Arrigoni Ent LLC v. Durham et al

Filing 94

ORDER: Cross Motions for Summary Judgment (Doc. Nos. 65 & 70 ) are hereby GRANTED in part and DENIED in part. It is so ordered. Signed by Judge Alvin W. Thompson on 09/30/11. (Atmeh, S)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
ARRIGONI ENTERPRISES, LLC,
:
Plaintiff,
:
:
v.
:
:
TOWN OF DURHAM, DURHAM
:
PLANNING & ZONING COMMISSION, :
and DURHAM ZONING BOARD OF
:
APPEALS,
:
Defendants.
:
:
------------------------------x

Civil No. 3:08cv520(AWT)

RULING ON MOTIONS FOR SUMMARY JUDGMENT
The plaintiff, Arrigoni Enterprises, LLC (“Arrigoni”),
brings this action against the defendants, the Town of Durham,
the Durham Planning & Zoning Commission, and the Durham Zoning
Board of Appeals, alleging constitutional violations stemming
from adverse zoning decisions relating to the plaintiff’s
proposed development of a parcel of land.

The plaintiff brings

claims, pursuant to 42 U.S.C. § 1983, for denial of equal
protection of the law (Count One), and for denial of substantive
due process (Count Two), and it also seeks a declaratory judgment
that the challenged zoning regulation is impermissibly vague
(Count Four)1.
each claim.

The defendants raise affirmative defenses as to

The plaintiff and the defendants have each moved for

summary judgment.

1

The defendants’ motion is being granted as to

Count Three, was dismissed by the court. (See Doc. No. 32)

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the plaintiff’s substantive due process claim (Count Two) and as
to all claims against the Town of Durham.

The plaintiff’s motion

is being granted as to the defendants’ affirmative defenses.
I.

FACTUAL BACKGROUND
Arrigoni is a limited liability company organized and

existing under the laws of the State of Connecticut.

Arrigoni is

the owner of a parcel of land located on the west side of
Mountain Road in the Town of Durham (the “Property”).

The Town

of Durham (the “Town”) is a municipal corporation in Middlesex
County.

The Planning & Zoning Commission (the “PZC”) exists

pursuant to Chapter 124 of the Connecticut General Statutes and
Section 6.4 of the Charter of the Town of Durham and is
responsible for implementing the Town’s Zoning Regulations (the
“Regulations”).

The Zoning Board of Appeals (the “ZBA”) exists

pursuant to Chapter 126 of the Connecticut General Statutes and
Section 6.5 of the Charter of the Town of Durham and is
responsible for, inter alia, granting variances to the
Regulations.
The Property is a heavily wooded and undeveloped parcel of
land which has been owned by Arrigoni and the Arrigoni family
since 1955.

The topography of the Property is very steeply

sloped upward westerly from Mountain Road and consists mainly of
rock and ledge. The Property is located in Durham’s only Design
Development District (“DDD”) zone.

-2-

The DDD zone is one of three industrial zones in Durham,
with the other two being the Light Industrial District (“LID”)
zone and the Heavy Industrial District (“HID”) zone.

The

Property lies between the Tilcon Quarry property, which is zoned
HID and DDD, to the northwest, west, and south, and two
residential properties, one to the north, zoned Farm Residential
(“FR”), and a non-conforming residential property located in the
DDD zone.
Prior to 1986, all of the parcels currently located in the
DDD zone, including the Property, were zoned FR.
the PZC changed the zoning of the Property to LID.

In June 1986,
One of the

purposes of this change was to harmonize the conflicting HID
activities of the Tilcon Quarry operations with those of the FR
zone by creating a light industrial buffer around the dwellings
along the west side of Mountain Road.
The Regulations were changed again effective January 1988,
and the Property was changed from an LID zone to a DDD zone,
which is its current status.

With respect to this zone, the

Regulations permit only a limited number of types of light
industrial uses, require that buildings be 5,000 square feet in
size or greater, and impose limitations on, among other things,
coverage and setbacks.
In 1992, several of the property owners on Mountain Road,
including the owners of the Property, sought to have their

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parcels changed back from DDD to the original FR zone, claiming
that they were not aware of the zoning changes from FR to LID and
from LID to DDD.

This attempt was unsuccessful because the PZC,

as well as various members of the community and town
organizations, indicated the importance of maintaining the
industrial zoning of the Property.
In 2005, Arrigoni sought to have the zone for the Property
changed from DDD to HID.

The purpose of this request was to

enable Arrigoni to excavate, crush, and remove the amount of
earth material necessary for it to construct three light
industrial buildings.

It represented to the PZC that such earth

processing and rock crushing was necessary to prepare the site
for development of these light industrial buildings and that the
HID zone is the only zone in Durham in which rock crushing is a
permitted use under the Regulations.

This request was denied in

May 2005.
On September 13, 2005, Arrigoni applied to the PZC for a
special development permit to develop the site and to construct
three industrial buildings on the Property.

