Appeal from a judgment of the District of Connecticut, Peter C. Dorsey, J., dismissing a complaint under 42 U.S.C. §§ 1983 and 1985(3) claiming deprivation of plaintiffs' due process and equal protection rights in the denial by the Zoning Board of Appeals of West Haven, connecticut, of a certificate of location approval for the conduct of a motor vehicle junkyard business. Affirmed.
Lumbard, Mansfield and Pierce, Circuit Judges.
MANSFIELD, Circuit Judge:
Plaintiffs Paul Isacoff (Isacoff) and Yale Auto Parts, Inc. (Yale) appeal from a judgment of the District of Connecticut, Peter C. Dorsey, J., granting the motion of defendants (City of West Haven, Robert J. Johnson, Mayor of the City, four members of its Zoning Board of Appeals (ZBA), and Frederick Johnson, the City's Assistant Director of Public Works and Chairman of the West Haven Town Committee of the Democratic Party) to dismiss their complaint, which seeks damages pursuant to 42 U.S.C. §§ 1983 and 1985(3).*fn1 The complaint charges that the defendants conspired arbitrarily to deny them a certificate of location approval sought from the ZBA for the conduct of a motor vehicle junkyard business at a certain location in the city, thereby violating their due process and equal protection rights under the U.S. Constitution. Pendent claims that defendants' conduct violated plaintiffs' rights under Connecticut's Constitution were also dismissed. We affirm.
Prior to the events in question Isacoff owned and operated Yale, a used car and automobile junkyard business in New Haven, which he was forced to remove when the site was condemned for a roadway. In 1974 he sought to relocate the business to a 28-acre tract in West Haven owned by him. In order to do so he was required to obtain a license from the Department of Motor Vehicles (DMV), which would be issued upon his obtaining (1) approval by the West Haven Planning and Zoning Commission (PZC) of a zoning change and a special permit, and (2) approval by the West Haven ZBA of a certificate of location approval required by C.G.S.A. § 14-67i (formerly § 21-16.*fn2
On January 7, 1978, the PZC issued its approval. However, after a hearing on January 17, 1978, the five-member ZBA, by a vote of its four Democratic members (the Chairman, a Republican, abstained), denied a certificate of location approval. Under the governing statute, C.G.S.A. § 14-67k (formerly § 21-17) it was required, in considering such an application, to take into account various community factors, including the nature of the surrounding property, proximity of churches, schools and public buildings, and the health and safety of the public.*fn3
Yale appealed the ZBA's decision to the Connecticut Superior Court and on February 26, 1980, after an evidentiary hearing, State Trial Referee A. Frederick Mignone filed a 29-page detailed decision holding that the ZBA had denied the applicant a fair hearing, that its voting members had acted with an unlawful "predisposition and predetermination," and that the ZBA's actions were "capricious, unreasonable, and illegal as against public policy." Referee Mignone found that prior to the January 17, 1978, meeting of the ZBA, defendant Frederick Johnson, who was Assistant Director of Public Works, Chairman of the West haven Town Committee of the Democratic party and brother of defendant Robert Johnson, Mayor of the city, had discussed with defendant Edward Formichella, one of the ZBA members, his views with respect to the Yale application and had consulted with defendants Formichella, Shannon, Vingiano and Soroker, regarding the action they would take on the application. Following this discussion, Soroker told the Chairman of the ZBA (Catania) that "Fred Johnson wants the Yale application to be killed." This was promptly accomplished when the four Democratic members voted to deny the application.
Despite his findings and conclusions Referee Mignone did not order the ZBA to issue its approval, which he had the power to do, if it appeared "as a matter of law there was but a single conclusion which the zoning authority could reasonably reach." Bogue v. Zoning Board of Appeals, 165 Conn. 749, 345 A.2d 9, 11 (1975); see also Corona's Auto Parts, Inc. v. Zoning Board of Appeals, 158 Conn. 244, 259 A.2d 618 (1969). Nor did he grant plaintiffs' motion to disqualify the four ZBA Commissioners who voted against the application. Instead, he remanded the case to the ZBA, instructing it "to grant a new hearing to the plaintiff and to act upon said application solely according to law.*fn4
Plaintiffs subsequently requested a new hearing, which was held on October 15, 1980, with continuances on October 29 and November 19, 1980. Plaintiffs allege that, after the November 19th session had been closed, letters opposing the application from defendant Robert Johnson, then the Democratic Mayor of West Haven, and the Planning Director of the Planning and Zoning Commission, were, over their objection, read into the record. The ZBA thereupon voted unanimously to deny the application.
Rather than seek state court review of the denial, see C.G.S.A. § 8-8,*fn5 plaintiffs secured from the Connecticut Legislature the passage of a private bill, P.A. 81-347, permitting Yale to bypass the ZBA and secure the certificate of location approval from the PZC rather than from the ZBA. The PZC issued the certificate on November 10, 1981 and the DMV issued the required license on march 23, 1982, four years after the ZBA's initial denial of their application for a certificate of location approval.*fn5
In the meantime, on March 27, 1981, after the ZBA had for a second time denied their application, plaintiffs commenced the present action under §§ 1983 and 1985(3). The complaint, after reciting the foregoing factual background, alleges that in denying the plaintiffs' application the four defendant members of the ZBA acted individually and in concert with Frederick Johnson and under the improper influence of defendant Mayor Robert Johnson; that the defendants acted under color of state law; that the denial of the application was "irrational, arbitrary, or capricious, and contrary to state law;" that plaintiffs' right to conduct an automobile business at the West haven location was "a property right protected by the Constitutions of the United States and the State of Connecticut" (Pars. 48, 54); and that the denial of the application deprived "plaintiffs of property rights in derogation of the plaintiffs' right to equal protection and due process of law, in violation of 42 U.S.D.C § 1983" (Pars. 58, 59, 60, 61) and in violation of 42 U.S.C. § 1985(3) (Pars. 62, 63). The defendants' conduct is also alleged to violate Art. I, §§ 1 and 11 of the Constitution of the State of Connecticut.*fn6 The complaint seeks, among other relief, damages for loss of business and goodwill during the period from January 17, 1978, through March 23, 1982 (when the application was finally approved), pain and suffering, punitive damages, and the fair market value of the use of the West Haven site for the foregoing period when it could not be used because of the denial of plaintiffs' application.*fn7
After filing their answers, on December 19, 1983, defendants moved under Fed. r. Civ. P. 12(b)(6) to dismiss the complaint. On September 4, 1984, Judge Dorsey, treating the motion as one under Fed. R. Civ. P. 12(c) for judgment on the pleadings filed a decision and order granting the motion. The district court ruled that plaintiffs' unilateral expectation of a ZBA license did not amount to a property right entitling it to due process protection under § 1983, citing Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972), or to equal protection, absent a claim that the ZBA would have or did in fact act differently with respect to some other similarly-situated applicant. The claim of a potential conspiracy based on § 1985(3) was dismissed for failure to allege or intimate any political affiliation on the part of plaintiff Isacoff. The pendent state law claim was dismissed for lack of jurisdiction. From this order and the judgment entered thereon plaintiffs appeal.
Upon this appeal we must accept all of plaintiffs' well-pleaded allegations as true. A complaint may properly be dismissed "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 104 S. Ct. 2229, 2233, 81 L. Ed. 2d 59 (1984) ...