Perrie v. Middletown Zoning Board of Appeals

Filing 18

ORDER granting 15 motion to dismiss. The clerk is directed to close the case. Signed by Judge Alfred V. Covello on March 27, 2014. (Meskill, J)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RICHARD D. PERRIE, individually,
and as the authorized agent of the
Richard D. Perrie and Helen R. Perrie
Revocable Living Trust
plaintiff,
v.
MIDDLETOWN ZONING BOARD
OF APPEALS
defendant.

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NO. 3:13-cv-1667 (AVC)

RULING ON THE DEFENDANTS’ MOTION TO DISMISS
This is an action for damages in which the plaintiff,
Richard D. Perrie, claims that the defendant, the Middletown
Zoning Board of Appeals (hereinafter the “ZBA”), intentionally
and maliciously discriminated against the plaintiff, arbitrarily
used its power to deprive the plaintiff of the use of his
property, and engaged in vexatious litigation. It is brought
pursuant to 42 U.S.C. § 1983 (“Section 1983"), the United States
Constitution, Connecticut common law, and Connecticut general
statutes. The defendants filed the motion to dismiss pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure.
The issues presented are: 1) whether the plaintiff‟s § 1983
claims and state law claims of abuse of process and vexatious
litigation are time-barred by applicable statute of limitations;
2) whether the plaintiff‟s equal protection cause of action
identifies similarly situated persons who were treated

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differently; 3) whether a favorable ruling from the ZBA is a
constitutionally protected due process right; and 4) whether the
plaintiff alleges a plausible cause of action of gross abuse of
governmental authority by the ZBA.
As explained below, the court concludes that plaintiff‟s
causes of action are time-barred.1 The court, therefore, need not
decide the merits of the other issues, and the defendant‟s
motion to dismiss is GRANTED.
FACTS
The complaint alleges the following:
Perrie was the owner of property located at 186 Shore
Drive, Middletown, Connecticut (hereinafter “the property”). The
ZBA is an agency of the City of Middletown, Connecticut.
The property borders Crystal Lake and has a shed near the
lake, which is the source of the original dispute in this
matter. The plaintiff asserts that he “and his family have used
the property for at least seventy-five (75) years, mainly for
summer recreational purposes such as swimming, kayaking and
hosting family gatherings.”
In 2006, Perrie applied for a variance which, inter alia,
sought to relocate a shed on the property. Perrie “represented
to the defendant that the shed would be used for storage of
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Specifically, both the plaintiff‟s § 1983 causes of action pursuant to the
Equal Protection and Due Process clauses of the Fourteenth Amendment as well
as claims of abuse of process and vexatious litigation were brought after the
relevant statute of limitations had expired.
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kayaks and canoes and that it would also have some furniture in
it, such as a card table and chairs,” and that he was “not
seeking to construct a dwelling, but rather a storage shed
without electricity, heating or plumbing that would not be used
for human habitation except for temporary shelter from storms.”
On August 7, 2006, the defendant granted the variance,
allowing the storage shed to be expanded and relocated. The
variance did not prohibit the installation of electricity. In
the fall of 2007, Perrie installed electricity at the property
which was inspected and approved by the Middletown Building
Department. However, on April 22, 2009, a “Middletown Zoning
Enforcement Officer issued a cease and desist order to the
plaintiff citing an “unlawful use of land and structure” in
violation of the Middletown Zoning Code. The enforcement officer
stated that the ZBA approved a proposal for a storage shed
without electricity at its meeting on August 3, 2006. On April
30, 2009, the plaintiff appealed this order.
On October 1, 2009, the ZBA voted 4-2 to deny Perrie‟s
appeal of the cease and desist order. The ZBA “ruled that the
cease and desist order was properly issued because (a) the 2006
variance was for a shed without electricity and (b) because
installation of electricity at the property constituted an
unlawful use of the property.” On October 8, 2009, the ZBA‟s

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vote was published. On October 22, 2009, the plaintiff appealed
the ZBA‟s ruling to the Connecticut Superior Court.
The complaint alleges that the ZBA 1) knew the 2006
variance certificate contained no conditions or limiting
language regarding the use of electricity at the property; 2)
knew it could not interpret the terms of the variance so as to
hold that the variance precluded the use of electricity; and 3)
knew the addition of electricity to the shed did not and could
not exclude it from the category of an “existing use.”
On September 17, 2012, the Connecticut Superior Court
overturned the ZBA ruling as “illegal, arbitrary and an abuse of
discretion.”
The complaint in this action was filed on November 11,
2013, one (1) year, one (1) month and twenty-five (25) days
after the superior court‟s order overturning the ZBA‟s decision
and four (4) years, one (1) month and three (3) days after the
ZBA‟s publication of its decision.
STANDARD
The court must grant a motion to dismiss pursuant to the
Federal Rule of Civil Procedure 12(b)(6) if a plaintiff fails to
establish a claim upon which relief may be granted.

