Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 1 of 48 2SNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT ONE BARBERRY REAL ESTATE HOLDING LLC, ET AL CIVIL NO, 3:17-cv-00985 KAD vs. CIVIL NO. 3:17-cv-01392 KAD JOSEPH MATURO, JR., ET AL FEBRUARY 25, 2021 PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO TOWN OF EAST HAVEN’S MOTION FOR SUMMARY JUDGME FACTS! 1. Plaintiffs herein are One Barberry Real Estate Holding LLC (“One Barberry”), owner of 1 Barberry Road, East Haven (“Property”); Farm River Rock, LLC (“FRR”), lessee and operator ofa quarry, earth product excavation, stone-crushing and stone product manufacturing operation (°Quarry”) at the Property; and John Patton, an owner of One Barberry and FRR and personal guarantor of their indebtedness. 2. John Patton manages the Quarry. He has over 25 years of hands-on experience in the quarry business. He is a veteran, a former First Selectman (of Willington), volunteer firefighter and ambulance driver. Prior to operating the Quarry, he testified extensively at a public hearing for quarry zoning regulations for another Connecticut town. 3. The Quarry Property was part of a larger set of land parcels owned by What TF, LLC. What TE, LLC acquired title to the properties by foreclosure from the Spezzano family. ‘The properties were owned by the Spezzano family for generations. The properties were used for dairy farming, construction, sand & gravel excavation, equipment storage, quarrying and as a dumping ground for site contractors, ' Plaintiffs” Local Rule 56(a)(2) Statement contains the supporting citations for these facts ‘The Facts Section is exactly the same in both this and plaintiffs’ other opposition memorandum.Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 2 of 48 4, In2013 FRR leased the Quarry Property. The lease was for 2 years with renewal options. ERR agreed to process hundreds of thousands of yards of dumped material as FRR was quarrying and manufacturing crushed stone. cannot easily start up and shut down. They cannot 5. Quarries are unique businesses. Quarri move to a new location. By necessity, they are multisdecade endeavors. They are akin to other large-scale manufacturing operations. They are capital-intensive with a long-term outlook as a tremendous capital investment is needed for purchasing equipment and mineral rights to begin an operation for potentially large returns in later years. 6. The lease allowed FRR to first operate the Quarry without making a significant capital investment in land and permanent equipment, to determine if operating the Quarry was a viable business, before going all in and making capital investments of millions of dollars in acquiring, quarry equipment and upgrading and improving the Property and the Quarry. 7. From January to August 2013, FRR cleaned up the site so that it could have a footprint to properly crush and stockpile material. The site had been covered with several hundred thousand yards of construction demolition which had been dumped there over previous decades. FRR had to process and consolidate a lot of the debris before it could even begin operations. FRR began selling crushed stone in October 2013. 8. Before FRR started to work the Property George Mingione, who had been the East Haven Zoning Enforcement Officer (ZEO) for 20 years before retiring in 2008, told Patton that the Quarry was a legally existing nonconforming use. This information was consistent with the fact, that there was crushing machinery located on the site and a large tract of the Property had already been mined. In 2013 Mingione provided an Affidavit to the Town stating that the Quarry was recognized as a legally existing nonconforming use during his tenure as ZEO.Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 3 of 48 9. When FRR took over the Quarry, a letter was sent to the Town Attorney by the prior land- ‘owner's attomey stating that even though East Haven had no quarry regulations FRR would be willing to agree to voluntarily abide by self-imposed operating regulations. The Town never responded to the letter. 10, Even though Mingione had told FRR that the Quarry was a legally existing nonconforming use, plaintifi’s were not going to make the significant capital investment necessary to acquire the Property and upgrade the quarry operation unless the Quarry’s status as a legally existing nonconforming use was established as a matter of law. 11, In 2014, the property owner, What TF, LLC, retained Attorney Mark Branse, one of Connecticut’s foremost land use attorneys, to work with Town officials to obtain official recognition of the legally existing non-conforming use of the Property as a quarry. 12. Michael Milici, the tax assessor, wrote a letter in August 2014 and, at the request of Sal Brancati, his boss and the Mayor's right hand man, wrote a memorandum in October 2014, stating that he had known of the quarry operation since 2006, when then ZEO Mingione confirmed that the Quarry was a pre-existing non-conforming use. Milici confirmed that the Quarry was a legally nonconforming use, that he was going to change the land valuation to reflect the Quarry operation, and that the Town would be taxing $1.5 million in equipment. He also wrote that Joseph Spezzano, the prior owner and operator of the Quarry, in order to avoid higher taxes, had “grossly misled” and deceived the Town regarding the quarrying that had taken place at the Property. 13. On November 10, 2014, the Town of East Haven through its ZEO, Frank Biancur, issued a decision ("11/10/14 Decision”) that determined and stated that the operation of the Quarry at the Property was a legally existing non-conforming use. The decision also stated that “there are noCase 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 4 of 48 zoning issues there” and “the operation at | Barberry Road should continue without any interference from the Town.” 14, The existence of the Quarry and the 11/10/14 Decision were well known to town officials. 1 the 11/10/14 Decision was recorded on the East Haven Land Records and published in the ‘New Haven Register. Since no appeal was taken after publication, the decision became final, permanent, and irrevocable. 16. A copy of the 11/10/14 Decision was sent to Milici and to Sal Braneati, second in command in Town, who worked in the Mayor's Office. 17. When the 11/10/14 Decision was issued Joseph Maturo was Mayor of East Haven. Maturo served as Mayor from 1997-2007 and from 2011-2019, 18. Immediately after the 11/10/14 Decision was issued, Milici significantly and correctly increased the appraised value of the Property for taxation purposes from $2,072 to $817,720. 19, Town Attorney Joseph Zullo stated at the June, 2015 monthly meeting of the Town's Code Enforcement Committee that he was aware of the 11/10/14 Decision and its publication. 20. Christopher Soto first became aware of the Quarry operation and the 11/10/14 Decision shortly after he started working as ZEO in August 2015, 21. The 11/10/14 Decision was the legal recognition plaintiffs required before making a significant capital investment in the Quarry. 2. In reliance on the 11/10/14 Decision, plaintiffs expended millions of dollars and incurred substantial indebtedness to invest in quarry manufacturing equipment and in March, 2016 plaintiffs bought out of the lease and acquired ownership of the Property, entered into multiple contracts and incurred obligations to provide over a million tons of material expected to beCase 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 5 of 48 mined and processed at the Quarry. Patton incurred significant personal liability guaranteeing indebtedness of One Barberry and FRR. 23. From October 2013 through May 9, 2017 FRR continuously operated the Quarry with the full knowledge of the officials of the Town of East Haven. More than 28,000 loads of manufactured earth material were trucked from the site, The fire marshal issued in excess of three dozen blasting permits. The tax assessor taxed the quarry equipment and taxed the real estate as a quarry operation. Plaintiffs incurred significant costs making changes to the Property at the request of Town officials 24, In February 2016 Attorney Branse sent a letter to Joseph Zullo explaining that the 11/10/14 Decision had established that the Quarry operation was a legally existing, nonconforming use. ‘The letter also explained that Section 31 of the zoning regulations did not apply to quarry operations and therefore the Town could not regulate a quarry under its existing regulations. The letter also encouraged the Town to work with the quarry operator's previously expressed willingness to agree to voluntarily abide by self-imposed operating regulations. 25. In April, 2016, FRR appealed to Superior Court the Town’s October 2015 personal property tax assessment, on the grounds that the Town had improperly taxed quarry machinery and equipment that was exempt from taxation as a matter of state law. 26. On November 21, 2016 a settlement of the personal property tax appeal was agreed to at a Superior Court settlement conference, attended by Joseph Zullo, as decision maker for the Town, and Milici, held before Judge Levine, The Town agreed that the machinery and equipment, utilized at the Quarry was exempt from taxation, and also agreed to refund taxes paid by FRR and provide a credit for future payments, By virtue of this agreement the Town acknowledgedCase 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 6 of 48 that the Quarry was being operated on the Property. Milici made a comment to Mr. Patton in the courthouse that indicated his unhappiness at no longer being able to tax the quarry equipment. 27. In December 2016, shortly after settlement of the tax appeal, Milici issued a revaluation notice (which he did not send to plaintiffs) in which he again substantially increased the tax assessment by quadrupling the value of the Property and increasing by 299% the assessed value of the real property on the basis of its use as a Quarry. Milici increased the assessed value even though the Quarry had been in existence for a long period of time, and even though two years earlier Milici classified 9 acres of the Property as industrial land and had increased the appraised value of the real property from $2,072 to $817,720 per year, which was consistent with other industrial properties in the Town and other quarries in the region because it was being taxed as a Quarry.” 28. When the East Haven Town Council discussed the personal property tax settlement agreement and the refund at their February 7, 2017 meeting, Joseph Zullo used the increased real estate taxes on the Quarry Property as a reason to approve the refund. This was another example of the Town acknowledging that the Quarry was being operated on the Property. 29, Prior to February 17, 2017 there were no complaints about the Quarry in the ZEO’s file. 30. A Quarry must clear land of trees in order to mine the stone underneath. In the winter of 2016- 2017 a licensed contractor cut trees that covered the areas plaintiffs eventually needed to excavate. 2 Although the Town had issued a revaluation notice (also not sent to plaintiffs) in October 2016, Milici claimed that the October revaluation notice was sent by mistake. The October notice was not a mistake. Rather, the Town falsely claimed that the October revaluation was a mistake to cover up the fact that it issued the December 2016 revaluation notice in order to punish plaintiffs in retaliation for the fact that the Town could no longer tax the quarry equipment and had to refund taxes and provide a future credit to FRR.Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 7 of 48 31. On February 17, 2017 Soto issued a cease and desist order that stated that “slashing” of trees was prohibited under Section 31 of the zoning regulations and the Plaintiffs would have to apply for a special permit before resuming that activity. 32. en though plaintiff's had not “slashed” trees (slash is a defined forestry term; it does not, mean cutting trees), and even though Section 31 did not apply to the Quarry, plaintiffs did not cut down any more trees. 33. On March 21, 2017 a meeting was held in the law office of Town Attorney Joseph Zullo to discuss the February 17" cease and desist order. Attending the meeting were Joseph Zullo, John Patton, Mark DiLungo (whose company was mortgagee of the Property), Peter Alter (plaintifis* attorney), and Alan Temkin and Peter Hughes (investors in FRR). 34. At that meeting, Attomey Zullo stated that he agreed with Attorney Branse’s February 2016 letter which stated that the Quarry operation was a legally existing, nonconforming use and that Section 31 of the zoning regulations did not apply to quarries and therefore the Town could not, regulate the Quarry under Section 31. Attorney Zullo said that he had to wait for the right time to tell that to Mayor Maturo, Maturo testified that Joseph Zullo may have informed him that the Quarry had a right to operate. 35. The February 17" cease and desist order was issued based on the complaint of Joseph Carfora to the ZEO, (Carfora is the current mayor of East Haven and was a town council candidate of the ‘opposing party in the 2017 local election.). After the order was issued, Carfora complained directly to Maturo about the Quarry. As a result of Carfora’s complaint and in his presence, Maturo ordered his second in command, Sal Brancati, to tell Soto to go back out to the Quarry Property.Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 8 of 48 36. On April 21, 2017, Soto issued a cease and desist order that amended the February 17" cease and desist order to include a prohibition of excavating the stumps left behind and making demands for certain improvements to the Property. 