Villager Pond, Inc. v. Town of Darien, 698

Decision Date17 May 1995
Docket NumberNo. 698,D,698
Citation56 F.3d 375
PartiesVILLAGER POND, INC., Plaintiff-Appellant, v. TOWN OF DARIEN, Darien Planning & Zoning Commission, also known as Planning & Zoning Commission of the Town of Darien, Frederick R. Sammis, Individually and as Selectman of the Town of Darien, Franklin E. Penn, Individually and as a Chairman of the Darien Planning and Zoning Commission, Edmund F. Schmidt, Individually and as a Member of the Darien Planning and Zoning Commission, Raymond D. Nurme, Individually and as Planning and Zoning Director of the Town of Darien, David J. Keating, Individually and as Assistant Director/Zoning Enforcement Officer of the Town of Darien and Jane F. Branigan, Individually and as an Agent of the Town of Darien Representative Town Meeting, Defendants-Appellees. ocket 94-7564.
CourtU.S. Court of Appeals — Second Circuit

Ridgely W. Brown, Darien, CT (Brown & Brown, Darien, CT, of counsel), for plaintiff-appellant.

John Wayne Fox, Stamford, CT (Curtis, Brinckerhoff & Barrett, P.C., Stamford, CT, of counsel), for defendants-appellees.

Before: NEWMAN, Chief Judge, and MINER, Circuit Judge. *

MINER, Circuit Judge:

Plaintiff-appellant Villager Pond, Inc. ("Villager Pond") appeals from a judgment entered on April 29, 1994 in the United States District for the District of Connecticut (Dorsey, J.) dismissing its complaint for failure to state a claim under 42 U.S.C. Sec. 1983. Villager Pond alleges in its complaint that the Town of Darien ("the Town"), the Darien Planning and Zoning Commission ("the Commission"), and various individual defendants, acting in both their individual and official capacities, (collectively "the Municipal Defendants") improperly withheld zoning compliance permits 1 for condominium units built by Villager Pond so as to coerce Villager Pond to convey two condominium units to the Town.

The complaint alleges violations of Villager Pond's constitutional rights to substantive and procedural due process, and of its right to be compensated for a taking of its property for public use. The district court dismissed the complaint, having found that Villager Pond did not have a property right in the special permit that it had obtained for the condominium development at issue, and further having found that its takings claim was not ripe. For the reasons that follow, we reverse the district court's judgment in part, affirm in part, and remand to the district court for further proceedings consistent herewith.


On this motion to dismiss for failure to state a claim, we must accept the factual allegations in the complaint as true. Villager Pond is a corporation organized under the laws of the State of Connecticut, and has its place of business in the Town of Darien. With respect to the property at issue in this appeal, Villager Pond is a successor in right, title and interest to a general partnership operating under the name ESP Associates that, in August of 1985, applied to the Commission for approval of a special permit to construct forty condominium units. The condominium units were to be constructed on property designated as the Villager Pond Condominiums located in the Town of Darien. On October 29, 1985, the Commission granted the special permit, authorizing, among other things, the construction of thirty-seven condominium units on the property. The special permit required, however, that two of the units permanently be reserved for use by "moderate income" individuals. Final approval of the special permit, which included the provision for moderate-income units, was granted in January of 1986.

Villager's constitutional claims turn on the allegation that, beginning in approximately July of 1987 and continuing until 1988, the Municipal Defendants withheld the issuance of documents known as "zoning compliance permits" on the two moderate-income units and on other units in the condominium complex. Zoning compliance permits are prerequisites for the sale and occupancy of the units. According to the complaint, the permits were withheld despite the existence of a "ministerial, nondiscretionary duty" on the part of the Municipal Defendants to issue them. In an act characterized by the plaintiff as "coercion," the Municipal Defendants On July 18, 1988, as required, Villager Pond entered into an agreement with the Town pursuant to which Villager Pond agreed to donate one of the moderate-income units to the Town and sell the other unit to the Town for $90,000. The Town eventually conveyed one of the units to an unidentified individual for a substantial consideration, but with no restriction limiting subsequent resale to persons of moderate income. The second moderate-income unit also was conveyed by the Town for substantial consideration, but this deed did contain some restrictions on the subsequent resale of the property. It appears that the Town now has issued the certificates of zoning compliance.

refused to issue the compliance permits unless Villager Pond conveyed the two moderate-income units to the Town, rather than, as agreed, to a non-profit corporation created for the purpose of holding and managing the moderate-income properties. According to Villager Pond, nothing in the Town's Zoning Regulations, in Connecticut's General Statutes or in the terms of the special permit required that the units be conveyed to the Town.

