12-3746-cv
Musco Propane, LLP v. Town of Wolcott Planning and Zoning Comm’n, et al.

                                      UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 3rd day of September, two thousand thirteen.

PRESENT:

           PIERRE N. LEVAL,
           JOSÉ A. CABRANES,
           CHESTER J. STRAUB,
                                Circuit Judges.
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MUSCO PROPANE, LLP,

                     Plaintiff-Appellant,

                               -v.-                                                        No. 12-3746-cv

TOWN OF WOLCOTT PLANNING AND ZONING COMMISSION,
TOWN OF WOLCOTT ZONING BOARD OF APPEALS, THOMAS
G. DUNN, in his individual and official capacity, DAVID
KALINOWSKI, in his individual and official capacity,
RAYMOND MAHONEY, in his individual and official capacity,
SAMUEL ZOTTO, in his individual and official capacity, PETER
CARMODY, in his individual and official capacity, CATHE
SHERMAN, in her individual and official capacity, WILLIAM
OLMSTEAD, in his individual and official capacity, STEVEN
GRANT, in his individual and official capacity, BRETT
MUCCINO, in his individual and official capacity, PAUL
MAZUREK, in his individual and official capacity, JOHN JONES,
in his individual and official capacity, TOWN OF WOLCOTT,




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                      Defendants-Appellees.
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FOR PLAINTIFF-APPELLANT:                                                  ERIC M. GRANT, Yamin & Grant, LLC,
                                                                          Waterbury, CT.

FOR DEFENDANTS-APPELLEES:                                                 MELINDA A. POWELL (Johanna G. Zelman, on
                                                                          the brief), Rose Kallor, LLP, Hartford, CT.


        Appeal from the September 4, 2012 judgment of the United States District Court for the
District of Connecticut (Janet C. Hall, Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the September 4, 2012 judgment of the District Court be AFFIRMED.

        Plaintiff Musco Propane, LLP, (“Musco”) appeals an order of the District Court granting
the motions for summary judgment of the defendants, who include the Town of Wolcott, its
Planning and Zoning Commission (the “Zoning Commission”), and its Zoning Board of Appeals
(the “Board of Appeals”), as well as the Mayor and individual members of the Zoning Commission
and Board of Appeals (referred to together as the “Town”). In substance, Musco claims that its
rights under the First Amendment and the Equal Protection and Due Process Clauses of the
Fourteenth Amendment were violated when the Town denied Musco certain zoning permits and
issued Musco a Cease and Desist Order requiring it to halt its wholesaling of propane. We assume
familiarity with the underlying facts and procedural history of this case.

                                                       BACKGROUND

       Musco is in the business of selling propane for home heating. In 2006, the Zoning
Commission approved Musco’s application to place a 30,000-gallon, above-ground propane storage
tank on its property in Wolcott. From the end of 2006, when Musco received its Certificate of
Occupancy after installing the tank, until the spring of 2009, Musco’s business proceeded without
apparent problem. Indeed, we can infer that Musco’s business was at least somewhat successful,
because in the spring of 2009 it applied to the Zoning Commission for permission to install a
second 30,000-gallon, above-ground propane storage tank.

         Unfortunately for Musco, the application for a second tank triggered a significant conflict
with the Zoning Commission. According to Musco, soon after submitting its application, it received
a letter from the Zoning Commission indicating that the Commission had “recently discovered” a
zoning regulation that had been in effect since before Musco’s 2006 application had been granted,
and that prohibited fuel storage tanks in excess of 10,000 gallons. Joint App’x 133. In response,
Musco withdrew its application for a second tank.


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        This was not the end of the story, however. At a meeting of the Town Council, on October
6, 2009, Adolph Birkenberger, who lived near Musco, demanded an investigation into the improper
approval in 2006 of Musco’s original 30,000-gallon tank. According to the minutes from that
meeting, Birkenberger protested that the Zoning Commission had “permitted the installation of a
120,000 pound bomb within 800 feet of his house.” Id. at 689.

         Around this same time, Musco’s 50%-owner, Randy Petroniro, determined to become active
in local politics. In November 2009, he was elected to the Town Council. A few months later, in
January 2010, Musco re-submitted its application for a second 30,000-gallon tank, but this time
included an alternative request for four 10,000-gallon tanks, as well as a proposal to amend Wolcott’s
regulations to permit 30,000-gallon propane tanks. On February 3, 2010, Musco’s attorney appeared
at a Zoning Commission meeting to discuss his client’s requests. One of the members of the
Commission asked whether Musco carried on any wholesale business, noting that the applicable
zoning regulation permitted only retail sales on Musco’s property. Musco’s attorney conceded that
Musco had been engaged in both retail and wholesale activity since 2006. Shortly thereafter, the
Zoning Commission denied the application for a second 30,000-gallon tank and the proposed
amendment to the Wolcott’s Zoning Regulations. Musco appealed this decision to the Connecticut
Superior Court.

