Hovey et al v. State of Vermont et al
OPINION AND ORDER granting 9 Motion to Dismiss for Lack of Subject-Matter Jurisdiction and for Failure to State a Claim; granting in part and denying in part 22 Motion to Dismiss 1 Complaint for Failure to State a Claim; granting in part and denying in part 50 Supplemental Motion to Dismiss. Signed by Judge Geoffrey W. Crawford on 5/16/2017. (esb)
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U.S. D!~JRICT COURT
DISTRIC 1 OF VERMONT
UNITED STATES DISTRICT COURT
DISTRICT OF VERMONT
GREGORY HOVEY and VICTORY HILL
STATE OF VERMONT, DISTRICT 7
COMMISSION, VERMONT NATURAL
RESOURCES BOARD; TOWN OF
VICTORY, VERMONT; ROBERT
FLANIGAN; TONI FLANIGAN; SUE
SKASKIW; FERNE LOOMIS; CAROL
EASTER; DOUG PRESTON; KIRSTEN
SULTAN; DIANE SNELLING; EUGENE
2011HAY 16 PM~: 31
Case No. 5:16-cv-266
OPINION AND ORDER ON MOTIONS TO DISMISS
(Docs. 9, 22, 50)
This is a dispute between two neighbors in a rural town over the land use permit for a dog
kennel. Plaintiff Gregory Hovey is the owner of a kennel which breeds Labrador retrievers and
beagles. 1 Robert and Toni Flanigan are neighbors who opposed an expansion of the kennel
because they are disturbed by the barking of the dogs.
The dispute has already been to the Vermont Supreme Court on an appeal of the Act 250
land use permit. See In Re Gregory Hovey Act 250 Permit ("In Re Hovey''), No. 2015-205, 2015
WL 7628685 (Vt.). Following issuance of the permit, the dispute between these neighbors has
returned to federal court in the guise of a civil rights claim against the Flanigans, Kirsten Sultan
There are two named plaintiffs: Gregory Hovey and Victory Hill Kennel, LLC.
Mr. Hovey is the managing member of the LLC. For convenience, the court will refer to these
two parties as "plaintiff."
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who was the state employee responsible for administering the District 7 Regional Environmental
Commission which issued the permit, Diane Snelling as chair of the Vermont Natural Resource
Board, the State of Vermont and the Town of Victory, and four municipal officers. An
additional state official, Eugene Reid, has not been served with the amended complaint and the
plaintiff is undecided about whether to keep him in the case.
The facts are drawn from the amended complaint as well as from the three-justice
summary decision of the Vermont Supreme Court in In Re Gregory Hovey Act 250 Permit.
Plaintiff Gregory Hovey is a long-time resident of Victory, Vermont. For almost
30 years, he has raised dogs and sold puppies as a hobby. (Doc. 44, Amended Complaint, iii! 2526.) Defendants Robert and Toni Flanigan are Plaintiffs neighbors to the east. The Flanigans'
home is 150 yards from the dog kennel. In Re Hovey, 2015 WL 7628685, at *1.
Plaintiffs kennel is not the only kennel in the neighborhood. Ryan Hovey operates a
kennel for breeding Labradors about 1,000 feet south of the Flanigans' boundary. In addition,
Skip Easter runs a dog rescue facility about Yi mile south. Id.
In March 2013, plaintiff decided to expand his kennel operations. (Doc. 44 if 27.) He
started construction without an Act 250 permit. The Flanigans complained about the lack of a
permit to the District 7 Regional Environmental Commission (the "Commission"). (Id.) The
Flanigans also complained to the Vermont Natural Resources Board which fined plaintiff $3,850
for commencing construction without a permit. (Doc. 44 if 30.) Plaintiff quotes a member of the
Board as stating that he was pursuing the violation in order to "get the Flanigans off my back."
In September 2013, following a hearing, the Commission granted an Act 250 permit.
The permit restricts the project to 50 dogs. Id. Plaintiff complains that the Flanigans "made
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false and defamatory statements against Plaintiffs concerning the kennel operation" at the
hearing. (Doc. 44 if 30.) He states that the Flanigans told people at the hearing that Plaintiff had
'"hoodlums' at his house taking care of his dogs." (Id.)
