not presented a serious question creating a fair ground for litigation. Therefore, their plea for a preliminary injunction must be denied.
In support of its injunctive request, plaintiff presents three circumstances allegedly demonstrating the Board's improper motive. First, plaintiff points to past public conflicts that Joseph Capozza has had with Harding, his wife, and the Town Board dating back to 1987, arguing that these conflicts supply the motivation for the IDL's passage. We agree with the Seventh Circuit, however, that a reason for resentment is alone insufficient to support a claim of retaliation. Yatvin v. Madison Metropolitan School District, 840 F.2d 412, 418 (7th Cir. 1998). Instead, plaintiff must establish that the alleged improper actions were motivated by a manifested resentment.
Plaintiff has presented minimal evidence at best, apart from defendant Harding's statements discussed below, illustrating the Board's resentment for Capozza's public comments. In fact, many of the public statements that plaintiff claims motivated the Board's actions were made by Capozza in support of defendant DePaoli's campaign for supervisor. However, DePaoli, who has no reason to resent Capozza's making of those statements on his behalf, voted in favor of the IDL. Although Capozza claims that DePaoli told him that he did so because it was "politically unwise" to vote against the IDL, DePaoli denies making such a statement. Moreover, such a statement standing alone would scarcely support a claim that DePaoli, much less the Board, voted for the IDL to punish Capozza's exercise of free speech. It seems equally, if not more logical to construe DePaoli's alleged statement as meaning that he supported the IDL because he felt that there was popular support for deferring development in Somers until legislation implementing the Master Plan could be enacted. Such a "politically wise" motive would obviously not constitute a First Amendment deprivation, but merely an instance of the proper working of our representative form of government. Plaintiff's characterization of DePaoli's alleged statement as an affirmation of Harding's alleged malice toward Capozza is simply insufficient to establish an illicit legislative intent.
Similarly, DeSena's personal attack on Capozza during Harding's 1987 campaign bears little relation to the Board's legislative actions in 1995. While DeSena may indeed dislike Capozza for his aggressive campaigning, plaintiff has presented no proof that his personal animus substantially motivated the Board's vote on April 6, 1995.
Second, pointing to the Board's creation of a new sewer district adjacent to the SRC Tract, plaintiff argues that past legislative actions by the Board also demonstrate its retaliatory intentions. However, plaintiff offers no proof, other than its belief, that the new sewer line in fact adversely affects the proposed development, that the Board was apprised of that effect, and, most importantly, that the law was enacted substantially because of that effect in retaliation against Capozza's protected speech. We do not feel that plaintiff's belief that the Board acted improperly in that matter is sufficient to raise a fair question for litigation regarding the Board's motives in passing the IDL.
Finally, plaintiff points to Harding's two statements indicating that his opposition to SRC's development plans is "personal" as evidence of the Board's motives. If Harding had been the sole legislative actor in Somers, we might reasonably find that plaintiff has raised a serious question that the passage of the IDL implicates Capozza's First Amendment rights. In the current context, however, plaintiff fails to meet their burden for at least two reasons.
First, the Board voted five to zero to enact the IDL. Even if Harding was motivated by personal animus toward Capozza for his past public statements, plaintiff offers no evidence that the other four council members were similarly motivated, or even that a simple majority of them were so motivated.
Again, we emphasize that DePaoli, who clearly bears no resentment for Capozza's past political activities, also voted to adopt the measure.
Second, and more importantly, plaintiff supplies no evidence to connect the Board's conduct to Capozza's speech. The stated purpose of the moratorium is to allow the Board time enact legislation to implement the 1994 Master Plan. Town of Somers, NY, Interim Development Law § II. Even if the unstated motivation of the council members was to curtail commercial development in Somers, such a motivation does not offend the Constitution. Only if plaintiff offers proof that the motivation stems from Capozza's past political opposition and/or public criticism can plaintiff substantiate its First Amendment charges.
In addition, although plaintiff presents evidence of Harding's historic anti-development stance, it offers little evidence that Harding's "personal" bias against Capozza stems not from his historical stance but from his resentment of Capozza's past personal criticisms. Absent such evidence implicating Harding and at least a majority of the Board, plaintiff has failed to raise a fair ground for litigation and its request for a preliminary injunction must be denied.
We realize that plaintiff is put in the nearly impossible position of proving legislative intent based on the vague statements of one member of a law-making body. Moreover, we do not doubt plaintiff's contention that the IDL could render its property holdings significantly less valuable. Granting an injunction is not a matter that we can take lightly, however. Even though the injunction requested would seemingly pose little hardship to the Town Board or its members, our discretion is tempered by the fact that after significant public debate, a duly elected legislative body has voted for a measure presumably in the interest of the citizens of Somers--a measure similar to those that have been adopted by other communities in similar circumstances and upheld by the courts. See Noghrey v. Acampora, 152 A.D.2d 660, 543 N.Y.S.2d 530, 530 (N.Y. App. Div. 1989) (upholding facial validity of similar moratorium enacted by the Town of Brookhaven, NY). We are also mindful that in the context of local politics, the "personal" nature of legislation is a weapon in the arsenal of every opposing entity. As Judge Posner indicated in F.O.P Lodge:
[Invalidating all legislation that adversely affects a political outsider] would put at hazard a vast amount of routine legislation--federal, state, and local. Legislation passed by lame-duck legislatures, legislation passed by newly elected legislators--all would be subject to invalidation by a federal court upon evidence that the legislation, though on its face concerned only with the most ordinary matters of governmental administration, had actually been intended to punish the legislators' political opponents . . . .
F.O.P. Lodge, 864 F.2d at 555. While we do not go so far as to hold that no plaintiff could ever establish a First Amendment violation by demonstrating illicit legislative intent, here plaintiff has not presented a sufficiently cognizable federal claim to warrant marshalling the injunctive power of this Court. Absent more definitive proof of improper motive, we must deny plaintiff's request.
Because plaintiff has failed to raise a sufficiently serious question that the Somers's Town Board enacted the IDL in retaliation against Capozza's past protected speech, we deny its request for a preliminary injunction.
Dated: May 19, 1995
New York, New York
William C. Conner
United States District Judge