Opinion
No. CV 97 0140940
July 23, 2003
MEMORANDUM OF DECISION ON MOTION IN LIMINE
This matter, filed by the plaintiff William Donovan, Zoning Enforcement Officer (ZEO) of the Town of Prospect as an application for injunctive relief, comes to this court with a convoluted history. At this stage, the court is asked to rule on the plaintiff's Motion in Limine which if granted would preclude the defendant Domenic Neri from offering any evidence at trial attacking as unlawful or invalid a prior Cease and Desist Order issued by the plaintiff. Both the plaintiff and the defendant join in the request that the court rule on the Motion in Limine, agreeing that the ruling will assist the parties in structuring the presentation of any trial to follow.
The central issue involves the doctrine of collateral estoppel.
PROCEDURAL HISTORY
The defendant Dominic Neri is the owner of property at 17A Terry Road in Prospect. In June of 1995, the ZEO of Prospect issued a Cease and Desist Order against the defendant. The ZEO alleged that the Terry Road property was in an RA-1 zone which, according to the Zoning Regulations, permitted such real property to be used only for residential purposes; that the defendant was operating a business known as Neri Sand and Gravel from certain buildings on the real property; and that the defendant was storing, washing, and mechanically maintaining trucks weighing in excess of one and one-half tons on the property, all in violation of the Prospect Zoning Regulations.
The defendant appealed the order of the ZEO to the Prospect Zoning Board of Appeals (ZBA) which voted to uphold the Cease and Desist Order. The defendant then filed an appeal of part of the ZBA ruling with the Superior Court, pursuant to Conn. Gen. Stat. § 8-8. The Superior Court (Murray, J.) heard the matter and dismissed the appeal on January 24, 1997. CT Page 8453-io
On July 21, 1997, the plaintiff filed this action, requesting that the Superior Court issue an injunction pursuant to Conn. Gen. Stat. § 8-12, restraining the defendant from operating his business on the premises, and from storing, washing, and maintaining large trucks on the property. The court (Pellegrino, J.) issued a preliminary injunction on September 15, 1997, prohibiting the defendant from these activities on the property, under penalty of $1000 per day for any violation.
On April 17, 1998, the defendant filed an answer to the complaint and filed two special defenses, one of which claimed that on December 17, 1997, he obtained a Special Permit from the Prospect Planning and Zoning Commission for the operation of a home occupation on the premises. The defendant also filed a counterclaim, alleging that the plaintiff was engaged in selective enforcement activities against the plaintiff in violation of 42 U.S.C. § 1983. The plaintiff responded to the counterclaim in October 1998, by denying most of the allegations and by filing a number of special defenses, including that the counterclaim was barred by the doctrines of res judicata or collateral estoppel, waiver, laches, or the statute of limitations, and that the municipal plaintiffs were immune from suit. The plaintiff also filed a Jury Claim for the trial on the counterclaim.
On June 9, 2000, the plaintiff filed a Motion for Summary Judgment on the counterclaim. That motion was eventually heard and denied by the court (Holzberg, J.) on April 25, 2002, on two grounds: first that the defendant had presented some evidence tending to show that others in the Town of Prospect stored large trucks on their residential property without interference from the ZEO; and second, that selective enforcement claims under § 1983 require a trier of fact to evaluate the element of intent — be it malicious or benign — on the part of the state actor, intent being a material disputed fact which could not be resolved on summary judgment.
Discovery is now complete and the parties are prepared to go to trial on the counterclaim and on the application for permanent injunction, the former to be tried to a jury and the latter to be tried simultaneously by the court. In advance of trial the parties jointly request that the court address this Motion in Limine and rule on the scope of the evidence related to the original determination by the ZEO that the operation of the sand and gravel business and the storage and maintenance of trucks on the property violated the zoning regulations. CT Page 8453-ip
CONTROLLING LAW
The court finds that the case of Cumberland Farms, Inc. v. Groton, 262 Conn. 45 (2002), provides the appropriate framework for an analysis of the collateral estoppel claim of the plaintiff. In Cumberland Farms (II), as in the instant case, the issue of the use to which the landowner was permitted to put his land had been previously decided by a town zoning board of appeals. That decision, adverse to the landowner, was then appealed to the Superior Court, which ruled that the decision of the zoning board of appeals was proper under the applicable standard of review; and the Superior Court denied the appeal. The landowner then claimed that the decision restricting his use of the land amounted to an inverse condemnation, and he sued the town to obtain just compensation. In the landowner's civil lawsuit, the trial court granted the town's motion for summary judgment, finding that the doctrine of collateral estoppel precluded the landowner from relitigating issues that had been heard and determined by the zoning board of appeals and by the Superior Court in the administrative appeal. The Supreme Court reversed however, holding that the administrative determination, even though approved by the Superior Court on appeal under Conn. Gen. Stat. § 8-8, should not be given preclusive effect in a later action by the landowner raising claims of constitutional magnitude.
The court chooses to denominate the case at 262 Conn. 45 as Cumberland Farms (II), the Supreme Court having previously heard an earlier incarnation of the same case, Cumberland Farms v. Groton (I), 243 Conn. 936 (1997), holding that a decision of a zoning board of appeals was a final judgment for purposes of bringing a later inverse condemnation claim.
Several similarities between that case and the instant case persuade the court that Cumberland Farms (II) must be followed here. Both cases involve a prior administrative decision of a zoning board of appeals. Both involve a denial or dismissal by the Superior Court of an appeal from the zoning board of appeals, involving the limited scope of review granted the Superior Court in such matters. Both cases involve a subsequent civil action founded on rights granted by the Constitution, the right to be compensated for a government taking of the land in Cumberland Farms (II), and the right to be treated equally under the law to those similarly situated in Donovan v. Neri. The Supreme Court, in Cumberland Farms (II), looked to the ability in the second action, as opposed to in the first, to present evidence on whether such a constitutional violation was at work, and to the ability of the forum to afford relief if such a violation were found. Here, as there, the ZBA and the Superior Court in the administrative appeal were concerned with procedural niceties, and were not in a position to address the larger issues raised in the landowner's lawsuit.
This court emphasizes that it is not asked in this motion to address whether the defendant can maintain an action based on a claim of unlawful selective enforcement in violation of his equal protection rights pursuant to 42 U.S.C. § 1983. That issue, if it were to be raised at all, has been determined by the court having previously held in this matter that the plaintiff was not entitled to summary judgment on the CT Page 8453-iq defendant's counterclaim. That being the law of the case, this court determines that the holding in Cumberland Farms (II) compels the court to deny the plaintiff's Motion in Limine seeking to invoke the doctrine of collateral estoppel to limit the scope of the defendant's evidence in the prosecution of his counterclaim.
Patty Jenkins Pittman, Judge