Firetree, Ltd. et al v. Norwalk et al

Filing 76

ORDER. For the reasons set forth in the attached, the 48 motion to dismiss is hereby DENIED. Signed by Judge Michael P. Shea on 9/14/2018. (Self, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
FIRETREE, LTD.,
Plaintiff,
v.
No. 3:17cv1088 (MPS)
NORWALK et al.
Defendants.

RULING ON MOTION TO DISMISS
I.

Introduction
Plaintiff Firetree, Ltd. (“Firetree”) brings this suit against defendants1 for denying it

various permits required for it to operate a halfway house in Norwalk, Connecticut. Firetree
alleges that the defendants’ actions were motivated by discriminatory animus against the future
residents of the halfway house, whom Firetree alleges are disabled. Firetree sets out the
following claims based upon these allegations: (i) violation of the Fair Housing Act, 42 U.S.C. §
et seq. (“FHA”) (count one); (ii) violation of the Americans with Disabilities Act, 42 U.S.C. §
12101 et seq. (count two); (iii) violation of the Rehabilitation Act, 29 U.S.C. § 794 et seq. (count
three); (iv) violation of Firetree’s right to substantive due process and procedural due process
(count four); (v) violation of Firetree’s rights to equal protection and against retaliation (count
five); (vi) violation of the Connecticut Fair Housing Act, Conn. Gen. Stat. § 46a-64 et seq.
(“CFHA”) (count six); (vii) mandamus under Conn. Gen. Stat. § 52-485 et seq. (against
defendants Ireland, Rochefort, and Wrinn) (count seven); (viii) an appeal of the City of Norwalk

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The defendants include the City of Norwalk Zoning Board of Appeals, the City of
Norwalk, and the following individuals, all of whom are sued in their official capacities: Aline
Rochefort, Harry Rilling; Michael Wrinn; Andrew Conroy; Lee Levey; Gregory Brasher; Taylor
Strubinger; Keith Lyon; and Nadine Campbell.
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Zoning Board of Appeals’ (“ZBA”) denial of a certificate of occupancy under Conn. Gen. Stat. §
8-8 (count eight); (ix) an appeal of the ZBA’s denial of the plaintiff’s special exception
application (count nine); (x) violation of the Equal Protection Clause of Article I, § 5 of the
Connecticut Constitution (count 10); and (xi) a regulatory taking in violation of Article First, §
11 of the Connecticut Constitution (count 11). Now before me is the defendants’ [48] motion to
dismiss Firetree’s complaint under Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6). For the
reasons that follow, the motion is denied.
II.

Factual Allegations
Plaintiff makes the following factual allegations, which I assume to be true.
A.

Firetree’s Planned Halfway House

Firetree “operates halfway houses in Pennsylvania and New York for individuals referred
by the Federal Bureau of Prisons (“BOP”) . . . pursuant to fee for service contracts with the
BOP.” (ECF No. 26, Amended Complaint (“Complaint”) at ¶ 16.) These “halfway houses
provide quality transitional services to individuals associated with the criminal justice system,
including many who are recovering from alcohol addiction or drug addiction, have mental health
disabilities, or have physical disabilities.” (Id. at ¶ 17.) The “vast majority of individuals who
reside at Firetree’s halfway houses are diagnosed by the BOP as disabled with either addiction
recovery disabilities, mental health disabilities, or physical disabilities.” (Id. at ¶ 22.) Firetree
“expects that at least 75% of the residents at its Norwalk facility will have mental health or
physical disabilities, or will be recovering from drug or alcohol dependency.” (Id. at ¶ 31.)
Individuals “identified by the BOP for placement in a reentry facility [run by Firetree] may
decline such a referral.” (Id. at ¶ 24.) The individuals who choose to reside in Firetree’s halfway
houses “must try to obtain employment” and, once employed, must pay a quarter of their pay to

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“the BOP to partially cover the cost of housing the residents at Firetree’s halfway houses.” (Id.
at ¶ 27.) Residents “may leave the facility with the permission of Firetree staff.” (Id. at ¶ 28.)
B.

Previous Use of the Property

The property that Firetree sought to use for its planned halfway house (“the Property”) is
located in the City of Norwalk’s “C Residence Zone” district. (Id. at ¶ 35.) Before Firetree
acquired the property, it was owned by Pivot Ministries. (Id. at ¶ 36.) Pivot Ministries “obtained
zoning permits to use the Property as a halfway house.” (Id.) The zoning permits in question
“variously identified the use as ‘drug rehab center (L-2 Rooming House),’ ‘drug rehabilitation
center,’ and ‘rehabilitation center.’” (Id.). The permits “did not limit the number of individuals
who could reside at the Property, and did not place any conditions on the use of the Property.”
(Id.) “Most of Pivot Ministries’ residents resided at the Property as an alternative to being
incarcerated, had been recently released from prison, or had regular contact with the criminal
justice system, including probation, parole, or supervised release.” (Id. at ¶ 37.) Pivot Ministries
used the Property in this manner through 2015. (Id.)
During this period, Pivot Ministries’ use of the Property as a halfway house “became
legally nonconforming in two ways: (1) when the [City of Norwalk (“City”)] amended the
Building Zone Regulations in 1979 to remove ‘eleemosynary’ uses as a permitted use in the C
Residence Zone, and (2) when the City amended the Building Zone Regulations in 1989 to add a
definition of the term ‘halfway house’ and to allow halfway houses in the C Residence Zone with
special permit approval from the Norwalk Zoning Commission.” (Id. at ¶ 39.) “In 2016, the
City’s Assistant Director of Planning and zoning found that Pivot Ministries’ use of the Property
was legally nonconforming.” (Id.) “Since 1989, section 118-350 of the Building Zone
Regulations” has provided that “a halfway house for persons under the jurisdiction of the

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Department of Corrections shall not be permitted.” (Id. at ¶ 41.) “Pivot Ministries never applied
for or obtained a special permit relating to its use of the Property as a halfway house.” (Id. at ¶
42.)
C.