The Flanigans appealed the Act 250 permit to the Environmental Division of the
Vermont Superior Court which conducted a merits hearing. In Re Hovey, 2015 WL 7628685,
at *1. The Environmental Court affirmed the issuance of the permit and modified it to include a
specific limit on sustained dog barking. Id. at *3. The court defined barking to include all
"'canine vocalization', thus ensuring that 'howling' [was] included." Id. at *4. The decision of
the Environmental Court was affirmed on appeal by summary order. Id.
According to the complaint, the Flanigans have complained at length about plaintiff to
law enforcement and state agencies. The complaint describes the following false complaints:
3 complaints to the Essex County Sheriffs Department;
a complaint to the game warden that plaintiff had poached a moose;
repeated complaints to the Vermont State Police of abuse of animals, lack of a
"breeders license," and violations of the Act 250 permit;
complaints to supervisors at the state police and Vermont Department of Fish and
Wildlife that officers were biased in favor of plaintiff;
false claims to the Vermont Department of Agriculture;
false statements to the offices of the Governor and the Lt. Governor;
complaints to the United States Department of Agriculture;
complaints to the American Kennel Club;
a report to the FBI;
complaints to various Humane Societies;
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complaint to Green Mountain Power falsely stating that plaintiff was burning
brush beneath power lines.
Although various inspections occurred as a result of these complaints, no investigating agency
took any action against plaintiff. (Doc. 44 ,-r 30.)
Plaintiff alleges that the Town of Victory joined in a "vendetta against the Plaintiffs."
(Doc. 44 ,-r 31.) He complains that he was required to obtain a town pet dealer permit even
though the other breeder in Victory, Ryan Hovey, did not face a similar requirement.
See 20 V.S.A. § 3681. This aspect of the story is complicated by allegations that plaintiff
obtained a form to apply for a pet dealer permit from the town clerk of St. Johnsbury. After the
Victory town clerk Carol Easter refused to sign the permit, Plaintiff persuaded a selectboard
member to sign the permit which later was determined to be invalid. The clerk then reissued the
permit. She subsequently revoked this second permit on the ground that plaintiff was required
"to comply with three additional conditions that were not required under the Pet Dealer Permit
statute." (Id.) After plaintiff demonstrated compliance, the clerk reissued the permit. Plaintiff
overheard Robert Flanigan berating the clerk for reissuing the permit. (Id.)
Plaintiff complains that the Town Clerk and the Chair of the Selectboard made false
statements about him, "including that he has abused his animals and that he has a 'puppy mill."'
(Id.) The Chair also falsely implied that plaintiff was a violent person.
In 2014, the municipal animal control officer issued two tickets to plaintiff. Both were
later withdrawn. (Id.)
Plaintiff draws attention to what he describes as more favorable treatment accorded by
the town to Ryan Hovey's breeding kennel. (The familial relationship between the men-if
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any-is not disclosed.) Ryan Hovey has not been required to obtain an Act 250 permit nor to
obtain a pet dealer permit. (Id.)
Plaintiff raises concerns about the town's treatment of the local humane society and the
status of the Flanigans and their adult sons as town voters. (Id.)
Plaintiff also complains that the Flanigans have "enlisted the help of the State of Vermont
in attempting to shut down Plaintiffs' business" in the following ways:
requiring plaintiff to obtain an Act 250 permit when six other commercial
businesses in Victory do not face the same requirement;
recommending through defendant Kirsten Sultan that plaintiff withdraw a request
for an amended permit increasing the number of dogs by 5 and puppies by 15;
recruiting defendant Sue Skaskiw, "a self-professed animal rights advocate" to
conduct an inspection and attempt to take the dogs away from plaintiff.
(Doc. 44 ~ 32.)
Causes of Action
From these allegations, plaintiff advances multiple causes of action:
Equal protection. This is a "class of one" claim. There is no claim of racial
discrimination or a claim that plaintiff is a member of a protected group. Plaintiff claims
that he has been treated in an arbitrary manner by state and municipal officials who have
imposed permit and license requirements not required of other similarly situated
businesses within the Town of Victory. (Doc. 44 ~~ 33-37.)
Due Process. Plaintiff complains that his pet dealer permit was revoked without due
process, that he was denied an amendment of his Act 250 permit without a hearing, and
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that he was improperly advised by defendant Kirsten Sultan to withdraw his request for
an amendment. (Id.
Search and seizure. Plaintiff complains that the Flanigans' complaints resulted in
unreasonable "inspections of his personal and business property" by state, federal and
local agencies. (Id.
