Case 3:17-cv-00985-KAD Document 104 Filed 12/07/20 Page 1 of 27

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT
____________________________________
ONE BARBERRY REAL ESTATE :
HOLDING LLC, FARM RIVER ROCK, :
LLC AND JOHN PATTON :
: CIVIL NO. 3:17-cv-00985 KAD
VS. :
:
JOSEPH MATURO, JR., MARK NIMONS, :
CHRISTOPHER SOTO AND MICHAEL :
MILICI : DECEMBER 7, 2020
___________________________________ :

____________________________________
JOHN PATTON, ONE BARBERRY REAL :
ESTATE HOLDING LLC and :
FARM RIVER ROCK, LLC :
: CIVIL NO. 3:17-cv-01392 KAD
VS. :
:
TOWN OF EAST HAVEN : DECEMBER 7, 2020
___________________________________ :

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT TOWN OF EAST

HAVEN’S MOTION FOR SUMMARY JUDGMENT
The Defendant, Town of East Haven, hereby moves for summary judgment with respect

to the Plaintiff’s Second Amended Complaint dated September 15, 2020. As will be set forth

below, there is no genuine dispute as any material fact and the Defendant is entitled to summary

judgment as a matter of law.

I. FACTS/BACKGROUND

a. ZONING ISSUES

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The Plaintiffs1 own property located at 1 Barberry Road, East Haven, Connecticut

(“Property”). In 2017, the Plaintiffs operated a quarry on the Property. Second Amended

Complaint § 1. The Property was acquired by the Plaintiffs from What TF, LLC via warranty

deed dated March 11, 2016. Ex. 1. Prior to acquiring the Property, Plaintiffs leased the Property

from What TF, LLC beginning in 2013. Ex. 2. What TF, LLC was a limited liability company

owned by Mark DiLungo. Ex. 3 at 13-14. Dilungo had acquired the Property from Joseph

Spezzano via foreclosure in the mid-2000’s. Ex. 3 at 11-12. Spezzano owned the property from

the 1970’s until the foreclosure, which apparently occurred in 2008. Ex. 4 at 13. Spezzano

testified that he began operating a quarry on the Property in 1988. Ex. 4 at 16.

On April 5, 2013, Attorney Nicholas Mingione reached out to the town on behalf of the

Plaintiffs. Ex. 5. He took the position that the Property had a pre-existing/non-conforming use as

a quarry and was thus exempt from zoning and permitting requirements. Ex. 5. He referenced a

“historical search” of the zoning files which purportedly revealed clear evidence of the use. Ex.

5. On April 15, 2013, Town Attorney Joe Zullo responded to Mingione by letter and stated:

“The Town does not believe that the materials in the possession of the Town support a finding

that there is a pre-existing, non-conforming ‘rock quarry’ use for the [Property]. In fact, the

Town believes such a use, to whatever extent it is supported by the sparse papers contained in the

zoning file, was not maintained with sufficient regularity and that is has been discontinued or

abandoned.” Ex. 6.

1
One Barberry Real Estate Holdings, LLC holds title to the property. Farm River Rock, LLC apparently runs the
quarry business on the property. John Patton is a member of both companies.
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On April 25, 2013, Zullo wrote a memorandum detailing his position that there was no

evidence of a pre-existing/non-conforming use. Ex. 7; Ex. 8 at 62. The memo indicates he

contacted the zoning enforcement officer (“ZEO”) at the time, Frank Biancur, and was told there

was no information in the file to support Mingione’s claim. Ex. 7 at 1. On May 1, 2013, Frank

Biancur sent an additional letter to Mingione stating that the town had researched the issue and

“come to a determination that your claim of a pre-existing, non-conforming use does not exempt

you from the procedural requirements of needing to obtain a special exception permit…”. Ex. 9.

In 2017, then-ZEO Christopher Soto, also reviewed the file after a conversation with Patton and

likewise found nothing in the file showing a pre-existing/non-conforming quarry use at the

Property. Ex. 10 at 29, 141.

However, on November 10, 2014, Biancur did an about-face and issued a decision by letter

stating that there is “no doubt” that the quarry was a pre-existing/non-conforming use and the

operation should continue “without any interference from the town (the “Biancur Decision”). Ex.

11. This opinion was directly at odds with the town’s position as expressed by Zullo and

Biancur’s own opinion as stated in his letter from May 2013. There was no application or other

triggering event that prompted Biancur to issue the opinion and would have alerted the town that

an appeal might be necessary. It also appears Biancur made efforts to avoid alerting town

officials of this decision, as he published it in the New Haven Register and not the local paper

where such notices are generally published. Ex. 11. 2

2
In 2015, Biancur was convicted on federal charges for soliciting and accepting bribes in connection with
performing his duties. Ex. 12. In 2017, despite his conviction, he was hired in the town of Willington, where Patton
lives where he and is heavily involved in local politics, including an eight-year term as First Selectman.
https://www.journalinquirer.com/connecticut_and_region/new-hire-has-checkered-past/article_1c9b8152-9734-
11e8-88b3-93c99e0fe305.html; Ex. 13 at 24-25. That job offer was later rescinded after a public outcry.
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In February 2017, Soto received complaints from citizens that the Plaintiffs had clear-cut the

section of the Property next to Barberry Road. Ex. 10 at 25-26. Prior to this date, he had no real

knowledge of the operation. Ex.10 at 119. He was aware that a quarry was in the area but did

not know if it was on the East Haven or North Branford side of the Property (the Property

extends into North Branford and is accessed through North Branford). Ex. 10 at 114-117. He

reviewed his zoning file on the Property and found nothing indicating there was a quarry

operation at that address. Ex. 10 at 119. Soto then went to the Property to investigate the

complaints, observed that the trees on the Property had been slashed down and took pictures of

same. Ex. 10 at 25-26; Ex. 14.

