaintiff must establish that
29a
the governmental actor. was motivated by reasons
wholly unrelated to any legitimate state objective, a
burden few are able to carry. Bizzarro v. Miranda, 394
F.3d 82, 86 (2d Cir. 2005).
Plaintiffs fail to establish the second prong of the
selective prosecution test. Plaintiffs make conclusory
allegations of Fain’s malicious intent towards them.
However, -they fail to provide any theory as to why
Fain harbored ill feelings with respect to the six
plaintiffs charged with wetlands violations. See Zahra
v. Town of Southold, 48 F.3d 674, 684 (2d Cir. 1995)
(conclusory allegations of malice without evidence of
such was insufficient to establish an equal protection
clam); Levy v. Alfano, 47 F. Supp. 2d 488, 496
(S.D.N.Y. 1999) (allegations that enforcement officer
was friends with complainant was insufficient to
establish malice). Neither do plaintiffs claim that they
are members of any uniform race, religion, sex, or
affiliation. Without such classification or evidence of
malicious intent, plaintiffs fail to establish the second
prong of the test. See Zahra, 48 F.3d at 684.
Regardless, plaintiffs have no fundamental right to
demand enforcement of the laws against their
neighbors. See Zahra, 48 F.3d at 684. "Equal
protection does not require that all evils of the same
genus be eradicated or none at all.” Id. Plaintiffs allege
that Fain failed to enforce the laws against Rose
because of Rose's undue influence within the Town
government, rather than because of any characteristic
of plaintiffs or their property. Plaintiffs' attempt to
describe how they were treated differently focuses
exclusively on Fain's alleged treatment of Rose.
Without a claim that they were singled out for the
enforcement of a law in such a way as to burden a
30a
constitutional right, plaintiffs do not allege a
cognizable constitutional deprivation. See, e.g.,
Panchura v. Ryan, No. Civ.A. 05-1299, 2006 U.S. Dist.
LEXIS 13576, 2006 WL 840335, *2 (W.D.Pa Mar. 28,
2006).
B. Class of One Claim
Plaintiffs also advance a "class of one" claim which
relies on a "slightly different theory." Bizzarro, 394
F.3d at 86. A "class of one” may bring an equal
protection claim “where the plaintiff alleges that she
has been intentionally treated differently from others
similarly situated and that there is no rational basis for
the difference in treatment.” Village of Willowbrook v.
Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 145 L. Ed. 2d
1060 (2000). Unlike a selective enforcement claim, a
“class of one’ claim is not dependent on a [plaintiff's]
ability to prove that [she was] disciplined for an
impermissible reason." Cobb, 363 F.3d at 110. Rather,
this claim "focuses on whether the official's conduct
was rationally related to the accomplishment of the
work of their agency." Bizzarro, 394 F.3d at 88-89.
However, “class of one” does not "empower federal
courts to review government actions for correctness."
Id. at 88.
With regards to plaintiffs’ "class of one” argument, the
plaintiffs again fail to claim that they were
intentionally treated different from those similarly
situated—rather they claim Rose was the person
subject to the special treatment. The fact that the
plaintiffs number six and can only name one person
who was allegedly not prosecuted for his wetlands
violations is suggestive of this upside-down dynamic.
To the extent that plaintiffs maintain that they were
sla
singled out for adverse treatment because of the
malicious intent of Fain, they must prove that Fain
had no rational basis for treating them differently.
Bizzarro, 394 F.3d at 88-89; Cobb v. Pozzi, 363 F.3d 89,
108-9 (2d Cir. 2004). "If a jury could reasonably find
there was no rational basis for the defendants to
believe that initiating charges against these plaintiffs
could serve the legitimate goals of the [government
agency], a claim would lie.” Bizzarro, 394 F.3d at 89.
Clearly, a wetlands inspector has a rational basis to
believe that initiating charges against six wetlands
violators serves the legitimate goals of the Town
wetlands department. As was previously discussed, all
six plaintiffs eventually admitted to violating the
wetlands law. As such, a jury could not reasonably
believe that there was no rational basis for the
charges.
