One Barberry Real Estate Holding, LLC v. Maturo

Full title: ONE BARBERRY REAL ESTATE HOLDING, LLC; Farm River Rock, LLC; and John…

Court: United States District Court, D. Connecticut

Date published: Oct 3, 2023

698 F. Supp. 3d 252 (D. Conn. 2023)

Opinion

3:17-CV-985 (SVN)

2023-10-03

ONE BARBERRY REAL ESTATE HOLDING, LLC; Farm River Rock, LLC; and John Patton, Plaintiffs, v. Joseph MATURO, Jr.; Christopher Soto; Michael Milici; and Town of East Haven, Defendants.

Glenn William Dowd, Hannah Fay Kalichman, Day Pitney LLP, Hartford, CT, Kirk D. Tavtigian, Jr., Avon, CT, Walter Joseph Hope, Alter & Pearson, LLC, Glastonbury, CT, for Plaintiffs. Claire M. McNamara, Milano & Wanat LLC, Branford, CT, Garrett A. Denniston, Hugh F. Keefe, Steven J. Errante, Lynch, Traub, Keefe & Errante, P.C., New Haven, CT, Michael Schulz, Connecticut Office of the Attorney General, Hartford, CT, for Defendants Joseph Maturo, Jr., Christopher Soto, Michael Milici.

Sarala V. Nagala, United States District Judge

Glenn William Dowd, Hannah Fay Kalichman, Day Pitney LLP, Hartford, CT, Kirk D. Tavtigian, Jr., Avon, CT, Walter Joseph Hope, Alter & Pearson, LLC, Glastonbury, CT, for Plaintiffs.

Claire M. McNamara, Milano & Wanat LLC, Branford, CT, Garrett A. Denniston, Hugh F. Keefe, Steven J. Errante, Lynch, Traub, Keefe & Errante, P.C., New Haven, CT, Michael Schulz, Connecticut Office of the Attorney General, Hartford, CT, for Defendants Joseph Maturo, Jr., Christopher Soto, Michael Milici.

MEMORANDUM OF DECISION

Sarala V. Nagala, United States District Judge.

TABLE OF CONTENTS

LIABILITY . . . 266

I. FINDINGS OF FACT . . . 266

A. The Parties . . . 266

B. The Subject Property . . . 267

C. Events from 2007 through 2013 . . . 267

1. Formation of FRR . . . 267

2. Correspondence Between Joe Zullo and Nicholas Mingione . . . 268

D. 2014 and 2015 . . . 269

1. Milici's 2014 Correspondence . . . 269

2. Biancur's 2014 Decision . . . 270

3. Code Enforcement Committee Meeting in June of 2015 . . . 272 4. Denial of Blasting Permits in the Fall of 2015 . . . 273

E. 2016 . . . 275

F. 2017 . . . 276

1. February of 2017 . . . 276

a. Carfora's First Complaint . . . 276

b. The First Cease-and-Desist Order . . . 277

2. March of 2017 . . . 278

a. The Meeting on March 21, 2017 . . . 278

b. Site Visit on March 31, 2017 . . . 282

c. Carfora's Second Complaint . . . 282

3. April of 2017 . . . 282

a. April 20 and 21, 2017 . . . 282

b. The Second Cease-and-Desist Order . . . 284

c. Inspection on April 25, 2017 . . . 285

d. Community Complaints . . . 286

4. May of 2017 . . . 286

a. Early May Generally . . . 286

b. Early May: DiLungo's Conversation with Maturo . . . 287

c. Early May: Conferral Among Town Officials . . . 288

d. May 8, 2017: Soto's Site Visit . . . 288

e. May 9, 2017: Code Enforcement Committee Meeting . . . 289

f. May 9, 2017: Joe Zullo's Phone Call with Alter . . . 291

g. May 9, 2017: The Third Cease-and-Desist Order . . . 292

h. May 9, 2017: Quarry Opposition Group Meeting . . . 293

i. The Court's Findings of Who, When, and Why . . . 293

G. Zoning Board of Appeal Proceedings . . . 296

1. Al Zullo's Conflict of Interest . . . 296

2. Parties' Arguments Regarding Biancur's 2014 Decision . . . 298

3. Parties' Arguments Regarding Nonconforming Use . . . 300

4. Parties' Arguments Regarding Section 31 . . . 301

5. Parties' Arguments Regarding Safety . . . 303

a. Rocks Rolling Down the Hill . . . 303

b. Phone Messages . . . 303

c. Engineering Issues . . . 304

d. DEEP Permit . . . 304

6. Patton's Final Comments to the ZBA . . . 305

7. Public Comment . . . 305

8. Al Zullo's Advice to the ZBA . . . 306

9. The ZBA's Deliberation and the Court's Findings . . . 309

H. Plaintiffs' Appeal to the Connecticut Superior Court . . . 310

I. Procedural History in the Present Consolidated Actions . . . 311

II. SUMMARY OF HOLDINGS . . . 311

III. SECTION 1983 CLAIM AGAINST MATURO AND SOTO . . . 312

A. Section 1983 Legal Standard . . . 312

B. Substantive Due Process . . . 312

1. Legal Standard . . . 312

2. Property Interest . . . 314

3. Arbitrary Action . . . 314

a. Soto . . . 314

i. Lack of Authority . . . 314

ii. Failure to Review Section 31 . . . 316

iii. Pretext . . . 317

b. Maturo . . . 318

C. Personal Involvement of Soto and Maturo . . . 318

D. Causation . . . 319 1. Stay of Enforcement . . . 320

2. Superseding Cause . . . 321

E. Qualified Immunity . . . 323

1. Legal Standard . . . 323

2. Discussion . . . 324

IV. SECTION 1983 CLAIM AGAINST THE TOWN . . . 326

A. Legal Standard . . . 326

B. Discussion . . . 327

V. TAKING AND INVERSE CONDEMNATION . . . 328

VI. MUNICIPAL ESTOPPEL . . . 329

VII. SLANDER OF TITLE . . . 330

A. Additional Findings of Fact . . . 330

1. Farmland Designation Application . . . 330

2. Farmland Designation Certificate . . . 332

B. Legal Standard . . . 332

C. Discussion . . . 333

DAMAGES . . . 334

VIII. COMPENSATORY DAMAGES . . . 334

A. Legal Standard . . . 334

B. Additional Factual Findings . . . 335

C. Which Plaintiffs Are Entitled to Compensatory Damages . . . 337

D. Overview of Expert Accounting Opinions . . . 338

E. Forecast of What Would Have Happened . . . 340

1. FRR's Sources of Revenue . . . 340

a. Mining Revenue . . . 341

i. Amount of Earth Materials Mined Annually . . . 341

ii. Unit Price for Mined Earth Materials . . . 343

b. Reuse Revenue . . . 345

i. Whether to Consider Reuse Revenue At All . . . 346

ii. New York Market . . . 347

iii. Other Regional Markets . . . 348

2. Projection Period . . . 349

a. Different Opinions on Tonnage of Saleable Earth Materials . . . 350

b. The Court's Findings . . . 354

3. Cost of Sales Percentage . . . 358

4. Net Cash Flow . . . 360

5. Discount Rate and Present Value of Future Cash Flows . . . 361

F. Findings of What Happened . . . 362

1. Mitigation from Shutdown to Restart . . . 362

2. Mitigation Since EHTRQ Formation . . . 363

a. Defendants' Arguments . . . 363

b. Present Value of EHTRQ's Forecasted Cash Flows . . . 365

c. Special Distribution to EHTRQ . . . 367

G. Total Compensatory Damages Calculation . . . 368

IX. EMOTIONAL DISTRESS DAMAGES . . . 368

X. PUNITIVE DAMAGES . . . 369

XI. ATTORNEYS' FEES . . . 371

CONCLUSION . . . 371

Attachments: Exhibits 10-16 (Court's Versions) . . . 372

This case centers on the conduct of the Town of East Haven (the "Town") and its officials—Joseph Maturo, Jr., then-mayor of the Town; Christopher Soto, then employed as the Town's Zoning Enforcement Officer; and Michael Milici, then employed as the Town's tax assessor (together with the Town, "Defendants")—when shutting down a quarry owned and operated by Plaintiffs One Barberry Real Estate Holding, LLC ("One Barberry"), Farm River Rock, LLC ("FRR"), and John Patton. Defendants contended that the quarry did not comply with the Town's zoning regulations, whereas Plaintiffs maintained that the quarry was a legal, pre-existing, non-conforming use exempt from the Town's

zoning regulations. The Town's Zoning Board of Appeals ("ZBA") agreed with Defendants. In a state law zoning appeal following the ZBA's decision, however, the Connecticut Superior Court found that the Town's cease-and-desist orders to the quarry were improper and ruled in Plaintiffs' favor.

The present consolidated actions concern whether Defendants' conduct in shutting down the quarry violated Plaintiffs' federal constitutional rights and Connecticut common law rights. A thirteen-day bench trial was held, followed by post-trial briefing and oral argument.

Having considered all the admissible testimony of the witnesses and all the admissible documentary evidence, the Court finds that Maturo, Soto, and the Town infringed on Plaintiffs' constitutionally protected property right in an arbitrary and irrational manner, in violation of the Fourteenth Amendment's substantive due process protections, and that these Defendants are liable for their conduct under 28 U.S.C. § 1983. In light of this holding, the Court declines to reach Plaintiffs' Takings Clause and municipal estoppel claims. As to the substantive due process violation, the Court awards $9,465,832 in compensatory damages to Plaintiff Farm River Rock. The Court further finds that Milici is not liable for slander of title under Connecticut common law.

In support of these determinations, the following constitutes the Court's findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).¹ The distinction between a finding of fact and a conclusion of law "is anything but clear-cut." March v. United States, No. 3:17-CV-2028 (VAB), 2021 WL 848723, at *6 (D. Conn. Mar. 5, 2021) (internal quotation marks omitted) (quoting Cliffstar Corp. v. Alpine Foods, LLC, No. 09-CV-690 (JJM), 2016 WL 2640342, at *1 (W.D.N.Y. May 10, 2016)). Accordingly, "the labels of fact and law assigned should not be considered controlling." Id.

1 At the close of Plaintiffs' case, Defendants orally moved for judgment on partial findings as to all counts against them pursuant to Federal Rule of Civil Procedure 52(c), which "allows the court to enter judgment as a matter of law in the moving party's favor at any point in the proceedings when the court finds that the non-moving party has been fully heard and cannot maintain a claim under controlling law." AmBase Corp. v. SDG Inc., No. 3:00-CV-1694 (DJS), 2005 WL 1860260, at *2 (D. Conn. Aug. 3, 2005). ECF No. 297. A district court's task in considering a Rule 52(c) motion "implies the same inquiry the Court makes to resolve all of the legal and factual matters under Rule 52(a)." Fabricated Wall Sys., Inc. v. Herman Miller, Inc., No. 3:08-CV-1313 (SRU), 2011 WL 5374130, at *1 (D. Conn. Nov. 8, 2011) (quoting Wechsler v. Hunt Health Sys., Ltd., 330 F. Supp. 2d 383, 433 (S.D.N.Y. 2004)). The Court reserved ruling on the Rule 52(c) motion until the close of evidence. Fed. R. Civ. P. 52(c). The motion is now denied as moot, in light of the Court's ruling. See Culhane v. Culhane, 969 F. Supp. 2d 210, 214 n.1 (D. Conn. 2013).

Moreover, the Court bears in mind that, to prevail in a civil trial, Plaintiffs must prove each element of a claim by a preponderance of the evidence. Barr Rubber Prods. Co. v. Sun Rubber Co., 425 F.2d 1114, 1120 (2d Cir. 1970); Velasquez v. U.S. Postal Serv., 155 F. Supp. 3d 218, 227 (E.D.N.Y. 2016); Moses v. St. Vincent's Special Needs Ctr., No. 3:17-cv-1936 (SRU), 2022 WL 972439, at *5 (D. Conn. Mar. 31, 2022). "To establish a fact by a preponderance of the evidence means to prove that the fact is more likely true than not true." Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997) (citation and internal quotation marks omitted); accord Velasquez, 155 F. Supp. 3d at 227. This standard "is no more than a tie-breaker dictating that when the evidence on an issue if evenly balanced, the party with the burden

of proof loses." United States v. Gigante, 94 F.3d 53, 55 (2d Cir. 1996); accord Moses, 2022 WL 972439, at *5. In considering whether the evidence proffered satisfies this standard, the Court, as the trier of fact, is entitled to assess the credibility of the witnesses, to believe some parts and disbelieve other parts of a witness' testimony, and to draw permissible inferences from the admissible evidence. Krist v. Kolombos Rest. Inc., 688 F.3d 89, 95 (2d Cir. 2012); Clayton Servs. LLC v. Sun West Mortg. Co., No. 3:17-CV-172 (KAD), 2021 WL 2376619, at *1 (D. Conn. June 10, 2021).

LIABILITY

I. FINDINGS OF FACT

A. The Parties

Plaintiff John Patton formed the corporate Plaintiffs in this action, FRR and One Barberry. He holds a B.S. degree and an MBA degree. 1/30/23 Tr. at 27:20-22.^{2 2} Patton was the First Selectman of Willington—the chief elected official of that municipality—from 1995 to 2003, and remained active in the municipal government of Willington from 2003 until 2017. 1/30/23 Tr. at 29:21, 30:11-13, 15-17. He entered the quarry business in 1996, when he began working at a quarry in Willington owned by his wife and her family's company, which sold crushing equipment for quarrying. 1/30/23 Tr. at 29:12-17. The Court recognizes that Patton had a strong incentive to testify in his favor, but the Court generally found Patton's demeanor genuine and his testimony credible. His testimony did not strike the Court as rehearsed, and the Court found his memory relatively strong in light of the personal significance of the relevant events. See 1/31/23 Tr. at 291:20-23 (Patton testifying that these events have "absorbed [his] life for six years").

2 The citations to the trial transcripts correspond with the following ECF numbers on the case docket. 1/30/23 Tr., ECF No. 304; 1/31/23 Tr., ECF No. 305; 2/1/23 Tr., ECF No. 306; 2/2/23 Tr., ECF No. 307; 2/3/23 Tr., ECF No. 308; 2/6/23 Tr., ECF No. 309; 2/7/23 Tr., ECF No. 310; 2/8/23 Tr., ECF No. 311; 2/9/23 Tr., ECF No. 312; 2/10/23 Tr., ECF No. 313; 2/13/23 Tr., ECF No. 314; 2/14/23 Tr., ECF No. 315; 2/16/23 Tr., ECF No. 316.

2 A mid-year convention was utilized in the calculation of the discount factor to account for the fact that cash is generated over the course of the year, not as a lump sum at the beginning or end of the year.

Defendant Maturo was the Republican mayor of the Town of East Haven from 1997 to 2007, and again from 2011 to 2019, when he retired. 2/9/23 Tr. at 1512:12-25; 2/6/23 Tr. at 868:13. The Court found Maturo's testimony generally not credible. He exhibited poor memory, even with respect to undisputed historical events, such as the dates of his tenure as the Town's mayor. See 2/9/23 Tr. at 1512:13-18. Moreover, his demeanor exhibited an unperturbed, even dismissive, attitude about the litigation. See 2/9/23 Tr. at 1545:20-1546:1 (Maturo testifying that, in the four years leading up to his testimony, he had "not given one consideration for where we are today," presumably referring to the trial).

Defendant Soto was the Town's Zoning Enforcement Officer ("ZEO") from 2015 to 2021, a position that involved issuing permits, addressing zoning violations, reviewing site plans, and interpreting the Town's zoning regulations. 2/6/23 Tr. at 975:13-18, 976:4-13. His general demeanor was subdued and defensive, even when being examined by his own counsel. For example, he sometimes contradicted or amended prior testimony in response to counsel's questions. The Court found Soto's testimony credible in some instances and not credible in other instances.

Defendant Milici was the Town's tax assessor from 1990 to approximately 2021, when he retired. 2/3/23 Tr. at 771:17, 771:22. The Court found his testimony generally credible and his memory fairly strong. His demeanor was impassive and

relatively aloof, though not quite as dismissive as Maturo's demeanor.

The Court recognizes that Maturo, Soto, and Milici, as Defendants in this action, had an incentive to testify in their favor and has weighed that incentive in assessing their credibility.

B. The Subject Property

This case centers on a thirty-acre quarry located at One Barberry Road in East Haven, Connecticut. 1/30/23 Tr. at 39:22, 40:3-5, 41:10. The quarry was originally part of a 250-acre property on the border of East Haven and North Branford. 1/30/23 Tr. at 39: 18-25; 2/3/23 Tr. at 730:7-9. The quarry operation was located primarily on the East Haven side of the property, although some Town officials and nearby residents had believed it was located solely on the North Branford side of the property. 1/30/23 Tr. at 41:3-5; 2/3/23 Tr. at 730:12; 2/6/23 Tr. at 889:11, 891:3; Ex. 79. The quarry is bordered by Barberry Road and Borelli Road on the East Haven side and by Totoket Road on the North Branford side, with the driveway entrance on Totoket Road in North Branford. 1/30/23 Tr. at 41:10-14. It is an "aggregate" or "stone" quarry, meaning that it produces stone for use in asphalt. 1/30/23 Tr. at 37:13-17. Prior to 2007, the entire 250-acre property was owned by the Spezzano family, who appeared to have operated a farm on portions of the property as well as the quarry on the subject parcel. 1/30/23 Tr. at 39:19-21, 43:16-17, 85:8-11; 2/3/23 Tr. at 730:25-731:1, 731:16, 760:3-6.

C. Events from 2007 through 2013

1. Formation of FRR

In 2007, What TF, LLC ("What TF"), an entity owned by an individual named Mark DiLungo, obtained title to the entire 250-acre property via foreclosure.^{3 3} 2/3/23 Tr. at 730:2-4, 730:14, 730:20-21. DiLungo testified that the subject portion of that property had an "active quarry" at the time he acquired it, and he soon thereafter arranged for an individual named Brian Bakutis to keep the quarry operation going. 2/3/23 Tr. at 731:11-20. Bakutis leased the quarry property through the entity Swing Jaw, LLC. 1/30/23 Tr. at 45:22-24; Ex. 21.

3 DiLungo is an electrical contractor and developer in East Haven. 2/3/23 Tr. at 729:12-13. The Court affords limited weight to his testimony on disputed issues based on an assessment of his credibility. His memory was not particularly strong and required some prompting from counsel. In addition, as explained below, DiLungo had a certain incentive to testify in Plaintiffs' favor, given his ongoing business relationship with Patton and his acrimonious relationship with Maturo. See infra notes 28 and 29.

3 A mid-year convention was utilized in the calculation of the discount factor to account for the fact that cash is generated over the course of the year, not as a lump sum at the beginning or end of the year.

In December of 2012, Patton toured the quarry property with Bakutis; in Patton's view, the property was "a mess," littered with construction debris. 1/30/23 Tr. at 43:18-24, 44:17. Patton also found it "obvious" that a quarry had been operating on the property because there was already a "quarry face" between 110 and 140 feet tall,^{4 4} because it was clear "a tremendous amount of material" had already been excavated, and because there was some stone crushing equipment already on the site. 1/30/23 Tr. at 44:1-10, 51:14-21. In early 2013, Patton and Bakutis formed FRR, and they spent approximately six months cleaning and preparing the property to "make it a viable quarry." 1/30/23 Tr. at 45:9-12, 45:25, 46:18-47:1, 50:18-21. In approximately June of 2013, FRR assumed the lease of Swing Jaw, LLC, and began crushing stone at the property. 1/30/23 Tr. at 45:25. Patton testified that he only leased the property at that time, and did

4 Patton testified that a "quarry face" is a "vertical wall of stone" formed when blasting occurs to make the rock fall off the ledge of stone. 1/30/23 Tr. at 51:22-52:7.

4 A mid-year convention was utilized in the calculation of the discount factor to account for the feet that cash is generated over the course of the year, not as a lump sum at the beginning or end of the year.

not buy it, because there was no definitive representation from any Town official regarding the quarry's legal status in light of the Town's zoning regulations. 1/30/23 Tr. at 49:22-50:1. FRR began to sell crushed stone in October or November of 2013. 1/30/23 Tr. at 51:6-9.

From the end of 2013 until the shutdown of the quarry on May 9, 2017, FRR shipped approximately 28,000 loads of material, each of which contained between twenty and twenty-two tons of material. 1/30/23 Tr. at 104:12-105:2.

2. Correspondence Between Joe Zullo and Nicholas Mingione

Throughout the spring of 2013, DiLungo retained two attorneys, Nicholas Mingione⁵ and Mark Branse,⁶ for the purpose of solidifying the quarry's legal status with respect to the Town's zoning regulations. 2/3/23 Tr. at 732:16-20, 751:1-4; 1/30/23 Tr. at 58:24-59:1, 72:8-10. DiLungo wanted to sell the quarry property, and Branse advised him that a potential buyer would require "proper paperwork" confirming that the quarry was a legal, pre-existing, nonconforming use.⁷ 2/3/23 Tr. at 732:17-20, 750:5-7. For background purposes, a nonconforming use is "[l]and use that is impermissible under current zoning restrictions but that is allowed because the use existed lawfully before the restrictions took effect." USE, Black's Law Dictionary (11th ed. 2019).

5 For clarity, the Court will refer to Attorney Nicholas Mingione, the attorney for What TF, and George Mingione, a former ZEO for the Town and the father of Nicholas Mingione, by their full names. See 2/3/23 Tr. at 751:5-14.

6 Patton testified that he was familiar with Branse from when Branse was Willington's zoning attorney and Patton was Willington's First Selectman, and that Patton understood Branse to be a "very well-respected zoning attorney." 1/30/23 Tr. at 72:13-18.

7 Hereafter, the Court will refer to a "legal, pre-existing, nonconforming use" as simply a "nonconforming use."

On April 5, 2013, Nicholas Mingione sent a letter to Arthur DeSorbo, then the Town's Director of Administration and Management, stating What TF's and FRR's position that the subject quarry had been operating since before the Town's enactment of zoning regulations, and therefore it constituted a nonconforming use. Ex. 506 at 1; 1/30/23 Tr. at 69:6. As a result, Nicholas Mingione opined, the quarry could legally operate without the need for permitting by the Planning & Zoning Commission or approval by the ZBA.⁸ Ex. 506 at 1.

8 Nicholas Mingione explained, however, that FRR was willing to self-impose certain limitations on the quarry's operation for the benefit of neighboring East Haven residents. Ex. 506 at 1. Patton testified that he, on behalf of FRR, previously submitted a letter to Nicholas Mingione suggesting that FRR propose those self-imposed limitations on the quarry's operation, and that those proposed limitations were ultimately incorporated into Nicholas Mingione's letter to DeSorbo. 1/30/23 Tr. at 59:11-13, 68:4-5, 68:16-19; Ex. 78. Patton testified that he proposed those limitations because he "wanted to be a good neighbor," and recognized that the nearby East Haven residents might not like living near the quarry. 1/30/23 Tr. at 60:7-14.

On April 12, 2013, Town Attorney Joseph Zullo ("Joe Zullo")⁹ responded to

9 For clarity, the Court will refer to Joe Zullo, the Town Attorney, and his father, Alfred Zullo ("Al Zullo"), the Assistant Town Attorney, discussed below, by their full names. See 2/8/23 Tr. at 1353:13-15. Joe Zullo was admitted to the bar of Connecticut in November of 2011. 2/8/23 Tr. at 1354:2. He was appointed to the position of Town Attorney by Maturo around that time, and he held that position until November 2019. 2/8/23 Tr. at 1354:25, 1355:1-6. Joe Zullo testified that he served as Maturo's campaign manager from 2011 on and that, although he did not have a close relationship with Maturo in 2011, over time they became "friends." 2/8/23 Tr. at 1356:16-22, 1357:12-14. He testified that his duties as the Town Attorney included advising the mayor and all boards and commissions. 2/8/23 Tr. at 1355:9-18. He is currently a partner in his father's law firm and an elected member of the Connecticut General Assembly representing most residents of East Haven. 2/8/23 Tr. at 1353:13-15. His father, Al Zullo, was admitted to the bar of Connecticut in 1984, and he was appointed to the position of Assistant Town Attorney by Maturo from 2011 to 2019. 2/7/23 Tr. at 1204:3-5, 1205:13-16. Al Zullo was not involved in Maturo's election campaigns. 2/7/23 Tr. at 1206:11-12.

Nicholas Mingione. Ex. 507 at 1; 2/9/23 Tr. at 1466:4-15. Joe Zullo explained that the Town could not acknowledge the quarry's status as a nonconforming use because Frank Biancur, at that time the Town's ZEO and Planning and Zoning Administrator, informed Joe Zullo that there were no materials in the zoning file for the subject property indicating that it had been operating as a quarry since before the enactment of the Town's zoning regulations. Ex. 507 at 1; 2/9/23 Tr. at 1466:12-15. See also Ex. 507 at 2 (another letter sent by Joe Zullo to Nicholas Mingione on April 15, 2013, reiterating this position).

Soon thereafter, on April 17, 2013, Nicholas Mingione responded to Joe Zullo asking him to reconsider the Town's position in light of attached factual material. Ex. 507 at 3; see also 2/9/23 Tr. at 1464:3-5. Specifically, Nicholas Mingione provided an affidavit signed that day by George Mingione (hereinafter "George Mingione's affidavit") in which he attested that he had served as the Town's ZEO between approximately 1988 and 2008 and, during that time, he had been provided with sufficient information for him to believe that the subject quarry was a nonconforming use. Ex. 507 at 4; Ex. 58; see also 2/9/23 Tr. at 1466:16-1467:1. Nicholas Mingione also attached four documents in which various individuals represented that they had purchased stone products from the Spezzano family's quarry since the 1950s. Ex. 507 at 6-9; see also 2/9/23 Tr. at 1466:19-1467:1.