37. A series of appearances by plaintiffs at the Zoning Board of Appeals commenced in April 2017. This was in addition to plaintiffs’ reaching out to and meeting with various public officials and the town's attorneys to work to resolve the issues identified by the town. 38. While plaintiffs did not agree that any of the steps ordered in the February and April cease and desist orders were necessary to protect the health and safety of the community, in the spirit of cooperation, the plaintiffs undertook substantial compliance measures voluntarily and at great expense, rather than contest each requirement of the February and April, 2017 cease and desist orders and voluntarily complied with the cease and desist orders to the extent legally possible. 39. Plaintiffs previously had ceased further removal of trees. Plaintiffs only removed tree stumps where they were stripping the area to mine and in the areas where the Town wanted a berm built, and then fully stabilized the area in which the vegetation removal occurred. 40. Although plaintiffs denied that any unsafe condition, and any condition that could cause erosion or sedimentation offsite existed, in accordance with discussions with the ZEO and the town engineer, plaintiffs worked to eliminate any concerns when the Town identified a problem with a boulder that appeared on the side of the road on the morning of April 20, 2017, which coincidently was the date of the first public hearing of the plaintiffs’ ZBA appeal. Despite the mysterious origin of the boulder, plaintiffs immediately built a berm to prevent any stray rocks going off the Property in the area identified. Building berms and internal haul roads is part of mining. (Contrary to defendant's claim, rocks coming off the Property on April 20, 2017 could not have been caused by blasting because no blasting occurred in April, 2017). When the Town officials did not thinkCase 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 9 of 48 the berm was big enough, plaintiffs completely overcompensated and built a 10' high berm, 15° deep, and 2000! long all along the westerly and southern boundary, then for added stability hydroseeded the area that was disturbed by the building of the berms, and installed silt and erosion control fencing and a hay bale berm for a distance in excess of 2,000 lineal feet at a cost i excess of $30,000. There was never any identified soil erosion caused by tree clearing, and no rocks or boulders came off the Property after April 20, 2017. 41. These voluntary actions of the plaintiffs demonstrated their willingness to meet and exceed any reasonable concems of town officials, 42. In making these changes to the Property at the request of town officials, the plaintiffs incurred significant costs in response to and in reliance upon town officials who repeatedly assured the plaintiffs that the Town had no intention of trying to “shut down” the Quarry. 43, Ata meeting at the Quarry on April 25, 2017, Soto told Patton that plaintiffs had to apply for aS ction 31 special permit. Patton responded that Section 31 did not and could not apply to quarries. He told Soto that plaintiffs had previously told the Town that FRR was willing to agree to voluntary, self-imposed operating regulations, and that the Town had never responded. 44, On May 2, 2017 the Town was served with plaintiffs” appeal of the Town’s December, 2016 real property tax increase. 45, Shortly before the May 9, 2017 meeting referred to below, Maturo told DiLungo, a longtime acquaintance, that Maturo was ordering the Quarry shut down because Carfora, who might run against him for Mayor, had organized a group secking to shut down the Quarry and Maturo wasn't ‘going to lose another election like he did when another group opposing the Russo Avenue quarry ‘opposed him in a prior election.Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 10 of 48 46. When Town Councilman Robert Sand had previously complained to Maturo about the Quarry, Maturo told him that “there are no quarries allowed in East Haven.” After Maturo had shut down the Russo Avenue quarry, Maturo told Councilman Sand that “there would never be another quarry in East Haven because we don’t allow it.” 47, The Town Code Enforcement Committee met once a month in the Mayor’s office to discuss and make decisions regarding various Town issues including zoning and property issues. Town department heads attended the meetings. The Mayor ran the meetings and nearly every final decision maker in Town government attended the meetings. 48, Maturo chaired the May 9, 2017 meeting of the Code Enforcement Committee. Town officials in attendance included Town Attomey Joseph Zullo, Assistant Town Attorney Alfred Zullo, ZEO Soto, Fire Marshal Mark Nimons, and Sal Brancati, Director of Administration and Management. (Brancati, the Mayor's second in command, worked directly with Maturo and was, second in charge in the Town and supervised the department heads. On behalf of Maturo he worked closely with and frequently communicated with department heads regarding the Quarry.) 49, The first item on the agenda was the Quarry operation, The discussion centered around the recently formed neighborhood group opposing the Quarry and how the Town would respond to it, Maturo likened the opposition group to the neighborhood group that had opposed the Russo Avenue quarry and helped defeat him in a prior Mayoral election in 2007. 50. The minutes of the May 9, 2017 Code Enforcement Committee meeting state the following under Maturo’s name regarding the Quarry: “Barberry Road, a lot of calls are coming into the various offices saying that blasting is going on, but there is no blasting going on because no 10Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 11 of 48 permits have been given and will not be given.’ Mark } imons will inform them they will not be getting any permits and he will notify the State. Joe Carfora is building a house up there so he is spearheading a group who is meeting tonight at the Foxon Fire House like the group on Russo Ave in the past that was against the quarry up there. Sal Brancati and Council Members will be going to the meeting and explaining that there is no way they are getting blasting permits from the Town without a court order allowing them to.” 51. The minutes of the May 9, 2017 Code Enforcement Committee meeting also state the following regarding the Quarry under Maturo’s name: “Ai/Joe/Chris will work on a letter the letter will go out... and Sal will bring it to the meeting tonight to show the steps the Town is taking on this project.” (Al, Joe and Chris were Alfred Zullo, Joseph Zullo and Soto). 52. Following this meeting, as set forth below, there was a beehive of activity as the Town and Assistant Town Attorneys along with the ZEO issued an immediate cease and desist order shutting down the Quarry, the Fire Marshal denied a request for a blasting permit to plaintiffs’ fully licensed and insured subcontractor, the tax assessor illegally reclassified plaintiff's Property as farm land, and representatives from the Mayor's office attended the meeting of the neighborhood opposition group held that night to explain how they were going to shut down the Quarry. The same day, Town Attorney Joseph Zullo told Patton and his attorney in a phone conversation that the Mayor had told Town officials to “do whatever it takes to shut them down.” > Complaints about blasting referenced in the minutes did not refer to plaintiffs’ Quarry. The complaints were about blasting at a nearby quarry in North Branford “The Russo Avenue group mentioned in the minutes was the group previously opposed to the Russo Avenue quarry in East Haven which had opposed Maturo in a prior election. "Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 12 of 48 53. On May 9, 2017 the Town issued a cease and desist order which, unlike the prior cease and desist orders, ordered the Quarry to cease operations under threat of civil and criminal penalties, unless a Section 31 special permit was obtained from the Planning and Zoning Commission. 54. The May 9" order shutting down the Quarry was issued without any prior notice to plaintiffs. ‘There was no precipitating event or problem identified by the Town with respect to the Quarry operation that arose after the April 21, 2017 cease and desist order had been issued and appealed 55. In order for the Quarry to do business, blasting permits had to be obtained from the Town Fire Marshal, Mark Nimons. As blasting the solid rock is an integral part of the Quarry operation, the Quarry could not operate without blasting permits. 56. The Town Fire Marshal acts as an agent of the State of Connecticut. The Mayor has no standing or statutory authority in the issuance of blasting permits. Despite these facts, Maturo had for a number of years prohibited Nimons from issuing any blasting permits for plaintiffs without Maturo’s prior approval. Nimons obeyed Maturo’s instructions. 57. In 2015, in order to benefit Maturo politically due to the upcoming Mayoral election, Nimons obeyed orders from the Mayor's office (through Sal Brancati) not to issue blasting permits to FRR’s licensed, insured subcontractor from September 2015 until after the election had concluded. 58. With respect to the permits that were issued Nimons, at the direction of Maturo through Brancati, enforced an arbitrary limitation as to the Quarry, contrary to the industry standard of 30 day permits, limiting the duration of blasting permits to one particular day for each permit. Plaintiff's never authorized or agreed to this limitation because the narrow restriction ignores local weather conditions, making the potential for added disturbance and risk. 59, Plaintiffs never had any documented problems with the thirty-seven blasts plaintiffs had performed at the Quarry and Town officials did not bring any issues to plaintiffs” attention. 12Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 13 of 48 60. As set forth in the May 9th meeting minutes, at the same time the Quarry was shut down in May, 2017, Nimons preemptively (before a written application was filed) rejected FRR’s licensed, insured, subcontractor’s request for a blasting permit, Nimons stated that the reason for rejection of the blasting permit was Maturo’s decision to permanently shut down the Quarry. 61. Ina face to face meeting at his office desk with Mr. Patton, Nimons admitted that he feared that his job would be in jeopardy if he did not follow Maturo’s order not to issue any more blasting permits for the Quarry 62. Since the Quarry could not operate without blasting, when Nimons told plaintiff's blasting contractor on May 9, 2017 that he would not issue a permit, the Quarry could no longer operate. 63. On May 9, 2017 Milici recorded on the land records an Amended Assessor's Certificate, maintaining his previous designation of a portion of plaintiffs’ Property as Farm Land. Plaintiff’ did not apply for or authorize the Farm Land classification. Milici’s recording of certificates on the land records classifying the Property as Farm Land subjected the Property to substantial penalties upon a change of use or a sale, which penalties would substantially benefit, defendant. Despite plaintiffs’ demand, Milici failed and refused to immediately record a Corrected Certificate removing the Farm Land designation, Plaintiffs incurred expense to remove the Farm Land designation, including fees and costs for a letter demanding removal of the designation and for the filing of this lawsuit against Milici for slander of title. 64. As set forth in the May 9th meeting minutes, Carfora had formed the Foxon Road Group trying to shut down the Quarry. Maturo learned of the Foxon Road Group prior to May 9, 2017. 65. The Foxon Road Group held a meeting on the night of May 9, 2017. Approximately 50 people attended the meeting, including town council members. Joseph Zullo and Brancati went to the meeting to tell the group what the Town was doing to shut the Quarry down and that no 13,Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 14 of 48 blasting permits would be issued. Carfora spoke with both Zullo and Brancati when they attended the May 9, 2017 meeting. Zullo and Brancati spoke to the group at the May 9" meeting, and again at a subsequent meeting of the Foxon Road group. 66, Maturo and Joseph Zullo have both admitted that the Mayor ordered the Quarry shut down for no legally cognizable reason. 67. Joseph Zullo and Sal Brancati supervised and directed Soto’s actions regarding the Quarry. 68. Despite the fact that he issued the cease and desist order, Soto testified that he does not know who made the decision to shut down the Quarry. 69, Soto admitted he knew that a zoning decision which was not appealed was final and binding, 70. Soto admitted that plaintiffs were entitled to rely on the 11/10/14 Decision. 71. Soto issued the May 9, 2017 cease and desist order despite the fact that he has admitted that the 11/10/14 Decision was binding on the Town. 72. The Town did not attempt to reverse or undo any of Mr. Biancur’s other decisions, 73. Soto issued the May 9, 2017 cease and desist order pursuant to the order and with the approval ‘of Maturo to shut down the Quarry. The May 9" cease and desist order was issued and the Quarry was shut down because Maturo ordered the department heads to close down the Quarry due to opposition by town residents, including a political opponent, Carfora, whose group opposed to the Quarry, that Maturo feared would jeopardize his re-election, Maturo ordered the Quarry shut down to benefit himself politically, and also in retaliation for the tax appeal served on May 2™ . 