Upon the foregoing facts, Villager Pond's complaint alleged that the Commission's actions violated its rights to substantive and procedural due process, in violation of the Fourteenth Amendment, and also that the actions amounted to a taking of its property without just compensation, in violation of the Fifth and Fourteenth Amendments. The defendants moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(1) and 12(b)(6), and, in the alternative, moved for a more definite statement in anticipation of the assertion of immunity defenses. The district court dismissed the complaint for failure to state a claim. With respect to Villager Pond's claims of due process violations, the district court concluded that Villager Pond's allegations did not establish a protected property interest. With respect to Villager Pond's takings claim, the district court concluded that it was unripe because Villager Pond had failed to seek compensation under the state constitution's takings clause. The district court therefore denied as moot the defendants' motion for a more definite statement. Villager Pond appeals.


The district court's dismissal of Villager Pond's action is a ruling of law that we review de novo. See Southview Assoc., Ltd. v. Bongartz, 980 F.2d 84, 99 (2d Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1586, 123 L.Ed.2d 153 (1993). In exercising this review, our "task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.... [I]n passing on a motion to dismiss, ... the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 235-236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Viewed under these standards, we conclude that we must remand.

1. Due Process

When a landowner alleges that he has been deprived of property in violation of the due process clause by the actions of a state zoning authority, we begin our inquiry by determining whether a constitutionally cognizable property interest is at stake. An applicant for a governmental permit has a protected property interest in the permit being sought only where "the applicant has a 'clear entitlement' to the approval sought from the government official or administrative body." Walz v. Town of Smithtown, 46 F.3d 162, 168 (2d Cir.1995). In assessing whether a plaintiff has a "clear entitlement" to a permit, we "focus primarily on the degree of discretion enjoyed by the issuing authority, not the estimated probability that the authority will act favorably in a particular case." RRI Realty Corp. v. Incorporated Village of Southampton, 870 F.2d 911, 918 (2d Cir.), cert. denied, 493 U.S. 893, 110 S.Ct. 240, 107 L.Ed.2d 191 (1989); see also Gagliardi v. Village of Pawling, 18 F.3d 188, 192-93 (2d Cir.1994). A clear entitlement, and, in turn, a constitutionally protected property interest, exists only when "the discretion of the issuing agency is so narrowly circumscribed that approval of a proper application is virtually assured." RRI Realty, 870 F.2d at 918.

These standards have been crafted to strike the necessary balance between the landowner's need for constitutional protection and local governments' need to regulate matters of local concern. See Zahra v. Town of Southold, 48 F.3d 674, 680 (2d Cir.1995).

Appellant contends that the Supreme Court's recent decision in Dolan v. City of Tigard, --- U.S. ----, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994), overrules our line of cases, such as Walz and RRI, which makes the existence of a property interest in a permit being sought turn on the restricted discretion of the authority issuing the permit. We disagree. Dolan protects a landowner's right, in some circumstances, not to be required to surrender his land as a condition of obtaining a permit, whether the discretion otherwise available to the issuing authority is broad or narrow. Walz and RRI are concerned with the distinct issue of whether an applicant for a permit has a property interest in the permit being sought.

After correctly recognizing the governing standards, the district court held that Villager Pond's allegations were insufficient to establish the existence of a property right, noting that "[p]laintiff does not allege an entitlement or property interest in the special permit. Nor does plaintiff allege that the Commission lacked discretion in the issuance and enforcement of special permits. The absence of these allegations defeats [its] ... due process claims." The court therefore dismissed...

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