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Hovey v. State

United States District Court, D. Vermont

May 16, 2017

GREGORY HOVEY and VICTORY HILL KENNEL, LLC, Plaintiffs,
v.
STATE OF VERMONT, DISTRICT 7 REGIONAL ENVIRONMENTAL 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 REID, Defendants.

          OPINION AND ORDER ON MOTIONS TO DISMISS (Docs. 9, 22, 50)

          Geoffrey W. Crawford, Judge

         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 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.

         Facts

         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, ¶¶ 25-26.) 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 ¶ 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 ¶ 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." (Id.)

         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 false and defamatory statements against Plaintiffs concerning the kennel operation" at the hearing. (Doc. 44 ¶ 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;

• 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 ¶ 30.)

         Plaintiff alleges that the Town of Victory joined in a "vendetta against the Plaintiffs." (Doc. 44 ¶ 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 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:

         I. Constitutional Claims

• 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 ...

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