One Barberry Real Estate Holding, LLC v. Maturo
| Docket Number | 3:17-cv-00985 (KAD) |
| Decision Date | 27 September 2021 |
| Parties | ONE BARBERRY REAL ESTATE HOLDING, LLC, FARM RIVER ROCK, LLC, JOHN PATTON, Plaintiffs, v. JOSEPH MATURO, JR., MARK NIMONS, CHRISTOPHER SOTO, MICHAEL MILICI, Defendants, TOWN OF EAST HAVEN, Consol Defendant. |
| Court | U.S. District Court — District of Connecticut |
These consolidated actions arise from an attempt by the Town of East Haven (“East Haven”or the “Town”) and several of its officials to regulate a quarry owned and operated by Plaintiffs One Barberry Real Estate Holding, LLC (“One Barberry”), Farm River Rock, LLC (“FRR”) and John Patton (“Patton ” and, collectively, the “Plaintiffs”) in East Haven, Connecticut. Plaintiffs bring claims pursuant to 42 U.S.C. § 1983 as well as the Connecticut Constitution, certain statutes, and the common law against the Town and its former Mayor, Joseph Maturo, Jr. (“Maturo”), current tax assessor Michael Milici (“Milici”), Fire Marshal Mark Nimons (“Nimons”), and former Zoning Enforcement Officer Christopher Soto (“Soto, ” and, collectively, the “Defendants”).[1] Pending before the Court are motions for summary judgment filed by the Town (ECF No. 103) and by Maturo, Milici, Nimons, and Soto (ECF Nos. 99, 100) (collectively, the “Individual Defendants”) with respect to each of Plaintiffs' claims.[2] For the reasons that follow, the Town's motion is DENIED with respect to Plaintiffs' substantive due process and takings claims brought pursuant to 42 U.S.C. § 1983, DENIED as to Plaintiffs' claims under Article First, Section 11 of the Connecticut Constitution and for municipal estoppel, and GRANTED in all other respects. The Individual Defendants' motion is DENIED with respect to Plaintiffs' substantive due process and takings claims brought pursuant to Section 1983 against Maturo and Soto, DENIED as to Plaintiffs' slander of title claim against Milici, and GRANTED in all other respects.
The following facts are drawn from the Defendants' Local Rule 56(a)(1) Statement of Undisputed Material Facts (“LRS”) (“Defs.' LRS, ” ECF No 105[3]), the Plaintiffs' response thereto and Statement of Additional Material Facts , and from the exhibits in the record. The citations to Defendants' LRS are to those portions that are undisputed by the Plaintiffs unless otherwise noted.
One Barberry is the owner of property located at 1 Barberry Road in East Haven, Connecticut (the “Property”) at which FRR leases and operates a quarry that also engages in stone crushing, stone product manufacturing, and earth product excavation. One Barberry acquired the Property from What TF, LLC (“What TF”) on March 11, 2016 via warranty deed. (Defs.' LRS ¶ 3.) Before that time, FRR leased the Property from What TF. (Id. ¶ 4.) What TF was owned by Mark DiLungo (“DiLungo”), who acquired the Property in the mid-2000s via foreclosure from Joseph Spezzano. (Id. ¶¶ 5-6.) Patton currently manages the quarry and is an owner of One Barberry and FRR; he also serves as a guarantor for each entity's indebtedness. (Patton Aff. ¶¶ 4-5.) This case encompasses disputes regarding both zoning enforcement and tax assessment with respect to the operation of the quarry.
On April 5, 2013, Attorney Nicholas Mingione (“Mingione”) contacted the Town and expressed his position that the Property was exempt from zoning and permitting requirements based on its pre-existing non-conforming use as a quarry.[5] (Defs.' LRS ¶¶ 9-10.) He cited a historical search which he stated revealed clear evidence of such use in the zoning files. (Id. ¶ 11.) Attorney Joseph Zullo (“Joe Zullo”) responded to Mingione on behalf of the Town and disputed that there was a sufficient basis for finding that the Property was subject to a pre-existing, non-conforming use for quarrying; he further stated that it was the Town's belief that the quarry “was not maintained with sufficient regularity and that it has been discontinued or abandoned.” (Id. ¶ 12.) On April 25, 2013, Joe Zullo composed a memorandum in which he outlined the events and legal analysis which led him to these conclusions. (Defs.' Ex. 7, ECF No. 105-8.) Frank Biancur, the Town's Planning and Zoning Administrator (“Biancur”), then purportedly sent a letter to Mingione on May 1, 2013 in which he stated that after performing “quite a bit of research” on the Property and applicable laws, the Town had “come to the determination that your claim of a preexisting, nonconforming use for quarry does not exempt you from the procedural requirements of needing to obtain a special exception permit through the Planning and Zoning Commission for the same.” (Defs' Ex. 9, ECF No. 105-10.) Plaintiffs dispute the authenticity of this letter as it is not signed and they claim there is no evidence that it was ever sent.