As a result of his investigation, he issued a cease and desist order on February 17, 2017 that

stated that slashing of trees was prohibited under Article 31 of the zoning regulations and the

Plaintiffs would have to apply for a special exception permit before resuming that activity. Ex.

15; Ex. 10 at 25-26. East Haven has issued similar cease and desist orders for similar activities

in the past. Ex. 10 at 31. The issuance of the cease and desist order was supported by the

Regional Water Authority and the Connecticut Department of Environmental Protection as the

agencies had concerns over the effects of the tree removal on the environment. Ex. 16. After the

order was issued, Soto testified that the quarry continued removing tree stumps and earth from

that area. Ex. 10 at 29-30. He contacted Judy Dicine at the State’s Attorney’s office, who

https://www.journalinquirer.com/connecticut_and_region/willington-zoning-job-offer-rescinded-in-face-of-public-
uproar/article_14134126-9b1e-11e8-8525-87c2635671aa.html. Based on these facts, there is genuine doubt as to
whether Biancur’s letter was issued in good faith and as to whether the purported use actually existed.
Nonetheless, it is undisputed that the quarry operation was ongoing in May 2017.

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advised him to issue an amended cease and desist clarifying that removal of earth and stumps

was specifically included in the order. Ex. 10 at 34.

Based on her advice, he issued a revised cease and desist order on April 21, 2017 that

clarifies that the removal of stumps and disturbance of soil is prohibited. Ex. 17; Ex. 10 at 45.

The amended cease and desist also addressed an additional issue. In April 2017, the zoning

department began to receive complaints regarding boulders coming off the Property and into the

road as a result of the blasting activities on the Property. Ex. 10 at 45-46. Soto and his assistant

zoning enforcement officer, Ellen Pellegrino, went to the Property to investigate and found rocks

adjacent to the road and a boulder the size of a car engine in the road. Ex. 10 47-48; Ex. 18 at 9;

Ex. 19. Soto also observed rocks coming down a hill and off the Property with such force that the

land was “scoured” by their passing. Ex. 10 at 48. Based on these findings, the amended cease

and desist ordered the Plaintiffs to provide plans for addressing these issues, as well as plans for

sedimentation and erosion control, and apply for a special exception permit under Article 31 of

the zoning regulations. Ex. 17. He then met with Patton in person and told him the same thing.

Ex. 10 at 61-62.

Other town officials also became concerned with the lack of information they had regarding

the quarry operation. Mark Nimons, the Fire Marshal, testified that a blasting contractor applied

for a permit to blast at the Property and told him the quarry was “planning on going down

another level”. Ex. 20 at 22-23. Nimons did not know what that meant and contacted the Town

Engineer, Kevin White, since removal of material from the Property requires approval from the

engineering department with respect to issues such as cubic yards to be removed and

sedimentation and erosion control. Ex. 20 at 23; Ex. 21 at 11-14. White, in turn, reviewed his file

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and found he had not been provided any information regarding the quarry operation. Ex. 21 at

12-13. White also spoke with Soto regarding the lack of information in his file. Ex. 21 at 12-13.

White believes the clearcutting and earth removal was a clear indication that the quarry intended

to expand and they had not provided the town with the missing information. Ex. 21 at 22. White

also reached out to Sal Brancati, the East Haven Director of Administration and Management

and Economic Development Director, regarding the issue. Ex. 21 at 11; Ex. 20 at 23. Brancati

discussed the issue with Mark Dilungo (who would generally be the one to contact him on behalf

of the quarry for permit issues) and told Nimons that they had reached an agreement to issue

one-day blasting permits while the town attempted to sort out the concerns with the quarry. Ex.

20 at 23; Ex. 22 at 39-40; Ex. 3 at 19-20.

Residents in the neighborhood of the quarry were also concerned. In addition to the

complaints made to the zoning department, now-Mayor Joseph Carfora formed a neighborhood

group to oppose the quarrying activities. Ex. 23 at 23-24. He stated that the quarrying activities

were interfering with the neighbors’ quality-of-life. Ex. 23 at 24. He and the neighbors collected

evidence demonstrating that the quarry was not, in fact, a pre-existing/non-conforming use and

presented it to the zoning department. Ex. 23 at 24-26.

As the cumulative result of these various issues and the town’s concerns over both safety and

the lack of information provided by the Plaintiffs, the town issued another cease and desist order

on May 9, 2017. Ex. 24. This order made reference to the prior two orders and again instructed

the Plaintiffs to file for a special exception under Article 31 of the zoning regulations which

would allow the town to put health and safety conditions on the use. Ex. 24; Ex. 25. The town

further ordered that the Plaintiffs put sediment and erosion controls in place that meet

Connecticut Guidelines within ten days of the order and have it inspected by the Town Engineer.
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Ex. 24. Mark Nimons then stopped issuing blasting permits to the Plaintiffs’ contractors due to

the cease and desist order and his belief that it would be inappropriate to grant blasting permits

when the Plaintiffs were not allowed to blast at the Property. Ex. 20 at 43.