For the above reasons, it is respectfully recommended
that with respect to this claim, plaintiffs’ motion should
be DENIED and defendants' motion should be
GRANTED.
VI. SIXTH AMENDMENT RIGHT TO COUNSEL
CLAIMS
The wetlands law permits those charged- with
violations to be represented by counsel. § 217-12
(A)(1Xe). Plaintiffs Guttermuth, Manbeck, Clark,
Oltman and Pritchard all appeared with counsel.
Although Gennimi, Durante, and Shaw appeared
without counsel, they all admit to being notified of
their right to be represented by counsel. In addition,
the wetlands law permits an alleged violator to
present evidence and to examine any witness. § 217-
12(A)(1)(c)and (d).
32a
For the above reasons, it is respectfully recommended
that with respect to this claim, plaintiffs’ motion should
be DENIED and defendants' motion should be
GRANTED.
V. DUE PROCESS
In the context of an administrative proceeding, due
process requires that plaintiffs be afforded notice and
an opportunity to be heard. Fuentes v. Shevin, 407
U.S. 67, 82, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972). To
the extent that plaintiffs' due process rights were
violated by an _ intentional but unauthorized
deprivation of due process, the availability of an
Article 78 hearing satisfies this requirement. Indeed,
plaintiffs cite prominently to two such Article 78
decisions wherein the state courts recognized due
process violations by the Lewisboro Planning Board.
Plaintiffs advance three claims which allegedly
implicate plaintiffs' due process rights.
A. Claim that Circulation of Violation Summary by
Fain is a Deprivation of Due Process
Plaintiffs rely on Ridgeway v. Town of Lewisboro
Planning Board, 2003 N.Y. Op. Atty. Gen. 1105, 2003
WL 23100817 (N.Y.A.G.), an Article 78 proceeding in
Westchester County Supreme Court, for the
proposition that circulating an internal violation
summary among the planning board members is a
violation of their due process rights. The court in
Ridgeway makes no such determination. Rather, it
found that the planning board may not issue a
summons and notice of violation and then charge a
landowner with violations not enumerated in the
written notice. The court pointed out that such an
33a
error is not cured when the new violations are included
on the internal violations summary document and this
document is not given to the alleged violator. In the
present case, none of the plaintiffs allege that they
were charged with violations at the hearing that were
not contained in their summons and notice of violation.
B. Claim that the Internal Distribution of the
Violation Summary Constitutes "Pre Judging” in
Violation of Plaintiffs' Due Process Rights
Plaintiffs cite Clark v. Town of Lewisboro, Index No.
00-8944, an Article 78 proceeding in Westchester
County Supreme Court, for the proposition that
circulating an internal violations summary constitutes
impermissible prejudging in a governmental body
charged with keeping an open mind. However, in
Clark, planning board members were faulted for
giving media interviews in which they made factual
statements as to what had or had not happened and
opinions prior to a hearing. The internal violations
summary only states the facts as determined by the
wetlands inspector. There is no indication, as there
was in Clark, that this document caused planning
board members to pre-judge the matter before the
hearing. To the extent that the plaintiffs allege that
Fain prejudged the matters, this is no great
revelation. If he did not believe a violation had
occurred, he would not have initiated the violation
process. However, the wetlands inspector is not
involved in the issuing of civil penalties. The planning
board alone is the administrative body empowered
with hearing the evidence from both sides.
Regardless, the planning board never determined the
innocence or guilt of the plaintiffs in the instant action.
34a
Plaintiffs Shaw, Gennimi, and Guttermuth all admitted
to the allegations and never required a full hearing.
Plaintiff Clark had a full hearing, but the findings of
the planning board were overturned in the above cited
Article 78 hearing. On remand, Clark entered into a
settlement in which she agreed to pay a civil penalty.
