Wiltzius v. Town of New Milford

• Decision Date: 18 September 2006
• Docket Number: Civil Action No. 3:05-CV-661(JCH).
• Citation: 453 F.Supp.2d 421
• Court: U.S. District Court — District of Connecticut
• Parties: James WILTZIUS, Plaintiff, v. TOWN OF NEW MILFORD, Kathleen Castagnetta, Joanne Chapin, Janice Dobson, Don Bertola, Bill Butler, Patricia Hembrook, Marty Monteiro, Marcella Martin, Valerie Wilson, Defendant.

453 F.Supp.2d 421

James WILTZIUS, Plaintiff, v. TOWN OF NEW MILFORD, Kathleen Castagnetta, Joanne Chapin, Janice Dobson, Don Bertola, Bill Butler, Patricia Hembrook, Marty Monteiro, Marcella Martin, Valerie Wilson, Defendant.

Civil Action No. 3:05-CV-661(JCH).

United States District Court, D. Connecticut.

September 18, 2006.

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Loredana Nesci, Burbank, CA, Robert A. Fuller, Wilton, CT, for Plaintiff.

Robert Avery Rhodes, Halloran & Sage, Westport, CT, for Defendant.

RULING ON DEFENDANTS' MOTION TO DISMISS [Doc. No. 661

HALL, District Judge.

The plaintiff, James Wiltzius, brings this action against the defendants, the Town of New Milford ("New Milford"), Kathleen Castagnetta, Joanne Chapin, Janice Dobson, Don Bertola, Bill Butler, Patricia Hembrook, Marty Monteiro, Marcella Martin, and Valerie Wilson ("defendants"), alleging federal constitutional claims of a taking and violations of substantive due process under sections 1983 and 1988 of Title 42 of the United States Code, public and private nuisance, negligence, misrepresentation, and violation of section 52-557n of the Connecticut General Statutes. Wiltzius is suing all of the defendants in their individual and official capacities for compensatory and punitive damages. This action arises from variances that New Milford's Zoning Board of Appeals ("the Board") granted to the owners of a trailer park called Candle Hill Mobile Home Park (the "Park"), which Park abuts Wiltzius' property.

The defendants bring this Motion to Dismiss (Doc. No. 66) under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state any claims upon which relief can be granted. They argue that Wiltzius' suit is not ripe for federal review because he failed to exhaust available administrative and state court remedies, that the allegations in the Amended Complaint are insufficient to support a takings or due process claim, that the individually named defendants are entitled to qualified immunity under state and federal law, that New Milford is entitled to immunity under state law for the claim of misrepresentation and under federal law for the actions of the Board in granting the variance, and that the defendants have not created a public or private nuisance.

The jurisdiction of this court over Wiltzius' federal law claims allegedly arises under sections 1331 and 1343(a) of Title 28 of the United States Code. The supplemental jurisdiction of this court over Wiltzius' state law claims allegedly arises under section 1367(a) of Title 28 of the United States Code. For the following reasons, the defendants' motion is GRANTED in part and DENIED in part.

I. BACKGROUND¹

Wiltzius is a citizen of Connecticut, who resides on property he owns at 14 Sherman Road in New Milford. Wiltzius has lived at this residence since May 1999. New Milford is a municipality created and existing as a political subdivision of Connecticut. Castagnetta was the Zoning Enforcement Officer of New Milford at all times relevant to this complaint. Chapin and Dobson were Chairpersons of the Board. Bertola was a Vice Chairperson for the Board. Butler, Hembrook, Monteiro, and Martin were all members of the Board, and Wilson was the Board's secretary.

Garden Homes Management Company ("Garden Homes") and Sixth Garden Park Limited Partnership ("Sixth Garden"), who are not parties to this suit, own and/or manage Candle Hill Mobile Home Park and two additional parcels of land. Established sometime in the 1950's, the Park is located on Sherman Road in New Milford, and its approximately sixty mobile homes are immediately adjacent to Wiltzius' land. The other two parcels of land are located on Sherman Road and on Candlewood Mountain Road. All three properties are located in areas that the New Milford Zoning Regulations (the "Regulations") designate as single family residential zones. In these family residential zones, the Regulations prohibit the use of mobile homes for human occupancy. The Park, however, predates the current Regulations and, as such, is allowed as a nonconforming use.

On July 11, Garden Homes and/or Sixth Garden submitted three applications to the Board for variances from section 160-030(1) of the Regulations.² The applications sought to allow replacement of mobile homes at 18 Tallow Lane, 17 Victory Lane and 4 Wicker Lane with new and larger mobile homes. On July 22, Garden Homes and/or Sixth Garden sent Castagnetta a letter stating that the variance sought was to perpetuate a nonconforming use. Subsequently, on October 17, 2004, the Board granted Garden Homes and/or Sixth Garden a variance, permitting them to enlarge all existing mobile homes in the Park with new models.