However on November 10, 2014, Biancur issued a decision addressed to What TF in which he stated that “there is no doubt that this property is a legal pre-existing nonconforming use” based upon evidence that the Property had “operated as a quarry, gravel, and stone crushing site for well over 75 years, if not longer.” (Defs.' Ex. 11, ECF No. 105-12 (emphasis in original).) He therefore concluded that “there are no Zoning issues” at the Property and “the operation at 1 Barberry Road should continue without any interference from the Town.” (Id.) The decision was stamped as received for the Town's land records on November 12, 2014. (Id.)
The parties dispute the significance of Biancur's November 2014 decision. Defendants contend that it was “directly at odds with the town's position as expressed by [Joe] Zullo and Biancur's own opinion as stated in his letter from May 2013.” (Defs.' LRS ¶ 18.) They assert that there was no triggering event that would have prompted Biancur to issue the decision, which in turn would have alerted the Town to seek an appeal. (Id. ¶ 19.) Defendants further speculate that by publishing the decision in the New Haven Register as opposed to the local paper where such notices are typically published, Biancur may have sought to avoid alerting Town officials to the decision.[6] (Id. ¶ 20; Defs.' Ex. 11.) Defendants also cynically note that Biancur was convicted in 2015 on federal charges for soliciting and accepting bribes in connection with the performance of his official duties, providing additional reason to question “whether Biancur's letter was issued in good faith.” (Defs.' LRS ¶ 20 n.2.)
Plaintiffs, on the other hand, first dispute that Biancur's decision was an “about-face” as characterized by Defendants. They observe that in April 2013, George Mingione, East Haven's former Planning Administrator and Zoning Enforcement Officer (“ZEO”), had provided an affidavit to the Town in which he stated that the Property was “recognized as a pre-existing non-conforming use property for rock excavation and quarry” and that during his tenure “information was provided and recognized that the aforementioned rock excavation and quarrying uses [were] established long before the establishment of zoning in the Town of East Haven.” He further stated that during his tenure the Property was “not subject to any zoning enforcement actions of any kind associated with the excavation and quarrying uses” and that the Property was “not required to obtain any zoning permits, special permits, Planning and Zoning Commission approvals and/or Zoning Board of Appeals approvals for the rock excavation and quarry uses.” (Id. ¶¶ 9-10.) In October 2014 Milici had also written a memorandum to Brancati in which he acknowledged that the quarry operation at the Property dated back to at least the early 1960s and predated the current zoning regulations. (Defs.' Ex. 32, ECF No. 105-33.) Milici stated that “when this issue first surfaced to this office in 2006, the then ZEO George Mingione advised that this was in fact a pre-existing non-conforming use for the property.” (Id.)
Plaintiffs also argue that intervening events, occurring between the April/May 2013 correspondence and the November 2014 decision, explain Biancur's ultimate conclusion even if it was contrary to a prior conclusion. Specifically, in 2014 What TF retained Attorney Mark Branse (“Branse”) to work with the Town to obtain recognition of the Property's legally existing, non-conforming use as a quarry , and Plaintiffs claim that this process led to the discovery and production of additional evidence to support What TF's position.
Plaintiffs next dispute that the Town was not on notice of Biancur's decision given that Biancur's letter, as noted above, was sent to Brancati and Milici, recorded in the land records, and noticed publicly in the New Haven Register. (Id. ¶ 19.) They assert that there is no evidence to support Defendants' speculation that Biancur sought to avoid alerting East Haven officials to the decision by publishing notice in the New Haven Register. On this issue, Plaintiffs observe, the notice in the New Haven Register was published not by Biancur, but by Branse's law firm. (Id. ¶ 20; Defs.' Ex. 11.) Finally, Plaintiffs challenge Defendants' further speculation that Biancur's subsequent conviction called into question his good faith in issuing the decision, citing the absence of evidence to support this claim.
According to Patton, the November Biancur 2014 decision prompted Plaintiffs...
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