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December 7, 1982


The opinion of the court was delivered by: ELFVIN


 The plaintiff, Altaire Builders, Inc. ("Altaire"), commenced this action for compensatory and punitive damages under 42 U.S.C. §§ 1983 and 1985 for alleged violation of its civil rights.

 In September, 1978 Altaire contracted to purchase a 13.5 acre tract of land zoned for "planned unit development" ("P.U.D."), and located within the Village of Horseheads (N.Y.). The property adjoined a 1.5 acre tract, previously purchased by Altaire and which was zoned R-1. *fn1"

 In March, 1979 Altaire filed an application with the Village for approval of a P.U.D. project consisting of eighty-two townhouse units to be constructed on the site. As required by Village ordinances (Chapter 11, Article V, Sections 11-30), Altaire's application was reviewed initially by the Village Planning Commission, the Town Planning Board and the Planning Board of the County of Chemung, and received at least conditional approval from each body.

 Pursuant to the Village ordinances the matter came on for review by the Village Board of Trustees. Following a public hearing on the project July 12, 1979, at which objection was raised by neighboring homeowners, the Board denied approval.

 Plaintiff then commenced an Article 78 proceeding under New York's Civil Practice Law and Rules ("CPLR") in the New York Supreme Court, Chemung County, seeking annulment of the Board's determination. By decision dated November 9, 1979 the action of the Board was annulled by Supreme Court Justice Zeller and the matter was remanded to the Board for a new hearing and the rendition of findings of fact.

 A second hearing was held February 14, 1980 and on February 28, 1980 the Board again refused to approve the project. Altaire returned to the State Court and requested reversal of the new decision. Upon consideration of the matter, Justice Zeller ordered the Board to grant Altaire's application subject to any reasonable conditions they deemed necessary. The conditions thereafter imposed prompted a third Supreme Court proceeding by Altaire. Justice Zeller found two conditions reasonable, but struck a third as arbitrary and capricious. *fn2"

 A building permit was ultimately issued October 21, 1981. *fn3" Altaire claims that, in the interim between its initial application and the Supreme Court's final decision, a dramatic increase in interest rates rendered completion of the project financially infeasible.

 Altaire contends in this action that its application fully complied with the requirements for a P.U.D. under the Village ordinances, that the Board's actions in denying approval were arbitrary, capricious and unreasonable and denied it the use of its property without due process of law and its right to equal protection of the law under the Fourteenth Amendment to the United States Constitution, that such actions constitute an unconstitutional taking of property without just compensation in violation of the Fifth and Fourteenth Amendments, that the actions complained of were taken knowingly, willfully and maliciously and that defendants conspired to deprive Altaire of such rights.

 Altaire demands partial summary judgment on the issue of defendants' liability contending that the State Court decisions declared the conduct of the defendants unreasonable, arbitrary and capricious and that such finding is res judicata with respect to the claimed constitutional violations. Altaire thus reasons that the only matters remaining for decision are the defendants' entitlement to good faith immunity and the extent of Altaire's damages.

 Defendants seek dismissal of the complaint under Fed.R.Civ.P. rule 12 on the grounds: 1) Altaire has stated no claim against the Village of Horseheads; 2) Altaire has failed to allege the requisite overt acts or class-based action necessary to its section 1985 cause of action; 3) alternatively, even if a claim is stated against the Trustees, they are entitled to absolute immunity for their judicial and/or legislative acts, or qualified immunity; 4) Altaire is collaterally estopped from relitigating the question of defendants' good faith and constitutional issues herein which they submit were raised in the state court and not decided in Altaire's favor; and 5) Altaire's claim is barred by the running of the applicable period of limitations and by Altaire's failure to timely file a notice of claim.

 Defendant Stevens, the Village's Zoning Officer, seeks summary judgment on the additional ground that he was not involved in the decisions of the Board of Trustees complained of by Altaire. Defendant Cummiskey contends likewise that he was not a member of the Board of Trustees until the second hearing, and also that his good faith has been established as a matter of law.

 Section 1983 Claim

 Defendants claim that the denial of a building permit *fn4" does not state a cause of action under section 1983. While defendants attempt to distinguish each of the cases cited by Altaire in support of its cause of action, their arguments are without merit. Reading the complaint liberally and taking its allegations as true, the Trustees' denial of Altaire's application for P.U.D. approval was arbitrary and capricious and without rational basis or relation to the public health, safety or welfare thereby depriving Altaire of its property without due process or equal protection of the law. *fn5" See, Euclid v. Ambler Realty Co., 272 U.S. 365, 71 L. Ed. 303, 47 S. Ct. 114 (1926).

 While defendants are undoubtedly correct in asserting that challenges to local zoning decisions are rarely successful outside of the context of racial discrimination (See, e.g., Kennedy Park Homes Association Inc. v. City of Lackawanna, New York, 436 F.2d 108 (2d Cir. 1970)), the primary distinction between winning and losing cases is the sufficiency of the evidence and not that the claim is not facially viable under the Civil Rights Act. See, Cowart v. City of Ocala, Fla., 478 F. Supp. 774, 782 (M.D.Fla. 1979). Regardless of the deference normally accorded zoning practices by the courts, the Constitution does not tolerate arbitrary and unreasoned action. See, e.g., South Gwinnett Venture v. Pruitt, 491 F.2d 5, 7 (5th Cir. 1974).

 Even if a claim is stated against the Trustees, the defendant Village contends that no claim has been stated as to it.

 The Village argues that Altaire's section 1983 cause of action is premised not on independent wrongdoing by the Village, but on its employment of the Trustees and the Zoning Officer. Because a municipality can not be held vicariously liable under section 1983 for the acts of its agents, defendants submit that the Village is entitled to dismissal of that cause of action. See, Monell v. New York City Dept. of Social Services, 436 U.S. 658, 691, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). See, also, Owen v. City of Independence, 445 U.S. 622, 63 L. Ed. 2d 673, 100 S. Ct. 1398 (1980).

 Under Monell a local governmental body is amenable to suit under section 1983 where "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers * * * [and] for constitutional deprivations visited pursuant to government 'customs'." Monell, supra at 690-691.

 A municipality cannot be sued under section 1983 for an injury inflicted solely by its agents or employees. "Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. at 694.

 The Complaint avers that the Village through and in conspiracy with the Trustees "implemented and/or executed unconstitutional policies, statements, ordinances, regulations and/or decisions officially adopted and/or promulgated by the Village of Horseheads and/or its Boards and authorities * * *." Complaint, para. 20. The allegation concludes that defendants did so "by refusing to approve the planned unit development." Ibid. Read in the context of the other allegations and of the prior proceedings in State ...

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