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May 19, 1995


William C. Conner, United States District Judge

The opinion of the court was delivered by: WILLIAM C. CONNER


 Plaintiff Somers Realty Corp. ("SRC") brings this action against William Harding, individually and as Supervisor of the Town of Somers, New York, and the current members of the Somers, New York Town Board (the "council members"), both individually and as town officials, for violating 42 U.S.C. § 1983. *fn1" On April 21, 1995, we issued an order directing defendants to show cause at a hearing on May 3, 1995 why a preliminary injunction should not be granted enjoining enforcement of an Interim Development Law (the "IDL") enacted by the Somers Town Board on April 6, 1995 pending a trial on the merits of plaintiff's claims. After reviewing the testimony and evidence presented at the two-day hearing, we deny plaintiff's request for a preliminary injunction.


 Plaintiff, a closely held New York corporation owned by Joseph and Cataldo (Al) Capozza, owns several parcels of land in and around Somers, New York. In June 1994, SRC entered into a contract for the sale and commercial development of land located in the northeast quadrant of Somers (the "SRC Tract"). In anticipation of developing the SRC Tract into a large, multi-use shopping center, in January 1995 the buyer/developer, Hampshire Realty Corp. ("HRC"), submitted a plan to the Town Board for approval.

 Fearing that a six-month delay in the Board's consideration of HRC's proposed development will effectively scuttle HRC's development Plans and permit HRC to "walk away from" the sales contract, plaintiff has filed this law suit to enjoin enforcement of the IDL and for damages associated with its enactment. Suing under section 1983, plaintiff claims that the IDL, while valid on its face, violates the First and Fourteenth Amendments of the United States Constitution, and analogous provisions of the New York State Constitution, *fn2" as applied to plaintiff because it was enacted primarily in retaliation for Joseph Capozza's political opposition and public statements against Harding and Harding's wife. Moreover, plaintiff asserts that if the moratorium is not enjoined, it will lose its current contract with HRC, it will be unable to sell the SRC Tract to future developers, and its goodwill will be irreparably damaged, resulting in plaintiff's financial ruin.


 On May 3 and May 8, 1995, the Court held a hearing to determine the propriety of granting plaintiff's request for a preliminary injunction. At that hearing, plaintiff presented testimony and evidence attempting to demonstrate the retaliatory purpose behind the IDL's enactment, and the harm that plaintiff will suffer due to its enforcement. Although many witnesses testified on a variety of issues, the following facts are most important for our consideration.

 First, regarding the law's unstated purpose, Joseph Capozza testified that a personal animus between him and Harding and defendant Patrick DeSena, a council member, going as far back as 1987, was the primary motive for the Board's passage of the IDL. In particular, Capozza stated that as a council member in 1987 *fn3" he had actively sought to have Diana Harding, William Harding's wife, removed from the Somers' Conservation Advisory Council for certain improprieties while acting as chairperson of that body. In a four-to-one vote, with DeSena the lone dissenter, the Board voted against her reappointment.

 Capozza also testified that several months later, when William Harding first ran for the Supervisor's office, he actively campaigned for Harding's opponent, incumbent Supervisor D. Wayne Van Tassel, and exposed misrepresentations by Harding regarding his education and business experience. Harding and DeSena struck back, accusing Capozza of having a conflict of interest between his position as council member and his ownership of substantial real estate holdings in the town. Although Harding won the election, in the closing days of their public tenures, Harding and Van Tassel, as part of a four-to-one vote with DeSena dissenting, voted to reduce the salary of the incoming supervisor on the stated ground that he lacked the experience of the previous supervisor.

 In 1989, again Capozza actively campaigned against Harding's reelection bid and served as an advisor, campaigner, strategist and fund raiser to defendant Michael DePaoli, Harding's primary opponent. Although Harding ultimately succeeded at the general election, Capozza claims that Harding bears significant resentment toward him for his involvement in forcing Harding to run a primary campaign.

 Against this backdrop, and in furtherance of the ongoing feud between the Joseph Capozza and Harding, plaintiff claims that Harding and his co-defendants have repeatedly adopted and/or proposed the adoption of legislation which targeted Capozza-owned real property holdings and impeded their development.

 First, Joseph Capozza cited the Board's decision to create a new sewer district adjacent to the SRC Tract as evidence of its intent to retaliate against Capozza for his past political activity. By deliberately restricting the size of the sewer line running along side the SRC Tract, ...

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