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November 6, 1981

SEARINGTOWN CORPORATION et ano., Plaintiffs, against THE INCORPORATED VILLAGE OF NORTH HILLS, etc., et alia, Defendants.

The opinion of the court was delivered by: SIFTON


SIFTON, District Judge.

 This is an action brought pursuant to 42 U.S.C. § 1983 and the fifth and fourteenth amendments to the Constitution. Plaintiffs are the owner of a parcel of land in the defendant Village consisting of approximately 125 acres, presently used as a golf course, and the contract vendee of this land. The complaint alleges that the defendants at one time expressed an interest in acquiring plaintiff Searingtown's property for use as a public golf course, but never took steps to acquire this property and that, after tha plaintiffs entered into a contract to develop this property for multi-family dwellings, the defendants enacted three pieces of legislation which affected the zoning of plaintiffs' property and the right to obtain building permits for it. Plaintiffs contend that over the course of two years defendants, through three legislative enactments -- including (1) the enactment of a local law declaring a temporary moratorium on building permits and site plan approvals, (2) the repeal of § 4.5 of the 1970 Village Zoning Ordinance, and (3) the enactment of a new comprehensive zoning ordinance for the Village -- deprived plaintiffs of their constitutional rights by destroying the value of their property without just compensation and without due process. The relief sought against the Village, the Board of Trustees of the Village, and the individual members of the Board as well as the mayor as an individual, is $12,000,000 in damages, in addition to declaratory and injunctive relief.

 Defendants seek an order pursuant to Rule 12(c) of the Federal Rules of Civil Procedure dismissing this action as against the defendants Board of Trustees of the Incorporated Village of North Hills, Dr. Lowell H. Kane, William Baker, Bently Sherman, Lou Foti, and Joseph Brucia on the basis of their immunity from suit.

 Defendants also seek an order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure precluding plaintiffs from inquiry into the legislative acts undertaken by the named individual defendants and their motivations, purposes, intentions, deliberations, and thought processes in connection with such legislative acts.

 Plaintiffs in turn have filed motions to compel defendant Dr. Lowell Kane and other defendants to answer those questions propounded by plaintiffs regarding defendants' thought processes, deliberations, and discussions with others concerning the proposed acquisition of the property by the Village and the passage of various amendments and zoning ordinances about which plaintiffs complain in this action and to compel defendant Bently Sherman to appear for deposition immediately following completion of plaintiffs' deposition of defendant Dr. Lowell Kane.

 Defendants' motion pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for an order dismissing the claims against the mayor as an individual and the individual members of the Board of Trustees of the Village of North Hills raises an issue as to whether local legislators have absolute immunity from suit under 42 U.S.C. § 1983 for acts taken in the course of their performance of their legislative duty.

 In 1951 the Supreme Court held that state legislators have absolute immunity from suit under 42 U.S.C. § 1983 for acts "in the sphere of legitimate legislative activity." Tenney v. Brandhove, 341 U.S. 367, 376, 95 L. Ed. 1019, 71 S. Ct. 783 (1951). The Court extended this absolute immunity to regional legislators in Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 59 L. Ed. 2d 401, 99 S. Ct. 1171 (1979). Since the 1979 decision in Lake Country Estates, three circuits have interpreted its reasoning to compel an extension of absolute immunity to local legislators, although the Supreme Court itself has expressly refused to do so. 440 U.S. at 404 n.26. Hernandez v. City of Lafayette, 643 F.2d 1188 (5th Cir. May 1, 1981); Bruce v. Riddle, 631 F.2d 272 (4th Cir. 1980); Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d 607 (8th Cir. 1980). See Rheuark v. Shaw, 628 F.2d 297, 304 n.12 (5th Cir. 1980); Universal Amusement Co., Inc. v. Hofheinz, 616 F.2d 202, 205 (5th Cir. 1980).

 The Second Circuit has not addressed this issue since the Lake Country Estates decision. However, in the most recent opinion in the area of legislative immunity by a district court in this Circuit, Judge Conner noted the disagreement in the circuits but expressly declined to determine whether the absolute immunity of state legislators of Tenney extended to local lawmakers. Such a determination was unnecessary in that case because he found that the defendants in the case before him were not acting within the sphere of legislative activity. Kinderhill Farm Breeding Associates v. Appel, 450 F. Supp. 134, 135 n.1 (S.D.N.Y. 1978).

