(Substituted v. Gioco, No. 3:12-CV-250 (CSH).

• Court: United States District Courts. 2nd Circuit. United States District Court (Connecticut)
• Writing for the Court: CHARLES S. HAIGHT, JR., Senior United States District Judge
• Citation: 253 F.Supp.3d 430
• Parties: Christopher KOMONDY (Substituted Plaintiff), Plaintiff, v. Mario GIOCO, Judith Brown, and Zoning Board of Appeals, Town of Chester, Defendants.
• Docket Number: No. 3:12-CV-250 (CSH).
• Decision Date: 25 May 2017

253 F.Supp.3d 430

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 May 25, 2017

253 F.Supp.3d 435

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

Emily E. Holland, Howd & Ludorf, LLC, Hartford, CT, for Defendants.

RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [DOC. 74]

CHARLES S. HAIGHT, JR., Senior United States District Judge

I. FACTUAL BACKGROUND

Plaintiff Christopher Komondy brings this action on behalf of his deceased wife, Marguerite Komondy, against the Town of Chester and its zoning officials to redress alleged infringement of her constitutional rights with respect to residential property she owned at 29 Liberty Street in Chester, Connecticut (the "Liberty Street property"). Defendants now bring a summary judgment motion, seeking judgment as a matter of law on Plaintiff's § 1983 "class of one" equal protection claim.

The background facts of the case are as follows. Margaret Komondy commenced this action on February 20, 2012. Doc. 1 ("Complaint"). Upon her death in June of 2013, Christopher Komondy successfully moved the Court to become the substituted plaintiff as executor of her estate. Doc. 41 & 42. Plaintiff Christopher Komondy then filed an Amended Complaint, reflecting his plaintiff status. See Doc. 50 ("Second Amended Complaint" or "SAC"). That complaint is now the operative complaint in this action.

Defendants include Mario Gioco, who at all relevant times held the position of Chairman of the Town of Chester Zoning Board of Appeals ("ZBA"); Judith Brown, a Zoning Enforcement Officer employed by the Town of Chester; and the Town of Chester, a municipality within the State of Connecticut (herein collectively "Defendants"). Id. (SAC), ¶¶ 4–6. Plaintiff alleges that the Defendants unlawfully enforced Chester's Zoning Regulations, § 113B.5, by directing removal of a mobile home that the Komondys placed on the Liberty Street property as a temporary residence during the anticipated construction of their new home.

The Komondys' former historic home had been destroyed by fire on March 5, 2005. 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 § 113B.5 of the Chester Zoning Regulations, to remain on her property in the temporary mobile home while her permanent home was reconstructed. Id. , ¶ 10. On March 14, 2005, she received a permit to install the mobile home on the premises, a "temporary dwelling" in which she could live 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 the Town of Chester. The extension, however, was denied by Chester Zoning Enforcement Officer Brown on August 25, 2006. Id. , ¶ 13.

Mrs. Komondy thereafter filed an appeal of the permit denial and an application for

253 F.Supp.3d 436

a variance from § 113B.5, but the Chester ZBA denied both applications on December 18, 2006. Id. , ¶ 14. She subsequently filed appeals of the Chester ZBA decision in the Connecticut Superior Court, Judicial District of Middletown, and then 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 , 127 Conn.App. 669, 16 A.3d 741 (2011). The appeals were ultimately dismissed on April 5, 2011. See Komondy , 127 Conn.App. at 690, 16 A.3d 741 ("[I]t 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, 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 Regulations, § 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").

As described supra , on January 29, 2014, 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 the Second Amended Complaint [Doc. 50], once again seeking recovery from the prior named Defendants for violation of his wife's constitutional rights with respect to the property at 29 Liberty Street in Chester. In that SAC, he also alleged 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 (SAC), ¶ 28.

Pursuant to Federal Rule 12(c) of Civil Procedure, the Defendants filed a motion for judgment on the pleadings, asserting that "Plaintiff's federal taking[s] claim in

253 F.Supp.3d 437

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, at 1. The Court granted that motion in a Ruling dated November 18, 2014, holding that the takings claims was dismissed, but "to the extent that [Plaintiff's] Complaint contains other causes of action [i.e. , a "class of one" equal protection claim, a § 1983 claim against the Town of Chester], those claims may remain pending for the present." Komondy v. Gioco , 59 F.Supp.3d 469, 481 (D. Conn. 2014).

The Defendants have now filed a Motion for Summary Judgment [Doc. 74], asserting that "there is no genuine dispute of material fact, and Defendants are entitled to summary judgment on the remaining claim[ ]"—"class of one" equal protection under § 1983—as a matter of law. In that motion, they argue:

1. Plaintiff cannot identify any similarly situated property that was treated differently;

2. The Defendants had a rational basis for treating the comparator[s] identified by Plaintiff differently;

3. The Individual Defendants lack the required "personal involvement" necessary to impose any liability against [them] on any of the Plaintiff's claims which are brought pursuant to 42 U.S.C. § 1983 ; and,

4. The Individual Defendants are entitled to qualified immunity.

Doc. 74, at 1–2.

II. STANDARD FOR SUMMARY JUDGMENT

Pursuant to Federal Rule of Civil Procedure 56(a), a party is entitled to summary judgment if he or she "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). See also Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Accordingly, the Second Circuit will affirm a ruling on summary judgment "only if the evidence, when viewed in the light most favorable to the party against whom it was entered, demonstrates that there is no genuine issue as to any material fact and that judgment was warranted as a matter of law." Saleem v. Corp. Transportation Grp., Ltd. , 854 F.3d 131, 138 (2d Cir. 2017) (citing Barfield v. New York City Health and Hospitals Corp. , 537 F.3d 132, 140 (2d Cir. 2008) ).

In outlining the standard for this "provisional remedy," the Second...