United States District Court, D. Vermont
OPINION AND ORDER ON MOTIONS TO DISMISS (Docs. 9, 22,
Geoffrey W. Crawford, Judge
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. Robert and Toni Flanigan are neighbors who
opposed an expansion of the kennel because they are disturbed
by the barking of the dogs.
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 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.
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.
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
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
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.)
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.
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
• false statements to the offices of the Governor and
the Lt. Governor;
• complaints to the United States Department of
• 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.
various inspections occurred as a result of these complaints,
no investigating agency took any action against plaintiff.
(Doc. 44 ¶ 30.)
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.
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.
2014, the municipal animal control officer issued two tickets
to plaintiff. Both were later withdrawn. (Id.)
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.
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.)
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
• 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.)
these allegations, plaintiff advances multiple causes of
• 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