Thomas v. West Haven, (SC 15843)

• Court: Supreme Court of Connecticut
• Writing for the Court: BORDEN, J.
• Citation: 734 A.2d 535,249 Conn. 385
• Parties: GEORGE THOMAS ET AL. v. CITY OF WEST HAVEN ET AL.
• Decision Date: 29 June 1999
• Docket Number: (SC 15843)

249 Conn. 385
734 A.2d 535

GEORGE THOMAS ET AL.
v.
CITY OF WEST HAVEN ET AL

(SC 15843)

Supreme Court of Connecticut.

Argued March 24, 1999.

Officially released June 29, 1999.

Callahan, C. J., and Borden, Berdon, Norcott and Palmer, Js.

249 Conn. 387

John A. Reed, with whom were Wesley W. Horton and, on the brief, William C. Turney and Paul A. Croce, legal intern, for the appellants (plaintiffs)

Joseph L. Rini, with whom was Michael P. Farrell, for the appellees (named defendant et al.).

Opinion

BORDEN, J.

The dispositive issue in this appeal¹ involves the evidentiary showing necessary to establish a prima facie case of federal equal protection violations against a city, its planning and zoning commission, and certain individual commissioners serving on the commission. The plaintiffs, George Thomas, Barbara Thomas and John Finnell, appeal from the judgment of the court, Hon. Frank S. Meadow, judge trial referee, in favor of the defendants, the city of West Haven (city), the city's planning and zoning commission (commission), and two individual commissioners, Donald Lewis and David Saldibar. By that judgment, the trial court granted the defendants' motion to dismiss. The plaintiffs claim that the trial court improperly dismissed their action because they had established a prima facie case that: (1) Lewis and Saldibar had treated them maliciously and selectively in the consideration of their zone change application; and (2) a municipal policy of the city caused the plaintiffs to be deprived of their constitutional rights. We agree with both claims of the plaintiffs and, therefore, we reverse the judgment of the trial court.

249 Conn. 388

Certain facts and the procedural history are undisputed. In April, 1986, the plaintiffs filed an application with the commission requesting a change in the zoning of two parcels of land that they owned at 770 Campbell Avenue, West Haven.² The plaintiffs sought to change the zoning of both parcels from the existing C-2 (commercial local service) and R3-2 (residential two family) to R-5 (residential apartment building),³ which would allow them to develop condominiums on the property. After a public hearing on May 13, 1986, the commission denied the application with prejudice on May 20, 1986. Saldibar was the chairman and Lewis was the vice chairman of the commission during these proceedings. The plaintiffs appealed from the May 20, 1986—decision⁴ to the Superior Court pursuant to General Statutes (Rev. to 1985) § 8-8.⁵ In January, 1987, following a trial, the court, Schimelman, J., sustained the plaintiffs' appeal, finding that "[w]ith respect to the claim of predetermination due to the lack of a fair and impartial hearing

249 Conn. 389

... [the] plaintiff[s] [had] sustained [their] burden of proof as evidenced by the record." The plaintiffs subsequently requested a rehearing before the commission on their zone change application, which took place on June 23, 1987. The plaintiffs' application again was denied, and the plaintiffs appealed this decision to the Superior Court. In June, 1988, the court, Flanagan, J., sustained the appeal, finding that "[t]he atmosphere created by the foregoing was one of hostility in which the applicant was unable to obtain the fair and reasonable hearing to which he was entitled."

The plaintiffs then commenced the present action, alleging that the defendants⁶ unconstitutionally: (1) had taken their property in violation of the plaintiffs' rights to due process under both the state and federal constitutions; and (2) had denied them their rights, under both the federal and state constitutions, to due process of law and equal protection of the law.⁷ The plaintiffs sought redress for their federal claims under 42 U.S.C. § 1983.⁸ In August, 1995, on competing motions for summary judgment by the plaintiffs, the city and the commission, the court, Gordon, J., rendered summary judgment in favor of the defendants on the federal due process

249 Conn. 390

claims. On June 5, 1996, the commissioners filed a combined motion to dismiss, motion to strike, motion for permission to file summary judgment, and motion for summary judgment. On July 24, 1996, the court, Booth, J., denied the motion to dismiss and the motion for permission to file summary judgment, but granted the motion to strike the state due process claim.⁹

The case proceeded to trial on the remaining counts before the court, Meadow, J. After the plaintiffs had completed their case-in-chief, the defendants moved for judgment of dismissal for failure to make out a prima facie case pursuant to Practice Book § 302, now § 15-8.¹⁰ The court granted the defendants' motion to dismiss and this appeal followed.¹¹

249 Conn. 391

I

The plaintiffs first claim that the trial court improperly dismissed their case because they had "established a prima facie case that ... Lewis and Saldibar treated the plaintiffs selectively compared with others similarly situated based on a malicious or bad faith intent to injure in violation of [their rights to] equal protection." We agree.

