Bergman et al v. Town of Hamden et al

Filing 54

MEMORANDUM OF DECISION granting 32 Motion for Summary Judgment. Signed by Judge Warren W. Eginton on 9/27/2012. (Candee, D.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JACOB BERGMAN, JOSEPH
BERGMAN, BARBARA BERGMAN and
TEMPLE MANAGEMENT, LLC,
Plaintiffs,
v.
TOWN OF HAMDEN,
DANIEL W. KOPS, JR.,
HOLLY MASI, LESLIE CREANE and
ROBERT LABULIS,
Defendants.

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3:10-CV-1315-WWE

MEMORANDUM OF DECISION ON DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT
Plaintiffs Jacob, Joseph, and Barbara Bergman and Temple Management, LLC have filed
this action against defendants Town of Hamden, Daniel Kops Jr., Holly Masi, Leslie Creane, and
Robert Labulis alleging that defendants violated their right to due process and equal protection
secured by the Fourteenth Amendment. Specifically, plaintiffs claim that defendants disparately
enforced the municipal zoning regulations and ordinances of the Town of Hamden. In addition,
plaintiffs allege that defendants tortiously interfered with plaintiffs’ business expectations in
violation of Connecticut common law.
Defendants have moved for summary judgment on all of defendants’ claims. For the
following reasons, defendants’ motion for summary judgment will be granted.
BACKGROUND
The parties have submitted statements of facts and supporting exhibits. The parties’
submissions reflect that the following facts are not in dispute.
The Town’s Planning and Zoning Commission is the agency empowered under the

Connecticut General Statutes to perform the function of a zoning commission pursuant to
Statutes Sections 8-1 and 8-2, including the power to enact zoning regulations to govern the use
of land and buildings in the Town. Defendant Leslie Creane is the Town planner; defendant
Daniel Kops Jr. is the assistant Town planner; defendant Holly Masi is the zoning enforcement
officer; and defendant Robert Labulis is the Town building official.
Plaintiffs are the owners and developers of residential properties in the Town of Hamden,
which they rent to students at Quinnipiac University.
Any person or entity that wants to maintain Student Housing in Hamden is required to
submit an application for a zoning permit (a “Student Housing Permit”). The student housing
regulations provide that in order to be issued a permit for a non-owner occupied building, such as
those owned and managed by plaintiffs, an applicant must, among other requirements, (1) obtain
approvals of the Town’s building official for building code compliance, health official for
housing code compliance, and the fire marshal for fire safety compliance; (2) demonstrate
provision for off-street parking for one space per student; (3) prohibit parking in any front or side
yard; (4) submit a floor plan and thereafter any proposed modifications thereto; (5) comply with a
density maximum of four students per dwelling unit; and (6) submit initial and thereafter renewal
registration of student housing providing a 24 hour contact person in Connecticut to resolve
complaints.
Defendants inquired of plaintiffs by letter concerning multiple properties whose permits
were up for renewal. For example, Ms. Masi, the Town zoning enforcement officer, wrote a
letter to plaintiffs on July 8, 2008 concerning one property in Hamden: 25 Evergreen Avenue for which plaintiffs had received a student housing permit on October 23, 2003. Between
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October 23, 2003 and July 8, 2008, plaintiffs did not submit a renewal application for 25
Evergreen Avenue. Ms. Masi sent a letter to plaintiffs informing them that if they intended to
rent 25 Evergreen Avenue to students for the fall 2008 - spring 2009 academic year, they were
required to submit a student housing permit application renewal form. In July of 2008, Ms. Masi
took similar action to notify other landlords that had properties to which student housing permits
had been previously issued. Ms. Masi subsequently issued a permit to plaintiffs for 25 Evergreen
Avenue.
On September 26, 2006, Mr. Kops was appointed by the Town to review, monitor and
approve applications for student housing permits. Mr. Kops responded by letter at least three
times to plaintiff’s applications for student housing permits.
On August 22, 2007, Mr. Labulis, the Town’s building official, received a phone call
from the town fire marshal requesting his presence at 3335 Whitney Avenue in Hamden to
inspect the premises. Upon conclusion of his inspection, Mr. Labulis placed a notice on the door
of the property identifying the property as uninhabitable. Following Mr. Labulis’ inspection, he
determined that the property was owned by plaintiffs Barbara and Joseph Bergman. Mr. Labulis
then sent a letter notifying the Bergmans of the building code violation.
On August 28, 2007, Mr. Labulis received a fax from Jacob Bergman informing him that
all alleged hazardous conditions at 3335 Whitney Avenue had been corrected. He immediately
filed a release of the non-habitable violations for the premises on the Town’s land records.
Plaintiffs never took an appeal of Mr. Labulis’s conduct as was their right pursuant to Conn. Gen.
Stat. Section 29-266.