Rather than comply with the order, apply for the permit or contact the town engineer, the

Plaintiffs immediately filed the instant lawsuits simultaneous with their appeals of the various

cease and desist orders. Attorney Al Zullo was the attorney for the East Haven Zoning Board of

Appeals and an assistant town attorney for East Haven from 2011-2019. Ex. 26 at 12-13. His

role was to advise the ZBA regarding the legal issues before them and provide them with

answers to their questions. Ex. 26 at 25, 27. He did so in this case and prepared a legal staff

report in which he took the position that regardless of whether a pre-existing/non-conforming use

exists, the town is nonetheless entitled to regulate the use for health and safety reasons under its

police power. Ex. 27. He testified that the Plaintiffs could have filed for a special exception and

simultaneously applied for a variance allowing them to get one. Ex. 26 at 41-47. He stated the

variance would have to be granted if there was a pre-existing/non-conforming use as it would be

a per se hardship. Ex. 26 at 47-48. The appeal was denied by the ZBA and subsequent appeals to

the Superior Court followed.3 The trial court (Berger, J.) ultimately ruled against the town,

holding that the Biancur Decision was valid because it was not timely appealed and the zoning

regulations do not otherwise permit the use. Ex. 28 at 12, 16. Although the Plaintiffs raised many

of the same issues raised in the instant case, the trial court made no finding that the town or any

official acted in bad faith or with an improper motive. Ex. 28.

a. TAX ISSUES

3
Two appeals were filed, one related to the first two orders and another related to a third. The trial court and the
parties agreed that the court would consider the appeals as a whole and issue one ruling. Ex. 28 at 1.
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The town has been involved in two tax-related matters with the Plaintiffs. The first was a tax

appeal of the town’s decision to deny a personal property manufacturing exemption for the

quarry equipment for the Grand List of October 1, 2015. Farm River Rock, LLC v. Town of East

Haven, HHB-CV-6033807-S (Judicial District of New Britain Tax Session). The second is the

pending tax appeal of the assessment of the Property for the Grand List of October 1, 2016. One

Barberry Real Estate Holding, LLC v. Town of East Haven, HHB-CV-17-6038523-S (Judicial

District of New Britain Tax Session).

Michael Milici has been the East Haven tax assessor for over 30 years and was hired by

former mayor, Bob Norman. Ex. 30 at 13. He was and is still involved in both tax appeals. Ex.

30 at 13. With regard to personal property, the Plaintiffs applied for a personal property

manufacturing exemption in 2014, 2015 and 2016. Ex. 30 at 32-33. In 2014 and 2015, his

opinion was that the manufacturing exemption did not apply to the quarry equipment. Ex. 30 at

33-34. This decision was consistent with how he assessed the personal property of a prior quarry

in town. Ex. 30 at 34. The Plaintiffs appealed the 2015 denial which eventually resulted in an

appeal to the Connecticut Superior Court. Ex. 30 at 49-50. That appeal was settled by a

stipulated judgment where the town agreed to grant the exemption and issue a refund for past

taxes paid based on the 2015 denial. Ex. 31.

In 2014, after Dilungo acquired the Property, Milici met with Dilungo at the Property and

Dilungo confirmed for him that the East Haven side of the Property was, by that point, being

used to quarry. Ex. 30 at 40. Milici then wrote a memorandum on October 27, 2014 indicating

that the Property had previously been taxed as farmland and he was declassifying 9 acres of the

Property to be taxed as industrial land. Ex. 30 at 44-45; Ex. 32. In May 2016, he was approached

by Mark Dilungo regarding an application for a farmland on the Property, despite Dilungo
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having sold the Property in March of that year. Ex. 30 at 25. Dilungo represented to Milici that

he had an ownership interest in the Property and signed the application as an owner. Ex. 33; Ex.

30 at 62-64.4 Milici was later contacted by an attorney for the Plaintiffs and told Dilungo had no

authority to file the application. Ex. 30 at 107. Milici then responded and asked if he should

remove the exemption and received no response. Ex. 30 at 108. In 2017, Milici simply removed

the exemption and did not assess a penalty to the Plaintiffs. Ex. 30 at 121-122.

In 2016, the town performed a statistical revaluation of the Grand List in which the assessor

by necessity uses mass valuation techniques. Ex. 30 at 30; Ex. 35 at 59-60. The town hired a

revaluation company to assist and the project was assigned to Shelby Jackson, who assisted

Milici in prior revaluations. Ex. 30 at 28-29, 78; Ex. 35 at 17. When the revaluation was finished,

the revaluation company would send notices of the new assessment values to the property

owners. Ex. 30 at 31. In this case the company mistakenly sent notices for at least two properties

(the quarry and the water treatment plant) before the revaluation work was complete. Ex. 36; Ex.

30 at 75, 81; Ex. 35 at 37-38. Jackson believes the first notice sent to the Plaintiffs was

essentially just the value from the prior revaluation when the Property was not taxed as a quarry.

Ex. 35 at 52.

When Jackson learned of the error, he contacted Milici and told him he was not done. Ex. 35

at 38, 40-41; Ex. 30 at 82-83. Jackson and Milici needed information about the quarry production

to value the Property according to a formula Milici had developed for a prior quarry operation in

4
By his own admission, Dilungo would act as a go-between for the Plaintiffs on issues such as blasting permits. Ex.
3 at 19-20. Sal Brancati also testified that Dilungo was his point of contact. Ex. 22 at 39-40. When the Plaintiff’s
land use attorney contacted the town attorney, it was after conversations with Dilungo not John Patton. Ex. 34.
Dilungo testified that he retained some form of ownership in the Property or the business even after selling the
Property. Ex. 3 at 28-29. It’s clear that regardless of his actual ownership interest, he would routinely act as agent
for Patton. While he denied having authority to file for the exemption, he had no rational explanation for why he
did it. Ex. 3 at 45-48.
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town. Ex. 30 75-76; Ex. 35 at 53-54. Milici contacted Patton but never received the information

he requested. Ex. 37; Ex. 30 at 75-76; Ex. 35 at 38, 40-41. In the absence of the production

information, Milici and Jackson used the sales price of the Property as a basis for calculating the

assessed value. Ex. 30 at 83; Ex. 35 at 53-54. Jackson testified that the number they settled on

was significantly less than the sales price because he thought the sales price was too high. Ex. 35

at 66-67. A revised notice was then sent to the Plaintiffs which is the subject of the pending

appeal. Ex. 37; Ex. 30 at 79. While the quarry was not operating during the zoning appeal, Milici

drastically reduced the value further. Ex. 30 at 116.