Such a

motion ”assess[es] the legal feasibility of the complaint, [it
does] not…assay the weight of the evidence which might be
offered in support thereof.”

Ryder Energy Distrib. Corp. v.
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Merrill Lynch Commodities, Inc., 784 F.2d 774, 779 (2d Cir.
1984).

When ruling on a motion to dismiss, the court must

presume that the well-pleaded facts alleged in the complaint are
true and draw all reasonable inferences from those facts in
favor of the plaintiff.
Cir. 1993).

Sykes v. James, 13 F. 3d 515, 519 (2d

The issue at this juncture is not whether the

plaintiff will prevail but whether he should have the
opportunity to prove his claim.
41, 45 (1957).

See Conley v. Gibson, 355 U.S.

In order to withstand a motion to dismiss, the

complaint must allege “enough facts to state a claim that is
plausible on its face.”

Bell Atlantic Corp. v. Twombly, 127 S.

Ct. 1955, 1974 (2007); Patane v. Clark, 508 F.3d 106, 111-112
(2d Cir. 2007).

The second circuit has recognized that Twombly

is not limited to antitrust cases and that the Supreme Court
requires “a flexible „plausibility standard,‟ which obliges a
pleader to amplify a claim with some factual allegations in
those contexts where such amplification is needed to render the
claim plausible.”
2007).

Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir.

In its review of a 12(b)(6) motion to dismiss, the court

may consider “only the facts alleged in the pleadings, documents
attached as exhibits or incorporated by reference in the
pleadings and matters of which judicial notice may be taken.”
Samuels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir.
1993).
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DISCUSSION
I.

Constitutional Causes of Action
The ZBA argues it is alleged to have committed a

discriminatory act when it “up[held] the cease and desist order
previously issued by the Zoning Enforcement Officer of April 22,
2009” and since the plaintiff filed this action in late 2013,
over four years later, the action is well past the relevant
Connecticut statute of limitations of three years. Specifically,
the ZBA argues that “[i]n § 1983 claims, the statute of
limitations is set by the state law statute of limitations for
personal injury actions,” which , “pursuant to Conn. Gen. Stat.
§ 52-577 . . . provides, „No action founded upon a tort shall be
brought but within three years from the date of the act or
omission complained of.‟” The ZBA also argues “[t]he standard
for accrual is set by federal law, and a claim begins to accrue
when the plaintiff knew or should have known that his rights
were violated.” Thus, the ZBA argues, the statute of limitations
was not tolled while defending an administrative appeal.
The plaintiff responds that the defendant‟s “argument is
based entirely on the unwarranted assumption that the conduct at
issue in this case is the defendant's initial action in denying
the plaintiff's appeal from the cease and desist order.”
Specifically, the plaintiff argues this suit is based upon

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“affirmative wrongful conduct by the defendant,” which did not
end until September 17, 2012.”
The determination of the appropriate statute of limitations
for § 1983 claims is left to the states. Wilson v. Garcia, 471
U.S. 261, 275 (1985). “Under Connecticut law, the statute of
limitations for § 1983 cases is the three-year period set forth
in Conn. Gen. Stat. § 57–577.” Lawson v. E. Hampton Planning &
Zoning Comm'n, 2008 WL 4371297 at *6 (D. Conn. Sept. 22, 2008)
(citing Orticelli v. Powers, 197 Conn. 9, 16 (1985)).
The accrual for § 1983 causes of action “is set by federal
law, ensuing once the plaintiff knows or has reason to know of
the injury which is the basis of his action.” Pearl v. City of
Long Beach, 296 F.3d 76, 80 (2d Cir.2002); see also Wallace v.
Kato, 549 U.S. 384 (2007).
Pursuant to “both federal and Connecticut law, a plaintiff
is not required to exhaust administrative remedies before
bringing a § 1983 action” and accrual began when the plaintiff
could bring a suit for relief. Lawson v. E. Hampton Planning &
Zoning Comm'n, 2008 WL 4371297 at *6 (D. Conn. Sept. 22, 2008)
(citing Patsy v. Florida Bd. of Regents, 457 U.S. 496 (1982);
Port Clinton Assoc. v. Bd. of Selectmen, 217 Conn. 588 (1991)).
“[I]t is knowledge of having been caused injury, not subsequent
judicial verification of the injury, that starts the running of