The three buildings

were to be 8,750 square feet, 10,000 square feet, and 11,250
square feet.
Under the Regulations, property uses in a DDD zone are
restricted to a finite list and are “subject to the issuance of a
special exception in accordance with . . . the Durham Zoning

-4-

Regulations.”
§ 7.04.04.)

(Defs.’ Mot. Summ. J. (Doc. No. 70), Ex. B,
Thus, all development in DDDs must be in conformance

with the regulations governing that zone and also with the
regulations governing special development permits.

The general

standards governing special development permits are set forth in
§ 13.05.04 of the Regulations, which reads:
The Commission shall approve an application to
permit establishment of a use for which a
special exception is required if it shall find
that the proposed use and the proposed
buildings and structures will conform to the
following standards in addition to such
special standards for particular uses as may
be imposed:
1.

The location, type, character and size of
the use and of any building or other
structure in connection therewith shall
be in harmony with and conform to the
appropriate and orderly development of
the town and the neighborhood and will
not hinder or discourage the appropriate
development and use of adjacent lots or
impair the value thereof;

2.

The nature and location of the use and of
any building or other structure in
connection therewith shall be such that
there will be adequate access to it for
fire protection purposes;

3.

The streets serving the proposed use are
adequate to carry prospective traffic,
that provision is made for entering and
leaving the property in such a manner
that
no
undue
traffic
hazard
or
congestion will be created; . . .

8.

The special exception use shall not
constitute a hazard to public health and
safety either on or off the Subject
Property.
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purpose of serving the goals of the Regulations.
At the public hearings, there was opposition voiced against
the proposed excavation by citizens and PZC members based on the
effects of the proposed development on the health, safety and
public welfare of Arrigoni’s residential neighbors.

Citizens

also voiced concerns over the large scale of the proposed
excavation, the permissibility of processing of earth materials
in the DDD zone, and the possibility that Arrigoni planned to
conduct a quarrying enterprise on the site.
On December 21, 2005, the PZC closed the public hearings on
both the special development permit and excavation permit
applications.

The PZC then voted unanimously (with Commissioner

Russell abstaining) to deny both applications.

A member of the

PZC noted that “the three buildings necessitate site work
exceeding any reasonable norms.

Perhaps a revision could be

developed that will not necessitate draconian methods of site
preparation and enable the site to conform to the zone.”

(Pl.’s

Mot. Summ. J. (Doc. No. 65), Ex. 22.)
Arrigoni appealed the denials to the Connecticut Superior
Court, arguing that the PZC acted illegally and arbitrarily in
denying both applications and claiming a violation of its
constitutional rights.

On February 15, 2007, the Superior Court

upheld the PZC’s denial of both permit applications without
specifically addressing Arrigoni’s constitutional claims.

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Arrigoni moved the Superior Court to reopen so it could re-argue
its constitutional claims, but its motion was denied on March 19,
2007.

Arrigoni immediately sought and was denied certification

to the Connecticut Appellate Court to appeal the Superior Court’s
decision.
In August 2007, Arrigoni sought a variance from the ZBA to
§ 12.05 of the Regulations, which prohibits the crushing of rock.
The basis of the request was that the geology and topography of
the Property was such that any development would require the
excavation, crushing and removal of rock.

The ZBA planned a

public hearing on Arrigoni’s variance application on August 9,
2007.
On August 7, 2007, upon learning of the Arrigoni’s variance
application, the PZC instructed its secretary to amend and expand
on the draft minutes previously prepared for the PZC’s July 18,
2007 meeting to reflect the PZC’s discussion and concern over the
possibility of Arrigoni receiving a variance, and to prepare a
letter to the ZBA explaining the PZC’s opposition to Arrigoni’s
variance application.

It is unclear, however, whether these

materials were eventually sent to or considered by the ZBA.
In addition to communicating its position relative to the
Plaintiff’s variance application by means of its amended minutes,
the PZC instructed one of its members, Eugene C. Riotte Jr., to
attend the August 9, 2007 ZBA meeting and voice the PZC’s

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opposition to Arrigoni’s application. The PZC had, several times
in the past, designated one of its members as a liaison to
monitor variance applications before the ZBA.
At the August 9, 2007 ZBA meeting, Riotte, appearing in his
official capacity as a member of the PZC, attempted to address
the ZBA to voice the PZC’s position on the application for a
variance. Counsel for Arrigoni indicated at that time that
Riotte’s testimony would be in violation of state law.

Riotte

sat down and was not allowed to speak regarding the application.
At the ZBA public hearing, numerous citizens expressed their
concerns about the proposed variance, including concerns with
dust suppression from the excavation of the rock and excessive
noise from blasting.

Citizens were particularly concerned about

the effects of Arrigoni’s activities in light of the problems a
similar previous land excavation by Greenland Realty, LLC
(“Greenland Realty”), located near the Property, had caused.

At

the conclusion of the hearing, the ZBA voted unanimously (with
one member recusing himself) to deny the variance application.
In the past, the PZC has allowed rock crushing on sites when
proposed as part of a site development.

