“This case is about a tree house.” Lepper v. Vill. of Babylon, 18CV7011JMAAYS, 2022 WL 939719, at *2 (E.D.N.Y. Mar. 29, 2022).  In a recent federal case out of Long Island, NY, plaintiffs John and Noelle Lepper and their minor children brought an action against the Village of Babylon and several Village officials. The plaintiffs asserted a slew of constitutional claims related to a tree house that the plaintiffs constructed on their property.  Their claims included, among others, First Amendment retaliation, violations of due process and equal protection, excessive fines in violation of the Eight Amendment, and conspiracy.

Mr. Lepper first began constructing a tree house in his yard after finding a hypodermic needle on the ground near where his children play.  The plaintiffs did not apply for a building permit prior to construction, despite the fact that the Village required building permits for tree houses, playgrounds, and outdoor gyms with lot areas of over 90 square feet.

The Village sent multiple letters and violation notices to the plaintiffs explaining that their tree house likely violated the Village building code.  Mr. Lepper ultimately submitted a permit application, but it was never approved because it lacked the proper building plans and violated the applicable setback requirements.  In an event central to the plaintiffs’ retaliation claim, on the day Mr. Lepper dropped off the permit application with the Village, he had conversation with a Village employee about the hypodermic needle he had found in his yard.

The plaintiffs continued to construct the treehouse even though no permit had been issued—they finished it within hours of their son’s birthday.  The plaintiffs eventually received three tickets for the tree house, and after several proceedings in the Village of Babylon Justice Court, the Leppers brought a federal action in the Eastern District of New York.  Their First Amendment retaliation claim was based on allegations that the defendants retaliated against Mr. Lepper by using the legal process to prosecute him and issue fines shortly after he spoke out about drug activity in the Village.  The Court found that the plaintiffs did not put forward any evidence that the defendants’ actions were in anyway motivated or substantially caused by Mr. Lepper’s discussions about the hypodermic needle or drug use.  In fact, the plaintiffs had already received several letters and notices about the tree house before Mr. Lepper spoke about the hypodermic needle with the Village employee.

Besides the First Amendment claim, the Court found that none of the plaintiffs’ other claims could stand as a matter of law and granted summary judgment in favor of the defendants.  The Court even noted that the plaintiffs made the choice to litigate in federal court for over three years instead of just submitting a proper permit application.