Common Benefits Clause. Plaintiff alleges that the actions of the Flanigans and of state
and municipal officials "in collaboration" have denied plaintiff rights to equal treatment
under the Common Benefits Clause of the Vermont Constitution "by arbitrarily requiring
and denying permits and licenses not required by or denied to others similarly situated."
Privileges and immunities. Plaintiff alleges that the state and municipal defendants have
"arbitrarily and unreasonably ... interfered and continue to interfere with Plaintiff
Hovey's constitutional right to earn a living in a lawful occupation." (Id.
Conspiracy to interfere with civil rights. Plaintiff alleges that all defendants conspired to
shut down his kennel business by imposing requirements to obtain permits not required
of other similar businesses, by conducting numerous searches, and by "continuous
if 71.) This claim is advanced under 42 U.S.C. § 1985(3).
Tortious interference with business relations (Doc. 44 iii! 59-62)
Defamation (id. iii! 63-66)
Intentional Infliction of Emotional Distress (id. iii! 67-70).
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Defendants Robert and Toni Flanagan have moved to dismiss (Docs. 22, 50) the
complaint on grounds that as private citizens, they are not proper parties for the constitutional
claims expressed in Counts 1 through 5. They move to dismiss the tortious interference claim on
the ground that there is no allegation that plaintiffs contractual relations with a third-party (such
as the potential purchaser of a puppy) were harmed by the alleged conduct. They seek dismissal
of the defamation claim on the ground that the allegations fail to identify the defamatory
statements with sufficient particularity. They seek dismissal of the IIED claim on the same
basis. They do not address Count 9 specifically.
The state defendants (the State of Vermont, the District 7 Regional Environmental
Commission, the Natural Resources Board, Kirsten Sultan, Diane Snelling, Chair of the Natural
Resources Board, and Eugene Reid, Chair of the District 7 Environmental Commission) move to
dismiss on the following grounds (Doc. 9):
Eleventh Amendment bar to state law and constitutional claims for money
damages against the state and various state agencies;
unavailability of injunctive relief under the Ex Parte Young exception to the
the factual allegations against defendant Sultan are insufficient to support the
causes of action against her; such claims are also barred on grounds of statute of
limitations and qualified immunity;
the "class of one" equal protection claim is not supported by claims of virtually
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there is no property interest in obtaining an amendment to an Act 250 permit for
purposes of due process;
plaintiff has a reduced expectation of privacy in his commercial property and has
not pled facts to show an unreasonable intrusion by state actors;
the Privileges and Immunities Clause does not excuse plaintiff from state
regulation of his business activities;
plaintiff has failed to make out a claim for tortious interference.
After initial briefing, the court granted Plaintiffs motion to file an amended complaint,
and permitted supplemental memoranda in support of and in opposition to the motions to
dismiss. The court considers these papers and the original motions to dismiss as applied to the
amended complaint (Doc. 44).
In evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the
court accepts all facts as alleged in the complaint and "draw[ s] all reasonable inferences in the
plaintiffs favor. Doe v. Columbia Univ., 831F.3d46, 48 (2d Cir. 2016). "To survive a motion
to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim
to relief that is plausible on its face."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Claims Against the State Defendants
The court begins with the motion to dismiss filed by the state defendants (Doc. 9).
Dismissal of the State, the Commission, and the Vermont Natural Resource
Plaintiff concedes that the Eleventh Amendment bars his claims for damages against the
State of Vermont, the District 7 Regional Environmental Commission, and the Vermont Natural
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Resources Board. (Doc. 35 at 2.) Vermont has not waived its immunity to suit under 42 U.S.C.
§ 1983. See 12 V.S.A. § 5601(g) ("Nothing in this chapter [establishing a limited waiver of
sovereign immunity for actions of state employees] waives the rights of the State under the
Eleventh Amendment of the U.S. Constitution." These parties were improperly sued.
Claims Against Diane Snelling and Eugene Reid
Diane Snelling, Chair of the Vermont Natural Resources Board (and a former state
senator), and Eugene Reid, Chair of the District 7 Commission, were both originally sued in their
official capacities. (Doc. 1 at 1.) Plaintiff obtained leave of court to file an amended complaint.
Both are now sued in their "personal and official" capacities. (Doc. 44 at 1.)
