Sullivan v. Town of Salem

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: Before KEARSE, PRATT, and ALTIMARI; George C. PRATT
• Citation: Sullivan v. Town of Salem, 805 F.2d 81 (2nd Cir. 1986)
• Decision Date: 10 November 1986
• Docket Number: No. 994,D,994
• Parties: Joseph T. SULLIVAN, Plaintiff-Appellant, v. TOWN OF SALEM, Salem Board of Selectmen, Salem Planning & Zoning Commission, Linda Phillips, David Bingham, Robert Parker, Frank K. Cunningham, Hilmar B. Ahnert, Paul W. Woronik, Gary Komosky, Jennifer Scace, Helen Dutcher, Edward J. Swider, Jr., Angus L. McDonald & Associates, Inc., Angus L. McDonald, Gary P. Sharpe, Hugh C. Teel, John Bodman, Michael Urbanik, and Stanley Wilson, Defendants-Appellees. ocket 85-9072.

Page 81

805 F.2d 81

Joseph T. SULLIVAN, Plaintiff-Appellant, v. TOWN OF SALEM, Salem Board of Selectmen, Salem Planning &amp Zoning Commission, Linda Phillips, David Bingham, Robert Parker, Frank K. Cunningham, Hilmar B. Ahnert, Paul W Woronik, Gary Komosky, Jennifer Scace, Helen Dutcher, Edward J. Swider, Jr., Angus L. McDonald & Associates, Inc., Angus L. McDonald, Gary P. Sharpe, Hugh C. Teel, John Bodman Michael Urbanik, and Stanley Wilson, Defendants-Appellees.

No. 994, Docket 85-9072.

United States Court of Appeals Second Circuit.

Argued April 2, 1986.

Decided Nov. 10, 1986.

William H. Clendenen, Jr., New Haven, Conn. (David M. Lesser, Robert F. Carter, Clendenen & Lesser, of counsel) for plaintiff-appellant.

Anthony M. Fitzgerald, Waterbury, Conn. (Carmody & Torrance, of counsel), for defendants-appellees Town of Salem and Salem Board of Selectmen.

Thomas P. Burne, Farmington, Conn., for defendant-appellee Salem Planning and Zoning Comn.

H. Bissel Carey, III, Hartford, Conn. (Robinson & Cole, of counsel), for defendant-appellee Phillips.

John W. Butts, Colchester, Conn., for defendants-appellees Bingham, Dutcher, Teel, Bodman, Urbanik, & Wilson.

Karen Jansen Casey, Hartford, Conn., for defendants-appellees Angus L. McDonald & Associates, Inc., Angus L. McDonald, & Gary P. Sharpe.

Before KEARSE, PRATT, and ALTIMARI, Circuit Judges.

George C. PRATT, Circuit Judge:

We are mindful that federal courts should not become zoning boards of appeal to review nonconstitutional land use determinations by the circuit's many local legislative and administrative agencies. Federal judges lack the knowledge of and sensitivity to local conditions necessary to a proper balancing of the complex factors that enter into local zoning decisions. Even were we blessed with the requisite knowledge and sensitivity, due regard for the constitutional role of the federal courts in our dual judicial system would permit us to exercise jurisdiction in zoning matters only when local zoning decisions infringe national interests protected by statute or the constitution. However, when a landowner's constitutional rights are infringed by local zoning actions, our duty to protect the constitutional interest is clear. See, e.g., Village of Belle Terre v. Boraas, 416 U.S. 1, 3, 94 S.Ct. 1536, 1538, 39 L.Ed.2d 797 (1974); Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926); Shelton v. City of College Station, 780 F.2d 475, 479-80 (5th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 3276, 91 L.Ed.2d 566, (1986); Scudder v. Town of Greendale, 704 F.2d 999, 1002 (7th Cir.1983); Scott v. Greenville County, 716 F.2d 1409, 1419 (4th Cir.1983); Wilkerson v. Johnson, 699 F.2d 325, 328 (6th Cir.1983); Creative Environments, Inc. v. Estabrook, 680 F.2d 822, 832 n. 9 (1st Cir.), cert. denied, 459 U.S. 989, 103 S.Ct. 345, 74 L.Ed.2d 385 (1982); Rogin v. Bensalem Township, 616 F.2d 680, 689-90 (3d Cir.1980), cert. denied, 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223 (1981).