Although the record contains no evidence that Joe Zullo responded to Nicholas Mingione's April 17, 2013, letter, Joe Zullo authored a memorandum for the zoning file, dated April 25, 2013, in which he memorialized the interactions that took place. Ex. 508; 2/9/23 Tr. at 1467:12-18, 1468:3-7. Joe Zullo's memo explained his position that the property owner needed to apply for a special exception permit to operate the quarry under Section 31 of the Town's zoning regulations, and that, in light of the factual uncertainty about whether the property had been historically used as a quarry, the property owner could attempt to substantiate his claim that the quarry was a nonconforming use in the course of seeking the special exception permit. Ex. 508 at 1, 6-7; 2/9/23 Tr. at 1471:9-13. Joe Zullo testified that he provided a copy of this memo to Biancur. 2/9/23 Tr. at 1468:8-10. Thereafter, on May 1, 2013, Biancur sent a letter to Nicholas Mingione stating his position, largely consistent with Joe Zullo's memo, that the property owner could attempt to substantiate his claim that the quarry was a non-conforming use in the course of seeking a special exception permit under Section 31 of the Town's zoning regulations. Ex. 509; see also 2/9/23 Tr. at 1468:11-14.

D. 2014 and 2015

1. Milici's 2014 Correspondence

In the summer and fall of 2014, Milici weighed in on the subject of the quarry's legal status for tax purposes. On August 6, 2014, Milici sent a letter to the Town Manager of North Branford regarding his understanding of the quarry's operation. Ex. 79; 2/3/23 Tr. at 773:20-23.¹⁰ In the letter,

10 When asked if the letter contained in Exhibit 79 was the "best copy" Milici was able to provide, even though it is partially cut off along the left side, Milici responded that, "whatever the one I had is the one that I gave." 2/3/23 Tr. at 773:24-774:2. Although the letter references the "Totoket Road Quarry," Milici testified that this referred to the subject quarry located at One Barberry Road in East Haven, which is bordered on the North Branford side by Totoket Road. 2/3/23 Tr. at 774:15-20; see also 1/30/23 Tr. at 41:11.

Milici explained that George Mingione had claimed that the quarry was a nonconforming use, which Milici learned through a brief conversation with him. Ex. 79 at 1; 2/3/23 Tr. at 775:4-19. Milici also explained that he became aware of the quarry's operation in 2006, when then-owner Joseph Spezzano misled Milici into believing that the quarry was operating on the North Branford side of the property. Ex. 79 at 1; 2/3/23 Tr. at 779:5-12. In the spring of 2014, Milici had met with DiLungo, who confirmed that the quarry was in fact operating on the East Haven side of the property. Ex. 79 at 1; 2/3/23 Tr. at 778:18-24. After noting that DiLungo had been "courteous and cooperative," and that the quarry was "in far better appearance" than it had been under Spezzano's ownership, Milici explained that he and DiLungo agreed to have nine acres where the quarry was operating reclassified as industrial property, rather than farmland, for tax purposes. Ex. 79 at 2.

On October 27, 2014, Milici sent a letter to Salvatore Brancati, the Town's new Director of Administration and Management and Director of Economic Development,¹¹ regarding the property's zoning and tax status. Ex. 80; 2/3/23 Tr. at 779:21. Milici testified that Brancati asked him to draft the letter because Brancati "wanted to know a history as [Milici] knew it of the property," 2/3/23 Tr. at 780:2-3, though at trial Brancati could not recall making such a request, 2/6/23 Tr. at 899:17-19. In the letter, Milici explained that the subject property was historically classified as farmland for tax purposes, but that Milici's office had recently received information from George Mingione¹² indicating that a quarry had operated on the property since the 1960s or 1950s, before the enactment of the Town's zoning regulations. Ex. 80 at 1; 2/3/23 Tr. at 780:17-24. Milici also explained that nine acres had been reclassified for tax purposes as industrial land rather than farmland, which resulted in a "substantially higher" tax rate. Ex. 80 at 1. Consistent with Milici's representation, the Town began taxing the quarry property and equipment at the higher rate starting on October 1, 2014. 1/30/23 Tr. at 105:24-106:7.

11 Brancati held those positions from 2013 until 2019, when he retired. 2/6/23 Tr. at 894:19-21, 895:18-21. In light of Brancati's roles, various individuals testified that he was considered to be Maturo's second-in-command and right-hand man. 2/6/23 Tr. at 894:4-9 (Brancati acknowledging that he had a reputation of being Maturo's "second-in-command" and "right-hand man"); 2/6/23 Tr. at 876:4-8 (Carfora agreeing that Brancati was Maturo's "second-in-command" and "right-hand man"). See also 2/3/23 Tr. at 737:8-10 (DiLungo describing Brancati as "the go-to guy" to raise an issue to Maturo); 2/3/23 Tr. at 773:11-15 (Milici describing Brancati as Maturo's "designee" for "all matters" and agreeing that Brancati operated as a chief of staff for Maturo). The Court affords limited weight to Brancati's testimony, given his poor memory. See, e.g., 2/6/23 Tr. at 895:3-9 (Brancati testifying that he did not recall his deposition in this case).

12 Milici testified, however, that he did not actually see George Mingione's affidavit. 2/3/23 Tr. at 781:12-14.

2. Biancur's 2014 Decision

On November 10, 2014, Biancur issued a "LETTER OF PRE-EXISTING NON-CONFORMING USE" (hereinafter "Biancur's 2014 decision"), typed on letterhead from the Town's zoning office and addressed to What TF. Ex. 13. Biancur stated that the subject property had "historically been a quarrying, gravel, & stone crush-ing operation dating back to at least the 1950s." Id. To support this proposition, Biancur cited "aerial mapping, affidavits,

and research," including George Mingione's affidavit. Id. Because this use predated the enactment of the Town's zoning regulations, Biancur opined, there was "no doubt that this property is a legal preexisting nonconforming use." Id. (emphasis in original). Biancur concluded that there were no zoning "issues" with the quarry operation and that it "should continue without any interference from the Town." Id. The decision was copied to Brancati and Milici, and it was stamped as "received" by the Town Clerk on November 12, 2014. Id. In January of 2015, Branse arranged to have notice of the decision published in the New Haven Register. Ex. 14.

Other Town officials became aware of Biancur's 2014 decision soon after it was issued. At least one resident of the Town testified that he saw the publication of the decision in the New Haven Register in January of 2015. 2/6/23 Tr. at 853:1-3. Brancati testified that Biancur's 2014 decision appeared on his desk at some point. 2/6/23 Tr. at 897:20. Joe Zullo also learned about Biancur's 2014 decision at some point, although the timing of when he learned about it is unclear, as discussed below.

The circumstances surrounding Biancur's 2014 decision are muddied. The decision appears to contradict Biancur's 2013 letter to Nicholas Mingione, in which Biancur had agreed with Joe Zullo that the property owner had to seek a special exception permit to prove the nonconforming use status. See Ex. 509. In addition, it is unclear what, if anything, specifically prompted Biancur to change course and issue his 2014 decision. DiLungo testified that, at some point prior to the decision, DiLungo met Biancur in the zoning office and gave him various materials regarding the history of the quarry's operation, including George Mingione's affidavit and the documents from past customers of the quarry. 2/3/23 Tr. at 732:16-20, 733:4-15. DiLungo's recollection of when this meeting occurred was not very precise, however. He recalled that the meeting occurred soon after Bakutis took over the quarry operation, 2/3/23 Tr. at 732:24-25; but he also recalled that Bakutis first took over the quarry operation sometime soon after DiLungo acquired the property in 2007, 2/3/23 Tr. at 731:19-20, and there are a number of years between 2007 and the date of George Mingione's affidavit in 2013. In light of the uncertainty about when this meeting occurred, it is not clear that it would have prompted Biancur to issue his 2014 decision.

Moreover, Al Zullo, the Assistant Town Attorney who specialized in land use issues, see supra note 9, testified that the usual procedure leading to the issuance of a zoning decision of this type was for a property owner to request a "certificate of zoning compliance" from the Town's ZEO or Planning and Zoning Administrator, which involved paying a fee. 2/7/23 Tr. at 1227:18-24, 1228:25. When asked whether a request for a certificate of zoning compliance was a "legal requirement" to trigger a zoning decision of this type, Al Zullo testified that the request and the fee were required, but his testimony about the legal authority imposing such a requirement was vague. 2/7/23 Tr. at 1228:13-15, 1231:1-3, 1231:11-16. Al Zullo further testified that no request was made, and no fee was paid, before Biancur issued his 2014 decision. 2/7/23 Tr. at 1228:12.

Additionally, as described further below, during the ZBA proceedings, Soto's attorney insinuated that Biancur's 2014 decision was not issued in good faith, in part because Biancur was convicted in 2015 of mail and wire fraud related to the performance of his official duties for the Town. 3. Code Enforcement Committee Meeting in June of 2015

The Code Enforcement Committee, comprised of various Town department heads, met on a monthly basis to discuss issues that had arisen in the Town, collaborate among various departments, and decide how to resolve the issues. 2/9/23 Tr. at 1475:7-15, 1475:20-25; 1533:1-5; 2/6/23 Tr. at 910:20-24, 951:7-10. Relevant here, the meetings were typically attended by Maturo, Brancati, Joe Zullo, an employee from the Town's fire department, and sometimes Al Zullo or an employee of the zoning office. See generally Exs. 8-11; see also 2/6/23 Tr. at 932:11-13. But see 2/9/23 Tr. at 1506:24-25 (Joe Zullo testifying that his attendance at the Code Enforcement Committee meetings was "sporadic"). Maturo testified that he typically, though not always, ran the meetings. 2/9/23 Tr. at 1523:20-22; 1532:4-7. See also 2/6/23 Tr. at 932:20; 2/7/23 Tr. at 1081:13-14, 1174:21-23.

Maturo's administrative assistant, Danelle Feeley, typically took minutes for the meetings, 2/7/23 Tr. at 1189:11, and the credibility of those meeting minutes was hotly contested at trial. Because the meetings were not recorded, Feeley—who was the fiancée of Joe Zullo at the time of her testimony—handwrote informal notes summarizing what was discussed during the meetings and then typed them one or two weeks later. 2/7/23 Tr. at 1191:5-21, 1192:5-7, 1195:10, 1202:9-10. Feeley testified that the notes were not verbatim or direct quotes, and that she sometimes paraphrased what was said when typing them; but she agreed that she tried to be as accurate as she could and that her paraphrasing was not intended to misrepresent what took place at the meeting. 2/7/23 Tr. at 1191:15-17, 1191:25-1192:4, 1197:5-8.

The notes were organized under headings titled with the name of an attendee, indicating that the discussion described under that heading was initiated by that person or had something to do with that person, although the notes under the heading of a particular attendee were not necessarily all attributable to that person. 2/7/23 Tr. at 1194:9-21, 1197:12-18. Feeley testified that, just by looking at the minutes, she could not determine who said any particular information, unless the minutes specifically stated that a particular attendee said that information. 2/7/23 Tr. at 1197:19-6. After typing the notes, Feeley would email them to the attendees of the meeting, but she could not recall any attendee ever informing her of any inaccuracies. 2/7/23 Tr. at 1193:10-24, 1198:21-23; see also 2/6/23 Tr. at 933:3-14. The prior meeting's minutes were not approved at any subsequent meeting. 2/7/23 Tr. at 1200:1-3.

The Court finds that the minutes generally convey what was said at the corresponding meeting, as Feeley had no incentive at the time to incorrectly record the minutes. In addition, the context of the minutes often, though not always, allows the Court to infer who made the statements.

The first Code Enforcement Committee meeting relevant to this case took place on June 9, 2015. Ex. 8. Maturo, Joe Zullo, and various others attended the meeting, but no one from the zoning office attended the meeting. Id. at 1. Under a heading titled with Joe Zullo's name, the minutes represent that someone, presumably Joe Zullo, informed the attendees of the legal notice of Biancur's 2014 decision with respect to the subject quarry. Id. at 4. The minutes represent that "he," again presumably Joe Zullo, had not seen this sort of legal notice before, but he would "be working on this" and follow up at the next Code Enforcement Committee meeting. Id. For his part, Joe Zullo testified at trial that he did not know about Biancur's 2014 decision "in a

meaningful way" before the Code Enforcement Committee meeting on June 9, 2015, that somebody mentioned it at that meeting, and that Joe Zullo "was going to look into" it. 2/8/23 Tr. at 1366:3-8, 1366:18-19.

4. Denial of Blasting Permits in the Fall of 2015

The following brief background on quarry blasting is relevant to the events that took place in the fall of 2015. Patton testified that blasting is a "critical" part of quarrying aggregate stone because it is the only cost-effective way to process the raw material for the crushing equipment. 1/30/23 Tr. at 52:9-16. Because blasting involves expertise and licensing, FRR typically hired a blasting company, which would apply for blasting permits from the Town's Fire Marshal. 1/30/23 Tr. at 64:11-19; 2/6/23 Tr. at 925:20-22. FRR's blaster received its first blasting permit in 2013, and it ultimately obtained thirty-seven or thirty-eight blasting permits between 2013 and the shutdown of the quarry in 2017. 1/30/23 Tr. at 105:18-23; see also 2/6/23 Tr. at 928:1-6. Those permits were issued for either a thirty-day period or a single-day period. 1/30/23 Tr. at 116:19, 118:24, 123:2-4; 2/6/23 Tr. at 965:22-966:2. The Town's Fire Marshal during the relevant time period, Mark Nimons,¹³ testified that the requirements for issuance of a blasting permit were regulated by the State of Connecticut, not an individual municipality. 2/6/23 Tr. at 925:23-926:4.

13 Nimons was the Town's Fire Marshal from 2014 to 2021, at which point he retired. 2/6/23 Tr. at 925:4-13. He was initially named as a Defendant in this case, and Plaintiffs asserted constitutional claims against him relating to his denial of blasting permits. He was dismissed from the case when the Court (Dooley, J.) held he was entitled to qualified immunity and granted his motion for summary judgment. One Barberry Real Est. Holding, LLC v. Maturo, No. 3:17-CV-985 (KAD), 2021 WL 4430599, at *20 (D. Conn. Sept. 27, 2021). The Court generally found his demeanor stoic and unruffled, although the Court found his credibility somewhat limited by occasional moments of poor memory. See 2/6/23 Tr. at 966:24-25.

Plaintiffs presented evidence that, in the fall of 2015, the issuance of blasting permits coincided with the timing of a local political election. In September of 2015, FRR's blasting company applied for a blasting permit; it was told that it could conduct one blast in early September but that it would not be issued another permit until after the local election in November.¹⁴ 1/30/23 Tr. at 108:19-25. Upon learning this, Patton called Brancati, who told him that FRR's blasting company would not be issued a blasting permit until after the local election. 1/30/23 Tr. at 109:7-12, 114:16-115:8. Specifically, Patton testified that Brancati told him that Robert Sand, at that time the Councilman of the Third District where the subject property was located,¹⁵ was "not happy" and "causing some problems" about the quarry's blasting and operations. 1/30/23 Tr. at 114:19-115:2. Consistent with this testimony, Sand testified at trial that he was opposed to the quarry and that he called Brancati with the intent to communicate a message to Maturo regarding blasting at the quarry ahead of the 2015 election. 2/6/23 Tr. at 851:25-852:3, 855:7-15, 856:19. Patton testified

14 At trial, Defendants objected to the admissibility of testimony regarding the denial of blasting permits, arguing that such evidence was irrelevant after the Court (Dooley, J.) granted summary judgment in Nimons' favor. 1/30/23 Tr. at 109:16-32; see supra note 13. The Court overruled Defendants' relevance objection, reasoning that the issuance and denial of blasting permits were relevant to Maturo's conduct and motivations. 1/30/23 Tr. at 111:6-10.

15 Sand testified that he served two six-year terms as the Councilman of the Third District, the first beginning in 1997, the second beginning in 2007. 2/6/23 Tr. at 851:18-21. He lived approximately one mile from the subject property. 2/6/23 Tr. at 866:9-11.

that Brancati said Maturo "wanted the quarry issue to go away until after the election," and then asked Patton, "didn't [Patton] want [Maturo] to be re-elected?" 1/30/23 Tr. at 114:22-115:10. Brancati, however, testified that he did not believe he ever had this conversation with Patton. 2/6/23 Tr. at 902:22-24. FRR's blaster ultimately was allowed to blast once in early September of 2015, and Patton testified he "scraped up every piece of rock that was around" after that blast to continue the quarry's operations, in anticipation that another blast would not be authorized until after the November election. 1/30/23 Tr. at 115:21-115:25. Indeed, the next blasting permit was issued a mere three days after the election. 1/30/23 Tr. at 115:21-116:6.

Patton's testimony of those events is consistent with the minutes of a Code Enforcement Committee meeting that took place on September 15, 2015, at which the issuance of blasting permits for the quarry was discussed. Ex. 9 at 1, 4. Under the heading titled with the name Chuck Licata, the Town's Assistant Fire Chief,¹⁶ the minutes indicate that someone, presumably Licata, stated that complaints had been received from North Branford residents regarding the quarry's operation and that the Fire Marshal's office had issued a single-day blasting permit. Ex. 9 at 4. Brancati, identified by name in the minutes, said that the quarry operators told him they wanted to blast to finish a job. Ex. 9 at 4; see also 1/30/23 Tr. at 132:7-13. The relevant portion of the meeting minutes concludes with Brancati informing the attendees that he told the quarry operators they could not "do anything," presumably referring to blasting, until December. Ex. 9 at 4.

16 Patton testified that the sub-heading, Borrelli Road, likely pertained to the subject property because the property is bordered on one side by Borrelli Road. 1/30/23 Tr. at 119:25-120:3.

Moreover, the record demonstrates a pattern that the question of whether blasting permits were to be issued for the quarry was typically brought to Maturo's attention. First, Brancati testified that, when Nimons received applications for permits from FRR's blaster, he would typically call Brancati, who would in turn ask Maturo whether he wanted Nimons to issue the permit. 2/6/23 Tr. at 899:23-900:8. Brancati further testified, though, that Maturo "never said no" to the issuance of a blasting permit. 2/6/23 Tr. at 910:7-9. In addition, DiLungo testified that, multiple times, he would become aware that FRR's blaster had been denied a blasting permit, and he would call Brancati to ask why. 2/3/23 Tr. at 737:14-21. DiLungo testified that, typically, Brancati would tell DiLungo he would look into it, and that the blaster would be issued the permit that day or the next day.¹⁷ 2/3/23 Tr. at 737:20-738:7.

17 Brancati did not recall any such conversations between him and DiLungo. 2/6/23 Tr. at 912:5-8. DiLungo's testimony on this point is consistent with two emails sent by Branse to Joe Zullo regarding denials of blasting permits in 2016. Ex. 46 at 2; Ex. 48 at 1.

Finally, Peter Hughes, a prospective investor working with Patton at the time, testified that, around December of 2015 or January of 2016, he twice requested to review the Fire Marshal's file regarding the history of blasting permits for the quarry. 2/3/23 Tr. at 819:2-9. Hughes testified that, the first time he reviewed the file, it contained a note that said to call the mayor's office before issuing permits.¹⁸

18 Defendants objected to the admissibility of Hughes' testimony regarding this note on hearsay grounds. 2/3/23 Tr. at 819:16-17. After rejecting Plaintiffs' arguments that the contents of the note were opposing party statements and government records, 2/3/23 Tr. at 824:14-16, 826:11-13, the Court sustained Defendants' objection in part and admitted the testimony only for the fact that the note existed in the Fire Marshal's file, and not for the truth of its contents, 2/3/23 Tr. at 826:14-18.

2/3/23 Tr. at 821:16-24, 826:14-18, 826:24-827:4. When Hughes reviewed the file again two weeks later, the note was, mysteriously, no longer there. 2/3/23 Tr. at 827:5-9.

The testimony of Nimons and Maturo somewhat contradicted this evidence. Nimons testified that he never denied a blasting permit to FRR's blaster prior to the shutdown of the quarry in 2017, 2/6/23 Tr. at 941:12-18, although he clarified that the issuance of blasting permits was sometimes delayed, 2/6/23 Tr. at 964:9-20, 965:3-9. Nimons also testified that he did not know why DiLungo might have called Brancati regarding blasting permits. 2/6/23 Tr. at 962:14-16. Nimons further testified that the issuance of blasting permits was within his sole discretion, and that he would generally issue a blasting permit so long as the applicant satisfied all the requirements set forth by the State of Connecticut. 2/6/23 Tr. at 926:9-927:2, 943:20-23, 949:15-18. Maturo, for his part, testified that he could not recall instructing Nimons to deny or delay the issuance of blasting permits to FRR's blaster because "it's just not like [him] to do that," and that he believed issuing blasting permits was within the Fire Marshal's discretion. 2/9/23 Tr. at 1530:9-25, 1531:12-15, 1531:24-25.

Considering this conflicting testimony, the Court finds that, whether or not the blaster's permit applications were formally denied, it is more likely than not that Maturo decided FRR's blaster would not be allowed to blast during the period of time leading up to the local election of 2015, and that he would typically have a degree of influence over Nimons' decision whether to promptly issue a blasting permit. The Court also finds that Maturo's views about whether a blasting permit should be issued were largely motivated by political concerns, including Town residents' apparent disdain for the quarry. See 2/6/23 Tr. at 851:25-852:3.

E. 2016

Around March of 2016, FRR was restructured and the quarry was sold. An entity named TG Quarry LLC ("TG Quarry"),¹⁹ composed of three investors— Hughes, Alan Temkin, and DiLungo—together invested approximately $600,000 in FRR and obtained 15% share of FRR.²⁰ 1/30/23 Tr. at 98:6-11; 2/3/23 Tr. at 735:2-4, 811:5-8, 811:21. The balance of the ownership percentage in FRR was retained by Patton and Bakutis, its original members. See 1/30/23 Tr. at 98:6-11. The owners of FRR then created Plaintiff One Barberry, which bought the subject thirty-acre quarry property from What TF at a price of $4.4 million. 1/30/23 Tr. at 97:20-22, 98:2-3, 99:8-9; 2/3/23 Tr. at 735:10-11; see also Ex. 22. To finance the purchase of the property, FRR, through One Barberry, put down a couple hundred thousand

19 Patton could not recall if the entity was named TG Quarry LLC or TQ Quarry LLC, 1/30/23 Tr. at 98:7-8, and none of the company's members testified about its name. The Court refers to this entity as TG Quarry LLC, see Ex. 91 at 8, but notes that the name of this entity is immaterial to this decision.

20 Patton testified that TG Quarry had a 15% ownership interest in FRR, 1/30/23 Tr. at 98:11. It appears that, at some point, Patton and TG Quarry bought out Bakutis' ownership for $850,000. 2/1/23 Tr. at 402:7-8. Following that transaction, TG Quarry had a 22.5% share of FRR and Patton had the balance of 77.5% ownership. See 2/1/12 Tr. at 398:14-15; 2/2/23 Tr. at 656:11-12; 2/3/23 Tr. at 811:21. See also Ex. 91 at 8. Hughes testified that his interest in FRR was approximately 4%. 2/3/23 Tr. at 811:24. DiLungo testified that his interest in FRR was approximately three-quarters of 1%. 2/3/23 Tr. at 736:10-13.

dollars, and TG Quarry's investment of $600,000 also went toward the purchase. 1/30/23 Tr. at 99:8-10. The seller, What TF, financed a mortgage on the balance of the purchase price in the amount of $3.6 million, which Patton personally guaranteed.²¹ 1/30/23 Tr. at 99:12-17, 103:2-5; 2/3/23 Tr. at 735:14. FRR then leased the quarry from One Barberry and assumed responsibility for paying One Barberry's mortgage, which was approximately $44,000 per month. 1/30/23 Tr. at 103:3-5, 103:11-17. In addition, FRR obtained loans to purchase approximately $1.8 million of quarry manufacturing equipment, and Patton personally guaranteed those loans as well. 1/30/23 Tr. at 98:14-16, 99:5-6, 101:18-19. Patton estimated that, totaling the loans for the equipment, TG Quarry's investment, and the mortgage, he personally guaranteed approximately $6 million of debt. 1/30/23 Tr. at 100:8-15.

21 Patton testified that TG Quarry's investment of $600,000 was the "first" mortgage on the subject property, structured such that it had to be paid off within five years. 1/30/23 Tr. at 99:19-23, 103:21-104:1. The "second" mortgage of $3.6 million held by What TF had a longer-term, ongoing mortgage payment. 1/30/23 Tr. at 103:21-22. Patton further testified that, combining the $600,000 investment from TG Quarry with the $3.6 million mortgage held by What TF, the total amount mortgaged on the property was $4.2 million. 1/30/23 Tr. at 99:24-100:4. For ease of reference, the Court will refer to the $600,000 figure as an investment and the $3.6 million figure as a mortgage.

Patton and Hughes testified consistently that the choice to restructure FRR, purchase the quarry property, and incur significant amounts of debt was in motivated in large part by Biancur's 2014 decision. Patton testified that, had Biancur not issued his 2014 decision, One Barberry would not have purchased the property, FRR would not have purchased the equipment, and Patton would not have personally guaranteed any of that debt. 1/30/23 Tr. at 100:16-101:7. Hughes testified that he understood Biancur's 2014 decision to establish that the property owner had a vested right in the quarry as a nonconforming use, and that obtaining legal recognition of that status was "the decision to move forward" with the transaction. 2/3/23 Tr. at 812:9-22 (emphasis added). He further testified that, absent Biancur's 2014 decision, he would not have participated in the purchase of the property because that decision provided a necessary level of "comfort" that the quarry could operate unencumbered by zoning regulations enforced by the Town. 2/3/23 Tr. at 812:19-813:24.

As a result of What TF severing the quarry portion from the larger property and conveying that portion to One Barberry, site plans showing the subdivision of the property were submitted to and approved by Soto in March of 2016. 2/6/23 Tr. at 982:10-15, 982:22-983:6; Ex. 64. Soto testified that he was not aware of any complaints about the quarry in 2016. 2/6/23 Tr. at 983:18-19.

F. 2017

1. February of 2017

a. Carfora's First Complaint

In early 2017, FRR intended to blast and mine in a new area of the quarry; to do so, it first had to clear the trees from that area. 1/30/23 Tr. at 137:15-18. Patton hired a contractor to clear-cut the area, which he preferred to do in the winter season for environmental reasons. 1/30/23 Tr. at 137:21-24. He testified that he did not believe he needed permission from the Town to do so. 1/30/23 Tr. at 138:24-139:1.