Plaintiff Durante also had a full hearing. However, in
the course of the hearing Durante admitted to one of
the violations and the planning board found insufficient
evidence to pursue a penalty with regards to the
second violation. Plaintiffs Oltman and Pritchard were
never charges with a wetland violation and so never
had such a hearing. As was previously stated, plaintiff
Manbeck's hearing has yet to be concluded. Again, the
record is devoid of any evidence of prejudging.
C. Claims that Plaintiffs Gennimi, Durante, and
Manbeck's Due Process Rights Were Violated by
the issuance of Stop Work Orders
"Plaintiffs have a procedural due process claim if they
have been deprived of a right, privilege or immunity,
secured by the United States law or the Constitution,
without sufficient procedure attending’ the
deprivation." See Cathedral Church of the Intercessor
v. Incorporated Village of Malverne, 353 F. Supp. 2d
375, 386-87 (E.D.N.Y. 2005) (quoting Kentucky Dep't
of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.
Ct. 1904, 104 L. Ed. 2d 506 (1989)).
First, plaintiffs must show that they had a property
interest in the building permits that were affected by
the stop work order. Cathedral Church of the
Intercessor, 353 F. Supp. 2d at 386-87. The key inquiry
under this prong is whether the plaintiffs were
entitled to the permit, or put another way, could the
35a
permit have been denied by the town on non-arbitrary
grounds. Id. Here, plaintiffs do not allege that they
were entitled to the building permits at issue. Rather,
it is evident that the permits issued to the relevant
plaintiffs were discretionary; contingent on plaintiffs’
compliance with applicable Town zoning and wetlands
laws. RRI Realty Corp. v. Incorporated Village of
Southampton, 870 F.2d 911 (2d Cir. 1988). As such,
plaintiffs did not have a constitutionally protected
property interest in their permits.
Regardless, even if plaintiffs had a property interest in
the building permits, the stop work orders here were
temporary suspensions which were to be lifted when
plaintiffs complied with Town law. See Cathedral
Church of the Intercessor, 353 F. Supp. 2d at 386-87. If
the stop work orders in question had been "indefinite
suspensions" of a property right, procedural due
process rights may have been implicated. Tri-County
Indus. v. District of Columbia, 104 F.3d 455, 460-62,
322 U.S. App. D.C. 412 (D.C. Cir. 1997). As such, the
issuance of the stop work orders in question did not
trigger any additional pre-deprivation due process
procedures. Cathedral Church of the Intercessor, 353
F’. Supp. 2d at 386-87.
For the above reasons, it is respectfully recommended
that with respect to this claim, plaintiffs' motion should
be DENIED and defendants' motion should be
GRANTED.
VI. CLAIMS THAT PLAINTIFF'S [*34]
FOURTH AMENDMENT CLAIMS HAVE BEEN
VIOLATED
36a
Plaintiffs claim that their Fourth Amendment rights
were violated by various town official who entered
onto and visually inspected their property.
The Fourth Amendment vests individuals with the
right to be free from "unreasonable government
intrusions into their legitimate expectations of
privacy.” United States v. Reyes, 283 F.3d 446, 457
(1997). In determining the reasonableness of a search,
the intrusion on an individual's privacy interests is
balanced against the search's promotion of legitimate
governmental interest. Palmieri v. Lynch, 392 F.3d 73,
81 (2d Cir. 2004). Searches pursuant to a regulatory
scheme need not adhere to the usual requirements
where special governmental needs are present. Id. at
79-80; see also Shapiro v. City of Gien Cove, No. CV
03-0280, 2005 U.S. Dist. LEXIS 43276, 2005 WL
1076292, *12 (E.D.N.Y. May 05, 2005) ("By applying for
and accepting a building permit, plaintiff implicitiy
accepted City's supervision of the construction site,
including its right to inspect the property at any
reasonable hour, thus diminishing her expectation of
privacy at the site"). When a government official
‘enters upon a citizen's private property but does not
seek to inspect the interior of his house, his personal
property, his person, or any closed containers, he at
worst commits a trespass. Palmieri, 392 F.3d at 84; see
also Reed v. Schneider, 612 F. Supp. 216, 221
(E.D.N.Y. 1985) ("Technical trespasses have been
found not to constitute unreasonable searches.").