Firetree’s Purchase of the Property and Subsequent Preparations

In early 2014, Pivot Ministries contacted Firetree “to see if Firetree would be interested
in buying the Property for use as a halfway house. (Id. at ¶ 46.) Firetree subsequently contacted
Zoning Enforcement Officer Aline Rochefort (“ZEO”), who informed the company that “[a] new
zoning permit could be issued for the same use.” (Id. at ¶ 48.) “Firetree and Pivot Ministries
jointly submitted an application for zoning permit approval and zoning compliance on June 2,
2015.” (Id. at ¶ 51.) The ZEO “hand-wrote on the application form that the use is a ‘renovation
to existing residence—rehab center per attached back-up documentation.’” (Id. at ¶ 51.) The
ZEO “approved the zoning permit application on June 11, 2015 and issued a zoning permit (the
‘Zoning Permit’).” (Id. at ¶ 53.) Relying upon this, “Firetree purchased the Property from Pivot
Ministries for $429,000 in July 2015” and “entered into a contract with the BOP to provide
halfway house services at the Property to individuals being released from the BOP.” (Id. at ¶¶
54-55.) Firetree applied for and received two building permits in the spring of 2016, and
proceeded to complete renovation work at the Property at a cost of approximately $630,000. (Id.
at ¶ 59.) “Much of the renovation work undertaken by Firetree was specific to the Property’s
intended use and occupancy as a halfway house . . . .” (Id. at ¶ 60.) Firetree purchased various
equipment for the Property and hired several employees to work at the Property. (Id. at ¶¶ 6161.) “Firetree announced publicly that it intended to open its facility on September 1, 2016.”
(Id. at ¶ 62.)

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D.

Opposition to Firetree’s Intended Use of the Property

In July 2016, several residents near the Property created “the Quintard Avenue
Neighborhood Association (“QANA”) and . . . encouraged its members and residents to contact
the Mayor [of Norwalk] and other elected official to oppose [Firetree’s intended use of the
Property].” (Id. at ¶ 63.) “QANA and others opposed to Firetree sought to prevent use of the
Property as a halfway house because they did not want disabled individuals in their
neighborhood.” (Id. at ¶ 66.) The concentrated opposition of QANA exerted significant political
pressure on Norwalk Mayor Harry Rilling, who in turn “took steps to ensure that the neighbors
got what they wanted.” (Id. at ¶¶ 64-67.)
“On or about August 17, 2016, the City’s building inspectors determined that Firetree had
satisfactorily completed the renovation work and recommended that a [certificate of occupancy
(“C.O.”)] be issued to Firetree to occupy and use the Property.” (Id. at ¶ 68.) Firetree requested
a C.O. in August of 2016. (Id.) “The issuance of the C.O. was a ministerial act”; “[b]ecause
Firetree had satisfied all requirements for the issuance of the C.O., the City lacked any discretion
to deny it.” (Id. at ¶ 69.) In late August of 2016, however, Mayor Rilling announced at a rally
near the Property that “the City’s Building Zone Regulations do not permit halfway houses on
Quintard Avenue,” and that “the Norwalk Building Department would not issue Firetree a C.O. .
. .” (Id. at ¶ 71.)
Bowing to this political pressure, the City denied the C.O. on the basis that “the existing
zoning permit is for Pivot Ministries to operate a drug rehabilitation facility [and] the President
of [Firetree] has indicated that Firetree intends to operate a new facility on the premises which
may include the operation of a halfway house.” (Id. at ¶ 75.) The City informed Firetree that it
would have to “submit a new application for the new operator of your facility, which properly

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sets forth any existing and proposed uses of the building.” (Id.) Firetree was also “told by the
ZEO for the first time on October 13, 2016 that it needed an additional ‘tenant occupancy
permit’ in order to occupy the Property, even though it had already obtained the Zoning Permit
and the Building Permit and its use of the Property would be materially the same as Pivot
Ministries’ previous legally protected nonconforming use of the Property.” (Id. at ¶ 78.) Under
protest, Firetree “followed the ZEO’s suggestion and on January 13, 2017, filed an application
for a tenant occupancy permit and certificate of zoning compliance.” (Id. at ¶ 80.) “On February
6, 2017, Mayor Rilling wrote to a member of QANA to say that Firetree’s application for a
tenant occupancy permit was going to be denied, that the matter would likely end up in court,
and that the City ‘will need neighborhood support.’” (Id. at ¶ 82.) The ZEO denied Firetree’s
application for a tenant occupancy permit and zoning certificate of compliance two days later in
a one paragraph letter that “failed to articulate any basis or reason” for the denial. (Id. at ¶¶ 8283.)
Despite this setback, “Firetree appealed the ZEO’s February 8, 2017 decision to the ZBA
. . . .” (Id. at ¶ 84.) “At the same time Firetree filed the Appeal, in the alternative, it submitted
an application for special exception approval to allow a change from one nonconforming use to
another nonconforming use pursuant to Building Zone Regulations Section 118-800.C(4)
(‘Special Exception Application’).” (Id. at ¶ 85.) “Firetree also requested that the ZBA grant the
Appeal and order that a tenant occupancy permit and certificate of zoning compliance be issued,
or, in the alternative, approve the Special Exception Application, as reasonable accommodations
under the [FHA], and the [ADA], even if the ZBA determined that the use was not legally
nonconforming or, in the case of the Special Exception Application, did not meet the applicable

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criteria.” (Id. at ¶ 86.) Firetree made two requests for reasonable accommodations for its future
residents during the proceedings of the Appeal. (Id. at ¶ 87.)
The ZBA held a public hearing on Firetree’s appeal on May 4, 2017. (Id. at ¶ 91.)
During the hearing, a crowd of “unruly” residents “shout[ed] profanities while Firetree presented
its appeal, and repeatedly interrupted Firetree during the course of its presentation.” (Id. at ¶ 92.)
Firetree argued, amongst other things, “that the intended residents of its Norwalk halfway house
were a protected class under state and federal law and that the ZBA was required to consider
Firetree’s requests for reasonable accommodations to permit the use of the Property as a halfway
house.” (Id. at ¶ 94.) In particular, “Firetree presented evidence that the accommodations were
necessary to aid the Norwalk facility’s disabled residents because living in the group residential
setting at the Property [would] affirmatively enhance disabled residents’ quality of life by
ameliorating the effects of their disabilities.” (Id. at ¶ 95.) Several of the residents at the
hearing, however, opposed Firetree’s proposed halfway house “based on the disabilities of the
residents, and stereotypes about those with disabilities . . . .” (Id. at ¶ 101.) The meeting was
continued to June 7, 2017, during which time two members of the ZBA expressed biases against
Firetree’s proposed usage of the Property. (Id. at ¶¶ 104-113.) Only one of the ZBA members,
however, recused himself from the hearing. (Id. at ¶¶ 106, 109.) The ZBA eventually denied
Firetree’s appeal by a vote of 4-1. (Id. at ¶ 115.)
The ZBA held subsequently “a public hearing on Firetree’s Special Exception
Application on the evenings of June 28, July 13, and July 27, 2017.” (Id. at ¶ 117.) This
hearing, like the previous one, “was marred by procedural irregularities, discrimination, political
pressure, and neighborhood opposition based on stereotypes about persons with disabilities.”
(Id. at ¶ 117.) The Chairman of the ZBA, who had previously criticized Firetree in an interview