Castagnetta issued zoning permits authorizing Garden Homes and/or Sixth Garden to remove and replace the mobile homes at 4 Wicker Lane, 18 Tallow Lane and 17 Victory Lane on October 27, 2003. Around February 10, 2004, Wiltzius noticed that water was draining onto his property from work being done on the mobile homes. Two weeks later, on February 25, 2004, Castagnetta issued two more zoning permits for Garden Homes to remove and replace nonconforming mobile homes at 15 Duncan Lane and 16 Tallow Lane. According to the complaint, the Park is and has always been without a storm drainage system or adequate waste disposal systems. In addition, conditions in the Park allegedly violated both state Public Health and Safety Codes and Department of Environment Protection orders.

On March 17, 2004, Wiltzius attended a public hearing held by the Board in an attempt to learn more about the construction work damaging his property. There, Wiltzius discovered that the Board had granted variances to Garden Homes and/or Sixth Garden for the mobile homes. Wiltzius explained to the Board at the meeting that the Park caused damage to his property before the variances were granted, that the new work on the mobile homes would exacerbate this damage, and that the damage occurred because the Park had inadequate water drainage. Wiltzius went on to explain to the Board that the drainage problem would worsen if not addressed in future work done on the site. After Wiltzius finished, unspecified members of the Board told him that they would "fix" Wiltzius' problems. Compl. at ¶ 51. Ultimately, however, the Board did nothing to address his concerns.

Due to the Board's inaction, Wiltzius filed appeals with the Board on April 5, 2004, seeking to rescind the variances and the permits Castagnetta issued in reliance on the variances. These appeals triggered an automatic stay of all actions in the proceeding pursuant to section 8-7 of the Connecticut General Statutes. On April 26, 2004, the Board sustained Wiltzius' appeal and rescinded the variances it granted to Garden Homes and/or Sixth Garden. The rescission became final on May 24, 2004. Based on this reversal, the Board also repealed, on July 21, 2004, the permits Castagnetta issued based on the variance. No party has appealed the Board's April 26, 2004 decision.

During the pendency of the stay pursuant to section 8-7, Wiltzius alleges that the defendants allowed Garden Homes and/or Sixth Garden to remove the existing mobile homes from 4 Wicker Lane, 18 Tallow Lane, 17 Victory Lane, 15 Duncan Lane and 16 Tallow Lane, and that they allowed Garden Homes and/or Sixth Garden to install new septic systems and initiate additional alterations in the trailers' infrastructure. Most importantly, Garden Homes and/or Sixth Gardens, with the defendants' consent, began replacing the mobile homes with new and larger trailer units.

Attempting to halt any continued construction on units in the Park, Wiltzius applied for a temporary injunction in the Superior Court of the Judicial District of Litchfield on May 17, 2004. The purpose of the injunction was to enjoin Garden Homes and/or Sixth Garden from applying for any additional variances or zoning permits to replace other units in the Park until the Board ruled on his appeal. The court granted Wiltzius a partial temporary injunction on May 24, 2004. Wiltzius v. Garden Homes Mgmt. Corp., 2004 WL 1245954 (Conn.Super. May 24, 2004). The court's order permitted Garden Homes to complete work on and sell the properties at 4 Wicker Lane, 18 Tallow Lane, 16 Tallow Lane, and 17 Victory Lane. Wiltzius v. Garden Homes Mgmt. Corp. 2004 WL 1245954 at *2. The court further ruled that Garden Homes could complete the septic system for 15 Duncan Lane, but it enjoined Garden Homes from replacing the structure. Id. Lastly, the court enjoined Garden Homes from replacing any other units. Id.

Around June 11, 2004, Garden Homes and/or Sixth Garden applied for and received a certificate of zoning compliance from the Board for the unit at 16 Tallow Lane. At some point after this issuance, but before July 26, 2004, Wiltzius appealed the Board's decision to grant a certificate of zoning compliance. On July 26, 2004, and then again on September 22, 2004, the Board conducted public hearings on Wiltzius' appeal. The Board denied Wiltzius' appeal on November 17, 2004. Following the Board's denial, Wiltzius filed two appeals with the Connecticut Superior Court against the Town, Garden Homes, and Sixth Garden.

II. LEGAL STANDARDS

Under Fed.R.Civ.P 12(b)(1), the court dismisses a complaint for lack of subject matter jurisdiction when it lacks constitutional authority to adjudicate the suit. Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). Because ripeness concerns whether a complaint presents a "case or controversy" upon which a federal court can exercise its Article III powers, it is an appropriate matter to consider on a motion to dismiss for lack of subject matter jurisdiction.³ Auerbach v. Board of Educ. of the Harborfields, 136 F.3d 104, 108 (2d Cir.1998). In assessing a motion to dismiss for lack of subject matter jurisdiction, the court "accept[s] as true all material factual allegations in the...