In the instant case, the Town had a legitimate interest
in protecting the town's wetlands and by extension it's
water supply. Palmieri v. Lynch, 392 F.3d at 84-85. All
alleged inspections were either done in response to a
complaint or as part of a permit process. In addition,
37a
all inspections were visual inspections of open land, an
area where citizens enjoy a diminished expectation of
privacy at best. Id. at 81. Indeed, there is no indication
in the record that any of the plaintiffs went to the
lengths of the plaintiff in Palmieri (stockade fences and
"keep out” signs) in preventing a visual inspection of
his property. As such instant plaintiffs would have a
diminished expectation of privacy in their open
property.
Regardless, none of the plaintiffs except Mr. Shaw and
the Durantes have alleged that town officials have
entered their property without their consent or the
consent of their representatives. Even Mr. Shaw
reluctantly acknowledged that the complained of
search was only conducted in connection with building
permits, or because the building inspector was
permitted to do so pursuant to the express terms of
the special permi* issued to Mr. Shaw. In the case of
the Durantes, Fain inspected the open property while
employees from a tree removal company were on the
property removing trees. Given the circumstances and
the diminished expectation of privacy, the Durantes'
Fourth Amendment rights were not violated in any
significant way.
For the above reasons, it is respectfully recommended
that with respect to this claim, plaintiffs’ motion should
be DENIED and defendants' motion should be
GRANTED.
VII. CLAIMS OF OLTMAN AND PRITCHARD
Plaintiffs Oltman and Pritchard have failed to claim
any cognizable violation of a constitutional right as
required under § 1983. The Planning board approved
38a
the only complete subdivision application Mr. Oltman
ever filed. To the extent that Mr. Oltman claims he
was the victim of a "conspiracy" among town officials,
he cannot point to any resulting violation of a
constitutional right.
During a planning board review of Mr. Pritchard's lot
as part of an application for a variance, it was
discovered that the entire house was out of compliance
with wetlands laws. Defendants claim that the extent
of the wetlands had been fraudulently misrepresented
by the builder in order to secure the building permit.
When the Town requested that Mr. Pritchard
legitimize his house, Pritchard readily agreed and did
so. In the process, Mr. Pritchard withdrew his
application for the variance that initiated the process.
In sum, Mr. Pritchard cannot point to any resolution or
adverse action by the town which violated a
constitutional right.
For the above reasons, it is respectfully recommended
that with respect to these plaintiffs, plaintiffs’ motion
should be DENIED and defendants’ motion should be
GRANTED.
VIII. CONSPIRACY
Because plaintiffs have failed to state a claim under 42
U.S.C. § 1983, all § 1983 conspiracy claims must
likewise be dismissed. Singer v. Fulton County Sheriff,
63 F.3d 110, 119 (2d Cir. 1995). To the extent that
plaintiffs’ complaint states a claim for conspiracy under
42 U.S.C § 1985, plaintiffs have failed to demonstrate
that the alleged conspiracy was motivated by "some
racial, or perhaps otherwise class based invidious
39a
discriminatory animus." Mian v. Donaldson v. Jenrett
Securities Corp., 7 F.3d 1085, 1087-88 (2d Cir. 1993).
For the above reasons, it is respectfully recommended
that with respect to this claim, plaintiffs' motion should
be DENIED and defendants' motion should be
GRANTED.
IX. RESIDUAL FEDERAL CLAIMS
A. The Hobbs Act and 18 U.S.C. § 1962
The Court finds insufficient evidence in the record to
support a claim that any defendant conspired with any
party to extort money in violation of the Hobbs Act or
any other federal statute.
B. Claim that Defendants Fain and Clark Were
Employed as a Wetlands Inspector in Violation of
Federal Law
None of the case law cited by plaintiffs prohibits the
Town from contracting with a private corporation to
perform administrative or consultative services. Mr.
