The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Plaintiff John Manculich commenced the instant action pursuant to 42 U.S.C. § 1983 seeking to enjoin certain criminal actions commenced against him by Defendants. Presently before the Court is Defendants' motion to dismiss pursuant to FED. R. CIV. P. 12.
Plaintiff is the owner of a car rental business in Binghamton, New York. In July 1998, Plaintiff sought to purchase certain property for the purpose of expanding and continuing his car rental and auto repair service. Plaintiff placed certain planters in front of the new property. Plaintiff applied for a zoning variance to operate his business at the the location. On September 15, 2000, the Zoning Board of Appeals ("ZBA") issued a decision granting Plaintiff's request, but with conditions. The conditions included a requirement that Plaintiff construct an eight foot high chain link fence along the length of the western edge of the property and that Plaintiff place a binder coat of asphalt over an existing gravel area. A primary source of dispute between Plaintiff and the ZBA concerned the City's desire that the planters be removed. Plaintiff believed the conditions imposed by the ZBA to be arbitrary and capricious.
On August 8, 2001, Plaintiff was charged with violating the City Zoning Ordinance. On November 7, 2001, Plaintiff pleaded guilty to this charge and paid a fine. Thereafter, having still not complied with the conditions of the ZBA's decision, Plaintiff submitted various site plan modifications to the ZBA for approval. As is relevant hereto, in September 2003, the ZBA approved Plaintiff's proposed site plan modification, subject to certain conditions. One of the conditions required Plaintiff to remove the planters.
Plaintiff thereafter petitioned the City Council to promulgate a resolution overturning the September 2003 decision of the ZBA with respect to the planters. On March 15, 2004, the City of Binghamton adopted Resolution 04-10 which granted Plaintiff permission to place the planters between the sidewalk and the curb. Resolution 04-10 did not otherwise attempt to modify any other conditions of the ZBA's September 2003 decision. Then Mayor of the City of Binghamton, Defendant Richard Bucci (hereinafter "Mayor Bucci"), vetoed Resolution 04-10. In his veto message, Mayor Bucci stated his belief that, among other things, the City Council did not have the authority to pass an ordinance that had the effect of overruling a decision of the ZBA. Mayor Bucci's veto was ultimately overridden by the City Council.
On December 10, 2004, Defendants initiated criminal proceedings against Plaintiff for alleged violations of City Zoning Ordinance § 1401(f). Plaintiff subsequently moved to dismiss the criminal charges. Defendants opposed the motion. In July 2005, the Binghamton City Court denied Plaintiff's motion to dismiss, but, nevertheless, dismissed the charges on procedural grounds. Specifically, the City Court held as follows:
The Court finds that the Defendant's motion to dismiss is not valid. Defendant's motion is based upon the Resolution of City Council 04-10. However, after careful review of the Resolution, it indicates that it only refers to one condition [the planters], the September 11, 2003 order contains nine specific conditions. It is the People's contention that the Defendant is in violation of all of the conditions not just the one condition that relates to the City Council Resolution. Therefore, Defendant's motion cannot result in dismissal of the charge.
However, in reviewing the accusatory instrument the Court observed that the accusatory instrument is in fact defective. In particular, the appearance ticket and the accusations of the information are based on the Failure to Comply with the Order of the Zoning Board of Appeals dated September 11, 2003. A reading of the allegations contained in the accusatory instrument refer to an order dated November 2002, not the September 11, 2003 order. It is simply not mentioned in the allegations. The factual allegations are not legally sufficient to support the charge. Therefore, the information is defective on its face and must be dismissed, however it is dismissed without prejudice.
An appeal of this decision is currently pending in Broome County Court.
In October 2005, Defendants initiated criminal proceedings against Plaintiff for alleged violations of City Zoning Ordinance §§ 1302(a) and 1602(a). These charges specifically referenced the September 2003 ZBA decision. These charges are pending.
Plaintiff alleges that the criminal actions instituted by Defendants violate his First Amendment rights to petition government for the redress of grievances and that Defendants' refusal to issue a certificate of occupancy violates his due process rights. Defendants now move to dismiss on the grounds that: (1) the Court should abstain pursuant Younger v. Harris, 401 U.S. 37 (1971); (2) the Court should abstain pursuant to Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941); (3) a favorable result in this action would imply the invalidity of his prior conviction, thereby violating the rule of Heck v. Humphrey, 512 U.S. 477 (1994); (4) Defendants are entitled to absolute immunity; and (5) the Complaints fails to state a claim upon which relief can be granted. Plaintiff opposes and also requests an evidentiary hearing on the issue of whether Defendants have acted in bad faith.