Andrews et al v. Wallingford et al
ORDER. For the reasons stated in the attached ruling, defendants' motion for judgment on the pleadings (Doc. # 28 ) is GRANTED. Plaintiffs' motions for a preliminary injunction (Doc. # 3 ) and for a waiver of security bond (Doc. # 4 ) are DENIED as moot. Signed by Judge Jeffrey A. Meyer on 8/21/2017. (Townsend, D.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
LYNN COOKE ANDREWS, et al.,
No. 3:16-cv-01232 (JAM)
TOWN OF WALLINGFORD, et al.,
RULING ON MOTION FOR JUDGMENT ON THE PLEADINGS
Cities and towns across America routinely bring enforcement actions against landowners
who violate local land-use laws. That’s what happened in this case—plaintiffs built a pond to use
for their farm without first applying for a wetlands permit from their town, and town officials
came down on plaintiffs with cease-and-desist orders. Plaintiffs eventually decided to file this
federal court lawsuit, contending that the town has violated their constitutional right to farm the
The principal question now before me is whether plaintiffs waited too long to come to
federal court. The statute of limitations is three years, but plaintiffs waited much longer than that
since they were first subject to the town’s enforcement orders. According to plaintiffs, they could
wait as long as they wanted. They claim that the statute of limitations has not expired, because
they continue to be subject to the ongoing effects of the town’s enforcement orders that prevent
them every day until now from using their farm pond as they wish. I don’t agree. I conclude that
plaintiffs were aware of their injury more than three years before they filed this lawsuit and that
their claims are therefore time-barred by the statute of limitations. Accordingly, I will grant the
motion to dismiss this case.
Plaintiffs own a family farm in Wallingford, Connecticut. They have sued three
defendants: the Town of Wallingford (the “Town”), the Town’s Inland Wetlands and
Watercourses Commission (the “Commission”), and Erin O’Hare who is the Town’s
environmental planner. I assume the following allegations to be true as set forth in the complaint,
and I also take judicial notice of prior state court judicial proceedings between the parties.
In July 2009 plaintiffs constructed a pond on their farm. Plaintiffs thought that they were
entitled as of right to build this pond under Conn. Gen. Stat. § 22a-40(a), which allows the
construction of a farm pond as a matter of legal right if the farm pond is “essential to the farming
operation.” But in August 2009, the Commission issued a cease-and-desist order, and the
Commission required plaintiffs to submit an application and to seek permission of the
Commission to build a pond. By December 2009 and January 2010, defendants further
determined that plaintiffs’ farm was not essential to their farming operation and that plaintiffs
must remediate the pond to restore the land to its previous condition.
Plaintiffs did not do so, and soon enough the Commission issued another cease-and-desist
order in July 2010 directing plaintiffs to stop using their pond. The Commission thereafter
commenced a state court action in which—according to plaintiffs—defendants knowingly
mischaracterized plaintiffs’ farm operation in order to enforce their regulatory scheme and to
deprive plaintiffs of their State-created property interest to construct a farm pond.
Defendants ultimately prevailed in the state court action, and the state court entered a
permanent injunction in January 2012 to require plaintiffs to remove the pond and remediate
their land. See Inland Wetlands v. Lynn Cooke Andrews, et al., No. CV-10-5033404-S (Conn.
Super. Ct. January 23, 2012). The trial court’s decision was affirmed on appeal in November
2012. See Inland Wetlands and Watercourses Com’n of Town of Wallingford v. Andrews, 139
Conn. App. 359 (Conn. App. 2012) (per curiam). The Connecticut Appellate Court concluded in
part that plaintiffs were foreclosed from challenging the validity of defendants’ enforcement
orders because they had failed to lodge a timely appeal from those orders: “The proper way to
vindicate a legal position is not to disobey the orders, but rather to challenge them on appeal.” Id.
More than three years went by before plaintiffs filed this federal court action in July
2016. Plaintiffs allege pursuant to 42 U.S.C. § 1983 that “[t]he Defendants’ regulations and their
implementation of them through the above described actions violated the Plaintiffs’ clearly
established, statutory, as-of-right use of their land and/or their Constitutional right to pursue their
farming occupation, rights, entitlements and/or interests of which any reasonable person should
have been aware.” Doc. #1-2 at 5–6 (¶ 20). They further claim that “[a]s a result of the
Defendants’ enforcement of the unlawful regulation the Plaintiffs have and continue to suffer
irreparable harm, including the loss of the ability to grow crops, the inability to adequately feed
and/or water livestock, the loss of income, the loss of real property value, legal expenses,
remediation expenses, the costs of re-implementation, the inability to operate the farm and the
loss of their chosen occupation as farmers.” Id. at 6 (¶ 21); see also id. at 7-8 (¶¶ 26–28)
(describing nature of constitutional legal claims in similar manner).