Fain's contract as a wetlands inspector specifies only
investigative and consultative duties. The record is
void of any showing that he performed judicial or law
enforcement duties beyond the scope of the contract.
The fact remains that Fain inspected at the direction
of the Town, and the planning board made the final
determinations with respect to wetlands violations.
Likewise, as attorney for the Building Department
and Planning board, Ms. Clark's contract with the
town specifies only administrative and advisory duties.
The record is void of any showing that she performed
prosecutorial or judicial duties beyond the scope of the
40a
contract. While Ms. Clark aided the planning board in
the preparation of administrative charges, plaintiffs
make no showing that her duties were prosecutorial in
nature.
For the above reasons, it is respectfully recommended
that with respect to these claims, plaintiffs' motion
should be DENIED and defendants’ motion should be
GRANTED.
X. STATE LAW CLAIMS
As a result of the dismissal of all of Plaintiffs' federal
causes of action, this Court should decline to exercise
its supplemental jurisdiction over plaintiffs' state
causes of action. 28 U.S.C. § 1367(c)(3); Travelers Ins.
Co. v. Keeling, 996 F’.2d 1485, 1490 (2d Cir. 1993).
XI. CONCLUSION
For all of the foregoing reasons, I conclude, and
respectfully recommend that defendants' motions for
summary judgment should be granted and all claims
against defendants should be dismissed.
XII. NOTICE
Pursuant to 28 U.S.C. § 636(b)(1)(B), as amended, and
Rule 72(b), Fed. R. Civ. P., the parties shall have ten
(10) days from receipt of this Report to serve and file
written objections’ to this Report and
Recommendation. If copies of this Report are served
upon the parties by mail, the parties shall have
thirteen (13) days from receipt of this Report to file
and serve written objections. See Fed. R. Civ. P. 6(e).
Such objections, if any, shall be filed with the Clerk of
the Court, with extra copies delivered to the chambers
Ala
of The Honorable Charles L. Brieant at the United
States District Court, Southern District of New York,
300 Quarropas Street, White Plains, New York, 10601,
and to the chambers of the undersigned at said
Courthouse.
Failure to file timely objections to this Report and
Recommendation will preclude later appellate review
of any order of judgment that will be entered. See
Small v, Secretary of H.H.S., 892 F.2d 15, 16 (2d Cir.
1989).
Requests for extensions of time to file objections must
be made to the Honorable Charles L. Brieant and not
to the undersigned.
Dated: March 4, 2008
White Plains, New York
Respectfully Submitted,
/s/ George A. Yanthis
GEORGE A. YANTHIS, U.S.M_.
42a
Filed 8/31/09
No. 08-1543-cv
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
PETER C. MANBECK, DOES 1-1000, JOHN
ANONYMOUS, BRUCE CASCIO, EFRAIN
CUBIDES, CAROL DURANTE, JAY DURANTE,
WENDY GENNIMI, DAVID GUTTERMUTH,
LYNN GUTTERMUTH, JERILYNN HAGAN,
MICHAEL HONIG, ROGER MOISTER JR., Trustee,
MARK MOSELLO, MARY CLARK, individually and
on behalf of all others similarly situated, DANIEL
PRITCHARD, individually and on behalf of all others
similarly situated and GEORGE SHAW, individually
and on behalf of all others similarly situated,
Plaintiffs-A ppellants,
SIRO CORTINA, LUIGI IMPERIA and GORAN
DJORDJEVSKI, individually and on behalf of all
others similarly situated,
Plaintiffs,
MARK CLARK, individually and on behalf of all others
similarly situated and DAVID S. OLTMAN,
individually and on behalf of all others similarly
situated,
Consolidated-Plaintiffs-A ppellants,
v.