In this case the United States District Court for the District of Connecticut (Cabranes, J.) granted summary judgment dismissing Sullivan's complaint under 42 U.S.C. Sec. 1983 against the Town of Salem, its officials, and its employees, because the court found that Sullivan had no constitutionally protected right either to have the roads in his real estate subdivision accepted by the town for dedication, or to have certificates of occupancy issued for houses he had constructed on land that had been subdivided according to a town-approved plan. We agree with the district court's conclusion that Sullivan had no constitutionally protected right to require dedication of the subdivision roads. We disagree, however, with its conclusion that plaintiff's right to receive a certificate of occupancy is not protected by the due process clause of the constitution. We therefore reverse on that issue and remand for further proceedings against the affected defendants.

BACKGROUND

Although the record reveals some disagreement over the facts, for purposes of this appeal we view the facts in a light most favorable to Sullivan because summary judgment was granted against him. See Falls Riverway Realty, Inc. v. City of Niagara Falls, 754 F.2d 49, 54 (2d Cir.1985).

In 1972 the town's planning and zoning commission approved Sullivan's proposed subdivision plan for development of a tract of land within the town. Immediately, Sullivan installed part of the road system according to town specifications which called for oil and gravel roads, without curbs. Acting under the applicable Connecticut statute, the Salem town meeting accepted those roads as dedicated town roads on December 27, 1972.

By 1976 Sullivan had constructed houses on nine of the lots in the subdivision and began to complete the remainder of the road system. This time, however, he installed roads with hard bituminous surfaces rather than the less expensive oil and gravel surfaces he had previously installed. Sullivan informed the then first selectman, the town's building official, and the town's engineer of his proposed enhancement of the roads, and none of them objected to or even questioned the proposed change.

In July 1977 Sullivan notified the planning and zoning commission of the completion of the new roads and requested the commission to arrange for the town to accept them. Although the town engineer reported that the roads, as constructed, "exceed[ ] the town requirements" that were in effect when the subdivision plan was originally approved, he recommended additional improvements for the roads and related drainage systems. Those recommendations required work that was not included either in the original subdivision plan or in the subdivision regulations in effect when the subdivision plan was approved in 1972; nevertheless, Sullivan performed the recommended additional work and again requested that the roads be accepted by the town.

After further inspections, the commission recommended acceptance of the roads with a bond of not more than $7,500. Although Sullivan posted the bond in March 1978, the board of selectmen took no steps toward accepting the additional roads until it called a town meeting for January 10, 1979. When the matter was raised at that town meeting, however, the chairman of the commission unexpectedly reported that notwithstanding his commission's approval, he personally opposed acceptance of the roads, and the matter was immediately tabled. Another year passed before the commission voted again to recommend acceptance of the roads. On March 12, 1980, the town meeting finally voted their acceptance. This occurred, however, only after Sullivan had commenced suit against the town in Connecticut state court to compel acceptance.

Sullivan had pursued acceptance of the roads because he had been informed by the town building official and the first selectman that until the town had accepted dedication of the roads he could not obtain certificates of occupancy for the houses he had constructed in the new portion of the subdivision. Without the certificates of occupancy, of course, Sullivan could not sell his houses. He claims that the town's delays imposed on him added burdens of taxation, investment, and interest on construction loans obtained to build those houses, caused him great loss, and eventually required him to deed the entire development to the bank in lieu of mortgage foreclosure. Sullivan brought this suit to recover damages caused by the town's refusals to accept dedication of the roads and to issue the certificates of occupancy.

DISCUSSION

Sullivan's Sec. 1983 suit claims primarily that the town's conduct deprived him of property without due process of law in violation of the fourteenth amendment to the federal constitution. Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972), laid to rest the contention that the fourteenth amendment and Sec. 1983 protect "personal rights", but not "property rights". Relying on the legislative history to the direct lineal ancestor of Sec. 1983, the Supreme Court there noted that the rights the statute sought to protect were the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and that the protection of property as well as personal rights was intended by congress. Id. at 545-46, 92 S.Ct. at 1118-19. According to the Court the dichotomy between personal liberties and property rights is a false one. Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth, a "personal" right, whether the "property" in question be a welfare check, a home, or a savings account. In fact, a fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other.

Id. at 552, 92 S.Ct. at 1122.

In many due process cases, as here, the issue is not simply whether property rights are protected, but instead whether the interest claimed by the plaintiff qualifies as "property" within the meaning of the constitution. The Supreme Court, in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), summarizing the "attributes" of constitutionally protected property rights, noted: "To have a property interest in a benefit, a person clearly must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Id. at 577, 92 S.Ct. at 2709. The question can be particularly difficult in cases involving governmental regulation of the manner in which an owner may use his property. On this appeal Sullivan claims he was deprived of property in two ways: one, by the town's foot-dragging in accepting dedication of roads which, as built, were superior in quality to those required by the applicable town regulations, and two, by the...