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the statute of limitations.” Morales v. City of Los Angeles, 214
F.3d 1151, 1153–54 (9th Cir.2000).
However, when a plaintiff experiences a “continuous
practice and policy of discrimination ... the commencement of
the statute of limitations period may be delayed until the last
discriminatory act in furtherance of it.” Jaghory v. New York
State Dep't of Educ., 131 F.3d 326, 331 (2d Cir. 1997)( citing
Cornwell v. Robinson, 23 F.3d 694, 703 (2d Cir.1994)). This
exception is often applied in an employment context but is also
applicable to licensing and permitting. See id. “While discrete
incidents of discrimination that are not related to
discriminatory policies or mechanisms may not amount to a
continuing violation, a continuing violation may be found where
there is proof of specific ongoing discriminatory policies or
practices, or where specific and related instances of
discrimination are permitted . . .” Cornwell 23 F.3d at 704
(internal citations omitted).
Here, the complaint does not allege specific ongoing
discriminatory policies or practices, or where specific and
related instances of discrimination are permitted. While it may
be true, as alleged in the complaint, that the plaintiff “was
forced to endure years of needless litigation” to appeal a
decision by the ZBA ultimately found by a Connecticut superior
court to be “illegal, arbitrary and an abuse of its discretion,”
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there is an absence of an allegation that this case falls into
the exception where there is a continuous practice and policy of
discrimination.
Just as the statute of limitations did not begin to run
with judicial verification of the injury, it likewise did not
begin to run when the defense of the appeal by the ZBA ended.
Without more, an allegation that the defense of an
administrative appeal is the continuation of a wrongful act
cannot overcome the rule that the statute of limitations is not
tolled on administrative appeal. Otherwise, such an exception
would swallow the rule.
The finding and publication affirming the zoning
enforcement officer‟s desist order in October of 2009 is the
last affirmative conduct by the ZBA that is the basis for the
constitutional causes of action. At that point the plaintiff had
reason to know of his injury, and the statute of limitations
began to run. Thus, the court concludes that because this action
was filed after the three-year statute of limitations for
section 1983 causes of action expired, the constitutional claims
are dismissed.
II.

Vexatious Litigation

The ZBA next argues that the plaintiff‟s Connecticut
statutory claim of vexatious litigation is also barred by the
three year statute of limitations set forth in Conn. Gen. Stat.
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§ 52-577. Specifically, the defendant argues that even if it
commenced and prosecuted an action against the plaintiff by way
of the cease and desist issued on April 22, 2009 it “was more
than four and a half (4 ½) years before this action was
instituted on November 11, 2013.” The defendant argues that it
“did not commence or „maintain‟ an action, since it was the
defending party in the prior appeal.”
The plaintiff responds that “Connecticut courts have
uniformly held that, although the statute of limitations is an
occurrence statute, rather than an accrual statute, the
occurrence covered by Section 52-568 is the maintenance of the
vexatious litigation, so that the last day on which the
vexatious suit is maintained is the date from which the statute
of limitations runs.” Specifically, the plaintiff argues that
with the occurrence covered by the maintenance of vexatious
litigation, the suit was “filed well within the statute of
limitations for vexatious litigation.” The plaintiff also argues
that the defendant‟s “somewhat tortured parsing of the statute
is at odds with the definition of the terms utilized by the
Connecticut courts” because it “was the defendant which
maintained its position on appeal despite what the court found
to be its utter lack of merit.” The plaintiff argues that the
defendant “deprived the plaintiff of the use of his property and
thus constrained him to expend large sums of money to gain
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relief from the defendant's „abusive‟ conduct - conduct which
persisted without respite until the Superior Court finally
ordered that it stop.”2
“The vexatious litigation statute, General Statutes § 52568 may be used to seek recovery from any person who commences
and prosecutes any civil action ... Prosecute is defined as
follows: To commence and carry out a legal action ... to proceed
against judicially ... To maintain rather than to commence or
begin an action ...