II. LEGAL STANDARD

Summary judgment is appropriate when the record demonstrates that “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (plaintiff must

present affirmative evidence in order to defeat a properly supported motion for summary

judgment). When ruling on a summary judgment motion, the court must construe the facts of

record in the light most favorable to the nonmoving party and must resolve all ambiguities and

draw all reasonable inferences against the moving party. Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59

(1970). “Only when reasonable minds could not differ as to the import of the evidence is

summary judgment proper.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991); see also

Suburban Propane v. Proctor Gas, Inc., 953 F.2d 780, 788 (2d Cir. 1992).

When a motion for summary judgment is properly supported by documentary and

testimonial evidence, the nonmoving party may not rest upon the mere allegations or denials of

the pleadings, but must present sufficient probative evidence to establish a genuine issue of
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material fact. Westry v. Stamford Bd. of Educ., No. 3:17-CV-640 (SRU), 2018 WL 4054881 (D.

Conn. Aug. 24, 2018); Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); Colon v. Coughlin, 58

F.3d 865, 872 (2d Cir. 1995). If the nonmoving party submits evidence that is “merely

colorable”, or is not “significantly probative”, summary judgment may be granted. Anderson,

477 U.S. at 249–50. If the nonmoving party has failed to make a sufficient showing on an

essential element of his case with respect to which he has the burden of proof at trial, then

summary judgment is appropriate. Celotex, 477 U.S. at 322.

III. LAW AND ARGUMENT

a. FIRST COUNT (42 U.S.C. 1983)

The Plaintiffs have alleged that the actions taken by the town in connection with the

zoning enforcement, blasting permit and taxation issues described above amount to an

intentional deprivation of the Plaintiffs’ rights in violation of 42 U.S.C. § 1983. A § 1983 claim

requires a plaintiff to show (1) the deprivation of a right, privilege, or immunity secured by the

Constitution and its laws by (2) a person acting under the color of state law. 42 U.S.C. § 1983.

These claims should fail both because the Plaintiffs cannot prove their damages resulted from the

illegal actions of a final-policymaker and because there is no evidence that the town intentionally

violated their rights generally.

i. Damages caused by official policy

“In order to prevail on a claim against a municipality under section 1983 based on acts of

a public official, a plaintiff is required to prove: (1) actions taken under color of law; (2)

deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that an

official policy of the municipality caused the constitutional injury.” Roe v. City of Waterbury,

542 F.3d 31, 36 (2d Cir. 2008) (citation omitted).

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“The fifth element reflects the notion that ‘a municipality may not be held liable under §

1983 solely because it employs a tortfeasor.’ ” Cowan v. City of Mt. Vernon, 95 F.Supp.3d 624,

643 (S.D.N.Y. 2015) (quoting Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397, 403, 117 S.Ct.

1382, 137 L.Ed.2d 626 (1997) ). Importantly, this element “can only be satisfied where a

plaintiff proves that a ‘municipal policy of some nature caused a constitutional tort.’ ” Roe, 542

F.3d at 36 (citation omitted). However, a “municipal policy may be pronounced or tacit and

reflected in either action or inaction.” Cash, 654 F.3d at 334; see also Kern v. City of Rochester,

93 F.3d 38, 44 (2d Cir. 1996) (“The policy or custom need not be memorialized in a specific rule

or regulation.”). A deliberate choice by a government official can also constitute a policy if the

official has final decision-making authority on the relevant issue. Beck v. City of Pittsburgh, 89

F.3d 966, 972 (3d Cir. 1996), cert. denied, 519 U.S. 1151 (1997). Since the Plaintiffs in this case

have not alleged nor can they prove municipal policies that caused their alleged damages, it is

clear they are relying on the decision of one or all of the individual Defendants as a final

decision-maker.

With regard to the damages the Plaintiffs are claiming that relate to the cease and desist

orders, the Plaintiffs cannot prove that any such damages resulted from intentional deprivation of

their rights by a final-decision maker. In this respect, the motivations or action of any of the

named individual Defendants is immaterial. In Komondy v. Gioco, 253 F. Supp. 3d 430, 456 (D.

Conn. 2017), the Connecticut District Court ruled that the ZBA is the final-decision maker for

purposes of bringing a § 1983 claim. There is simply no evidence as to how or why the ZBA

made its decision and certainly no evidence that establishes that the ZBA made the decision to

intentionally deprive the Plaintiffs of any constitutional rights. For that reason, the Plaintiffs’ §

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1983 claim fails to the extent their alleged damages relate to the period of time they were not

able to operate the quarry during the zoning appeal.

ii. Intentional deprivation of rights

“Section 1983 itself “contains no state-of-mind requirement independent of that

necessary to state a violation” of the underlying federal right. Daniels v. Williams, 474 U.S. 327,

330, 106 S.Ct. 662, 664, 88 L.Ed.2d 662 (1986). In any § 1983 suit, however, the plaintiff must

establish the state of mind required to prove the underlying violation. Accordingly, proof that a

municipality's legislative body or authorized decisionmaker has intentionally deprived a plaintiff

of a federally protected right necessarily establishes that the municipality acted culpably.” Bd. of

County Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 405, reh'g denied sub nom. Bd.

of the County Com'rs of Bryan County, Oklahoma v. Brown, 520 U.S. 1283 (1997).