"A motion for judgment of dismissal has replaced the former motion for nonsuit for failure to make out a prima facie case.... [S]ee Lukas v. New Haven, 184 Conn. 205, 210 n.3, 439 A.2d 949 (1981). When such a motion has been granted, the question is whether sufficient facts were proved to make out a prima facie case. Pignatario v. Meyers, 100 Conn. 234, 239-40, 123 A. 263 (1924)." (Citations omitted; internal quotation marks omitted.) Falker v. Samperi, 190 Conn. 412, 418, 461 A.2d 681 (1983). "The right of the court to grant such a motion is to be sparingly exercised ... where the granting of a nonsuit must depend in any appreciable degree upon the court's passing upon the credibility of witnesses, the nonsuit should not be granted; Pentino v. Pappas, 96 Conn. 230, 232, 113 A. 451 [1921]; where a case is close, the preferable course is to deny a motion for a nonsuit; Bawol v. Gumkowski, 104 Conn. 746, 133 A. 917 [1926]. Crowell v. Palmer, 134 Conn. 502, 505, 58 A.2d 729 (1948)." (Citations omitted; internal quotation marks omitted.) Lukas v. New Haven, supra, 210-11.

249 Conn. 392

"A prima facie case, in the sense in which that term is relevant to this case, is one sufficient to raise an issue to go to the trier of fact. 9 J. Wigmore, [Evidence (4th Ed. 1974)] § 2494, p. 379. In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove.... Berchtold v. Maggi, 191 Conn. 266, 270, 464 A.2d 1 (1983); see C. Tait & J. LaPlante, [Connecticut Evidence (2d Ed. 1988)] § 4.3, p. 72. In evaluating a motion to dismiss, [t]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiffs] favor.... Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544, 548, 447 A.2d 406 (1982)." (Internal quotation marks omitted.) New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 608, 717 A.2d 713 (1998). "A party has the same right to submit a weak case as he has to submit a strong one. Fritz v. Gaudet, 101 Conn. 52, 53, 124 A. 841 (1924)." Falker v. Samperi, supra, 190 Conn. 419

Further, we have stated that "[t]he decisions of the federal circuit in which a state court is located are entitled to great weight in the interpretation of a federal statute. This is particularly true in 42 U.S.C. § 1983 cases, where the federal statute confers concurrent jurisdiction on the federal and state courts." (Internal quotation marks omitted.) Red Maple Properties v. Zoning Commission, 222 Conn. 730, 739 n.7, 610 A.2d 1238 (1992). We therefore look to recent decisions of the Court of Appeals for the Second Circuit for guidance on the issues presented in the present case.

"The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution is essentially a direction that all persons similarly situated should be treated alike. City of Cleburne v. Cleburne

249 Conn. 393

Living Ctr., Inc., 473 U.S. 432, 439, 105 S. Ct. 3249, 3254, 87 L. Ed. 2d 313 (1985) (citing Plyer v. Doe, 457 U.S. 202, 216, 102 S. Ct. 2382, 2394, 72 L. Ed. 2d 786 [1982])." (Internal quotation marks omitted.) Zahra v. Southold, 48 F.3d 674, 683 (2d Cir. 1995). "A violation of equal protection by selective [treatment] arises if: (1) the person, compared with others similarly situated, was selectively treated; and (2) ... such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person. LaTrieste Restaurant & Cabaret, Inc. v. Village of Port Chester, 40 F.3d 587, 590 (2d Cir. 1994) (quoting LeClair v. Saunders, 627 F.2d 606, 609-10 [2d Cir. 1980], cert. denied, 450 U.S. 959, 101 S. Ct. 1418, 67 L. Ed. 2d 383 [1981]).¹² [When a plaintiff] does not allege selective treatment based upon his race, religion, or any intentional effort by [the] defendants to punish him for exercising his constitutional rights, [the plaintiff] must demonstrate that [the] defendants maliciously singled [him] out ... with the intent to injure him." (Internal quotation marks omitted.) Crowley v. Courville, 76 F.3d 47, 52-53 (2d Cir. 1996)

Viewed in the light most favorable to the plaintiffs, the following evidence was before the court and is relevant to the determination of whether the plaintiffs had established a prima facie case of an equal protection violation by the defendants. In 1980, the plaintiffs¹³ had

249 Conn. 394

plans to develop an amusement center offering arcade games, pinball and pool tables. For this purpose, the plaintiffs intended to lease the property located at 770 Campbell Avenue, which was, at that time, the site of a boarded up building with ample parking. The property...