74. In his deposition Mayor Maturo did not deny ordering that the Quarry be shutdown, testifying that he did not recall issuing the order. He also testified that he was not surprised that other Town representatives stated that he ordered the Quarry shutdown. He did not deny stating that no blasting permits would be issued to the Quarry, testifying that would have been “ok” with “4Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 15 of 48, him. He did not deny giving instructions to the fire marshal regarding blasting permits, testifying that he did not recall, He also did not deny stating that no blasting permits would be issued for the Quarry unless a court ordered that a permit be issued, again testifying that he did not recall 75, Plaintiffs’ legally non-conforming use was a vested, constit ionally protected property interest under both the United States Constitution and state law that the Town could not terminate. 76. Prior to issuing the cease and desist orders Soto did not know and did no analysis to determine whether a quarry operation could possibly comply with the requirements of Section 31 77. Plaintiffs did not (and do not) dispute that the Town may create zoning regulations that regulate the health and safety aspects of plaintiffs” Quarry, as long as they are not arbitrary, destructive, nor confiscatory. However, Section 31 excludes quarry operations by its very requirements. Since Section 31 did not apply to the Quarry, the Town could not legally regulate the Quarry under Section 31, plaintiff’ could not comply with the demand to obtain a Section 31 special permit for the Quarry operation, and the Town could not legally grant the permit. 78. Furthermore, even if Section 31 were applicable to quarries, application of Section 31 would destroy plaintifis’ legally sting non-conforming use, because it is impossible for a quarry operation to comply with the requirements of Section 31, For example, Section 31.5.3.5 provides that “There will be no excavation, grading or removal below an elevation of three [3] feet above any ledge.” Since the mining of stone in the quarry is the removal of ledge, a restriction prohibiting excavation within three feet of ledge cannot ever be satisfied, and would be considered destructive and confiscatory to the plaintiffs. Also, the regulations do not allow crushing and sereening in the Property’s zone, another important component of plaintiffs’ quarry use. 15Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 16 of 48 79. It is undisputed that the Town had no quarry regulations. The As istant Town Attorney wrote that “the Town of East Haven has no need to enact quarry regulations as quarries are not allowed under its regulations nor will they for policy reasons be allowed in the future.” 80. The directive to apply for a permit under Section 31 was designed to circumvent the status of the Quarry as a legally existing non-conforming use. 81. After the town shut down the Quarry Milici reduced the assessed value of the Property. The new valuation made the Property the highest valued parcel of vacant residential land in the Town of East Haven. The Town even valued the plaintiffs’ vacant Property for more than the Town originally assessed the Property when the Town first officially recognized the quarry in 2014, 82. Plaintiffs appealed the cease and desist orders to the East Haven Zoning Board of Appeals. 83. Plaintiffs presented expert opinion evidence to the ZBA from three of the most well- respected land use attorneys in Connecticut - Retired Judge Robert Fuller, Timothy Hollister and Mark Branse - that the 11/10/14 Decision was legally binding and the Town had no discretion to prevent and prohibit plaintiffs from operating the Quarry at the Property. The experts also informed the ZBA that Section 31 of the East Haven Zoning Regulations could not be applied to the existing Quarry operation, and that as a matter of law the Town Planning and Zoning Commission could not grant a Section 31 permit because it could not waive the Section 31 requirements that a quarry could not comply with. No opposing expert testimony was presented. 84, Attomey Hollister told the ZBA that “sometimes you get into a legal analysis and a judgment call, maybe yes, maybe no. This is not a close case. This is not a judgement call. This is as clear as day to anyone who has practiced land use law in the State of Connecticut.” 16Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 17 of 48 85. In support of the cease and desist orders Soto submitted to the ZBA complaints his office had received purportedly about the Quarry operation. As Soto himself later admitted, many, nearly ‘two-thirds, of the complaints had nothing to do with plaintiffs’ Quarry. 86, Assistant Town Attorney Alfred Zullo was the attomey who advised the ZBA on plaintiffs’ appeal. In advising the ZBA he was required to act in a fair and neutral manner without bias for or against any party to the appeal, and without trying to persuade the ZBA as to how to rule. 87. Zullo advised the ZBA despite having two separate legal conflicts. First, at the same time he was advising the ZBA, his law firm was advocating on behalf of defendants in connection with these federal lawsuits. Second, he and another lawyer in his law firm were actively involved and participated in the drafting and issuance of the May 9, 2017 cease and desist order being appealed. 88. Attorney Al Zullo refused to recuse himself. Zullo told the ZBA that he had no involvement in the quarry prior to July 12, 2017. As demonstrated by the May 9, 2017 Code Enforcement Committee meeting minutes, and emails provided by defendants, this statement was untrue. He also justified his refusal to recuse himself because he had consulted about the conflict with another attomey. The attomey he consulted with was the Mayor's personal attomey, whose law firm filed appearances for Maturo and Milici in one of these lawsuits, 3:17-cv-00985 89. The ZBA denied a motion to disqualify Attorney Zullo from advising it as to the appeals. 90. Attorney Al Zullo, who served at the pleasure of the Mayor, stated that it is part of his job to convey the Mayor’s “philosophy” to board members with respect to applications pending before them for consideration, The Mayor's “philosophy” was that if the taxpayers were opposed to a matter then board members should also oppose it. It also was Maturo’s philosophy that municipal board members who voted contrary to his wishes should resign or be removed. ”7Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 18 of 48 91. Attorney Al Zullo, instead of acting in a fair and neutral manner, advocated on behalf of ZEO- Soto that the ZBA deny plaintiffs’ appeal, He repeatedly made comments which misrepresented the evidence that had been submitted to the ZBA and were prejudicial to plaintiffs, for example, disparaging plaintiffs’ experts because they were paid; directing the ZBA to an inapplicable statute; advising the ZBA that the 11/10/14 Decision could be collaterally attacked; attacking and disparaging 11/10/14 Decision; mispresenting that plaintiffs’ position regarding the Town’ ability to regulate the Quarry had changed; advising the ZBA that the applicant had a “very high burden.” He also improperly testified to matters outside the record and also improperly presented evidence to the ZBA outside the public hearing record. By presenting evidence after the public hearing had been closed Attomey Zullo prevented plaintiff’ from responding to this evidence. His “advice” was designed to do the Mayor's bidding. 92. On September 21, 2017, after 3 days of public hearings, and immediately after a lengthy presentation by Attorney Al Zullo, the ZBA, contrary to the unanimous expert evidence, disregarded the 11/10/14 Decision and rejected plaintiffs’ appeal with almost no deliberation, producing no findings, no legal rationale, and without providing any reasons for the denial. 93. Plaintiffs appealed the ZBA’s decisions to Superior Court, By decision dated August 28, 2019, after the Quarry had been closed for over 2 years and plaintiffs had incurred significant legal expenses and debt payments, the Superior Court, Judge Berger, sustained plaintiffs’ appeals on the grounds that the Town could not collaterally attack the 11/10/14 Decision determining that the Quarry was a legally existing non-conforming use, and that plaintiffs were not required to apply for a Section 31 special permit because Section 31 did not apply to quarries, and application of the requirements of Section 31 would destroy plaintiffs’ legal non-conforming use. Judge Berger also rejected the Town’s claim that the 11/10/14 Decision was invalid due to Biancur’s criminal 8Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 19 of 48 conviction, finding that there was no evidence to support this claim and that Soto had admitted that Biancur’s criminal conviction had nothing to do with the Property or the plaintiffs 94. Defendant filed a Petition for Certification to Appeal Judge Berger's decision. The Connecticut Appellate Court rejected the Petition. 95. The Quarry operation was and is the sole business of FRR and was and is John Patton’s occupation, Ownership and management of the Property was and is the sole business of One Barberry 96. The Town shut down the Quarry without any regard whatsoever for the catastrophic consequences to plaintiffs. 97. As a result of defendants shutting down the Quarry, plaintiffs were involuntarily forced to cease business operations at the Property, losing in excess of $10,000 to $15,000 of income per day; forced to layoff their experienced workforce; forced to liquidate assets at a significant loss in order to pay off debt; were unable to pay the mortgage on the Property; lost all of their existing customers after having to inform them that they could not deliver stone in accordance with contractual obligations; and lost ongoing and future business opportunities, lease payments, goodwill and lost profits, totaling tens of millions of dollars in losses. Future business included providing material to the New York City market in which we spent a substantial amount of money and time to get New York State source approval for the Quarry stone along with the time invested in finding customers. One customer specified and had built a custom made truck to maximize the haulage from Bast Haven to the NYC metro area and to return with crushed recycled material and soils from New York for the quarry reclamation, Asa result of defendant's actions, plaintiffs’ property could not be utilized for any alternate reasonable and proper purpo: ization of plaintiffs’ property was for all practical purposes 19Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 20 of 48, destroyed. It is uncertain whether plaintiffs will be able to restore their business to the level it ‘was at before the Town shut down the Quamy. If possible, it will take many years and significant expense to do so. AR¢ T STANDARD OF REVIEW In determining whether there exists a genuine dispute as to a material fact, the Court is “required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought. . . . In deciding a motion for summary judgment, the district cour's function is not to weigh the evidence or resolve issues of fact; it is confined to deciding whether a rational juror could find in favor of the non-moving party.’ Martin v. Town of Simsbury, 3:16-CV-00933 (12/7/2020)(KAD)(citations omitted), A party moving for summary judgment bears a heavy burden. . . . In deciding a motion for summary judgment, the court must assume that a trier of fact would resolve all factual disputes in favor of the party opposing summary judgment. All admissible evidence favorable to the party opposing the motion (including direct, indirect, and circumstantial evidence, and evidence admissible only for a limited purpose such as impeachment), and all permissible inferences based on such evidence, must be credited if such evidence and inferences could be credited by a trier of fact. The Court must disregard all evidence supporting the moving party that the jury would not be required to believe with regard to a disputed issue of fact, and must resolve all credibility questions in favor of the party opposing summary judgment. Local Rule 56(c). I. DEFENDANT VIOLATED PLAINTIFFS’ SUBSTANTIVE DUE PROCESS RIGHTS. [T]he substantive component of the Fourteenth Amendment's Due Process Clause forbids the government from burdening, in a constitutionally arbitrary way, an individual's property rights. ... To plead a plausible substantive due process claim, a plaintiff must allege facts establishing (1) a cognizable property interest (2) that was invaded (3) in an arbitrary and irrational manner. Importantly, substantive standards of the due process clause require conduct that is so outrageously arbitrary as to constitute a gross abuse of governmental authority. .. . Conduct that is merely incorrect or ill-advised is insufficient to give rise to a substantive due process violation. Lee v. Gardner, 8-CV-01478 (D. Conn, 4/14/2020)(KAD)(cites and quotes omitted). Whether the defendant's actions were outrageously arbitrary presents a question of fact: 20Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 21 of 48 [Whether executive action shocks the conscience depends on the state of mind of the government actor and the context in which the action was taken, ... Applying these principles to this case, we do not believe that whether the [defendant’s] actions were conscience-shocking can be decided at the summary judgment stage. The primary issue is the state of mind of the [defendant] .. .. [T]f the [defendant] . .. . intended to injure or to spite [plaintiff] .... that intent would plainly support liability ... To uphold summary judgment... we would have to conclude definitively that the [defendant] .... acted without culpable intent toward [plaintiff] ... . .. We cannot do so, because the evidence supports reasonable inferences, which at this stage must be drawn in [plaintiff's] favor, that cast doubt on the [defendant’s] motives. . .. If the [defendant] acted out of incompetence or confusion, this would not support substantive due process liability... But if the [defendant] acted out of spite . ... then the [defendant's] actions, intended to oppress [plaintiff] . ... would shock the conscience O'Connor v. Pierson, 426 F.3d 187, 203-04 (2 Cir. 2005)(cites omitted); Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 920 F.2d 1496, 1508 (9* Cir. 1990) (cites omitted) (“[W]here the property owner contends that it has been unconstitutionally deprived of property through governmental regulation, . .. motions for summary judgment must be viewed with particular skepticism. ... The importance of the specific facts and circumstances relating to the property and the facts and circumstances relating to the governmental action militate agai st summary resolution in most cases.”). “[A] regulation that fails to serve any legitimate governmental objective may be so arbitrary or irrational that it runs afoul of the Due Process Clause. See, e.g., County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (stating that the Due Process Clause is intended, in part, to protect the individual against "the exercise of power without any reasonable justification in the service of a legitimate governmental objective").” Lingle v. Chevron, 544 U.S. 528, 542 (2005). Plaintiffs’ legally nonconforming quarry use was a vested, constitutionally protected property right. Firetree, Ltd. v. Norwalk, 3:17ev1088 (9/14/18) (MPS)(“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) (“[A] nonconforming use... isa 21Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 22 of 48 vested property right in Connecticut and its legality in the first instance does not require a variance *)"); Conn, Gen. Stat. § 8-2(a)(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.”). “The protections afforded to a nonconforming use are binding and mandatory upon a municipal land use body, notwithstanding the provisions of the zoning regulations.” D&J Quarry Products, Inc. v. Planning & Zoning Commission, 217 Conn. 447, 455 (1991). “[A]nonconformity. .. is a vested right which adheres to the land itself. A lawfilly established nonconforming use is entitled to constitutional protection.” Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 483 (1979). In depriving plaintiffs of their vested property right by closing the Quarry the Town deliberately and intentionally ignored the 11/10/14 Decision and the catastrophic consequences to plaintifis.* The only issue in dispute regarding plaintiffs’ substantive due process claim is whether defendant acted arbitrarily in depriving plaintiffs of their liberty and property rights.® $ Defendant also deprived plaintiffs of their due process liberty interest in engaging in their chosen profession, “[PJlaintiffs can show a deprivation of a liberty “interest in pursuing a chosen occupation” sufficient to state a duc process claim by showing that the challenged actions “effectively prohibit{ed them] from engaging in a profession, or pursuing any job in a given field.” Hu v. City of New York, 17-cv-2348 (ARR) (LB), 17-cv-3795 (ARR) (LB), (E.D.N.Y. 3/9/18), vacated on other grounds, 927 F.3d 81 (2™ Cir. 2019)(cites and quotes omitted). “To prevail on such a claim, a plaintiff must allege facts suggesting that a defendant's conduct has operate{d] as a complete prohibition on his ability to practice [his chosen profession]. . .. When determining whether a burden amounts to a complete prohibition of the right to engage in a calling, courts have focused on the effects of a defendant’s conduct, not on the intentions underlying that conduct.” Hu v. City of New York, 927 F.3d 81, 102-03 (2™ Cir. 2019)(cites and quotes omitted); Conn ¥. Gabbert, 526 U.S. 286, 291-92 (1999). Defendant also deprived plaintiffs of their property interest as owner of the Property and operator of the Quarry, and of the goodwill of their business. Hardesty v. Sacramento Metropolitan Air Quality Management District, 307 F.Supp.3d 1010 (E. D. Cal. 2018), aff'd in part, rev'd in part ‘on other grounds, Nos. 18-15772, 18-1573 (9" Cir. 8/19/2020); Id. at 1028 (quoting Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1316 (9th Cir. 1989)("The goodwill of one’s business is a property interest entitled to protection; the owner cannot be deprived of it without due proc ° Plaintiff’ are not asserting a substantive due process violation as to Milici’s actions. 22Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 23 of 48 A. Plaintiffs’ Substantive Due Process Rights Were Violated Because Defendant Shutdown The Quarry In Order To Benefit The Mayor Politically. Improper motivation, such as political pressure or political favoritism, for a challenged ‘government action rather than legitimate regulatory concems establishes the requisite arbitrariness to support a substantive due process claim. Hardesty v. Sacramento Metropolitan Air Quality Management District, 307 F.Supp.3d 1010, 1034-1040 (E. D. Cal. 2018), aff'd in part, rev'd in part on other grounds, Nos. 18-15772, 18-1773 (9% Cir. 8/19/2020)(deprivation of vested property inter in mining by government officials motivated by desire to appease plaintiffs’ ‘competitors as well as state legislators and local politicians motivated by campaign contributions); Id, at 1035 (At trial, “[s]ubstantial evidence showed defendants recognized plaintiffs’ vested right for years before abruptly changing course and taking steps to deprive plaintiffs of their vested right.” after being the subject of political pressure); Bullseye Glass Co. v. Brown, 366 F.Supp.3d 1190, 1199 (D. Or. 2019); Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 920 F.2d 1496, 1508 (9% Cir. 1990)(triable issue of fact as to whether challenged action “was arbitrary and irrational action that was motivated, not by legitimate regulatory concems, but by political pressure from neighbors and other residents of the city to preserve the property as open space.”); Swenson v. Siskiyou Cty. 498 Fed. Appx. 719, 721 (Sth Cir. 2012) (summary judgment denied "because, viewing the evidence most favorably to [the plaintiff], he raised a genuine dispute of material fact as to whether defendants din an arbitrary and irrational manner when they invalidated a vested property interest due to political or other considerations"). Improper motivation alone is ....[sufficient] to establish lack of a legitimate governmental purpose.” Hardesty v, Sacramento Metropolitan Air Quality Management District , supra, 307 F upp.3d 1010 at 1035. 23.Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 24 of 48 {W]hen our Court, as well as other Courts of Appeal, have found an allegation of a deprivation of substantive due process sufficient to warrant an adverse judgment against a governmental body, the plaintifis have pleaded or presented evidence indicating that the body acted beyond its authority, without justification, or committed other egregious misconduct. . Del Monte Dunes, Ltd. v. City of Monterey, 920 F.2d 1496, 1508 (9th Cir. 1990) (Plaintiffs properly stated a due process claim by alleging, with supporting affidavits, that the city had approved their 190-unit project but later abruptly rejected the plan for broad conclusory reasons; and that the rejection was actually motivated by political pressure rather than by legitimate regulatory concerns,); Bello v, Walker, 840 F.2d 1124, 1129-30 (3% Cir.)(If plaintiff proves that municipal officials interfered with the municipality's building permit issuance process based on partisan political or personal reasons unrelated to the merits of the permit application, plaintiff would establish a substantive due process violation.), cert. denied, 488 U.S. 868 (1988). Southview Associates, Ltd. v. Bongartz, 980 F.2d 84, 104 (2 Cir, 1992)(Cites omitted); see also Bateson v. Geisse, 857 F.2d 1300, 1303 (9! Cir, 1988)(“[A}rbitrary administration of . local regulations, which singles out one individual to be treated discriminatorily, amounts to a violation of that individual's substantive due process rights.”); Id. (Plaintiff improperly singled out because the City Council deprived plaintiff of a building permit that had been approved by the building official, even though the applicable regulations did not allow for review by the City Council.) The 11/10/14 Decision was a final decision that established plaintiffs’ nonconforming Quarry use as a matter of law.” For years senior town officials knew the Quarry was operating. The Town taxed the Property as a quarry. Dozens of blasting permits were issued. During this time the Town did not violate the 11/10/14 Decision, ‘The Town then abruptly changed course and illegally and intentionally disregarded and violated the 11/10/14 Decision by closing the Quarry in order to benefit Maturo politically. Town Attorney Joseph Zullo admitted that Maturo ordered the Quarry shut down, Maturo admitted that he shut down the Quarry because a political opponent was leading a group opposed to the Quarry, and that he feared that this group would hurt his re-election 7 Exh, 28, pp. 7-12; E.g., Piguet v. Town of Chester, 306 Conn, 173, 185-86 (2012); Lallier v Zoning Board of Appeals, 119 Conn. App. 71, cert. denied, 295 Conn. 914 (2010); Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 102 (1992). 24Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 25 of 48, chances, because he had been hurt in a prior election by a group opposing a different quarry. The May 9" Code Enforcement Committee minutes confirm that the Town shut down the Quarry to benefit the Mayor politically at his direction, The cease and desist order was issued immediately after the May 9" Code Enforcement meeting. ‘That night, two top officials, Joseph Zullo and the Mayor's second in command, Sal Brancati, went to the opposition group meeting to tell the group that the Town was shutting down the Quarry. These facts demonstrate that defendant violated plaintifis’ substantive due process rights by closing the Quarry to politically benefit Maturo.® B. Plaintiffs’ Substantive Due Process Rights Were Violated Because Defendant Fabricated False Justifications For Shutting Down The Quarry. A false or pretextual justification for a challenged governmental action may establish the requisite arbitrariness to support a substantive due process claim. Lockary v, Kayfetz, 917 F.2d 1150, 1155-56 (9th Cir. 1990)(denying summary judgment due to a triable issue of fact as to whether city’s justification for its action was pretextual); Bullseye Glass Co. v. Brown, 366 F.Supp.3d 1190, 1200 (D. Or. 2019). ‘The Town manufactured false and pretextual justifications for closing the Quarry. As set forth above, the actual reason the Town closed the Quarry was to politically benefit the Mayor. Contrary to the real reason, the Town falsely claimed that it closed the Quarry for health and safety reasons. The Town fabricated this supposed reason for shutting down the Quarry. Plaintiff's acted immediately to address any health and safety issu the Town raised, including those in the February 17 and April 21" cease and desist orders. There was no precipitating event regarding ® By choosing to take the drastic step of ordering a complete cessation of plaintiffs’ Quarry, the ‘Town unnecessarily and gratuitously caused grievous harm to plaintiffs and to their employees. Had this matter truly been a difference of interpretation of the law, rather than an egregious political action ordered by the Mayor and carried out by town officials, the substantial damages suffered by the plaintiffs could have been mitigated, if not avoided completely. 25Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 26 of 48 health and safety of the Quarry after issuance of the April 21* cease and desist order. Soto claimed that one of the reasons for the shutdown order was because he believed blasting would be dangerous, yet he had no experience in blasting, never talked to anyone from the blasting company concerning the size, location, or intensity of the blast, did not ask that the blast site be moved to a different area and never asked the Fire Marshal if the blast would be dangerous, Blasting permits were not within the ZEO’s jurisdiction or responsibility. The May 9" cease and desist order prevented the Quarry from operating unless plaintiffs obtained a special permit under Section 31 of the East Haven zoning regulations, even though Soto never did an analysis to determine whether a quarry operation could comply with the requirements of Section 31, Section 31 excludes and does not apply to quarry operations, the order violated Conn. Gen. Stat. § 8-2(a), a quarry could not comply with the requirements of Section 31, the Town could not grant a Section 31 permit and the Town had no quarry regulations.® The directive to apply for a Section 31 special permit was designed to circumvent the status of the Quarry as a legally existing non-conforming use. It was the political opposition and the meeting on the night of May 9" of the group opposing the Quarry that caused the Mayor earlier that day to order the Quarry shutdown, because he feared the group would hurt his re-election, A jury is entitled to decide that plaintiffs’ due process rights were violated because the Town fabricated justifications for closing the Quarry. C. Plaintiffs’ Substantive Due Process Rights Were Violated Because Defendant Had (o Authority to Terminate Plaintiffs’ Nonconforming Use. ° Plaintiff’ never disputed that the Town could regulate the Quarry, only that the Town had no regulations that applied to quarries. Defendant’s reliance on Taylor v. Zoning Bd. Of Appeals, 65 Conn. App. 687 (2001) (Def. Mem. p. 17), is inapposite, because in that case the Town had regulations that applied to the nonconforming use, and the property owner failed to renew a permit it had previously applied for and obtained. 26Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 27 of 48 Substantive due process is violated when government acts without authority. E.g., Brady v. Town of Colchester, 863 F.2d 205, 215-16 (2™ Cir. 1988)(I' members of town planning and zoning commission "had no authority under state law to revoke [plaintiff's] building permit, to demand that [plaintiff] apply for zoning permits and certificates of occupancy, and to subject him to the overall approval process, then a trier of fact could conclude that there was no ‘rational basis! for the [commission's] actions," and therefore it violated plaintiffs substantive due process rights.); Sullivan v. Town of Salem, 805 F.2d 81, 85 (2d Cir.1986)(If town officials refused to issue certificates of occupancy for a reason that was contrary to state law, such a refusal "would constitute a deprivation of property without due process"); Southview Associates, Ltd. . Bongartz, 980 F.2d 84, 104 (2" Cir. 1992). Defendant violated plaintiffs’ substantive due process rights because under both federal and state law defendant had no legal authority to terminate plaintiffs’ nonconforming use. Firetree, Ltd. v. Norwalk, 3:17ev1088 (9/14/18) (MPS); Gavlak v. Town of Somers, 267 F.Supp.2d 214, 221 (D. Conn. 2003); Conn. Gen. Stat. § 8-2(a); D&I Quarry Products, Inc. v. Planning & Zoning Commission, 217 Conn. 447, 455 (1991); Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 483 (1979). Defendant also had no authority to require plaintiffs to apply for a special permit because Section 31 did not apply to quarries, a quarry operation could not comply with the requirements of Section 31, the Town could not grant a Section 31 permit and the Town had no quarry regulations. D. Plaintiffs’ Substantive Due Process Rights Were Violated By Defendant’s Harassment and Intimidation Of Plaintiffs, “[A] true pattern of harassment by government officials may make out a section 1983 claim for violation of due process of law.” Chalfy’ v. Turoff, 804 F.2d 20, 22 (2" Cir. 1986); Hu v. City of New York, 927 F.3d 81, 103 (2™ Cir. 2019); Espanola Way Corp. v. Meyerson, 690 F.2d 827, 27Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 28 of 48 829 (L1"* Cir.1982), cert. denied, 460 U.S. 1039 (1983)(harassment by repeated inspections and unwarranted code violations in order to close plaintiff's hotel because city believed it housed a large criminal element). [P]laintiffs can make out a due process claim .. .. by showing “a true pattern of harassment by government officials, ' where that harassment is ‘systematic and intentional.” Bertuglia v. City of New York, 839 F.Supp.2d 703, 718-19 (S.D.N.Y. 2012) (quoting Chalfy v. Turoff, 804 F.2d 20, 22-23 (2d Cir. 1986) (per curiam)). Cases in which such claims have been upheld, however, typically involve defendants either “act[ing] illegally” or “usling] their legal authority for a purpose other than that for which it is intended” in order to try to “driv[e] plaintiffs out of business.” Contractors Against Unfair Taxation Instituted on New Yorkers (C.A.U.T.LON,) v. City of New York, No. 93 Civ. 4718, 1994 WL 455553, at *3 (S.D.N.Y. Aug. 19, 1994) (collecting cases). Hu v. City of New York, 17-0 348 (ARR) (LB), 17-cv-3795 (ARR) (LB), (E.D.N.Y. 3/9/18), vacated on other grounds, 927 F.3d 81 (2™ Cir. 2019) *[A] plaintiff... may state a due process claim for a systematic pattern of harassment by government officials that is designed to destroy the plaintiffs business. ...”. Bertuglia v. City of New York, 839 F.Supp.2d 703, 719 (S.D.N.Y. 2012)(plaintiff's allegations that defendants engaged in a pattern of harassment to ruin plaintiff's business for personal or vindicative reasons made out a due process claim). The Town issued a series of Cease and Desist Orders and repeatedly and unwarrantedly demanded that plaintiffs obtain a Section 31 permit, even though Section 31 did not apply to quarries, a quarry operation could not comply with the requirements of Section 31 and the Town could not grant a Section 31 permit. The May 9" Code Committee minutes confirm town officials” efforts to come up with any and all possible reasons to put plaintiffs out of business. The Town then illegally terminated plaintiffs’ nonconforming use in violation of applicable law and illegally ordered plaintiffs to obtain a Section 31 special permit which could never be granted, and 28Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 29 of 48 threatened criminal sanctions for non-compliance. The Town harassed and intimidated plaintiffs to benefit Maturo politically and thereby violated plaintiffS’ substantive due process rights. I, _ PLAINTIFFS WERE DAMAGED BY MUNICIPAL POLICIES ENACTED, ADOPTED AND RATIFIED BY FINAL POLICYMAKERS. Defendants argue (Def. Mem. pp. 11, 12) that plaintiffs cannot demonstrate that an official policy of the Town caused their damages because, defendants claim, the ZBA was the final decision maker and there is no evidence that the ZBA intentionally deprived plaintiffs of their rights. This argument is meritless, because the ZBA was not the final decision maker for all of defendant’s illegal actions, and for those actions in which the ZBA was the final decision maker the ZBA acted intentionally to deprive plaintiff’ of their rights, and it adopted and ratified the decisions of Town officials. “Local goveming bodies ... can be sued directly under [42 U.S.C.] § 1983 ... where... the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Monell v. Department of Social Services, 436 U.S. 658, 690 (1978). Later cases have considerably broadened the concept of official municipal action. In Pembaur v. City of Cincinnati, [475 U.S. 469 (1986)] the Court recognized that... . a city “frequently chooses a course of action tailored to a particular situation and not intended to control decisions in later situations." Pembaur, 475 U.S. at 480-81 .. .. Thus, when a city decides "to adopt [a] particular course of action], ]... it surely represents an act of official government ‘policy! as that term is commonly understood." /d. at 481 . ... It is not necessary, therefore, for plaintiffs to prove that a municipality has followed a particular course of a repeatedly in order to establish the existence of a municipal policy; rather, a single action taken by a municipality is sufficient to expose it to liability. tion Amnesty America v. Town of West Hartford, 361 F.3d 113, 125 (2 Cir. 2004)(overturning a district court's dismissal of Monell liability claims against a municipality because the Chief of Police allegedly watched police officers commit constitutional violations and did not intercede 29Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 30 of 48, thereby tacitly approving their actions); Bateson v. Geisse, 857 F.2d 1300, 1303 (9% Cir. 1988)(single act of depriving plaintiff of building permit) ‘Municipal liability under § 1983 attaches where “a deliberate choice to follow a course of action is made from among various alternatives" by city policymakers. Pembaur v. City of Cincinnati, 475 U.S, 469, 483-84 (1986). "Where a plaintiff seeks to hold a municipality liable for a single decision by [a] municipal policymaker [ ], ... the plaintiff must show that the official had final policymaking power.... Moreover, the challenged actions must be within that official's area of policymaking authority. [T]he critical inquiry is not whether an official generally has final policymaking authority; rather, the court must specifically determine whether the government official is a final policymaker with respect to the particular conduct challenged in the lawsuit.” Garlasco v, Stuart, 602 F.Supp.24 396, 417-18 (D. Conn, 2009)(cites and quotes omitted)."° The individual defendants were final policymakers with respect to the decisions which damaged plaintifi’. Maturo acted as final policymaker for purposes of his order to the department heads to close the Quarry and their actions in doing so, because as Mayor he was “responsible for the administration of all departments, agencies, and offices [and to]... . see that all laws and ordinances governing the Town are faithfully executed.” Town Charter, Chapter V, Section 2. Fire Marshal Nimons, who refused to issue blasting permits without the Mayor's permission, was the policymaker for the issuance of blasting permits, without which plaintiffs could not operate the Quarry.'' Soto, the ZEO, had the authority to issue cease and desist orders, and issued the final ® Although a municipality is not liable under state law for intentional misconduct of its officials, CGS. § 52-557n(a)(2)(A), a municipality has no immunity from liability for a claim brought pursuant to § 1983. Owen v. City of Independence, 445 U.S. 622 (1980). "Chapter V, Section 8 of the Town Charter provides that “The Fire Marshal shall have all the powers and duties as are prescribed by the General Statutes, as amended.” See Conn. Gen. Stat. § 29-349; Conn. Regs. § 29-349-108-114 & 203-252, 30Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 31 of 48 cease and desist order pursuant to Maturo’s order. Milici, who quadrupled the appraised value of the Property after settlement of the tax appeal and then tried to cover up his actions, and designated a portion of plaintiffs’ property as farmland on the land records without plaintiffs’ consent, was the policymaker with respect to these issues. Soto and Milici were directly supervised by Brancati, the Mayor's second in command Defendant claims that with respect to the cease and desist orders the ZBA was the final policymaker. This claim is of no help to defendant, because the ZBA itself intentionally deprived plaintiffs of their nonconforming use. Plaintiffs and their experts proved to the ZBA at the hearing that plaintiff's had a nonconforming use that the ZBA could not prohibit. The ZBA was also provided evidence that plaintiffs’ nonconforming use was terminated in order to politically benefit Maturo. The May 9, 2017 Code Enforcement Committee minutes which were presented to the ZBA confirmed this. Despite knowing all this the ZBA nevertheless acted to deny plaintiffs’ appeal of the order that terminated plaintiffs’ nonconforming use. The ZBA intentionally and knowingly deprived plaintiffs of their constitutionally protected nonconforming use. Furthermore, regardless of the intent of the ZBA, the actions of the individual defendants are chargeable to the Town because the ZBA approved and ratified town officials’ decision to close the Quarry and the basis for that decision, and also because it acted with deliberate indifference toward town officials” termination of plaintiffs’ constitutionally protected nonconforming use. “If the authorized policymakers approve a subordinate's decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final.” City of St Louis v. Praprotik, 485 U.S. 112, 127 (1988). "[W]hen a subordinate's decision is subject to jew by the municipality's authorized policymakers, they have retained the authority to measure the official's conduct for conformance with their policies. If the authorized policymakers approve 31Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 32 of 48 a subordinate's decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final." Guizan v. Town of Easton, Civil 3:09ev1436 (IBA) (D. Conn, 8/29/12)(quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)), Where plaintiffs allege that their rights were deprived .. .. by a city employee's single tortious decision or course of action, the inquiry focuses on whether the actions of the employee in question may be said to represent the conscious choices of the municipality itself, Such an action constitutes the act of the municipality and therefore provides a basis for municipal liability where it is taken by, or is attributable to, one of the city's authorized policymakers. Pembaur, 475 U.S. at 481-82, 106 S.Ct. 1292. Thus, even a single action by a decisionmaker who "possesses final authority to establish municipal policy with respect to the action ordered,” id., is sufficient to implicate the municipality in the constitutional deprivation for the purposes of § 1983. More often than not, however, plaintiffs allege constitutional deprivations at the hands of the lower-level municipal employees to whom some authority has been delegated, rather than at the hands of those officials with final policymaking authority. While allowing the municipality to be held liable on the basis of the mere delegation of authority by a policymaking official would result in respondeat superior liability, allowing delegation, without more, to defeat municipal liability would contravene the remedial purposes of § 1983. Therefore, § 1983 plaintiffs may establish that the ci by proving that "the authorized policymakers approve[d] a subordinate's decision and the basis for it." City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)(plurality opinion), ‘Thus, when a subordinate municipal official is alleged to have committed the constitutional violation, municipal liability turns on the plaintiffs’ ability to attribute the subordinates’ conduct to the actions or omissions of higher ranking officials with policymaking authority. One means of doing so, of course, is to establish that a policymaker ordered or ratified the subordinates’ actions. See Weber v. Dell, 804 F.2d 796, 803 (2d Cir. 1986) (holding that liability could be premised on sheriff's ordering of unconstitutional strip searches). Another method of implicating a policymaking official through subordinates’ conduct is to show that the policymaker was aware of a subordinate's unconstitutional actions, and consciously chose to ignore them, effectively ratifying the actions. See, e.g., Sorlucco v. New York