In 2003, the PZC

approved the excavation of a substantial amount of earth material
and the blasting, excavation and removal of rock in a residential
zone, in order to enable the applicant to construct a driveway
several hundred feet in length.

-9-

In 2004, the PZC approved the construction of two industrial
buildings (one 8,000 square foot office and cold storage building
and one 5,000 square foot warehouse) by Nosal Enterprises, LLC
(“Nosal”), which is located within the DDD zone.

Like the

Property, Nosal’s property is steeply sloped and required the
crushing of rock before it could be developed.

During its site

preparation work, Nosal crushed and processed rock without a
special permit.
During the period from December 2004 to September 2005, the
PZC granted two separate site plan review approvals to Greenland
Realty to excavate, crush, screen and remove rock and earth
material in excess of 20,000 cubic yards of rock from its
property in order to build one light industrial building 9,600
square feet in size.

As part of the preparation of the site for

the construction of the one light industrial building, Greenland
Realty eventually excavated, crushed and removed in excess of
30,000 cubic yards of rock and earth material from its site.
Greenland Realty’s property is located directly across the street
from the Property and Nosal’s property is located on the next
street over from Mountain Road.

Both Nosal’s property and

Greenland Realty’s property are located in the same DDD zone.
II.

LEGAL STANDARD
A motion for summary judgment may not be granted unless the

court determines that there is no genuine issue of material fact

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to be tried and that the facts as to which there is no such issue
warrant judgment for the moving party as a matter of law.
R. Civ. P. 56(c).

Fed.

See Celotex Corp. v. Catrett, 477 U.S. 317,

322-23 (1986); Gallo v. Prudential Residential Servs., 22 F.3d
1219, 1223 (2d Cir. 1994).

Rule 56(c) “mandates the entry of

summary judgment . . . against a party who fails to make a
showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear
the burden of proof at trial.”

Celotex Corp., 477 U.S. at 322.

When ruling on a motion for summary judgment, the court must
respect the province of the jury.
try issues of fact.

The court, therefore, may not

See, e.g., Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986); Donahue v. Windsor Locks Bd. of Fire
Comm’rs, 834 F.2d 54, 58 (2d Cir. 1987); Heyman v. Commerce &
Indus. Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975).

It is

well-established that “[c]redibility determinations, the weighing
of the evidence, and the drawing of legitimate inferences from
the facts are jury functions, not those of the judge.”
477 U.S. at 255.

Anderson,

Thus, the trial court’s task is “carefully

limited to discerning whether there are any genuine issues of
material fact to be tried, not to deciding them.

Its duty, in

short, is confined . . . to issue-finding; it does not extend to
issue-resolution.”

Gallo, 22 F.3d at 1224.

Summary judgment is inappropriate only if the issue to be

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resolved is both genuine and related to a material fact.
Therefore, the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment.

An issue is “genuine

. . . if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.”

Anderson, 477 U.S. at 248

(internal quotation marks omitted).

A material fact is one that

would “affect the outcome of the suit under the governing law.”
Id.

As the Court observed in Anderson: “[T]he materiality

determination rests on the substantive law, [and] it is the
substantive law’s identification of which facts are critical and
which facts are irrelevant that governs.”

Id.

Thus, only those

facts that must be decided in order to resolve a claim or defense
will prevent summary judgment from being granted.

When

confronted with an asserted factual dispute, the court must
examine the elements of the claims and defenses at issue on the
motion to determine whether a resolution of that dispute could
affect the disposition of any of those claims or defenses.
Immaterial or minor facts will not prevent summary judgment.

See

Howard v. Gleason Corp., 901 F.2d 1154, 1159 (2d Cir. 1990).
When reviewing the evidence on a motion for summary
judgment, the court must “assess the record in the light most
favorable to the non-movant and . . . draw all reasonable
inferences in its favor.”

Weinstock v. Columbia Univ., 224 F.3d

-12-

33, 41 (2d Cir. 2000) (quoting Delaware & Hudson Ry. Co. v.
Consol. Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990)).

Because

credibility is not an issue on summary judgment, the nonmovant’s
evidence must be accepted as true for purposes of the motion.
Nonetheless, the inferences drawn in favor of the nonmovant must
be supported by the evidence.

“[M]ere speculation and conjecture

is insufficient to defeat a motion for summary judgment.”

Stern

v. Trustees of Columbia Univ., 131 F.3d 305, 315 (2d Cir. 1997)
(internal quotation marks omitted) (quoting Western World Ins.
Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d. Cir. 1990)).
Moreover, the “mere existence of a scintilla of evidence in
support of the [nonmovant’s] position will be insufficient; there
must be evidence on which [a] jury could reasonably find for the
[nonmovant].”

Anderson, 477 U.S. at 252.

Finally, the nonmoving party cannot simply rest on the
allegations in its pleadings since the essence of summary
judgment is to go beyond the pleadings to determine if a genuine
issue of material fact exists.
324.

