Fusco v. State of Conn., No. 1503
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
| Writing for the Court | Before WINTER and MAHONEY, Circuit Judges, and ZAMPANO; MAHONEY |
| Citation | 815 F.2d 201 |
| Parties | Vincent W. FUSCO and Carol M. Fusco, Plaintiffs-Appellants, v. The STATE OF CONNECTICUT, the Town of Trumbull, the Planning and Zoning Commission of the Town of Trumbull, the Zoning Board of Appeals of the Town of Trumbull, Donald Murray, Individually and as Building Official for the Town of Trumbull, Frank Fennell and Gloria Fennell and Albert A. D'Amato, Defendants- Appellees. ocket 86-7075. |
| Docket Number | D,No. 1503 |
| Decision Date | 07 July 1987 |
Page 201
v.
The STATE OF CONNECTICUT, the Town of Trumbull, the Planning
and Zoning Commission of the Town of Trumbull, the Zoning
Board of Appeals of the Town of Trumbull, Donald Murray,
Individually and as Building Official for the Town of
Trumbull, Frank Fennell and Gloria Fennell and Albert A.
D'Amato, Defendants- Appellees.
Second Circuit.
Decided March 26, 1987.
Order Reconsidering Petition for Rehearing July 2, 1987.
As Amended July 7, 1987.
Page 202
Edward F. Kunin, Bridgeport, Conn., for plaintiffs-appellants.
Lawrence A. Ouellette, Jr., Bridgeport, Conn. (McNamara and Kenney, Bridgeport, Conn., of counsel), for defendants-appellees Frank Fennell and Gloria Fennell.
Ralph L. Palmesi, Trumbull, Conn. (Palmesi, Kaufman, Portanova & Goldstein, Trumbull, Conn., of counsel), for defendants-appellees Town of Trumbull, Trumbull Planning & Zoning Com'n, Zoning Bd. of Appeals of the Town of Trumbull, and Donald Murray.
Kevin F. Collins, Easton, Conn., for defendant-appellee Albert A. D'Amato.
Before WINTER and MAHONEY, Circuit Judges, and ZAMPANO, District Judge. *
MAHONEY, Circuit Judge:
This is an appeal from a judgment of the United States District Court for the District of Connecticut granting defendants' oral motion to dismiss the complaint in a lawsuit brought pursuant to 42 U.S.C. Sec. 1983 (1982) in which plaintiffs sought declaratory and injunctive relief to redress alleged violations of their rights under the fourteenth amendment. We affirm.
Since the court below dismissed the complaint at the conclusion of a hearing on plaintiffs' motion for a preliminary injunction, at which no evidence was introduced, we accept the allegations of the complaint as true for purposes of this appeal, Square D Co. v. Niagara Frontier Tariff Bureau, Inc., --- U.S. ----, 106 S.Ct. 1922, 1924 & n. 2, 90 L.Ed.2d 413 (1986) (citing cases), and construe them favorably to plaintiffs, Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).
The complaint alleges that at all relevant times, plaintiffs have been the owners and occupiers of a parcel of land improved with a home located at 470 Shelton Road in Trumbull, Connecticut. Frank and Gloria Fennell, immediately adjacent neighbors of the plaintiffs, applied to the Trumbull Planning and Zoning Commission ("PZC") for
Page 203
permission to divide their property into two building lots, one of which would be the site of the Fennells' existing home and the other of which, bordering on plaintiffs' property, would be available for sale.The PZC published notices of its pending hearing on the Fennells' application in the Bridgeport Post on December 8 and 14, 1984. These notices were concededly in accordance with the requirements of Conn.Gen.Stat. Sec. 8-3 (1987). 1 Plaintiffs did not attend the hearing before the PZC, since they never saw the notices in the Bridgeport Post; they allege that had they known of the hearing, they would have appeared and opposed the Fennells' application.
The Fennells' property is located in an "AA" residential zone; Trumbull zoning regulations require lots in such areas to have a minimum road frontage of 150 feet. As the Fennells' proposed lot division would have created a building lot which failed to conform to the minimum road frontage requirement, the PZC granted the application conditioned on the approval of a variance from the zoning regulations by the Trumbull Zoning Board of Appeals ("ZBA").
Pursuant to Conn.Gen.Stat. Sec. 8-7 (1987), 2 the ZBA published notices of its hearing on the Fennells' application in the Bridgeport Post on January 26 and February 1, 1985. The hearing was held on February 6, 1985. The application required a specification of the "exceptional difficulty" or "unusual hardship" necessitating the request for a variance, but the Fennells specified none. See Appendix at 16. Nor was an inquiry as to hardship made at the hearing before the ZBA. See Addendum to Appellants' Brief at 36-38. As with the earlier hearing before the PZC, the plaintiffs failed to appear at the February 6 hearing, having missed the notices published in the Bridgeport Post.
The Fuscos allege that the Trumbull ZBA customarily requires the posting of property for which a zoning variance is sought. They claim that the Fennells failed to post their property with a notice announcing the hearing before the ZBA.