There is a degree of confusion about the status of the personal capacity claims against
Senator Snelling and Mr. Reid. The Office of the Attorney General entered appearances on their
behalf in response to the original complaint. (Docs. 7, 8.) The Attorney General subsequently
filed the pending motion to dismiss, an objection to the motion to amend the complaint, and a
supplemental memorandum of law in support of the motion to dismiss after the complaint was
amended. (Docs. 9, 40, 49.)
At oral argument, counsel for Senator Snelling and Mr. Reid argued that neither had been
properly served with regard to claims against them in their individual capacities. The court
agrees that Plaintiff should have served Senator Snelling and Mr. Reid when he added claims
against them in their individual capacities. Added claims against a party in his or her individual
capacity when she is already named in her official capacity is equivalent to adding an entirely
new party-the defendant must therefore be served in accordance with Federal Rule of Civil
Procedure 4, rather than by merely serving papers to the attorney of a party who has already
made an appearance, as specified in Rule 5. See Jackson v. Hayakawa, 682 F.2d 1344, 1348-49
(9th Cir. 1982) (holding that new service is required where amended complaint includes "a
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change in the status of defendants" to include claims against them in their personal capacities);
Love v. Hayden, 757 F. Supp. 1209, 1211-12 (D. Kan. 1991) (citing Jackson and coming to
same conclusion). The claims against these defendants are therefore dismissed for insufficient
service of process.
Even ifthe amended complaint had been properly served on Senator Snelling and
Mr. Reid, however, it contains no allegations of personal involvement by Senator Snelling or
Mr. Reid in any of the disputes and legal proceedings concerning plaintiff's dog kennel.
Paragraphs 22 and 23 allege that Senator Snelling is "the current Vermont Natural Resources
Board Chair" and that Mr. Reid is "the current District 7 Regional Environmental Commission
Chair." The amended complaint sets out no facts which would support a claim of personal fault
and liability. It sets out no facts which would support an injunction against either defendant. It
is entirely silent regarding either defendant's alleged personal role in the dispute. 2
The case is no different with respect to the state law claims. There is no specific
allegation that either Senator Snelling or Mr. Reid took part in any interference with Plaintiff's
business activities or made a defamatory statement.
Claims Against Kirsten Sultan
Ms. Sultan was the District 7 Regional Environmental Commission Coordinator during
the relevant periods. (Doc. 44 if 21.) The specific allegations against her are that she received
the original complaint from the Flanigans (id.
if 29) that following issuance of the Act 250
permit, she responded to the Flanigans' complaints to the Natural Resources Board by inspecting
the kennel at least 3 times without finding any violations (id.
if 29), that she told plaintiff that
"the Commission only pursues Act 250 compliance when there is a complaint" (id.
if 32), and
At the hearing on April 17, 2017, Plaintiff voluntarily dismissed all claims against
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that after plaintiff sought to amend the Act 250 permit to expand the kennel, she "recommended
that Plaintiff withdraw his amended permit because of the Flanigan's complaint." (Id.)
Although there are no additional allegations against Ms. Sultan in the enumerated causes
of action, the court understands that she is one of the "officials of the State of Vermont" whom
plaintiff alleges denied him equal protection of the laws (Count 1), due process (Count 2),
protection against unreasonable searches (Count 3), Common Benefits under the Vermont
Constitution (Count 4), and Privileges and Immunities (Count 5).
The court begins with the specific allegations concerning Ms. Sultan. None of these
make out a constitutional violation for which she could be personally liable.
First, she received the Flanigans' complaints and, although the amended complaint is not
specific, the court can reasonably infer that as the Coordinator of the Regional Environmental
Commission, she informed the plaintiff of the Act 250 violation and administered the contested
permit process which resulted in the issuance of an Act 250 permit for the expansion of the
kennel. All of these actions have been validated by the decision of the Vermont Supreme Court
in In re Hovey. That decision settled many of the issues which plaintiff seeks to raise against the
In affirming the decision of the Environmental Court, the Vermont Supreme Court ruled
that the trial court properly evaluated the criterion of added noise under the analytical framework
of criterion 8 governing the issuance of permits. See 10 V.S.A. § 6086(a)(8). The trial court
exercised its authority correctly in finding an adverse aesthetic impact, determining that the
impact was excessive or ''undue," and formulating permit conditions to keep the noise within
reasonable bounds. In the view of the appeals court, "the case supports the basic proposition that
there is a point at which the noise associated with a proposed project becomes more than
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residents are used to hearing on a regular basis, and the effect is therefore adverse. The court
found that point had been reached here, and it did not err in doing so." In re Hovey, 2015 WL
7628685, at *4.