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with a local newspaper, refused to recuse himself from the matter. (Id. at ¶ 119.) Firetree made
a number of arguments at the hearing, including the request for a reasonable accommodation
under the FHA and the ADA. (Id. at ¶¶ 123-26.) As these hearings were ongoing, Firetree
commenced the instant suit on June 30, 2017, “alleging that the ZEO’s actions in denying the
tenant occupancy permit and certificate of zoning compliance and the ZBA’s actions in denying
the Appeal violated Firetree’s rights under the FHA, the ADA, the United States Constitution,
and state law . . . .” (Id. at ¶ 127.) “Although the ZBA had continued the public hearing from
July 13 to July 27 for two reasons only, on July 26, 2017 the ZBA invited City Director of
Human Relations and Fair Rent Department Adam Bovilsky to address the ZBA regarding
Firetree’s request for a reasonable accommodation under the ADA.” (Id. at ¶ 135.) “On July 27,
2017, Mr. Bovilsky submitted a letter to the ZBA” noting that although “he had not reviewed the
entire record, based on the documents that he had read it did not appear that Firetree provided
enough information as to Firetree’s request for a reasonable accommodation, and that Firetree’s
request could not be analyzed without more.” (Id. at ¶ 136.) The ZBA “closed the public
hearing on July 27” and subsequently denied Firetree’s Special Exception Application on a 4-1
vote. (Id. at ¶ 137.)
III.

Legal Standard
A.

Rule 12(b)(1)

“Dismissal of a case for lack of subject matter jurisdiction under Rule 12(b)(1) is proper
‘when the district court lacks the statutory or constitutional power to adjudicate it.’” Ford v.
D.C. 37 Union Local 1549, 579 F.3d 187, 188 (2d Cir. 2009), quoting Makarova v. United
States, 301 F.3d 110, 113 (2d Cir. 2000). In determining whether subject matter jurisdiction
exists, “the court must take all facts alleged in the complaint as true and draw all reasonable

8

inferences in favor of the plaintiff.” Natural Resources Defense Council v. Johnson, 461 F.3d
164, 171 (2d Cir. 2006). A district court may also “refer to evidence beyond the pleadings” in
determining whether subject matter jurisdiction exists. Makarova, 201 F.3d at 113. “The
plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the
evidence.” Aurecchione v. Schoolman Tranp. Sys, Inc., 426 F.3d 635, 638 (2d Cir. 2005).
B.

Rule 12(b)(6)

Under Fed. R. Civ. P. 12(b)(6), the Court must determine whether plaintiffs have alleged
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ray v. Watnick, 688 F. App'x 41 (2d Cir. 2017) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citations and internal quotation marks omitted)). While the Court
must “draw all reasonable inferences in favor of the non-moving party,” Vietnam Ass’n for
Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir. 2008), it must grant the
moving party’s motion if “a complaint is based solely on wholly conclusory allegations and
provides no factual support for such claims. . . .” Scott v. Town of Monroe, 306 F. Supp. 2d 191,
198 (D. Conn. 2004).
IV.

Discussion
A.

Subject Matter Jurisdiction

The defendants advance several arguments in support of the contention that the Court
lacks subject matter jurisdiction in this case. I address each in turn.

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1.

Ripeness

The defendants argue that all of Firetree’s claims, save the eighth and ninth counts of its
Complaint, fail on ripeness grounds. “Ripeness is a doctrine rooted both in Article III’s case or
controversy requirement and prudential limitations on the exercise of judicial authority.”
Murphy v. New Milford Zoning Comm'n, 402 F.3d 342, 347 (2d Cir. 2005). “At its heart is
whether [the Court] would benefit from deferring initial review until the claims [it is] called on
to consider have arisen in a more concrete and final form.” Id. In adjudicating ripeness claims,
courts must “consider (1) the fitness of the issues for judicial decision and (2) the hardship to the
parties of withholding court consideration.” Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 104
(2d Cir. 2014) (internal quotation marks omitted). The Second Circuit, relying upon the
Supreme Court’s decision in Williamson Cty. Reg'l Planning Comm'n v. Hamilton Bank of
Johnson City, 473 U.S. 172, 175 (1985), has set out a specific standard for ripeness in the context
of land use disputes. See Murphy, 402 F.3d at 347. This standard requires a plaintiff challenging
a zoning restriction “to obtain[] a final, definitive position from the entity charged with
implementing the zoning regulations” before bringing suit. Murphy, 402 F.3d at 342. But a
property owner is not required to litigate a dispute before a “purely remedial body” to make it
ripe. See id. at 350 (“[A] property owner will not be required to litigate a dispute before a zoning
board of appeals if it sits as a purely remedial body.”). A “remedial” body is one that is
“empowered, at most, to review [a zoning entity’s] rejection, not to participate in the [entity’s]
decisionmaking.” Williamson, 473 U.S. at 193. The defendants contend that Firetree failed to
meet this requirement. (ECF No. 48 at 13.) I disagree.
As noted above, Firetree appealed the denial of its tenant occupancy permit, C.O., and
Special Exception Application to the ZBA. Each of its appeals was denied. The next step for