Soon thereafter, Joseph Carfora, an East Haven resident who is now the Town's mayor,²² saw that FRR clear-cut

22 Carfora, a Democrat, has been the Town's mayor since 2019. 2/6/23 Tr. at 868:8-11. From 2017 to 2019, he was the Councilman of the Third District—the district where the subject property was located and the same district where Sand had previously served as Councilman. 2/6/23 Tr. at 868:16-19. Before becoming mayor, he ran his own trucking business. 2/6/23 Tr. at 869:1-2.

the trees on the quarry property. 2/6/23 Tr. at 867:20, 871:15-17. At all relevant times, Carfora has owned a property on Barberry Road through Gloria Acres, LLC, his limited liability company, and he began building a house on the property in the fall of 2016. 2/6/23 Tr. at 869:16, 869:20-24, 870:5. His property is near but not immediately adjacent to the quarry. 2/6/23 Tr. at 871:10-12. Carfora initially denied knowing that a quarry was operating on the subject property prior to 2017, 2/6/23 Tr. at 869:11-13, but, after seeing unidentified documents that refreshed his recollection, acknowledged that he had bought stone from the quarry to construct his property's driveway in the spring of 2016, 2/6/23 Tr. at 871:3-5. When examined by Defendants, he explained that, at the time he bought the stone, he believed it was quarried on the North Branford side of the property. 2/6/23 Tr. at 888:20-22, 889:11. Prior to the clear-cutting of trees on the quarry property in early 2017, Carfora never had any complaints about the quarry operation interfering with his quality of life. 2/6/23 Tr. at 891:7-23.

Around February of 2017, Carfora visited his property and saw that the FRR had clear-cut a large portion of the quarry property, which he felt affected the "beauty" and rural aesthetic of the neighborhood. 2/6/23 Tr. at 871:15-17, 871:20-23. He complained about the clear-cutting to Soto, the Town's ZEO, who said he would investigate it. 2/6/23 Tr. at 872:12, 872:20-23, 986:1-4. Soto in turn contacted Joe Zullo about this complaint. 2/6/23 Tr. at 986:5-7. He also inspected the property and observed the quarry operating. 2/6/23 Tr. at 1018:11-16, 24-25; see also Ex. 63 at 1. Following this visit, Soto issued the first of three cease-and-desist orders that are central to this case.

b. The First Cease-and-Desist Order

On February 21, 2017, the zoning office sought Joe Zullo's input on a draft cease-and-desist letter to One Barberry. 2/6/23 Tr. at 999:18-1000:2. The zoning office's assistant also sent an email to Brancati and Soto attaching the draft letter and informing Brancati that the zoning office had sent it to Joe Zullo for review. Ex. 42 at 1; 2/6/23 Tr. at 995:10-21.

Later that same day, Joe Zullo responded that the letter should clarify that it was in response to clear-cutting on the property, not blasting, which the Town had "allowed" in light of the ongoing dispute about whether the quarry operators needed a special exception permit to do so. Ex. 42 at 1. Joe Zullo copied his father, Al Zullo, on this email, and instructed the zoning office to get Al Zullo's "thoughts" on the draft. Id. Soto testified that it was typical for Joe Zullo and the zoning office to consult with Al Zullo on land use matters because he was the Town's land use attorney. 2/6/23 Tr. at 1000:20-1001:1. Joe Zullo testified that he copied Al Zullo on this email because he wanted to ensure that Al Zullo "had a loose understanding that something was going on," given that Al Zullo typically handled enforcement matters. 2/8/23 Tr. at 1382:7-10. Al Zullo, for his part, testified that he did not read the email, and typically would not read such emails unless Joe Zullo "walked across the hall and said, hey, dad, did you look at the e-mail." 2/7/23 Tr. at 1224:3-5.

The next day, February 22, Soto sent Joe Zullo a second draft of the cease-and-desist letter. Ex. 42 at 3; 2/6/23 Tr. at 1002:11-22. On February 23, Joe Zullo responded that the draft looked "good" to him. Ex. 42 at 3. After Soto received this email from Joe Zullo, he issued the first cease-and-desist order.²³ 2/6/23 Tr. at 1003:4-7; Ex. 15. The order, addressed to One Barberry and delivered by certified mail, stated that trees on the property had been "slashed down,"²⁴ and that this activity, absent a special exception permit, violated Section 31 of the Town's zoning regulations. Ex. 15 at 1. The order directed One Barberry to immediately cease "all operations" on the property, id. at 2, although Soto testified that the order was directed solely toward the cutting of trees and was not an order to shut down the quarry operation (despite its language), 2/6/23 Tr. at 988:10-15; see also 1/30/23 Tr. at 143:20-22. The order instructed One Barberry to seek a special exception permit pursuant to Section 31 of the Town's zoning regulations. Ex. 15 at 1. The order also advised One Barberry that it would be assessed a daily fine if it continued the prohibited operation. Ex. 15 at 2. The order was signed by Soto and copied to Joe Zullo and Kevin White, the Town Engineer. Id.

23 Although the first cease-and-desist order was dated February 17, 2017, Soto testified that the date on the order reflected when it was originally drafted, and that it was actually issued around February 23, 2017. 2/6/23 Tr. at 1002:6-8, 1003:4-7.

24 The parties dispute the first cease-and-desist order's use of the term "slash" to refer to the clear-cutting of trees. Patton, who became a certified Tree Warden while serving as Willington's First Selectman but was not offered as an expert on any forestry subject, testified that, in his experience, "slash" is a term specifically referring to the "residue" from branches, leaves, and tree limbs that are "left over" from cutting down trees. 1/30/23 Tr. at 31:7-11, 146:16-25. Soto testified that he was not aware of any particular meaning to the word "slash" in the forestry context, 2/6/23 Tr. at 989:17-19, and that he believed the verb "slash" was synonymous to "cut," 2/6/23 Tr. at 989:6-8; 2/7/23 Tr. at 1155:5-8. Section 31.1 of the Town's then-operative zoning regulations prohibit the unpermitted "slashing of trees" without defining that term. Ex. 96 at 125, Zoning Regs. § 31.1. The Court need not resolve this dispute, as it is immaterial to this decision, but notes that Patton's experience in the area of forestry, and Soto's relative inexperience in that area, lends credence to Patton's explanation.

After receiving the first cease-and-desist order, Plaintiffs did not cut any more trees, although Patton acknowledged that the intended clear-cutting had been completed by that point. 1/30/23 Tr. at 140:9-14. Nevertheless, Patton appealed the first cease-and-desist order to the ZBA, out of concern that the Town would seek to apply it to the blasting and quarrying operation. 1/30/23 Tr. at 143:10-19, 148:13.

Meanwhile, Patton went to the zoning office and had a short conversation with Soto about the clear-cutting and quarry operation. 1/30/23 Tr. at 141:15-16. According to Patton, he discussed Biancur's 2014 decision, and he believed he brought a copy of that decision to the meeting with Soto, but Soto told Patton that the cease-and-desist order was just for cutting trees, which put an end to the conversation. 1/30/23 Tr. at 141:20-142:9, 143:23-144:1.

2. March of 2017

a. The Meeting on March 21, 2017

On March 21, 2017, there was a meeting in Joe Zullo's office regarding the quarry's legal status, attended by Joe Zullo, Patton, Attorney Peter Alter,²⁵ Hughes, Temkin,

25 Alter is Patton's attorney, 1/30/23 Tr. at 149:12-15, and he has been Patton's and his wife's attorney since the 1990s, 2/9/23 Tr. at 1563:20-23. He represented Plaintiffs in the ZBA proceeding underlying the present litigation, Ex. 60, Hr'g Tr. at 3:22-4:3, and he represented Plaintiffs in the present action since its initiation, see ECF No. 16 (Alter's notice of appearance). In the parties' Joint Trial Memorandum, Plaintiffs listed Alter as trial counsel, ECF No. 215 at 1, and as a potential witness, id. at 9. At the pretrial conference, the Court observed that, pursuant to District of Connecticut Local Rule 83.13(b), Alter could not maintain an appearance in the case and testify at trial as a fact witness. See ECF No. 246. Thereafter, Alter filed a motion to withdraw from representing Plaintiffs in this litigation, which the Court granted. ECF No. 254.

and DiLungo. 1/30/23 Tr. 148:21-24; 2/3/23 Tr. at 743:8-11, 815:2-9; 2/9/23 Tr. at 1565:16-24. All the attendees except Temkin testified about the meeting, and all except Joe Zullo testified consistently about the date, attendees, purposes, and statements made during the meeting.²⁶

26 Defendants objected to all testimony regarding this meeting pursuant to Federal Rule of Evidence 408, arguing that the meeting was a settlement discussion in which the parties tried to resolve their dispute regarding the cease-and-desist order, a dispute that was ultimately litigated in state and federal court. See, e.g., 1/30/23 Tr. at 149:18-23. The Court overruled the continuing objection and held the evidentiary issue in abeyance. See, e.g., 2/13/23 Tr. at 1908:19-20. After hearing testimony from all the witnesses who attended the meeting and reviewing the parties' supplemental briefing, see ECF Nos. 268, 281, the Court found the testimony about the meeting admissible under Federal Rule of Evidence 408(a) because Defendants did not show, by a preponderance of the evidence, that the meeting pertained to compromise or settlement negotiations. 2/13/23 Tr. at 1908:8-1917:7.

The quarry operators described the physical aspects of the quarry and demonstrated their planned progression of quarrying into the property. For example, DiLungo testified that the quarry operators laid a geological map on the table to show "the grading plan" and "how the quarry would ... keep grading and taking the stone." 2/3/23 Tr. at 743:11-14, 744:21-22. In addition, Alter testified that the quarry operators explained "the physical aspects of the quarry," using maps showing the topography of the property and how the quarry would be mined in phases over a period of thirty or forty years. 2/9/23 Tr. at 1566:4-10. Likewise, Patton testified that he brought "a set of plans and maps" laying out the anticipated phases of quarrying through the property, at least some of which had been prepared by Milone & MacBroom, which was FRR's retained engineering firm. 1/30/23 Tr. at 161:12-162:2, 188:20-23.

The quarry operators also explained their position that the quarry was a non-conforming use in light of Biancur's 2014 decision, such that they were not subject to zoning enforcement and did not need a special permit from the Town to maintain the quarry operation. 1/30/23 Tr. at 153:10-16 (Patton testifying that they discussed "the legally existing non-conforming aspect of the quarry"); 2/3/23 Tr. at 743:14-16 (DiLungo testifying that they "talked about the preexisting non-conforming aspect" of the quarry); 2/3/23 Tr. at 815:16-17 (Hughes testifying that they discussed "the legal vested non-conforming right we had to quarry"); 2/9/23 Tr. at 1566:14-1567:8 (Alter testifying that one purpose of the meeting was to "reinforce" his client's position that, as a result of Biancur's 2014 decision, "the question of whether or not the quarry was a legally existing non-conforming use was settled as a matter of law").

According to Patton, Alter, Hughes, and DiLungo, Joe Zullo stated at the meeting that he agreed with the quarry operators' position that the quarry was a nonconforming use in light of Biancur's 2014 decision. 1/30/23 Tr. at 153:16-19; 2/3/23 Tr. at 744:3-4, 817:21-24; 2/9/23 Tr. at 1568:8-9. But Joe Zullo expressed that he was hesitant to inform Maturo of his agreement with the quarry operators' position. Patton testified that Joe Zullo looked at DiLungo and said, "I need the right time to tell the Mayor. You know what I mean, Mark [DiLungo]." 1/30/23 Tr. at 153:19-21. Similarly, DiLungo testified that Joe Zullo looked at him and said, "Mark, you know how he [Maturo] is. I have to just get him in the right frame of mind to convince him about this." 2/3/23 Tr. at 744:5-7, 744:16. Hughes

testified that Joe Zullo said that he "would approach the Mayor at a point when he was approachable," and, at that time, Joe Zullo "couldn't approach the Mayor" about the quarry's legal status. 2/3/23 Tr. at 817:23-25. Alter, who was the most careful of the witnesses in phrasing his impression of the meeting, testified that Joe Zullo was "reluctant" to communicate his agreement with the quarry operators' position to "Town officials" until "it was an appropriate time to do so." 2/9/23 Tr. at 1568:10-12.

For his part, Joe Zullo recalled very little of this meeting. He testified that, after reviewing unspecified emails between him and Alter in advance of his testimony, he recalled that the meeting took place between him and Alter, but he did not recall who else attended it. 2/8/23 Tr. at 1380:12-15.²⁷ He did not recall "the contents" of the meeting, but, from the emails he reviewed in advance of his testimony, he believed that it would have been about "the continuing difference of opinions regarding the ... status of the quarry or the property." 2/8/23 Tr. at 1381:2-6.

27 For example, Joe Zullo seemed not to recall Patton attending the meeting, given that he testified that the only time he met Patton was at a later point. 2/8/23 Tr. at 1379:21-25.

The Court finds that the meeting more likely than not proceeded as described consistently by Patton, DiLungo, Hughes, and Alter. To begin, the Court finds Joe Zullo's testimony generally not credible in light of his strong allegiance to Maturo and the Town. As noted above, Joe Zullo immediately became the Town Attorney upon his graduation from law school in 2011, following his service as Maturo's campaign manager; he further testified about his friendship with Maturo and his service in Maturo's administration. 2/8/23 Tr. at 1354:20-1355:6, 1356:6-8, 1356:20-22, 1357:12-14. In 2019, Joe Zullo was elected to represent the Town in the Connecticut General Assembly, a position he held at the time of his testimony. 2/8/23 Tr. at 1353:14-15, 1353:24-25. Together, this demonstrates Joe Zullo's strong personal incentive to testify favorably for at least two Defendants in this action, Maturo and the Town.

The Court further infers that Joe Zullo understood the strategic value of his testimony to Maturo's and the Town's defense, particularly given that he is an attorney. For example, Joe Zullo testified that his motivation to review the unspecified emails between him and Alter in preparation for his testimony was in anticipation that Plaintiffs would call Alter as a witness. 2/8/23 Tr. at 1415:18-25. In addition, the Court does not find it mere coincidence that Joe Zullo's only specific recollection of the meeting on March 21, 2017—that it would have pertained to compromising or settling the parties' dispute, 2/8/23 Tr. at 1381:2-6—was both conclusory and supportive of Defendants' repeated objection to the admissibility of testimony regarding this meeting pursuant to Federal Rule of Evidence 408. See supra note 26. This suggests Joe Zullo was either coached by defense counsel to provide this testimony, or took it upon himself to read Defendants' public filings seeking to exclude evidence of the meeting on Rule 408 grounds and to attempt to advance their cause. Finally, Joe Zullo's demeanor throughout his testimony —specifically, his poor recollection about many of the relevant events, his slow and cautious responses to counsel's questions, and his deliberately careful phrasing—demonstrated his awareness of the potential strategic value of his testimony to Defendants. See 2/8/23 Tr. at 1429:2 (on a different topic, Joe Zullo testifying: "As I sit here, I want to be careful. I am going to err on the side of caution, so I don't remember as I sit here."). Joe Zullo was not, in the Court's view, a disinterested, objective witness. Accordingly, his inability

to recall anything specific about the meeting on March 21, 2017, combined with his general lack of credibility, does not meaningfully undermine the other witness' testimony about the meeting.

The Court acknowledges that, although Patton, Alter, DiLungo, and Hughes testified credibly regarding the meeting on March 21, 2017, at least three of them had a certain degree of incentive to testify as they did. Patton had an obvious natural incentive, given that he is a Plaintiff in this case and has significant interest in the corporate Plaintiffs. That incentive is also attributable to Alter, who testified that he considered Patton and Patton's wife to be "significant" clients in his practice. 2/9/23 Tr. at 1564:4-7. Indeed, although he had withdrawn his appearance, Alter attended every day of the trial and charged Patton for that time. 2/9/23 Tr. at 1569:23-25, 1570:6-12. The Court further infers that, as an attorney who had worked on the present action for many years, Alter likely understood the strategic value of his testimony to his client, much like Joe Zullo. DiLungo also had a relatively strong incentive to testify as he did, given the ongoing business relationship between him and Patton.²⁸ Furthermore, on cross-examination, DiLungo testified about the acrimonious breakdown of his friendship with Maturo over a failed development project, from which the Court infers that DiLungo was at least somewhat personally motivated to testify adversely to Maturo.²⁹

28 The Court infers that DiLungo and Patton maintain a relatively positive business relationship, given that DiLungo did not foreclose on One Barberry's mortgage after FRR, through Patton, failed to make several mortgage payments during the shutdown of the quarry. See 2/3/23 Tr. at 735:20-736:6 (DiLungo testifying that he was "trying to work with" Patton in recognition that Patton was "going through a pretty rough time" while the quarry was shut down). Indeed, to date, DiLungo holds a mortgage interest over the subject property and, as explained below, in the event that Plaintiffs prevail in the present action, Patton has agreed to contribute $2.5 million out of any damages award toward the property's mortgage. Insofar as that would benefit DiLungo financially, the Court acknowledges DiLungo's potential bias toward Plaintiffs' positions in this litigation.

29 On direct examination, DiLungo testified that he met Maturo during his first campaign for mayor, which DiLungo supported. 2/3/23 Tr. at 738:18-20, 739:1-2. DiLungo testified that they became "pretty friendly" over the years that followed—for example, they had overlapping professional interests; DiLungo went to fundraisers at Maturo's house; and Maturo went to dinner at DiLungo's house in Florida. 2/3/23 Tr. at 738:20-21, 739:2-10. On cross-examination, DiLungo testified that he began to "divorce" himself from Maturo at some point, and then they had a "falling out" in 2019 with respect to the failed development project. 2/3/23 Tr. at 753:3-9, 753:19-21. Specifically, DiLungo felt "slighted" because Maturo and Brancati encouraged DiLungo to buy a property for a specific development, but, after DiLungo bought the property, the development was not approved. 2/3/23 Tr. at 754:4-22.

That said, the Court finds Hughes' testimony quite credible; consequently, the fact that Patton, Alter, and DiLungo testified consistently with Hughes about the meeting on March 21, 2017, suggests that those witnesses' incentives for their testimonies did not significantly infect their testimonies about this meeting. Importantly, the Court cannot discern any clear incentive Hughes might have had to testify the way he did. His investment in FRR in 2016 was his first business transaction with Patton, 2/3/23 Tr. at 811:9-11, and, by the time of his testimony, he no longer had an interest in FRR, as his interest had been purchased by Patton's wife, 2/1/23 Tr. at 437:11-22. In addition, neither Hughes nor Patton testified about any particular friendship or close business relationship between them. Thus, the Court cannot glean that Hughes has any strong sense of loyalty to Patton, adversity to Defendants,

or financial incentive that might have motivated his testimony. Moreover, Hughes' demeanor during his testimony—specifically, his matter-of-fact demeanor and his prompt and straightforward responses to counsel's questions—lends further credence to his testimony.

In sum, the Court finds that the meeting on March 21, 2017, more likely than not proceeded as described consistently by Patton, DiLungo, Hughes, and Alter.

b. Site Visit on March 31, 2017

On March 31, 2017, Soto visited the quarry because his general practice after issuing a cease-and-desist order was to "follow up" and verify the property owner's "compliance" with the order. 2/6/23 Tr. at 1006:9-14, 1006:22-24. His field inspection notes state that the quarry operators had continued "moving earth," Ex. 63 at 1, by which Soto meant that they were "clearing the land" and removing the stumps from the trees that had been cut down, 2/6/23 Tr. at 1006:5-7. Soto viewed this as "a continuation of the initial work" in violation of the first cease-and-desist order.³⁰ 2/6/23 Tr. at 1006:10-11. After his visit, Soto called Judith Dicine, an attorney from the State Attorney's Office who prosecuted zoning enforcement matters, 2/6/23 Tr. at 1007:25-1008:7, 1008:20-21, and his field inspection notes state that Dicine recommended revising the first cease-and-desist order to include the removal of "soil around trees," Ex. 63 at 1. Soto testified that he contacted Dicine because he wanted to ensure that the Town was "taking the necessary steps" for the cease-and-desist order to be "lawfully enforced" if the Town "proceeded down the avenue of prosecution through the State's Attorney's Office." 2/7/23 Tr. at 1154:17-20.

30 Patton testified that his quarry manager called him to tell him that, during this site visit, Soto threatened to have FRR's employees arrested due to their continued work on the property, 1/30/23 Tr. at 170:15-18, 170:22-171:5, but Soto denied that he threatened anyone, 2/6/23 Tr. at 1007:12-18.

c. Carfora's Second Complaint

At some point after the first cease-and-desist order was issued, likely around March or early April of 2017, Carfora complained about the quarry again, this time directly to Maturo. 2/6/23 Tr. at 874:12-18. Specifically, Carfora met Maturo at Town Hall and complained that there was activity occurring on the quarry property, such as the removal of tree stumps. 2/6/23 Tr. at 874:19-875:7. In response to Carfora's complaint, Maturo directed Brancati, who was present during this discussion, to talk to Soto and "see what was going on" at the property. 2/6/23 Tr. at 875:19-21, 876:14-18. Carfora complained to Maturo because he wanted to "get to the bottom of it," and because he believed that, if anybody could respond to his complaint, it would be Maturo. 2/6/23 Tr. at 877:2-9.

3. April of 2017

a. April 20 and 21, 2017

At approximately 9:00 a.m. on April 20, 2017,³¹ the zoning office received an anonymous complaint that a large boulder was seen rolling off the quarry property and was "sitting in the middle of the road," posing "a danger." Ex. 500 at 114; see also 1/30/23 Tr. at 179:25. According to his field inspection notes, Soto inspected the site that morning, verified the complaint, and took a photo of the boulder in the road.

31 Patton testified that the first hearing regarding his appeal of the first cease-and-desist order to the ZBA was scheduled to take place in the evening of April 20, 2017, and he found it suspicious that the events of that morning occurred in such close proximity to the hearing. 1/30/23 Tr. at 179:5-9; 1/31/23 Tr. at 204:3-4. At oral argument, counsel for Plaintiffs clarified that the parties consented to the continuance of the April 20 hearing date, and that the first hearing was held on July 13, 2017, after the shutdown of the quarry.

Ex. 63 at 1; Ex. 129; 2/7/23 Tr. at 1163:17-19; see also 1/30/23 Tr. at 174:19-22. Soto testified that the boulder was "fairly large." 2/7/23 Tr. at 1163:25. After seeing the boulder in the road, Soto spoke with Mike Hartin, FRR's quarry manager, about constructing a berm to stop any rocks from rolling off the property. Ex. 63 at 1; 1/30/23 Tr. at 175:13, 176:4-8. At Patton's instruction, Hartin constructed a berm below the "work area." 1/30/23 Tr. at 175:5-11.

Defendants urge the Court to find that the boulder depicted in Soto's photo indeed rolled into the road from the quarry property. On the record presented at trial, the Court is unable to do so. The photo depicts a large boulder resting on the edge of the narrow road.³² See Ex. 128. To the right of the boulder is less than one yard of dirt and low brush; that area is lined with trees spaced several yards apart, interspersed with taller brush, bushes, and fallen tree limbs. See id.; 1/30/23 Tr. at 181:12-14. Further to the right are several yards of tall brush sloping upward, and then a steeper hill of dirt. See Ex. 128. Based on the orientation of the photo and Soto's testimony that he believed this boulder had rolled down a hill on the subject property, along with white signs on the trees that appear to be "no trespassing" signs, the Court infers that the property line for the subject property begins approximately along the tree line.³³

32 The Court cannot find that the boulder in the photo at Exhibit 128 is truly sitting in the middle of the road, as reported in the anonymous complaint. At some point, the Town's Public Works department moved the boulder, see 1/30/23 Tr. at 180:4-5; Ex. 42 at 5, but the record is not clear as to whether its representatives hauled the boulder away or simply moved it to the side of the road. Moreover, Soto did not testify precisely when he took the photo at Exhibit 128, and thus the Court cannot discern whether it depicts the boulder as originally discovered by Soto or as moved by Public Works.

33 Patton testified that there is a barbed wire fence depicted in Exhibit 128, but the Court is unable to discern one. 1/30/23 Tr. 181:2-25. Even Plaintiffs' counsel appeared unable to see the barbed wire fence in the photo, as apparent from his repeated questioning of Patton about where in the photo the fence appeared. Id.

Thus, for the boulder to have rolled down the hill from the quarry property onto the road, it would have had to roll down the dirt hill, through the tall brush, and then through the lower brush around the tree line, before reaching the road. The photo, however, does not demonstrate that any brush was disturbed. See id.; 1/30/23 Tr. at 181:16-18, 181:23-24. In other words, the photo does not demonstrate the boulder's path from the quarry toward the road, and, absent any such demonstrable path, the Court cannot find that the boulder depicted in that photo actually rolled from the quarry into the road.

Almost immediately after appearance of the boulder, Soto began to defer to the instructions and judgment of Joe Zullo, and, to a lesser extent, Brancati—both of whom bore political allegiance to Maturo— in determining how to proceed. At 11:42 a.m., Soto sent an email to Joe Zullo, copying White, the Town Engineer, to inform them of the boulder in the road. Ex. 42 at 5; see also 2/6/23 Tr. at 1015:23-24. Soto stated that, while visiting the area, he witnessed "several boulders rolling down the hill towards Barberry [Road]," of which he informed Hartin. Ex. 42 at 5. Soto also stated his opinion that "the operation should cease" while FRR appealed the first cease-and-desist order, "at the very least until they [FRR] have made conditions safe on the site, and the [T]own can verify that the measure[s] taken are appropriate and safe." Id. Soto signed off

by asking Joe Zullo to "advise if there is any further action that I [Soto] can take or should take on this matter," id.; Soto testified that, in this email, he was asking Joe Zullo for legal advice, 2/6/23 Tr. at 1012:18-19.

At 12:17 p.m. that day, Joe Zullo responded to Soto, agreeing that he "took the right approach" and that FRR must operate safely while their appeal of the first cease-and-desist order was pending. Ex. 42 at 5. Joe Zullo instructed Soto to "follow-up as instructed by Sal [Brancati]." Id. Although Soto testified that he did not know why Joe Zullo told him to follow up with Brancati, 2/6/23 Tr. at 1013:22-24, the Court infers that this relates to Maturo's instruction to Brancati to check in with Soto about the quarry following Carfora's second complaint to Maturo.

