Eureka V LLC v. Ridgefield, et al

Filing 300

RULING granting 266 Motion for Judgment; denying 291 Motion to Amend/Correct; finding as moot 289 Motion for Order. See Attached Ruling.The Clerk of the Court is instructed to enter Judgment in accordance with this Ruling and close the case. Signed by Judge Holly B. Fitzsimmons on 9/28/2012. (Garcia, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
:
:
:
:
v.
:
:
THE TOWN OF RIDGEFIELD, THE
:
BOARD OF SELECTMEN OF THE
:
TOWN OF RIDGEFIELD, THE BOARD :
OF FINANCE OF THE TOWN OF
:
RIDGEFIELD, THE ECONOMIC
:
COMMISSION OF THE TOWN OF
:
RIDGEFIELD, THE BENNETT‟S
:
FARM DEVELOPMENT AUTHORITY,
:
and BARBARA SERIFILIPPI,
:
IN HER OFFICIAL CAPACITY AS
:
THE TOWN CLERK OF THE TOWN
:
OF THE TOWN OF RIDGEFIELD
:
:
EUREKA V LLC

CIV. NO. 3:02CV356 (HBF)

RULING ON PENDING MOTIONS
Pending before the Court are several motions, including
defendants‟ motion for judgment [Doc. #266], plaintiff‟s motion
for permission to file supplemental memorandum in opposition to
motion for judgment and in support of motion to amend complaint
[Doc. #289], and plaintiff‟s motion to amend/correct the amended
complaint [Doc. #291]. At the outset, the Court terminates as
moot

plaintiff‟s

motion

for

permission

to

file

supplemental

memorandum in opposition to motion. [Doc. #289]. The arguments
set forth in the supplemental

memorandum are

duplicative of

those set out in the motion to amend, which arguments have been
duly

considered

by

the

Court

judgment.

1

in

deciding

the

motion

for

This is an action filed in February 2002 to enjoin the
defendants from taking by eminent domain the plaintiff‟s real
property in Ridgefield, CT and implementing the Bennett‟s Farm
Corporate Park Preliminary Project Plan (“Project Plan”).1 [Doc.
#154, Third Amended Complaint; Doc. #210, Mem. of Dec. Summary
Judgment]. Plaintiff, a real estate developer and owner of 155
acres of property located in the South Parcel of the Bennett‟s
Farm

Property

(“BFP”),

makes

allegations

concerning

the

defendants‟ proposed taking of the South Parcel and/or efforts
to implement the Project Plan. In its Third Amended Complaint,
filed

on

October

17,

2007,

plaintiff

asserted

four

claims

against defendants:
- Count One, to enjoin implementation of the Bennett‟s
Farm Preliminary Project Plan pursuant to Conn. Gen.
Stat. Chapter 132;
- Count Two, to enjoin taking by eminent domain of the
South Parcel;
- Count Three and Count Four, violations of the Fair
Housing Act, 42 U.S.C. §§ 3604 and 3617.
Count Three alleged that defendants‟ use of eminent domain
violated federal law in that it prevented families from moving
into the Town of Ridgefield or sought to prevent the perceived
fiscal consequences of these families moving into Ridgefield.
Count Four alleged that by eliminating the specified residential
uses from the Corporate Development District, the Town sought to

A full recitation of the facts can be found at Judge
Squatrito‟s Memorandum of Decision and Order on the defendants‟
Motion for Summary Judgment. [Doc. #210].
1

2

interfere with and preclude future applications for affordable
housing on the property.
Defendants‟ motion for summary judgment on all counts was
granted

in

part

February 2011.

and

denied

[Doc. #210].

in

part

by

Judge

Squatrito

in

More specifically, Judge Squatrito

granted summary judgment as to Counts Three and Four of the
Complaint, and denied summary judgment as to Counts One and Two.
On May 20, 2011, the parties filed a joint trial memorandum
[Doc. #231] and, shortly thereafter, the case was transferred to
the undersigned for all further proceedings [Doc. #236]. On June
6, 2011, a bench trial was tentatively scheduled to begin on
October 3, 2011. [Doc. #244]. On September 2, 2011, defendants
filed a sealed offer of judgment in which defendants agreed to
the entry of injunctive relief on Counts One and Two without
conceding liability. [Doc. #257]. Plaintiff rejected the offer
on

September

7,

2011.

[Doc.

#261].

On

September

12,

2011,

defendants subsequently moved for judgment on Counts One and
Two. [Doc. #266]. On February 7, 2012, while the motion for
judgment was pending, plaintiff filed a motion to amend/correct
complaint.

[Doc.

#291].

First,

the

Court

addresses

plaintiff‟s motion to amend/correct the complaint.

3

the

I.

RULING ON PLAINTIFF’S MOTION FOR LEAVE TO AMEND AND/OR
SUPPLEMENT THE THIRD AMENDED COMPLAINT [DOC. #291]
Nine years after this action was filed, three and a half

years after the Third Amended Complaint was filed, two and a
half

years

after

the

withdrawal

of

the

Project

Plan,

seven

months after a summary judgment ruling, and four months after
the

parties

evidentiary

submitted

their

objections,

joint

plaintiff

now

trial

memorandum

seeks

to

amend

and
its

complaint in several ways. First, it seeks to add allegations
regarding the Town‟s consideration of and vote to appropriate
funds

to

purchase

an

unrelated

property

from

Schlumberger

Technology Corp. (“Schlumberger property”). Plaintiff maintains
that the Town‟s “collective motive” for acquiring this property
is to prevent affordable housing development and argues that the
“parallels

between

the

Defendants‟

efforts

to

take

Eureka‟s

property by eminent domain and the Defendants‟ acquisition of
the Schlumberger property are striking”. [Doc. #291-1]. Second,
plaintiff
alleged

seeks

plans

applications

to

to
under

add

pursue

allegations
a

moratorium

Connecticut‟s

concerning
against

Affordable

the

defendants‟
filing

Housing

of

Appeals

procedure. Plaintiff argues that this moratorium “may apply to
Eureka‟s site plan applications and could deprive Eureka of the
burden-shifting

benefits

of

Connecticut‟s

affordable

housing

statute”. [Doc. #291-1 at 3]. Third, plaintiff seeks to add
allegations concerning the Town‟s withdrawal of the Project Plan