As the basis for their § 1983 claims, the Plaintiffs have alleged a number of

Constitutional violations which the Defendant will address in turn as follows:

iii. First Amendment

To establish a prima facie case of First Amendment retaliation, a plaintiff must establish

“(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action

against the plaintiff, and (3) that there was a causal connection between the protected speech and

the adverse action.” Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir.2002) (citing Dawes v.

Walker, 239 F.3d 489, 492 (2d Cir.2001)). Even if a retaliatory motive exists, however, a

defendant may be entitled to summary judgment if it can show dual motivation, i.e., that even

without the improper motivation the alleged retaliatory action would have occurred. See Mt.

Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471

(1977). Plaintiff has the initial burden of showing that an improper motive played a substantial
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part in defendant's action. The burden then shifts to defendant to show it would have taken

exactly the same action absent the improper motive. Id.; see also Lowrance v. Achtyl, 20 F.3d

529, 535 (2d Cir.1994).

In this case, the Plaintiffs allege that the town refused to grant blasting permits, issued the

cease and desist orders and improperly assessed the value of the Property during the 2016

revaluation, all as retaliation for filing their 2014 personal property tax appeal and their appeal of

the 2016 assessment. Second Amended Complaint ¶¶ 74 and 75. There is simply no evidence that

any causal connection exists between those events or that any of those actions were taken with

the intent to deprive the Plaintiffs of their First Amendment rights. Furthermore, as explained

below, the Plaintiff’s allegations are contradictory and make no sense.

The town voluntarily settled the 2014 case and that settlement was favorably approved by

the town council. Ex. 31; Ex. 39 at 16-17. The Town refunded the Plaintiffs $20,781.20 as part

of the settlement. Ex. 39 at 16-17. Town Attorney Joe Zullo spoke to the Town Council of the

positive benefits of the settlement and stated the town would “now be able to tax the land at a

significantly higher rate.” Ex. 39 at 17. And in fact, the assessor did assess the land at a much

higher value during the next revaluation and the town stood to make a great deal more in

property taxes by taxing the Property as a quarry as opposed to its previous status. The prior

assessed value of the Property was $572,400 and the new value was $2,283,780. The value of the

property as an operating quarry was therefore $1,711,380 higher. The mill rate in East Haven is

32.42.5 The town would therefore derive $55,482.94 in additional taxes every year on the

Property. It is nonsensical that the town would shut down the quarry and forgo substantial

5
https://www.townofeasthavenct.org/assessor/pages/general-information
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revenue as retaliation for not being able to tax the personal property, a concession to which the

town agreed to voluntarily. Likewise, the appeal of the 2016 revaluation, whatever the end

value, would still result in a value from which the town would derive considerable additional

revenue. There is no logical reason for the town to forgo that additional revenue as any form of

retaliation.

To extent the Plaintiffs argue that the 2016 assessment and taxation itself was retaliatory,

that claim is barred inasmuch as § 1983 does not permit federal courts to award damages in state

tax cases when state law provides an adequate remedy. Fair Assessment in Real Estate Ass'n,

Inc. v. McNary, 454 U.S. 100, 116 (1981). The Plaintiffs have filed a pending tax appeal in this

case and there is clearly an adequate remedy under Connecticut state law. This cannot serve as

the basis for a § 1983 claim.

Finally, there is simply no evidence that the town was motivated to deny blasting permits

or issue the cease and desist orders in whole or in part by either tax appeal. The cease and desist

orders were issued as a result of safety concerns and a lack of information regarding the quarry

operation. The blasting permits were denied because the May 9, 2017 cease and desist order

meant there could be no blasting at the Property. There is no genuine issue of fact as to whether

the town, by policy or policymaker, intentionally violated the First Amendment rights of the

Plaintiffs by retaliating against them for filing either tax appeal. With respect to the real property

tax appeal, Plaintiffs’ claim for damages under § 1983 is barred. There are no grounds for a §

1983 action on the basis of the First Amendment.

iv. Due Process

A violation of procedural due process occurs when a plaintiff is not afforded “ ‘an

opportunity ... granted at a meaningful time and in a meaningful manner’ for [a] hearing
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appropriate to the nature of the case.” Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780,

786, 28 L.Ed.2d 113 (1971). “The availability of such recourse, as a matter of law, precludes [a]

finding that the defendants' conduct violated plaintiffs' rights to procedural due process under the

fourteenth amendment.” Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). Given

that the Plaintiffs had an adequate state law process to address the zoning and tax issues, in fact

went through those processes and were successful in their zoning appeal, there is no apparent

argument on the issue of procedural due process.