See Celotex Corp., 477 U.S. at

“Although the moving party bears the initial burden of

establishing that there are no genuine issues of material fact,”
Weinstock, 224 F.3d at 41, if the movant demonstrates an absence
of such issues, a limited burden of production shifts to the
nonmovant, who must “demonstrate more than some metaphysical
doubt as to the material facts, . . . [and] must come forward
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with specific facts showing that there is a genuine issue for
trial.”

Aslanidis v. United States Lines, Inc., 7 F.3d 1067,

1072 (2d Cir. 1993)(quotation marks, citations and emphasis
omitted). Furthermore, “unsupported allegations do not create a
material issue of fact.”

Weinstock, 224 F.3d at 41.

If the

nonmovant fails to meet this burden, summary judgment should be
granted.
III. DISCUSSION
A.

Whether PZC and ZBA are Proper Defendants;
Claims Against the Town

The defendants argue that the PZC and ZBA are not proper
defendants because Conn. Gen. Stat. §§ 8-1 and 8-6 do not
explicitly establish them as legal entities capable of bringing
suit or being sued.

The plaintiff argues that the PZC and ZBA

are “persons” within the meaning of 42 U.S.C. § 1983 and as
established by Monell v. New York City Department of Social
Services, 436 U.S. 658 (1978).
In Monell, the Supreme Court overruled Monroe v. Pape, 365
U.S. 176 (1961), insofar as it stood for the proposition that
local governments enjoyed immunity from suit under the Eleventh
Amendment.

See Monell, 436 U.S. at 663.

The Court stated:

Our analysis of the legislative history of the
Civil
Rights
Act
of
1871
compels
the
conclusion
that
Congress
did
intend
municipalities and other local government
units to be included among those person to
whom § 1983 applies. Local governing bodies,
therefore, can be sued directly under § 1983
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for monetary, declaratory, or injunctive
relief where, as here, the action that is
alleged to be unconstitutional implements or
executes
a
policy statement,
ordinance,
regulation, or decision officially adopted and
promulgated by that body’s officers.
Id. at 690.

This statement was later clarified in Pembaur v.

City of Cincinnati, where the Court explained:
The power to establish policy is no more the
exclusive province of the legislature at the
local level than at the state or national
level. Monell’s language makes clear that it
expressly envisioned other officials “whose
acts or edicts may fairly be said to represent
official
policy,”
and
whose
decisions
therefore may give rise to municipal liability
under § 1983.
475 U.S. 469, 480 (1986) (quoting Monell, 436 U.S. at 694).
Furthermore, “[a]uthority to make municipal policy may be granted
directly by a legislative enactment or may be delegated by an
official who possesses such authority, and of course, whether an
official had final policymaking authority is a question of state
law.”

Id. at 483.

Chapter 124 of the Connecticut General Statutes empowers
“any municipality, . . . by vote of its legislative body” to
“adopt the provisions of this chapter and exercise through a
zoning commission the powers granted hereunder.”
Stat. § 8-1 (2011).

Conn. Gen.

These powers, delineated in § 8-2 et seq.,

include the power “to regulate, within the limits of such
municipality, the height, number of stories and size of buildings
and other structures . . . .”

Conn. Gen. Stat. § 8-2(a) (2011).
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The preamble to the Regulations specifies that “[t]hese
regulations are issued under the provisions of Chapter 124 of the
General Statutes, as amended, and are in conformity with the
purposes expressed therein.”

Durham, Conn., Zoning Regulations

§ 01.01 (2011) (section unchanged since Regulations were
adopted).
In Thomas v. City of West Haven, the Connecticut Supreme
Court noted that Monell provides that “local governing bodies can
be sued directly under § 1983 for monetary, declaratory or
injunctive relief where the action that is alleged to be
unconstitutional implements or executes a policy statement,
ordinance, regulation, or decision officially adopted and
promulgated by that body’s officers.”

249 Conn. 385, 410 (1999)

(quoting Monell, 436 U.S. at 694) (internal quotation marks and
ellipses omitted).

In determining that the Zoning Commission of

the City of West Haven had discretion to make municipal policy on
the subject of zoning, the court noted, “[o]ur statutes delegate
great authority to local zoning commissions.”
at 414 n.26.

Thomas, 249 Conn.

The court observed that Chapter 124 of the

Connecticut General Statutes:
[delegates] all the available state statutory
powers to the commission. Thus, there is no
question that, at least for the purposes of
establishing a prima facie case, the inference
can be drawn that the commission acted as a
policy maker for the city with regard to
denying
the
plaintiff’s
zone
change
application.
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Id.

Also, it is well-settled that a zoning commission “in

exercising its power to adopt zoning regulations acts as a
legislative body.”

Damick v. Planning and Zoning Comm’n, 158

Conn. 78, 81 (1969); see also Steiner, Inc. v. Town Plan and
Zoning Comm’n, 149 Conn. 74, 75 (1961); Burke v. Bd. of
Representatives, 148 Conn. 33, 39 (1961).