4

in 2009, within weeks of the case becoming trial ready. Fourth,
plaintiff seeks to expand the injunctive relief sought and to
add a declaratory judgment count pertaining to the Town‟s future
actions vis-à-vis affordable housing on Eureka‟s property.
Defendants oppose plaintiff‟s motion to amend, arguing that
the amendments should be denied as improper, futile and unduly
prejudicial. Defendants argue that Eureka is seeking to amend
“because Eureka is desperately looking for a way to force trial
so that it can have an opportunity for a finding of bad faith to
somehow be used as a sword against land use boards that are not
even parties to this lawsuit.” [Doc. #275 at 4]. In support of
their

opposition,

defendants

have

provided

the

affidavit

of

First Selectman Rudolph P. Marconi. [Doc. #298-1 at 13-18].
A.

LEGAL STANDARD

Federal Rule of Civil Procedure 15(a) provides that any
time after a responsive pleading is served, a party must seek
leave from the court to amend a pleading. Fed. R. Civ. P. 15(a).
Rule 15(a)(2) specifically states that the “court should freely
give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2).
However, in Foman v. Davis, 371 U.S. 178 (1962), the Supreme
Court

stated

that

denial

of

a

Rule

15(a)

motion

may

be

appropriate in instances of “undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice

5

to the opposing party by virtue of allowance of the amendment,
futility of the amendment, etc. . . .” Id. at 182.
Federal Rule of Civil Procedure 15(d) provides that the
“court

may,

on

just

terms,

permit

a

party

to

serve

a

supplemental pleading setting out any transaction, occurrence,
or event that happened after the date of the pleading to be
supplemented.” Fed. R. Civ. P. 15(d). “Rule 15(d) allows a party
to

supplement

the

complaint

in

order

to

present

subsequent

material that is related to the claims presented in the original
complaint.”

Scottish

Air

Int‟l,

Inc.

v.

British

Caledonian

Group, 751 F. Supp. 1129, 1133 (S.D.N.Y. 1990), rev‟d on other
grounds,

945

F.2d

53

(2d

Cir.

1991)

(citations

omitted).

“Matters stated in a supplemental complaint should have some
relation to the claim set forth in the original pleading.” Id.
at 1133 (citing 3 Moore's Federal Practice ¶15.16[3], at 15–183
(2d Ed. 1989)). See also Quaratino v. Tiffany & Co., 71 F.3d 58,
66 (2d. Cir. 1995) (“[L]eave to file a supplemental pleading
should be freely permitted when the supplemental facts connect
it to the original pleading.”) (citations omitted).
The decision to grant or deny a Rule 15(a) motion to amend
or a 15(d) motion to supplement is within the sound discretion
of the district court. Foman, 371 U.S. at 182; Scottish Air, 751
F. Supp. at 1133.

6

B.

DISCUSSION
1.
Undue delay,
failure to cure
a)

bad

faith,

or

dilatory

motive,

Schlumberger property

Plaintiff, faced with an offer of compromise and motion for
judgment which would resolve all remaining claims, seeks to add
over twenty new factual allegations concerning the Town‟s effort
to purchase the Schlumberger property. Plaintiff argues that
public

records

from

2011

show

that

the

Town‟s

intent

in

acquiring the Schlumberger property was to stop a potential 290unit affordable housing development.
The allegations concerning the Schlumberger property, even
if taken as true, have no relation to the plaintiff‟s case over
the BFP.

Plaintiff has absolutely no stake in the Schlumberger

property, or standing to assert claims against the Town with
respect

to

the

acquisition

of

the

Schlumberger

property.

Factually, the Town‟s actions with regard to the BFP and the
Schlumberger Property are also distinguishable; the Town sought
to purchase the Schlumberger Property versus the Town‟s effort
to take by eminent domain the South Parcel of the BFP. Further,
as

First

Selectman

Marconi

states

in

his

declaration,

the

Schlumberger property differs from the BFP in size, location and
intended use. [Doc. #298-1 at 15-16].
Moreover, the Court granted defendants summary judgment on
the Fair Housing Act claims, further narrowing the scope of
7

claims and evidence to be considered at trial. Specifically,
Judge Squatrito held that the defendants‟ conduct in trying to
use eminent domain to implement the Project Plan and in creating
the

New

Regulations

failed

to

have

a

disparate

impact

on

families with school-age children. The Court further examined
statements by “members of the Decision-making body, minutes of
its

meetings,

or

reports”

to

determine

whether

invidious

discrimination was a motivating factor in the Town‟s decision
[Doc. #210 at 38] and found that plaintiff failed to establish a
link between those statements and “evidence that animus against
families with school-age children was a significant factor in
the decision of the Defendants to seek to take the Bennett Farm
Property by eminent domain or to implement the New Regulations.”
[Doc. #210 at 38]. The plaintiff‟s attempt to resurrect Counts
Three

and

Four,

by

inserting

allegations

over

an

unrelated

property which the Town sought to purchase, is improper.
Plaintiff

argues

that

these

additional

allegations

are

related in that the public records discussing the Schlumberger
acquisition specifically reference the Bennett‟s Farm Property
and the resulting litigation.