At 12:59 p.m. that day, Soto sent another email to Joe Zullo, again copying White, representing that he visited the quarry again. Ex. 42 at 6. He reported that a berm had been erected, that he requested White's assistance to determine if the berm was "adequate," and that the quarry operators had "resumed work." Id. At 1:28 p.m., Joe Zullo responded, agreeing with Soto's intent to confer with White about the adequacy of the berm. Id. at 7.

Soto visited the quarry again that afternoon, accompanied by White. Soto's field inspection notes described White's impression that the berm "would stop some" rocks from rolling down the hill, but he doubted "if it would stop large rocks like the one by the road." Ex. 63 at 1. Consistent with Soto's notes, Patton testified that, shortly after Hartin built the original berm, White and Soto informed Patton that they did not think the berm "was a proper fix to the problem that [the Town] perceived." 1/30/23 Tr. at 176:11-22. In response to White's and Soto's skepticism, Patton instructed his excavator to start working on a larger berm. 1/30/23 Tr. at 177:15-20. This larger berm was ten feet high, fifteen feet deep, and 2,000 feet long, and Patton "hydroseeded" it to stabilize it and reinforced it with "hay bales and [a] silt fence." 1/30/23 Tr. at 177:4-11.

Nevertheless, Soto's field inspection notes reflect that, as of his next site visit the following day, the berm was "not reinforced." Ex. 63 at 1. At 1:30 p.m. on April 21, 2017, Soto sent an email to Joe Zullo, copying Brancati, White, and Al Zullo. Ex. 42 at 8. Soto informed Joe Zullo of White's dissatisfaction with the original berm, as well as Soto's observations that the soil around the berm was "not compacted or reinforced in any way" and that the property's "sediment and erosion control measures" were "inadequate" and "not properly maintained." Id. Soto reported that, although Brancati informed him the quarry operators would improve the berm,³⁴ no such improvements had been made as of his site visit on the morning of April 21. Id. Soto concluded with his opinion that the quarry operators should "cease working on the area near Barberry [Road] immediately" until they had "implemented proper safety measures and sediment and erosion controls" and obtained White's approval to resume work. Id. Soto attached a draft cease-and-desist order for Joe Zullo's review. Id.; see also 2/6/23 Tr. at 1011:2-5 (Soto testifying that, before issuing the second cease-and-desist order, he consulted with Joe and Al Zullo).

34 Soto testified that Brancati said this because another member of FRR—most likely DiLungo, though it could have been Hughes or Temkin—spoke to Brancati and told him about FRR's intention to reinforce the original berm. See 2/6/23 Tr. at 1016:15-1017:3.

b. The Second Cease-and-Desist Order

Soto then issued the second cease-and-desist order, dated April 21, 2017, and styled as an amendment to the first cease-and-desist order. Ex. 16; 2/6/23 Tr. at

1009:5-9. This order was addressed to Hartin, care of FRR, and delivered by a Connecticut State Marshal. Ex. 16 at 1. The order observed that trees had been slashed down, tree stumps and roots were being removed, and the soil around the trees was being "disturbed," all of which were "considered to be part of the operation of the slashing of trees." Id. For that reason, Plaintiffs were "considered to be in continued violation of the first cease-and-desist order. Id.; see also 2/6/23 Tr. at 1010:18-19. The second cease-and-desist order also observed that rocks had been "rolling down the face of large hill towards the road and on occasion onto the road itself do [sic] to the continued operations on site" and instructed FRR to "cease operations immediately" as a result of those "unsafe and hazardous conditions to the general public." Ex. 16 at 1. The order also instructed FRR to install and maintain "[p]roper sedimentation and erosion controls" around the perimeter of the property. Id. at 2.

The second cease-and-desist order bore several similarities to the first cease-and-desist order. Both orders instructed FRR to seek a special exception permit pursuant to Section 31 of the Town's zoning regulations and advised FRR that it would be assessed a daily fine if it continued the prohibited operation. Ex. 15 at 1-2; Ex. 16 at 1-2. Both orders were signed by Soto and copied to Joe Zullo and White. Ex. 15 at 2; Ex. 16 at 2. Finally, like the first cease-and-desist order, the second one did not require FRR to stop the quarry operation, according to Soto, despite its language. See 2/7/23 Tr. at 1087:2-5; 2/6/23 Tr. at 988:10-19. Patton appealed the second cease-and-desist order. 1/31/23 Tr. at 292:12-13.

c. Inspection on April 25, 2017

On April 25, 2017, following the issuance of the second cease-and-desist order, Soto and White met with Patton, Hartin, DiLungo, and Temkin at the property. 1/30/23 Tr. at 185:14-17, 186:5-6; 2/6/23 Tr. at 1019:8-12, 1020:1-11; see Ex. 63 at 2. Soto acknowledged that the reinforced berm had been completed by that time, 2/6/23 Tr. at 1019:22-24, and his inspection notes indicate that the group discussed the need for further safety measures, see Ex. 63 at 2. Patton, Soto, and White also discussed the cease-and-desist orders' instruction for the quarry operators to apply for a special exception permit pursuant to Section 31 of the Town's zoning regulations, and Patton explained his position that, because Biancur's 2014 decision solidified the quarry's status as a nonconforming use, they need not, and indeed could not, apply for a special exception permit without sacrificing their status as a non-conforming use. 1/30/23 Tr. at 187:11-16; 1/31/23 Tr. at 201:15-18; 2/6/23 Tr. at 1025:5-11. Patton testified that, at this meeting, Soto acknowledged Biancur's 2014 decision as "valid" and "binding," 1/30/23 Tr. at 186:21-24. Soto, for his part, could not recall if Biancur's 2014 decision was discussed at this inspection, 2/6/23 Tr. at 1025:15-18.

During the inspection, White informed the quarry operators that he needed certain engineering plans and blasting sequences, and Patton said he had previously given such plans and maps to Joe Zullo— presumably referring to the meeting on March 21, 2017. 1/30/23 Tr. at 186:14-15, 186:25-187:5; see also 2/6/23 Tr. at 1020:12-21. Soto could not recall Patton expressly stating whether he would agree to provide the engineering plans White requested. 2/6/23 Tr. at 1021:6-9.

Promptly after this inspection, Patton consulted with Milone & MacBroom, FRR's engineering firm, about preparing the information White had requested. 1/30/23 Tr. at 188:18-22, 189:17-19. About a week later, Milone & MacBroom sent

Patton a proposal, which he approved. 1/30/23 Tr. at 189:21-190:2.

d. Community Complaints

Around late April of 2017, a neighborhood group formed to oppose the quarry, which the Court will refer to as "the quarry opposition group." 1/31/23 Tr. at 203:22-25; 2/6/23 Tr. at 877:15-17. Carfora was one of the leaders of this group. 1/31/23 Tr. at 204:11-15.³⁵ He testified that the purpose of the quarry opposition group was to "stop the quarry," meaning to shut it down, because the group's members felt that it was interfering with their quality of life in the Town. 2/6/23 Tr. at 878:2-11, 887:8-9. Carfora also testified, however, that the only aspect of the quarry's operation that he felt interfered with his quality of life in the Town was the clear-cutting of the trees, which had triggered the creation of the quarry opposition group in the first place. 2/6/23 Tr. at 887:12-22. Indeed, "nothing was brought up in [the] group about blasting." 2/6/23 Tr. at 887:21-22. Around this time, the quarry opposition group circulated a flyer encouraging people to attend the ZBA hearing regarding One Barberry's appeal from the first cease-and-desist order, originally scheduled for April 20, 2017. 1/31/23 Tr. at 203:25-204:10; 2/6/23 Tr. at 878:12-13, 879:18-21; see also supra note 31.

35 Carfora evaded counsel's question of whether he was one of the leaders of the quarry opposition group, 2/6/23 Tr. at 878:1, but his other testimony suggested that he in fact believed himself to be a leader of the group. For example, he testified confidently about the group's origin and purpose, and he once referred to the group as "my" group, 2/6/23 Tr. at 887:21. Also, Carfora testified that the quarry opposition group filed a lawsuit against FRR and One Barberry, 2/6/23 Tr. at 888:6-7; the named plaintiffs in that lawsuit were Carfora and his limited liability company, Gloria Acres, LLC. See 1/31/23 Tr. at 207:22-24; 2/6/23 Tr. at 890:12-14; Gloria Acres, LLC v. Farm River Rock, LLC, No. NNH-CV17-6070453-S (Conn. Sup. Ct.). The lawsuit, filed in May of 2017 and asserting a nuisance claim, was dismissed in 2022 for lack of activity, 1/31/23 Tr. at 208:1, 208:5; 2/6/23 Tr. at 888:9, and Carfora testified that he allowed the lawsuit to lapse after becoming mayor of the Town, 2/6/23 Tr. at 892:13-18. Given that Carfora filed the lawsuit and testified that it was filed on behalf of the quarry opposition group, and given the other testimony suggesting that Carfora led the quarry opposition group, the Court infers that Carfora led the quarry opposition group.

Soto testified that, between April 25 and May 2, 2017, the zoning office received calls that the quarry operators were working, using drilling equipment, and preparing to blast. 2/6/23 Tr. at 1028:17-21. Likewise, Nimons received at least one complaint about blasting at the quarry, even though no blasting was occurring at that time because the last blast was in March. 2/6/23 Tr. at 928:19-23; see also 1/30/23 Tr. at 178:2; 1/31/23 Tr. at 209:1. In response to this complaint, Nimons reached out to North Branford officials to inquire about another large quarry in that town, because he knew there was no blasting occurring at Plaintiffs' quarry. 2/6/23 Tr. at 928:16-929:2.

4. May of 2017

On May 9, 2017, Soto issued the third cease-and-desist order, which shut down the quarry. See Ex. 17. At trial, conflicting testimony was presented regarding the events in early May of 2017, including who made the decision to shut down the quarry and when that decision was made. The Court will set forth its ultimate findings of fact as to those issues at the conclusion of its findings as to the sequence of events.

a. Early May Generally

Between the inspection on April 25, 2017, and the events on May 9, 2017, Patton did not receive any communication from the Town about any problems with the quarry, such as more rocks rolling down the hill or further sedimentation and

erosion problems. 1/31/23 Tr. at 208:13-23.³⁶ Soto testified that, at some point between April 25, 2017, and May 2, 2017, he visited the subject property and saw a drilling machine there, 2/6/23 Tr. at 1029:2-4. No such visit was recorded in his field inspection notes, however, see generally Ex. 63, and Soto acknowledged that he typically would have recorded a site visit in those notes, 2/6/23 Tr. at 1029:11-13.

36 However, Patton testified that, on May 6, 2017, police officers came to the subject property responding to a complaint that the quarry was operating, and they left after a short conversation with him. 2/2/23 Tr. at 591:10, 662:19-24.

b. Early May: DiLungo's Conversation with Maturo

DiLungo testified that, approximately a week or two before the shutdown of the quarry, he spoke with Maturo about the quarry. 2/3/23 Tr. at 739:16-18. DiLungo told Maturo that he "thought it was a very bad idea for [Maturo] to shut the quarry down" in light of Biancur's 2014 decision. 2/3/23 Tr. at 739:19-22. According to DiLungo, Maturo responded that he "wasn't going to let another quarry ruin his reelection bid," which DiLungo understood to refer to a different quarry on Russo Avenue in East Haven. 2/3/23 Tr. at 740:5-6, 10. Maturo further explained to DiLungo that Carfora and others "were making a stink" about the "blasting" and "noise" from the quarry, and Maturo "was trying to calm everybody down." 2/3/23 Tr. at 740:16-19.³⁷

37 DiLungo told Maturo that Carfora's complaints were not a "big deal" because Carfora was a Democrat and was not going to vote for Maturo. 2/3/23 Tr. at 740:20-22. DiLungo also told Maturo that he (DiLungo) had "heard rumblings" that Carfora might run for mayor, but Maturo laughed at DiLungo and said DiLungo "didn't know what [he] was talking about." 2/3/23 Tr. at 740:22-25.

The Court heard testimony from Sand, Joe Zullo, and Maturo about the Russo Avenue quarry.³⁸ Sand testified that, during his tenure as a Councilman, a developer approached the Town with a plan to build housing on a property on Russo Avenue. 2/6/23 Tr. at 864:19-865:2; see also 2/8/23 Tr. at 1398:21-22 (Joe Zullo testifying that the Russo Avenue property was under development around 2001 or 2002). In Joe Zullo's understanding, the developer "had to do substantial rock work, blasting rock quarry," before it could begin building the housing development. 2/9/23 Tr. at 1462:24-3. At some point, it became "clear" that the developer was not building anything, but rather was "blasting" and "taking stone" from the area, giving Sand the impression that the developer did not intend to build the housing he had proposed. 2/6/23 Tr. at 865:5-15. See also 2/9/23 Tr. at 1463:6-12 (Joe Zullo testifying there were "outward signs" that "the developer didn't intend to build anything" because the developer built nothing more than "cement work" and "a lone foundation"). The development's neighbors experienced "significant issues" with traffic, noise, and dust, 2/9/23 Tr. at 1463:13-21, and complained to Maturo about the issues, 2/9/23 Tr. at 1520:8. Sand testified that Maturo shut down the Russo Avenue quarry. 2/6/23 Tr. at 854:17-18, 858:9-13.

38 Joe Zullo testified that, although he was not working in the mayor's office during the events relevant to the Russo Avenue quarry, he was "cognizant" of those events because of his interest in local politics. 2/9/23 Tr. at 1458:24-1459:1. In addition, Patton testified that he was familiar with the Russo Avenue quarry through his business partnership with Bakutis, who had worked at that quarry and encountered "issues" with the group opposing it. 1/31/23 Tr. at 288:20-25.

The Court also heard testimony from DiLungo, Joe Zullo, and Maturo about the impact of the Russo Avenue quarry on the 2007 mayoral election. As mentioned above, Maturo served as the Town's mayor

from 1997 until he lost the 2007 mayoral election. 2/8/23 Tr. at 1399:3-7; 2/9/23 Tr. at 1512:12-25. DiLungo testified that the Russo Avenue quarry was "a big political football" in the 2007 mayoral election. 2/3/23 Tr. at 740:10-13. Joe Zullo agreed that one of the issues in the 2007 election was the Russo Avenue quarry, 2/8/23 Tr. at 1399:12-21, but he minimized the degree to which that issue contributed to Maturo's loss. Maturo lost that election by twenty-five votes, which Joe Zullo agreed was not a lot of votes, 2/9/23 Tr. at 1509:23; but Joe Zullo also testified that Maturo won the district where the Russo Avenue quarry was located and instead lost a district on the East Haven shoreline "by a tremendous margin," 2/8/23 Tr. at 1399:8-9, 1399:13-16; see also 2/9/23 Tr. at 1459:23-1460:1. Maturo testified that the Russo Avenue quarry was not a problem for him in the 2007 election. 2/9/23 Tr. at 1520:12.

In light of the narrow margin of Maturo's loss in the 2007 election, and in light of Joe Zullo's concession that the Russo Avenue quarry was one of the issues in that election, the Court infers that Maturo believed the Russo Avenue quarry issue impacted the 2007 election and, at least in part, caused his loss. While Maturo disclaimed this theory, his memory about historical events regarding his tenure as mayor was poor, and his incentive to downplay the impact of the Russo Avenue quarry on his 2007 election loss—as it is central to Plaintiffs' theory that he later gave the order to shut down Plaintiffs' quarry to avoid potentially adverse political consequences —is high. This finding is further supported by DiLungo's testimony that Maturo said he did not want the quarry opposition group to impact the upcoming 2017 mayoral election like the community opposition to the Russo Avenue quarry had impacted the 2007 mayoral election.

c. Early May: Conferral Among Town Officials

The Court infers, based on circumstantial documentary and testimonial evidence, that there was some kind of meeting or conferral regarding the quarry among senior Town officials, including at least Maturo, Joe Zullo, and Soto, in early May of 2017. To begin, on April 29, 2017, Joe Zullo told Branse via email that he was "slated to meet with Town officials early this week to review" the quarry issue. Ex. 52 at 1. Similarly, Joe Zullo told Alter he intended to meet with Maturo in early May to discuss the issues that had arisen with the quarry and its legal status, though, at trial, he could not recall if that meeting actually took place. 2/9/23 Tr. at 1452:20-1453:6.

In addition, on May 2, 2017, Soto emailed Joe and Al Zullo, asking to meet to "go over what actions we took, the appeals, and what steps to take next." Ex. 42 at 10. Soto explained that he was asking Joe and Al Zullo for advice about what should happen next. 2/6/23 Tr. at 1030:2-6. Soto did not recall meeting with them following this email, but he believed he spoke with them. 2/6/23 Tr. at 1031:7-15. Thus, the Court infers that there was some sort of conferral about the quarry between at least Maturo, Joe Zullo, and Soto in early May, before the Code Enforcement Committee meeting on May 9, 2017, discussed below.

d. May 8, 2017: Soto's Site Visit

Soto testified that, on May 8, 2017, he viewed the property from a nearby "rock outcropping" and saw a drill and other equipment indicating that the quarry operators were preparing to blast. 2/6/23 Tr. at 1033:23-24, 1034:18-22. This site visit was prompted by calls to the zoning office reporting that drilling equipment was being set up. 2/6/23 Tr. at 1032:20-23.

At trial, Soto agreed that the first and second cease-and-desist orders did not direct

the quarry operators to cease the quarry operation itself, 2/6/23 Tr. at 1036:7-11, and he admitted that he did not think there was "a blasting safety issue," 2/6/23 Tr. at 1035:25-1036:1. Rather, he testified that he believed that drilling and blasting, which activities he believed were ongoing or imminent at his May 8 visit, were "continuing to violate" the first and second cease-and-desist orders. 2/6/23 Tr. at 1036:1-6. The Court infers that Soto believed the continuation of any drilling or blasting would violate the first and second cease-and-desist orders, even though those orders did not specifically forbid drilling and blasting, because such activities would necessarily disturb the soil on the property, as had the clear-cutting of trees and removal of stumps. See 2/6/23 Tr. at 1035:23-1036:3.

Soto acknowledged that the May 8 site visit was not in his field inspection notes and that such a visit would typically be recorded in those notes. 2/6/23 Tr. at 1032, 3-5, 1032:15-17. The Court notes that Defendants have pointed to nothing in the trial record corroborating Soto's testimony that he visited the quarry on any date after April 25, 2017. Nonetheless, as there was a flurry of activity preceding the issuance of the third cease-and-desist order on May 9, 2017, the Court infers that Soto did visit the property on May 8, 2017. After this site visit, Soto contacted "the Zullos," referring to Joe and Al Zullo, "to make the determination if" stopping the quarry operation was "an appropriate step." 2/7/23 Tr. at 1076:15-18.

e. May 9, 2017: Code Enforcement Committee Meeting

On May 9, 2017, there was a pivotal Code Enforcement Committee meeting attended by, among others, Maturo, Brancati, Nimons, Soto, and Joe Zullo, as well as Al Zullo by phone.³⁹ Ex. 7 at 1; see also 2/6/23 Tr. at 905:25-906:1, 933:18-20; 2/7/23 Tr. at 1088:8-10. Nimons testified that, as he and Soto were walking into the meeting, Soto told Nimons that, in consultation with Joe and Al Zullo, Soto would be issuing another cease-and-desist order to shut down the quarry. 2/6/23 Tr. at 934:12-935:2; 2/7/23 Tr. at 1080:4-12. Although Soto initially testified that he made the decision to issue the third cease-and-desist order shutting down the quarry after his May 8 site visit and before the May 9 Code Enforcement Committee meeting, 2/7/23 Tr. at 1077:1-4, 1077:9-10, he later testified that the decision had not yet been "finalized" or "affirmatively made" prior to that meeting, 2/7/23 Tr. at 1079:12-15, 1123:23-1124:4. At the conclusion of his testimony, in response to the Court's direct question, Soto testified that there was discussion during the meeting "as to whether or not that [shutting down the quarry] was an avenue we needed to proceed with." 2/7/23 Tr. at 1184:17-19. Despite Soto's earlier equivocation on this issue, the Court credits his final statement and, after considering the evidence presented at trial, finds that the decision to shut down the quarry was not made before the May 9 Code Enforcement Committee meeting.

39 Al Zullo testified that he was away from the office between May 3 and May 13, 2017. 2/7/23 Tr. at 1226:12-13.

The minutes from that meeting—which Soto testified were "fairly accurate," 2/7/23 Tr. at 1081:1—begin with a discussion regarding the quarry, under a heading titled with Maturo's name. Ex. 7 at 1. As the notes are a critical piece of evidence, the Court has copied them here as they appear in the exhibit:

Mayor Maturo—

• Barberry Road— a lot of calls are coming into the various offices saying that blasting is going on but there is no blasting going on because no permits have been given and will not be given. Mark Nimons will inform them that they will not be getting any permits and he will also notify the State. Joe Carfora is building a house up there so he is spearheading a group who is meeting tonight at the Foxon Fire House like the group on Russo Ave in the past that was against the quarry up there. Sal Brancati and Council Members will be going to the meeting and explaining there is no way they are getting blasting permits from the Town without a court order allowing them to. Sal Brancati asks about the work that was done there with trees being taken down, berm put in, seeding, soil, fencing, etc. but that was all done to protect us for soil erosion control. Atty. Al Zullo says there is nothing wrong with that. If they do any jackhammering/drilling, do they have to come in for a permit or is it legal to do? Atty. Al Zullo explains that he sent a letter to Chris Soto and Atty. Joe Zullo explaining that they need to reevaluate the fining system because they don't comply with the statute in Connecticut. They have to send a notice of intent to levy a fine with a right for them to appeal and then they have to hold a hearing procedure like they did in the past for inland/wetland fines. This is something they will have to do from now on with zoning fines. Al Zullo explains that they appealed the notice of violation with the Zoning Board of Appeals. Atty. Joe Zullo says there have only been a handful of times where they fined in this fashion, if the Town's approach is to resist the efforts entirely then they will start the process; they don't have a cease/desist for quarry operations they have one for clear-cutting. They will also be prepared to fight against them if they appeal when the Marshal doesn't give them a blasting permit. Kevin White asks if they have contacted the State for a general excavation permit, they may be in violation without that so the letter should also say at this point we are not aware that it was done and require them to show proof. Chris Soto adds that the RWA contacted him and they don't have a general construction permit as of now which they have to get from the State. Al/Joe/Chris will work on a letter the letter will go out and copy the Attorneys on it and DEEP and Sal will bring it to the meeting tonight to show the steps the Town is taking on this project.

Ex. 7 at 1-2. Regarding who said what in this meeting, the Court infers that Maturo likely made the statement that "there is no blasting going on because no permits have been given and will not be given," given that Maturo generally started the Code Enforcement Committee meetings, see 2/7/23 Tr. at 1081:13-14, and given that the heading for this discussion bears his name. See also 2/6/23 Tr. at 935:14-16 (Nimons testifying that Maturo made this statement).

Brancati testified that Maturo made the statement that Joe Carfora was spearheading a group who was meeting that evening "like the group on Russo Ave in the past that was against the quarry up there." 2/6/23 Tr. at 906:7-9. But see 2/8/23 Tr. at 1399:22-25 (Joe Zullo testifying that he could not recall who made this statement). The quarry opposition group's meeting that night is discussed below.

The Court infers that Joe Zullo made the statements that, "if the Town's approach is to resist the efforts entirely then they will start the process," Ex. 7 at 2, that the prior cease-and-desist orders applied only to clear-cutting, not "quarry operations," id., and that "[t]hey [the Town] will also be prepared to fight against them [the quarry operators] if they appeal when the Marshal doesn't give them a blasting

permit," id. Joe Zullo's testimony about whether he made those statements was evasive and legalistic, focusing on how the minutes may reasonably be interpreted rather than how he interpreted the minutes or what he independently recalled about the meeting. See 2/8/23 Tr. at 1418:17-21, 1419:7-16. See also 2/6/23 Tr. at 936:15 (Nimons testifying that he did not recall who made the statement about fighting the appeal); 2/7/23 Tr. at 1089:14-17 (Soto testifying that he did not recall who made the statement about fighting the appeal). But the first two statements are identified as being made by him, and no one else is referenced as saying that the Town would be prepared to "fight" if the quarry appeals the denial of the blasting permit. The inference that Joe Zullo made this statement inference is supported by his active involvement in addressing the quarry issues prior to this meeting, see 2/8/23 Tr. at 1424:22-24, and his role as Town Attorney.

The minutes do not allow the Court to infer anything about who made the following statement: "Al/Joe/Chris will work on a letter and the letter will go out and copy the Attorneys on it and DEEP and Sal [Brancati] will bring it to the meeting to-night to show the steps the Town is taking on this project." Ex. 7 at 2. Joe Zullo could not recall who made this statement. See 2/8/23 Tr. at 1424:11-14. Soto testified, however, that the "letter" referred to what would become the third cease-and-desist order. See 2/7/23 Tr. at 1087:9-12. The Court finds that Al Zullo, Joe Zullo, and Soto were tasked with working together to prepare the third cease-and-desist order.

f. May 9, 2017: Joe Zullo's Phone Call with Alter

That same day, there was a phone call between Joe Zullo, Alter, and Patton.⁴⁰ 1/31/23 Tr. at 209:24-210:4; 2/8/23 Tr. at 1420:14-19, 1421:5-7; 2/9/23 Tr. at 1568:20. According to Alter and Patton, Joe Zullo called Alter while Patton was in Alter's office, and Alter put the call on speakerphone. 1/31/23 Tr. at 210:2-4; 2/9/23 Tr. at 1568:23-24. But see 2/8/23 Tr. at 1421:6-7 (Joe Zullo testifying that there was a phone call, but he could not recall who initiated it). Joe Zullo testified he could not recall what was said during the phone call. 2/8/23 Tr. at 1421:19-20.