Rather, the Plaintiffs appear to be claiming that the actions of the town violate their

substantive due process rights. “Substantive due process is an outer limit on the legitimacy of

governmental action. It does not forbid governmental actions that might fairly be deemed

arbitrary or capricious and for that reason correctable in a state court lawsuit seeking review of

administrative action. Substantive due process standards are violated only by conduct that is so

outrageously arbitrary as to constitute a gross abuse of governmental authority. See, e.g., Lewis,

118 S.Ct. at 1716 (“[O]nly the most egregious official conduct can be said to be arbitrary in the

constitutional sense.”) (citation and internal quotation marks omitted); Silverman v. Barry, 845

F.2d 1072, 1080 (D.C.Cir.1988) (“Only a substantial infringement of state law prompted by

personal or group animus, or a deliberate flouting of the law that trammels significant personal or

property rights, qualifies for relief under § 1983.”) (citation omitted). Natale v. Town of

Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999). When it comes to property rights, courts are

“mindful of the general proscription that ‘federal courts should not become zoning boards of

appeal to review nonconstitutional land[-]use determinations by the [C]ircuit's many local

legislative and administrative agencies.’ ” Zahra v. Town of Southold, 48 F.3d 674, 679–80 (2d

Cir.1995) (quoting Sullivan v. Town of Salem, 805 F.2d 81, 82 (2d Cir.1986).
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Zoning decisions are considered “quasi-legislative and are to be reviewed by the same

standard as courts review statutes enacted by state legislatures. Shelton v. City of Coll. Station,

780 F.2d 475, 479 (5th Cir. 1986), cert. denied, 477 U.S. 905, cert. denied, 479 U.S. 822 (1986).

“[T]hose challenging the legislative judgment must convince the court that the legislative facts

on which the classification is apparently based could not reasonably be conceived to be true by

the governmental decisionmaker.” Vance v. Bradley, 440 U.S. 93, 110–11, 99 S.Ct. 939, 949, 59

L.Ed.2d 171 (1979). “The inquiry [is]… was there a conceivable factual basis for the specific

decision made?” Shelton v. City of Coll. Station, supra at 480.

Given the decision of the trial court in the zoning appeals, the Plaintiffs have a pre-

existing/non-conforming use of the Property, albeit one derived through a technicality rather than

one that has been proven by objective facts. However, that is irrelevant to why the town issued

the May 9, 2017 cease and desist order in this case. In this case, the town issued the order with a

caveat that the quarry apply for a special permit. The purpose of requiring the quarry to do so

was to regulate health and safety issues involved in the operation of the quarry, including but not

limited to sedimentation and erosion controls, the removal of trees on the Property and the rocks

in the road.

Regardless of whether the Plaintiffs have a right to use the Property as a quarry, it is

without question that the town retains a right to regulate that use under its police powers for

health and safety reasons. See e.g. Taylor v. Zoning Bd. Of Appeals Of Town Of Wallingford, 65

Conn. App. 687 (2001) (requirement that landowners obtain a permit was a reasonable regulation

of their preexisting nonconforming use under the town's police powers). When the issue of the

quarry initially arose in 2013, the Town Attorney wrote a detailed memorandum relying in which

he concluded that the town regulations would allow a quarry with a special permit. Ex. 7 at 5-6.
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Attorney Al Zullo echoed that opinion in his legal staff report to the ZBA although he believed a

variance would be required as well. Ex. 27. It is clear that from the very beginning of this saga,

that the town’s concern was how to regulate this property. That is a conceivable factual basis to

make the decision and not conduct that is so outrageously arbitrary as to constitute a gross abuse

of governmental authority. There is therefore no basis for a claim of deprivation of substantive

due process much less an intentional violation through town policy or the actions of a

policymaker.

v. Equal Protection

“The [e]qual [p]rotection [c]lause requires that the government treat all similarly situated

people alike.... Although the prototypical equal protection claim involves discrimination against

people based on their membership in a vulnerable class ... the equal protection guarantee also

extends to individuals who allege no specific class membership but are nonetheless subjected to

invidious discrimination at the hands of government officials.... The [United States] Supreme

Court [has] affirmed the validity of such class of one claims where the plaintiff alleges that she

has been intentionally treated differently from others similarly situated and that there is no

rational basis for the difference in treatment. Village of Willowbrook v. Olech, 528 U.S. 562,

564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam).” (emphasis added; internal

quotation marks omitted.) Harlen Associates v. Inc. Village of Mineola, 273 F.3d 494, 499 (2d

Cir.2001).

The Equal Protection Clause of the Fourteenth Amendment is “essentially a direction that

all persons similarly situated be treated alike.” City of Cleburne v. Cleburne Living Ctr., Inc.,

473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). “In order to establish a violation of

equal protection based on selective enforcement, the plaintiff must ordinarily show (1) the
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person, compared with others similarly situated, was selectively treated; and (2) that such

selective treatment was based on impermissible considerations such as ... intent to inhibit or

punish the exercise of constitutional rights.” (internal citations omitted). LaTrieste Rest. v. Vill.

of Port Chester, 188 F.3d 65, 69 (2d Cir. 1999), cert. denied sub nom. LaTrieste Rest. & Cabaret,

Inc. v. Vill. of Port Chester, 528 U.S. 1187 (2000).

In this case, the Plaintiffs cannot establish facts to satisfy either prong of the test. There

is no evidence that any other similarly situated property owner was treated differently with

regard what is a significantly unique set of facts involving an essentially unique use of a property

in East Haven. That alone is enough for invalidate any claim under the Equal Protection Clause.

However, even assuming there was such evidence, the Town had a rational basis for taking the

actions it took. Without overly re-hashing facts already set forth, the town issued the cease and

desist in the apparent belief that it was the appropriate way to regulate the Property. Whether or

not the state court ultimately agreed that the method the town chose to regulate the Property

using its police powers was correct does not change this analysis and create a per se violation of

the Plaintiffs’ rights. And with respect to how the property was taxed, the Court cannot consider

those claims as a basis for a § 1983 action. Fair Assessment in Real Estate Ass'n, Inc. v. McNary,

supra. at 116. Based on these facts, the Court cannot conclude that sufficient evidence exists as

would support a § 1983 action via the Equal Protection Clause.

vi. Takings

The Plaintiffs’ takings claim is addressed in more detail with regard to the Second Count.

