Komondy v. Gioco

• Citation: 59 F.Supp.3d 469
• Decision Date: 18 November 2014
• Docket Number: No. 3:12–CV–250 CSH.,3:12–CV–250 CSH.
• Court: U.S. District Court — District of Connecticut
• Parties: Christopher KOMONDY (substituted plaintiff), Plaintiff, v. Mario GIOCO, Judith Brown, and Zoning Board of Appeals, Town of Chester, Defendants.

59 F.Supp.3d 469

Christopher KOMONDY (substituted plaintiff), Plaintiff

v.Mario GIOCO, Judith Brown, and Zoning Board of Appeals, Town of Chester, Defendants.

No. 3:12–CV–250 CSH.

United States District Court, D. Connecticut.

Signed Nov. 18, 2014.

Rose Longo–McLean, John R. Williams & Associates, LLC, John R. Williams New Haven, CT, for Plaintiff.

Beatrice S. Jordan, Emily E. Cosentino, Howd & Ludorf, Hartford, CT, for Defendants.

RULING ON DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS

HAIGHT, Senior District Judge:

I. BACKGROUND

Marguerite Komondy, now deceased, commenced this action against the Town of Chester and its zoning officials to redress their alleged infringement of her federal and state constitutional rights with respect to residential property she owned at 29 Liberty Street in Chester, Connecticut. Her spouse, Christopher Komondy, now executor of her estate, has been substituted as Plaintiff in this action. See Doc. 50 (Second Amended Complaint). At all relevant times, defendant Mario Gioco has held the position of Chairman of the Town of Chester Zoning Board of Appeals (“Chester ZBA”) and defendant Judith Brown has been an Enforcement Officer employed by the Town of Chester. Id., ¶¶ 4–5. Defendant Town of Chester is a municipality within the State of Connecticut. Id., ¶ 6.

On March 5, 2005, Marguerite Komondy's antique historical home at 29 Liberty Street was destroyed by fire. Id., ¶ 9. Because the structural damage from the fire was so extensive, the “remainder of [the] dwelling was demolished in the interest of safety.” Id. Mrs. Komondy thereafter sought permission from the Town of Chester, pursuant to Chester Zoning Regulation § 113B.5, to remain on her property in a temporary mobile home during the reconstruction of her permanent home. Id., ¶ 10. On March 14, 2005, she received a permit to install a mobile home on the property and to live in that “temporary dwelling” for a maximum period of six months. Id., ¶¶ 10–11. Upon expiration of the six-month period, Mrs. Komondy applied for an extension of the permit from Zoning Enforcement Officer Judith Brown. The extension, however, was denied on August 25, 2006.Id., ¶ 13.

Mrs. Komondy thereafter filed an appeal of the permit denial and an application for a variance from § 113B.5, but the Chester ZBA denied both applications on December 18, 2006. Id., ¶ 14. She then filed appeals of the Chester ZBA decision in the Connecticut Superior Court, Judicial District of Middletown, and subsequently in the Connecticut Appellate Court. Id., ¶ 15. See Komondy v. Zoning Bd. of Appeals of Town of Chester, Case No. MMX–CV07–4006628–S (Conn.Super.Ct. Jan. 19, 2007); Komondy v. Zoning Bd. of Appeals of Town of Chester, 16 A.3d 741, 127 Conn.App. 669 (2011). Mr. Komondy, the substituted Plaintiff, concedes that “[w]hether the Chester town regulation, § 113B.5 was constitutional as applied to [Mrs. Komondy] was not raised or considered” in those state court proceedings.¹ Doc. 50, ¶ 16. Mrs. Komondy's appeals were ultimately dismissed on April 5, 2011. Id. See also Komondy, 127 Conn.App. at 690, 16 A.3d 741 (“it remains that the court determined that no unusual hardship existed to warrant a variance from § 113B.5 of the regulations” and “[p]roof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance.”) (citations and internal quotation marks omitted).

On February 2, 2012, Mrs. Komondy received a letter from Chester's legal counsel, informing her that the Town would “remov[e] the trailer on [her] property ... if it [was] not removed by [her]” and “the costs and expenses of that removal would be charged against [her], resulting in a lien on the subject real property.” Doc. 50, ¶ 23. Two weeks later, Town representatives and contractors entered the property at 29 Liberty Street to inspect the trailer and evaluate disconnection of utilities in preparation to remove the trailer. Id., ¶ 24. Mrs. Komondy, who was then residing in the trailer with her spouse Christopher Komondy, was seventy-nine years old, suffering from “stage 4 cancer,” and undergoing “weekly chemotherapy sessions.” See Doc. 1 (original Complaint), ¶ 23.