Indeed, public

officials and

residents in their discussions over the potential acquisition of
the Schlumberger property do reference the BFP. Neither the town
nor its officials are precluded from drawing on their experience
with the BFP when confronted with issues over real property. Any

8

comments about affordable housing developing on the Schlumberger
property have no bearing on the outcome of this case, especially
now that the Fair Housing claims are dismissed. The Court finds
that the Schlumberger property allegations are unrelated and
brought by plaintiff in bad faith to unnecessarily delay the
disposition of this case.
b)
Plaintiff

Withdrawal of Project Plan

seeks

to

add

allegations

pertaining

to

the

defendants‟ withdrawal of the Project Plan in April of 2009.
Plaintiff argues that the Town‟s justification for withdrawing
the Project Plan -that the Connecticut legislature amended the
statute governing municipal project plans- was a sham because
the amended statute was not retroactive to plans in existence.
Rather, plaintiff argues, the withdrawal of the Project Plan was
entirely litigation motivated and designed to allow defendants
to argue that Eureka‟s claims were moot, further undermining
Eureka‟s affordable housing project.
Setting aside the Town‟s motivation for the withdrawal of
the Project Plan, plaintiff‟s effort to add events that took
place

three

years

prior

to

its

motion

to

amend

cannot

be

sanctioned by this Court. Even if plaintiff‟s theory were true,
it has not offered any justification for the delay in seeking to
amend the complaint. Plaintiff‟s effort to insert allegations
three years after they occurred, when faced with the prospect of

9

a full resolution of the case, is no more supportable than
plaintiff‟s

contention

that

defendants‟

withdrawal

of

the

Project Plan was done in bad faith.
In light of the defendants‟ proffer that the Project Plan
was

withdrawn

in

response

to

the

Connecticut

legislature‟s

amendment of C.G.S. §8-189, and because the Project Plan was
seven years old and the declining economy had changed the Town‟s
desire to pursue the plan as originally conceived [Doc. #298-1,
Marconi Dec. at 16-17, ¶ 11], this proposed allegation does not
add

much

to

the

plaintiff‟s

case

on

the

Town‟s

motivation.

Defendants‟ willingness to consent to the entry of an injunction
prohibiting the taking of the property for any reason for ten
years undercuts the claim that defendants‟ withdrawal of the
Project Plan was done in bad faith. The Court finds that the
allegations over the withdrawal of the Project Plan are unduly
delayed and brought by plaintiff in bad faith to unnecessarily
delay the disposition of this case.
c)

Affordable Housing Moratorium

Plaintiff seeks to supplement its complaint by citing the
Town‟s effort to qualify for a moratorium pursuant to Conn. Gen.
Stat. § 8-30g(1). Plaintiff argues that
Eureka‟s site plan application would be filed under
Connecticut‟s
Affordable
Housing
Appeals
procedure,
Connecticut General Statute § 8-30g, and the Defendants
likely would claim it is covered by the moratorium. This is

10

yet another flagrant attempt by the Defendants to delay or
stop Eureka‟s affordable housing development.
[Doc. #291 at 5, ¶13].
Defendants counter that in the summer of 2011, aware that
other municipalities had qualified for a moratorium, the Town
sought

to

avail

itself

of

the

statute

which

allows

“a

municipality to apply for a moratorium if 2% of its housing
stock qualifies as affordable housing”. [Doc. #298-1 at 17, ¶
13]. Notably, defendants attest that “at no time did the Town
believe or intend, and the Town does not now believe or intend,
that a future moratorium could affect Plaintiff‟s affordable
housing plans with respect to the Eureka Property.” [Id. ¶ 14].
Any concerns of bad faith on the part of the defendants are
allayed

by

the

Town‟s

willingness

to

consent

to

a

judgment

providing that any such moratorium could not be applied to land
use applications filed, or to be filed, in connection with the
development of the Eureka Property. The Court finds that the
request to add allegations concerning the affordable housing
moratorium

are

speculative

and

brought

by

unnecessarily delay the disposition of this case.

11

plaintiff

to

d)
Additional Injunctive Relief and Declaratory
Judgment Count
Plaintiff seeks to add claims for additional injunctive
relief

and

an

additional

Plaintiff

seeks

defendants

were

a
and

list

count
of

are

for

declaratory

declarations,

unalterably

judgment.

including

opposed

to

that

Eureka‟s

affordable housing plans; defendants acted in bad faith and for
the improper purpose of stopping affordable housing on Eureka‟s
property; the defendants abused the sovereign power of eminent
domain in seeking to take Eureka‟s property to stop affordable
housing;

the

defendants

concocted

a

facially

valid

but

pretextual basis to take the property by eminent domain; the
defendants
rights;

violated

the

Eureka‟s

defendants‟

Fifth

history

of

and

Fourteenth

misconduct

Amendment

includes

the

withdrawal of the Project Plan, the statements and actions in
acquiring the Schlumberger property, and the proposed Affordable
Housing Moratorium; the defendants do not have the right to
utilize eminent domain to take the South Parcel for any reason;
the defendants must negotiate in good faith any and all intermunicipal

agreements

required

for

Eureka

to

complete

its

affordable housing project; and the defendants must exercise
good faith in all future dealings with Eureka concerning its
affordable housing project.
The additional injunctive relief sought and all but a few
declarations relate back to facts in existence when the case was

12

filed in 2002. Plaintiff has not offered any reason for the
failing

to

add

these

allegations

or

this

additional

count

earlier or any excuse for the undue delay. Thus, as stated
previously, given the history of this case, the Court is led to
conclude that plaintiff‟s intent in adding the additional claims
for relief is dilatory.
2.

Undue Prejudice

The Court finds that permitting the plaintiff‟s proposed
amendment would unduly prejudice the defendants. “In gauging
prejudice,

we

consider,

amendment

would

„require

among
the

other

opponent

factors,
to

expend

whether

an

significant

additional resources to conduct discovery and prepare for trial‟
or „significantly delay the resolution of the dispute.‟” Ruotolo
v. City of New York, 514 F.3d 184, 192 (2d Cir. 2008) (quoting
Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir.1993)).
“Undue prejudice arises when an „amendment [comes] on the eve of
trial and would result in new problems of proof.‟” Ruotolo, 514
F.3d

at

192

(quoting

State

Teachers

Retirement

Bd

v.