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Firetree would have been an appeal to Connecticut Superior Court. See Conn. Gen. Stat. § 88(b) (“[A]ny person aggrieved by any decision of a board, including a decision to approve or
deny a site plan . . . or a special permit or special exception . . . may take an appeal to the
superior court for the judicial district in which the municipality is located . . . .”). Such a
proceeding would be purely remedial, however, given that the Superior Court would have the
power to review the ZBA’s decision only to the extent necessary to “determine whether it was
unreasonable, arbitrary or illegal.” See Irwin v. Planning & Zoning Comm'n of Town of
Litchfield, 244 Conn. 619, 628 (1998); see also Wiltzius v. Town of New Milford, 453 F. Supp.
2d 421, 431 (D. Conn. 2006) (“Connecticut law is clear that administrative appeals to the
Superior Court are purely remedial and, thus, not required before an agency decision is final.”);
Port Clinton Assocs. v. Bd. of Selectmen of Town of Clinton, 217 Conn. 588, 607 (1991)
(concluding that plaintiff bringing action under 42 U.S.C. § 1983 was not obligated to pursue
administrative appeal to superior court under Conn. Gen. Stat. § 8-8 from adverse decision
before commencing suit). Firetree’s claim is therefore ripe for adjudication.
Defendants cite Ferris v. Town of Guilford, No. 3:10-CV-2014 CSH, 2015 WL 128029
(D. Conn. Jan. 8, 2015) in support of a contrary conclusion. (See ECF No. 48 at 16.) Ferris
concerned a real estate developer’s appeal of a local zoning board’s refusal to approve a
proposed development in the absence of certain conditions. Id. at *1-3. The plaintiff in Ferris
had initially filed an appeal to the Connecticut Superior Court but withdrew it in favor of a suit in
federal district court claiming that the zoning board’s decision violated his constitutional rights—
in particular, he argued that the decision violated his “constitutional rights to equal protection of
the laws and due process.” Id. at *4. The Ferris court concluded that the plaintiff’s claim was
unripe for two reasons. Id. at *7. First, it emphasized the fact that the plaintiff had previously

11

filed suit in Connecticut Superior Court on the same grounds and then withdrawn that suit for
“inadequate and unpersuasive” reasons. Id. at *5. Second, the court concluded that the plaintiff
was effectively bootstrapping a challenge to the rationality of the zoning board’s decision into a
constitutional claim. See id. at *7 (“But [the plaintiff] does not have a right to parlay his refusal
to pursue an ‘available state law remedy’ in the state court into an entitlement to bring a federal
suit in this Court, alleging constitutional violations.”).
Neither of these rationales is applicable to the present case. Firetree did not file suit in
Connecticut Superior Court before filing the instant claim. See Beard v. Town of Monroe, No.
3:13CV1714 (JBA), 2015 WL 8023632, at *6 (D. Conn. Dec. 4, 2015) (distinguishing Ferris on
basis that plaintiff had not filed and then withdrawn claim in state superior court challenging
zoning board’s decision). Further, its constitutional and federal statutory claims do not provide a
mere façade for a frontal challenge to the rationality of the ZBA’s decision akin to the Ferris
plaintiff’s constitutional claims. Rather, Firetree alleges that the ZBA’s decision was motivated
by discriminatory animus. To the extent that the rationale of Ferris cannot be distinguished from
the present case, however, I decline to follow it.2 The majority of courts in this district to

I note that Ferris makes no mention of the Connecticut Supreme Court’s decision in
Port Clinton Associates, 217 Conn. 588, which rests, in part, on an interpretation of state law and
is, to that extent, binding on this Court. Specifically, in addressing the finality requirement of
Williamson (a matter of federal law), the Connecticut Supreme Court considered the same
Connecticut zoning appeal statute on which the defendants rely here, Conn. Gen. Stat. § 8-8,
holding that that statute “provides for an administrative appeal to the Superior Court, which may
review the propriety of the initial decisionmaker’s action within the usual limits on judicial
review of an agency action.” Port Clinton Associates, 217 Conn. at 607. The Court thus
concluded that “[t]he statutory appeals process under § 8-8 is . . . precisely the type of procedure
that a claimant under 42 U.S.C. § 1983 need not pursue as a prerequisite to filing his suit.” Id. at
607. In light of this, this Court is bound to construe § 8-8—as a matter of state law—as
“empower[ing the Connecticut Superior Court,] at most, to review that rejection, not to
participate in the [ZBA’s] decisionmaking.” Williamson County, 473 U.S. at 193. The
defendant’s reference in their reply brief to minor linguistic changes to § 8-8 in 2015 does not
change this outcome.
2

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consider the issue have held that an appeal of a zoning decision to the superior court under Conn.
Gen. Stat. § 8-8 constitutes a “remedial” proceeding. See Wiltzius, 453 F. at 431; Lawson v. E.
Hampton Planning & Zoning Comm'n, No. 3:07CV1270 AHN, 2008 WL 4371297, at *7 (D.
Conn. Sept. 22, 2008) (noting that appeal of adverse land-use decision to superior court “was
purely remedial”); Beard, 2015 WL 7023632 at *6 (concluding that plaintiff’s land-use claim
was ripe despite her failure to attain a final judgment from superior court before filing suit).
Further, the Second Circuit noted in Murphy that “a zoning board of appeals will typically be the
venue from which a final, definitive decision will emanate.” Murphy, 402 F.3d at 353. Thus, I
am not persuaded the case must be dismissed on ripeness grounds.
2.

Firetree’s Conn. Gen. Stat. § 8-8 Appeals

The defendants contend that Firetree’s eighth and ninth counts—both of which advance
appeals under Conn. Gen. Stat. § 8-8—fail on jurisdictional grounds. (ECF No. 48 at 19.) The
defendants advance two arguments in support of this contention: (1) that these state law claims
are the only ones not subject to dismissal on ripeness grounds and thus merit dismissal; and (2)
that these administrative appeals are not properly before this court. (See id.) The former
argument founders given that Firetree’s other claims are not subject to dismissal on ripeness
grounds. The second argument fares little better. Conn. Gen. Stat. § 8-8(b) provides that “any
person aggrieved by any decision of a board . . . may take an appeal to the superior court for the
judicial district in which the municipality is located.” The defendants contend that this language
forecloses an appeal to a federal district court. (ECF No. 48 at 20.) But a state statute cannot
divest a federal court of jurisdiction. See Grand Bahama Petroleum Co. v. Asiatic Petroleum
Corp., 550 F.2d 1320, 1325 (2d Cir. 1977) (“In determining its own jurisdiction, a District Court
of the United States must look to the sources of its power and not the acts of states which have