Mrs. Komondy commenced this action in the District of Connecticut on February 20, 2012. Doc. 1. In her original Complaint, she maintained that Chester's Zoning Regulation, § 113B.5, barring her from remaining in a temporary mobile home on her property during re-construction of her home, was “unconstitutional,” “unreasonable,” and “confiscatory” as applied to her. Doc. 1, ¶¶ 17–18. She also specifically alleged that “defendant Judith Brown and [the] Town of Chester have attempted to deprive [her] of all ‘economically viable use’ of [her] property and therefore effected a ‘taking’ under the Fifth and Fourteenth Amendments” of the United States Constitution. Id., ¶ 25. Two days after filing her Complaint, she sought a preliminary injunction to prevent the Town from removing her mobile home from the premises of 29 Liberty Street. Doc. 3. She subsequently withdrew the motion after Chester's counsel represented that the Town agreed not to take any action to remove her mobile home during the pendency of this action. Doc. 14. On June 4, 2013, Marguerite Komondy died. Doc. 35 (“Suggestion of Death”).

On January 29, 2013, the Court granted an “Amended Motion to Substitute Plaintiff,” filed on behalf of Christopher Komondy as the surviving spouse of the deceased Marguerite Komondy. Doc. 48. On February 6, 2014, Christopher Komondy filed an amended complaint [Doc. 50], once again seeking recovery from the prior named Defendants for violation of his wife's federal and state constitutional rights with respect to the property at 29 Liberty Street in Chester. In that “Second Amended Complaint,” he also alleges that Chester's zoning regulation, § 113B.5, as applied to 29 Liberty Street, was an attempt “to deprive plaintiff of all ‘economically viable use’ of said property and therefore effected a ‘taking’ [without just compensation] under the Fifth and Fourteenth Amendments.” Doc. 50, ¶ 28.

Pending before the Court is Defendants' Motion for Judgment on the Pleadings, asserting that “Plaintiff's federal taking[s] claim in his operative complaint should be dismissed” because it “is not ripe for adjudication and, as a result, this Court lacks subject matter jurisdiction over the claim.” Doc. 51, p. 1.

II. STANDARD FOR JUDGMENT ON THE PLEADINGS

Pursuant to Federal Rule 12(c) of Civil Procedure, “[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.” In deciding a motion for judgment on the pleadings, a district court must “employ[ ] the same standard applicable to dismissals pursuant to Fed.R.Civ.P. 12(b)(6).” Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir.2010) (quoting Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir.2009) (per curiam )). See also DeMuria v. Hawkes, 328 F.3d 704, 706 n. 1 (2d Cir.2003) (“[T]he legal standards for review of motions pursuant to Rule 12(b)(6) and Rule 12(c) are indistinguishable.”). The Court must therefore “accept all factual allegations in the complaint as true and draw all reasonable inferences in [the plaintiffs'] favor.” Hayden, 594 F.3d at 160. “To survive a Rule 12(c) motion [for judgment on the pleadings], [a plaintiff's] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ).

In considering a motion under either Rule 12(b)(6) or 12(c), the court employs a “two-pronged approach” to evaluate the complaint's sufficiency. Hayden, 594 F.3d at 161. “A court ‘can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.’ ” Id. (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 ). Then “[a]t the second step, a court should determine whether the ‘well-pleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an entitlement to relief.’ ” Hayden, 594 F.3d at 161 (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 ). In that regard, “[t]he plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Hayden, 594 F.3d at 161 (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ' ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 ).

Furthermore, “[i]t is axiomatic that a lack of subject matter jurisdiction may be raised at any time,” and by any interested party. Wight v. BankAmerica Corp., 219 F.3d 79, 90 (2d Cir.2000). In general, a motion to dismiss for lack of subject matter jurisdiction is raised pursuant to Rule 12(b)(1), Fed.R.Civ.P. See, e.g., Ryan v. Volpone Stamp Co., Inc., 107 F.Supp.2d 369, 375 n. 2 (S.D.N.Y.2000). However, dismissal for lack of subject matter jurisdiction may also be asserted pursuant to Rule 12(c) “[a]fter the pleadings are closed but within such time as not to delay the trial.” Fed.R.Civ.P. 12(c). See, e.g., Mulligan v. American Inst. of Certified Pub. Accountants Ins. Trust, No. 3:99–CV–1407 (AWT), 2001 WL 777437, at *1 (D.Conn. June 26, 2001) ; United States v. New Silver Palace Restaurant, Inc., 810 F.Supp. 440, 441 (E.D.N.Y.1992). See generally 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1367 (1990) (“[I]f a party raises an issue of subject matter jurisdiction on his motion for a judgment on the pleadings, the court will treat the motion as if it had been brought under Rule 12(b)(1).”).

“When considering a motion to...