         Following the exchange between Musco’s attorney and the Zoning Commission, Musco
came under scrutiny for operating a wholesale propane business. After consulting with the Zoning
Commission, Wolcott’s Zoning Enforcement Officer, defendant David Kalinowski, issued a Cease
and Desist Order, instructing Musco to cease any wholesaling of propane. On April 7, 2010, Musco
appealed the Cease and Desist Order to the Board of Appeals. That same day, the Zoning
Commission held a hearing on Musco’s application for four 10,000-gallon tanks. On May 19,
2010—in what could not, at this point, have been a surprise—the Zoning Commission denied the
application for the 10,000-gallon tanks. Musco also appealed this decision to the Connecticut
Superior Court. Finally, on August 9, 2010, the Board of Appeals upheld the Cease and Desist
Order, and, soon thereafter, Musco appealed once again to the Connecticut Superior Court.

        On September 2, 2010, Musco brought this suit in the District Court for the District of
Connecticut, complaining that (1) the Town had retaliated against Musco in violation of the First
Amendment, both for Petroniro’s election to the Town Council and for Musco’s decision to file
lawsuits in the Connecticut Superior Court challenging the Zoning Commission’s decisions; (2) the
Town had denied Musco equal protection of the law both through selective enforcement and
discrimination against it as a so-called class-of-one; and (3) the Town had denied Musco due process
of law by infringing on its property rights. On July 28, 2011, the District Court granted the Town’s
motion to dismiss the complaint, but permitted Musco to re-plead its retaliation and equal
protection claims. After Musco filed an amended complaint and the parties proceeded through a
course of discovery, on August 30, 2012, the District Court granted the Town’s motions for


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summary judgment as to Musco’s remaining claims. On September 4, 2012, the District Court
entered judgment in favor of the Town.

                                                   DISCUSSION

         We review de novo a district court’s decision to grant a motion to dismiss under Rule 12(b)(6),
accepting all well-pleaded facts in the complaint as true, and drawing all reasonable inferences in
favor of the plaintiff. Fink v. Time Warner Cable, 714 F.3d 739, 740-41 (2d Cir. 2013). We similarly
review de novo a district court’s grant of summary judgment, drawing all factual inferences in favor of
the non-moving party. Maraschiello v. City of Buffalo Police Dep’t, 709 F.3d 87, 92 (2d Cir. 2013).
Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A
genuine issue exists for summary judgment purposes where the evidence, viewed in the light most
favorable to the nonmoving party, is such that a reasonable jury could decide in that party’s favor.”
Rivera v. Rochester Genesee Reg’l Transp. Auth., 702 F.3d 685, 693 (2d Cir. 2012) (citation and quotation
marks omitted).

          To prevail on its First Amendment retaliation claim, Musco “must show that (1) [its] conduct
was protected by the First Amendment, and (2) such conduct prompted or substantially caused
defendant’s action.” Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 91 (2d Cir.
2002) (citations omitted); see also Zherka v. Amicone, 634 F.3d 642, 645 (2d Cir. 2011). There is no
reasonable dispute that Petroniro’s election to the Town Council and Musco’s filing of lawsuits to
challenge the Zoning Commission’s decisions were activities protected by the First Amendment. See,
e.g., Elrod v. Burns, 427 U.S. 347, 356 (1976); Mozzochi v. Borden, 959 F.2d 1174, 1180 (2d Cir. 1992).
The question is whether Musco has adduced evidence from which a reasonable juror could infer that
the various denials of Musco’s zoning applications and the issuance of the Cease and Desist Order
were prompted or substantially caused by Musco’s protected activities.

        Musco first directs us to the timing of events, claiming that there was a “close temporal
proximity” between its protected speech and the adverse actions. Musco Br. 17. Of course, in some
cases, such temporal proximity might be enough to overcome summary judgment, where that
proximity could give rise to an inference of causation. See, e.g., Nagle v. Marron, 663 F.3d 100, 111 (2d
Cir. 2011). But in this case, Musco’s own recounting of events makes clear that the adverse actions
began with the Zoning Commission’s “discovery” of the relevant provisions of the Zoning
Regulations—which happened well before Musco or Petroniro engaged in any protected speech.1
Indeed, it was after this discovery, but before Musco or Petroniro engaged in any protected speech,
that Adolph Birkenberger requested a “formal investigation” into the approval of Musco’s first tank.


    1 We note that Musco has made no allegation, let alone adduced any evidence, that this “discovery,” such as it was,

was made in anything other than good faith.