40 Defendants objected to the admissibility of testimony regarding this phone call pursuant to Federal Rule of Evidence 408, on similar grounds as their objection to the admissibility of testimony regarding the meeting on March 21, 2017. See 1/31/23 Tr. at 210:9-13. The Court overruled the objection, 1/31/23 Tr. at 210:14, and ultimately found the testimony of the phone call on May 9, 2017, admissible, 2/13/23 Tr. at 1908:8-1912:24, 1917:8-1918:20. See also supra note 26.

According to Patton, Joe Zullo told Alter that Maturo "told the department heads to do what they had to do to shut [the quarry] down." 1/31/23 Tr. at 210:15-17. Similarly, Alter testified that Joe Zullo told him "that the Mayor had directed that the quarry be shut down and that he [Joe Zullo] was to take all steps necessary to accomplish that." 2/9/23 Tr. at 1568:23-1569:1. Alter further testified that Joe Zullo informed him that Nimons would not issue any more blasting permits and that another cease-and-desist order would be served. 2/9/23 Tr. at 1569:1-3. See also 1/31/23 Tr. at 210:21-211:9 (Patton testifying that, around May 9 or 10, 2017, he learned from FRR's blaster that Nimons was going to deny the blaster's permit).

The Court finds that the phone call happened as described by Patton and Alter, as Joe Zullo offered no contrary narrative. The Court limits the weight afforded to the statements made by Joe Zullo during the phone call, however, recognizing Patton's

and Alter's strong incentive to testify the way they did about Joe Zullo's remarks.

g. May 9, 2017: The Third Cease-and-Desist Order

As contemplated in the minutes from the Code Enforcement Committee meeting on May 9, 2017, Soto worked with Joe and Al Zullo to draft the third cease-and-desist letter. 2/7/23 Tr. at 1087:15-18. Specifically, at 2:02 p.m. on May 9, 2017, Soto sent a draft of the third cease-and-desist order to Al and Joe Zullo. Ex. 42 at 11. The third cease-and-desist order was delivered by a State Marshal that afternoon. 1/31/23 Tr. at 295:13-14.

Two identical copies of the cease-and-desist order were issued, one addressed to Hartin, care of FRR, and the second addressed to Temkin, care of One Barberry. Ex. 17 at 1-2. The order stated: "Please be advised that after an inspection on May 8, 2017, it has been found that your property is in violation of the Town's Zoning Regulations. It was observed that a quarry operation has been established and is in violation of" Section 31 of the Town's zoning regulations. Id. at 1. The order clarified that it was "issued in addition to" the first and second cease-and-desist orders, and that Plaintiffs were "still considered to be in continued violation of" the first and second cease-and-desist orders as well. Id. Like the first and second cease-and-desist orders, the third one instructed Plaintiffs to seek a special exception permit pursuant to Section 31 of the Town's zoning regulations. Id. The third cease-and-desist order further instructed Plaintiffs to implement "proper sediment and erosion control measures around the perimeter of the site" and have them approved by White. Id. at 2.

The third cease-and-desist order stated that "all operations must cease immediately" and that failure to do so could result in "assessment of fines and/or criminal penalties" under the Town's zoning regulations and Connecticut General Statutes § 8-12. Ex. 17 at 2 (emphasis in original). This was the first cease-and-desist order to reference criminal penalties. See 2/6/23 Tr. at 1042:18-20.⁴¹ The third cease-and-desist order was signed by Soto and copied to White, Joe Zullo, Nimons, and the Town's Fire Chief. Ex. 17 at 2.

41 Soto testified that, at some point following a discussion with the State Attorney's Office, the zoning office began adding the reference to criminal penalties into its "standard" cease-and-desist order language, but he could not recall when that discussion took place. 2/6/23 Tr. at 1042:23-1043:21.

At trial, Soto testified about his understanding of the legality of this cease-and-desist order. By the April 25 inspection, he had read and understood Biancur's 2014 decision, but he disagreed with the conclusion Biancur reached that the quarry was a nonconforming use. 2/6/23 Tr. at 1026:23-1027:11; see also 2/7/23 Tr. at 1101:20-22. In preparing the third cease-and-desist order, he relied on Joe and Al Zullo's determination that, notwithstanding Biancur's 2014 decision, the Town had the legal authority to issue the order. 2/6/23 Tr. at 1027:12-16, 1028:2-10; 2/7/23 Tr. at 1101:10-11, 1124:9-13. See also 2/7/23 Tr. at 1222:9-15 (Al Zullo testifying that, when Soto had a question and "wanted to make sure he [Soto] dotted his i's and crossed his t's," Al Zullo would advise Soto); 2/8/23 Tr. at 1382:16-17 (Joe Zullo testifying that, when Soto asked for "input," he would "do the best [he] could to provide" that input). Critically, Soto did not himself analyze Section 31 of the Town's zoning regulations to determine if a quarry could satisfy the requirements of that provision. 2/6/23 Tr. at 1026:4-11.

Patton never applied for a special exception permit or a variance because he believed

that the Town could not legally issue a permit or variance, as discussed further below. 2/2/23 Tr. at 548:13-25. Following issuance of the third cease-and-desist order, Patton felt "panicked" and "extremely mad" about the financial ramifications of closing the quarry. 1/31/23 Tr. at 298:8-16. He testified that FRR stopped crushing, blasting, and moving "any raw material" after receiving the third cease-and-desist order.⁴² 1/31/23 Tr. at 224:3-4. He also prepared to decommission the quarrying equipment for sale, in recognition that, due to the closure of the quarry, he would not have sufficient income to pay the debts on it. 1/31/23 Tr. at 224:5-17. Soto believed FRR continued quarrying after the issuance of the third cease-and-desist order, but did not believe that it blasted after that order. 2/7/23 Tr. at 1167:3-4.

42 Patton testified that, immediately after issuance of the third cease-and-desist order, he went to Nimons' office and asked Nimons to give FRR's blaster a blasting permit because they had "a right to operate the quarry," but the blaster did not submit an application for a blasting permit after May 9, 2017. 2/2/23 Tr. at 540:18-20, 540:24-541:4.

h. May 9, 2017: Quarry Opposition Group Meeting

There were two meetings of Carfora's quarry opposition group at the Foxon Firehouse, each lasting about an hour and attended by approximately fifty people. 2/6/23 Tr. at 879:25-880:10. The purpose of the meetings was to gather information and make the area residents "aware of what was going on." 2/6/23 Tr. at 880:13-14. At least one of the meetings was around May 9, 2017, as referenced in the Code Enforcement Committee meeting minutes. 2/6/23 Tr. at 881:13-16.

Sand, Joe Zullo, and Brancati attended this meeting. 2/6/23 Tr. at 857:2-6, 883:2, 883:25-884:1, 915:10-12; 2/8/23 Tr. at 1422:5-7. Carfora did not invite Joe Zullo and Brancati to the meeting and was surprised to see them there. 2/6/23 Tr. at 883:22-884:1. Joe Zullo and Brancati testified consistently that their purpose in attending the meeting was to "hear what the neighbors had to say," 2/6/23 Tr. at 915:20, and to become "aware of sentiment," 2/8/23 Tr. at 1423:3-6, but that Maturo did not ask them to go to the meeting, 2/6/23 Tr. at 915:6-9; 2/8/23 Tr. at 1422:8-9. Brancati may have spoken at the meeting. Compare 2/6/23 Tr. at 883:2-14 (Carfora testifying that Brancati spoke), with 2/6/23 Tr. at 915:12-13 (Brancati testifying that he did not speak).

i. The Court's Findings of Who, When, and Why

Upon consideration of the foregoing evidence, the Court finds that the final decision to shut down the quarry by way of the third cease-and-desist order was made at the Code Enforcement Committee on May 9, 2017, by Maturo in collaboration with Soto, with Joe Zullo acting as the intermediary.

To begin, it is clear from Soto's testimony regarding his May 8, 2017, site visit that he wanted to shut down the quarry following this visit. Upon seeing what he claimed was equipment preparing to blast and drill into the property, Soto believed that such activities—though not expressly prohibited by the first and second cease-and-desist orders—continued to violate the first and second cease-and-desist orders because they would result in further disturbance of the soil. See 2/7/23 Tr. at 1177:15-16 (Soto testifying that his concern was "the effects of the blasting in the general area"), 1179:2-5 (testifying that he believed the quarry operators were "continuing to violate" the prior cease-and-desist orders by preparing to blast and drill), 1185:1-3 (testifying that he believed drilling "was a continued violation of the same section" of the Town's zoning regulations). In addition, it is clear to the Court that

Soto wanted to disregard Biancur's 2014 decision because of his strong disagreement with Biancur's conclusion that the quarry was a nonconforming use. See 2/7/23 Tr. at 1185:3-5.

Furthermore, the Court finds that Soto did not consider the legal issues presented by potentially shutting down the quarry, namely, whether the Town could legally order the shutdown despite Biancur's 2014 decision, and whether a special exception permit under Section 31 of the Town's zoning regulations was a legally viable avenue for either the quarry operators or the Town. Rather, Soto deferred to Joe Zullo's and Al Zullo's opinions that he could legally issue the third cease-and-desist order, and, at trial, he did not have much familiarity with the legal analyses involved in those issues. See 2/7/23 Tr. at 1124:9-13 ("I thought that upon consulting with the Zullos and being told that, yeah, I could issue the letter, that, yes, I could issue the letter and I guess not be bound by [Biancur's 2014 decision] at that point."). In other words, Soto made the decision to issue the third cease-and-desist order in consultation with Joe and Al Zullo because they—not he—assessed Soto's legal authority to do so. And that decision was not made until the May 9, 2017, Code Enforcement Committee meeting.

In turn, Joe Zullo was concerned with more than only the legal issues presented by the potential shutdown of the quarry. The Court finds that Joe Zullo was also concerned with apprising Maturo of the situation and effectuating his desires, given that Joe Zullo was Maturo's campaign manager, subordinate employee, and friend. For example, Joe Zullo's statement during the meeting on March 21, 2017— that he agreed with the quarry operators' position but needed to convey that viewpoint to Maturo when Maturo was in the right frame of mind—strongly suggests that Joe Zullo's role in the quarry discussions was not limited to assessing the legality of Soto's proposed action, but, rather, included updating Maturo at a time when Maturo would be receptive to the information. This statement further suggests that, although the issues on which Soto deferred to Joe Zullo were primarily legal, Joe Zullo's support or opposition of Soto's actions was subject to Maturo's feelings on those issues which were, in turn, driven by political motivations. Moreover, Joe Zullo's email to Branse, in which he stated that he "was slated to meet with Town officials" to "review" the issue of the quarry's legal status, suggests that Joe Zullo consulted with others, likely including Maturo as the most senior Town official, in rendering his legal opinion to Soto. Finally, Joe Zullo's statement during the May 9, 2017, Code Enforcement Committee meeting that, "if the Town's approach is to resist the efforts entirely then they will start the process," see Ex. 7 at 2, could be read to refer only to the issuance of fines; but, given the context, the Court finds that Joe Zullo effectively said, if Maturo wanted to shut down the quarry (i.e., resist the quarry's efforts to operate "entirely"), "they"—in this context, Soto and Joe Zullo, with assistance from Al Zullo— would take the steps to do so.

In addition, the Court finds that, by May 9, 2017, Maturo wanted to shut down the quarry and gave Soto the proverbial green light to proceed with issuing the third cease-and-desist order. Although Soto wanted to issue the third cease-and-desist order by May 8, 2017, there was a brief discussion at the beginning of the May 9 Code Enforcement Committee meeting about whether he should proceed with issuing that order, and he did not begin drafting the order until after that meeting. See 2/7/23 Tr. at 1184:16-19. Thus, the Court finds that the final decision to issue the order was made at that meeting. According to the meeting minutes, Maturo

started the discussion about the subject quarry by stating that no further blasting permits would be given, see Ex. 7 at 1; by making this statement, Maturo was, in effect, making the decision for Soto to proceed with issuing the third cease-and-desist order. This inference is supported by the fact that the remainder of the minutes from that meeting refer to enforcement issues and details to be included in the order—not whether it should, or legally could, be issued.

In addition, Maturo's reference to the Russo Avenue quarry demonstrates that he had the motivation to shut down the quarry, at least in part, due to the temporal proximity between the community opposition to the subject quarry and the upcoming 2017 mayoral election. The circumstances of the Russo Avenue quarry and the subject quarry are not factually analogous.⁴³ As such, Maturo's reference to the Russo Avenue quarry appears triggered by the only similarity the Court can find between those two quarries: the fact that community opposition groups formed in close temporal proximity to mayoral elections. While Carfora was not a candidate in the 2017 mayoral election, the Court infers that he was a burgeoning political adversary of Maturo, given that Carfora was a member of the political party opposite from Maturo, he was assuming a leadership role in the community around the relevant time, and he ultimately prevailed in the 2019 mayoral election. See also supra note 37. The Court finds that Maturo wanted to shut down the subject quarry, at least in part, because he wanted to avoid losing the 2017 election on account of community opposition to a quarry, like he believed he had in 2007.

43 For example, the Russo Avenue property was not claimed to contain an historical quarry operation, and the developer operated that quarry by way of deception; by contrast, the subject property had been claimed to contain an historical quarry operation since at least 2013, and numerous Town officials had known there was a quarry on the subject property well before 2017. In addition, the types of complaints lodged about the Russo Avenue quarry regarding traffic, noise, and dust, are different than the complaints of clear-cutting and falling rocks.

Moreover, the record demonstrates that Maturo had taken an interest in issues involving Plaintiffs' quarry. His involvement in delaying blasting permits, especially in the leadup to the 2015 election, is an example of Maturo influencing the actions of other Town officials with respect to the quarry. In addition, his direction to Brancati to investigate Carfora's second complaint, and Brancati's subsequent involvement in Soto's actions and in the meeting that evening at the Foxon Firehouse to show "the steps the Town [wa]s taking on this project," Ex. 7 at 2, suggest that Maturo wanted to respond, both directly and through his right-hand man, to Carfora's complaint and participate in the decisions that would be made regarding zoning enforcement of the quarry. See also 2/6/23 Tr. at 897:8-10 (Brancati agreeing that Maturo was a "hands-on mayor" because he "wanted to know what was going on," was "very much involved" and generally "had the final decision on most everything that went on in the town").

In sum, the Court finds that Soto wanted to issue the third cease-and-desist order and was waiting for approval from Al and Joe Zullo; in turn, Joe Zullo was consulting with Maturo, who was cognizant of the quarry opposition group and wanted the quarry to shut down because of it. The alignment of Soto's desire to shut down the quarry, Maturo's desire to shut down the quarry, the Zullos' opinion on the legality of shutting down the quarry, and Joe Zullo's effectuation of Maturo's desire to shut down the quarry, led to the issuance of the third cease-and-desist order. G. Zoning Board of Appeal Proceedings

The next salient events were the ZBA's hearings concerning Plaintiffs' appeals of the three cease-and-desist orders, which occurred over the course of five days. On July 13, 2017, Plaintiffs, represented by Alter, made their initial presentation and submitted documents. Ex. 59, Hr'g Tr. at 3:23-4:6; see generally Ex. 81. On August 3, 2017, Soto made his presentation and submitted documents. Ex. 60, Hr'g Tr. at 13;⁴⁴ see generally Ex. 500. Soto was represented by John Conway, a civil litigator who had represented zoning enforcement officers accused of bad faith tactics. Ex. 60, Hr'g Tr. at 20; see also 2/7/23 Tr. at 1158:15-1159:1 (Soto testifying that the Town generally sought outside counsel for appeals that were not "mundane"). On August 10, 2017, Plaintiffs made a rebuttal case and a second submission of documents, Ex. 61, Hr'g Tr. at 11:23-12:5; Ex. 82, and then Soto made his own rebuttal case, Ex. 61, Hr'g Tr. at 102:15-16. Various members of the public commented throughout those three days, and the public comment portion of the hearing concluded at the end of August 10, 2017. Ex. 61, Hr'g Tr. at 141:17-18.

44 The transcript of the hearing on August 3, 2017, is the only one in which the lines are not individually numbered.

On August 17, 2017, Al Zullo, acting as advisor to the ZBA, solicited questions from the ZBA's members. Ex. 527, Hr'g Tr. at 3:6-7. On September 21, 2017, Al Zullo submitted two documents to the ZBA, which he read into the record: first, his responses to the questions the members had asked, Ex. 41 at 1-4, and second, a legal staff report he prepared regarding the law and the parties' arguments, id. at 5-20. See also Ex. 62, Hr'g Tr. at 3:5-30:5. That same day, after brief deliberations, the ZBA unanimously voted to deny Plaintiffs' appeals. Ex. 62, Hr'g Tr. at 39:19-40:3.

Having reviewed the entire record of the administrative proceeding, the Court will summarize the relevant issues and articulate its findings of fact as to the ZBA's decision.

1. Al Zullo's Conflict of Interest

First, a question arose as to whether Al Zullo had a conflict of interest in advising the ZBA. Al Zullo, in his capacity as Assistant Town Attorney for land use matters, was responsible for representing and advising the ZBA and the Planning & Zoning Commission. 2/7/23 Tr. at 1207:5-11. He saw his role as "mak[ing] sure they followed their own rules in terms of procedure" and "stress[ing] the need for them to put their reasons on the record" in anticipation of an appeal to state court. 2/7/23 Tr. at 1207:23-1208:3.

During the second day of the hearing on August 3, 2017, Alter asked the ZBA, through a memorandum, to recuse Al Zullo because it was a conflict of interest for Al Zullo to advise the ZBA. Ex. 60, Hr'g Tr. at 5; Ex. 54. Alter informed the ZBA that Joe Zullo—who, as noted above, was an attorney in his father's law firm, 2/8/23 Tr. at 1353:13-14—was "involved" in the present litigation, which had already begun. Ex. 60, Hr'g Tr. at 5. See Civ. No. 3:17-cv-985 (SVN), ECF No. 1; Civ. No. 3:17-cv-1392 (WWE), ECF No. 1. Joe Zullo had issued a public statement characterizing Plaintiffs as "bullies." Ex. 60, Hr'g Tr. at 5-6; Ex. 54 at 1 (Alter quoting Joe Zullo's statement). Alter argued that this presented a conflict of interest under Connecticut Rule of Professional Conduct 1.7 and requested the ZBA to recuse Al Zullo.⁴⁵ Ex. 54 at 3; Ex. 60, Hr'g Tr. at 8. Alter told the ZBA that he brought the conflict of interest issue to Al Zullo's attention before that hearing day. Ex. 60, Hr'g Tr. at 6; Ex. 54 at 1. In response, Al Zullo consulted Attorney Larry Sgrignari, "the attorney for the grievance committee for the District of Hartford," Ex. 60, Hr'g Tr. at 10, who apparently agreed with Al Zullo that there was no conflict. Ex. 54 at 2; Ex. 60, Hr'g Tr. at 7. Alter told the ZBA, in turn, that Sgrignari was Maturo's "personal attorney," having represented him in previous litigation. Ex. 60, Hr'g Tr. at 7. Indeed, the docket in the present action demonstrates that Sgrignari appeared on behalf of Maturo and Milici in the present action on June 16, 2017, ECF No. 9, and withdrew in 2019, ECF No. 63. Thus, when Al Zullo consulted Sgrignari about the ethics of advising the ZBA in Plaintiffs' appeal, Sgrignari owed a duty of loyalty to Maturo with respect to the present litigation —which concerns the same events as the Plaintiffs' appeal to the ZBA. When testifying in the present action, Al Zullo said that he believed Sgrignari's duty to Maturo at the time was "irrelevant." 2/7/23 Tr. at 1215:19.

45 Connecticut Rule of Professional Conduct 1.7(a) provides that "a lawyer shall not represent a client if the representation involves a concurrent conflict of interest," which exists when (1) "the representation of one client will be directly adverse to another client," or (2) "there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a person interest of the lawyer." Conn. R. of Prof. Conduct 1.7(a). In his memo to the ZBA, Alter quoted the Comment on this Rule, which provided: "Even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer's ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer's other responsibilities or interests." Ex. 54 at 3 (quoting Comment, Conn. R. of Prof. Conduct 1.7).

Al Zullo told the ZBA that there was no reason to recuse himself. Ex. 60, Hr'g Tr. at 10; see also 2/7/23 Tr. at 1217:20-22. He noted that he had previously recused himself when his own clients came before the ZBA, and he stated that his firm did not represent any of the parties in the pending litigation. Ex. 60, Hr'g Tr. at 10. Al Zullo told the ZBA: "In fact, I had no involvement in the quarry file until the day before the last meeting [July 13, 2017]." Ex. 60, Hr'g Tr. at 10-11. He said that he found it "particularly offensive" for Alter to raise this request at what he felt was a late hour and asked the ZBA to deny it. Ex. 60, Hr'g Tr. at 11. Specifically, he said:

I would ask that the Board deny Mr. Alter, the attorney for the applicant's motion. I believe it's frivolous. I think it's just another example of them trying to intimidate this Board. All we heard him say at the last meeting, remember, "illegal, illegal, illegal, illegal." That's his big thing.

Ex. 60, Hr'g Tr. at 11. The Chair recommended denying Alter's request on the ground that "we [the ZBA] need some kind of counsel, and he's [Al Zullo] been with us basically on everything we've ever done here." Ex. 60, Hr'g Tr. at 12. The ZBA then unanimously voted to deny Alter's request to recuse Al Zullo. Ex. 60, Hr'g Tr. at 13.

On August 3, 2017, Alter reiterated his "concern" about Al Zullo's role in advising the ZBA and contradicted Al Zullo's statement that he had no involvement with the quarry until the day before the hearing began. Ex. 61, Hr'g Tr. at 85:9-12, 19-21. Alter pointed to the minutes from the Code Enforcement Committee meeting from May 9, 2017, which Soto had submitted as part of his documentary evidence at the prior hearing. Ex. 61, Hr'g Tr. at 85:23-86:7; Ex. 500 at 183. Specifically, Alter pointed to the portions of the minutes demonstrating Al Zullo's involvement in drafting the third cease-and-desist order and argued that it was "difficult" to "understand

how a person who was involved in a drafting of the cease-and-desist order can now advise a body sitting de novo as a judicial body" to determine the propriety of that order. Ex. 61, Hr'g Tr. at 86:8-23, 87:14-20 (italicization added).⁴⁶

46 Additionally, the Court observes that Al Zullo was looped into the quarry issues as early as February of 2017, when Joe Zullo copied him on an email to Soto about the first cease-and-desist order. See Ex. 42 at 1; 2/8/23 Tr. at 1382:7-10. This early involvement of Al Zullo was not presented to the ZBA.

Al Zullo responded that he did not participate in drafting the third cease-and-desist order because he was in Florida at the time. Ex. 61, Hr'g Tr. at 125:6-9. He stated that his "involvement" in the quarry issue prior to the ZBA hearing was "next to none," and that he believed there was no conflict in his continued advisement to the ZBA, "[e]specially now that [he] sat through all of the hearings." Ex. 61, Hr'g Tr. at 125:16-24. No member of the ZBA commented about this issue again, and the decision not to recuse Al Zullo was not revisited.

2. Parties' Arguments Regarding Biancur's 2014 Decision

The parties' arguments and submissions on the merits of Plaintiffs' appeal focused on three issues: first, whether Biancur's 2014 decision had any legal effect on Plaintiffs' appeal; second, whether the quarry was a nonconforming use, notwithstanding Biancur's 2014 decision; and third, whether the quarry operators could apply for a Section 31 permit as instructed by the cease-and-desist orders.

Plaintiffs argued that, due to Biancur's 2014 decision, they were not required to obtain a special exception permit under Section 31 of the Town's zoning regulations in order to lawfully operate the quarry. They argued that the Town was bound by Biancur's 2014 decision for two reasons. First, Plaintiffs argued that, as a matter of Connecticut zoning law, the decision became final when the appeal period expired, and, as a result, there was no mechanism for the ZBA to undo it. See, e.g., Ex. 59, Hr'g Tr. at 9-13; Ex. 61, Hr'g Tr. at 14-15. Second, Plaintiffs argued that, under the doctrine of municipal estoppel, the decision had binding legal effect because Plaintiffs invested heavily in the property in reliance on that decision and the other representations of Town officials that the quarry could operate legally. Ex. 59, Hr'g Tr. at 26:16-24; Ex. 61, Hr'g Tr. at 66:16-67:7.

Plaintiffs focused heavily on the first argument. In his opening statement, Alter told the ZBA:

What you will hear is that the Board is bound, bound by the prior ruling that this quarry is a legally existing non-conforming use and entitled to all the vested rights and legal protections that such status provides. This decision is not subject to dispute or review, it is the legal fact that binds the Town of East Haven.

Ex. 59, Hr'g Tr. at 11:14-20. In support of this position, Plaintiffs submitted, among other documents: Alter's brief summarizing his arguments, Ex. 81 at 1-9; Biancur's 2014 decision, id. at 11; George Mingione's affidavit, id. at 24; Milici's memo to Brancati regarding his understanding of the legal status of the quarry, id. at 27; and the legal opinions of three attorneys specializing in Connecticut land use issues.

The experts' opinions may be summarized as follows. First, Judge Robert A. Fuller addressed the ZBA⁴⁷ and submitted two legal opinions, one in Plaintiffs' initial presentation and one in rebuttal. Ex. 59, Hr'g Tr. at 27:18-21; Ex. 81 at 79-83; Ex. 82 at 35-36. A retired Connecticut Superior Court judge, he served as a town attorney

47 None of the individuals who addressed the ZBA were testifying under oath.

for several towns, and has written a treatise on Connecticut land use law. Ex. 59, Hr'g Tr. at 10:23-11:7; Ex. 81 at 91. He opined that Biancur's 2014 decision was a "final decision on the status of the use of the property," and, as a final decision, it could not be challenged by the ZBA. Ex. 81 at 79; accord Ex. 59, Hr'g Tr. at 28:10-22.