City Police Dep't, 971 F.2d 864, 870- 71 (2d Cir. 1992) (stating that municipal liability lies where the subordinate's misconduct "'so manifest as to imply the constructive acquiescence of senior policy-making officials"). ‘Thus, where a policymaking official exhibits deliberate indifference to constitutional deprivations caused by subordinates, such that the official's inaction constitutes a "deliberate choice," that acquiescence may "be properly thought of as a city 'policy or custom’ that is actionable under § 1983." City of Canton, 489 U.S. at 388, 109 S.Ct. 1197 (citations omitted); see also Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995), Jeffes v. Bares, 208 F.3d 49, 63 (2d Cir. 2000) (holding that sheriff's acquiescence in unconstitutional retaliation could be inferred from his tolerance and encouragement of 32Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 33 of 48 harassment of plaintiffs). Moreover, because a single action on a policymaker's part is sufficient to create a municipal policy, a single instance of deliberate indifference to subordinates’ actions can provide a basis for municipal liability. Amnesty America v. Town of West Hartford, 361 F.3d 113, 126-27 (2™ Cir. 2004)(emphasis supplied). [A] defendant who occupies a supervisory position may be found personally involved in the deprivation of a plaintiffs constitutionally protected liberty interests in several ways: The defendant may have directly participated in the infraction... A supervisory official, after learning of the violation through a report or appeal, may have failed to remedy the wrong. A supervisory official may be liable because he or she created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue... Lastly, a supervisory official may be personally liable if he or she was grossly negligent in ‘managing subordinates who caused the unlawful condition or event....In addition, supervisory liability may be imposed where an official demonstrates "gross negligence" or ‘deliberate indifference" to the constitutional rights of inmates by failing to act on information indicating that unconstitutional practices are taking place. Wright v, Smith, 21 F.3d 496, 501 (2% Cir. 1994)(cites omitted); Williams v, Smith, 781 F.2d 319, 323-24 (2™ Cir.1986)); Hu v. City of New York, 927 F.3d 81, 105 (2% Cir. 2019)(To prevail ona claim that a policymaker ratified a subordinate’s conduct, a plaintiff must demonstrate “that an officer with final policymaking authority ordered, ratified, or was aware of a subordinate’s unconstitutional actions, and consciously chose to ignore them, effectively ratifying the actions.. A plaintiff need only identify one such decision to bring a Monell claim, for "even a single action by a decisionmaker who possesses final authority to establish municipal policy with respect to the action ordered may deprive the plaintiff of his or her constitutional rights.” Montero v. City of Yonkers, New York, 890 F.3d 386, 403 (2" Cir. 2018) (Cites and quotes omitted); Starr v. Baca, 652 F.3d 1202, 1207-08 (9" Cir. 2011); Noga v. City of Schenectady Police Officers, 169 F.Supp.2d 83, 89 (N.D.N.Y. 2001); Bateson v. Geisse, 857 F.2d 1300, 1304 (9" Cir. 1988); Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998). ‘The Second Circuit has found that a municipality may be held liable under § 1983 when the injury was inflicted by its "lawmakers or by those whose edicts or acts may fairly be said to 33,Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 34 of 48, represent official policy.” ... Additionally, a supervisor's acquiescence to the actions of his subordinates may amount to a policy or custom, if the subordinate’s "discriminatory practice {is] so manifest as to imply the constructive acquiescence of senior policy-making officials." When a subordinate's decision is subject to review by the municipality's authorized policy makers, "their ratification would be chargeable to the municipality because their Accision is final." [plaintiff] may thus hold the Board liable under § 1983 for discriminatory treatment by .. . [subordinates] if she can demonstrate that the Board "knew of and ratified the discrimination. Grey v, City of Norwalk Bd. of Educ., 304 F.Supp.24 314, 0-31 (D. Conn, 2004)(cites omitted), The ZBA approved and ratified the decision of Town officials to terminate plaintiffs’ nonconforming use and illegally require plaintiffs to apply for a Section 31 special permit which could not be granted, because the ZBA denied plaintiffs’ appeal despite hearing evidence and testimony that the plaintiffs had a nonconforming use that the ZBA could not prohibit, that Town officials terminated plaintiffs’ constitutionally protected nonconforming use in order to politically benefit the Mayor, that Section 31 did not apply to quarries, that a quarry could not comply with the requirements of Section 31, that a Section 31 permit could not be granted, and that the Town had no quarry regulations. The ZBA also acted with deliberate indifference to Town officials’ termination of plaintiffs’ constitutionally protected nonconforming use, because it was aware of and chose to consciously ignore the unconstitutional actions of Town officials in shutting the down the Quarry. Therefore, the actions of the individual defendants constitute official Town policy and are chargeable to the Town even if the ZBA was the final policymaker." At the very least, there are issues of fact which preclude summary judgment. "2 The conflicted role of Assistant Town Attomey Alfred Zullo in “advising” the ZBA by doing the bidding of the Mayor cannot be ignored. His manner of “advising” the ZBA is an example of the manner in which the policymakers imposed their will on the ZBA to make a decision that was clearly contrary to the evidence and the law. It cannot be disputed that Attomey Zullo was well-aware of the Mayor’s position, that he had been charged with drafting the Cease and Desist 34Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 35 of 48 Il, | DEFENDANT’S RETALIATORY CONDUCT VIOLATED PLAINTIFFS? FIRST AMENDMENT RIGHTS. ? “To prevail on a First Amendment retaliation claim, (a plaintiff] . ... must establish (1) that the speech or conduct at issue was protected, (2) that the [offi ial] took adverse action against the [plaintiff]... and (3) that there was a causal connection between the protected [speech] and the adverse action. . .. In order to allege causation, the [plaintiff] ... must state facts suggesting that the protected conduct was a substantial or motivating factor in the . . .. official's decision to take action against [him].” Allah v. Sample, 3:18-CV-887 D. Conn. 1/4/19)(KAD)(cites omitted). Filing a lawsuit constitutes protected speech. Hardesty v. Sacramento Metropolitan Air Quality Management District, supra, 307 F.Supp.3d 1010 at 1050, “Where there is “evidence that the defendant engaged in an" ongoing course of adverse action" against the plaintiff, such action may serve as additional evidence of retaliatory intent. See, eg, Women's Interart Ctr, Inc. v. N.Y.C. Econ. Dev. Corp., 2005 WL 1241919, at *28 (S.D.N.Y. May 23, 2005); see, e.g., Econ. Opportunity Comm'n of Nassau Cnty., Inc. v. Cnty. of Nassau, 106 F. Supp. 24.433, 437 (E.D.N.Y.2000); Hous. Works, Inc. v. City of NY., 72F. Supp. 2d_402, 426 (S.D.N.Y.1999}("Evidence of a ‘pattern of antagonism’ or of prior retaliatory conduct may serve as circumstantial evidence of retaliation." ." Tomlins v. Village of Wappinger Falls Zoning Board of Appeals, 812 F.Supp.2d 357, 375 (S.D.N.Y. 2011). “Retaliatory intent is often proven by circumstantial evidence. See, e.g., Morris v. Lindau, 196 F.34.102, 110 (2d Cir.1999) ("[cJausation can be established. . . indirectly by means of circumstantial evidence"); Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 87 (2 Order that was the subject of the appeal to the ZBA and that his legal advice to the ZBA was designed to carry out the direction of the Mayor. His breach of duty is clear. 'S Plaintiffs’ retaliation claim is based solely on the actions of Milici 35,Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 36 of 48 Cir.1996)(circumstantial evidence often only means available to prove retaliation); cf: Ramseur v. Chase Manhattan Bank, 865 F.2d.460, 464 (2d Cir.1989) (defendants "rarely so cooperative as to include a notation" of retaliatory motive) (internal quotation marks omitted).” Tomlins v. Village of Wappinger Falls Zoning Board of Appeals, 812 F.Supp.2d 357, 372 (S.D.N.Y. 2011). Departure from normal procedures may provide circumstantial proof of retaliatory intent. See, e.g., Women's Interart Ctr., Inc. v. N.¥.C. Econ. Dev. Corp., 2005 WL 1241919, at *28 (S.D.N.Y. May 23, 2005)("[D]epartures from the normal procedural sequence’ of governmental decisionmaking ‘also might afford evidence that improper purposes are playing a role’... ."\(quoting Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 US.252, 267, 97.S. Ct. 555, 50.L. Ed. 2d 450 (1977); Green v. City of Montgomery, 792 F. Supp. 1238, 1254 (N.D.Ala.1992) ("circumstantial evidence commonly encountered which can support an inference [of] retaliatory motive” includes departures from the normal procedure). Tomilins v. Village of Wappinger Falls Zoning Board of Appeals, 812 F.Supp.2d 357, 373-74 (S.D.NY. 2011); Powell v. City of Pittsfield, 221 F. Supp. 2d 119, 143 (D.Mass.2002) (that plaintiff's superior ignored guidelines requiring submission of plaintiff's case to intermediate review board before plaintiff was denied reinstatement was circumstantial evidence of retaliatory motive). “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 .. .. plaintiff has clearly alleged a concrete harm independent of First Amendment chilling.”).” Firetree, Lid. v. Norwalk, 3:17ev1088 (9/14/18)(MPS)(allegation that a lawsuit resulted in adverse action by the ZBA and ZEO satisfies 36Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 37 of 48 harm element of first amendment retaliation claim); 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). An official retaliatory policy is a particularly troubling and potent form of retaliation, for a policy can be long term and pervasive, unlike an ad hoc, on-the-spot decision by an individual officer. An official policy also can be difficult to dislodge. A citizen who suffers retaliation by an individual officer can seek to have the officer disciplined or removed from service, but there may be little practical recourse when the government itself orchestrates the retaliation. For these reasons, when retaliation against protected speech is elevated to the level of official policy, there is a compelling need for adequate avenues of redress. Lozman v. City of Riviera Beach, Florida, 138 8.Ct. 1945, 585 U.S. __ (2018)(claim that the City formed a premeditated plan to intimidate plaintiff in retaliation for his criticisms of city officials and his lawsuit against the City), Milici retaliated against plaintiffs by engaging in an ongoing course of adverse action in response to plaintiffs’ tax appeals. In their personal property tax appeal plaintiffs appealed Milici’s refusal to recognize the state tax exemption for the Quarry equipment. "' By virtue of the settlement, the Town acknowledged that it had improperly refused the tax exemption and had to refund taxes and provide a tax credit for plaintiffs. Milici made a comment to Mr. Patton in the courthouse that indicated his palpable unhappiness at the settlement and that there would be retaliation. Exh. V4 28. Shortly after the settlement, Milici substantially increased the real property tax by quadrupling the property value. Milici claimed this was done even though plaintiff's had gone through a revaluation just two months before. He claimed that this departure from normal procedure was \ Defendant has not disputed that the tax appeals constitute speech protected by the First Amendment right to petition the government for the redress of grievances. E.g., Mission Product Holdings, Inc. v. Tempnology, LLC, 139 S. Ct. 1652, __ U.S. __ (2019); Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 741 (1983); California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972); Easton v. Sundram, 947 F.2d 1011, 015 (2" Cir.1991). 37Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 38 of 48 done because the prior revaluation was a mistake. The evidence shows that this claim was false, made to cover-up the punitive action Milici had taken in quadrupling appraised value of the real property in retaliation for the appeal and the settlement. Exh. Vs 29-31; see Response to Number 81 of the defendants’ Local Rule 56(a)(2) Statement of Facts.'* Milici’s retaliation continued after the Town was served on May 2, 2017 with plaintiffs” appeal of the December 2016 tax increase. On May 9" Milici without plaintiffs’ approval or consent recorded a continuation of the Farm Land designation of a portion of the Property. Exh. V 69. Milici’s retaliation continued after May 9". In June, despite plaintifis’ demand, Milici refused to withdraw the Farm Land designation. It was only after plaintiff sued him for slander of title that Milici withdrew the Farm Land designation, Exh. V 69. Milici subsequently reduced the assessed value of the Property because the Quarry was shut down, but the new valuation made the Property the highest valued parcel of vacant residential land in East Haven. Milici even valued the plaintiffs’ vacant Property for more than the Town originally assessed the Property when the Town first officially recognized the Quarry in 2014. Exh. V 74, There is sufficient circumstantial evidence for a jury to conclude that Milici retaliated against plaintiffs for exercising their First Amendment rights by filing their tax appeals. IV, SUMMARY JUDGMENT AS TO PLAINTIFFS’ TAKINGS CLAIMS SHOULD BE DENIED. 