TOWN OF LEWISBORO, JAMES NORDGREN,
Town Supervisor, individually and in his official
capacity, PETER BARRETT, Deputy Building
Inspector, and other unnamed Building Inspectors,
individually and in their official capacity, JAY FAIN,
Wetland Inspector, individually and in his official
43a
capacity, Planning Board, JACQUELIN# DZALUK,
JOSEPH DECAMINADA, Member of the Planning
Board, individually and in his official capacity,
FREIDA HALPERN, Member of the Planning Board,
individually and in her official capacity, MAUREEN
MAGUIRE, individually and in her official capacity,
P.J. ROSSI, individually and in his official capacity,
WILLIAM CARGAIN, CONSERVATION
ADVISORY COUNCIL, BUILDING
DEPARTMENT, ALLEN HERSHOWITZ, Town
Councilman, individually and in his official capacity,
JAY FAIN & ASSOCIATES, L.L.C., VINCENT
VETRANO, former Chairman of the Planning Board,
individually and in his official capacity, Conservation
Advisory Council and MARK PATEK, Chairman of the
Conservation Advisory Council individually and in his
official capacity,
Defendants-Appellees,
WILLIAM AGRESTA, Consolidated-Defendant-
Appellee.
ORDER
Appellants, Peter C. Manbeck, DOES 1-1000, John
Anonymous, et al., having filed a petition for panel
rehearing, or, in the alternative, for rehearing en banc,
and the panel that determined the appeal having
considered the request for panel rehearing, and the
active members of the Court having considered the
request for rehearing en banc,
IT IS HEREBY ORDERED that the petition is
denied.
44a
Filed 8/29/2007
Index No. 2771/07
SUPREME COURT OF THE
STATE OF NEW YORK
COUNTY OF WESTCHESTER
TOWN BOARD OF THE TOWN OF LEWISBORO,
Plaintiff
-against-
WENDY GENNIMI AND VICTOR SCHLIMAN, 19
LOWER SALEM ROAD, SOUTH SALEM, NEW
YORK, Defendants
DECISION AND ORDER
LOEHR, J.
The following papers numbered | to 5 were read on
Defendants’ motion pursuant to CPLR 3211 dismissing
the complaint or, alternatively, staying the action.
Papers Numbered
Notice of Motion — Affirmation —
Exhibits (Vol. I & IT) 1
Affirmation in Opposition 2
Memorandum of Law in
Opposition . 3
Affirmation in Support 4
Reply Memorandum of Law 5
Upon the foregoing papers, it appears that on July 15,
45a
2004 Defendant Gennimi was charged by the Lewisboro
Planning Board (the “Planning Board”) with
constructing a fence without a permit in violation of the
Town of Lewisboro Wetlands Law. After several
hearings before the Planning Board, on October 26,
2004, the Planning Board determined that Gennimi had
violated the Wetlands Law and imposed fines totaling
$52,000. In July 2005, the Defendants joined a federal
action (pending before United States District Judge
Charles L. Brieant) as party-plaintiffs. In that action,
the Defendants herein challenged the constitutionality
of the Wetlands Law on its face and as applied to them
and sought to enjoin the Town of Lewisboro from
enforcing the fines. On July 21, 2005, the Federal Court
issued injunctions staying enforcement activity for the
balance of the action and by a Memorandum and Order
dated November 10, 2005 directed that discovery
should proceed on the constitutional claims. The fence
in question also apparently violated the Town’s setback
requirements and on February 2, 2007, Gennimi filed an
application with the Lewisboro Zoning Board of
Appeals (the “ZBA”) seeking a variance with respect
thereto. Such administrative proceeding also remains
pending. The Town has also issued “stop work” orders
with respect to such bands and with respect to
Defendant Schliman operating a commercial
landscaping business on this residentially zoned
property in violation of Town Code Sec. 220-23(A). The
enforcement of such stop work orders-to the extent
they have not been stayed by the federal action-are
pending in the Town of Lewisboro Justice Court.