13

no power to enlarge or to contract the federal jurisdiction.” (internal quotation marks omitted)).
Thus, the language of Conn. Gen. Stat. § 8-8(b) does not divest the Court of jurisdiction over
Firetree’s claims. Here, the Court’s jurisdiction over Firetree’s claims under § 8-8(b) rests upon
supplemental jurisdiction.3 See 28 U.S.C. § 1367(a) (“[I]n any civil action of which the district
courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all
other claims that are so related to claims in the action within such original jurisdiction that they
form part of the same case or controversy under Article III of the United States Constitution.”).
The case of Elgard Corp. v. Brennan Const. Co., 157 F.R.D. 1 (D. Conn. 1994) is
instructive on this point. In Elgard, the defendants contended that a plaintiff’s suit under a state
statute had to be dismissed because the statute in question provided that “[e]very suit instituted
under this section shall be brought . . . in the superior court for the judicial district where the
contract was to be performed . . . .” Id. at 2 (internal quotation marks omitted). This language,
the defendants contended, “mandate[d] that [the plaintiff’s suit] be brought only in state Superior
Court in the judicial district where the project is situated.” Id. The Elgard court rejected this
claim, noting that “[w]hile a state statute may mandate that a bond suit be filed only in a
particular state court, . . . a state statute cannot divest a federal District Court of diversity
jurisdiction.” Id. (internal quotation marks and citations omitted). The same principle applies to
suits predicated upon supplemental jurisdiction. See U.S. ex rel. Galmines v. Novartis Pharm.
Corp., No. CIV.A. 06-3213, 2013 WL 5924962, at *5-6 (E.D. Pa. Nov. 5, 2013) (“[S]tate
statu[t]es cannot restrict federal court jurisdiction by specifying state venue as opposed to by
declaring jurisdiction exclusive in certain of its courts . . . . It is of no matter that these state law

3

It is worth noting that the plaintiff also invokes diversity jurisdiction, although it does
not specify the citizenship of the defendants. (See Complaint at ¶ 14.)
14

claims fall under the Court’s supplemental jurisdiction as opposed to its diversity jurisdiction—
they fall under federal jurisdiction . . . all the same . . . .” (internal citations omitted)). Thus, the
Court possesses jurisdiction over Firetree’s appeals under Conn. Gen. Stat. § 8-8(b).
3.

Joinder of Administrative Appeals

The defendants contend that Firetree cannot advance its appeals of the ZBA’s decision
under Conn. Gen. Stat. § 8-8(b) and its other claims in the same action. (ECF No. 48 at 22.) The
defendants reason that the limited right of appeal under § 8-8(b)—i.e., the limited record,
deferential standard of review, and requirement of adjudication by a judge—renders such claims
ill-suited for joinder with open-ended federal claims. (Id. at 22-23.) There is some Connecticut
case law that supports this point. See, e.g., Dan Beard, Inc. v. Orange Town Plan & Zoning
Comm'n, No. CV92 03 87 50S, 1992 WL 175075, at *3 (Conn. Super. Ct. July 16, 1992) (“It is
clear that an adjudication of the plaintiff’s § 1983 claim and an award of the monetary relief
requested pursuant to that claim are outside both the court’s scope of review and its authority to
grant relief in an appeal from decisions of a planning and zoning commission brought pursuant
to [Conn. Gen. Stat. § 8-8].”). On the other hand, other Connecticut courts have considered a
plaintiff’s constitutional claims along with its administrative appeals. See, e.g., Cambodian
Buddhist Soc'y of CT., Inc. v. Newtown Planning & Zoning Comm'n, No. CV030350572S, 2005
WL 3370834, at *3 (Conn. Super. Ct. Nov. 18, 2005) (considering plaintiff’s constitutional
claims along with its appeal under Conn. Gen. Stat. § 8-8).
Here, I conclude that forcing Firetree to seek review of its appeals under § 8-8(b) in a
separate action would be unnecessary and contrary to the interests of judicial economy. None of
the defendants’ arguments merit forcing Firetree to seek relief elsewhere after litigating this case
for nearly two years. First, the defendants’ objections regarding the standard of review are

15

irrelevant given the nature of Firetree’s claims. Firetree’s constitutional and statutory claims are
not reliant upon the supposition that the ZBA’s claims were merely wrong. Rather, they aver
that the ZBA’s decision was motivated by discriminatory animus. The Court can apply a
deferential standard of review in analyzing the ZBA’s decision—as Connecticut law requires—
while reviewing Firetree’s other claims de novo under applicable law.
Second, the defendants’ concerns about the lack of available discovery lack merit given
that Conn. Gen. Stat. § 8-8(k) permits a reviewing court to allow parties to supplement the
record. See Conn. Gen. Stat. § 8-8(k) (“The court shall review the proceedings of the board and
shall allow any party to introduce evidence in addition to the contents of the record if . . . it
appears to the court that additional testimony is necessary for the equitable disposition of the
appeal.”). Indeed, the Cambodian Buddhist Soc’y court did just that in order to review a
plaintiff’s federal claims along with its zoning appeal under § 8-8(b). See Cambodian Buddhist
Soc’y, 2005 WL 3370834, at *3 (noting that the court allowed the plaintiff to present evidence
outside of the record under Conn. Gen. Stat. § 8-8(k) in order to facilitate review of its federal
claims along with its zoning appeal). Finally, while the defendants are correct that Firetree’s
administrative appeals must be heard by the court as opposed to a jury, see Conn. Gen. Stat. § 88(i) (“The court, after a hearing thereon, may reverse or affirm, wholly or partly, or may revise,
modify or remand the decision from which the appeal was taken in a manner consistent with the
evidence in the record before it.”), nothing would prevent the court from hearing those claims
separately should either side file a jury demand. See Fed. R. Civ. P. 42(b). As it stands, no such
demand has been filed.
For these reasons, I conclude that the Court possesses subject matter jurisdiction over all
of the plaintiff’s claims.

16

B.

Rule 12(b)(6)
1.