 In its May 1, 1981 decision in Hernandez v. City of Lafayette, supra, 643 F.2d at 1193, the Fifth Circuit noted that at least five of the Justices of the Supreme Court have now expressed their view that local legislators are entitled to absolute immunity from suit under § 1983 for conduct in the furtherance of their duties. Dissenting from the majority in Owen v. City of Independence, 445 U.S. 622, 664 n.6, 63 L. Ed. 2d 673, 100 S. Ct. 1398 (1980), Justice Powell, joined by the Chief Justice and Justices Stewart and Rehnquist, noted that an individual councilman enjoyed absolute immunity from suit under § 1983 for actions taken in his legislative capacity. In his dissent in Lake Country Estates, supra, 440 U.S. at 406-09 (1979), Justice Marshall expressed his view that the majority holding compels extension of absolute immunity to local legislators as well.

 In Lake Country Estates, the Court reasoned that even non-elected regional legislators were entitled to absolute immunity based on the need to "protect the "public good." The Court ruled that, because of the special nature of their function, legislators must be immune from "deterrents to the uninhibited discharge of their legislative duty" in order to protect them from being subjected "to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's speculation as to motives." Accordingly, the Court determined that it was appropriate to protect from question the motives of legislators, whether state or regional. 440 U.S. at 404-05, quoting Tenney v. Brandhove, supra, 341 U.S. at 377.

 The reasoning of the Eighth Circuit in Gorman Towers, supra, is particularly instructive. The court noted that in determining the breadth of federal common law immunities, the Supreme Court has indicated that it has accommodated two competing interests: the interest in having governmental officials exercise their judgment free of the fear of burdensome and potentially ruinous personal litigation as against the interest in deterring improper official conduct and in providing wronged individuals with adequate remedies for their injuries. 626 F.2d at 612, citing Butz v. Economou, 438 U.S. 478, 501-03, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978); Imbler v. Pachtman, 424 U.S. 409, 422-29, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976); Wood v. Strickland, 420 U.S. 308, 319-21, 43 L. Ed. 2d 214, 95 S. Ct. 992 (1975); Scheuer v. Rhodes, 416 U.S. 232, 242-47, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). The first interst served as the basis for the finding in Tenney of absolute immunity in order to preserve the "public good." The Eighth Circuit reasoned that in the case of local legislators, the need for protection is even greater since they are most vulnerable to and least able to defend lawsuits provoked by the passage of legislation. Citing the finding of the Maryland District Court in Ligon v. Maryland, 448 F. Supp. 935, 947 (D. Md. 1977), the court noted that particularly in the area of land use and zoning, "where decisions may have an immediate quantifiable impact on both the value and development of property, local legislators should be free to act solely for the public good without the specter of personal liability with the passage of each zoning ordinance." Id.

 The Gorman Towers court found that other checks on unconstitutional conduct by local legislators exist, making personal liability unnecessary.First, rezoning may be attacked on direct judicial review as being arbitrary, capricious, or unreasonable. In this case, under New York Village Law § 7-700, plaintiffs may challenge rezoning directly alleging, as they do in their complaint in this action, that the new zoning ordinance is arbitrary and capricious and that it deprived them of all reasonable use of their land without just compensation. Hyde v. Incorporated Village of Baxter Estates, 140 N.Y.S.2d 890 (Nassau Co. Spec. Term Part I 1955), aff'd, 2 A.D.2d 889, 156 N.Y.S.2d 378 (2d Dep't 1956), aff'd, 3 N.Y.2d 873, 166 N.Y.S.2d 314, 145 N.E.2d 28 (1957). In addition, an unconstitutional zoning ordinance may be declared invalid in federal court. Further, willful deprivation of constitutional rights under color of state law is punishable under 18 U.S.C. § 242, the criminal analog of § 1983. Elected local legislators are also "subject to the responsibility and brake of the electoral process." Finally, the municipality remains liable for any wrongs plaintiffs can demonstrate were perpetrated upon them. Owen V. City of Independence, supra, 445 U.S. 622; Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). *fn1"

 Although Gorman Towers and Bruce dealt only with absolute immunity from damages, it is clear that such immunity applies to equitable relief as well. Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 732, 64 L. Ed. 2d 641, 100 S. Ct. 1967 (1980); Star Distributors Ltd. v. Marino, 613 F.2d 4, 9 (2d ...

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