Defendants have moved pursuant to Fed. R. Civ. P. 12(c) for judgment on the pleadings.
Among other arguments, defendants contend the complaint is barred by the statute of limitations.
When evaluating a defendant’s motion for judgment on the pleadings pursuant to Fed. R.
Civ. P. 12(c), a court must accept all allegations of the complaint as true and draw all reasonable
inferences in favor of the plaintiff in light of what is alleged in the complaint. See, e.g., Bank of
New York v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010). Still, a court may dismiss
a complaint if there are no plausible grounds from the face of the complaint to conclude that the
complaint has been timely filed. See, e.g., Ellul v. Congregation of Christian Bros., 774 F.3d
791, 798 n.12 (2d Cir. 2014).
It is well established that a § 1983 action for a violation of the Constitution that is filed in
a federal court in Connecticut is subject to a three-year statute of limitations. See, e.g., Walker v.
Jastremski, 430 F.3d 560, 562 (2d Cir. 2005). Because plaintiffs filed their lawsuit on July 22,
2016, I must consider whether plaintiffs’ claims accrued more than three years prior to July 22,
2016—that is, at any time prior to July 22, 2013.
For § 1983 actions, federal law “establishes as the time of accrual that point in time when
the plaintiff knows or has reason to know of the injury which is the basis of his action.”
Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir.1980) (citation and internal quotation
marks omitted). Thus, as the Second Circuit has explained, “[t]he crucial time for accrual
purposes is when the plaintiff becomes aware that he is suffering from a wrong for which
damages may be recovered in a civil action.” Id. at 192.
To similar effect, the Supreme Court has more recently noted “the standard rule that
accrual occurs when the plaintiff has a complete and present cause of action, that is, when the
plaintiff can file suit and obtain relief.” Wallace v. Kato, 549 U.S. 384, 388 (2007) (internal
citations, quotations, and bracket marks omitted). Thus, a “‘tort cause of action accrues, and the
statute of limitations commences to run, when the wrongful act or omission results in damages,’”
and “‘[t]he cause of action accrues even though the full extent of the injury is not then known or
predictable.’” Id. at 391 (quoting 1 C. Corman, Limitation of Actions § 7.4.1, pp. 526–527
(1991)); see also Smith v. Campbell, 782 F.3d 93, 100 (2d Cir. 2015) (same).
In light of these principles, there can be no doubt that plaintiffs’ cause of action accrued
long before July 22, 2013. Plaintiffs were first aware of their injury as of August 2009 when the
Commission issued its initial cease-and-desist order and then again with the Commission’s
subsequent orders of December 2009 and January and July 2010. They were doubtlessly aware
of their injury when they litigated with the Town through the state court system, ultimately
losing their case on appeal in November 2012. I need not decide on which of these dates
plaintiffs’ cause of action accrued (but probably the earliest of them), because all of these dates
occurred long prior to the cut-off date of July 22, 2013, for the statute of limitations in this case.
Plaintiffs contend that their action is timely under the so-called “continuing violation”
doctrine. I do not agree. As the Second Circuit has explained at length, the “continuing violation”
doctrine provides an exception to the normal “knew-or-should-have-known” rule for when a
cause of action accrues. See Gonzalez v. Hasty, 802 F.3d 212, 220 (2d Cir. 2015). But the
doctrine “applies to claims composed of a series of separate acts that collectively constitute one
unlawful practice,” applying “to claims that by their nature accrue only after the plaintiff has
been subjected to some threshold amount of mistreatment.” Ibid. Accordingly, “where the
continuing violation doctrine applies, the limitations period begins to run when the defendant has
engaged in enough activity to make out an actionable … claim,” and “[a] claim will be timely . .
. only if the plaintiff alleges … some non-time-barred acts contributing to the violation.” Ibid.
Thus, for example, claims for a hostile work environment or for deliberate indifference to
a prisoner’s serious medical needs are the types of claims that are most susceptible to the
“continuing violation” rule. Id. at 220–21. Both these kinds of claims often—but not always—
rely on an aggregation or accumulation of adverse actions (or omissions), none of which
individually would give rise to a harm sufficient to support a cause of action.
The “continuing violation” rule does not apply merely because a plaintiff experiences
continuing harm from a defendant’s otherwise discrete time-barred act. Thus, for example, if a
prison guard retaliates against a prisoner’s free speech by throwing him into a punitive
segregated housing unit, the statute of limitations accrues on the date of the guard’s initially
wrongful retaliatory act, and the accrual date is not suspended for the duration of the prisoner’s
wrongful incarceration despite the fact that the prisoner doubtlessly experiences continuing harm
from the initially wrongful act. See id. at 222 (rejecting application of “continuing violation” rule
in this context and explaining that the “mere fact that the effects of retaliation are continuing
does not make the retaliatory act itself a continuing one”).