'S Contrary to defendant's assertion, plaintiffs are not barred by Fair Assessment in Real Estate Assn, v. McNary, 454 U.S. 100 (1981) from relying on the December revaluation as part of their retaliation claim against Milici, because plaintiffs are not secking review of the amount of the increase, a matter over which the state enjoys wide regulatory latitude. Rather plaintiffs’ claim involves a fundamental First Amendment right. Additionally, the state court is not better positioned than this Court to adjudicate plaintiffs’ First Amendment claim, 4. Levin v. Commerce Energy, Inc., 560 U.S. 413, 431 (2010). Moreover, the tax increase is only one part of plaintifis’ re claim regarding Milici’s actions. 38Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 39 of 48, Defendant makes three arguments in support of summary judgment as to plaintiffs’ Fifth Amendment takings claim (First Count) and inverse condemnation claim under the Connecticut Constitution (Second Count)."* 'S Federal - Inverse condemnation claims, including claims for temporary takings, may be pursued as a Takings Clause claim under Fifth Amendment. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, California, 482 U.S. 304, 321 (1987). Except for “categorical” takings claims, which involve permanent physical invasion of property or complete destruction of all beneficial use of property, regulatory takings challenges are governed by the standards set forth in Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978). “Primary among th{e] factors to be considered in such cases are [t]he economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations.” Lingle v. Chevron, 544 U.S. 528, 538-39 (2005). The character of the governmental action also “may be relevant.” Lingle v. Chevron, 544 U.S. 528, 539 (2005); Martin v. Town of Simsbury, 3:16-CV-00933 (D. Conn, 8/28/19) (KAD). Under Penn Central, a taking may occur even if it does not deprive the owner of “all economically beneficial use” of the property. Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001); see Lockaway Storage v. County of Alameda, 216 Cal. App. 4 161, 156 Cal. Rptr. 34 607 (2013)(regulatory taking found applying Penn Central when county reversed its prior position and attempted to prohibit plaintiff's grandfathered use, resulting in a decrease in value of the property; taking found even though property was not rendered worthless), State -“[A claim for inverse condemnation under the Connecticut Constitution] is a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency . . . Although property may be taken without any actual appropriation or physical intrusion . . . there is no taking in a constitutional sense unless the property cannot be utilized for any reasonable and proper purpose . . . as where the economic utilization of the land is, for all practical purposes, destroyed . . . A constitutional taking occurs when there is a substantial interference with private property which destroys or nullifies its value or by which the owner's right to its use or enjoyment is in a substantial degree abridged or destroyed.” Martin v. Town of Simsbury, 3:16-CV-00933 (D. Conn, 8/28/19)(KAD)(cites and ‘quotes omitted). “The issue of whether there has been a substantial destruction of an owner's ability to use or enjoy a property .. . is a fact intensive issue” with “no bright line standard . . .. Logic dictates that where inverse condemnation is found for substantial-but not complete-destruction of an owner's ability to use or enjoy property . . . the taking is of constitutional magnitude.” Farmington-Girard, LLC v. Planning & Zoning Commission of The City of Hartford, 3:17-cv- 1915 (2/26/19) (MPS)(citations 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]... Courts 39Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 40 of 48 Defendant first argues (Def. Mem. pp. 19-20) that plaintiffs have failed to establish that defendant intended to violate plaintifis’ right. This argument is meritless. As defendant admits in its memorandum (p. 13), “Section 1983 itself contains no state-of-mind requirement independent of that necessary to state a violation” of the underlying federal right. . . . In any § 1983 suit, however, the plaintiff must establish the state of mind required to prove the underlying violation.” Board of Comm'rs of Bryan County v. Brown, 520 U.S. 397, 405 (1997). The takings clause contains no state of mind requirement. E.g., Hansen v. United States, 65 Fed. Cl. 76, 81 (2005); see also Cumberland Farms, Inc. v. Town of Groton, 247 Conn. 196, 208 (1998)(“An inverse condemnation action does not concem itself with the propriety of the board's action. The only inquiry is whether a taking has, in fact, occurred. If the board's action resulted in a taking, the invers e condemnation action will determine the amount of compensation due.”). Plaintiffs are not required to prove intent to establish a takings claim, '7 Defendant's second argument (Def. Mem. pp. 21-22) is that plaintiffs’ takings claims are not ripe, even though the Town deprived plaintiffs of their legal right to operate the Quarry, because, defendant claims, plaintiffs could have but did not seek to re-open the Quarry by applying to the Planning & Zoning Commission for a Section 31 special permit.’ This argument fails because 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.” Firetree, Ltd. v. Norwalk, 3:17ev1088 (9/14/18)(MPS)(cites and quotes omitted). 'T Moreover, as discussed above in this Memorandum, defendant did intentionally violate plaintiffs’ rights. 18 “(T]he ripeness doctrine's basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements." Murphy v. New Milford Zoning Com'n, 402 F.3d 342, 347 (2™ Cir. 2005)(citation and quotation omitted). “At its heart is whether we would benefit from deferring initial review until the claims we are called on to consider have arisen in a more concrete and final form. Murphy v. New Milford Zoning Com'n, supra, 402 F.3d 342 at 347 (citation and quotation omitted). 40Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 41 of 48 Section 31 did not apply to quarries, a quarry could not comply with Section 31, and the Town had no quarry regulations. Additionally, the Planning & Zoning Commission could not have granted a permit because it could not vary or waive the requirements of Section 31, MacKenzie v, Planning and Zoning Commission, 146 Conn. App. 406, 424-35 (2013).2° Defendant may argue that even though the Planning and Zoning Commission could not have granted a permit the ZBA could have granted a variance allowing the Quarry to operate. This argument fails because “a nonconforming use . ... is a vested property right in Connecticut and its legality in the first instance does not require a variance... ..” E.g., Gavlak v. Town of Somers, 267 F.Supp.2d 214, 221 (D. Conn, 2003). This argument also fails because the ZBA could not have legally granted a variance for the Quarry. "[Ujnless great caution is used and variances are granted only in proper cases, the whole fabric of town-and city-wide zoning will be wom through in spots and raveled at the edges until its purpose in protecting the property values and securing the orderly development of the ‘community is completely thwarted. The variance is an instrument of relief, not rezoning... [A variance] should not be used to accomplish what is in effect a substantial change in the uses permitted in a residence zone. That is a matter for the consideration of the zoning commission." Kniep v. Zoning Bd. of Appeals for E. Hartford, LNDCV 1460555338 (Hartford Superior Court, April 28, 2016)(internal quotes and citations omitted) '? Defendant tells the Court (Def. Mem. p. 20) that “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 existence of its police powers.” This is an incorrect statement of law. Firetree, Ltd. v. Norwalk, 3:1 7ev1088 (9/14/18) (MPS); Gavlak v. Town of Somers, 267 F.Supp.2d 214, 221 (D. Conn. 2003); Conn. Gen. Stat. § 8-2(a); D&J Quarry Products, Inc. v. Planning & Zoning Commission, 217 Conn. 447, 455 (1991); Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 483 (1979) Also, applying for the permit would have caused forfeiture of plaintiffs” legally non-conforming use. Przekopski v. Zoning Bd. of App. of Town of Colchester, 131 Conn. App. 178 (2011). a”Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 42 of 48 As our Supreme Court has explained, a variance constitutes authority extended to the owner to use his property in a manner forbidden by the zoning enactment . . . It is well established . .. that the granting of a variance must be reserved for unusual or exceptional circumstances . .. An applicant for a variance must show that, because of some peculiar characteristic of his property, the strict application of the zoning regulation produces an unusual hardship, as opposed to the general impact which the regulation has on other properties in the zone. .. Accordingly, we have interpreted . . . [General Statutes] § 8-6 to authorize a zoning board of appeals to grant a variance only when two basic requirements are satisfied: (1) the variance must be shown not to affect substantially the comprehensive zoning plan, and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan . . . Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance . .. The granting of a variance is no insignificant matter, as it runs with the land in perpetuity. See General Statutes § 8-6 (b)." (Citations omitted; internal quotation marks omitted.) Verrillo vy, Zoning Board of Appeals, supra, 155 Conn. App. 678-79. " Zoning boards of appeal possess a limited authority, as circumscribed by statute, the scope of which cannot be enlarged by either the board or the local zoning regulations." Id., 681." To support a variance . . . a hardship must arise fom a condition different in kind from that generally affecting properties in the same zoning district and must be imposed by conditions outside the property owner's control . . . The applicant bears the burden of demonstrating the existence of a hardship . . . A mere economic hardship or a hardship that was self-created, however, is insufficient to justify a variance. . . and neither financial loss nor the potential for financial gain is the proper basis for granting a variance.” (Internal quotations omitted.) 347 Humphrey Street, LLC v. Board of Zoning Appeals, supra, 160 Conn. App. 224-25 Kniep v. Zoning Bd. of Appeals for E. Hartford, LNDCV146055533S (Hartford Superior Court, April 28, 2016)(emphasis supplied); 347 Humphrey St., LLC v, Board of Zoning Appeals of the City of New Haven, 160 Conn. App. 214, 224-25, 125 A.3d 272, (2015); Murphy v. New Milford Zoning Com'n, 402 F.3d 342, 345 n.1 (2 Cir. 2005). As set forth above, to grant a variance, the ZBA must determine, inter alia, that the variance ‘would not affect the comprehensive zoning plan. A variance for the Quarry would have affected the comprehensive zoning plan because, as the Assistant Town Attomey stated in his report to the 42Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 43 of 48 ZBA, “the Town of East Haven has no need to enact quarry regulations as quarries are not allowed under its regulations nor will they for policy reasons be allowed in the future.” 7! Furthermore, since quarries were not allowed anywhere in Town, the Town’s own zoning regulations prohibited granting of a variance for a quarry operation. See East Haven Zoning Regulations § 51.8.2 (No variance shall be granted which would permit any use of land, buildings or structures that is prohibited in all districts within the Town.) and § 51.8.3 (No variance shall be granted which would allow a use of land, buildings or other structures that is prohibited in the district, unless such use is currently permitted in another district of similar classification.) ”? 