However, it fails as the basis for a § 1983 claim for the same reason as the other purported bases

for the claim. The Plaintiffs have no significantly probative evidence to show that a final

decision-maker of the town took any action with the intent of violating the Plaintiffs’ rights.
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And for that reason, even if the Court were to find a taking, it does not follow that the taking can

serve as the basis for a § 1983 claim.

b. SECOND COUNT (TAKING BY INVERSE CONDEMNATION, ARTICLE

FIRST, SECTION 11, CONNECTICUT CONSTITUTION)

The Takings Clause provides: “[N]or shall private property be taken for public use,

without just compensation.” U.S. Const., Amdt. 5. The Plaintiffs’ Second Count alleges that the

delay caused by the cease and desist orders (requiring the special permit) constitutes a temporary

taking. However, the Plaintiffs’ claim must fail as it is not ripe and an erroneous legal

determination that results in a delay is not a compensable taking for public use under the Fifth

Amendment.

The overwhelming evidence in this case demonstrates that the town issued the cease and

desist orders for the dual purpose of regulating health and safety issues at the Property and

obtaining information about the operation that the Plaintiffs had not previously provided. The

cease and desist orders were not simply orders to shut down the operation. Rather, the town

issued the orders directing the Plaintiffs to file for a permit to conduct the work. At that point,

depending on the information provided, the town could set conditions on the permit going

forward. Ultimately, the state court determined that the town’s legal reason was incorrect based

on its interpretation of the East Haven zoning regulations.

It is clear that a town can regulate a pre-existing/non-conforming use, even to the point of

destroying the use, based on the exercise of its police powers. In Goldblatt v. Town of

Hempstead, N. Y., 369 U.S. 590, 591 (1962), the municipality sought an injunction against a

quarry to prevent further excavation as being violative of a zoning ordinance. This failed because

the use was found to be prior non-conforming use. Id. The municipality then revised their
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ordinances to prohibit excavation beneath the water table based on their police power to regulate

health and safety issues. Id. at 592. “[T]he ordinance completely prohibited a beneficial use to

which the property has previously been devoted”, i.e. the quarrying. Id. However, the Supreme

Court stated that if an “ordinance is otherwise a valid exercise of the town's police powers, the

fact that it deprives the property of its most beneficial use does not render it unconstitutional.” Id.

The Supreme Court ruled that there is a presumption of reasonableness in the exercise of the

police power and the use of the power will be upheld if any facts known or which could be

reasonably assumed provided support for its use. Id.

Obviously, the situation in this case is somewhat different than Goldblatt in that the state

court ultimately found that the town was not able to regulate the Property in the manner they

originally chose to exercise their police power. The question then becomes whether the town’s

erroneous belief it was properly exercising its police powers gives rise to a claim for damages for

the period of time the quarry could not operate? The Defendant urges this Court to prohibit that

claim in this case because the claim is not ripe and because no claim lies for delays caused by the

town’s erroneous legal belief that requiring a special permit was a legitimate exercise of its

police power.

i. The claim is not ripe.

The Plaintiffs cannot recover on their takings claim based on the town’s requirement that

they apply for a special exception permit under the town zoning regulations because they did not

apply for the permit and the town did not deny the permit. The claim is therefore not ripe.

“[T]he mere assertion of regulatory jurisdiction by a governmental body does not

constitute a regulatory taking. The reasons are obvious. A requirement that a person obtain a

permit before engaging in a certain use of his or her property does not itself “take” the property
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in any sense: after all, the very existence of a permit system implies that permission may be

granted, leaving the landowner free to use the property as desired. Moreover, even if the permit

is denied, there may be other viable uses available to the owner. Only when a permit is denied

and the effect of the denial is to prevent “economically viable” use of the land in question can it

be said that a taking has occurred.” (internal citations omitted) United States v. Riverside

Bayview Homes, Inc., 474 U.S. 121, 126–27 (1985).

In this case, the town never denied the permit it required because the Plaintiffs never

applied for it and no final decision was made on what was legally permitted on the Property until

the state court issued its decision sustaining the Plaintiffs’ zoning appeal. Therefore, the Court

cannot determine the contours of any takings claim until the time of the state court decision, at

which point there was no longer any restriction on the use of the Property as a quarry. “Until a

property owner has obtained a final decision regarding the application of the zoning ordinance

and subdivision regulations to its property, it is impossible to tell whether the land retain[s] any

reasonable beneficial use or whether [existing] expectation interests ha[ve] been destroyed.”

(internal citations omitted) MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 349,

reh'g denied, 478 U.S. 1035 (1986).

This is in contrast to a case where the town might deny a permit based on an erroneous

application of law. In that case, the Court could theoretically determine the contours of the

taking based on what the property’s uses without a permit. However, in this case, the final

decision was not made and no claim was ripe until the state court decision in August 2019. At

that point, the town’s permitting requirement was invalidated, meaning there was no regulation

that could be considered a taking.

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ii. The town is not liable for a delay caused by an erroneous legal

decision.

The town is not liable for a taking based on an erroneous legal position it wasnot entitled

to take. Impermissible actions of the town fail to meet the “public use” requirement of the Fifth

Amendment and therefore do not qualify as takings which require just compensation. The

Takings Clause provides: “[N]or shall private property be taken for public use, without just

compensation.” U.S. Const., Amdt. 5. “As its text makes plain, the Takings Clause ‘does not

prohibit the taking of private property, but instead places a condition on the exercise of that

power.’ First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482

U.S. 304, 314, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987). In other words, it ‘is designed not to limit

the governmental interference with property rights per se, but rather to secure compensation in

the event of otherwise proper interference amounting to a taking.’ Id., at 315, 107 S.Ct. 2378

(emphasis in original).” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536–37 (2005).

