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February 8, 1979

Luzer WEISS, Berisch Horowitz and Harry Berkovits, d/b/a B.Y.S. Associates, Plaintiffs,
WILLOW TREE CIVIC ASSOCIATION, Robert B. Marcus, Mel Post, Harriet Ritto, Frank Brown, Robert Frankl, Joyce Riess, Leonard Ehrlich, Anne Rogers, Emil Kessler, Ted Feigenbaum, Marvin Silverstein, Arlene Friedman, Marvin Greenstein, Sandra Goldman, Richard Krutoff, Janice Marcus, Jane Feigenbaum, Hans Riess, Vera Brown, Dennis Kaplan, Sandy Schneiderman, Agatha Seife, Rhona Schneiderman, Stanley Jacobson, Howard Andrews, Ron Jason, Stephen Abrams, Joseph Sheehan, Harvey Pearlstein, Steven Hadermayer, Lee Kaiser, Renee Krutoff, Steve Litman, Martin Goldsmith, Sheila Goldsmith, Eugene R. Kummerle, and Mary Anne Levy, Defendants

The opinion of the court was delivered by: WEINFELD

What essentially was, and remains, a local zoning dispute is now before this Court upon a variety of claims charging violation of plaintiffs' federal statutory and constitutional rights. Plaintiffs, a congregation of Hasidic Jews who desire to establish a housing development on land they own in Ramapo, New York, claim that defendants, the Willow Tree Civic Association (the "Association") and its members have conspired and acted to harass and delay plaintiffs' application to the zoning authorities of Ramapo for a permit authorizing the proposed housing development. Plaintiffs assert that defendants' actions violate their federal civil rights protected by 42 U.S.C., sections 1982, 1983 and 1985(3) and, consequently, base jurisdiction upon 28 U.S.C., section 1343. The defendants move pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint on the ground that it fails on its face to state a claim upon which relief can be granted; alternatively, they ask the Court to abstain from exercising jurisdiction since plaintiffs' application is still pending before the Ramapo zoning authorities.

In 1977, plaintiffs, doing business as B.Y.S. Associates ("B.Y.S."), purchased a total of twenty-two acres of undeveloped land in the Town of Ramapo. Their intention was to build a residential housing development so that the members of their congregation, then living in the Williamsburgh area of Brooklyn, New York, could settle in Ramapo. Such a development required compliance with Ramapo's zoning procedures and regulations. The Town of Ramapo Code provides that a developer must file an application for a "special permit" with the Town Board (the Town's legislative body). *fn1" If the Town Board grants the special permit for "average density development," the developer then is required to submit to the Town's Planning Board two "sketch plats," or maps of the proposed development. *fn2" The Planning Board, after a preliminary review by its Community Design Review Committee ("CDRC"), conducts a public hearing. If the Planning Board approves the sketch plats for average density development, the developer seeks approval of the use of average density from the Town Board and of a preliminary and final subdivision plat from the Planning Board.

Plaintiffs, in accordance with the prescribed procedures, on December 9, 1977, submitted their application for a special permit to the Town Board, which scheduled a hearing for its meeting on January 25, 1978. In the interim, according to plaintiffs' complaint, opposition to the B.Y.S. application arose in the community. A number of the defendants attended the Town Board meeting on January 25 and voiced opposition to the proposed development, allegedly raising many technical and procedural matters not ordinarily presented at such a hearing and making allusions to the "peculiar way of life of "these people' " (plaintiffs). *fn3" Plaintiffs claim that the comments of the defendants then present were calculated "to intimidate the Town Board of the Town of Ramapo and to cause the Town Board to handle the application of plaintiffs differently than other applications are routinely handled . . . because of the race and religion of the applicants." *fn4" The Board unanimously granted the special permit but, because of the objections raised at the meeting, stipulated that the Planning Board give careful consideration to possible drainage, retention of water and silting problems in the area of the proposed development matters which, according to the complaint, ordinarily were not included in the Board's resolutions.

 On March 6, 1978, plaintiffs proceeded to the second stage of the procedure by filing two sketch plats (containing alternative layouts) with the Planning Board. The complaint further alleges that after the filing, defendants engaged in a concerted plan to delay the consideration of their application and to pressure town officials so that they would deny it. First, plaintiffs assert that in furtherance of the conspiracy, defendant Rhona Schneiderman filed a frivolous complaint with the New York State Department of Environmental Conservation, the purpose and effect of which was to delay the processing of the application of the B.Y.S. until the Department determined whether the plaintiffs' land contained sufficient "wetlands" to merit state regulation. Second, it is alleged that as part of the conspiracy, on May 12, 1978, four of the individual defendants filed an Article 78 state court proceeding against the Town and plaintiffs *fn5" that was wholly without merit and solely designed to harass plaintiffs and to frustrate their development plans and to cause them to abandon the project.