If the trial court acted correctly in upholding the permit, then as Commission
Coordinator, Ms. Sultan must have acted correctly in taking the initial complaint from the
Flanigans, convening a hearing, and assisting the Commission in reaching a decision to issue a
permit. This is not a case in which Plaintiff demonstrated that the permit process did not apply
to the enlargement of his kennel or that he was otherwise exempt.
Plaintiff states that Ms. Sultan advised him that permit enforcement is driven by
neighbors' complaints. That is likely true, and in any event telling Plaintiff this is hardly a basis
for a lawsuit.
There is no constitutional tort in any of these allegations against Ms. Sultan. The
remaining question is whether read as a whole, they add up to a plausible allegation that
Ms. Sultan was in some way a conspirator against plaintiff. Such a claim appears in the Ninth
Cause of Action ("Conspiracy to Interfere with Civil Rights) U.S. Const. Amend. XIV &
42 U.S.C. § 1985(3)"). Plaintiff alleges that all defendants "engaged in a conspiracy to shut
down Plaintiffs business by conspiring to require Plaintiff to respond to numerous searches of
Plaintiffs property, respond to continuous harassment by Defendants, respond to numerous
requirements to obtain permits not required of similarly situated persons and pay unnecessary
fees and expenses to defend themselves against such conspiracy." (Doc. 44 if 71.)
The difficulty with this claim is that section 1985-unlike section 1983-is a tool only
available to address race-based discrimination. Griffin v. Breckenridge, 403 U.S. 88, 102 (1971);
Dolan v. Connolly, 794 F.3d 290, 296 (2d Cir. 2015). Unlike section 1983 which functions to
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provide a federal remedy for a wide variety of constitutional torts, section 1985(3) remains close
to the historical purpose of its enactment during the era of Reconstruction as a defense against
racist conspiracies by groups such as the Ku Klux Klan. Griffin, 403 U.S. at 101-02. It does not
provide a remedy against Ms. Sultan.
In completing this discussion, the court considers the remaining constitutional claims as
they apply to Ms. Sultan.
Equal Protection-Class of One
Plaintiff alleges that Ms. Sultan denied him equal protection of the laws "by arbitrarily
enforcing permit and license requirements not required of others." (Doc. 44 il 35.) Plaintiffs
counsel explains that this allegation concerns the decision to enforce the Act 250 permit
requirement against plaintiff while allowing other businesses to operate in Victory without
meeting Act 250 requirements. (Doc. 52 at 4.) Plaintiff describes this as a "class of one" claim
since there is no allegation of racial discrimination. (Id.)
Victory is an extremely small town with only 62 residents and six other businesses. One
of these is the dog kennel operated by Ryan Hovey without the benefit of an Act 250 permit. But
it is not the operation of the business which triggers the Act 250 permit requirement. It is the
onset of construction, development or subdivision-which in Plaintiffs case was the addition of
new space to his kennel. See 10 V.S.A. § 6081. The complaint lacks any suggestion that
Ms. Sultan turned a blind eye to the permit requirements of any other construction project while
singling out plaintiffs project for attention. "Class of one" claims of unequal treatment are not
favored and require substantive pleading and proof. The plaintiff must prove that "(i) no rational
person could regard the circumstances of the plaintiff to differ from those of a comparator to a
degree that would justify the differential treatment on the basis of a legitimate government
policy; and (ii) the similarity in circumstances and difference in treatment are sufficient to
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exclude the possibility that the defendants acted on the basis of a mistake." Ruston v. Town Bd.
ofSkaneateles, 610 F.3d 55, 59-60 (2d Cir. 2010) (quoting Clubside, Inc. v. Valentin, 468 F.3d
144, 159 (2d Cir. 2006)).