Fluor

Corp., 654 F.2d 843, 856 (2d Cir. 1981) (reversing denial of
leave to amend sought promptly after learning new facts, where
“no trial date had been set by the court and no motion for
summary judgment had yet been filed by the defendants” and where

13

“the

amendment

will

not

involve

a

great

deal

of

additional

discovery”)).
Here, plaintiff had the benefit of reviewing and rejecting
defendants‟ offer of compromise, in which defendants agreed to
the entry of injunctive relief without conceding liability, and
then reviewing and opposing the defendant‟s motion for judgment.
When faced with the possibility of a case that has resolved or
become moot, plaintiff sought to insert unrelated allegations
and an additional cause of action for declaratory relief that
could have been brought at the inception of this case or, at the
latest, prior to the filing of dispositive motions.
Plaintiff‟s new allegations and cause of action come on the
eve of this Court‟s ruling on defendants‟ motion for judgment
which, as set forth below, disposes of the case. Not only would
allowing the amendment require defendants to conduct discovery
on the facts alleged and new claims asserted, it would further
delay

the

disposition

of

this

case,

which

the

Court

deems

resolved in light of defendants‟ willingness to consent to the
relief sought by plaintiff. See AEP Energy Servs. Gas Holding
Co.

v.

Bank

(prejudice

of

Am.,

resulting

626
from

F.3d

699,

proposed

725-727

(2d

Cir.

2010)

amendment

is

among

most

important reasons to deny leave to amend; leave was properly
denied when impact of added claim would have been substantial,
delaying resolution of dispute and requiring defendant to expend

14

significant additional resources to defend). The Court cannot
fathom a greater prejudice to a non-moving party, especially in
light

of

this

Court‟s

intention

to

grant

the

motion

for

judgment.
For these reasons,

the Court finds that the amendments

proposed are futile, unduly delayed, brought in bad faith and
would unduly prejudice the defendants. As such, the Court denies
plaintiff‟s motion to amend its complaint to add allegations
concerning the Schlumberger property, the moratorium, and the
withdrawal
declaratory

of

the

relief;

Project
and

Plan;

additional

relief.

15

an

additional

requests

for

count

for

injunctive

II.

RULING ON DEFENDANTS’ MOTION FOR JUDGMENT [DOC. #266]
Defendants move for judgment on Counts One and Two. [Doc.

#266].

Defendants argue that the Court has the authority to

enter an injunction in favor of Eureka without making underlying
findings of liability, and contends that this offer exceeds the
relief that Eureka could obtain if it prevailed at trial.

In

the alternative, if the Court is not inclined to enter judgment,
defendants

request

an

evidentiary

hearing

on

the

issue

of

whether this case is moot in light of the fact that the Project
Plan has been withdrawn, there is no evidence that the Town of
Ridgefield has any intention of taking Eureka‟s property, and
the

Ridgefield

Planning

&

Zoning

Commission

has

approved

affordable housing for Eureka‟s property.
As set forth earlier, defendants filed a sealed offer of
judgment on September 2, 2011, in which defendants agreed to the
entry

of

injunctive

relief

without

conceding

liability.

Plaintiff rejected the offer on September 7, 2011. [Doc. ##257,
261].

Defendants now request that the Court enter judgment in

accordance with that offer of judgment.

A bench trial scheduled

for October 3, 2011, was continued in light of this pending
motion. [Doc. ##244, 269].

16

A. Counts One and Two: Relief Sought
In the joint trial memorandum, plaintiff made the following
statement regarding the nature of each cause of action and the
relief sought. [Doc. #231 at 3-4].
Simply put, this is an action, inter alia,
to: (i) enjoin the Town Defendants2 from
implementing the Bennett‟s Farm Corporate
Park Preliminary Project Plan (First Count)
and (ii) enjoin the Town Defendants from
taking by eminent domain the Plaintiff‟s
153± acre property located in Ridgefield,
Connecticut (Second Count).
In Count One, plaintiff alleges that the
Town Defendants‟ proposed implementation of
the Preliminary Project Plan violates §§7136 and 7-148 and Chapter 132 of the General
Statutes, does not constitute a bona fide
plan for a municipal development project,
constitutes a bad faith exercise of the
authority granted to municipalities by these
statutes,
and
is
unreasonable
and
unnecessary.
In Count Two, plaintiff
alleges that the intended condemnation of
the parcel violates the Fifth and Fourteenth
Amendments to the United States Constitution
and Article First, §11, of the Connecticut
Constitution, in that it is not being
carried out to serve a public use, and that
the intended condemnation constitutes a bad
faith, unreasonable and unnecessary exercise
of the eminent domain power.
The
Plaintiff
seeks
(a)
a
permanent
injunction, whereby the Town Defendants, and
2

The “Town Defendants” are the Town of Ridgefield, its
Selectmen, Board of Finance, and Economic Development Commission
(“EDC”), the Bennett‟s Farm Development Authority (“BFDA”), and
Barbara Serfilippi, the Ridgefield Town Clerk.
The other
defendant is the Planning and Zoning Commission of the Town of
Ridgefield
(collectively
with
the
Town
Defendants
the
“Defendants”).

17

their agents, representative, employees and
assigns,
are
permanently
enjoined
and
restrained from implementing the “Bennett‟s
Farm Corporate Park Preliminary Project
Plan” as adopted by the BFDA on February 6,
2002 and the legislative body of Ridgefield
on February 13, 2002; (b) a permanent
injunction, whereby defendants, and their
agents,
representatives,
employees
and
assigns, are enjoined and restrained from
taking any actions in furtherance of taking
the property by eminent domain; and (c) any
such additional relief as the Court deems
just and proper.
[Doc. #231 at 3-4 (emphasis in original)].3
In
tracks
above.

the
the

Third

Amended

language

Complaint,

included

in

the

the

prayer

joint

trial

for

relief

memorandum

[Third Amend. Compl., Prayer for Relief (e), Doc. #154

at 41-42].
Count Two at paragraph (f) seeks a permanent injunction to
enjoin and restrain defendants, their agents, representatives,
employees and assigns from taking any of the following actions
with respect to the South Parcel “in furtherance of its taking
by eminent domain.”