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DISCUSSION
A motion for summary judgment will be granted where there is no genuine issue as to any
material fact and it is clear that the moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "Only when reasonable minds could not
differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci, 923
F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849 (1991).
The burden is on the moving party to demonstrate the absence of any material factual
issue genuinely in dispute. American International Group, Inc. v. London American International
Corp., 664 F.2d 348, 351 (2d Cir. 1981). In determining whether a genuine factual issue exists,
the court must resolve all ambiguities and draw all reasonable inferences against the moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
If a nonmoving party has failed to make a sufficient showing on an essential element of
its case with respect to which it has the burden of proof, then summary judgment is appropriate.
Celotex Corp., 477 U.S. at 323. If the nonmoving party submits evidence which is "merely
colorable," legally sufficient opposition to the motion for summary judgment is not met.
Anderson, 477 U.S. at 249.
Equal Protection
Plaintiffs equal protection claim is not a challenge to the Town zoning ordinance. Rather,
it is a claim of selective enforcement of the ordinance. Such a claim is proper where:
(1) the person, compared with others similarly situated, was selectively treated,
and (2) the selective treatment was motivated by an intention to discriminate on
the basis of impermissible considerations, such as race or religion, to punish or
inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to
injure the person.
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Zarha v. Town of Southold, 48 F.3d 674, 683 (2d Cir. 1995). Here, plaintiffs contend that they
were selectively treated on the basis of malice or bad faith. However, plaintiffs have provided no
admissible evidence to demonstrate that they were selectively treated as compared with others
similarly situated. Plaintiffs’ statement of material facts cites to plaintiffs’ interrogatory
responses which in turn cite to plaintiffs’ complaint. Alternatively, plaintiffs’ cite their own
depositions which offer their own opinion that defendants, in general, didn’t treat other landlords
similarly. Neither the complaint nor self-serving deposition answers are evidence of selective
treatment. “[T]he requirement imposed upon [p]laintiffs claiming an equal protection violation
[is that they] identify and relate specific instances where persons situated similarly in all relevant
aspects were treated differently.” Thomas v. City of W. Haven, 249 Conn. 385, 402, (1999).
Here, plaintiffs have failed to identify any specific instances of similarly situated persons
receiving differential treatment. Therefore, plaintiffs have failed to establish an equal protection
violation adequate to survive defendants’ motion for summary judgment.
Due Process
When a claim of denial of due process based on the Fourteenth Amendment is made
regarding the issuance of permits, the plaintiffs must first establish that they have a valid property
interest which meets the clear entitlement test. See Zahra 48 F.3d at 680. To have a property
interest entitled to Fourteenth Amendment protection “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.” Board of Regents v. Roth, 408 U.S. 564,
577 (1972). Here, plaintiffs’ due process claim is based not on the denial of permits, but on the
conditions imposed as prerequisites for a permit. Specifically, plaintiffs contend that their due
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process rights were violated when defendants required them to submit the licence plate numbers
of student tenants. However, “[t]he protection from arbitrariness is not a property right but the
essence of the constitutional right to substantive due process, whose violation requires the
deprivation of some external property right.” Goodspeed Airport v. E. Haddam Land Trust, Inc.,
166 F. App'x 506, 508 (2d Cir. 2006). As plaintiffs have pointed to no property right of which
defendants have deprived them, summary judgment will be granted in favor of defendants on
plaintiffs’ due process violation claim.
Tortious Interference
Connecticut General Statutes Sections 52-557n(b)(7) and (8) provide both the Town and
the individual defendants immunity from plaintiffs’ claims of tortious interference. Those
sections provide as follows:
[A] political subdivision of the state or any employee, officer or agent acting
within the scope of his employment or official duties shall not be liable for
damages to person or property resulting from: . . . (7) the issuance, denial,
suspension or revocation of, or failure or refusal to issue, deny, suspend or revoke
any permit, license, certificate, approval, order or similar authorization, when such
authority is a discretionary function by law, unless such issuance, denial,
suspension or revocation or such failure or refusal constitutes a reckless disregard
for health or safety; (8) failure to make an inspection or making an inadequate or
negligent inspection of any property, other than property owned or leased by or
leased to such political subdivision, to determine whether the property complies
with or violates any law or contains a hazard to health or safety, unless the
political subdivision had notice of such a violation of law or such a hazard or
unless such failure to inspect or such inadequate or negligent inspection
constitutes a reckless disregard for health or safety under all the relevant
circumstances . . .
Here, plaintiffs’ tortious interference claim is based on defendants’ permitting and performing
inspection of plaintiffs’ properties. Thus, Sections 52-557n(b)(7) and (8) are applicable, and

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summary judgment will be granted in favor of defendants.
CONCLUSION
For the foregoing reasons, defendants’ motion for summary judgment is GRANTED.
The Clerk is instructed to close this case.

Dated this 27th day of September, 2012 at Bridgeport, Connecticut.

_____________/s/__________________________
WARREN W. EGINTON
SENIOR UNITED STATES DISTRICT JUDGE

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