All of the foregoing notwithstanding, on February 16,
2007, Plaintiff commenced the instant action. The
complaint asserts for causes of action: the first three
46a
see declaratory relief as follows. The first cause of
action seeks a declaration with respect to the non-
conforming nature of the fence. The second with
respect to the Defendants engaged in commercial
activity on residential property and the third seeks a
declaration that the Defendants have violated the
Wetlands Law. The fourth cause of action seeks to
enjoin the Defendants from continuing such violations.
CPLR 3211(a)(4) authorizes this Court to stay an action
where there is another action pending between the
same parties for the same relief. Here, in first cause of
action (the fence setback) the Plaintiff is seeking relief
with respect to the subject matter of a proceeding
pending before the ZBA. In the second cause of action
(the commercial use of residential property), to the
extent it has not been stayed by the federal action, the
Plaintiff is seeking relief with respect to the subject
matter of a proceeding pending before the Town Justice
Court, and in the third cause of action (Wetlands), the
Plaintiff is seeking relief with respect to the subject
matter of a proceeding pending before the Federal
Court. For the foregoing reasons, each of these causes
of action is stayed pending the completion of the prior
pending action or actions.
The foregoing constitutes the decision in order of this
Court.
47a
6/17/2008
Supreme Court of the State of New York
Appellate Division: Second Judicial Department
2007-09523
Tc wn Board of Town of Lewisboro, appellant, v Wendy
Gennimi, et al., respondents.
(Index No. 07-2771)
ORDER ON APPLICATION
Application to Withdraw Appeal
Application by the appellant to withdraw an appeal
from an order of the Supreme Court, Westchester
County, entered August 29, 2007.
Upon the papers filed in support of the application and
no papers having been filed in opposition or in relation
thereto, it is
ORDERED that the application is granted and the
appeal is marked withdrawn.
United States Constitution, Art. IV, § 1
Full Faith and Credit shall be given in each State to the
public Acts, Records, and judicial Proceedings of every
other State. And the Congress may be general Laws
prescribe the Manner in which such Acts, Records, and
Proceedings shall be proved, and the Effect thereof.
Fourth Amendment
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly
describing the place to be searched, and the persons or
things to be seized.
eenth Amendment
No State shall...deprive any person of life, liberty, or
property, without due process of law...nor deny to any
person within its jurisdiction the equal protection of the
laws.
The statutes involved are the Civil Rights Act, +42
U.S.C. §§1983 and 1985(3), the Clean Water Act and
the Full Faith and Credit Act.
Title 42, Section 1983 of the United States Code
provide, in pertinent part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State... ,
subjects, or causes to be subjected, any citizen of the
United States...to the deprivation of any rights,
privileges, or immunities secured by the Constitution
49a
and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for
redress... .
Title 42, Section 1985 of the United States Code
provide, in pertinent part:
(3) Depriving persons of rights or privileges.
If two or more persons in any State or Territory
conspire or go in disguise on the highway or on the
premises of another, for the purpose of depriving,
either directly or indirectly, any person or class of
persons of the equal protection of the laws, or of equal
privileges and immunities under the laws; ... or to injure
any citizen in person or property on account of such
support or advocacy; in any case of conspiracy set forth
in this section, if one or more persons engaged therein
do, or cause to be done, any act in furtherance of the
object of such conspiracy, whereby another is injured in
his person or property, or deprived of having and
exercising any right or privilege of a citizen of the
United States, the party so injured or deprived may
have an action for the recovery of damages occasioned
by such injury or deprivation, against any one or more
of the conspirators.
The Clean Water Act (CWA), 33 U.S.C.A. § 1251 et
seq., provides in pertinent part:
Except as in compliance with this section and
section[]...1344 of this title, the discharge of any
pollutant by any person shall be unlawful.
33 U.S.C. § 1311(a) (CWA § 301(a)).
The Secretary may issue permits, after notice and
opportunity for public hearings, for the discharge of
50a
dredged or fill materials into the navigable waters at
specified disposal sites.