4

3

Eureka states in its memorandum in opposition to
defendants‟ motion for judgment, “In essence, the First Count
seeks preliminary and permanent injunctive relief to stop
implementation of the Project Plan and the Second Count seeks
preliminary and permanent injunctive relief to enjoin Ridgefield
from taking the South Parcel.” [Doc. #271 at 9].
4

Count Two of the Third Amended Complaint, entitled “To
Enjoin Taking by Eminent Domain of the South Parcel,”
incorporates by reference all the allegations of the First
Count. [Doc. #154 at 34]. Plaintiff alleges in Count Two, among
other things, that defendants‟ “intended condemnation of the
South Parcel” violates the law, in that the condemnation is not
18

(i)

filing a statement of compensation or a
deposit with the Clerk of the Superior
Court pursuant to Conn. Gen. Stat. §§7136, 7-148, 8-129, 8-130, 8-193, or
Chapters 132 or 588;

(ii) recording
such
a
compensation in the
Ridgefield Town Clerk;

statement
office of

of
the

(iii)filing a return of notice with the
Clerk of the Superior Court;
(iv) obtaining a certificate of taking from
the Clerk of the Superior Court;
(v)

recording a certificate of taking in
the office of the Ridgefield Town
Clerk; or

(vi) any other action to take the referenced property
by eminent domain.
[Third Amend Compl., Prayer for Relief (f), Doc. #154 at 42].

being carried out to serve a public use or purpose, in one or
more of the following respects: (a) the Project Plan violates
Connecticut law, does not constitute a bona fide plan and
violates plaintiff‟s rights to procedural due process; (b) “even
if the Project Plan complied procedurally with applicable law,”
defendants seek to turn over the South Parcel to a private
developer or business in preference to plaintiff for private
business use; . . . (d) “the prevention of affordable housing is
not a proper purpose;” (e) “the exclusion from the Town of
Ridgefield of . . . housing for families with school-aged
children is not a proper purpose;” . . . [Doc. #154 ¶105]; and
defendants‟ intended condemnation constitutes bad faith and
unlawful exercise of municipal power of eminent domain because
“the preparation, review and approval of the Preliminary Project
Plan were a sham and an unlawful pretext to take control of the
property from Eureka and stop its development and affordable
housing plans.” [Doc. #154 ¶106 (e)].

19

On April 3, 2009, the EDC withdrew the Project Plan and, at
a Special Town Meeting on April 14, 2009, Ridgefield‟s residents
voted to withdraw the Project Plan. [Doc. #231 at 4].
Pending State Court Appeal
On April 25, 2007, Eureka filed an application with the
Ridgefield

Planning

Application”).

and

Zoning

Commission

(the

“2007

Pursuant to Connecticut General Statute §8-30g,

Eureka sought approval of a zoning text amendment and map, to
add a Housing Opportunity Development Zone (“HOD Zone”) to the
Ridgefield Zoning Regulations and change the zone of the subject
property from a Corporate Development District (“CDD Zone”) to
the HOD zone.

Id. at 2010 WL 4609391, *1.

Eureka submitted a

conceptual site plan for development of the property, but did
not request site plan approval.5 Id. at 2010 WL 4609391, *1.

On

February 12, 2008, the Ridgefield Planning and Zoning Commission
agreed to amend the zoning map to show properties designated as
eligible for the Housing Opportunity Development (“HOD”) Overlay

5

Originally, the site plan depicted 509 homes on the 153
acres, with a proposed density of 14 homes per acre. Id. at 2010
WL 4609391, *1. On November 13, 2007, after public hearing the
Commission approved a modified proposed HOD regulation, a
modified proposed change to the State Plan of Conservation and
Development and denied the application for a zone change because
the HOD Zone Regulation approved by the commission was an
overlay zone. 2010 WL 4609391, *1. On December 6, 2002, Eureka
resubmitted a modified application for changes to the HOD
Regulation and for a change to the zoning map adding an overlay
zone on top of the existing CDD Zone.
2010 WL 4609391, *2.

20

Zone with modifications of the HOD Zone Regulations.6 Eureka v.
Ridgefield

Planning

and

Zoning

Commission,

No.

CV084018175S,

2010 WL 4609391, *1 (Conn. Super Ct. Oct. 20, 2010).
appealed

to

the

4609391, *1.

Connecticut

Superior

Court.

Id.

Eureka

at

2010

WL

The subject of the Superior Court appeal was

limited to the zoning text and map amendment in response to the
Commission‟s modifications to Eureka‟s resubmitted application.7
Id.

On

October

20,

2010,

the

Court

ruled

in

favor

of

the

Commission in precluding development of housing or sewer within
the

Saugatuck

Watershed

land.8

The

Court

found

in

favor

of

6

Specifically, the Commission‟s response to Eureka‟s
resubmission: “(1) set a maximum density of two dwellings per
acre and prohibited development in the Saugatuck Watershed; (2)
made no change to the commission‟s original approval of the
utilities section which required all dwelling units within the
HOD to be served by the Town of Ridgefield public water and
sewer and prohibited the placement of sewer lines within the
Saugatuck Watershed; (3) set the maximum percentage of three
bedroom units at 30% and barred four bedroom units; (4) made no
change to the original seventy percent age restriction; and (5)
made no change to the originally required one hundred foot side
and rear set backs.” 2010 WL 4609391, *2.
7

“Specifically, Eureka challenge[d] the commission‟s
decision with respect to five issues: (1) the allowable density
of the development and the prohibition of development on the
sixty-seven acres of the Saugatuck Watershed; (2) the
requirement to connect the housing development to the Ridgefield
public sewer system; (3) the age restriction requiring that
seventy percent of the development be dedicated to senior
housing; (4) the prohibition of the construction of four bedroom
homes and cap on the number of three bedroom homes; and (5) the
requirement of one hundred foot side and rear yard setbacks.”
2010 WL 4609391, *2.
8

Sixty-seven acres of the South Parcel are located in the
Saugatuck Public Water Supply Watershed (“Saugatuck Watershed”).
Eureka v. Ridgefield Planning and Zoning Commission, No.
21

Eureka on the remaining issues,

directing

that

the modified

application be approved under “reasonably justified terms and
conditions.” Id. at 2010 WL 4609391, *7.