In Lingle, the Supreme Court made the distinction between an otherwise proper

government action which can constitute a compensable taking and an impermissible government

action which cannot because it does not constitute a taking of property for public use. “The

[Takings Clause] expressly requires compensation where government takes private property ‘for

public use.’ It does not bar government from interfering with property rights, but rather requires

compensation ‘in the event of otherwise proper interference amounting to a taking.’ First

English Evangelical Lutheran Church, 482 U.S., at 315, 107 S.Ct. 2378 (emphasis added).

Conversely, if a government action is found to be impermissible—for instance because it fails to

meet the “public use” requirement or is so arbitrary as to violate due process—that is the end of

the inquiry. No amount of compensation can authorize such action.” Lingle, supra. at 543.
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In this case, the actions the town took in issuing the cease and desist and requiring the

Plaintiffs to apply for a special permit were ruled impermissible by the state court. If the takings

clause indeed applied in this scenario and the town’s interference by way of the permit

requirement was proper (but compensable), then the law would have allowed the town to pay

said compensation and proceed in the fashion that it did. However, because the method the town

chose to impose safety regulations was not “otherwise proper interference”, the town would have

no basis to use it whether or not it paid just compensation. The Takings Clause is limited to

providing compensation where a government can take the property in the manner it did. And for

that reason, the Takings Clause does not apply in this case as a proper vehicle for the Plaintiffs to

pursue compensation.

c. THIRD COUNT (MUNICIPAL ESTOPPEL)

The Court should grant summary judgment as to the Third Count in that the Plaintiffs’

claims of estoppel as to the cease and desist orders issued by the Town are moot and no other

claims are ripe for adjudication.

“[I]n order for a court to invoke municipal estoppel, the aggrieved party must establish

that: (1) an authorized agent of the municipality had done or said something calculated or

intended to induce the party to believe that certain facts existed and to act on that belief; (2) the

party had exercised due diligence to ascertain the truth and not only lacked knowledge of the true

state of things, but also had no convenient means of acquiring that knowledge; (3) the party had

changed its position in reliance on those facts; and (4) the party would be subjected to a

substantial loss if the municipality were permitted to negate the acts of its agents.” (Citations

omitted; internal quotation marks omitted.) Cortese v. Planning & Zoning Bd. of Appeals of

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Town of Greenwich, 274 Conn. 411, 418 (2005) citing Bauer v. Waste Management of

Connecticut, Inc., 234 Conn. 221, 246–47, 662 A.2d 1179 (1995). In municipal zoning cases,

however, estoppel may be invoked (1) only with great caution, (2) only when the resulting

violation has been unjustifiably induced by an agent having authority in such matters, and (3)

only when special circumstances make it highly inequitable or oppressive to enforce the

regulations.... Moreover, it is the burden of the person claiming the estoppel to show that he

exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true

state of things but had no convenient means of acquiring that knowledge....” Id.

In this case, the Plaintiffs allege that the Biancur Opinion regarding pre-existing non-

conforming use is binding on the Town and therefore the cease and desist orders issued by Soto

are unenforceable. This issue is moot. Pursuant to Judge Berger’s decision in the zoning appeal,

the Plaintiffs’ appeals of the cease and desist orders were sustained and those orders are no

longer of any force or effect. Since “equitable estoppel is available only for protection and

cannot be used as a weapon....” (Internal quotation marks omitted.) Dickau v. Glastonbury, 156

Conn. 437, 442, 242 A.2d 777 (1968), there is no other claim for municipal estoppel that is ripe

for adjudication. “It is axiomatic that a claim is not ripe for adjudication when an injury is

hypothetical, or a claim [is] contingent upon some event that has not and indeed may never

transpire.” (Internal quotation marks omitted.) Lost Trail, LLC v. Town of Weston, 140 Conn.

App. 136, 155, cert. denied, 308 Conn. 915 (2013). For that reason, summary judgment should

be granted as to the Third Count.

IV. CONCLUSION

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The Plaintiffs cannot establish by sufficient probative evidence that genuine issues of

material fact exist with respect to their claims against the Defendant Town of East Haven. Said

Defendant therefore respectfully moves this Court to grant summary judgment as to all counts in

the Second Amended Complaint.

THE DEFENDANT

By: /s/Hugh F. Keefe

Hugh F. Keefe
Federal Bar No: ct05106
Lynch, Traub, Keefe & Errante
52 Trumbull Street
New Haven, CT 06510
Tel: (203) 787-0275
Fax: (203) 782-0278
Email: HKeefe@ltke.com

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Certificate of Service

I hereby certify that on December 7, 2020, a copy of the foregoing was filed electronically and
served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by
e-mail to all parties by operation of the court’s electronic filing system or by mail to anyone
unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may
access this filing through the court’s CM/ECF System.
Kirk D. Tavtigian, Jr.
Law Offices of Kirk D. Tavtigian, LLC
P.O. Box 417
Avon, CT 06001
CT05460
860-690-4430
860-606-9888 fax
ktavtigian@aol.com

Peter Jay Alter

Alter & Pearson, LLC
P. O. Box 1530
701 Hebron Avenue
Glastonbury, CT 06033
860-652-4020
palter@alterpearson.com

Walter Joseph Hope

Alter & Pearson, LLC
P. O. Box 1530
701 Hebron Avenue
Glastonbury, CT 06033
860-652-4020
860-652-4022 Fax
Jhope@alterpearson.com

/s/ Hugh F. Keefe, Esq.

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