Watrous v. Town of Preston
| Decision Date | 29 September 2012 |
| Docket Number | No. 3:10–CV–597 JCH.,3:10–CV–597 JCH. |
| Citation | 902 F.Supp.2d 243 |
| Court | U.S. District Court — District of Connecticut |
| Parties | Kenneth H. WATROUS, Plaintiff, v. TOWN OF PRESTON, et al., Defendants. |
OPINION TEXT STARTS HERE
Edward E. Moukawsher, Groton, CT, for Plaintiff.
Emily E. Cosentino, Thomas R. Gerarde, Howd & Ludorf, Hartford, CT, for Defendants.
RULING RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc. No. 116) AND DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc. No. 117)
This case involves a dispute over a parcel of land in eastern Connecticut. On March 23, 2010, the plaintiff and property owner, Kenneth Watrous, filed this suit in state court against defendants Town of Preston (sometimes, “Town”) and Town of Preston Inland Wetlands and Watercourses Commission (“IWWC”), and Kent D. Borner, John A. Moulson, Robert M. Congdon, and Leonard Johnson (together, “Individual Defendants”), alleging multiple and federal constitutional violations, conspiracy, and violation of the Connecticut Antitrust Act. For the time period relevant to Mr. Watrous' Complaint, Mr. Borner and Mr. Moulson were members of the IWWC, Mr. Congdon was the Town's First Selectman, and Mr. Johnson was the Town's Inland Wetlands Enforcement Officer.
The defendants removed the case to federal court on April 20, 2010. On June 10, 2010, the court held a hearing on Mr. Watrous' Motion for Preliminary Injunction. On June 23, 2010, in a Ruling read on the record, the court denied the Motion, finding that Mr. Watrous had failed to demonstrate that denial of the preliminary injunction would irreparably harm his interests (Doc. No. 39).
On February 16, 2011, 2011 WL 674028, the court granted Mr. Watrous' Motion for Partial Summary Judgment (“Pl.'s Mot. Partial Summ. J.”) (Doc. No. 74). The court held that the IWWC lacks jurisdiction over the property owned by Mr. Watrous that is the subject of this litigation. “Under well-established rules of Connecticut property law,” the body of water adjacent to Mr. Watrous' property “lies outside the territorial limits of the Town of Preston, and the Preston IWWC therefore lacks jurisdiction over ... any portion of the Property as an ‘upland review area’ affecting” that body of water. Id. at 6, 10.
On February 26, 2011, defendants filed a Motion to Dismiss Count One and Count Four of the Complaint (Doc. No. 80). Mr. Watrous subsequently withdrew his state substantive due process claims (part of Count One) and his antitrust claim (Count Four). The court issued a ruling denying the Motion to Dismiss as to Mr. Watrous' federal substantive due process claim (Doc. No. 90).
On December 13, 2011, the Individual Defendants filed a Motion for Summary Judgment as to all claims against them (Doc. No. 116).1 That same day, the Town and the IWWC filed a separate Motion for Summary Judgment (Doc. No. 117) asserting that the IWWC was not a proper party defendant to the case and that claims for liability against the Town must fail as a matter of law. 2
A motion for summary judgment “may properly be granted ... only where there is no genuine issue of material fact to be tried, and the facts as to which there is no such issue warrant judgment for the moving party as a matter of law.” In re Dana Corp., 574 F.3d 129, 151 (2d Cir.2009). Thus, the role of a district court in considering such a motion “is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists.” Id. In making this determination, the trial court must resolve all ambiguities and draw all inferences in favor of the party against whom summary judgment is sought. SeeFed R. Civ. P. 56(c); Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 274 (2d Cir.2009).
“[T]he moving party bears the burden of showing that he or she is entitled to summary judgment.” United Transp. Union v. Natn'l R.R. Passenger Corp., 588 F.3d 805, 809 (2d Cir.2009). Once the moving party has satisfied that burden, in order to defeat the motion, “the party opposing summary judgment ... must set forth ‘specific facts' demonstrating that there is ‘a genuine issue for trial.’ ” Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009) (quoting Fed.R.Civ.P. 56(e)). “A dispute about a ‘genuine issue’ exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor.” Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir.2008) (quoting Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir.2007)); see also Havey v. Homebound Mortgage, Inc., 547 F.3d 158, 163 (2d Cir.2008) () (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
Mr. Watrous owns a parcel of property at 8 Pequot Street in the Town of Preston, Connecticut (the “Property”). See Defs.' Local Rule 56(a)1 Statement (“Defs.' 56(a)1”) (Doc. No. 116–1, 117–1), ¶ 1; Pl.'s Local Rule 56(a)2 Statement (“Pl.'s 56(a)2”) (Doc. No. 124–1, 125–2), ¶ 1. Mr. Watrous purchased the property on February 19, 2004, and thereafter took steps to remove an old residential structure on the property and replace it with a new residence. See Defs.' 56(a)1, ¶ 8; Pl.'s 56(a)2, ¶ 8. Mr. Watrous applied for and received a variance to do so from the Town Zoning Board of Appeals. See Defs.' 56(a)1, ¶ 10; Pl.'s 56(a)2, ¶ 10.