The complaint fails even to acknowledge the steep requirements necessary to establish a
class of one for equal protection purposes. It states only "[a]pproximately )!,! mile away from
Greg Hovey is the breeding kennel of Ryan Hovey. The Town of Victory has not required Ryan
Hovey to obtain an Act 250 permit, nor has the Town required Ryan Hovey to obtain a pet dealer
permit, even though Ryan Hovey is required to have both an Act 250 permit and a Pet Dealer
Permit." (Doc. 44 if 31.) Setting aside the absence of any reference to Ms. Sultan in this
allegation, the reference to Ryan Hovey's status as an unpermitted kennel operator is insufficient
to qualify him as a comparator. Unless "every claim for improper provision of municipal
services or for improper conduct of an investigation" has the capacity to become a class of one
claim for violation of equal protection, McDonald v. Vil!. of Winnetka, 371 F.3d 992, 1009
(7th Cir. 2004), the courts must set reasonable pleading standards. As the Second Circuit has
characterized, "class-of-one plaintiffs must show an extremely high degree of similarity between
themselves and the persons to whom they compare themselves." Ruston, 610 F.3d at 59 (internal
quotation marks omitted). These would require specific claims that Ms. Sultan acted
purposefully in subjecting plaintiff to permitting requirements for arbitrary and unfair reasons
while ignoring other violators. No such claim appears. There is no allegation that Ryan Hovey
commenced construction or in some other way subjected his kennel to Act 250 scrutiny. Instead,
plaintiff frequently supplies the reason Ms. Sultan required him to get a permit: he was the
subject of complaints from his neighbors that he was embarking on construction without the
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necessary permit. The complaint identifies no one else in this situation. That alone is sufficient
to distinguish his case from the handful of other businesses operating in Victory.
Due Process Violation-Amendment of the Act 250 Permit
Plaintiff alleges that Ms. Sultan improperly advised him to withdraw his application for
an amended permit. At oral argument, counsel for Ms. Sultan was able to shed some light on
this allegation. Rule 34 of the Act 250 Rules promulgated by the Natural Resources Board of the
State of Vermont governs amendments to existing permits. An amendment is required "for any
material change to a permitted development." Act 250 Rule 34(A), available at
http://nrb.state.vt.us/lup/publications/rules/2013rules.pdf (last visited May 2, 2017). A
"[ s]ubstantial change to a pre-existing development"-such as the proposed enlargement of the
kennel-is subject to a new application process including the notice and hearing provisions." Id.
Rule 34(B). A permittee might wish to be cautious before opening his business to reexamination. Through counsel Ms. Sultan suggests that if the facts are developed beyond the
allegations of the amended complaint, an entirely benign explanation for her advice will emerge.
Regardless of the purpose and content of Ms. Sultan's advice, she cannot be liable for
"recommend[ing] that Plaintiff withdraw his amended permit because of the Flanigan's
complaint." (Doc. 44 ii 32.) A recommendation is just that-non-binding advice. Plaintiff
makes no claim that he was misled or tricked through false information.
Plaintiff alleges that Ms. Sultan conducted intrusive inspections after the Act 250 permit
issued. He claims that she visited his premises on at least three occasions in response to
complaints by the Flanigans. But inspections and investigations of complaints of environmental
violations form part of her duties. 10 V.S.A. § 8005(a)(l) ("An investigator may perform routine
inspections to determine compliance [with land use permit requirements."). Plaintiff has not
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pied any facts which would take the visits by Ms. Sultan to the kennel in response to the
Flanigans' complaints outside of what is normal and expected in the context of permit
Violation of State Constitutional Guarantee of Common Benefits
Plaintiff alleges that Ms. Sultan favored other businesses and imposed the Act 250
requirement only on his kennel while ignoring violations by Ryan Hovey's kennel. He relies
upon the decision of the Vermont Supreme Court inin re Town Highway No. 20, 2012 VT 17,
191 Vt. 231, 45 A.3d 54, which recognized a private cause of action for violations of the
Common Benefits Clause in the Vermont Constitution. VT Const., C. 1, Art. 7. This cause of
action is very similar to the class of one action available under the Equal Protection Clause.
"Though presented as a restriction of government and not a grant of privileges, Article 7
guarantees the right of the people to a government that does not favor any one person or family
over another." Id.
if 32. In permitting private lawsuits against governmental officials and
employees to vindicate this right, the court expressed the same concerns which inhibit the spread
of "class of one" cases to every case in which citizens believe they have received arbitrary
treatment inconsistent with the experience of their neighbors. The court imposed "stringent
additional requirements" including proof of disparate and arbitrary treatment which directly
favors another particular individual or group as well as official conduct "actuated by personal
motives unrelated to the duties of the defendant's official position, such as ill will,
vindictiveness, or financial gain." Id.