Thus, under

Connecticut law, zoning commissions acting pursuant to Chapter
124 of the Connecticut General Statutes, such as the PZC, are
local governing bodies which can be sued directly where “the
action that is alleged to be unconstitutional implements or
executes a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s officers.”
Monell, 436 U.S. at 690.
This reasoning applies with equal force to the ZBA, the
creation of which is provided for in Connecticut General Statutes
§ 8-5, and which is granted the authority to “(1) hear and decide
appeals where it is alleged that there is an error in any order .
. . ; (2) to hear and decide all matters including special
exceptions and special exemptions . . . ; [and] (3) to determine
and vary the application of the zoning bylaws, ordinances or
regulations in harmony with their general purpose . . . .”

Conn.

Gen. Stat. § 8-6 (2011).
The defendants cite to cases that stand for the proposition
that municipal departments cannot be sued under § 1983 because

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they are not independent legal entities.

See, e.g., Nicholson v.

Lenczewski, 356 F. Supp. 2d 157, 164 (D. Conn. 2005) (noting that
“[a] municipal police department is a sub-unit or agency of the
municipal government through which the municipality fulfills its
policing function”).

However, Thomas is directly on point.

Zoning commissions function legislatively when adopting zoning
regulations and holding public hearings for the adjudication of
individual petitions for zoning redress.
Arrigoni contends that it has alleged a Monell claim against
the Town.

However, Arrigoni premises its Monell claim against

the Town on customs and/or policies of the PZC and/or the ZBA.
It identifies no official policy or custom of the Town. (See Opp.
to Defs.’ Mot. Summ. J. (Doc. No. 78) at 22-23. “[A] municipality
cannot be held liable under § 1983 on a respondeat superior
theory.” Monell, 436 U.S. at 691.

Arrigoni has established that

the PZC and the ZBA are entities that can themselves be sued, so
he is not suing the Town on the theory that the PZC and ZBA are
sub-units or agencies of the Town.

Therefore, the Town is

entitled to summary judgment as to all claims against it.
B.

Count One: Equal Protection

Arrigoni claims that the defendants violated its right to
equal protection under the Fourteenth Amendment to the United
States Constitution.

The Fourteenth Amendment provides that

“[n]o state shall . . . deny to any person within its

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jurisdiction the equal protection of the laws.”
amend. XIV, § 1.

U.S. Const.

Arrigoni proceeds under a “class of one”

theory, claiming that it “has been intentionally treated
differently from others similarly situated and that there is no
rational basis for the difference in treatment.”

Village of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (citing Sioux City
Bridge Co. v. Dakota Cnty., 260 U.S. 441 (1923)); see also
Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006) (“In
[Village of Willowbrook], the Supreme Court recognized that
plaintiffs state an equal protection claim where they allege that
they were intentionally treated differently from other similarlysituated individuals without any rational basis.”).
The Second Circuit has held that “class-of-one plaintiffs
must show an extremely high degree of similarity between
themselves and the persons to whom they compare themselves.”
Clubside, 468 F.3d at 159; see also Neilson v. D’Angelis, 409
F.3d 100, 104 (2d Cir. 2005).

This stringent standard is imposed

because:
the
existence
of
persons
in
similar
circumstances who received more favorable
treatment than the plaintiff is offered to
provide an inference that the plaintiff was
intentionally singled out for reasons that so
lack any reasonable nexus with a legitimate
governmental policy that an improper purpose–whether personal or otherwise–-is all but
certain.
Nielson, 409 F.3d at 105.

Thus, to prevail on a class of one

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claim, a plaintiff must show that:
(i) no rational person could regard the
circumstances of the plaintiff to differ from
those of a comparator to a degree that would
justify the differential treatment on the
basis of a legitimate government policy; and
(ii) the similarity in circumstances and
difference in treatment are sufficient to
exclude the possibility that the defendants
acted on the basis of a mistake.
Nielson, 409 F.3d at 105. “Generally, whether the parties are
similarly situated is a fact-intensive inquiry.”

Clubside, 468

F.3d at 159 (citing Harlen Assocs. v. Inc. Village of Mineola,
273 F.3d 494, 499 n.2 (2d Cir. 2001)).
Arrigoni identifies two parcels it claims are similarly
situated to the Property: a nearby parcel owned by Greenland
Realty (the “Greenland Parcel”), and another nearby parcel owned
by Nosal (the “Nosal Parcel”).2

Arrigoni claims the Property is

similar to the those properties, noting:
All three properties are located in the same
DDD zone and the same regulations apply to
each property. . . . All of these properties
were wooded, steeply sloped, and undeveloped.
All three properties sought the construction
of one or more large industrial buildings in
conformity with the zoning regulations. All
three properties required extensive site work
in order to develop them.
(Pl.’s Mot. Summ. J. (Doc. No. 65), 11.)

However, owners of the

Greenland Parcel and the Nosal Parcel, in contrast to the

2

The plaintiff also points to a property on New Haven Road (the “New
Haven Road Parcel”) to show the PZC’s policy of allowing rock excavation in
the context of site preparation.

