Natale v. Town of Ridgefield

Decision Date05 March 1991
Docket Number1817,Nos. 1816,D,s. 1816
Citation927 F.2d 101
PartiesPaul NATALE and Wendy Natale, individually and as parent and guardian of Jarrod Natale, Plaintiffs-Appellees, v. TOWN OF RIDGEFIELD, Planning and Zoning Commission of the Town of Ridgefield, John Katz, both individually and in his capacity as Chairman of the Planning and Zoning Commission of the Town of Ridgefield, Oswald Inglese, Planning Director of the Town of Ridgefield, and Susan Manning, First Selectman of the Town of Ridgefield, Defendants, Planning and Zoning Commission of the Town of Ridgefield and John Katz, both individually and in his capacity as Chairman of the Planning and Zoning Commission of the Town of Ridgefield, Defendants-Appellants. ockets 90-7339, 90-7483.
CourtU.S. Court of Appeals — Second Circuit

Vincent M. Musto and Michael P. Koskoff, Bridgeport, Conn. (Koskoff, Koskoff & Bieder, P.C., Bridgeport, Conn., of counsel), for defendant-appellant, John Katz.

Ralph G. Elliot, Hartford, Conn. (Tyler Cooper & Alcorn, Hartford, Conn., of counsel), for defendant-appellant, Ridgefield Planning and Zoning Com'n.

Jan A. Marcus, Westport, Conn. (Spirer, Nasser & Marcus, Westport, Conn., of counsel), for plaintiffs-appellees.

Before NEWMAN, PIERCE and ALTIMARI, Circuit Judges.

ALTIMARI, Circuit Judge:

Defendants-appellants John Katz and the Ridgefield Planning and Zoning Commission ("Commission") bring this interlocutory appeal from an order of the United States District Court for the District of Connecticut (Jose A. Cabranes, Judge ) denying their separate motions for summary judgment, pursuant to Fed.R.Civ.P. 56.

Plaintiffs-appellees, Paul Natale and Wendy Natale ("the Natales"), initiated this lawsuit pursuant to 42 U.S.C. Sec. 1983, seeking damages from the Town of Ridgefield ("Town"), the Commission, John Katz, personally and in his capacity as President of the Commission, as well as a number of other local officials. The Natales alleged that defendants unlawfully acted to preclude them from obtaining zoning and building permits in which they had a bona fide property interest. In addition, plaintiffs sought a permanent injunction prohibiting the Town and its agents from impeding them from obtaining permits for their lots.

In response, Katz and the Commission each moved for summary judgment, arguing that as a matter of law the Natales were not entitled to the requested permits and therefore could not assert a claim of property deprivation based on the denial of these permits. Katz also claimed that, as a government official, he was entitled to assert qualified immunity from suit. The district court, finding that a material question of fact existed as to the Natales' property right in the permits, denied both motions for summary judgment. This appeal followed.

For the reasons set forth below, we dismiss the Commission's appeal and we reverse the judgment of the district court as to Katz' claim of qualified immunity.

BACKGROUND

The Town of Ridgefield's zoning regulations require that residential building lots measure at least three acres. A property owner who intends to develop for residential purposes a lot that is under three acres must obtain subdivision approval In 1985, the Natales purchased four abutting parcels of land--Lots 93, 94, 95 and 104--in Ridgefield. Each parcel measured between one and one-and-a-half acres. Although plaintiffs' four lots were registered with the Town prior to 1959, the previous owners did not begin construction on these lots prior to 1963. Consequently, a dispute arose between the parties as to whether the Natales could obtain zoning and building permits before the Commission granted subdivision approval.

from the Commission before the Town will issue a building or zoning permit for the lot. When the regulation requiring "subdivision approval" was adopted in 1959, it was accepted that lots measuring less than three acres would be deemed validly subdivided if they had been recorded with the Town prior to the regulation's adoption. Accordingly, the owner of such lots was not required to obtain subdivision approval before building residential units on that property. In 1963, however, the Town enacted a provision that seemed to repeal this "grandfather clause" with respect to lots on which construction had not yet been started.

Shortly after buying the lots, plaintiffs began seeking variances and permits from the Town in order to start developing their property. Initially, the plaintiffs instructed their agent to apply for zoning variances for each of the four lots. In March of 1986, the Ridgefield Zoning Board of Appeals ("ZBA") granted the requested variances. This decision allowed the Natales to then apply for other zoning and building permits.

