# Petition for Writ of Certiorari — Gennimi v. Town of Lewisboro > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1460%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2010 - **Citation:** 559 U.S. 1086 ## 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 C [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1460%3A1. Public record. Not legal advice.