Second, Timothy Hollister addressed the ZBA and submitted a legal opinion along with Plaintiffs' initial presentation. Ex. 59, Hr'g Tr. at 34:14-16; Ex. 81 at 93-99. He was, at the time, an attorney at Shipman & Goodwin LLP, and he had been a land use lawyer for thirty-five years with "extensive experience with quarries and earth products operations." Ex. 59, Hr'g Tr. at 34:16-22; Ex. 81 at 93. He told the ZBA: "This is not a judgment call. This is as clear as day to anyone who has practiced land use law in the state of Connecticut." Ex. 59, Hr'g Tr. at 35:22-24. He explained that Biancur's 2014 decision was "the guiding law in this situation because it was duly issued by the Zoning Enforcement Officer and published and not appealed," regardless of "whatever anybody may now think of [whether] [it] was made on a factual basis." Ex. 59, Hr'g Tr. at 39:16-22.⁴⁸

48 Judge Fuller and Hollister also opined that, under what Judge Fuller called the "natural expansion diminishing asset concept," and what Hollister called the "baby elephant doctrine," Plaintiffs were allowed to expand their quarrying use into portions of the property that had not previously been quarried, such as the area where Plaintiffs clear-cut the trees in February of 2017. Ex. 59, Hr'g Tr. at 30:23-31:2; id. at 36:17-37:5 (Hollister explaining that, once the property owner "establishes on a piece of property a baby elephant, it has to be expected that it's going to grow into a big elephant, that's the nature of a quarry").

Third, Branse submitted a legal opinion as part of Plaintiffs' rebuttal, detailing his involvement in this matter prior to What TF's conveyance of the quarry to One Barberry. Ex. 82 at 14. He opined that Biancur's 2014 decision was "final and beyond appeal," and that the ZBA "lack[ed] the jurisdiction to overturn" it. Id. at 15-16.

In response, Conway argued, on Soto's behalf:

[I]f you as a Board find that Mr. Biancur's letter, which is what [Plaintiffs] based their estoppel claim [on], was not issued in good faith or was not issued in the scope of his authority based on the facts that are submitted into the record, then you, as a Board, can determine that they are not entitled to invoke the doctrine in support of the estoppel.

Ex. 60, Hr'g Tr. at 52. Although Conway made this argument with respect to the municipal estoppel issue, he made no other argument that the ZBA could disregard Biancur's 2014 decision as a matter of Connecticut zoning law. And while Conway cited one case for this argument in the municipal estoppel context, Ex. 60, Hr'g Tr. at 52, he cited no law in support of his argument that the ZBA could disregard Biancur's 2014 decision, if the decision was not issued in good faith.

Conway urged the ZBA to find that Biancur's 2014 decision was not issued in good faith by pointing to Biancur's 2015 guilty plea and conviction for mail fraud in violation of federal law.⁴⁹ Ex. 60, Hr'g Tr. at 53. Specifically, Conway explained that Soto was hired that year to replace Biancur after Biancur was arrested for mail fraud and theft of honest services, Ex. 60, Hr'g Tr. at 14, 23, and Conway submitted his conviction and the criminal complaint

49 Conway argued that there was further evidence that Biancur did not issue the 2014 decision in good faith because the decision contradicted his own 2013 letter to Nicholas Mingione, which was submitted to the ZBA. Ex. 60, Hr'g Tr. at 53; Ex. 500 at 27.

against him to the ZBA, Ex. 500 at 1, 13. According to the affidavit of a special agent supporting the criminal complaint, Biancur was believed to have extorted one victim several times between 2012 and 2015, demanding money from the victim in exchange for favorable treatment in his capacity as the Town's ZEO. Ex. 500 at 15-20. Conway acknowledged that the conduct for which Biancur was convicted "had nothing to do with" Plaintiffs or the subject quarry, but argued that his conviction was "circumstantial evidence as to whether Mr. Biancur acted in good faith in connection with his services." Ex. 60, Hr'g Tr. at 53.

Relatedly, during the public comment period, Carfora's attorney addressed the ZBA and argued that because Biancur's 2014 decision was issued without a public notice or comment period, the decision was beyond his statutory authority. Ex. 60, Hr'g Tr. at 70-72. The attorney questioned "what motivated Mr. Biancur to take this action on behalf of the property owner," and speculated that "anything that Mr. Biancur has his fingerprints on may be tainted by his admissions, his guilty plea that this behavior was taking place in the town." Ex. 60, Hr'g Tr. at 73. The attorney also submitted an article from the New Haven Register about Biancur's conviction and sentence, and the article reported that Biancur admitted to extorting at least five individuals. Ex. 500 at 29-31, 93-95.

On rebuttal, Plaintiffs argued that the ZBA could not base its decision on "innuendo" suggesting that "there was something improper" about Biancur's 2014 decision, and cited a case in which a Connecticut court overturned a zoning board of appeal's decision based on suspicion and innuendo. Ex. 61, Hr'g Tr. at 75:4-20, 76:9-13. See also Ex. 81 at 4.

In addition, although not raised by any of the parties, the lack of a triggering event for Biancur's 2014 decision was discussed at the ZBA hearing. During Conway's presentation on Soto's behalf, Al Zullo asked Soto what the process was to obtain a zoning determination, and Soto explained that, typically, he would receive a written request regarding the use and collect a $20.00 fee before issuing an opinion. Ex. 60, Hr'g Tr. at 68. When Al Zullo asked Soto if a fee was collected from the quarry in connection with Biancur's 2014 decision, Soto said he did not know. Ex. 60, Hr'g Tr. at 68. Later, however, the Chair of the ZBA stated that there was "no fee for a zoning determination." Ex. 61, Hr'g Tr. at 117:22-24.

3. Parties' Arguments Regarding Nonconforming Use

Although Plaintiffs made no argument about the longevity of the quarry's operation —instead relying on their argument about the legal effect of Biancur's 2014 decision—other evidence and arguments were presented to the ZBA regarding whether the quarry operation in fact predated the Town's zoning regulations. Conway argued that Plaintiffs bore the burden of showing that the quarry operation predated the enactment of the Town's zoning regulations and that it was within the ZBA's power to find that Plaintiffs failed to meet that burden. Ex. 60, Hr'g Tr. at 48, 51.

Soto told the ZBA that, in effect, he strongly disagreed with Biancur's finding that the quarry was a nonconforming use. Ex. 60, Hr'g Tr. at 50. Conway and Soto explained that the Town had regulations dating back to 1936 regarding the removal of sand and gravel, and that the enactment in 1955 was materially similar to the regulations that were operative in 2017. Ex. 60, Hr'g Tr. at 48, 50. In the Court's review of the hearing transcript, it appears that Soto showed the ZBA photos of the subject property from 1934 and 1965, and stated that, according to the photos, there was no

quarry on the property at those times. Ex. 60, Hr'g Tr. at 49-50.⁵⁰ Thus, Soto opined, "it would be categorically untrue to say that [Plaintiffs'] quarry pre-dates any of [the Town's] zoning regulations." Ex. 60, Hr'g Tr. at 50.

50 No such photos were submitted to this Court, as part of the zoning record or otherwise.

The ZBA also heard public comments from residents of North Branford who were familiar with the property when it was owned by the Spezzano family. Two people who had worked on Spezzano's farm in the 1970s told the ZBA that there was no quarry operating on the property at that time. Ex. 60, Hr'g Tr. at 84; Ex. 61, Hr'g Tr. at 10:8-16. One woman told the ZBA that she lived near the quarry her entire life and was familiar with the property because her grandfather was a friend of Spezzano's grandfather, and, to her knowledge, there was not a quarry on the property until blasting began in the early 2000s. Ex. 61, Hr'g Tr. at 119:9-25, 121:4-12.

In addition, one man criticized Alter's argument that Biancur's 2014 decision was binding on the ZBA. He said that Biancur's 2014 decision was "emasculating" the ZBA and the Town. Ex. 61, Hr'g Tr. at 116:17-23.

4. Parties' Arguments Regarding Section 31

The parties also argued about whether the quarry operators could apply for a Section 31 permit as instructed by the cease-and-desist orders. The following provisions of the Town's zoning regulations are relevant to these arguments. See Ex. 96 at 125, Zoning Regs. Art. III. The purpose of Article III, Section 31 is to regulate any "earth-moving or land clearing activity," such as "excavation of earth materials," "blasting," and "clear-cutting," in order to minimize "surface runoff of rainfall," prevent "safety hazards" and "cliffs," and preserve "natural vegetative cover essential to maintenance of soil stability, micro-climate moderation and property values." Ex. 96 at 125, Zoning Regs. § 31.2. Section 31.1 provides, in relevant part, that "there shall be no excavation, grading or removal of topsoil ... gravel, stone or other natural material; or slashing of trees, or filling of land by blasting ... except as authorized ... under a temporary special exception, granted by the [Planning & Zoning Commission] under the provisions of this Section." Ex. 96 at 125, Zoning Regs. § 31.1 (italicization in original).

Section 31.5 sets forth the standards and conditions that must be met before the Planning & Zoning Commission ("PZC") can grant a temporary special exception permit, which effectively limit the PZC's authority to grant such a permit. See Ex. 96 at 129, Zoning Regs. § 31.5. For example, Section 31.5.3.5 provides that there must not be any "excavation, grading or removal below an elevation of three [3] feet above any ledge." Ex. 96 at 130, Zoning Regs. § 31.5.3.5. In addition, Section 31.5.13 provides that the PZC can "adjust or modify or delete any standards or conditions set forth above if, in its sole judgment, such adjustment, modification and/or deletion is necessary to maintain the purpose of this Section." Ex. 96 at 133, Zoning Regs. § 31.5.13.

Plaintiffs argued that they could not apply for a special exception permit for two reasons: first, because applying for such a permit would waive their claim to a non-conforming use; and second, because the PZC would not be able to issue a permit to the quarry in light of the limits on the PZC's authority, set forth in Section 31.5. First, Alter explained that applying for a special exception permit was a "trap" because, in doing so, Plaintiffs would "waive" their claim to a nonconforming use. Ex. 61, Hr'g Tr. at 18:18-19:2; Ex. 59, Hr'g Tr. at 47:1-5. In support of this argument, Hollister opined that "a vested nonconformity constitutes a right to continue to operate the long-existing use without limitation on that use," and that a municipality attempting to condition a nonconforming use on a special exception permit necessarily infringes on the use in violation of the right to continue the use. Ex. 81 at 97 (emphasis in original). Hollister also explained to the ZBA that, although a municipality could regulate a nonconforming quarry operation in other ways, it could not do so through the special permit regulation "because that would be the opposite of the fact that it is a nonconforming use." Ex. 59, Hr'g Tr. at 37:14-16.

Second, Alter argued that, even if Plaintiffs were to apply for a special exception permit, the PZC could not lawfully issue such a permit because it would be impossible for a quarry to satisfy the criteria set forth in Section 31. Ex. 61, Hr'g Tr. at 19:3-5 ("Section 31 has provisions that we can't possibly meet."), 131:16-18 (same). To support this argument, Alter submitted an annotated copy of Section 31, highlighting the provisions with which the quarry could not possibly comply.⁵¹ Ex. 81 at 107. For example, Alter pointed out that the purposes of Section 31—preventing "sharp declivities" and cliffs, preserving ridge lines, and preserving vegetative cover—could not be adhered to in a quarry operation. Ex. 81 at 107-08. In addition, Alter argued that Section 31 required an applicant to show certain facts regarding the temporary nature of the requested use, which was inconsistent with the longevity of a quarry operation and its right to expand. Ex. 81 at 108; see supra note 48. Importantly, Alter also pointed out that a quarry could not comply with Section 31.5.3.5, which prevents the PZC from granting a permit for any excavation below an elevation of three feet above any ledge, because quarrying necessarily involves removing ledges. Ex. 81 at 109.

51 In this submission, Alter also argued that a quarry is not specifically listed on the schedule of permitted uses, and that it is not similar to the permitted use of "[t]opsoil, sand and gravel removal," meaning that the PZC simply could not grant a special exception permit to a quarry use. Ex. 81 at 107. Consistent with this argument, Judge Fuller opined that, according to the purposes of Section 31, it "is not specifically directed to quarrying, and clearly does not apply to or reference rock crushing." Ex. 81 at 82. Conway countered that the plain language of Section 31 was not as narrow as Plaintiffs argued. Ex. 500 at 192; Ex. 60, Hr'g Tr. at 59-60.

Plaintiffs' legal experts agreed with Alter's assessment of Section 31. Judge Fuller explained to the ZBA that Section 31.5.3.5 could not be used to regulate a quarry because, "by definition," quarrying "occurs below the level of existing ledge," and thus an application for a special exception permit could not be granted to a quarry. Ex. 81 at 83; see also Ex. 59, Hr'g Tr. at 33:15-23. Similarly, Hollister opined that, because "the substantive rules and limits on excavation and processing of earth materials" set forth in Section 31 are "simply incompatible" with a quarry operation, it would "be impossible for the PZC to grant a special exception [permit] that will comply with its written regulations." Ex. 81 at 97. He also explained to the ZBA that "it would simply be impossible for the [PZC] to grant a special permit even if [Plaintiffs] apply for one because the [PZC] could not honor or follow its regulations and grant the permit given the nature of this site." Ex. 59, Hr'g Tr. at 38:16-21. In response, Conway argued that Plaintiffs could seek to modify the conditions of Section 31.5 that they could not comply with pursuant to Section 31.5.13, which allowed the PZC to "adjust or modify or delete any standards or conditions" if such adjustment, modification, or deletion "is necessary to maintain the purpose of this Section." Ex. 500 at 194; see also Ex. 96 at 133, Zoning Regs. § 31.5.13; Ex. 60, Hr'g Tr. at 61-62.

In rebuttal, Alter explained that the Connecticut Appellate Court had struck down a zoning regulation like Section 31.5.13 on the ground that, while a zoning board of appeal can grant discretionary variances, a planning and zoning commission cannot discretionarily modify the standards governing the issuance of special permits. Ex. 61, Hr'g Tr. at 132:4-16. Indeed, Judge Fuller explained that, according to MacKenzie v. Planning & Zoning Commission of Town of Monroe, 146 Conn. App. 406, 428-33, 77 A.3d 904 (2013), a planning and zoning commission "is precluded from varying the zoning regulations on an application-to-application basis," even if the zoning regulations purport to confer such discretion on the commission, "because that authority is not delegated to it by the zoning statutes." Ex. 82 at 34-35; see also Ex. 61, Hr'g Tr. at 22:18-23:7. Similarly, Hollister opined that, if the PZC were to waive the provisions of Section 31 with which Plaintiffs could not comply, "it would run afoul of MacKenzie, which, he said, "held that zoning commissions may not alter or waive special permit standards on a case-by-case basis." Ex. 81 at 97; accord Ex. 59, Hr'g Tr. at 38:24-39:3.

5. Parties' Arguments Regarding Safety

a. Rocks Rolling Down the Hill

Though the safety of the quarry operation did not appear to bear directly on the legality of Soto's cease-and-desist orders, disputed issues regarding the safety of the quarry operation were raised in the ZBA hearing. Soto began his presentation to the ZBA by showing several photos and a video of rocks and boulders rolling down the hill on the property, and he described how the rocks left a "scouring trail" down the hill and "indentations on the road." Ex. 60, Hr'g Tr. at 32-33. See also Ex. 500 at 107-08 (Soto's site inspection notes, submitted to the ZBA). Conway described the falling rocks as "an urgent safety situation." Ex. 60, Hr'g Tr. at 33. Soto did not testify in the present action about what trails and indentations he was describing to the ZBA, or even what photos he showed them.⁵²

52 Exhibit 500 constitutes Soto's submission of documentary evidence to the ZBA, and one category of documents contained in that exhibit is inspection photos from May 8, 2017, May 17, 2017, and June 14, 2017. Ex. 500 at 5. Those photos (many of which are duplicates) generally depict a rural, sloped property containing dirt, gravel, trees, brush, industrial equipment, and some large rocks. See generally Ex. 500 at 149-78. The photos do not contain any self-evident rocks presently or previously rolling down the hill of the property, and defense counsel did not examine Soto about these photos at trial. Defense counsel also did not examine Soto about the photos contained at Exhibit 519, and thus the Court cannot make any findings about when those photos were taken, who took them, or whether they were presented to the ZBA. Similarly, although the trial record contains a brief video, seventeen seconds in length, labeled "Exhibit 519 — Video of boulders in the road and falling from property," Soto was not questioned about this exhibit at trial, so the Court can only assume this was the video shown to the ZBA. The Court has reviewed the video, and it decidedly does not depict any boulders in the road or falling from the property; instead, it depicts an excavator moving its arm at the top of a dirt hill. See Ex. 519.

b. Phone Messages

Soto also submitted a copy of the zoning office's phone log, which he claimed documented

the "many" complaints the zoning office had received regarding the quarry. Ex. 500 at 110-18; see also Ex. 60, Hr'g Tr. at 16 (Conway explaining that "many," though "not all," of the complaints produced concerned conduct on the subject property). In rebuttal, Alter explained that Plaintiffs substantively reviewed each of the thirty-five phone messages and identified only eleven as complaints about the quarry. Ex. 61, Hr'g Tr. at 43:5-6, 43:18-24, 45:12-13; see also Ex. 82 at 145-47 (a summary of the phone messages Plaintiffs categorized as complaints related to the quarry). Of those eleven complaints, Alter explained that three or four of them were submitted by Carfora, and two others complained of blasting during a time period when there was no blasting occurring at the quarry. Ex. 61, Hr'g Tr. at 45:12-18. Thus, Alter disputed Conway's characterization that there had been many complaints. Ex. 61, Hr'g Tr. at 46:14-23.

c. Engineering Issues

In addition, there was dispute in the ZBA hearing, and there is dispute between the ZBA hearing record and the trial record here, whether Plaintiffs cooperated with Soto in ensuring the structural integrity of the quarry property. To begin, Soto told the ZBA that he believed the quarry was preparing for blasting, which posed a safety risk. Ex. 60, Hr'g Tr. at 42-43. He contradicted this statement at trial by testifying that he did not think there was "a blasting safety issue." 2/6/23 Tr. at 1035:25-1036:1. In addition, Soto told the ZBA that the construction of the berm was itself a violation of Section 31, and that he had informed Plaintiffs of that. Ex. 60, Hr'g Tr. at 66. Soto did not testify to this effect at trial; to the contrary, his testimony regarding the berm suggested that he and White understood the construction of the berm was Plaintiffs' (inadequate) effort to remediate the safety issues Soto perceived.

Soto also told the ZBA that, although he and White had requested certain engineering plans during their visit to the quarry on April 25, 2017, Plaintiffs had not provided those plans. Ex. 60, Hr'g Tr. at 38. In rebuttal, Alter disputed Soto's statement that Plaintiffs never submitted any engineering plans and explained that they had provided various maps to Joe Zullo in the meeting on March 21, 2017. Ex. 61, Hr'g Tr. at 48:23-49:9. Alter also explained that, promptly after Soto and White visited the quarry on April 25, 2017, Plaintiffs retained Milone & MacBroom to prepare the additional plans Soto and White had requested. Ex. 61, Hr'g Tr. at 50:12-22, 51:15-20; see also Ex. 82 at 158 (Milone & MacBroom's proposal, dated May 3, 2017). Alter submitted the plans, which Milone & MacBroom had completed, to the ZBA. Ex. 61, Hr'g Tr. at 51:21-23; Ex. 82 at 280.

d. DEEP Permit

There was also some discussion during the ZBA hearing about whether Plaintiffs had the proper permits from the Connecticut Department of Energy and Environmental Protection ("DEEP"). On April 18, 2017, Plaintiffs received a letter from DEEP, copied to the Town, stating that quarrying operations had been conducted without a General Permit for the Discharge of Stormwater Associated with Industrial Activities (the "General Permit"). Ex. 516 at 1; 1/31/23 Tr. at 293:15-18. DEEP instructed Plaintiffs to apply for the General Permit by registering the quarry with DEEP and submitting a Stormwater Pollution Prevention Plan. Ex. 516 at 1. Upon receiving this letter, Patton retained Milone & MacBroom to prepare the Stormwater Pollution Prevention Plan. 1/31/23 Tr. at 293:20-21, 311:23-312:10.

At the Code Enforcement Committee meeting on May 9, 2017, White and Soto discussed their understanding that, at that time, Plaintiffs had not received the General

Permit. Ex. 7 at 2. In the third cease-and-desist order, Soto stated that quarrying activities could not resume until after Plaintiffs submitted proof that they had received the General Permit. Ex. 17 at 2.

Soto submitted the letter Plaintiffs received from DEEP to the ZBA. Ex. 500 at 134; Ex. 60, Hr'g Tr. at 44. In rebuttal, Plaintiffs showed that, by the ZBA hearing on August 10, 2017, DEEP had issued the General Permit. Ex. 61, Hr'g Tr. at 53:13-54:2; Ex. 82 at 164, 167, 294.

6. Patton's Final Comments to the ZBA

Near the end of Plaintiffs' rebuttal, Patton addressed the ZBA. Ex. 61, Hr'g Tr. at 88:18-21. Like Alter, Patton argued that the Town's "previous zoning official made a ruling that [the quarry was] grand-fathered," and that, if the Town wanted to regulate the quarry, it was the Town's "responsibility to have regulations that [the quarry] can meet," not the quarry operators' responsibility. Ex. 61, Hr'g Tr. at 88:23-25, 89:4-7. He also detailed the events that led him to believe the shutdown of the quarry was "a politically motivated action." Ex. 61, Hr'g Tr. at 92:25-93:4. Specifically, he told the ZBA about the denial of blasting permits in 2015 ahead of the local election. Ex. 61, Hr'g Tr. at 90:16-91:20. He told the ZBA that Soto admitted that the nonconforming status of the quarry was "out of his hands" but required the quarry operators to apply for a special exception permit anyway. Ex. 61, Hr'g Tr. at 92:15-24.

Importantly, he also brought to the ZBA's attention the Code Enforcement Committee meeting minutes from May 9, 2017, which Soto had submitted but not meaningfully discussed. Ex. 61, Hr'g Tr. at 93:20-25; Ex. 500 at 183-83. Patton told the ZBA that those minutes showed Maturo "forcefully" stating "he was determined to deprive [Plaintiffs] of [their] rights" because of the quarry opposition group spearheaded by Carfora. Ex. 61, Hr'g Tr. at 94:19-95:3. For that reason, he characterized the minutes as "the smoking gun." Ex. 61, Hr'g Tr. at 95:5-6.

Following Patton's remarks, Conway provided a brief rebuttal, and the ZBA opened the floor to public comments.

7. Public Comment

Many individuals addressed the ZBA against the quarry, and no one other than Patton testified in support of it. The majority of the public comments concerned the quality of life of nearby residents, most of whom were residents of North Branford. One man explained that "the heart" of the nearby residents' complaints was that they had "a reasonable expectation to enjoy [their] residential neighborhood," and they felt that expectation was not met due to the quarry operation. Ex. 60, Hr'g Tr. at 78. Several nearby residents explained that there was heavy truck traffic on the roads bordering the quarry and that earth materials would spill from the trucks as they rounded street corners, leaving debris on the roads. Ex. 60, Hr'g Tr. at 76-77. One woman said: "When [the trucks] come down and the way they come around [a sharp corner] all the stuff comes flying out." Ex. 61, Hr'g Tr. at 123:6-11. Another woman said that the roads bordering the quarry were "always just torn up." Ex. 60, Hr'g Tr. at 82. One man did not let his teenage boys ride their bikes on the streets bordering the quarry because they were "not safe." Ex. 60, Hr'g Tr. at 76.

Several nearby residents complained of property issues due to the quarry operation. One woman said that her "house shakes," Ex. 60, Hr'g Tr. at 83, and another woman said that the foundation of her house had been "moving" since the blasting began in 2007, Ex. 61, Hr'g Tr. at 120:9-15. Another woman said that she had replaced two windows in her house

due to materials spilling from the trucks. Ex. 61, Hr'g Tr. at 122:3-6.

One resident presented information obtained from the website of the Mine Safety and Health Administration ("MSHA"). Ex. 60, Hr'g Tr. at 87. Patton explained at trial that MSHA regulates mines and inspects mining equipment and operations two or three times per year. 2/2/23 Tr. at 566:13-14, 567:3-11. In the ZBA hearing, the resident presented the quarry's various safety violations, as found by the MSHA. Ex. 60, Hr'g Tr. at 89. At trial, Patton testified that, in 2016, a MSHA inspector found multiple "substantial and serve violations" at the quarry that could pose risk of potentially fatal injuries; Patton provided the example of a number of electrical panel doors being left open. 2/2/23 Tr. at 568:4-10, 691:3-4, 12-25. Patton acknowledged that it "was a bad, bad inspection," resulting from his business partner, Bakutis, abusing alcohol and cocaine and poorly managing the quarry.⁵³ 2/2/23 Tr. at 691:25-692:6. In Plaintiffs' rebuttal during the ZBA hearing, they submitted documentation showing that no one was injured as a result of the regulatory violations. Ex. 82 at 140; see also 2/2/23 Tr. at 692:9-11.

53 Bakutis' ownership interest in FRR was eventually bought out and his interest was divided between Patton and TG Quarry (the entity composed of Temkin, Hughes, and DiLungo), though Patton did not testify when this occurred. 2/2/23 Tr. at 692:4-5; see supra note 20.

8. Al Zullo's Advice to the ZBA

Following the public comments, and some minimal further presentations by the attorneys, the ZBA closed the public portion of the hearings. Ex. 61, Hr'g Tr. at 143:4-5. On September 21, 2017, the ZBA reconvened, with Al Zullo first providing written responses to questions ZBA members had asked and then providing a "legal staff report" to the ZBA's members. Al Zullo testified at trial that, when advising the ZBA on the relevant law, it was not his job to try to persuade the ZBA to rule one way or another. 2/7/23 Tr. at 1208:19-23. Nevertheless, his analysis of the issues presented to the ZBA was forcefully critical of Plaintiffs' position, raised issues and arguments that none of the parties had raised, and ultimately persuaded the ZBA.

As an initial matter, the Court finds that, after the public comment period closed on August 10, 2017, see Ex. 61, Hr'g Tr. at 141:17-18, Al Zullo and Plaintiffs understood that Plaintiffs could no longer participate in the hearing. See 1/31/23 Tr. at 328:13-17 (Patton testifying that, in his understanding, he could not comment on anything Al Zullo introduced after the close of the public portion of the hearing); 2/8/23 Tr. at 1302:12-16, 1348:19-22 (Al Zullo admitting that Plaintiffs could not speak to the ZBA or respond to his legal staff report after the close of the public portion of the hearing). Indeed, while Al Zullo solicited questions from the ZBA members, one member began to say that he had a question for a party, but Al Zullo cut him off, saying "No, you can't," and the member then posed the question to Al Zullo. Ex. 527, Hr'g Tr. at 4:2-5. Accordingly, the Court finds that Plaintiffs had no meaningful opportunity to respond to any of the issues raised by Al Zullo from this point onward.