FHA and CFHA Claims

The FHA prohibits “discriminat[ion] in the sale or rental, or to otherwise make
unavailable or deny, a dwelling to any buyer or renter because of a handicap of . . . a person
residing in or intending to reside in that dwelling after it is so sold, rented, or made available . . .
.” 42 U.S.C. § 3604(f)(1). Claims under the FHA and the CFHA are adjudicated under similar
same standards. See AvalonBay Communities, Inc. v. Town of Orange, 256 Conn. 557, 591
(2001) (“[I]n addressing claims brought under both federal and state housing laws, we are guided
by the cases interpreting federal fair housing laws . . . despite differences between the state and
federal statutes.” (internal citations and quotation marks omitted)).
The defendants assert that Firetree’s housing claims fail because the residents of the
proposed halfway house are prison inmates and such inmates have no right to the housing of
their choice. (See ECF No. 48 at 24-25.) This misses the point. Firetree is not arguing that the
defendants wrongfully denied it the ability to use the Property as a halfway house because of a
discriminatory animus against prisoners. It is contending that the defendants discriminated
against it because the residents of its halfway house are disabled. (See Complaint at ¶ 160
(“Defendants’ actions described herein were significantly motivated by the disabled status of
Firetree’s residents, and constitute intentional discrimination in violation of the [FHA].”).) To
the extent that the defendants argue that they actually denied Firetree’s requested zoning relief
because of its intent to house prisoners, such an argument depends on adopting factual

17

contentions contrary to the allegations in the complaint and thus cannot be vetted in the context
of a motion to dismiss. Thus, the defendant’s argument on this point is inapposite.4
The defendants also contend that Firetree’s FHA claims must be dismissed because “the
purpose of the FHA was not intended to apply to prisoners or correctional institutions as in the
present circumstances, but to apply in the context of the sale or rental of a dwelling.” (ECF No.
48 at 25.) In support of this contention, the defendants cite a single case from the District of
Columbia. (See id. (citing Abdus-Sabur v. Hope Vill., Inc., 221 F. Supp. 3d 3, 14 (D.D.C.
2016))). Abdus-Sabur concerned, in relevant part, a prisoner’s claim under the FHA against the
operator of a halfway house for failing to provide him with a handicap accessible shower. See

4

It is also worth noting that most of the cases the defendants cite address claims brought
by prisoners against the BOP based upon housing determinations made by the BOP or other
governmental authorities charged with housing prisoners. (See ECF No. 48 at 24-25 (citing, e.g.,
McGaughy v. Johnson, 63 F. App'x 177, 178 (6th Cir. 2003) (rejecting prisoner’s challenge to
placement in administrative segregation at prison); Vargas v. Pataki, 899 F. Supp. 96, 98
(N.D.N.Y. 1995) (rejecting prisoner’s challenge to amendment to New York State law governing
work release program making homicide offenders ineligible); Levine v. Apker, 455 F.3d 71, 83
(2d Cir. 2006) (rejecting prisoner’s challenge to BOP regulation limiting BOP’s ability to place
prisoners in halfway houses); Fournier v. Zickefoose, 620 F. Supp. 2d 313, 314 (D. Conn. 2009)
(rejecting prisoner’s challenge to BOP decision declining to place her in a halfway house for the
remainder of her term of imprisonment); Wong v. Ponce, No. 2:16-CV-00501 AC P, 2017 WL
784913, at *2 (E.D. Cal. Mar. 1, 2017) (“To the extent that petitioner claims a constitutional
right to be housed in a particular place, such as an RRC, that claim is without merit.”). None of
these cases speak to the plaintiff’s claim, however, which concerns whether an outside entity
may discriminate against individuals—who also happen to be inmates—because of their
disabilities after their designation to a particular residence by the BOP.
The only potentially relevant case the defendants cite in support of this argument is
Garcia v. Condarco, 114 F. Supp. 2d 1158 (D.N.M. 2000), a New Mexico district court decision
noting that “the primary purpose of the FHA has no application in the prison context.” Id. at
1162. Garcia, however, concerned a detainee’s sex discrimination claim under the FHA based
upon the plaintiff’s being sexually assaulted at a jail. Id. at *1159. Further, the only argument at
issue in that case was whether the jail constituted a “dwelling” under the FHA—an argument
defendants do not make with respect to the halfway house in this case. Id. at *1159. Thus, this
case is inapposite.
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id. at 6-7. The basis of the Abdus-Sabur court’s decision was that the “statutory language [of the
FHA] . . . limit[s] the scope of unlawful discrimination to the entity buying or renting the
dwelling in question.” Id. at *15 (internal quotation marks omitted). Even if that decision were
binding on me, however, it would not apply here. Firetree, undisputedly the buyer of the
dwelling, has alleged that the defendants have discriminated against it because its residents are
disabled, a claim expressly contemplated by the FHA. 42 U.S.C. § 3604(f)(1) (making it
unlawful “[t]o discriminate in the sale or rental, or to otherwise make unavailable or deny, a
dwelling to any buyer or renter because of a handicap of (A) that buyer or renter, (B) a person
residing in or intending to reside in that dwelling . . . or (C) any person associated with that buyer
or renter”). Further, Firetree has standing to assert such a claim. See Tsombanidis v. W. Haven
Fire Dep't, 352 F.3d 565, 574 (2d Cir. 2003) (concluding owner of halfway house for recovering
alcoholics and drug addicts had standing to advance handicap discrimination claim under FHA in
response to adverse zoning decision).
I therefore reject the defendants’ motion to dismiss Firetree’s fair housing claims.
2.

ADA and Rehabilitation Act Claims

Title II of the ADA states that “no qualified individual with a disability shall, by reason
of such disability, be excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
42 U.S.C. § 12132. In a similar vein, Section 504 of the Rehabilitation Act provides that “[n]o
otherwise qualified individual with a disability in the United States . . . shall, solely by reason of
her or his disability, be excluded from the participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal financial assistance.”
29 U.S.C. § 794(a). The defendants assert that Firetree’s ADA and Rehabilitation Act claims fail

19

for several reasons: (1) inmates do not have a right to the housing of their choice under the ADA;
(2) the defendants denied Firetree’s requests for zoning relief because of the future residents’
status as prisoners, not their disabilities; and (3) there can be no intentional discrimination given
that the zoning regulations at issue specifically prohibit prisoner halfway houses. (Id. at 27-29.)
The first and second arguments fail for the reasons discussed in the previous section.
The third argument does not move the dial for the defendants either. The defendants
contend that they could not have possibly intentionally discriminated against Firetree, because
they were merely faithfully applying the zoning regulations at issue. (ECF No. 48 at 28-29
(citing building Zone Regulation § 118-350 (B)(2)(h) (providing that “a halfway house for
persons under the jurisdiction of the Department of Corrections shall not be permitted”).) As an
initial matter, Firetree’s proposed halfway house would not appear to have run afoul of this
regulation on its face given that it would have housed persons under the jurisdiction of the BOP,
not the Connecticut Department of Corrections. Second, even if this regulation could be
construed to prohibit Firetree’s halfway house, the complaint pleads facts that, when construed in
Firetree’s favor, suggest that the ZBA applied the provision in a discriminatory manner. Thus,
the defendants’ contention that it was merely faithfully implementing the zoning regulations is
not a basis to dismiss these claims.5
3.