Eureka filed an appeal

on February 8, 2011. The case was heard by the Connecticut
Appellate Court on February 16, 2012. Supplemental briefing was
filed

on

July

27,

2012.

No

decision

has

yet

been

filed.

http://appellateinquiry.jud.ct.gov/CaseNameInq.aspx, Eureka

v.,

LLC v. Ridgefield P & A Commission et al, AC 33125 (last visited
September 25, 2012).
B. Offer of Judgment
Defendants move that judgment enter for the plaintiff on
Counts One and Two as follows:
Defendants, their agents, representatives,
employees
and
assigns,
are
permanently
enjoined from implementing the Bennett‟s
Farm Corporate Park Preliminary Project Plan
as adopted by the Bennett‟s Farm Development
Authority on February 6, 2002 and the
legislative body of Ridgefield on February
13, 2002, and as amended. Defendants, their
agents,
representatives,
employees
and
assigns are further enjoined from exercising
eminent domain to acquire property now owned
by Plaintiff, consisting of a 155 - acre
tract located to the south of Bennett‟s Farm
Road in Ridgefield, for any reason, for a
period of ten years from the entry of
judgment herein. Judgment is entered with no
finding or concession of liability but
rather is based on defendants‟ consent.
Costs which have accrued, if any, shall be
CV084018175S, 2010 WL 4609391, *1 (Conn. Super Ct. Oct. 20,
2010).

22

determined by the Court after final judgment
is entered.
[Doc. #266]. Eureka rejected this offer on September 7, 2011,
and opposes the entry of judgment in its favor now.
1. Authority to Enter an Injunction
Underlying Findings of Liability

Without

Making

Defendants argue that this Court has the authority to enter
judgment in favor of Eureka without making underlying findings
of liability, contending that a trial for the purpose of making
liability findings “is simply not warranted where, as here, the
defendant has consented to a judgment that would provide the
plaintiff with more relief than it could obtain at trial.” [Doc.
#266-1 at 7].
In Chathas v. Local 134 IBEW, defendants submitted an offer
of judgment consenting to the entry of a permanent injunction
without admission of liability. 233 F.3d 508, 511 (7th Cir.
2000), cert. denied, 533 U.S. 949 (2001). Plaintiffs rejected
the

offer

and

defendants

moved

for

entry

injunction under Fed. R. Civ. P. 68.9 Id.

of

a

permanent

The district court

entered the injunction and, thereafter, defendants moved the
district court to dismiss the suit as moot. Id.
objected,

arguing

that

they

were

9

entitled

to

a

Plaintiffs
declaratory

The Court of Appeals noted that, “Rule 68 offers are much
more common in money cases than in equity cases, but nothing in
the rule forbids its use in the latter type of case.” Chathas,
233 F.3d at 511 (citing cases).

23

judgment

or

at

least

to

a

finding

in

or

accompanying

the

permanent injunction that the defendants had violated the law.
Id.

At the same time, the plaintiffs asked for leave to amend

their complaint to add a claim.

The court granted the motion to

dismiss the suit “on the ground that the entry of the permanent
injunction had eliminated the controversy between the parties
except

insofar

concerned.”

as

Id.10

the

request

to

amend

the

complaint

was

The district court denied the motion to

amend and plaintiffs appealed, renewing the arguments that they
were entitled to a finding of illegality.
A winning party cannot appeal merely because
the court that gave him his victory did not
say things that he would have liked to hear,
such as that his opponent is a lawbreaker .
. . . Nor can a party force his opponent to
confess to having violated the law, as it is
always open to a defendant to default and
suffer judgment to be entered against him
without his admitting anything-if he wants,
without even appearing in the case.

10

It is noted that the Chathas court addressed the appeal
from the denial of declaratory relief independently of the
appeal from the district court‟s denial of leave to amend.
Chathas, 233 F.3d at 511. Finding that “the question whether to
bar an amendment to the complaint because of undue delay is
committed to the discretion of the district court,” the Chathas
court held that the district court did not exercise any
discretion as it denied amendment on the “sole ground that the
claim sought to be added did not state a claim.” The appeal on
denial of leave to amend the complaint was remanded to the
district court to enable the judge to make the “required”
discretionary finding. Chathas, 223 F.3d at 514.

24

The Chathas court went on to say,
if the defendant has thus thrown in the
towel there is nothing left for the district
court to do except enter judgment. The
absence
of
a
controversy
in
the
constitutional sense precludes the court
from issuing an opinion on whether the
defendant actually violated the law.
Such
an opinion would be merely an advisory
opinion, having no tangible, demonstrable
consequence, and is prohibited.
Id. at 512 (citations omitted).
The Seventh Circuit held that, “[a]lthough Rule 65(d) does
require that the order granting the injunction „set forth the
reasons

for

its

issuance,‟

they

need

not

take

the

form

of

findings that the defendant violated the law. The reason for the
injunction might simply be that the defendant had consented to
its entry . . . .” Id. at 513.

The district court entered the

permanent injunction, drafted by plaintiffs, providing all they
were entitled to with the exception of a finding of liability
and

the

Circuit

Court

found

such

a

finding

was

prerequisite to the issuance of a valid injunction.”