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Each of the actions taken thereafter by the Zoning Commission was a natural outgrowth of the
concerns voiced by Adolph Birkenberger.2 In short, we would be hard-pressed to find a rational
juror who could infer that a course of action begun before Musco’s protected speech could be
caused by retaliation for that First Amendment activity. See Slattery v. Swiss Reinsurance Am. Corp., 248
F.3d 87, 95 (2d Cir. 2001) (“Where timing is the only basis for a claim of retaliation, and gradual
adverse job actions began well before the plaintiff had ever engaged in any protected activity, an
inference of retaliation does not arise.”).

        Musco next refers us to the statements of one of the members of the Zoning Commission,
Billy Olmstead. At his deposition, Olmstead indicated that one reason he supported issuing an
order directing Musco to cease and desist from engaging in the wholesale propane business was that
Musco was suing Wolcott and so should not be “give[n] a break.” Joint App’x 1462. This statement
certainly suggests retaliatory animus on the part of Olmstead, but Musco has failed to demonstrate
any causal nexus between Olmstead’s views and the decision to issue the Cease and Desist Order.
See Dougherty, 282 F.3d at 91. As the District Court explained, the Cease and Desist Order was not
issued by the Zoning Commission, but rather by the Zoning Enforcement Officer and nothing in
the record shows that the Officer ever communicated with Olmstead about the decision to issue the
Order. In sum, Musco has pointed to no evidence from which a reasonable juror could conclude
that any adverse actions were taken by the Town on account of any of Musco’s First-Amendment-
protected activity. See id.

         As for the equal protection claim, we agree with the District Court that no rational juror
could find that a similarly-situated company was treated any differently, as required for either a class-
of-one or a selective enforcement theory. See Musco Propane, 891 F. Supp. 2d at 271-74; see generally
Fortress Bible Church v. Feiner, 694 F.3d 208, 222 (2d Cir. 2012) (class-of-one claims); Doninger v. Niehoff,
642 F.3d 334, 357 (2d Cir. 2011) (selective enforcement claims).


     2 Specifically, the Zoning Commission first denied Musco’s renewed application for a 30,000-gallon tank and its

request to amend Wolcott’s regulations to permit 30,000-gallon propane tanks. Both proposals were, of course, contrary
to Wolcott’s regulations, and, if granted, would have exacerbated community opposition to Wolcott’s already-existing
30,000-gallon tank. The Town next ordered Musco to cease and desist from engaging in the wholesale of propane,
which Musco’s attorney had admitted at a public meeting was occurring, and which at least appeared to be in direct
contravention of the applicable zoning regulation. See Joint App’x 873 (permitting “[r]etail sale and distribution of
heating fuel and natural gas, specifically excluding storage tanks having a capacity in excess of 10,000 gallons”). To the
extent that Musco contends that it was covered by a separate regulation that did permit wholesale business, we see
nothing retaliatory in the Zoning Commission’s view—even assuming it might ultimately be found to be incorrect—that
the regulation pertaining specifically to heating fuel applied to Musco. See id. at 579-80. Finally, the Zoning Commission
denied Musco’s application for four 10,000-gallon tanks. Although it is true that the regulations do not appear to
prohibit the installation of four 10,000-gallon tanks, the Zoning Commission’s decision not to approve the request was
related, among other things, to safety concerns associated with the already significant amount of propane stored in the
30,000-gallon tank on Musco’s property, as well as to Musco’s wholesaling, which the Commission reasonably believed to
be in violation of the Town’s regulations. See id. at 580. Each of the steps taken by the Town was logically connected, in
sequence, to the original public complaint, lodged prior to any speech protected by the First Amendment, that Musco
had installed an illegal tank.



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          Finally, as the District Court explained, even if Musco were entitled to the permits it
requested—a question we surely do not answer in the affirmative—nothing in its complaint could
plausibly give rise to the inference that the Zoning Commission’s decisions were arbitrary or abusive,
as would be required to prevail on a substantive due process claim. See Musco Propane, LLP v. Town of
Wolcott, Civil Case No. 3:10-cv-1400 (JCH), 2011 WL 3267756, at *5-8 (D. Conn. July 28, 2011); see
generally Ferran v. Town of Nassau, 471 F.3d 363, 369-70 (2d Cir. 2006).

        We emphasize that we make no comment as to whether the Town’s actions were proper as a
matter of state law. We conclude only that Musco has failed to adduce sufficient evidence from
which a rational juror could conclude that the actions of the defendants amounted to a violations of
Musco’s rights under the Constitution of the United States. It is for the state courts of Connecticut
to determine whether Musco may have otherwise been the subject of illegal action by the Town.

                                          CONCLUSION

       We have reviewed the record and the parties’ arguments on appeal. For the reasons set out
above, we AFFIRM the September 4, 2012 judgment of the District Court.

                                               FOR THE COURT,
                                               Catherine O’Hagan Wolfe, Clerk of Court




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