Equal Protection and Retaliation Claims

The defendants advance separate attacks upon the equal protection and retaliation
components of Firetree’s fifth and tenth counts. I address these arguments in turn.

The defendants also contend that Firetree’s Rehabilitation Act claim fails because,
under that statute, “the purported discrimination must be solely based upon the protected
disability.” (ECF No. 48 at 29.) As noted above, Firetree makes such an allegation. Thus, this
argument fails.
5

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a)

Retaliation Claim

To set out a First Amendment retaliation claim, a plaintiff “must prove: (1) he has an
interest protected by the First Amendment; (2) defendants’ actions were motivated or
substantially caused by his exercise of that right; and (3) defendants’ actions effectively chilled
the exercise of his First Amendment right.” Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir.
2001). The defendants contend that Firetree has failed to meet the third element of this standard,
because it continued litigating its case after the ZBA’s denial of its application for a Special
Exception Permit. (ECF No. 48 at 44.) This argument misconstrues the requirements for a
retaliation claim. The “chilling effect” component of a First Amendment retaliation claim need
not relate directly to speech; any harm independent of First Amendment chilling will do. See
Gill v. Pidlypchak, 389 F.3d 379, 383-84 (2d Cir. 2004) (“[D]efendants are correct that a plaintiff
asserting First Amendment retaliation must allege some sort of harm, but they are wrong that this
harm must, in all cases, be a chilling of speech . . . . Under this approach, standing is no issue
whenever the plaintiff has clearly alleged a concrete harm independent of First Amendment
chilling.”). Firetree alleges that its commencement of the lawsuit against the ZBA and the ZEO
on June 30, 2017 resulted in the ZBA’s denying Firetree’s Special Exception Application in
retaliation against Firetree. (See Complaint at ¶¶ 207-09.) This harm is significant enough to
grant Firetree standing to pursue a First Amendment retaliation claim. See Gagliardi v. Village
of Pawling, 18 F.3d 188, 194-95 (2d Cir. 1994) (reversing dismissal of First amendment
retaliation claim based on zoning decisions made after plaintiffs expressed opposition).
b)

Equal Protection Claim

A plaintiff may set out an equal protection claim by averring that, “(1) compared with
others similarly situated, plaintiff was selectively treated; and (2) that such selective treatment

21

was based on impermissible considerations such as race, religion, intent to inhibit or punish the
exercise of constitutional rights, or malicious or bad faith intent to injure a person.” Washpon v.
Parr, 561 F. Supp. 2d 394, 409 (S.D.N.Y. 2008) (quoting Freedom Holdings, Inc. v. Spitzer, 357
F.3d 205, 234 (2d Cir. 2004) (quoting Lisa’s Party City, Inc. v. Town of Henrietta, 185 F.3d 12,
16 (2d Cir. 2004))). He or she may also allege a “class of one” claim, “where the plaintiff
alleges that [he or she] has been intentionally treated differently from others similarly situated
and that there is no rational basis for the difference in treatment.” Vill. of Willowbrook v. Olech,
528 U.S. 562, 564 (2000). “In order to succeed on a ‘class of one’ claim, the level of similarity
between plaintiffs and the persons with whom they compare themselves must be extremely
high.” Neilson v. D'Angelis, 409 F.3d 100, 104 (2d Cir. 2005), overruled on other grounds by
Appel v. Spiridon, 531 F.3d 138 (2d Cir. 2008).
The defendants contend that Firetree’s equal protection claims in its fifth and tenth counts
fail because it cannot establish a “class of one claim”—in particular, they aver that Firetree’s
comparison of itself to Pivot Ministries is inapposite. (ECF No. 48 at 31.) The defendants
contend that the following differences between Firetree and Pivot Industries undermine the
comparison: (1) Pivot Ministries did not operate a residential reentry center on the Property; (2)
Pivot Ministries did not operate a correctional institution on the Property; (3) Pivot Industries did
not house prisoners serving a prison sentence; (4) Pivot Ministries never applied for a zoning
permit to operate a residential reentry center (or halfway house); (5) Pivot Ministries was never
granted a C.O. to operate a residential reentry center (or halfway house) in a Class C Residence
Zone. (Id. at 31-32.) The former three grounds appear to miss relevant portions of Firetree’s
complaint. As noted above, Firetree alleges that Pivot Ministries “obtained zoning permits to use
the Property as a halfway house” and that “[m]ost of Pivot Ministries’ residents resided at the

22

Property as an alternative to being incarcerated, had been recently released from prison, or had
regular contact with the criminal justice system, including probation, parole, or supervised
release.” (Complaint at ¶¶ 36-37.) Given that I am required to draw all inferences in Firetree’s
favor, I conclude that its allegation that Pivot Ministries housed residents “recently released from
prison” and “as an alternative to being incarcerated” and operated a “halfway house” could be
interpreted as housing persons serving a transitional portion of a prison sentence. Further, the
defendants’ contentions that Pivot Ministries never applied for or obtained zoning permits to
operate the Property as a halfway house is of no consequence given the allegation that it was
permitted to operate as such for years without incident. (See id. at ¶¶ 41-44.) Thus, Firetree
alleges that Pivot Ministries was permitted to use the Property as a halfway house without
incident, while Firetree was not. Since Firetree has adequately alleged an “extremely high” level
of similarities between its intended use of the Property and Pivot Ministries’ previous use of the
Property, I deny the defendants’ motion to dismiss Firetree’s equal protection claims.
4.