Believing that plaintiffs needed to obtain subdivision approval before the Town could issue zoning and building permits for the lots, the Commission, led by Katz, convened in a closed session and passed a resolution directing the Town's Zoning Enforcement Officer ("ZEO") not to issue any zoning permits for the Natales' four lots. As a result, when plaintiffs later applied for a zoning permit for lot 95, the ZEO refused to issue it. In response, the Natales initiated a state court action against the Town, seeking an injunction prohibiting the Town from unlawfully impeding them from obtaining zoning and building permits. They also sought a writ of mandamus requiring the ZEO to issue the zoning permit in question. Soon thereafter, the Commission consented to rescind its directive and, in August 1986, the ZEO issued a zoning permit for lot 95.

On August 12, 1986, the Natales applied to the Town Building Inspector, James McManus, for a building permit for lot 95. McManus informed them that although their application had met all of the general requirements, the Town Counsel and the First Selectman had directed him not to issue the permit. After the Natales appealed this action to various local administrative bodies, the Connecticut State Code and Standards Committee ordered McManus to issue the requested building permit.

Subsequent to these events, the Natales amended their complaint in the state court action to request the court to compel McManus to issue zoning and building permits for all four of their lots. The Connecticut Superior Court granted partial summary judgment in favor of the Natales, and directed McManus to issue the building permit for lot 95. Natale v. Bogardus, No. 0289741, slip op. (Conn.Super.Ct. Aug. 28, 1987). However, the court declined to issue a writ of mandamus with respect to lots 93, 94 and 104, since no permit applications were pending for those lots. Additionally, the court denied the Natales' motion for injunctive relief.

In deciding Bogardus, the court found that the Natales' land was validly subdivided and that, under Connecticut law, they were not required to apply to the Town for subdivision approval before seeking various building and zoning permits. The court concluded that the Natales had "a clear right to the performance of the duty sought to be compelled" and that the town officials "ha[ve] no discretion with respect to the performance of that duty." Bogardus, No. 0289741, slip op. at 8.

Shortly after this decision was rendered, the plaintiffs applied to the Town for permission to make a "property swap." A The Natales then initiated the present action against the Town, the Commission, Katz, Oswald Inglese, the Town's Planning Director, and Susan Manning, the Town's Selectman, pursuant to 42 U.S.C. Sec. 1983. The court dismissed the claims as to defendants Inglese and Manning. Subsequently, Katz and the Commission filed motions for summary judgment. Both Katz and the Commission argued that the Natales had no constitutionally protected property right in any of the permit applications at issue. Additionally, Katz asserted qualified immunity. The district court denied these motions, finding that there existed a disputed issue of material fact as to whether the Natales had an entitlement in any of the permits in question. Both Katz and the Commission appeal from this decision.

property swap allows a landowner to exchange equal amounts of property on abutting lots in order to comply with setback regulations. The Town Planner refused to grant this application, but the ZBA promptly reversed this decision and approved plaintiffs' application.

DISCUSSION
I. Jurisdiction

Although the parties did not question our jurisdiction over these appeals, we are obliged to consider sua sponte possible jurisdictional defects. See Bermudez v. Smith, 797 F.2d 108 (2d Cir.1986) (per curiam); In re Adirondack Railway Corp., 726 F.2d 60, 62 (2d Cir.1984). Ordinarily, a party may not appeal a non-final order, such as the denial of a motion for summary judgment. See 28 U.S.C. Sec. 1291 (1988). However, because of the policy considerations underlying the doctrine of qualified immunity, "an order denying qualified immunity on undisputed facts is an appealable order." Bolden v. Alston, 810 F.2d 353, 356 (2d Cir.), cert. denied, 484 U.S. 896, 108 S.Ct. 229, 98 L.Ed.2d 188 (1987); see Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Therefore, it is clear that we have jurisdiction over Katz' appeal.

No such exception to the general rule applies to the Commission's appeal. The Commission argues, however, that because the issues that Katz appeals are closely connected to the issues presented in the Commission's motion for summary judgment, this Court should exercise pendent appellate jurisdiction over its...

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