2! Moreover, a variance cannot be granted based on economic hardship. “As noted by the court in Verrillo v. Zoning Board of Appeals, supra, 155 Conn. App. 691-92, " In Garibaldi v. Zoning Board of Appeals, 163 Conn, 235, 238, 303 A.2d 743 (1972), our Supreme Court held that a variance is properly granted only where there is a showing before the zoning board of appeals that the hardship caused by the application of zoning regulations relates to the property for which the variance is sought and not to the personal hardship of the owners thereof. The court further explained that a variance is not a personal exemption from the enforcement of zoning regulations. It is a legal status granted to a certain parcel of realty without regard to ownership. It is for this reason that the rule is well established that the financial loss or the potential of financial advantage to the applicant is not the proper basis for a variance . .. Similarly, it is also well established that self-inflicted hardship which arises because of individual actions by the applicant will not provide a zoning board of appeals with sufficient reason to grant a variance... Hardships in such instances as these do not arise from the application of zoning regulations, per se, but from zoning requirements coupled with an individual's personal needs, preferences and circumstances. Personal hardships, regardless of how compelling or how far beyond the control of the individual applicant, do not provide sufficient grounds for the granting of a variance . . . For that reason, [t]he situation of any particular owner is irrelevant to the determination of whether a hardship exists." (Citation omitted; internal quotation marks omitted.)” Kniep v. Zoning Bd. of Appeals for E. Hartford, LNDCV1460555338 (Hartford Superior Court, April 28, 2016). ” Additionally, any attempt to obtain a variance would have been futile because the ZBA had already deprived plaintiffs of their legally non-conforming use. For purposes of the ripeness analysis, “the finality requirement is not mechanically applied. A property owner, for example, will be excused from obtaining a final decision if pursuing an appeal to a zoning board of appeals or seeking a variance would be futile. That is, a property owner need not pursue such applications when a zoning agency lacks discretion to grant variances or has dug in its heels and made clear that all such applications will be denied.” Murphy v. New Milford Zoning Com'n, 402 F.3d 342, 349 (2™ Cir. 2005). "Precisely what procedures a given property owner must pursue [before 43Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 44 of 48, Defendant's third argument (Def. Mem. pp. 23-24) asserts that plaintiff cannot bring a takings claim because defendant's actions in shutting down the Quarry were not a legitimate exercise of governmental power, and therefore plaintiffs’ property was not taken for “public use.” ** Defendant relies on Lingle v. Chevron, 544 U.S. 528 (2005). The Court in Lingle reversed its prior decision in Agins v, City of Tiburon, 447 U.S. 255, 260 (1980) and held that government regulation of property cannot effect a Fifth Amendment taking of property solely because the regulation does not substantially advance a legitimate state interest. Lingle, supra, S44 US. at 542-43. “[Lingle] recognized that the takings and substantive due process analyses ask fundamentally different questions, with the former focused on the effect of the government action on the property owner and the latter focused on the legitimacy of the government's exercise of power.” D. Barros, Af Last, Some Clarity: The Potential Long-Term Impact of Lingle v. Chevron and the Separation of Takings and Substantive Due Process, 69 Alb. L. Rev. 343, 349 (2005), Based on Lingle, defendant claims that illegitimate government activity cannot effect a taking. finality may be assured] depends upon the specific regulation at issue.” Cumberland Farms, Inc. v. Town of Groton, 247 Conn, 196, 215 (1998)(quoting Port Clinton Associates v. Board of Selectmen of Town of Clinton, 217 Conn. 588, 607 (1991). “[T]he property owner is not obliged to “take patently fiuitless measures." Cumberland Farms, Inc., supra 247 Conn. at 215 (1998)(quoting in part Port Clinton Associates, supra 217 Conn. at 607)). The ZBA deprived plaintiffs of their pre-existing legally non-conforming use even though that use was constitutionally protected, and even though plaintiffs in reliance thereon had expended millions of dollars. There is no reason to believe that the ZBA would have reached a different conclusion on an application for a variance to allow the Quarry to operate. The ZBA would not have voluntarily allowed plaintiffs’ Quarry to operate under any circumstances. Accordingly, the pursuit by plaintifis of an application for a zoning variance would have been fatile. ° Tn support of this claim defendant argues (Mem. P. 24) that its closure of the Quarry was improper. However, in the very same section as well as elsewhere in its memorandum, defendant makes the opposite argument, that it acted legitimately because it closed the Quarry for health and safety reasons. See Def. Mem. pp. 17-18 (due process), p. 19 (equal protection) and p. 20 (takings). Defendant cannot have it both ways. It cannot argue that it had a rational basis for its actions for purposes of the takings, equal protection and due process clauses and at the same time argue that its actions were illegitimate for purposes of the takings clause. 44Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 45 of 48, Defendant's sertion that improper government action precludes a takings claim is incorrect. D. Spohr, “What Shall We Do with the Drunken Sailor?: The Intersection of the Takings Clause and the Character, Merit, Or Impropriety of Regulatory Action, 17 8. E. Law J. 1, $7 (2008)(hereinafter What Shall We Do”)(“Lingle's unanimous opinion was dismissing the notion that the impermissibility of government action could be an independent basis for a takings claim, not commenting on whether that impermissibility precluded a taking.”):* A. Romero, Ends and Means in Takings Law after Lingle v. Chevron, 23 J. Land Use & Envtl. L. 333, 350 (2008)(hereinafter “Ends and Means")(“Violating due process should not immunize a regulation from the just compensation requirement. An invalid regulation could take property just as much as a valid regulation could.) *> 2Ajthough the question of whether an error can immunize the government from a takings claim has yet to come before the Court, a majority of the Court would likely reject an errors- preclude-takings position. In Eastern Enterprises, only five justices were ready to reject the notion that a property owner could not use the ineptness of a government action as a sword against the government in a takings case, It would be a stretch to say that five justices would agree that the government could use that same shortcoming as a shield against an otherwise sufficient takings claim, . . So long as the legislature has authorized the particular agency action, whether that regulatory performance turns out to be good, bad, or ugly docs not change its designation as an act of the government. . .. [I]t would be odd if the same Court that recently interpreted "public use" extremely broadly would nonetheless narrow the concept so as to immunize the government in situations where an agency, duly authorized by the legislature to regulate a particular property or activity, makes any mistake in the course of that regulation, The Court has interpreted "public use" as broad enough to be "coterminous" with the scope of the government's police power . .. The Court has "consistently rejected [a] narrow test" of public use, and is unlikely to reverse course in this context.” What Shall We Do pp. 58-59. 25 “Imagine two regulations. The first regulation declares that certain property owners cannot develop or even use their property in any way, perhaps because the property is located in a sensitive coastal area. The government has chosen a rational way to advance a valid public purpose. The regulation therefore satisfies substantive due process, But this rational regulation nevertheless denies the owner all economically viable use of her land, and therefore the government must pay just compensation under the Takings Clause. The second regulation also declares that certain property owners cannot develop or use their property, but this time for no good reason at all-the regulation arbitrarily says prime-numbered subdivision lots cannot be developed or occupied. The second regulation is not a rational way to advance any valid public purpose and denies substantive 45Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 46 of 48 In addition to being incorrect, defendant’s argument also is premature. The Court need not at this time decide whether improper government action precludes a takings claim, because even accepting the premise of defendants argument, plaintiffs’ takings claim would be precluded only due process. It also denies the owner all economically viable use of her land just as much as the first regulation does.” Ends and Means p. 350. “The Court in Lingle stressed that the Takings Clause does not prevent any "governmental interference with property rights,” but simply requires the government to pay compensation when "otherwise proper interference amount(s] to a taking.” .. . But that does not mean that the Takings Clause never requires compensation for otherwise unconstitutional acts. It just means that the Takings Clause asks a different question than other constitutional provisions: rather than asking whether the government acted validly or invalidly, it asks whether the government took property. Both valid and invalid actions can take away a person's property. The government does not have the right to enforce irrational regulations, but if the government does so anyway, the requirement of just compensation is "self-executing" and the government should have to pay after the fact. ... Some have argued that the Takings Clause itself prevents compensation for regulations that deny substantive due process. The Takings Clause says property may not be taken for "public use” without just compensation, The Court has construed the public use clause not to merely describe compensable actions, but to actually restrict the eminent domain power-to prohibit exercising eminent domain for something other than a legitimate public purpose. This suggests the Takings Clause does more than just "presuppose" a valid governmental action: it actually declares certain actions-takings that are not "for public use"= invalid, The Court has said that "for public use" means the same thing as substantive due proces the regulation is a rational way to advance a valid public purpose. Therefore, the argument goes, the Takings Clause only requires just compensation for regulations that are for a public use and thus are also valid under substantive due process. Irrational regulations are simply void and never invoke the requirement of just compensation. But that would be a strange rule: the government must pay compensation if it takes for a legitimate purpose, but the government need not pay anything if it takes for an illegitimate purpose. Even if the public use clause limits the eminent domain power, that doesn't mean the public use clause also limits the obligation to pay just compensation if a taking has actually occurred. . . the public use requirement might forbid takings for private or otherwise illegitimate uses, but it does not mean that no compensation is required if the government nevertheless takes property for private or otherwise illegitimate uses in spite of that prohibition. . . .The Just Compensation Clause surely is meant to require compensation whenever the government actually takes away someone's property, and it would be perverse if the government could defend against a claim for compensation by saying it took the person's property for an illegitimate reason, But even if the public use clause implies that the Fifth Amendment itself requires the government to pay compensation only when it takes property for legitimate purposes, neither the public use clause nor any other part of the Fifth Amendment suggests the false inference that the government can therefore take for non-public uses without paying compensation. .[A]n invalid regulation under substantive due process may also be a taking.” Ends and Means pp. 352-55 (2008). 46Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 47 of 48 if the Court first determines that defendant's closure of the Quarry violated plaintiffs” substantive due process rights, and therefore that plaintiffs" property was not taken for public use. See Ends and Means p. 353 (“The Court has said that "for public use" means the same thing as substantive due process: the regulation is a rational way to advance a valid public purpose.”). Plaintiffs believe that the evidence shows that defendant violated plaintiffs’ substantive due process rights by depriving plaintiffs of their constitutionally protected nonconforming use in order to politically benefit Maturo. But the Court cannot affirmatively make that determination at present, because plaintiffs have not moved for summary judgment. Defendant’s argument that improper government action precludes a takings claim is both incorrect and premature. ”* v. PLAINTIFFS’ MUNICIPAL ESTOPPEL CLAIM IS NOT MOOT. The sole basis for defendant's summary judgment motion as to the Third Count is that the claim for municipal estoppel is moot because the cease and desist orders are no longer in effect. Plaintiffs’ claim is not moot because as alleged in the Second Amended Complaint plaintifis seek damages in the Third Count. Defendant apparently incorrectly believes that damages are not recoverable for municipal estoppel. Municipal estoppel is an action for promissory estoppel against a municipality. E.g., Levine v. Town of Sterling, 300 Conn, 521, 534 n. 11 (2011)(‘*The plaintiff brought separate claims of promissory estoppel and municipal estoppel. We agree with the trial court that a claim of municipal estoppel is an action for promissory estoppel against a municipality, and treat these cen accepting defendant’s argument for purposes of plaintiffs’ Fifth Amendment takings clause, this argument is inapplicable to plaintiffs’ state law inverse condemnation claim. While this Court has noted that the Connecticut Supreme Court generally “applies the same analysis to claims brought under the state constitution as it does to those brought pursuant to the federal constitution,” Martin v. Town of Simsbury, 3:16-CV-00933 (D. Conn. 8/28/19), defendant has not cited any case holding that improper government action precludes a state law takings claim. 47Case 3:17-cv-00985-KAD Document 116 Filed 02/25/21 Page 48 of 48, claims as one.”); Shoreline Shellfish, LLC v. Town of Branford, NNHCV 13604558, n.4 (Conn. Super. Ct. 4/8/14). Munch v. Sherman, Conn, Superior Court, judicial district of Danbury, Docket No. CV 05 4002878 n. 5 (July 10, 2006, Schuman, J.) Accordingly, since damages are recoverable against the government for promissory estoppel, see, e.g. Chotkowski v. State, 240 Conn, 246, 268-69 (1997), damages are recoverable against a municipality on a municipal estoppel claim. Munch v. Sherman, supra at n. 5. Therefore, the Third Count is not moot. Plaintiffs By/s/ Kirk D. Tavtigian, Ir 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 Their Attorneys ktavtigian@aol.com Certificate of Service Thereby certify that on this date 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. is! Kirk D. Tavtigian, Jr, Kirk D. Tavtigian, Jr Law Offices of Kirk D. Tavtigian, LLC P.O. Box 417 Avon, CT 06001 CT0S460 860-690-4430, 860-606-9888 fax ktavtigian@aol.com 48