Substantive and Procedural Due Process Claims

To set out a “procedural due process violation, [a plaintiff] must: (1) identify a property
right, (2) establish that governmental action with respect to that property right amounted to a
deprivation, and (3) demonstrate that the deprivation occurred without due process.” Rosa R. v.
Connelly, 889 F.2d 435, 438 (2d Cir. 1989). To set out a substantive due process claim, a
plaintiff must similarly “establish that he had a valid property interest in a benefit that was
entitled to constitutional protection at the time he was deprived of that benefit.” Zahra v. Town
of Southold, 48 F.3d 674, 680 (2d Cir. 1995) (internal quotation marks and emphasis omitted).
The Second Circuit “uses a strict entitlement test to determine whether a party’s interest in landuse regulation is protectable under the fourteenth Amendment.” Id. (internal quotation marks

23

omitted). This “analysis focuses on the extent to which the deciding authority may exercise
discretion in arriving at a decision, rather than on an estimate of the probability that the authority
will make a specific decision.” Id. The defendants contend that Firetree’s substantive and
procedural due process claims fail because they do not meet this requirement. (ECF No. 48 at
33.)
This argument flies in the face of the allegations in the Complaint. As noted above,
Firetree alleges that Pivot Ministries used the Property in the exact same way that Firetree
intended to use it. (See Complaint at ¶¶ 36-37.) Under Connecticut law, zoning regulations may
not prohibit the continuance of a prior nonconforming use. See Conn. Gen. Stat. § 8-2(a)
(“[Town zoning] regulations shall not prohibit the continuance of any nonconforming use,
building or structure existing at the time of the adoption of such regulations or require a special
permit or special exception for any such continuance.”). A prior nonconforming use constitutes
a vested property right under both substantive and procedural due process. See Gavlak v. Town
of Somers, 267 F. Supp. 2d 214, 221 (D. Conn. 2003) (“[T]he plaintiffs have alleged the
existence of a nonconforming use, which, if established, is a vested property right in Connecticut
and its legality in the first instance does not require a variance . . . .”); Brady v. Town of
Colchester, 863 F.2d 205, 212 (2d Cir. 1988) (concluding district court erred in granting
summary judgment on plaintiffs’ substantive and procedural due process claims on basis that
they lacked cognizable Fourteenth Amendment property rights to certificate of occupancy where
plaintiffs had shown genuine dispute of material fact concerning whether prior use of property
was identical to plaintiffs’ proposed use of property).

24

I therefore reject the defendants’ motion to dismiss Firetree’s substantive and procedural
due process claims.6
5.

Takings Claim

The Connecticut Constitution provides that “[t]he property of no person shall be taken for
public use, without just compensation therefor.” Conn. Const. art. I, § 11. “An inverse
condemnation claim7 accrues when the purpose of government regulation and its economic effect
on the property owner render the regulation substantially equivalent to an eminent domain
proceeding.” Rural Water Co. v. Zoning Bd. of Appeals of Town of Ridgefield, 287 Conn. 282,
298 (2008) (internal quotation marks omitted). “[A]n inverse condemnation occurs when either:
(1) application of the regulation amounted to a practical confiscation because the property cannot
be used for any reasonable purpose; or (2) under a balancing test, the regulation’s application
impermissibly has infringed upon the owner’s reasonable investment-backed expectations of use
and enjoyment of the property so as to constitute a taking.” Id. Under the balancing test, a
“regulation does not constitute a compensable taking if it does not infringe on . . . [the]
reasonable investment-backed expectations [of the owner].” Id. (internal quotation marks
omitted). Courts analyzing takings claims under Connecticut law must “consider[] the facts of
each case with consideration being given not only to the degree of diminution in the value of the
land but also to the nature and degree of public harm to be prevented and to the alternatives
available to the landowner.” Jackson Hill Rd. Sharon CT, LLC v. Town of Sharon, No. 3:07-CV-

The defendants moved to dismiss Firetree’s mandamus claim on the basis that
Firetree’s procedural and substantive due process claims failed. Given my disposition with
respect to the latter claims, I deny the defendants’ motion to dismiss the mandamus claim.
7
Although Firetree does not specify what type of takings claim it advances in its
Complaint, it notes that it advances an inverse condemnation claim in its objection to the
defendants’ motion for summary judgment. (ECF No. 53 at 45.)
6

25

1445 (WWE), 2010 WL 2596927, at *4 (D. Conn. June 24, 2010) (internal citation marks
omitted). In other words, the “court must weigh the financial effects on the owner with the
health, safety and welfare of the community.” Id.
The defendants argue that Firetree’s takings claim fails because it does not allege that the
Property cannot be “utilized for any reasonable and proper purpose” if it cannot be used as a
halfway house. (ECF No. 48 at 35.) I disagree. Although the standard for takings claims under
Connecticut law is demanding, Firetree sets out a viable claim that its reasonable investmentbacked expectations were infringed by the defendants’ actions. In particular, as noted above,
Firetree contends that it purchased the property for $429,000 in reliance on the ZEO’s issuance
of the Zoning Permit and the Building Department’s issuance of the building permit. (Complaint
at ¶ 247.) Further, it contends that it spent $630,000 to renovate the Property specifically to
make it suitable as a halfway house. (Id.) When this claim is coupled with Firetree’s allegations
that its use of the Property “would actually increase safety in the area as compared to when Pivot
Ministries had operated its halfway house” (id. at ¶ 93), the balancing test above weighs in
Firetree’s favor.
The defendants contend that Firetree misrepresented its intended use of the Property and
therefore cannot advance any valid reliance interests. (ECF No. 59 at 10.) This argument,
however, would require me to disregard Firetree’s allegations in its complaint. I cannot take
such an action in adjudicating a motion to dismiss. The defendants also allege that Firetree has
not established that the Property could not be used for “any purpose other than for housing
inmates serving out their prison sentence.” (ECF No. 48 at 35.) But such a showing was not
required. Rather, Firetree merely had to satisfy the balancing test set out above weighing the
diminution of the property’s value against the potential harms to the local community addressed

26

by the regulation at issue. Firetree alleged that it purchased and renovated the property at
significant expense based upon the defendants’ misrepresentations and that the building is
“uniquely suited for use as a halfway house.” (Complaint at ¶ 247.) As noted above, it also
contended that its use of the Property would make the local community safer. Such allegations
“nudge [Firetree’s takings] claim[] across the line from conceivable to plausible” under the
balancing test for inverse condemnation claims. In re Fosamax Products Liab. Litig., 2010 WL
1654156, at *1.
V.

Conclusion
For these reasons, the defendants’ motion to dismiss (ECF No. 48) is denied.
IT IS SO ORDERED.
/s/
a
Michael P. Shea, U.S.D.J.
Dated:

Hartford, Connecticut
September 14, 2018

27