 Finally, the complaint alleges that the defendants formalized their conspiracy by organizing the Association so as "to promote as astutely and covertly as possible under the guise of civic concern the conspiracy to deny the plaintiffs equal protection of the laws." *fn6" It is plaintiffs' contention that because of the clandestine as well as open pressure exerted by the Association before and during the Planning Board meeting of May 2, 1978, the Board rejected the sketch plat, not only delaying plaintiffs' application, but also imposing upon them the burden of another filing fee. B.Y.S. filed a second set of sketch plats, which were also rejected by the Board after a hearing on July 25, at which defendants reiterated their earlier objections. Plaintiffs argue that the Board's decision was coerced by defendants' conspiracy and that community pressure and the presence of over 200 objectors at the meeting created "an atmosphere inimical to the rights and liberties of the plaintiffs." *fn7"

 Defendants assert that their opposition to the B.Y.S. application stems solely from the swamp-like nature of plaintiffs' land and the already overburdened and unsatisfactory town drainage and sewage facilities, and that unless the zoning regulations were complied with the proposed development would create additional problems for the community. Furthermore, the Association argues that its good faith opposition is supported by two reports to the Planning Board by the CDRC; the reports found many problems with the sketch plats, including inadequacy of their drainage analysis, and concluded that "a great part of this land is unsuitable for development, as it is a swamp." *fn8" Therefore, the Planning Board's rejections of the sketch plats on May 2 and July 25, 1978, were, according to defendants, grounded upon the CDRC's findings, not any improper pressure brought to bear by defendants.

 On July 28, 1978, plaintiffs, instead of submitting a third set of sketch plats, as was their right under the Ramapo zoning laws, *fn9" initiated the present action against the Association and its members. The complaint seeks, as against the members collectively and individually, punitive and compensatory damages, the latter based upon the extra administrative fees and professional or miscellaneous expenses incurred by the need to submit new sketch plats, the increased (mortgage and construction) cost resulting from the loss of a building season due to the delays in processing the subdivision application, and the affronts to plaintiffs' dignity as citizens because of the alleged bias and discrimination. Additionally, plaintiffs ask for an injunction dissolving the Association and prohibiting future conspiracies by the individual defendants against plaintiffs.

 Defendants move the Court to dismiss the complaint and present three arguments in support of their position: first, that this Court should abstain from exercising jurisdiction and should remit plaintiffs to their legal and equitable remedies under state and local law; second, that the complaint fails to allege, and cannot in good faith allege, facts necessary to state a cause of action under the various civil rights statutes; and, third, that defendants' conduct as described in the complaint is wholly protected by the First Amendment and therefore is not actionable under federal law. This Court is not persuaded that it should abstain in the case, *fn10" but concludes that the complaint should be dismissed on the two substantive grounds urged upon it by defendants.


 On a defendant's motion to dismiss for failure to state a claim for which relief may be granted, the Court must accept the allegations of the complaint as true and should not grant the motion "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." *fn11" In broad terms, the complaint alleges that plaintiffs' constitutional rights to equal protection and treatment in the processing of the zoning application and to free travel were violated by a conspiracy engaged in by the defendants to delay and obstruct their application for a zoning permit and to influence public officials to deny it, and that the conspiracy was effectuated by defendants' attending meetings before official bodies, filing a groundless complaint with a state agency, instituting a meritless action in the state courts, forming a civic organization, placing an advertisement in a local paper, distributing handbills, and conducting public meetings for the purpose of arousing and encouraging opposition to the application. Based thereon, the complaint alleges violations of three provisions of the civil rights laws, sections 1982, 1983 and 1985(3) of Title 42, United States Code. The Court considers each claim separately.


 Section 1983 provides that "(e)very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof, to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." To state a claim for relief under section 1983, plaintiffs must allege, first, that defendants have deprived them of a right secured by the Constitution or laws of the United States, and, second, that defendants deprived them of that right acting under color of a state law. The Supreme Court recently held in Flagg Brothers, Inc. v. Brooks, *fn12" that for claims under the Fourteenth Amendment, both elements of section 1983 require state involvement. Where their main claim for relief is grounded upon Fourteenth Amendment rights, plaintiffs' injuries amount to constitutional "deprivations" only if effectuated or authorized by the State; and, in any event, the requirement that defendants act under "color of law" means that the deprivation must be effected through state involvement or participation, even where the underlying right is protected from both governmental and private interference. *fn13"

 The complaint alleges no state or municipal activity and all the defendants are private parties. Indeed, the plaintiffs have not named any of the town officials as defendants or alleged co-conspirators. Plaintiffs, however, seek to satisfy the state action requirement upon an argument that an active civic association has no purpose but to work in and through government, and "hence the use of a civic association as a vehicle for repression adequately satisfies the color of state law requirement." They argue further that there is a "symbiotic relationship" between a civic association and government, so that the Association's activities and those of its membership may be attributed to the town officials. The contention is far fetched and without substance. Plaintiffs' blunt, conclusory statement that the essence of "an active civic association is government involvement" is not factually accurate. Civic organizations are at times opposed to government and its officials. They are formed to present a particular point of view often counter to existing programs or to proposed state activity and to prod government officials with respect to policies or contemplated action. The defendant civic group was organized, among other reasons, to advance its position in opposition to plaintiffs' application for alleged noncompliance with zoning requirements and to remind public officials of their responsibility and duty to enforce existing zoning laws. No allegation of the complaint establishes a nexus between the civic group and the town officials.

 To accept plaintiffs' contention upon the allegations of their complaint would be an unwarranted extension of the symbiotic relationship concept that when the State has so significantly insinuated itself into the affairs of a private person or entity it thereby becomes a co-participant in the claimed acts. *fn14" State action can only be effected by the act of the sovereign, not by a plethora of private power. "The focus is not on the private deprivation but on the state authorization." *fn15" Thus the Supreme Court has made it patently clear that state action will not be attributed to the private enterprise unless the government actually compels the private action *fn16" or unless it has vested in the private group the right to exercise a function that is an exclusive prerogative of the sovereign. *fn17" In the present case, there are no allegations indeed such allegations could not in good faith be made that the Town compelled the civic association to act as it did or gave it public powers that are the exclusive prerogative of sovereignty. If state action were not found ...

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