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plaintiff, were (1) not required to apply for a special
excavation permit, and (2) were allowed to crush and process rock
in order to develop their properties.

The defendants dispute

that these parcels are similarly situated to the Property, and
contend that a rational basis for prohibiting the proposed
development of the Property exists.
The Greenland Parcel is located directly across the street
from the Property.

In 2005, the PZC granted Greenland Realty’s

request for a special permit for the construction of an office
building and garage with outdoor storage area.

Like Arrigoni,

Greenland Realty sought to construct an industrial building and
to create a large yard area for the storage of vehicles and
equipment on its property.

This required extensive excavation of

earth, because the Greenland Parcel, like the Property, was
situated on a heavily wooded rocky incline.
The Nosal Parcel is located in the same industrial
neighborhood as the Property, although one street over.

In 2004,

Nosal sought and was granted a special permit to develop its
industrial site with two buildings.

Like the Greenland Parcel

and the Property, the Nosal Parcel also required extensive
excavation.3
The scale of these projects was noticeably different from
3
Nosal, however, did not seek approval for the excavation and crushing
of rock required to develop its property, and after the PZC received a
complaint about these activities, it issued a cease and desist letter
instructing Nosal to stop any crushing activity.

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the scale of Arriogni’s project.

The Greenland Realty

application proposed the development of a 4.87 acre parcel of
property, requiring the excavation of approximately 20,000 cubic
yards of material for the construction of one 9,000 square foot
building.

The Nosal application proposed the development of a

5.69 acre parcel of property to build one 8,000 square foot
building and one 5,000 square foot building, totaling 13,000
square feet of industrial space.

By contrast, the Arrigoni plan

proposed the development of a 9.1 acre parcel of property,
requiring the excavation of approximately 70,000 cubic yards of
material for the construction of three buildings totaling 30,000
square feet.
Arrigoni contends that while the proposed development of the
Property is considerably larger than that of either Greenland
Realty or Nosal, absolute differences in the size of the
development is not the significant factor here in determining
whether the properties are similarly situated because the
Regulations speak in terms of percentage of lot coverage, not the
size of the development.

Arrigoni properly points out that

§ 07.04.03 restricts maximum lot coverage to 50%; there is no
restriction on the number and size of the buildings, nor on the
amount of acreage that may be developed.

By this measure,

Greenland Realty’s lot coverage ratio was 46%, and Nosal’s lot
coverage ratio was 32% whereas Arrigoni’s proposed lot coverage

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ratio was 31.8%.

Additionally, Arrigoni has produced evidence

that the absolute figures with respect to amount of rock to be
excavated from the respective sites is not a significant factor
because neither Nosal nor Greenland Realty were required to apply
for an excavation permit.

Arrigoni argues that, therefore, the

PZC necessarily did not consider those figures when deciding
whether to grant the applications by Greenland Realty or Nosal.
In addition, Arrigoni has produced evidence that the Property is
similar to the

Greenland Parcel and the Nosal Parcel in terms of

close proximity, identical zoning, intended type of development,
and topographical features.
“[A]s a general rule, whether items are similarly situated
is a factual issue that should be submitted to the jury.”
Harlen, 273 F.3d at 499.

The court concludes that genuine issues

of material fact exist as to whether Arrigoni is similarly
situated with comparators and as to whether the similarity in
circumstances and difference in treatment are sufficient to
exclude the possibility that the defendants acted on the basis of
mistake.

Therefore, both parties’ motions for summary judgment

as to this claim are being denied.4
4

The defendants argue that a third step for class of one analysis–whether any difference in treatment was the result of non-discretionary
action--must be applied pursuant to United States v. Engquist, 553 U.S. 591
(2008). The court disagrees. In Analytical Diagnostic Labs, Inc. v. Kusel,
626 F.3d 135 (2d Cir. 2010), the Second Circuit stated:
We join the Seventh Circuit in holding that Engquist
does not bar all class-of-one claims involving
discretionary state action. While there may be some

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C.

Count Two: Substantive Due Process

The plaintiff claims that the PZC’s denial of its
application for a special development permit was a violation of
its right to substantive due process.

To prevail on this claim

Arrigoni must show “(1) that [it] had a valid property interest
in the granting of the [application], and (2) that the defendants
infringed that property interest in an arbitrary or irrational
manner.”

Harlen, 273 F.3d 494, 503 (2d Cir. 2001); see also

Clubside, 468 F.3d at 152.
“When a landowner alleges that he has been deprived of
property in violation of the due process clause by the actions of
a state zoning authority, we begin our inquiry by determining
whether a constitutionally cognizable property interest is at
stake.”

Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378

(2d Cir. 1995).

In this Circuit the “clear entitlement” analysis

is applied to determine this question.

