Handsome, Inc. v. Town of Monroe

• Decision Date: 31 March 2023
• Docket Number: 3:11-CV-1288 (RNC)
• Parties: HANDSOME, INC., et al. Plaintiffs, v. TOWN OF MONROE, et al., Defendants.
• Court: U.S. District Court — District of Connecticut

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HANDSOME, INC., et al. Plaintiffs, v. TOWN OF MONROE, et al., Defendants.

No. 3:11-CV-1288 (RNC)

United States District Court, D. Connecticut

March 31, 2023

RULING AND ORDER

Robert N. Chatigny United States District Judge

Handsome Inc. (“Handsome”) and its officers, Todd and Mona Cascella, bring this action under 42 U.S.C. § 1983 against the Town of Monroe (the “Town”), the Planning and Zoning Commission of the Town (the “Commission”), and former Town officials, seeking damages allegedly caused by the Commission's handling of Handsome's request for an extension of a special permit. The third amended complaint claims that the defendants have (1) deprived plaintiffs of property in violation of the Due Process Clause of the Fourteenth Amendment, (2) retaliated against them for appealing a decision of the Commission in violation of the right to petition guaranteed by the First Amendment, and (3) treated them less favorably than a similarly situated third party with no rational basis for doing so, in violation of the Equal Protection Clause of the Fourteenth Amendment.

Defendants have moved for summary judgment on all the claims. They contend that Handsome was not deprived of a constitutionally protected property interest; the retaliatory activity alleged in the complaint cannot provide a basis for relief; and Handsome was not similarly situated to its comparator. They further contend that the individual defendants are entitled to qualified immunity as a matter of law. I agree with these contentions and therefore grant the motion.

I. Factual Background

The following facts are drawn from the parties' Local Rule 56(A)(1) and (2) Statements, evidence in the summary judgment record viewed most favorably to plaintiffs, and public records subject to judicial notice.

Plaintiffs Todd and Mona Cascella are residents of Easton, Connecticut. During the relevant time, they owned and operated Handsome and non-party Cascella & Son Construction, Inc. (“Cascella & Son”), both Connecticut corporations. Mr. Cascella was President of both entities Ms. Cascella was Secretary of Handsome and Vice-President of Cascella & Son.

The Town of Monroe is located in eastern Fairfield County.^[1] The Planning and Zoning Commission consists of five members elected to four-year terms and three alternates. It has the powers and duties conferred on planning and zoning commissions under Chapter 124 of the Connecticut General Statutes, §§ 8-1 to 8-13a. The main functions of the Commission are to enact and amend zoning regulations and act upon applications for zoning permits, including special permits.^[2] Connecticut law vests the Commission with discretion to impose conditions on special permits to protect public health, safety, convenience and property values. See International Investors, 344 Conn. 46, 60-61 (2022); Oakbridge/Rogers Ave. Realty, LLC v. Planning & Zoning Board of Milford, 78 Conn.App. 242, 245-47 (2003).

In 2001, Handsome acquired title to a ten-acre parcel of land located at 125 Garder Road in Monroe by means of a quitclaim deed from Mr. Cascella. Under zoning regulations in effect at the time, the land was in Design Industrial District Number 2, an industrial use zone. See Town of Monroe Zoning Regulations, §§ 117-100 (July 26, 2012). All uses within this zone required a special exception permit approved by the Commission. See id., § 117-1200(a).

In February 2003, Handsome filed an application for a special permit allowing it to construct a 20,000 square foot industrial building at 125 Garder Road. Handsome stated that it was interested in constructing a total of three industrial buildings at the site, but was seeking permission to construct only the first building in order to avoid permitting delays, get the project going and produce a source of income. Because of the characteristics of the site, excavation and grading would be necessary to prepare the site for the building.

At a hearing on March 20, 2003, the Commission voted unanimously to grant Handsome the requested permit for a period of five years.^[3] Thirty-six special conditions were imposed, including the following:

Handsome had to provide a progress report from a supervising design engineer every sixty days until the completion of all grading activities at the site, detailing the status of excavation, contour levels, amount of materials removed, and any conditions requiring mitigation or other correction action;

no topsoil could be removed from the site until completion or stabilization of all areas of disturbance;

prior to commencement of activity at the site, Handsome had to post a bond, in an amount to be determined by the Commission, “for the purpose of securing completion of the site work or restoration or stabilization of the disturbed site”; and construction of the building had to commence by March 20, 2004, and be completed by March 20, 2005.

