Danbury Sports Dome, LLC v. City of Danbury et al
ORDER granting 25 Motion to Dismiss. Please see attached Ruling & Order for details. The Clerk may close the file. Signed by Judge Robert N. Chatigny on 9/30/2017. (Rickevicius, L.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DANBURY SPORTS DOME, LLC,
CITY OF DANBURY and LEO NULL, :
Case No. 3:15-cv-931 (RNC)
RULING AND ORDER
Plaintiff Danbury Sports Dome, LLC, brings this action
pursuant to 42 U.S.C. § 1983 against the City of Danbury and its
building inspector, Leo Null, alleging violations of substantive
and procedural due process.
The complaint also includes
negligence claims under state law.
In essence, plaintiff alleges
that defendants unlawfully delayed issuing permits for the
construction of plaintiff’s sports complex and attached
unnecessary conditions to those permits once they were issued.
Defendants have moved to dismiss the complaint on the ground,
among others, that plaintiff lacked an interest protected by due
process that was violated by the allegedly improper delay and
I agree and therefore dismiss the due
I decline to exercise supplemental jurisdiction
over the negligence claims, which are dismissed without prejudice
to refiling in state court.
The complaint alleges the following.
Plaintiff owns and
operates an indoor multi-sport complex, known as “the Dome,” in
The Dome was constructed over the course
According to plaintiff’s anticipated schedule,
initial work was to begin in January 2012, construction would be
complete in October 2012, and the Dome would open in November
In keeping with this plan, plaintiff applied for a grading
and site work permit in January 2012, and the City approved the
permit in February.
After the grading and site work was
complete, plaintiff applied for a foundation permit in March
Because Danbury’s Building Inspector, Leo Null, was
unfamiliar with dome construction, approval of plaintiff’s
application was delayed, and Null demanded that plaintiff perform
After some back-and-forth, Null accepted results
from previous test borings, and the foundation permit was issued
in May 2012.
Once the foundation was complete, plaintiff applied for a
full building permit on June 25, 2012.
Even though the City was
required to respond to the application within 30 days, and
despite plaintiff’s many inquiries, plaintiff did not receive a
response until October 23, 2012.
That response consisted of 34
comments, which required modifications to plaintiff’s plans or
asked questions about the plans.
Plaintiff alleges that these
comments were unreasonable and demonstrated that Null refused to
understand the nature of dome construction.
In November 2012, after responding to Null’s comments,
plaintiff received permission to attach the fabric to the
foundation, but the City withheld permission to inflate the Dome
without any explanation until December 2012.
Once the Dome was
inflated, plaintiff began building out the interior, but Null
caused delays because he demanded modifications that were not
required by relevant building codes or otherwise warranted.
Finally, in August 2013, plaintiff received a certificate of
occupancy and was able to commence operations at the Dome.
Plaintiff alleges that throughout construction of the Dome,
defendants delayed issuing permits and imposed unnecessary
conditions, thereby delaying completion of the Dome by eight
This delay meant that plaintiff could not rent the Dome
as originally intended from November 2012 to August 2013.
addition, plaintiff was required to pay additional construction
costs and professional fees in order to comply with the
conditions and modifications.
Defendants’ motion to dismiss, brought under Rule 12(b)(6),
tests the complaint’s legal sufficiency.
To withstand the
motion, the complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Review under Rule 12(b)(6) occurs in two steps.
First, the court
must separate the complaint’s well-pleaded factual allegations
from its legal conclusions.
Well-pleaded facts are accepted as
true and viewed in the light most favorable to the plaintiff.
“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements,” must be disregarded.
Second, the court must determine whether the well-pleaded
facts in the complaint support a plausible inference that the
plaintiff is entitled to relief.
Id. at 678-79.
“is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.”
Id. (quoting Twombly, 550 U.S. at 556).
A complaint containing
facts “that are ‘merely consistent with’ a defendant’s liability
. . . ‘stops short of the line between possibility and
plausibility of entitlement to relief.’”
Id. (quoting Twombly,
550 U.S. at 557).
The complaint asserts that defendants violated plaintiff’s
substantive and procedural due process rights under the Due
Process Clause of the Fourteenth Amendment of the U.S.
Constitution by delaying the issuance of permits for construction
of the Dome and attaching unreasonable conditions to those
To adequately plead a violation of substantive due
process, plaintiff must allege that: (1) the plaintiff had a
“valid property interest,” and (2) the defendant “acted in an
arbitrary or irrational manner in depriving [plaintiff] of that
Crowley v. Courville, 76 F.3d 47, 52 (2d
To establish a procedural due process claim,
plaintiff must allege that: (1) he was deprived of protected
property interest, and (2) the procedures used to effect the
deprivation were constitutionally insufficient.
Nation of New York v. Madison Cty., 665 F.3d 408, 428 (2d Cir.
For either type of due process claim, therefore,
plaintiff must plausibly allege the existence of a property
interest protected by the Fourteenth Amendment’s Due Process
The Second Circuit has explained that a constitutionally
protected property interest arises in the context of land use
regulation only when “there is an entitlement to the relief
sought by the property owner.”
F.3d 188, 192 (2d Cir. 1994).
Gagliardi v. Vill. of Pawling, 18
A plaintiff has a “legitimate
claim of entitlement” to a particular benefit if, “absent the
alleged denial of due process, there is a certainty or a very
strong likelihood that the benefit would have been granted.”
If a local regulator has discretion, the claimant does not have a
property right unless that discretion “is so narrowly
circumscribed as to virtually assure conferral of the benefit.”
This analysis turns on “the degree of official discretion,”
not the “probability of its favorable exercise.”
Here, plaintiff has not alleged the existence of a
constitutionally protected property interest.
Under the relevant
state statute, building officials have “no independent
discretion” beyond determining whether plans submitted by an
applicant are in compliance with building and safety codes.
Walker v. Town of New Milford, No. CV 93 0062598, 1995 WL 243387,
at *4 (Conn. Super. Ct. Apr. 17, 1995), aff’d, 677 A.2d 28 (Conn.
If the plans are in compliance, local authorities have
“no discretion” to deny those applications.
alleges that plaintiff’s “applications and plans complied with
the applicable building codes,” Compl. (ECF No. 1) ¶ 16, but the
complaint shows that plaintiff received all permits needed to
build and begin operating the Dome.
What is at issue is the
allegedly unreasonable delay plaintiff experienced in getting
permits and the allegedly unnecessary conditions that were
attached to them.
Plaintiff has not pointed to any provision in the relevant
statutes or regulations that confers a legitimate claim of
entitlement to permits issued in a more timely manner or without
any conditions attached.
As just discussed, plaintiff cannot
prevail on a due process claim without showing that, under the
relevant state and local law, it was “virtually assure[d]” that
there would be no delay or conditions.1
Gagliardi, 18 F.3d at
To the extent plaintiff’s claims can be construed as
asserting that plaintiff was singled out by defendants for unfair
Because plaintiff has not made this showing, the due
process claims are legally insufficient.
Accordingly, the motion to dismiss (ECF No. 25) is hereby
I decline to exercise supplemental jurisdiction over
the remaining state law claims, which are dismissed without
prejudice to refiling in state court.
The Clerk may close the file.
So ordered this 30th day of September 2017.
Robert N. Chatigny
United States District Judge
treatment when defendants refused to learn the necessary
information regarding construction of inflatable domes, as
plaintiff urged at oral argument, such a claim does not properly
invoke the due process clause. Instead, this type of claim would
arise under a “class of one” theory pursuant to the equal
protection clause and would require factual support to be
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