Shea v. Chase Manhattan Bank, N.A., 2000 WL

1196370 at *5 (Conn. Super. Ct. July 27, 2000) (internal
quotation marks and citations omitted). To defend is to “deny,
contest, or oppose (an allegation or claim).” Defend, Black's
Law Dictionary (9th ed. 2009).
In Shea, the plaintiff‟s “claim for vexatious litigation
was not brought within three years from commencement of the
prior action, but was brought within three years from
maintenance of that action.” Shea, 2000 WL 1196370 at *5. The
court found that the defendant “prosecuted” or “maintained” the
prior action until it withdrew the action. Id.
Here, the court sees a relevant distinction between the
plaintiff‟s ability to withdraw an action and the defendant‟s

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In a reply brief the defendant argues that “„vexatious litigation‟ [is] the
commencement and continuation as a plaintiff” and “there are no factual
allegations in Plaintiff‟s Complaint that the Defendant‟s failure to
capitulate to Plaintiff‟s appeal was tortious.”

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ability to capitulate for the purposes of Conn. Gen Stat. § 52568. The ZBA neither commenced, prosecuted, nor maintained the
superior court action. Rather, the ZBA defended the action on
appeal. Therefore, the finding and publication affirming the
zoning enforcement officer‟s desist order in October of 2009 was
the point in time the statute of limitations for a cognizable
vexatious litigation cause of action began to run. Therefore,
the vexatious litigation action was filed after the three-year
statute of limitations expired.
III. Abuse of Process
Finally, the defendant argues that the “Plaintiff‟s claim
for abuse of process fails to state a claim upon which relief
can be granted because the claim is barred by the statute of
limitations set out in Conn. Gen. Stat. § 52-577. Specifically,
the defendant argues that the “Plaintiff has not identified what
judicial procedure was allegedly abused by Defendant within the
three years prior to initiating the instant action.” The
defendant argues that “[t]he last allegedly improper action pled
was the decision to uphold the cease and desist order, and even
if “assum[ed] that this could be considered use of a judicial
procedure, which Defendant maintains it cannot, said action
occurred more than four years prior to the commencement of the
instant matter.”

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The plaintiff responds that “it is not merely the
commencement of an action for an improper purpose that is the
essence of an abuse of process claim; it also is "the subsequent
abuse thereof" which is sufficient to constitute an abuse of
process.” Specifically, the plaintiff argues that “a resolution
of the issues in the underlying case may be necessary to
determine whether the action was brought for an improper
purpose, such that ordinarily it would be premature to sue for
abuse of process while the underlying action remains pending.”
The plaintiff also argues that the “intent of the defendant,
which is an essential element of the tort of abuse of process,
ordinarily must be determined by the jury and cannot be
ascertained by the court on a preliminary motion.”
“An action for abuse of process lies against any person
using „a legal process against another in an improper manner or
to accomplish a purpose for which it was not designed.‟ ” Falls
Church Grp., Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84,
n. 10 (2007)(quoting Mozzochi v. Beck, 204 Conn. 490 (1987)).
Abuse of process “focuses on „the use of „a legal process ...
against another primarily to accomplish a purpose for which it
is not designed ....‟” Id.
The Connecticut Supreme Court held that “an abuse of
process claim may be predicated on conduct other than the
institution and prosecution of a legal action for an improper
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purpose” because abuse of process claims should be construed
broadly. Larobina v. McDonald, 274 Conn. 394, 406 (2005).
As concluded above, defending a decision in superior court
is not instituting and prosecuting a legal action. Additionally,
the complaint does not allege any conduct which used the legal
process for an improper purpose while the action was litigated
in superior court. Viewing the factual circumstances surrounding
the ZBA‟s October 2009 affirmation of the desist order in a
light favorable to the plaintiff, that is, as an abuse of
process, the court concludes that the statute of limitations
began to run at that point. However, the abuse of process cause
of action was filed after the three-year statute of limitations
expired and, therefore, the cause of action must be dismissed.
CONCLUSION
Based upon the foregoing, the motion to dismiss the onecount complaint for violations of the Substantive Due Process
and Equal Protection clauses of the Fourteenth Amendment as well
as the Connecticut actions for abuse of process and vexatious
litigation (document 13) are GRANTED.
It is so ordered, this 27th day of March, 2014 at Hartford,
Connecticut.
________/s/
_
Alfred V. Covello,
United States District Judge
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