Page 204
Thereafter, the Fennells contracted to convey the newly created building lot to defendant Albert A. D'Amato. D'Amato planned to build a house on the lot in such a location as would, according to plaintiffs, destroy their privacy and diminish the value of their property. D'Amato applied to the ZBA for a variance on the sideyard requirement of local regulations. Plaintiffs learned of D'Amato's pending application, since his property had been posted. They appeared before the ZBA and opposed D'Amato's application, which was denied. Nevertheless, according to plaintiffs, D'Amato has stated his intention to build a smaller home, which will require no sideyard variance, very close to plaintiffs' swimming pool.
The Fuscos commenced the instant suit under 42 U.S.C. Sec. 1983 (1982). Asserting a deprivation of property without due process of law, they sought, inter alia, a declaration that Conn.Gen.Stat. Secs. 8-3, -7 are unconstitutional as they do not require actual notice of hearings pending before zoning commissions or zoning boards of appeal to parties who are statutorily aggrieved within the meaning of Conn.Gen.Stat. Sec. 8-8(a) (1987); 3 and a preliminary injunction restraining defendants (save the State of Connecticut) from effectuating the subdivision and variance obtained by the Fennells and from issuing a building permit allowing construction of a house on the lot D'Amato agreed to purchase.
At the hearing on plaintiffs' motion for injunctive relief pendente lite, defendants moved to dismiss the complaint. The district court heard from both sides, denied the injunction and granted defendants' motion to dismiss. This appeal followed.
In our view, the district court properly dismissed the complaint for failure to state a claim on which relief could be granted. 4
Page 205
Our analysis is guided by Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), wherein the Supreme Court stated that
in any Sec. 1983 action the initial inquiry must focus on whether the two essential elements to a Sec. 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges or immunities secured by the...
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Grimes v. Conservation Com'n of Town of Litchfield, s. 15573
...Zoning Commission, 163 Conn. 41, 47, 301 A.2d 244 (1972) (constructive notice to abutter held sufficient); see also Fusco v. Connecticut, 815 F.2d 201, 205-06 (2d Cir.), cert. denied, 484 U.S. 849, 108 S.Ct. 149, 98 L.Ed.2d 105 (1987) (actual notice to abutting landowners not required). The......
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Winslow v. Romer, Civ. A. 90-K-2173.
...ordinance are procedural only and do not give rise to an independent interest protected by the fourteenth amendment. Fusco v. Connecticut, 815 F.2d 201, 205-06 (2nd Cir. Winslow further alleges that defendants acted improperly in encouraging the district attorney to file charges against him......
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Abraham v. Town of Huntington, the Town Bd. of the Town of Huntington, Frank P. Petrone Berland Cuthbertson LLC, 2:17-cv-03616 (ADS)(SIL)
...or the potential arbitrary or irrational deprivation of a property interest, in the case of substantive due process. See Fusco v. Conn., 815 F.2d 201, 205-06 (2d Cir. 1987). The lack of notice alleged is immaterial if it is not connected to a protected property right. Here, the Plaintiffs c......
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New England Sav. Bank v. Lopez, 14558
...or understandings that secure certain benefits and that support claims of entitlement to those benefits' "); Fusco v. Connecticut, 815 F.2d 201, 205-206 (2d Cir.1987) ("The opportunity [under Connecticut's zoning statute] grant[ing] abutting landowners and aggrieved persons to appeal decisi......
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Grimes v. Conservation Com'n of Town of Litchfield, s. 15573
...Zoning Commission, 163 Conn. 41, 47, 301 A.2d 244 (1972) (constructive notice to abutter held sufficient); see also Fusco v. Connecticut, 815 F.2d 201, 205-06 (2d Cir.), cert. denied, 484 U.S. 849, 108 S.Ct. 149, 98 L.Ed.2d 105 (1987) (actual notice to abutting landowners not required). The......
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Winslow v. Romer, Civ. A. 90-K-2173.
...ordinance are procedural only and do not give rise to an independent interest protected by the fourteenth amendment. Fusco v. Connecticut, 815 F.2d 201, 205-06 (2nd Cir. Winslow further alleges that defendants acted improperly in encouraging the district attorney to file charges against him......
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Abraham v. Town of Huntington, the Town Bd. of the Town of Huntington, Frank P. Petrone Berland Cuthbertson LLC, 2:17-cv-03616 (ADS)(SIL)
...or the potential arbitrary or irrational deprivation of a property interest, in the case of substantive due process. See Fusco v. Conn., 815 F.2d 201, 205-06 (2d Cir. 1987). The lack of notice alleged is immaterial if it is not connected to a protected property right. Here, the Plaintiffs c......
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New England Sav. Bank v. Lopez, 14558
...or understandings that secure certain benefits and that support claims of entitlement to those benefits' "); Fusco v. Connecticut, 815 F.2d 201, 205-206 (2d Cir.1987) ("The opportunity [under Connecticut's zoning statute] grant[ing] abutting landowners and aggrieved persons to appeal decisi......