With that finding made, the Court considers the two documents Al Zullo submitted to the ZBA: first, written answers to the ZBA members' questions, Ex. 41 at 1-4; and second, a legal staff report Al Zullo prepared regarding the law and the parties' arguments, id. at 5-20. These were read into the record on the final day of the hearing. Ex. 62, Hr'g Tr. at 3:5-30:5.

To begin, one ZBA member asked whether Biancur was "tasked to do his due diligence to verify the validity of the [materials]

he received before he wrote" his 2014 decision. Ex. 41 at 1. Al Zullo's response did not address whether Biancur was required to exercise such diligence, as the question posed; rather, his response strongly insinuated that Biancur did not in fact exercise due diligence. For example, Al Zullo stated that the materials Biancur relied on—specifically, George Mingione's affidavit and the attached letters from customers of Spezzano's quarry—were "conclusory," not under oath, and contained no supporting evidence. Id. ⁵⁴ Al Zullo also stated that, "importantly," Biancur "should have reconciled" George Mingione's affidavit against Joe Zullo's prior memo to the zoning file. Id.

54 Al Zullo testified at trial that he commented on George Mingione's affidavit and the letters attached to it because "the [ZBA] needed to understand that they gave it whatever weight it deserved," 2/8/23 Tr. at 1284:16-18, though he also agreed that it was the ZBA's role to decide what weight to give to the evidence, 2/8/23 Tr. at 1286:16-18.

Another question posed by the ZBA was if it had to decide whether the quarry was a nonconforming use. Id. In response, Al Zullo explained that, generally, "the finding of a non-conforming use is done in conjunction with an application for a variance or for a certificate of zoning compliance," neither of which took place. Id. For that reason, Al Zullo stated that there was no decision or proceeding that "was appealable." Id. Later in that same paragraph, however, Al Zullo said, "the question before this Board is whether [Biancur's 2014 decision] represented an order or finding that was appealable pursuant to the statute which became non-appealable after publication and the expiration of the appeal period." Id. at 1-2. He further explained that, if the ZBA were to find that Biancur's 2014 decision was not appealable under the statute, the ZBA would essentially give no legal effect to Biancur's 2014 decision and proceed to consider whether Plaintiffs had presented substantial evidence that the quarry was a nonconforming use. Id. at 2. Al Zullo did not, however, provide any commentary about what would, or should, occur if the ZBA were to find Biancur's 2014 decision was appealable once it was issued. Thus, in this paragraph, Al Zullo posed the ultimate question to the ZBA and effectively answered it in favor of Soto's actions—that Biancur's 2014 decision was not appealable under the zoning statute and thus had no legal effect.

Al Zullo testified at trial that he tried to model his legal staff report after jury instructions, 2/7 Tr. at 1209:13-16, and that his report was "fair and equal to both sides," 2/8/23 Tr. at 1268:21-22. But the Court finds that several features of the report contradict his testimony about its neutrality. To begin, Al Zullo appears to have mischaracterized the statutory basis of Plaintiffs' argument regarding the legal effect of Biancur's 2014 decision. Al Zullo explained that Plaintiffs' first argument was that Biancur's 2014 decision could not be collaterally challenged pursuant to Connecticut General Statute § 8-3(f). Ex. 41 at 10, 12. According to Al Zullo,⁵⁵ § 8-3(f) provided that no "building permit or certificate of occupancy" could be issued without a certification by a municipal official that the use conforms with the municipality's regulations or "is a valid non-conforming use" under the municipality's regulations. Id. at 10. Al Zullo testified at trial that he believed § 8-3(f) was "very relevant" to the issues presented to the ZBA, 2/8/23 Tr. at 1287:9-10, but he did not explain why he

55 Al Zullo represented that he attached the language of § 8-3(f) for the ZBA's review, Ex. 41 at 10, but the language of that statute was not attached to the copy of his report submitted to this Court.

believed that. Indeed, the Court discerns no reference to § 8-3(f) in Plaintiffs' documentary submissions to the ZBA or the ZBA hearing transcripts. Rather, the notice of Biancur's decision published in the New Haven Register, which was submitted to the ZBA, cited Connecticut General Statute § 8-7 as the basis of the thirty-day appeal period. Ex. 14; Ex. 81 at 13. By mischaracterizing the statutory basis of Plaintiffs' argument, Al Zullo introduced a new legal issue that Plaintiffs did not have an opportunity to address, and it appears he misrepresented the applicable law to the ZBA. After introducing this new issue, Al Zullo urged the ZBA to "question whether or not Mr. Biancur was acting in the scope of his authority under § 8-3(f) and to question whether his 2014 decision complied with § 8-3(f). Ex. 41 at 12.

In addition, Al Zullo repeatedly pointed out deficiencies in Plaintiffs' evidence, though he did not point out any strengths in their evidence or any deficiencies in Soto's evidence. For example, he urged the ZBA to consider that, although Biancur's 2014 decision stated that it was copied to Brancati and Milici, Plaintiffs did not call Brancati or Milici to testify that they indeed received copies of the decision. Ex. 41 at 12. He observed that Plaintiffs presented no "evidence as to actual financial loss," presented no evidence that they exercised "due diligence" in determining the legal status of the property, and did not apply for a certificate of zoning compliance. Id. at 15. He urged the ZBA to consider whether the statements made in Biancur's 2014 decision "were even true," and he expressed skepticism about the authenticity of the letters from Spezzano's customers attached to George Mingione's affidavit. Id. at 16. Even if it were appropriate for Al Zullo to comment on the evidence, he did not do so evenhandedly. For example, he made no mention of the significant land use experience of Plaintiffs' three experts. And he did not point out that Soto presented no evidence that Biancur's criminal conduct influenced his 2014 decision.

Finally, Al Zullo weighed in on Plaintiffs' argument that, notwithstanding Section 31.5.13 of the Town's zoning regulations, the PZC could not discretionarily modify the regulatory standards for issuing a special exception permit under MacKenzie. As explained above, Alter, Judge Fuller, and Hollister all explained that, under MacKenzie, a regulation purporting to grant a planning and zoning commission discretionary authority to modify the special permit standards was unlawful because such authority was not conferred on planning and zoning commissions by the Connecticut zoning statute. Al Zullo opined that MacKenzie's holding focused on the arbitrary nature of the regulation at issue in that case. Ex. 41 at 18. He explained that, if the ZBA found that Section 31.5.13 of the Town's zoning regulations did not allow the PZC to arbitrarily modify the special exception permit standards, then the regulation would be lawful and the PZC would be able to modify the special exception permit standards. Id. He also argued that, even if Section 31.5.13 were unlawful under MacKenzie, Plaintiffs would have the ability to seek a special exception permit from the PZC and, at the same time, seek a variance from the ZBA. Id. at 19. This approach would allow the ZBA to vary the special exception standards, consistent with MacKenzie, and then the PZC could consider whether the application for a special exception permit satisfied the varied standards. Id.

Thus, Al Zullo concluded that Plaintiffs have "always had the ability to apply for a special exception [permit] for this property with a contemporaneous filing of a variance of the special exception regulations in compliance with the cease and desist order but chose not to do so." Id. With this conclusion, Al Zullo raised another legal

issue that Plaintiffs did not have an opportunity to address. See 2/8/23 Tr. at 1302:8-11 (Al Zullo agreeing that he was the first person to suggest this approach). Al Zullo essentially recommended that the ZBA reject Plaintiffs' argument that they could not seek a Section 31 permit as instructed by the cease-and-desist orders, and instead find that they could do so alongside an application for a variance.

9. The ZBA's Deliberation and the Court's Findings

The ZBA's deliberation on September 21, 2017, was short. To begin, the members entirely disregarded Biancur's 2014 decision. The Chair opined that the decision did not "mean a thing" without compliance with the "proper process," Ex. 62, Hr'g Tr. at 33:17-18, and another member believed that Biancur's 2014 decision was "horse hockey" and the ZBA did not have to "abide by it." Ex. 62, Hr'g Tr. at 33:17-18, 34:13-16. Another member observed that the scuttlebutt about Biancur "hasn't been good," and the Chair stated that "[e]verything he did ... is questionable." Ex. 62, Hr'g Tr. at 34:1-5. One member stated that he did not believe the quarry had been operating since the 1950s and that it was not a nonconforming use. Ex. 62, Hr'g Tr. at 33:20-23.

The Chair agreed with Al Zullo's suggestion that Plaintiffs should have applied for a special exception permit and a variance at the same time. Ex. 62, Hr'g Tr. at 32:15-20, 33:5-15. One member seemed to push against this suggestion: "But doing that, that's basically admitting that it is a conforming use property." Ex. 62, Hr'g Tr. at 35:7-9. Al Zullo interjected at that point to explain that, when applying for a special exception permit and a variance, Plaintiffs could "take the position like they have taken here, that they are a pre-existing nonconforming [use]." Ex. 62, Hr'g Tr. at 35:10-14. The Chair proceeded to recommend denying Plaintiffs' appeal on the ground that they should "file for a special exception [permit] and also at the same time file for a variance." Ex. 62, Hr'g Tr. at 38:4-23. Shortly thereafter, the ZBA unanimously voted to deny Plaintiffs' appeal. Ex. 62, Hr'g Tr. at 39:14-40:3.

The Court finds that the ZBA relied heavily on Al Zullo in reaching this decision. As an initial matter, the ZBA tacitly acknowledged that it would need to rely on the advice of its attorney in wading through the various legal issues involved in this appeal when it denied Plaintiffs' request to recuse Al Zullo. Ex. 60, Hr'g Tr. at 12 (Chair recommending denying Alter's request to recuse Al Zullo because "we [the ZBA] need some kind of counsel"). Al Zullo then exerted significant influence over the ZBA. At the outset, he prejudiced the ZBA against Plaintiffs by arguing that Plaintiffs were presenting "frivolous" arguments designed to "intimidate" the ZBA. Ex. 60, Hr'g Tr. at 11. Then, following the close of the public hearing, Al Zullo introduced new legal arguments without allowing Plaintiffs opportunity to respond, mischaracterized the relevant statute, and criticized Plaintiffs' evidence, but not Soto's evidence. He encouraged the ZBA to disregard Biancur's 2014 decision by expressing his opinion that it was not a validly issued and thus not appealable. He then entirely disposed of Plaintiffs' argument regarding the applicability of Section 31 by proposing a new solution neither of the parties had addressed—that Plaintiffs should seek a special exception permit alongside a variance. In proposing this new solution, Al Zullo made no mention of the opinions of Plaintiffs' experts that explained Plaintiffs would waive their claim to a nonconforming use by seeking a special exception permit.

The ZBA's deliberation reflected Al Zullo's influence. The members summarily

disregarded Biancur's 2014 decision as not validly issued and tainted by the implications of his misconduct, and they readily adopted Al Zullo's suggestion that Plaintiffs seek a special exception permit and variance even though it had not been mentioned by Plaintiffs or Soto. The ZBA allowed itself to be influenced by Al Zullo notwithstanding the evidence before it that Al Zullo had an apparent conflict of interest in advising the ZBA, and notwithstanding the evidence before it that, in advising the ZBA to disregard Plaintiffs' argument on this point, Al Zullo consulted another attorney who, himself, had a conflict of interest in the matter.

To be clear, the Court need not decide whether Plaintiffs' or Soto's arguments to the ZBA were meritorious, or whether Al Zullo's participation in the hearing was appropriate under the rules of legal ethics. Rather, the Court finds that Al Zullo's participation in the hearing was neither even-handed nor neutral, insofar as there is evidence he had participated in at least the May 9, 2017, Code Enforcement Committee meeting concerning drafting the third cease-and-desist order; he did not fairly assess whether he had a conflict of interest in advising the ZBA; he criticized the strength of Plaintiffs' evidence and legal arguments but not Soto's; he introduced new legal issues, without affording Plaintiffs an opportunity to respond; and he encouraged the ZBA to reach a certain outcome—which the ZBA ultimately did. This evidence demonstrates that the ZBA's decision was tainted by Al Zullo's actions.

H. Plaintiffs' Appeal to the Connecticut Superior Court

Plaintiffs appealed the ZBA's decision to the Connecticut Superior Court pursuant to Connecticut General Statute § 8-8(b). Ex. 69; One Barberry Real Est. Holding, LLC v. Zoning Bd. of Apps. for Town of East Haven, No. LNDCV176085489S, 2019 WL 5543039, at *1 (Conn. Super. Ct. Aug. 28, 2019). Al Zullo, who represented the ZBA in that appeal, 2/7/23 Tr. at 1229:11-13, argued that the ZBA found "that there was not substantial evidence in the record to show that there was a pre-existing use" and urged the state trial court to uphold that finding. Ex. 536 at 80. The trial court ultimately disagreed with Al Zullo and sustained Plaintiffs' appeal. One Barberry Real Est. Holding, LLC, 2019 WL 5543039, at *5, 7.

First, the court found that Biancur's 2014 decision that the quarry was a nonconforming use was "a clear and definite interpretation of the zoning laws" and, as a result of the Town's failure to appeal the decision, the Town could not collaterally attack it. One Barberry Real Est. Holding, LLC, 2019 WL 5543039, at *4-5.⁵⁶ The court observed that the ZBA "summarily dismissed" Biancur's decision and the legal opinions of Judge Fuller, Hollister, and Branse. Id. at *5 n.12. Accepting that the quarry was a nonconforming use, the court then found that Section 31 of the Town's zoning regulations did not apply to the quarry because applying that section would bar Plaintiffs' use in violation of Connecticut law. Id. at *7 (citing Cioffoletti v. Planning & Zoning Comm'n, 24 Conn. App. 5, 8, 584 A.2d 1200 (1991), and Taylor v. Zoning Bd. of Apps., 65 Conn. App. 687, 692, 783 A.2d 526 (2001), for the proposition that, under Connecticut law, zoning regulations "cannot completely bar a legal, nonconforming use"). The court concluded that Soto's cease-and-desist orders citing

56 Consistent with Al Zullo's legal staff report, the ZBA argued that Biancur's 2014 decision was subject to collateral attack because there was no "triggering event" as required by § 8-3(f), but the Connecticut Superior Court rejected that argument and found § 8-3(f) irrelevant. One Barberry Real Est. Holding, LLC, 2019 WL 5543039, at *5 n.13.

Section 31 were "improper" and, consequently, the ZBA's decision sustaining those orders was unlawful. Id. The Connecticut Appellate Court denied certification to appeal. Ex. 70.

I. Procedural History in the Present Consolidated Actions

In late May of 2017, while their appeal before the ZBA was pending, Plaintiffs initiated a civil rights action in Connecticut Superior Court against Maturo, Soto, Milici, and Nimons, and those Defendants timely removed the action to federal court. Civ. No. 3:17-cv-985 (SVN), ECF No. 1, Not. of Removal. In July of 2017, Plaintiffs initiated another civil rights action in Connecticut Superior Court against the Town, which also timely removed the action to federal court. Civ. No. 3:17-cv-1392 (WWE), ECF No. 1, Not. of Removal. In 2018, the actions were consolidated. Civ. No. 3:17-cv-985 (SVN), ECF No. 36; Civ. No. 3:17-cv-1392 (WWE), ECF No. 25. Discovery concluded on October 28, 2020, ECF No. 96, and Defendants filed motions for summary judgment, ECF Nos. 99, 100, 103.

In September of 2021, the Court (Dooley, J.) granted in part and denied in part Defendants' motions for summary judgment. ECF No. 139; One Barberry Real Est. Holding, LLC, 2021 WL 4430599, at *1. The Court granted summary judgment for Defendants on various of Plaintiffs' federal and state law claims and all claims against Nimons, dismissing him as a Defendant. One Barberry Real Est. Holding, LLC, 2021 WL 4430599, at *26. Following the Court's ruling, five of Plaintiffs' claims remain live: (1) Plaintiffs' claim pursuant to 42 U.S.C. § 1983 against the Town, Maturo, and Soto that they deprived Plaintiffs of their property in violation of the substantive due process protection afforded by the Fourteenth Amendment; (2) Plaintiffs' claim pursuant to § 1983 against the Town that it effectuated a regulatory taking in violation of the Fifth Amendment's Takings Clause; (3) Plaintiffs' claim against the Town pursuant to Article First, § 11 of the Connecticut Constitution for inverse condemnation; (4) Plaintiffs' common law claim of municipal estoppel against the Town; and (5) Plaintiffs' common law claim of slander of title against Milici. Id.

Thereafter, the case was transferred to the undersigned. ECF No. 140. The Court held a thirteen-day bench trial in January and February of 2023.⁵⁷ ECF No. 256. At the close of Plaintiffs' case, Defendants orally moved for judgment on partial findings as to all counts against them pursuant to Federal Rule of Civil Procedure 52(c), ECF No. 297, and the Court held the motion in abeyance until the close of evidence, see supra note 1. Thereafter, the Court solicited post-trial briefing from the parties, ECF Nos. 320, 321, and held an oral argument, ECF No. 322.

57 At the start of the trial, the Court observed that, although Plaintiffs had filed amended complaints near the close of discovery, see ECF Nos. 93, 94, Defendants had not filed answers to the complaints. 1/31/23 Tr. at 4:7-9. After Defendants filed answers to the complaints, see ECF Nos. 277, 278, the Court afforded defense counsel an opportunity to file amended answers to correct any errors made by his junior co-counsel. 2/3/23 Tr. at 841:14-25; ECF No. 280. Defendants did not file an amended answer.

II. SUMMARY OF HOLDINGS

As explained herein, the Court finds Maturo, Soto, and the Town infringed on Plaintiffs' constitutionally protected property right in an arbitrary and irrational manner, in violation of the Fourteenth Amendment's substantive due process protections. Maturo and Soto are liable under § 1983 because they were personally involved in, and proximately caused, the infringement on Plaintiffs' property right.

Moreover, they are not entitled to qualified immunity. The Town is liable under § 1983 and Monell because its final policymaking official, the ZBA, ratified the unconstitutional conduct of Maturo and Soto. The ZBA's ratification, along with Maturo's and Soto's conduct, altogether, caused the shutdown of the quarry and Plaintiffs' resulting injury.

Because the Court finds in Plaintiffs' favor on their substantive due process claim, the Court declines to address their Takings Clause claim, inverse condemnation claim, and municipal estoppel claim. The Court further finds that Milici did not maliciously slander Plaintiffs' title and thus is not liable.

The Court calculates to a reasonable certainty that FRR is entitled to compensatory damages in the amount of $9,465,832, constituting FRR's lost profits as a result of the conduct of the Town, Maturo, and Soto. Because FRR is the only Plaintiff entitled to recover damages, Patton is not entitled to recover emotional distress damages. Furthermore, Plaintiffs are not entitled to punitive damages. FRR, however, is entitled to attorneys' fees with respect to its substantive due process claim, and accordingly must submit a properly supported motion pursuant to Federal Rule of Civil Procedure 54(d) by October 17, 2023.

III. SECTION 1983 CLAIM AGAINST MATURO AND SOTO

A. Section 1983 Legal Standard

Plaintiffs' substantive due process claims against Maturo and Soto arise under 42 U.S.C. § 1983, and, accordingly, must satisfy the requirements of that statute. Section 1983 "provides a private right of action against any person who, acting under color of state law, causes another person to be subjected to the deprivation of rights under the Constitution or federal law." Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir. 1999) (citing 42 U.S.C. § 1983). Maturo and Soto do not meaningfully dispute that, as municipal employees acting in their official capacities, they acted under color of state law at all relevant times. See Brescia v. Sia, No. 07 CIV. 8054 (WCC), 2008 WL 1944010, at *2 (S.D.N.Y. Apr. 30, 2008) (quoting cases for the proposition that, although "municipal employment does not automatically mean that a defendant acts under color of state law," a "public employee" generally acts under color of state law "while acting in his official capacity or while exercising his responsibilities pursuant to state law").

In addition to establishing that the Soto and Maturo deprived them of constitutional rights, Plaintiffs must also show (1) that each Defendant was personally involved in the deprivation of substantive due process, Victory v. Pataki, 814 F.3d 47, 67 (2d Cir. 2016), as amended (Feb. 24, 2016), and (2) that each Defendant's actions were a proximate cause of the deprivation of substantive due process, Raspardo v. Carlone, 770 F.3d 97, 116 (2d Cir. 2014); Poe v. Leonard, 282 F.3d 123, 134 (2d Cir. 2002).

B. Substantive Due Process

1. Legal Standard

The Fourteenth Amendment to the U.S. Constitution provides, in relevant part, that no state shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. "The touchstone of due process is protection of the individual against arbitrary action of government." Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); accord Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Specifically, substantive due process "protects against government action that is arbitrary, conscience-shocking, or oppressive

in a constitutional sense, but not against government action that is incorrect or ill advised." Cunney v. Bd. of Trs. of Vill. of Grand View, N.Y., 660 F.3d 612, 626 (2d Cir. 2011) (quoting Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir. 1995)). In other words, substantive due process operates as "an outer limit on the legitimacy of governmental action" by prohibiting conduct "that is so outrageously arbitrary as to constitute a gross abuse of governmental authority." Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999) (citing Lewis, 523 U.S. at 846, 118 S.Ct. 1708).

Relevant here, the Second Circuit has "recognized that the substantive component of the Fourteenth Amendment's Due Process Clause forbids the government from burdening, in a constitutionally arbitrary way, an individual's property rights." O'Connor v. Pierson, 426 F.3d 187, 204 (2d Cir. 2005) (citing, among others, Zahra v. Town of Southold, 48 F.3d 674, 680 (2d Cir. 1995)). A local land use action can infringe on a property owner's rights in violation of substantive due process protections, though the Second Circuit has cautioned that "federal courts should not become zoning boards of appeal to review nonconstitutional land-use determinations." Zahra, 48 F.3d at 679-80 (alteration omitted) (quoting Sullivan v. Town of Salem, 805 F.2d 81, 82 (2d Cir. 1986)); accord Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 505 (2d Cir. 2001). To prevail on a land use substantive due process claim, a plaintiff must show that: (1) it "had a valid property interest," and (2) the defendant "infringed on that property right in an arbitrary or irrational manner." Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 784 (2d Cir. 2007) (citing Harlen Assocs., 273 F.3d at 503); accord O'Mara v. Town of Wappinger, 485 F.3d 693, 700 (2d Cir. 2007).

The first element requires a plaintiff to "establish that he had a valid 'property interest' in a benefit that was entitled to constitutional protection at the time he was deprived of that benefit." Zahra, 48 F.3d at 680 (citing Brady v. Town of Colchester, 863 F.2d 205, 212 (2d Cir. 1988)). To establish a valid, constitutionally protected property interest, the plaintiff must show "that he had a clear entitlement to the [property use] under state law," which, in turn, depends on "whether the issuing authority lacks discretion to deny the [use]." Natale, 170 F.3d at 263. See also Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) ("To have a property interest in a benefit, a person clearly must have more than ... a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it."); Zahra, 48 F.3d at 680 ("This Circuit uses a strict 'entitlement' test to determine whether a party's interest in land-use regulation is protectible under the Fourteenth Amendment.... The analysis focuses on the extent to which the deciding authority may exercise discretion in arriving at a decision.").

The second element of a land use substantive due process claim requires a plaintiff to show that the defendant infringed on that valid property interest "in an arbitrary or irrational manner." Cine SK8, Inc., 507 F.3d at 784; O'Mara, 485 F.3d at 700. See also Brady, 863 F.2d at 215 ("In zoning dispute cases, the principle of substantive due process assures property owners of the right to be free from arbitrary or irrational zoning actions."). For the purpose of a property-based substantive due process claim, constitutionally arbitrary action "is action that shocks the conscience." O'Connor, 426 F.3d at 204. That standard is "necessarily imprecise," turning on "the state of mind of the government

actor and the context in which the action was taken." Id. at 203 (citing Lewis, 523 U.S. at 847, 118 S.Ct. 1708).

Specifically, "[g]overnment regulation of a landowner's use of his property is deemed arbitrary or irrational, and thus violates his right to substantive due process, only when government acts with no legitimate reason for its decision." Southview Assocs., Ltd. v. Bongartz, 980 F.2d 84, 102 (2d Cir. 1992) (internal quotation marks omitted; collecting cases); accord Harlen Assocs., 273 F.3d at 500. A property owner cannot prevail on a substantive due process claim "every time a local zoning board makes an incorrect decision," but a property owner can prevail when the local zoning authority's decision was based on "indefensible reasons," such as "impermissible political animus" or an absence of "authority under state law" to make the decision. Brady, 863 F.2d at 215-16. The Second Circuit has explained that a substantive due process claim is cognizable when the plaintiff shows that the governmental body "acted beyond its authority, without justification, or committed other egregious misconduct." Southview Assocs., Ltd., 980 F.2d at 104 (citing, among others, Brady, 863 F.2d at 215-16, and Sullivan, 805 F.2d at 85).