The claims against Ms. Sultan fail to meet these requirements. There is no more than a
cursory allegation that other businesses were treated more favorably by the permit administrator.
There is no allegation that other particular individuals were favored. And there is no claim that
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Ms. Sultan was motivated by personal ill will or financial gain. The claims against Ms. Sultan
give substance to the concern, recognized by the majority in In Re Town Highway No. 20, that
the ruling could "transform every local decision into a potential constitutional tort." Id.
The court dismisses the "Common Benefit" claim for failure to plead the elements of unequal
treatment and favor of another resident with plausible specificity as well as failure to plead the
scienter element of personal ill-will at all.
Privileges and Immunities Clause
Plaintiff alleges that the defendants' "continuous harassment, discriminatory permitting
and license requirements" and "subjecting Plaintiff to unreasonable searches" "interfered and
continue to interfere" with his "right to earn a living in a lawful occupation in violation of the
privileges and immunities clause of the Fourteenth Amendment." (Doc. 44 if 56.)
The Privileges and Immunities Clause provides that "No State shall make or enforce any
law which shall abridge the privileges or immunities of citizens of the United States."
U.S. Const. Amend. XIV § 1. It has been interpreted narrowly. As the Supreme Court recently
reiterated in McDonald v. City of Chicago, the Clause protects the rights:
to come to the seat of government to assert any claim [a citizen] may have upon
that government, to transact any business he may have with it, to seek its
protection, to share its offices, to engage in administering its functions ... [and
to] become a citizen of any State of the Union by a bonafide residence therein,
with the same rights as other citizens of that State.
561 U.S. 742, 755 (2010) (quoting Slaughter-House Cases, 83 U.S. 36, 79-80 (1872)). The
Clause "does not create a naked right to conduct a business free of otherwise valid state
regulation." Head v. New Mexico Bd. ofExam 'rs in Optometry, 374 U.S. 424, 432 n.12 (1963).
Nor can Plaintiff maintain a claim under the Privileges and Immunities Clause of
Article IV. It provides that "The Citizens of Each State shall be entitled to all Privileges and
Immunities of Citizens in the several States." U.S. Const. Art. IV,§ 2, CL 1. That clause
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"operates to 'place the citizens of each State upon the same footing with citizens of other states,
so far as the advantages resulting from citizenship in those states are concerned."' Schoenefeld
v. Schneiderman, 821F.3d273, 279 (2d Cir. 2016) (quoting Paul v. Virginia, 75 U.S. 168, 180
(1868)). The "Clause prevents a State from discriminating against citizens of other States in
favor of its own." Id. (internal quotation marks omitted). While the Clause "protects the rights
of citizens to ply their trade, practice their occupation, or pursue a common calling," laws violate
these rights "only when [they are] enacted for the protectionist purpose of burdening out-of-state
citizens." McBurney v. Young, 133 S. Ct. 1709, 1715 (2013) (internal quotation marks omitted).
Plaintiff is a citizen of Vermont. He makes no allegation that his ability to pursue his "lawful
occupation" has been impaired on account of his state citizenship.
The court dismisses all claims against the defendants associated with the State of
Vermont. These include the State of Vermont, District 7 Regional Environmental Commission,
the Vermont Natural Resources Board, Kirsten Sultan, Diane Snelling, and Eugene Reid. The
court does not reach the defendants' statute oflimitations arguments, which present separate
obstacles to plaintiffs claims against the state defendants.
Claims against Robert and Toni Flanigan
The state law claims against the Flanigans are for defamation, tortious interference with
contractual relations, and intentional infliction of emotional distress. In addition, plaintiff makes
a state constitutional claim against the Flanigans under the Common Benefits Clause and a
federal conspiracy claim under§ 1985(3).
The defamation claim concerns statements "in public and to public officials" resulting in
damage to reputation and to the kennel business "requiring him to expend time and money to
Case 5:16-cv-00266-gwc Document 60 Filed 05/16/17 Page 19 of 21
clear his name." (Doc. 44 if 64.) The specific allegations concerning the Flanigans include
claims that they made false complaints to law enforcement and other state and municipal officers
and to private organizations such as animal rescue organizations and Green Mountain Power
about violations of the permit, abusive conditions at the kennel, the illegal taking of a moose, and
burning brush under electric lines. (Doc. 44 if 30.)