“not

a

Id. at

513.
2.

Injunctive Relief Offered by Defendants

Eureka does not challenge defendants‟ position that this
Court

has

the

authority

to

enter

judgment

without

making

findings of liability. Rather, Eureka argues that the motion for
judgment

should

be

denied

because

25

the

offered

relief

is

inadequate.
critical

[Doc.

inquiry

#271
for

at

the

15].
Court

Eureka
in

contends

evaluating

a

that

“the

motion

for

judgment based upon a Rule 68 offer of judgment is whether, in
fact, the offering party has shown definitively that the offer
is the maximum that the party could possible obtain at trial.”11
[Doc. #271 at 16-17 (emphasis in original)].

Plaintiff cites no

authority for this expansive proposition.
Defendants argue that, “Eureka has failed to demonstrate
that defendants‟ offer of judgment does not provide Eureka with
all the relief it could obtain if it prevailed at trial, based
on the harm Eureka has alleged.” [Doc. #275 at 4 (emphasis
added)]. The Court agrees that the Third Amended Complaint does
not allege any specific action that defendants have taken to
stop affordable housing on the South Parcel other than actions
related to the Project Plan.

Indeed, all of Eureka‟s factual

proposed findings and conclusions of law relate to the subject
matter of the Project Plan. [Doc. #231].
3.

Injunctive Relief Sought by Eureka

Eureka states that, “In essence, the First Count seeks
preliminary

and

permanent

injunctive

11

relief

to

stop

In plaintiff‟s sur-reply brief, Eureka states that the
“dispositive issue is whether the Court can definitively decide
at this juncture that the defendants, in the Motion for
Judgment, have offered the plaintiff all of the relief it might
possibly obtain if successful at trial.” [Doc. #283 at 1
(emphasis added, italics in original)].

26

implementation of the Project Plan and the Second Count seeks
preliminary and permanent injunctive relief to enjoin Ridgefield
from taking the South Parcel.” [Doc. #271 at 9]. The basis of
Eureka‟s argument that it can recover more than is offered by
defendants is that the available relief is not limited to the
four corners of the complaint or prayer for relief in the Third
Amended

Complaint

and,

ultimately,

the

Court

has

the

broad

discretion to award appropriate injunctive and other relief.
Specifically, Eureka seeks a permanent injunction against
taking

the

South

Parcel

“for

any

reason”

as

well

as

the

following relief:
-

an injunction precluding the Defendants,
their agents, representatives, employees and
assigns, from taking any other actions to
delay, impede or interfere with Eureka‟s
affordable housing project.

-

an affirmative injunction obligating the
Defendant, their agents, representatives,
employees
and
assigns,
including
specifically the Board of Selectman and
Board of Finance, to support Eureka‟s plans
before any and all state, local or federal
boards, commissions or agencies that will
review any aspect of the plan.

-

a declaratory judgment that the Defendants
violated Eureka‟s constitutional rights by
blocking its affordable housing project in
bad faith through the improper use of
eminent domain.

[Doc. #271 at 21-22 (emphasis added)].

Eureka contends that it

should be “clear by now” that the “wrongful conduct at issue in
this case is not simply the Project Plan, but rather is the

27

broader scheme of conduct to stop affordable housing on the
South Parcel.” [Doc. #271 at 24].

Eureka contends there is a

“host of ways” that defendants “wish to be free to undermine or
sabotage Eureka‟s affordable housing plans in other ways.” [Doc.
#283 at 2].
- one of the primary options for provision of sewer
service to the property is for Eureka to connect to
Danbury‟s Wastewater Treatment Plant, which was designed
at the State‟s request to have excess capacity for
neighboring communities like Ridgefield. This would
require an inter-municipal agreement between Ridgefield
and Danbury, which the Board of Selectman could refuse
to negotiate or execute in order to stop the affordable
housing project.
- a second option for sewer service requires expansion of
Ridgefield‟s existing Route 7 sewer treatment plan; the
Board of Selectman and Board of Finance could oppose
those efforts for the improper purpose of stopping
Eureka‟s affordable housing plans.
- The Ridgefield Water Pollution Authority (“WPCA”) will
be integrally involved in Eureka‟s efforts to obtain
sewer and water for the site. Ridgefield‟s First
Selectman,
defendant
Rudy
Marconi,
one
of
the
masterminds of the town‟s eminent domain approach and a
vocal critic of the State‟s affordable housing laws,
sits ex officio on the WPCA. As such, he has the power
to improperly cause the WPCA to interfere, impede or
stop Eureka‟s project.
- Ridgefield
could
amend
its
regulations to delay, impede,
project.

zoning
or
permitting
or interfere with the

[Doc. #283 at 2 (emphasis added)].
The

Court

declines

to

exercise

its

discretion

to

bar

defendants from taking the South Parcel for “any reason” for an
indeterminate amount of time or barring “any other actions” or

28

“obligating” defendants to support Eureka‟s plans, nor will the
Court enjoin defendants from taking actions they “could” take
but

have

not

determination

taken.

that

“Ripeness

courts

should

doctrine
decide

reflects
only

„a

the
real,

substantial controversy,‟ not a mere hypothetical question.” 13B
Charles Alan Wright, Arthur M.

Miller,

Federal Practice and

Procedure §3532.2 (3d ed. 2011) (quoting Longway v. Jefferson
County Bd. of Sup‟rs, 24 F.3d 397, 400 (2d Cir. 1994)).

Some

“events that are anticipated with alarm are simply too remote to
justify decision.”

Id.

This is true when “events that once

presented a ripe controversy have ceased to have any continuing
impact, and the prospect of renewal is speculative” and/or the
“claim involves uncertain and contingent future events that may
not occur as anticipated, or indeed may not occur at all.”

Id.