The analysis is derived

from the Supreme Court’s decision in Board of Regents v. Roth,
circumstances where Engquist is properly applied outside
the employment context, the case before us is not one of
them. Critically, the state defendants here exercised
the state’s regulatory power. As the Engquist court
recognized, there is a:
crucial
difference,
with
respect
to
constitutional
analysis,
between
the
government exercising the power to regulate
or license, as a lawmaker, and the
government acting as proprietor, to manage
its internal operations.
Id. at 142 (quoting Engquist, 553 U.S. at 598). In the present case, the
defendants were not only not acting as an employer, but moreover were acting
in a regulatory capacity with respect to the plaintiff.

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which held that “[t]o have a property interest in a benefit, a
person clearly must have more than an abstract need or desire for
it.

He must have more than a unilateral expectation of it.

He

must, instead, have a legitimate claim of entitlement to it.” 408
U.S. 564, 577 (1972).

“An applicant for a governmental permit

has a protected property interest in the permit being sought only
where ‘the applicant has a clear entitlement to the approval
being sought from the governmental official or administrative
body.’” Villager Pond, 56 F.3d at 378 (quoting Walz v. Town of
Smithtown, 46 F.3d 162, 168 (2d Cir. 1995).

This inquiry focuses

“primarily on the degree of discretion enjoyed by the issuing
authority, not the estimated probability that the authority will
act favorably in a particular case.”

RRI Realty Corp. v. Inc.

Village of Southampton, 870 F.2d 911, 918 (2d Cir. 1989).
“Property interests . . . are not created by the
Constitution” but rather “they are created and their dimensions
are defined by existing rules or understandings that stem from an
independent source such as state law . . . .”
577.

Roth, 408 U.S. at

The Connecticut Supreme Court has previously “recognized

that the special permit process is, in fact, discretionary.”
Irwin v. Planning and Zoning Comm’n, 244 Conn. 619, 626 (1998)
(citing Whisper Wind Dev. Corp. v. Planning & Zoning Comm’n, 229
Conn. 176, 177 (1994)); see also Double I Ltd. P’ship v. Plan &
Zoning Comm’n, 218 Conn. 65, 72 (1991) (“In applying the law to

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the facts of a particular case, the board is endowed with liberal
discretion, and its action is subject to review by the courts
only to determine whether it was unreasonable, arbitrary or
illegal.”) (internal citations and quotations omitted).
“[G]eneral considerations such as public health, safety and
welfare, which are enumerated in the zoning regulations, may be
the basis for the denial of a special permit.”
at 627.

Irwin, 244 Conn.

This court as well has previously held that “under

Connecticut law, the Commission [has] discretion to determine
whether Plaintiffs’ special use permit proposal satisfie[s] the
relevant standards set forth in the Zoning Regulations.”

Merry

Charters, LLC v. Town of Stonington, 342 F. Supp. 2d 69, 80 (D.
Conn. 2004).
Moreover, the section of the Regulations governing special
development permits states, in pertinent part:
The Commission shall approve an application to
permit establishment of a use for which a
special exception is required if it shall find
that the proposed use and the proposed
buildings and structures will conform to the
following standards in addition to such
special standards for particular uses as may
be imposed:
(1)

The location, type, character and size of
the use and any building or other
structure in connection therewith shall
be in harmony with and conform to the
appropriate and orderly development of
the Town and the neighborhood and will
not hinder or discourage the appropriate
development and use of adjacent lots or
impair the value thereof.
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(Defs.’ Mot. Summ. J. (Doc. No. 65), Ex. B, § 13.05.04.)

This

section requires the PZC to evaluate subjective criteria,
necessitating the exercise of discretion.

Cf. Conn. Health

Facilities, Inc. v. Zoning Bd. of Appeals, 29 Conn. App. 1, 6-7
(1992) (“Connecticut courts have never held that a zoning
commission lacks the ability to exercise discretion to determine
whether the general standards in the regulations have been met in
the special permit process . . . . If the special permit process
were purely ministerial there would be no need to mandate a
public hearing.”)
The plaintiff cites Irwin for the proposition that
“[a]though it is true that the zoning commission does not have
discretion to deny a special permit when the proposal meets the
standards, it does have discretion to determine whether the
proposal meets the standards set forth in the regulations.”
Conn. at 628 (emphasis in original).

244

The plaintiff argues that

the Property met all the standards set forth in the Regulations,
so the PZC lacked discretion to deny its special development
permit application, and Arrigoni therefore had a property
interest in its approval.

In support of this argument the

plaintiff offers the deposition testimony of the Town Planner and
the Town Engineer.5

Neither of these individuals was a member of

5
The deposition testimony upon which the plaintiff relies is the
following:

Brian Curtis, Town Engineer:

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the PZC.

In addition § 12.05.03.01.03(B) expressly limits the

crushing and processing of earth products to the HID zone.
Arrigoni’s site plan, which proposed to crush more than 70,000
cubic yards of rock was therefore not in compliance with
§ 12.05.03.01.03(B), which provides: “[n]o washing, crushing or
other forms of processing of earth products shall be conducted on
the premises unless located within a heavy industrial (HID) zone
. . .”