Watrous also applied to the Town Building Department for a building permit before constructing the new residence. See Defs.' 56(a)1, ¶ 11; Pl.'s 56(a)2, ¶ 11. As a condition of obtaining the building permit, Mr. Johnson, the Town's Inland Wetlands Enforcement Officer, directed Mr. Watrous to submit an application to the IWWC for a permit, on the premise that Mr. Watrous was seeking to conduct a regulated activity. See Defs.' 56(a)1, ¶ 13; Pl.'s 56(a)2, ¶ 13. Mr. Watrous submitted this application on October 6, 2004, and the application was approved on November 16, 2004. See Defs.' 56(a)1, ¶ 14; Pl.'s 56(a)2, ¶ 14. Mr. Watrous obtained a building permit from the Town Building Department on December 23, 2004. See Defs.' 56(a)1, ¶ 15; Pl.'s 56(a)2, ¶ 15.
After receiving these two permits, Mr. Watrous demolished the existing residence, removed the debris, and constructed a new residence. See Defs.' 56(a)1, ¶ 16; Pl.'s 56(a)2, ¶ 16. In the course of the construction, the Town Building Department conducted inspections, at Mr. Watrous' request, that verified that the footings and foundation of the new residence were built in the exact location as depicted on the site plan submitted to the Town Zoning Board of Appeals and the IWWC. See Defs.' 56(a)1, ¶ 15, 16; Pl.'s 56(a)2, ¶ 15, 16. On February 1, 2006, the Town Zoning Officer issued a certificate to Mr. Watrous stating that the new residence conformed to the site plan as required by the Town zoning regulations. See Defs.' 56(a)1, ¶ 18; Pl.'s 56(a)2, ¶ 18. On February 15, 2006, the Town issued a Certificate of Occupancy to Mr. Watrous. See Defs.' 56(a)1, ¶ 19; Pl.'s 56(a)2, ¶ 19.
The IWWC held a meeting on June 20, 2006 and, at that meeting, the IWWC was informed of an alleged violation on the Property in the form of a stairwell running from the house to the edge of the Property and down into the Poquetanuck Cove. See Defs.' 56(a)1, ¶ 20; Pl.'s 56(a)2, ¶ 20.
Mr. Watrous claims that the IWWC was informed of the violation by Mr. Watrous' neighbor, David Bobbin, who sought to acquire a portion of an abandoned road that belonged to Mr. Watrous and bordered Mr. Bobbin's property. See Pl.'s 56(a)2 at 9. Mr. Watrous alleges that Mr. Bobbin told the IWWC that Watrous built the stairway without a proper permit from the IWWC and that Mr. Watrous' new residence was built closer to Poquetanuck Cove than the previous residence. Id.
On June 23, 2006, Mr. Johnson issued a Notice of Violation to Mr. Watrous, informing him that his construction of the stairway violated the Town Inland Wetlands and Watercourses Regulations. See Defs.' 56(a)1, ¶ 21; Pl.'s 56(a)2, ¶ 21. Mr. Watrous did not reply to this Notice. See Defs.' 56(a)1, ¶ 22; Pl.'s 56(a)2, ¶ 22. On July 11, 2006, Mr. Johnson served a Cease and Desist Order on Mr. Watrous, which identified the stairway violation and indicated that a portion of the stairway might be in a Coastal Review area overseen by the State Department of Environmental Protection (“DEP”), and further stated that work on the stairway may not continue until Mr. Watrous appeared before the IWWC. See Defs.' 56(a)1, ¶ 23; Johnson Aff., Ex. D; Pl.'s 56(a)2, ¶ 23. Attached to the Cease and Desist Order was a report to the IWWC prepared in advance of the next IWWC meeting. See Defs.' 56(a)1, ¶ 24; Pl.'s 56(a)2, ¶ 24.
Mr. Watrous asserts this document stated:
There are other issues with this property, among them an alleged walk-out basement which was expressly forbidden by the CIWC permit granted to Mr. Watrous, the setback from the edge of the slope not being according to plan, as well as property line disputes. It is probable that Mr. Watrous will be finished with this project before any legal action may be enacted and the property is marketed for sale. I would suggest that the Town Attorney be contacted to see what Action may be taken to delay any sale of this property, which would only pass the burden on to an innocent party. Copies of all notices and Cease and Desist actions should also be placed in his building file. I see this violation taking a long time to resolve and we shouldn't let him pass the burden on to someone else.
On July 18, 2006, Mr. Watrous appeared before the IWWC and was advised to file an application with the IWWC for the stairway. See Defs.' 56(a)1, ¶ 25; Johnson Aff., Ex. D; Pl.'s 56(a)2, ¶ 25. Mr. Watrous filed the application on July 20, 2006. See Defs.' 56(a)1, ¶ 26; Johnson Aff., Exhibit D; Pl.'s 56(a)2, ¶ 26...
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