Judiciary and Judicial Procedure, 28 U.S.C. § 1738
provides:
“The Acts of the legislature of any State, Territory, or
Possession of the United States, or copies thereof, shall
be authenticated by affixing the seal of such State,
Territory or Possession thereto.
The records and judicial proceedings of any court of any
such State, Territory or Possession, or copies thereof,
shall be proved or admitted in other courts within the
United States and its Territories and Possessions by
the attestation of the clerk and seal of the court
annexed, if a seal exists, together with a certificate of a
judge of the court that the said attestation is in proper
form.
Such Acts, records and judicial proceedings or copies
thereof, so authenticated, shall have the same full faith
and credit in every court within the United States and
its Territories and Possessions as they have by law or
usage in the courts of such State, Territory or
Possession from which they are taken.”
The Federal Regulations involved are 33 C.F.R. §
328.3
For the purpose of this regulation these terms are
defined as follows:
(a) The term waters of the United States means:
(1) All waters which are currently used, or were used in
the past, or may be susceptible to use in interstate or —
foreign commerce, including all waters which are
5la
subject to the ebb and flow of the tide;
(2) All interstate waters including interstate wetlands;
(3) All other waters such as intrastate lakes, rivers,
streams (including intermittent streams), mudflats,
sandflats, wetlands, sloughs, prairie potholes, wet
meadows, playa lakes, or natural ponds, the use,
degradation or destruction of which could affect
interstate or foreign commerce including any such
waters:
(i) Which are or could be used by interstate or foreign
travelers for recreational or other purposes; or (ii)
From which fish or shellfish are or could be taken and
sold in interstate or foreign commerce; or (iii) Which
are used or could be used for industrial purpose by
industries in interstate commerce;
(4) All impoundments of waters otherwise defined as
waters of the United States under the definition;
(5) Tributaries of waters identified in paragraphs (a)(1)-
(4) of this section;
(6) The territorial seas;
(7) Wetlands adjacent to waters (other than waters that
are themselves wetlands) identified in paragraphs
(a)(1)-(6) of this section....
(b) The term wetlands means those areas that are
inundated or saturated by surface or ground water at a
frequency and duration sufficient to support, and that
under normal circumstances do support, a prevalence of
vegetation typically adapted for life in saturated soil
conditions. Wetlands generally include swamps,
marshes, bogs, and similar areas.
The State laws involved are:
New York State Town Law § 23. Eligibility of town
52a
officers
1- Every elective officer of the town at the time of his
election and throughout his term of office, shall be an
elector of the town. Every other officer of the town at
the time of his appointment and throughout his term of
office shall be an elector of the town except that: (a) in
towns having no resident attorney, the town attorney
and such counsel as may be employed need not be
electors;
The local laws involved are:
LEWISBORO WETLANDS AND
WATERCOURSES LAW
CHAPTER 217 provides in relevant part:
§ 217-2 Definitions; word usage
WETLAND/FRESHWATER WETLAND - All areas
that comprise hydric soils and/or
are inundated or saturated by surface or ground water
at a frequency and duration
sufficient to support a prevalence of hydrophytic
vegetation.
§ 217-11 Enforcement, stop work orders, violations
and penalties.
B. Enforcement agents. This chapter shall be enforced
by the Wetland Inspector and
such deputy inspectors as may be appointed by the
Town Board.
E. Penalties for violations, administrative and criminal
53a
sanctions.
(1) Any single violation shall be subject to either
administrative or criminal
sanctions but not both.
(2) Administrative sanctions.
(a) Any person or property owner who undertakes any
regulated activity within a wetland, watercourse
and/or buffer area without a permit issued hereunder;
or who violates, disobeys or disregards any provision of
this chapter, including any provision of any permit
issued pursuant to this chapter, shall be liable to the
Town of Lewisboro for a civil penalty of not more than
seven thousand five hundred dollars ($7,500.) for every
such violation. Any civil penalty in excess of five
thousand dollars ($5,000.) shall be based upon a finding
of willful violation by a majority of the board plus one.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.