dissenting. Although I agree with parts I and IIA of the majority opinion, I disagree with part IIB. I would infer a Bivens-type cause of action; Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971); under our state constitutional due process clause. Accordingly, I dissent from the ultimate determination of the case by the majority.
*344First, I agree with the parties, and with the assumption of the majority, that we have the power to infer a cause of action for damages directly from the due process clause of our constitution. As the majority indicates, Bivens recognizes such a power under the federal constitution; the Restatement (Second) of Torts § 847A (1979) does likewise; and we have inferred private rights of actions for damages for violations of statutory imperatives. See Mead v. Burns, 199 Conn. 651, 663, 509 A.2d 11 (1986); Conaway v. Prestia, 191 Conn. 484, 491, 464 A.2d 847 (1983). It would be incongruous to hold that our constitution is a drier source of private rights than the federal constitution or our own statutes.
Second, I would hold that the ownership of property or the right to develop it for legitimate uses is sufficient to establish a constitutionally protected property interest under our own constitution. Both the Ninth and the Third Circuit Courts of Appeal; see Del Monte Dunes v. Monterey, 920 F.2d 1496, 1508 (9th Cir. 1990); Bello v. Walker, 840 F.2d 1124, 1127-30 (3d Cir.), cert. denied, 488 U.S. 851, 109 S. Ct. 134, 102 L. Ed. 2d 107 (1988); explicitly use this standard under the federal due process clause, as opposed to the Second Circuit’s and our concomitant, more restrictive standard under the federal constitution. See Carr v. Bridgewater, 224 Conn. 44, 51-52, 616 A.2d 257 (1992).
The more restrictive standard under the federal constitution, employed by the Second Circuit and by Connecticut in the interest of uniformity within this Circuit, is based on considerations that are not present in this case, namely, the notions of federalism and comity, under which the federal courts are reluctant to become federal overseers of the state land use planning process, in 42 U.S.C. § 1983 cases stemming from local land use planning controversies. See RRI Realty Corporation v. Incorporated Village of Southampton, 870 *345F.2d 911, 918 (2d Cir.), cert. denied, 493 U.S. 893, 110 S. Ct. 240, 107 L. Ed. 2d 191 (1989). Our state courts, however, already play that role to some extent by reviewing local land use planning decisions, albeit under a limited scope of review in many cases. Furthermore, a standard of the ownership of property or right to develop property for legitimate uses is consistent with our law—both statutory and common—of standing and aggrievement. See, e.g., Connecticut Resources Recovery Authority v. Planning & Zoning Commission, 225 Conn. 731, 739 n.12, 626 A.2d 705 (1993); Hall v. Planning Commission, 181 Conn. 442, 445, 435 A.2d 975 (1980).
Against this background, I turn to the cause of action asserted in this case. The complaint explicitly alleges, in some detail, that the plaintiffs “subdivision application conformed in all respects with applicable regulations.” It then alleges that “the defendants intentionally, knowingly, and arbitrarily abused their governmental authority as members of a public agency with jurisdiction over land use to obstruct and delay [the plaintiffs] development of the . . . property” in ten specified ways. These ten ways included such conduct as: “misleading Kelley and his attorney about the date of newspaper publication of the Commission’s denial, for the purpose of preventing Kelley from exercising his appeal rights”; “intentionally failing to follow clearly-settled legal obligations to” judge his application on the proper basis; intentionally failing to provide him with fundamental fairness at hearings; and intentionally failing to review his application materials before acting on them.
For the purposes of this appeal, these allegations are unchallenged. The defendants did not move to strike the complaint for insufficiency of these allegations. The principal claim involved in this case, and the gravamen of the trial court's summary judgment in favor of the *346defendants, is the lack of a Bivens-type cause of action under our due process clause, regardless of the nature of the allegations. I proceed, therefore, on the assumption that, for purposes of deciding whether there is such a cause of action, these allegations suffice to spell one out. This means, therefore, that for purposes of this appeal the defendants must be regarded as having used their official positions, not for the purpose of discharging the duties imposed on them by law; not for the purpose of rendering good faith but even grievously mistaken decisions; but for the explicit purpose of harming the plaintiff—in order “to obstruct and delay,” “knowingly and intentionally,” the project to which they knew he was legally entitled. I do not believe that our due process clause is so anemic, and I do not believe that the need to avoid chilling the zeal of local land use officials is so overwhelming, that even conduct like this cannot be redressed under our state constitution.