“Accordingly, „a plaintiff who seeks to challenge exclusionary
zoning

practices

must

allege

specific,

concrete

facts

demonstrating that the challenged practices harm him, and that
he personally would benefit in a tangible way from the Court's
intervention.‟” Town of Bethel v. Howard, 198 F.3d 235, 1999 WL
973627, *3 (2d Cir. Sept. 30, 1999) (quoting Warth v. Seldin,
422 U.S. 490, 508 (1975)); 13B Federal Practice and Procedure
§3532.3

(“The

value

of

not

deciding

is

affected

by

the

relationships of the federal judiciary with other branches of
the federal government and with state institutions, the need to

29

conserve

judicial

resources,

and

the

risk

that

premature

decision may be proved unwise as facts are more fully developed
and as more minds consider the question.”).
There is clearly room to disagree about future events and
actions defendants may or could take. The parties have a pending
zoning appeal in state court and Eureka can come up with a “host
of ways” that defendants “could delay, interfere, impede, or
stop

Eureka‟s

affordable

2(emphasis

added)].

defendants

will

not

housing

There
act

is

plans.”
a

illegally.

clear
13B

[Doc.

#283

possibility

Federal

at
that

Practice

&

Procedure §3532.3 (“An extreme illustration of the need to await
development of state law is reflected in the refusal to consider
the validity of public actions that have not yet been taken.”).12
12

Citing Chacon v. Granata, 515 F.2d 922, 924-926 (5th Cir.
1975), cert. denied, 423 U.S. 930 (1975). In Chacon, the
plaintiffs, who owned property near an Air Force base, filed
suit to challenge annexation of the property by the City of San
Antonio minutes after passage of the annexation ordinance. Their
claim was that annexation was simply a first step in a scheme to
deprive them of use of their land without just compensation,
either by arbitrary zoning or eminent domain proceedings to be
initiated after the annexation had depressed the value of the
property. Although there was evidence that the purpose of the
anticipated zoning or condemnation would be to prevent uses of
the land that would interfere with aircraft operations, the
court found the challenge to merely anticipated actions was not
ripe. Any injury that might be suffered could be remedied in the
future. It must be presumed that legislative action not yet
taken would respect constitutional rights, and in any event it
would not be possible to predict the contours of the predicted
ordinances, nor judicial interpretation and administrative
application. “Under these circumstances the injury plaintiffs
fear about future zoning ordinances is not imminent.” Id. at
925.

30

This

forecast/prediction

by

Eureka

which

anticipates

future

events or “further efforts by the defendants intended to stop or
delay Eureka‟s affordable housing development” is speculative at
best. [Doc. #283 at 2]; Chacon v. Granata, 515 F.3d at 924-25
(“Taking all of plaintiffs‟ contentions as true, the annexation
by itself is nothing more than an inchoate wrong that may never
ripen.”). “[W]here a history of legal violations is before the
district

court,

that

court

has

significant

discretion

to

conclude that future violations of the same kind are likely.
Courts

are

free

to

assume

that

past

misconduct

is

highly

suggestive of the likelihood of future violations.” Kapps v.
Wing, 404 F.3d 105, 123 (2d Cir. 2005)(internal citations and
quotation

marks

omitted)(finding

“ample

evidence

before

the

district court of prior violations.”).

Plaintiff has not made

this

declines

showing

and

the

Court

expressly

to

grant

the

expansive relief requested. The Court finds that defendants‟
offer of judgment provides plaintiff with broader relief than
the mere

entry

of

an injunction prohibiting defendants from

taking Eureka‟s property to implement the Project. Defendants
consent to the entry of an injunction prohibiting them from
taking Eureka‟s property for any reason for a period of ten
years.

See Chathas, 223 F.3d at 512.

The Court finds the terms

of the offer of judgment appropriately tailored to redress the

31

legal

violations

alleged

by

plaintiff,

and

resolve

the

controversy between the parties.
Based on the foregoing, the Court enters judgment in favor
of plaintiff on Counts One and Two as set forth in defendants‟
Offer of Judgment.

III. CONCLUSION
For the reasons stated, defendants' Motion for Judgment
[Doc. #266] on Counts One and Two of the Third Amended Complaint
is GRANTED as set forth in defendants‟ Offer of Judgment.

The

Clerk of the Court will enter Judgment in favor of plaintiff on
Counts One and Two of the Third Amended Complaint as follows.

Defendants, their agents, representatives,
employees
and
assigns,
are
permanently
enjoined from implementing the Bennett‟s
Farm Corporate Park Preliminary Project Plan
as adopted by the Bennett‟s Farm Development
Authority on February 6, 2002 and the
legislative body of Ridgefield on February
13, 2002, and as amended. Defendants, their
agents,
representatives,
employees
and
assigns are further enjoined from exercising
eminent domain to acquire property now owned
by Plaintiff, consisting of a 155 - acre
tract located to the south of Bennett‟s Farm
Road in Ridgefield, for any reason, for a
period of ten years from the entry of
judgment herein. Judgment is entered with no
finding or concession of liability but
rather is based on defendants‟ consent.
Costs which have accrued, if any, shall be
determined by the Court after final judgment
is entered.

32

[Doc. #266].
Summary Judgment was granted in

favor of defendants on

Counts Three and Four of the Third Amended Complaint on February
4, 2011. [Doc. #210].
Plaintiff‟s

Motion

for

Permission

to

File

Supplemental

Memorandum in Opposition to Motion for Judgment and in Support
of Motion to Amend Complaint [Doc. #289] is terminated as MOOT.
Plaintiff‟s Motion for Leave to Amend and/or Supplement the
Third Amended Complaint [Doc. #291] is DENIED.
This is not a recommended ruling.

The parties consented to

proceed before a United States Magistrate Judge [Doc. #231] on
May 20, 2011, with appeal to the Court of Appeals.
ENTERED at Bridgeport this 28th day of September 2012.

___________/s/_____________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

33