See ECF No. 126-2.

On July 1, 2003, the Zoning Board of Appeals of the Town of Monroe granted a waiver of Section 117-2109P to Mr. Cascella, who had requested permission “for temporary use of rock processing equipment for the purpose of site preparation.” ECF No. 119-1 at 46. The approval was for one year and subject to the following conditions: the submission of the landscaping and berm plan; no rockwork on Saturdays; operating hours of 8:00 AM to 4:00 PM on Monday through Friday; and no processing of off-site material on site.

Handsome leased the property at 125 Garder Road to Cascella & Son, which proceeded to excavate and process large quantities of rock and other earth materials for sale to various construction companies. From 2004 through 2007, Cascella & Son supplied stone products to contractors working on public road construction projects in Fairfield County. These sales, which totaled between $400,000 and $600,000, provided the Cascellas with their main source of income.

In April 2008, one month before the permit was due to expire, David S. Bjorklund, Jr., an engineer retained by Handsome, submitted correspondence to the Commission requesting a five-year extension of the permit. As of that time, excavation necessary to prepare the site for the approved building was only partially completed. Years later, Mr. Cascella testified that Handsome could not begin to construct the approved building until the site was excavated for all three potential buildings; otherwise, the first building could be damaged as a result of blasting that would be necessary to prepare the site for the other buildings.

Handsome's request for an extension was taken up by the Commission at a hearing on April 24, 2008. Present for the Commission were Charles Moore (Chair), Joel Leneker, Richard Zini, Deborah Helm (Alternate for Michael Manjos) and Mark Antinozzi (Alternate for Michael Parsell). Mr. Cascella attended the meeting along with Mr. Bjorklund.

At the outset of the hearing, Daniel Tuba, the Town Planner, provided the Commission members with a packet of written materials. An extended discussion then took place among Mr. Tuba and members of the Commission concerning: (1) the lack of progress at the site; (2) whether the special permit authorized the excavation-related activities; (3) Handsome's failure to file progress reports; and (4) frustration on the part of the Chair and other members of the Commission regarding laxity in the enforcement of zoning regulations by Town officials, especially with regard to excavations.^[4]

The meeting minutes, prepared from an audio tape recording of the hearing, document the following discussion concerning the lack of progress at the site:

(CHAIRMAN MOORE) I was on the Commission at the time that this application was presented and approved. And I watched the development from time to time over the years and in my view this operation is nothing but a mining operation. They have a sign up there that all[] the[y're] doing is selling processed stone, rock crushers on the site. And my view . . . is that the construction of the industrial building on this site is secondary to the operation that's going on there. * * * I would be hard-pressed to call this site halfway completed. I don't know what the grade plan is, but apparently, it's a long way from that.

(COMMISSIONER LENEKER) I drove by the site and I was not on the Board at the time the permit was granted . . . . I can see where you have to give builders time for unforeseen economic issues, being able to build a building and have a tenant or sell the building, whatever. But we also have to create a balance with the neighborhood and the community . . . . [H]ow can we be assured that this project's ever going to get completed and that we're not just going to keep digging rock, digging rock, digging rock forever, and ever and ever, there.

Just one more point. The project narrative does say that the building will be one of 3 potential buildings . . . . The first paragraph says that they are looking to put up one building that does not require [a] parking lot . . . onsite sewage disposal or [a] well. It would be one of 3 potential buildings. In order to get the project moving and produce income we have shown a building that would not need Zoning Board of Appeal waivers or Inland Wetlands approvals. So obviously when this was presented, they wanted to go forward with a project that would get this building built and now we're looking for an extension 5 years later. Somebody says we're halfway through. Maybe we're halfway through. I do not know.

(COMMISSIONER HEIM) . . . What's the percentage of completion on the original project? Do we know that?

(CHAIRMAN MOORE) I personally have watched this site from time to time because I travel Garder Road. In my view, I don't know what the final grade is, but only about 25% if I were to venture an

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