I would apply the same factors that informed the original Bivens analysis: (1) the inadequacy or absence of an alternative remedy; (2) the absence of explicit direction from the legislature that no damages remedy should lie; and (3) the absence of any special factors counselling hesitation. In this connection, I see no reason, contrary to the position of the majority opinion, why we would be required to follow the post-Bivens retreat from its original principles, simply because that has been the course that the United States Supreme Court subsequently followed. This case is our first opportunity to consider the issue, and I do not see why our initial analysis has to begin where the United States Supreme Court’s analysis has ended.
Applying these factors, I reach a different conclusion from that of the majority opinion. The gist of the argument of the majority opinion is that “we should not construe our state constitution to provide a basis for the recognition of a private damages action for injuries for *347which the legislature has provided a reasonably adequate statutory remedy.” I agree with this principle. I disagree, however, with its application to the facts of this case, because a zoning appeal under General Statutes § 8-8 is not a reasonably adequate remedy for the harm of which the plaintiff complains. I would conclude, on the contrary, that a Bivens-type action is warranted because there is no adequate alternative remedy.
The harm occasioned by the defendants’ intentional and knowing abuse of their official positions was the obstruction and delay of the plaintiff’s project, so that by the time his rights to the permit were vindicated on appeal the project was no longer viable. Indeed, the plaintiff claims that, as a result of that delay, the banks that had loaned him money to finance the project began foreclosure proceedings and, in lieu of foreclosure, the plaintiff was forced to deed the property to the banks. The legislative remedy of a zoning appeal is not an adequate alternative to redress by an action for damages for the kind of conduct alleged here, because that remedy does not address the harm intended and caused by that conduct.
One need not be an expert in real estate development to know that one of the best ways to kill such a development is to delay its implementation in the hopes that, by the passage of time, it will no longer be viable when it is finally approved. That hope, it seems to me, is a fair inference provable under the uncontested allegations of the defendants’ motives and actions in this case. See Westport Bank & Trust v. Corcoran, Mallin & Aresco, 221 Conn. 490, 495, 605 A.2d 862 (1992) (we read pleadings to encompass, not only the specific facts alleged, but all facts fairly provable under them). Nor is it an answer to this argument that such a delay would be inherent in a good faith denial of a subdivision application, rather than a bad faith and malicious denial. Constitutionally, it is one thing for a citizen, in order *348to vindicate his rights, to be required to undergo the delay inherent in the administrative process resulting from the errors of public officials that are the consequence of evenhanded, if mistaken—even very mistaken—conduct by those officials. That is the price of civilization, to paraphrase Justice Holmes. Compania De Tabacos v. Collector, 275 U.S. 87, 100, 48 S. Ct. 100, 72 L. Ed. 177 (1927) (Holmes, J., dissenting) (“[t]axes are what we pay for civilized society”). Constitutionally, it is a more odious result to have to undergo those delays solely because those officials— who are supposed to be serving all of the public, including the plaintiff—decide to abuse their power by making the plaintiff the target of their animus.
I am not persuaded, moreover, at least not without a lot more research and authority than the opinion provides, that an action for tortious interference with a business expectancy supplies such an adequate remedy. It is far from clear to me that the plaintiff would have had such a claim against these public officials. The case cited by the majority, Blake v. Levy, 191 Conn. 257, 260, 464 A.2d 52 (1983), is not an action against a public official.1 Furthermore, the suggestion that the plaintiff could have brought an action for injunctive relief as an adequate remedy is unpersuasive. By the time he had won his zoning appeal, the harm was done. What was there left to enjoin? And until he had won his zoning appeal, it was far from certain that he had been entitled to the permit all along.
The second Bivens factor is the question of whether there has been explicit legislative direction that no such action should lie. It seems clear to me that there has been no such explicit direction.
*349The third factor is the absence of special factors counselling hesitation. I acknowledge that imposing financial responsibility on the town for the intentionally abusive conduct of its public land use planning officials may be such a factor. Nevertheless, I have several responses. I do not believe that this is a “special” factor counselling prohibition; if financial expense alone were such a factor, then by definition there could never be a Bivens-type action for damages because a successful action for damages means financial expense for the defendants. Furthermore, “hesitation” does not mean absolute prohibition. It implies that we weigh all the factors carefully. Finally, towns are now liable for the wilful and malicious torts of their employees; see General Statutes § 7-101a; and for federal civil rights violations by their land use officials, albeit after a more difficult threshold is passed; see Carr v. Bridgewater, supra; and I do not believe that the incremental liability resulting from the recognition of a Bivens-type action is great enough to require an absolute prohibition.