Here it is clear to me that the “continuing violation” doctrine does not apply to plaintiffs’
claims. Plaintiffs do not argue that defendants’ actions accumulated over time to the point that
only after July 2013 did their actions become unlawfully injurious. Defendants issued a ceaseand-desist letter to plaintiffs in 2009, ordered plaintiffs to remediate their land in 2010, and
obtained an injunction in state court against plaintiffs in 2012. Each of these were discrete
actions that would give plaintiffs reason to know many times over of their alleged injury—the
defendants’ application of local regulations to prevent plaintiffs from creating or using their
pond. Plaintiffs do not contend that these actions became unlawful only after they accumulated
to a certain point.
Plaintiffs rely on Harris v. City of New York, 186 F.3d 243 (2d Cir. 1999), a case
involving a plaintiff who alleged that his employer unlawfully discriminated against him when it
failed to consider him for promotion. Id. at 248. The statute of limitations was at issue because
the employer defendant argued that the plaintiff should have known he had been passed over for
promotion on a date outside the limitations period. Ibid. The court of appeals noted that “a
continuing violation cannot be established merely because the claimant continues to feel the
effects of a time-barred . . . act.” Id. at 250. The court, however, declined to conclude that the
plaintiff’s action was time-barred, because the plaintiff had not alleged a particular date on which
his employer had failed to promote him, and it was possible that the employer’s failure to
promote the plaintiff was in fact a continuous failure to act, rather than a discrete decision that
was made at one earlier time. Ibid.
The Harris decision does not help plaintiffs here, because they cannot point to any
discrete act by defendants that took place within three years of their filing of this lawsuit. No
such acts are alleged in the complaint. And any such acts to enforce prior orders that plaintiffs
continue to disobey would wholly stem from prior time-barred acts and would not furnish
grounds for plaintiffs to seek the relief that they now claim in this Court.
More to the point is the Second Circuit’s decision in Lee v. Town Bd. of Town of Ellicott,
New York, 151 Fed. App’x 18, 19 (2d Cir. 2005), which involved a court challenge that was
brought in 2002 to a permanent injunction that a town had obtained in 1995 in an action to
enforce a zoning provision. See ibid. The town had also filed a motion for contempt in 2001 to
enforce the 1995 injunction. The Second Circuit held that the “continuing violation” rule did not
apply—that the statute of limitations properly ran from the date (1995) that the land-use
injunction issued, rather than the later date (2001) when the town moved for contempt in light of
the plaintiffs’ failure to comply with the injunction. Id. at 19–20 (citing Washington v. County of
Rockland, 373 F.3d 310, 318 (2d Cir. 2004)).
If plaintiffs’ theory were correct about how the “continuing violation” rule should apply
in this case, the theory would render the statute of limitations as practically meaningless for a
multitude of court challenges to governmental enforcement orders. Any governmental
enforcement order would be perpetually vulnerable to challenge by those who slept on their
rights to pursue a timely court challenge promptly after the law was first enforced against them.
“[S]tatutes of limitations reflect that, at a certain point, the need for finality is paramount
even in light of countervailing equity considerations.” In re Bernard L. Madoff Inv. Securities
LLC, 773 F.3d 411, 423 (2d Cir. 2014). The need for finality is particularly strong where, as
here, defendants have previously expended significant resources years ago against plaintiffs’
The facts of this case distinguish it from cases involving belated challenges to statutes or
administrative regulations. Considerable precedent suggests that the statute of limitations for a
challenge to a statute or regulation does not ordinarily accrue from the date that the statute is
enacted. See, e.g., Scheer v. Kelly, 817 F.3d 1183, 1186–88 (9th Cir. 2016) (discussing
examples); Kuhnle Brothers, Inc. v. County of Geauga, 103 F.3d 516, 521 (6th Cir. 1997) (“[a]
law that works an ongoing violation of constitutional rights does not become immunized from
legal challenge for all time merely because no one challenges it within two years of its
enactment”); see also Wallace v. New York, 40 F. Supp. 3d 278, 302 (E.D.N.Y. 2014) (“the clock
on any challenge to the constitutionality of a statute, whose continued application works an
ongoing constitutional violation, starts to run anew, every day that the statute applies.”).
This rule for a challenge to a statute or regulation makes sense because a statute or
regulation by definition establishes a rule of general application, one that is merely capable of
enforcement in the particular. A governmental or administrative enforcement order, by contrast,
represents a specific application and enforcement of a statute or regulation against a particular
person. The enforcement action causes an “injury” to persons like plaintiffs in this case. And
their time for a court challenge has long since passed.
Defendants’ motion for judgment on the pleadings (Doc. #28) is GRANTED. Plaintiffs’
motions for a preliminary injunction (Doc. #3) and for a waiver of security bond (Doc. #4) are
DENIED as moot. The Clerk of Court shall close this case.
It is so ordered.
Dated at New Haven, Connecticut, this 21st day of August 2017.
/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge
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