(Defs.’ Mot. Summ. J. (Doc. No. 70), Ex. B, §

12.05.03.01.03(B).)

In fact, the plaintiff states that it sought

to have the zone changed from DDD to HID “in order to allow it to
excavate, crush and remove the amount of earth material necessary
for it to construct three (3) light industrial buildings because
such earth processing and rock crushing is necessary to prepare
the site for development of these light industrial buildings[.]”
(Pl.’s Amend. Compl. ¶ 19).
Thus, the plaintiff does not have a constitutionally
Q:
A:
. . .

Do you recall having any concerns regarding the Arrigoni
Enterprises application as not meeting any of the engineering
regulations set forth in the zoning regs?
No, I am not aware of any areas where it did not comply.

Geoffrey Colegrove, Town Planner:
Q:

Do you recall if the special permit application submitted by Mr.
Arrigoni . . . conformed to all of the necessary regulations for
the development of a piece of property in conformity with the
design development district?
Yes.

A:
. . .
Q:
So the site plan conformed with all the necessary design
development district regulations?
A:
Yes.
(Pl.’s Mot. Summ. J. (Doc. No. 70), Ex. 4, 37, Ex. 5, 29.)

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cognizable property interest in the granting of an application
for a special development permit, and consequently cannot
establish a violation of its right to substantive due process.
Therefore, the defendants’ motion for summary judgment is being
granted as to Count Two.
D.

Count Four: Declaratory Judgment

The plaintiff seeks a declaratory judgment that the
provisions in the Regulations that govern special exceptions are
unconstitutionally vague.

A request for declaratory relief,

however, does not “provide an independent cause of action.”

In

re Joint E & So. Dist. Asbestos Litig., 14 F.3d 726, 731 (2d Cir.
1993) “[D]eclaratory relief is not a claim but only a remedy that
Congress has created so that the court may declare rights and
other legal relations of any interest party seeking such
declaration, whether or not further relief is or could be
sought.”

In re Methyl Tertiary butyl Ether Prods. Liab. Litig.,

247 F.R.D. 420, 422 (S.D.N.Y. 2007).

Title 28 U.S.C. § 2201,

which provides for declaratory relief, entitled “Creation of
remedy,”

provides: “[i]n a case of actual controversy within its

jurisdiction . . . any court of the United States, upon the
filing of an appropriate pleading, may declare the rights and
other legal relations of any interested party seeking such
declaration.”

28 U.S.C. § 2201 (2011).

“However, a request for

relief in the form of a declaratory judgment does not by itself

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establish a case or controversy involving an adjudication of
rights.”

In re Asbestos Litig., 14 F.3d at 731.

“Therefore, a

court may only enter a declaratory judgment in favor of a party
who has a substantive claim of right to such relief.”

Id.

Arrigoni, has not established that it has a substantive claim of
right to relief.
E.

Affirmative Defenses

The plaintiff challenges the sufficiency of all of the
defendants’ affirmative defenses.

The defendants do not address

the plaintiff’s arguments with respect to their affirmative
defenses.
“A motion for summary judgment is an appropriate mechanism
to challenge an affirmative defense.”

Fed. Deposit Ins. Corp. v.

Haines, 3 F. Supp. 2d 155, 159 (D. Conn. 1997); see also Fed.
Deposit Ins. Corp. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994)
(“Where a plaintiff uses a summary judgment motion, in part, to
challenge the legal sufficiency of an affirmative defense . . . a
plaintiff may satisfy its Rule 56 burden by showing that there is
an absence of evidence to support an essential element of the
non-moving party’s case.” (internal quotation marks and citation
omitted)).
Because the defendants have not responded to the plaintiff’s
arguments with respect to the affirmative defenses, the court
deems them abandoned.

See Carone v. Mascolo, 573 F. Supp. 2d

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575, 591 (“Federal courts may deem a claim abandoned when a party
moves for summary judgment on one ground and the party opposing
summary judgment fails to address the argument in any way.”)
(quoting Taylor v. City of New York, 269 F. Supp. 2d 68, 75
(E.D.N.Y. 2003)); see also Bronx Chrysler Plymouth, Inc. v.
Chrysler Corp., 212 F. Supp. 2d 233, 249 (S.D.N.Y. 2002)
(dismissing breach of contractual duty of good faith claim as
abandoned because plaintiff’s summary judgment opposition papers
made no argument in support of the claim at all).
III. CONCLUSION
For the reasons set forth above, the plaintiff’s Motion for
Summary Judgment (Doc. No. 65) is hereby GRANTED in part and
DENIED in part; it is granted with respect to the defendants’
affirmative defenses.

Also, the defendants’ Motion for Summary

Judgment (Doc. No. 70) is hereby GRANTED in part and DENIED in
part; it is granted with respect to the substantive due process
claim (Count Two) and as to all claims against the Town.
It is so ordered.
Dated this 30th day of September, 2011, at Hartford,
Connecticut.

/s/AWT
Alvin W. Thompson
United States District Judge

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