I disagree, also, with the policy argument made by the majority. The argument is twofold: (1) exposure to liability on the part of local, lay zoning commission members would chill the zeal with which they perform their duties; and (2) the availability of a Bivens-type action would encourage disappointed applicants to sue whenever an application is denied, with deleterious financial effects on the towns, commission members and the courts.
I do not underestimate the potential chilling effect, but I think that the argument is overstated. The same officials are already subject to suit under 42 U.S.C. § 1983, although, as I acknowledge previously, a higher threshold must be mounted for the plaintiff to succeed. Furthermore, other local officials are clearly subject to similar federal civil right actions, both in federal *350court and in our state courts. In those cases; see, e.g., DeLaurentis v. New Haven, 220 Conn. 225, 237, 597 A.2d 807 (1991); there is no high initial threshold as in Carr v. Bridgewater, supra, and yet there is no evidence that such other officials perform their duties with less zeal than is appropriate, simply because they are subject to suit.
Furthermore, I believe that the chilling effect would be “warmed” by a requirement that either: (1) the plaintiff allege and prove malice; or (2) the defendants be entitled to a defense of qualified immunity. See, e.g., DeLaurentis v. New Haven, supra, 243 (“ ‘[t]he presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties’ ”). Moreover, what the majority opinion regards as having a chilling effect is not an unmitigated disaster. It also has the beneficial effect of discouraging out-of-control local officials, as the defendants are alleged to have been here, from abusing their power at the expense of one of their citizenry.
I also think that the “litigation floodgates” argument is overstated. No doubt, there would be more suits than there are now under federal § 1983. But these are, I suspect, expensive cases to litigate and difficult cases to win, particularly with qualified immunity available as a defense. Those difficulties will act as something of a dike against the feared flood of litigation. More significantly, what I propose here is essentially already available in the states following the decisons of the Ninth and Third Circuit Courts of Appeal, and I am not aware of any flood of litigation in the state courts in those parts of the country.2
I also disagree with the suggestion of the majority that a dispute like this should be resolved through *351political channels. Resort to the ballot box is little consolation to a property owner who has already been victimized, to his financial harm, by the abusive conduct of the very officials who are supposed to be representing him, along with everyone else in town.
I recognize that we have no right to expect, in our democratic society, that our local public officials will never make mistakes—even terrible ones—in the performance of their duties. We do have the right, however, to expect that they will not use their positions of authority—even if unpaid and difficult, as are the positions of the defendants in this case—to work against us for malicious motives. I believe that our constitutional due process clause is robust enough to offer a remedy for such conduct, and that our honest local citizens are staunch enough that they will continue to perform their duties in good faith even though someone might later claim, baselessly, that they acted as alleged in this case. I would hold that, if a property owner has been victimized as alleged in this case, our state constitutional due process clause does provide a direct remedy by way of an action for damages.
I would also caution, however, that the source of this decision is the conclusion that the legislature has not supplied an adequate alternative remedy. The fact that we infer a remedy from the due process clause, based upon that inadequacy, necessarily also implies that the legislature can still enter the field and supply such a legislative remedy that would supplant this judicially inferred remedy.
Had the legislature, for example, already enacted a specific statutory remedy aimed at this kind of public conduct—or enacted a more general statute that, as properly applied, supplied a reasonably adequate alternate remedy to a direct action under our due process clause—I would agree with the conclusion reached by *352the majority. The fact that we have, because of this lawsuit, entered the fray before the legislature cannot mean that the legislature is somehow now foreclosed. First in time does not necessarily mean first in right, at least when it comes to the interplay between our legislative and judicial branches, each implementing the due process clause of our state constitution. I suggest, therefore, that the legislature would still be free to do so, and to do so in ways that balance the competing interests—individual and town—more creatively than we can by adjudication, in which there must be a winner and a loser, and in which ordinarily winner takes all.
If, on the other hand, such an action does lie, that undermines the majority’s policy argument that recognition of this cause of action will chill the officials’ zeal to perform their duties. In any event, it seems to me that the question is uncertain enough so as not to be determinative of the issue in this case.
I would be willing, however, to be persuaded otherwise if there were such evidence available.