The amended complaint alleges many false statements which are potentially defamatory.
They are alleged with sufficient specificity to survive a motion to dismiss. Plaintiff will be
obligated to provide much greater detail about these statements in his initial disclosure and in
response to discovery requests. But for purposes of Rule 12, the amended complaint is
sufficiently detailed and plausible to make out a defamation claim.
The Flanigans seek dismissal of the tortious interference claim because the plaintiff has
failed to identify a single customer or contract which was affected by the Flanigans' conduct.
The court agrees. The tort of interference with business or contractual relations "protects the
same interest in stable economic relationships as does the tort of interference with contract, but
applies to business relationships not formally reduced to contract." Gifford v. Sun Data, Inc.,
165 Vt. 611, 613, 686 A.2d 472, 474 (1996); see also JA. Morrissey, Inc. v. Smejkal, 2010 VT
66 if 22, 188 Vt. 245, 6 A.3d 701. In the case of a kennel, these relationships would include
those with potential purchasers of puppies, suppliers of feed and supplies, and any other person
doing business with the kennel. A conclusory allegation that defendants interfered with
plaintiffs business and denied him the ability "to lawfully expand his business operations" is too
general to meet the basic requirement that the complaint outline the elements of the tort and the
facts supporting each element. Gifford, 165 Vt. at 613 n.2. Plaintiffs failure to add specific
allegations when he amended his complaint is a clear indication he can point to no valid business
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relationship or expectancy-such as with a customer or a supplier-that was damaged as a result
of the Flanigans' opposition to the kennel expansion. The court dismisses Count 6 as against the
Intentional Infliction of Emotional Distress
Vermont has long recognized the common law tort of intentional infliction of emotional
distress ("IIED"). Sheltra v. Smith, 136 Vt. 472, 392 A.2d 431 (1978). To establish a claim for
IIED, a plaintiff must show that a defendant "engaged in outrageous conduct, done intentionally
or with reckless disregard of the probability of causing emotional distress, resulting in the
suffering of extreme emotional distress, actually or proximately caused by the outrageous
conduct." Cate v. City of Burlington, 2013 VT 64 if 28, 194 Vt. 265, 79 A.3d 854 (internal
quotation marks omitted). Conduct is actionable under this theory only if it "was so outrageous
in character and so extreme in degree as to go beyond all possible bounds of decent and tolerable
conduct in a civilized community and be regarded as atrocious and utterly intolerable." Id.
(internal quotation marks omitted).
The allegations in this case, taken as true, fall short of establishing outrageous conduct.
Plaintiff alleges that the Flanigans mounted a determined, even dogged, campaign to close his
kennel and that they made false complaints about him to officials ranging from the municipal
animal control officer to the state governor's office. According to the complaint, every
grievance lodged by the Flanigans resulted in a finding of no violation. While this conduct
would be irritating and disheartening, it is not the type of extreme misconduct which is necessary
to support an IIED claim.
Common Benefits Clause
The Flanigans seek dismissal of the Common Benefits clause on the ground that the
cause of action applies only to state actors. They may well be correct in this view, but the court
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does not reach the question because the claim fails against any defendant, state, municipal or
private, for the reasons described above.
Federal Constitutional Claims and Civil Rights Conspiracy
At oral argument, Plaintiff agreed to the dismissal of the federal constitutional claims,
arising under§ 1983, against the Flanigans. The court has already explained that the civil rights
conspiracy claim, arising under 42 U.S.C. § 1985, fails because it does not allege any race- or
other qualifying animus or discrimination. These claims are therefore also dismissed as to
Defendants Robert and Toni Flanigan.
The court GRANTS the state defendants' motion to dismiss (Doc. 9) in its entirety and
DISMISSES all claims against the State of Vermont, District 7 Regional Environmental
Commission, the Vermont Natural Resources Board, Kirsten Sultan, Diane Snelling, and Eugene
The court GRANTS IN PART and DENIES IN PART the motions to dismiss filed by
Defendants Robert and Toni Flanigan (Docs. 22, 50). The motions are DENIED with respect to
the defamation claim (Count 7), but otherwise GRANTED as to all other claims.
Dated at Rutland, in the District of Vermont, this lbday of May, 2017.
Geoffrey W. Crawford, Judge
United States District Court
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