2. Property Interest

Beginning with the first element of Plaintiffs' substantive due process claim, the Court concludes that Plaintiffs had a valid property interest in the quarry operation, which was entitled to constitutional protection. As explained above, the Connecticut Superior Court held that Plaintiffs' quarry operation was a legal, preexisting, nonconforming use under Connecticut law. One Barberry Real Est. Holding, LLC, 2019 WL 5543039, at *4-5. Courts in this District have held that, under Connecticut law, a nonconforming use is "a vested property right" for due process purposes. Gavlak v. Town of Somers, 267 F. Supp. 2d 214, 221 (D. Conn. 2003) (citing Taylor, 65 Conn. App. at 693-94, 783 A.2d 526, and Beckish v. Planning & Zoning Comm'n, 162 Conn. 11, 16, 291 A.2d 208 (1971)); Firetree, Ltd. v. Norwalk, No. 3:17-CV-1088 (MPS), 2018 WL 4398253, at *10 (D. Conn. Sept. 14, 2018) (citing Conn. Gen. Stat. § 8-2(a)). At summary judgment, Defendants "begrudgingly" conceded that Plaintiffs have a valid property right under Connecticut law in satisfaction of the first element of their substantive due process claim. One Barberry Real Est. Holding, LLC, 2021 WL 4430599, at *12. No Defendant appears to now challenge that this element is satisfied.⁵⁸

58 Defendants do not make any argument about which Plaintiff or Plaintiffs have the property interest at issue. The Court observes that One Barberry and FRR were the plaintiffs in the Superior Court action, which suggests that the property interest attaches to them, but not Patton. See One Barberry Real Est. Holding, LLC, 2019 WL 5543039, at *1. Nonetheless, the Court need not determine which Plaintiff or Plaintiffs have the property interest at issue for liability purposes. As explained below, Defendants contend that each Plaintiff must be considered separately with respect to damages because each Plaintiff has distinct interests in the quarry, and the Court will address that argument when awarding damages.

3. Arbitrary Action

The Court next concludes that Soto and Maturo acted arbitrarily and irrationally, in violation of substantive due process.

a. Soto

i. Lack of Authority

The Court first finds that Soto lacked authority to issue the third cease-and-desist order shutting down the quarry because Biancur's 2014 decision was binding.

As the Connecticut Superior Court held, because Biancur's 2014 decision was properly published and not appealed, Soto had no authority under Connecticut zoning law to effectively bar Plaintiffs' nonconforming use by conditioning it on the issuance of a special exception permit. One Barberry Real Est. Holding, LLC, 2019 WL 5543039, at *7. Moreover, Soto had no legitimate or defensible reason to believe he had such authority. The primary reason Soto issued the cease-and-desist order was that he did not agree with Biancur's 2014 decision that the quarry was a non-conforming use. But the Court finds this reason indefensible because, as the Connecticut Superior Court reiterated in its decision, a decision by a zoning official becomes final and not subject to collateral review after expiration of the statutory appeal period. Id. at *5 (quoting Upjohn Co. v. Zoning Bd. of Apps., 224 Conn. 96, 102, 616 A.2d 793 (1992)).

Soto has not presented any arguments or evidence suggesting that he had a legitimate reason to believe he was not bound by Biancur's 2014 decision. Soto did not assess whether shutting down the quarry was a legal action in light of Biancur's 2014 decision; rather, he deferred that assessment entirely to Joe and Al Zullo. Importantly, neither Joe Zullo nor Al Zullo testified about why they believed there was a legitimate basis in Connecticut zoning law to disregard Biancur's 2014 decision, and Soto could not explain why Joe Zullo's and Al Zullo's legal "advice" convinced him that he could act the way he did. Al Zullo's legal staff report allows the Court to infer that he did not believe Biancur's 2014 decision was binding on the Town because it did not comply with Connecticut General Statutes § 8-3(f), which, as noted above, addresses building permits and certificates of occupancy. But there is no evidence in the record that Al Zullo communicated this position regarding § 8-3(f) to Soto while advising him about the issuance of the cease-and-desist orders. Even if Al Zullo communicated this position to Soto, Soto has not presented any arguments or evidence suggesting that Al Zullo had a defensible reason for relying on § 8-3(f) when it was facially irrelevant to the quarry. Moreover, Joe Zullo's testimony did not illuminate why he believed there was a legitimate basis in Connecticut zoning law to disregard Biancur's 2014 decision. To the contrary, his statement during the meeting on March 21, 2017, strongly suggests that he agreed that Biancur's 2014 decision was binding on the Town. Accordingly, the Court finds that Joe and Al Zullo did not communicate a legitimate basis to disregard Biancur's 2014 decision to Soto. That fact, combined with Soto's deference to them and his failure to independently assess this issue, demonstrates that Soto had no legitimate basis to disregard Biancur's 2014 decision.

Numerous cases in this Circuit have recognized cognizable substantive due process claims arising from a lack of authority for the zoning official or body to infringe on the property owner's vested right. In Brady, the Second Circuit found summary judgment in the defendants' favor improper because, "if the defendants had no authority under state law to" revoke the plaintiffs building permit and demand that he apply for a zoning permit, that lack of authority would allow a factfinder to "conclude that there was no 'rational basis' for the [defendants'] actions." Brady, 863 F.2d at 215-16. In Cine SK8, the Second Circuit found summary judgment in the defendant's favor improper on a similar basis, explaining that, because the defendant lacked authority to alter the plaintiff's property use, the defendant's "actions were ultra vires and, as a result, sufficiently arbitrary to amount to a substantive due process violation." Cine SK8, Inc., 507 F.3d at 789. See also TZ Manor, LLC v. Daines, 815 F. Supp. 2d 726, 745 (S.D.N.Y.

2011) ("Cine SK8 can be read broadly to stand for the proposition that any governmental action taken outside the scope of the defendant's authority, i.e., an 'ultra vires' act, is 'sufficiently arbitrary to amount to a substantive due process violation.'") (quoting Cine SK8), aff'd, 503 F. App'x 82 (2d Cir. 2012).

District courts have employed the reasoning of Brady and Cine SK8 to reach similar results. See TLC Dev., Inc. v. Town of Branford, 855 F. Supp. 555, 558 (D. Conn. 1994) (denying the defendant's motion for summary judgment because the denial of the plaintiff's site plan lacked a "lawful basis" and thus was arbitrary); Watrous v. Borner, No. 3:10-CV-597 (JCH), 2013 WL 1787997, at *2 (D. Conn. Apr. 26, 2013) (enjoining the defendant from enforcing a cease-and-desist order because the defendant "acted outside his authority under state law" when issuing the order and thus violated the plaintiff's substantive due process rights); Sloup v. Loeffler, No. 05-CV-1766 (JFB) (AKT), 2008 WL 3978208, at *14 (E.D.N.Y. Aug. 21, 2008) (denying the defendant's motion for summary judgment because a rational jury could find that the defendant subjected the plaintiff to a "legally unfounded" prohibition on his use due to the defendant's "personal animosity toward" the plaintiff).

Consistent with those cases, the Court finds that Soto had no authority to disregard Biancur's 2014 decision, and he had no legitimate or defensible reason to believe he could disregard it. In so holding, the Court is mindful that not every incorrect decision by a local zoning official amounts to a substantive due process violation, see Brady, 863 F.2d at 215-16, and does not mean to suggest that every time the Connecticut Superior Court reverses a ZBA's decision, a substantive due process claim will prevail. But the facts here do not demonstrate any principled basis on which Soto could have disregarded Biancur's 2014 decision after it was published and was not appealed. A zoning enforcement officer cannot simply choose which of his predecessors' binding decisions he likes and does not like, and ignore those with which he does not agree, to the detriment of an individual's property interest; such conduct is, by its very nature, arbitrary. For these reasons, Soto acted arbitrarily and violated Plaintiffs' substantive due process rights under the Fourteenth Amendment.

ii. Failure to Review Section 31

In addition, the Court concludes that Soto acted arbitrarily by failing to meaningfully review Section 31 of the Town's zoning regulations to determine whether Plaintiffs could seek a special exception permit, as ordered.⁵⁹ Soto testified that he did not himself analyze Section 31 to determine if a quarry could satisfy the requirements of that provision. 2/6/23 Tr. at 1026:4-11. Presumably, he deferred this issue to Joe and Al Zullo, as he had on nearly all legal issues. The Court finds it indefensible for Soto to, on the one hand, order Plaintiffs to comply with Section 31,

59 Regardless of whether Soto had a legitimate basis to disregard the nonconforming status of the property, the Court finds no justification for his failure to meaningfully review Section 31 of the Town's zoning regulations to determine if Plaintiffs could actually seek a special exception permit as commanded. Because the Court has found that Soto had no legitimate basis to disregard Biancur's 2014 decision, he likewise had no legitimate basis to bar Plaintiffs' nonconforming use by conditioning it on the issuance of a special exception permit. Even if Soto had a legitimate basis to disregard Biancur's 2014 decision, however, the Court finds it unconstitutionally arbitrary for Soto to order Plaintiffs to seek a special exception permit under Section 31 without considering whether they could comply with Section 31.

and, on the other hand, fail to read that regulation or meaningfully consider Plaintiffs' arguments that they could not possibly comply with it. Such arbitrary conduct by governmental officials is, in the Court's view, conscience-shocking. Soto effectively abdicated his duty as a zoning officer to analyze the relevant zoning regulations' applicability to the situation presented.

iii. Pretext

In addition, the Court finds that many of Soto's explanations for his actions were pretextual, which further illustrates that his ultimate decision to shut down the quarry was arbitrary and indefensible. To begin, Soto told the ZBA, and testified at trial, that he observed numerous rocks and boulders rolling down the hill on the property, which he believed to pose a risk of danger. But he did not show the Court the photos or video that he showed the ZBA evincing that multiple rocks and boulders were indeed rolling down the hill on the property. Only one photo relevant to this issue was meaningfully discussed by any witness—Exhibit 128, depicting a boulder resting on the edge of one of the roads bordering the quarry. But that photo does not substantiate Soto's claim that rocks and boulders were rolling down the hill and causing a risk of danger. In fact, the photo does not contain any indication that the boulder rolled down any hill at all. In addition, Soto provided the ZBA with the zoning office's phone log containing thirty-five phone messages to demonstrate that he had received a lot of complaints about the quarry, but, as Plaintiffs pointed out, relatively few of those messages were complaints about the quarry, and Soto did not respond to that argument. Thus, at least some of Soto's professed safety concerns are unsubstantiated and appear to be pretextual.

In addition, Soto's reasons for why he took various actions throughout the spring of 2017 are conclusory and inadequate. For example, he testified that he visited the property sometime between April 25 and May 2, and again on May 8, but neither of those visits were recorded in his field inspection notes per his usual practice, and he could not explain why. Soto also presented conflicting testimony about whether the decision to shut down the quarry was made before or during the Code Enforcement Committee meeting on May 9, 2017. In addition, he testified that he included the language about criminal penalties in the third cease-and-desist order, and in the zoning office's standard cease-and-desist order language, after receiving advice from the State Attorney's Office; but he could not recall when he received this advice. The timing of this change to the language strikes the Court as not mere coincidence—only eighteen days passed between the second cease-and-desist order, which did not reference criminal penalties, and the third cease-and-desist order, which did.

Moreover, the language of the third cease-and-desist order is somewhat pretextual. The language suggests that the quarry operation was discovered during Soto's unrecorded May 8 site inspection. See Ex. 17 at 1. But it is beyond dispute that all relevant Town officials had known there was a quarry operation on the property since, at the latest, February of 2017; certain individuals, including Joe Zullo, had undisputed knowledge that there was a quarry operation on the property since as early as 2013.

Also, the logic behind Soto's apparent motivation for the third cease-and-desist order is not straightforward. Soto, and other Town officials, admitted that the first and second cease-and-desist orders required Plaintiffs to stop clear-cutting and removing stumps; they did not require Plaintiffs to stop quarrying. But Soto also testified that he believed blasting and

quarrying would continue to violate the first and second cease-and-desist orders, without reconciling this belief with his other belief that the first and second cease-and-desist orders did not by their terms prohibit blasting and quarrying. As explained above, the Court reconciles this conflicting testimony by inferring that Soto believed that blasting and quarrying would necessarily violate the first and second cease-and-desist orders by disturbing the soil, as had clear-cutting trees and removing tree stumps. But the conclusion that the quarry was preparing to blast on May 8 appears unfounded, as Plaintiffs had not blasted in March of 2017 and the record does not show they had applied for a blasting permit after March of 2017. See Ex. 81 at 44. Soto's inability to clearly explain what he truly believed suggests that his decision to shut down the quarry was not the result of a deliberate and logical thought process. This pretext highlights the arbitrary and irrational nature of Soto's actions.

Finally, as described below, the decision to issue the third cease-and-desist order was effectively made by Maturo for political motivation, and Soto had reason to know of Maturo's political motivation in light of Maturo's statements during the Code Enforcement Committee meeting on May 9, 2017. Although Soto supported this decision for his own non-legitimate reasons, the fact that the decision-making process was infected by political motivation supports the conclusion that Soto acted arbitrarily.

b. Maturo

As explained above, the Court found that Maturo effectively made the decision for Soto to proceed with the third cease-and-desist order, and that this decision was motivated by his desire to avoid adverse consequences in the 2017 mayoral election due to the quarry opposition group. The evidence that Maturo acted with "impermissible political animus," see Brady, 863 F.2d at 216, includes the minutes from the Code Enforcement Committee meeting on May 9, 2017, the testimony about the Russo Avenue quarry and Maturo's perception of how it impacted his loss in the 2007 mayoral election, and Maturo's interference in the issuance of blasting permits around the time of the 2015 local election. The Court finds that this political animus shocks the conscience and is thus indefensible, in violation of substantive due process. Id. See also Swenson v. Siskiyou Cnty., 498 F. App'x 719, 721 (9th Cir. 2012) (summary order) (reversing a grant of summary judgment due to evidence that the defendants "invalidated a vested property interest due to political or other considerations" in violation of substantive due process); Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 920 F.2d 1496, 1508 (9th Cir. 1990) (vacating grant of summary judgment where a jury could determine that a city council's rejection of a development plan was "motivated, not by legitimate regulatory concerns, but by political pressure from neighbors and other residents"); Hardesty v. Sacramento Metro. Air Quality Mgmt. Dist., 307 F. Supp. 3d 1010, 1035 (E.D. Cal. 2018) (upholding a jury verdict for the plaintiff in light of evidence that the "defendants recognized [the] plaintiffs' vested right" in the property and then "changed course" due to "political pressure"), aff'd in part, rev'd in part on other grounds sub nom. Hardesty v. Sacramento Cnty., 824 F. App'x 474 (9th Cir. 2020) (summary order) (affirming the district court's substantive due process holding).

C. Personal Involvement of Soto and Maturo

To prevail on their § 1983 claim against Maturo and Soto, Plaintiffs must show that each was personally involved in the constitutional violation because

"[a] defendant in a § 1983 action may not be held liable for damages for constitutional violations merely because he held a high position of authority." Victory, 814 F.3d at 67 (quoting Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996)). There "is no special rule for supervisory liability," and, instead, "a plaintiff must plead and prove 'that each Government-official defendant, through the official's own individual actions, has violated the Constitution.'" Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). Accordingly, "the personal involvement of [the] defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Victory, 814 F.3d at 67 (quoting Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006)). "Personal involvement may be shown by 'direct participation,' which requires ... 'intentional participation in the conduct constituting a violation of the victim's rights by one who knew of the facts rendering it illegal.'" Id. (quoting Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001)). Personal involvement is a question of fact. Id.

The Court concludes that Maturo and Soto were personally involved in the violation of Plaintiffs' substantive due process rights. As explained above, both Soto and Maturo wanted to shut down the quarry; Soto's decision to proceed with that action was contingent on Joe Zullo's and Al Zullo's opinions on the legality of that action, and, in turn, Joe Zullo was concerned with effectuating Maturo's desires. The alignment of those forces at the Code Enforcement Committee meeting on May 9, 2017, led Soto, at Maturo's direction, to issue the third cease-and-desist order. Thus, both Maturo and Soto directly and intentionally participated in shutting down the quarry in violation of Plaintiffs' substantive due process rights. See Victory, 814 F.3d at 67.

D. Causation

Finally, Plaintiffs must demonstrate a "causal connection between the defendant's action and the plaintiff's injury" under the "[o]rdinary principles of causation." Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 125 (2d Cir. 2004) (quoting Gierlinger v. Gleason, 160 F.3d 858, 872 (2d Cir. 1998)). See also Malley v. Briggs, 475 U.S. 335, 344 n.7, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); Brown v. Off. of State Comptroller, 211 F. Supp. 3d 455, 475 (D. Conn. 2016), aff'd in part, appeal dismissed in part sub nom. Brown v. Halpin, 885 F.3d 111 (2d Cir. 2018).

The Court concludes that Soto's and Maturo's actions were proximate causes of the violation of Plaintiffs' substantive due process rights. The Court finds that Plaintiffs' injury was directly caused by Soto issuing the third cease-and-desist order and the ZBA's decision upholding it, though Defendants dispute this finding, as explained below. Two converging forces caused Soto to issue the third cease-and-desist order: Soto's desire to shut down the quarry and Maturo's desire to shut down the quarry. The Zullos, particularly Joe Zullo, facilitated both forces. Importantly, Soto's and Maturo's desires to shut down the quarry were both necessary conditions to issuing the third cease-and-desist order. Maturo, as the mayor (and not as a zoning official), had to effectuate his desire to shut down the quarry through the zoning office, which is why Soto, not Maturo, ultimately issued the cease-and-desist order. And, as explained above, Soto wanted to shut down the quarry following his site visit on May 8, 2017, but he had deferred the legal issues to Joe and Al Zullo; this shows that Soto was unwilling or felt unable to act independently. Because Joe Zullo was concerned with effectuating Maturo's desires, Joe Zullo's

influence on Soto's actions amounted to political influence by Maturo. During the Code Enforcement Committee meeting on May 9, 2017, Maturo's direction to shut down the quarry was the green light Soto was waiting for, and so he then issued the order.

Soto and Maturo raise two arguments why their actions were not proximate causes of Plaintiffs' injury. First, they contend that Plaintiffs' injury was caused by their own decision to stop quarrying in response to the third cease-and-desist order even though, according to Soto and Maturo, enforcement of the third cease-and-desist order was stayed during the pendency of Plaintiffs' appeal. Second, Soto and Maturo contend that the chain of causation between their actions and Plaintiffs' injury was broken by the intervening and superseding event of the ZBA's decision. For the following reasons, the Court rejects both arguments.

1. Stay of Enforcement

First, the Court rejects the argument that Plaintiffs caused their own injury by stopping the quarry operation in response to the third cease-and-desist order.⁶⁰ Specifically, Maturo and Soto contend that under Connecticut General Statute § 8-7, enforcement of the cease-and-desist orders was automatically stayed pending Plaintiffs' zoning appeals to the ZBA, so Plaintiffs could have kept operating after issuance of the third cease-and-desist order.

60 Defendants' posttrial briefing raised this issue in the discussion of damages, arguing that Plaintiffs failed to mitigate their damages because they could have continued quarrying notwithstanding the third cease-and-desist order. Defs.' Br., ECF No. 320, at 82-83. At oral argument, Plaintiffs urged the Court to disregard this argument because Soto's and Maturo's answers did not plead mitigation of damages as an affirmative defense. ECF No. 277 at 11; ECF No. 278 at 14; see supra note 57. See also Travellers Int'l, A.G. v. Trans World Airlines, Inc., 41 F.3d 1570, 1580 (2d Cir. 1994) ("Failure to mitigate damages is an affirmative defense and therefore must be pleaded."). In response, Soto and Maturo clarified that this argument goes to causation, rather than mitigation. Although the Court would be within its discretion to consider this issue as addressing mitigation of damages, as originally characterized in Defendants' post-trial brief, and to deem the argument waived because it was not included in the answers, the Court addresses it here in the context of causation, for good measure.

As a factual matter, the Court finds that Soto did not believe enforcement of his orders was stayed pending Plaintiffs' ZBA appeals.⁶¹ Plaintiffs promptly appealed the first and second cease-and-desist orders, and both appeals were pending by the time the Individual Defendants prepared to issue the third cease-and-desist order. See Ex. 500 at 180; Ex. 42 at 5 (on April 20, 2017, Soto acknowledging that Plaintiffs had appealed the first cease-and-desist order). Yet, on May 8, 2017, Soto wanted to issue the third cease-and-desist order precisely because he believed Plaintiffs' conduct continued the violate the first and second cease-and-desist orders. See 2/7/23 Tr. at 1179:2-5, 1185:1-3; see also Ex. 42

61 In addition, Patton's testimony about his feelings and actions after receiving the third cease-and-desist order demonstrate that he did not believe he could continue quarrying, see 1/31/23 Tr. at 224:3-17, 298:8-16, and the Court finds this belief reasonable. The third cease-and-desist order was the first to mention the possibility of criminal penalties in the event of noncompliance, which represented an escalation of Defendants' efforts to ensure the quarry operation actually shut down. Moreover, Joe Zullo's phone call to Alter and Patton the day the third cease-and-desist order was issued, in which Zullo said that Maturo had directed that the quarry be shut down and commanded department heads to effectuate that order, made Patton's belief reasonable. Indeed, Defendants have not argued that they would have chosen to simply not enforce the third cease-and-desist order; the evidence strongly suggests the contrary.

at 8 (on April 21, 2017, Soto telling Joe Zullo that he believed Plaintiffs "should cease working on the area near Barberry Rd immediately"). Thus, Soto evidently believed that enforcement of the first and second cease-and-desist orders was not stayed pending Plaintiffs' appeals of those orders; from that fact, it stands to reason that he would have believed enforcement of the third cease-and-desist order was not stayed pending Plaintiffs' appeal of that order.

In addition, Plaintiffs had a reasonable basis to believe that there was no automatic stay under § 8-7. That statute provides, in relevant part:

An appeal shall not stay [a zoning order] which prohibits further construction or expansion of a use in violation of such zoning regulations except to the extent that the [zoning board of appeal] grants a stay thereof. An appeal from any other order, requirement or decision shall stay all proceedings in the action appealed from unless the zoning commission or the officer from whom the appeal has been taken certifies to the zoning board of appeals ... that ... a stay would cause imminent peril to life or property, in which case proceedings shall not be stayed [subject to exceptions not relevant here].

Conn. Gen. Stat. § 8-7.

As explained above, Plaintiffs' actions in the spring of 2017 were designed to expand their quarry use into an area of the property that had not yet been quarried, which they believed they had a right to do. This is consistent with Judge Fuller and Hollister's explanations that a quarry, by its very nature, must expand over time. See supra note 48. Plaintiffs had a reasonable basis to believe that the third cease-and-desist order "prohibit[ed] further construction or expansion" or use of their quarry, and therefore fell into the category of orders that was not automatically stayed pending appeal under § 8-7.⁶² Moreover, Al Zullo's conflict of interest in advising the ZBA afforded Plaintiffs a reasonable basis to believe that seeking a discretionary stay from the ZBA would have been futile.

62 Plaintiffs also argue that—if Soto believed enforcement of his orders was automatically stayed—he likely would have obstructed the stay by certifying to the ZBA, falsely and in bad faith, that there was an imminent peril because of the boulders and rocks that were allegedly rolling down the hill into the road. As this argument is based on speculation, the Court does not address it further.

Accordingly, the Court rejects Soto's and Maturo's contention that Plaintiffs caused their own injury by stopping the quarry operation in response to the third cease-and-desist order. Rather, the Court finds that Soto and Maturo, through the third cease-and-desist order, caused Plaintiffs' injury.

2. Superseding Cause

Next, the Court concludes that the ZBA's decision upholding Soto's cease-and-desist orders did not break the chain of causation between Soto's and Maturo's conduct and Plaintiffs' injury, though this is a closer issue. The Second Circuit has held that the chain of causation between a defendant's conduct and a plaintiff's injury may be broken by another actor's intervening or superseding conduct, which itself causes the constitutional violation. For example, the Second Circuit dismissed a plaintiff's § 1983 claim against several police officers arising from the defendants' allegedly unconstitutional search, reasoning that the defendants' discovery of inculpatory evidence during the search did not cause the plaintiff's conviction; rather, the trial court's refusal to suppress the evidence caused the plaintiff's conviction.

Townes v. City of New York, 176 F.3d 138, 146-47 (2d Cir. 1999). The court explained that the "chain of causation" between the defendants' unlawful conduct and the plaintiff's subsequent conviction was "broken by the intervening exercise of [the trial court's] independent judgment," which was a "superseding cause" that prevented the defendants from being liable for the plaintiff's harm. Id. at 147. See also Wray v. City of New York, 490 F.3d 189, 194 (2d Cir. 2007) (same).

The Second Circuit has also explained, however, that a defendant "may be liable for consequences caused by reasonably foreseeable intervening forces." Higazy v. Templeton, 505 F.3d 161, 177 (2d Cir. 2007) (emphasis added) (analogizing a Bivens action to § 1983 actions). For example, the chain of causation will not break if the intervening decision-maker does not exercise independent judgment, but rather is misled or coerced. Id. (citing Townes, 176 F.3d at 147); Zahrey v. Coffey, 221 F.3d 342, 351-52 (2d Cir. 2000). Similarly, the chain of causation will not break if the defendant "could reasonably foresee that his misconduct would contribute to an independent decision that results in a deprivation of a constitutional right. Higazy, 505 F.3d at 177 (quoting Zahrey, 221 F.3d at 352).

Here, the Court finds that the chain of causation between Soto's and Maturo's conduct and Plaintiffs' injury was not broken by the ZBA's intervening decision to sustain Soto's cease-and-desist orders. The ZBA did not exercise independent judgment; rather, as explained above and below, the ZBA allowed itself to be heavily influenced by Al Zullo. He prejudiced the ZBA against Plaintiffs, misled the ZBA about Plaintiffs' arguments and the relevant law, and encouraged the ZBA to pursue the outcome that it ultimately chose. In relying so heavily on Al Zullo, the ZBA disregarded Plaintiffs' protestations that Al Zullo had a conflict of interest, ignored Plaintiffs' experts' opinions, and upheld the cease-and-desist orders on a legal basis neither party raised nor had an opportunity to address.

To be clear, Al Zullo's conduct in unfairly advising the ZBA was not itself a superseding cause of Plaintiffs' injury. According to Soto's testimony and the minutes of the Code Enforcement Committee meeting on May 9, 2017, Al Zullo advised Soto about the legality of shutting down the quarry, participated in the final decision to shut down the quarry, and helped draft the third cease-and-desist order. Further evidence, such as Joe Zullo's emails to Soto, suggests that Al Zullo participated in drafting the first cease-and-desist order months earlier. From all this evidence, Soto knew of Al Zullo's involvement, and, from the Code Enforcement Committee meeting minutes, Maturo also knew of Al Zullo's involvement. The Court also infers that Soto and Maturo knew that Al Zullo was the Town's land use attorney and would advise the ZBA in its proceedings—a ZBA member even acknowledged that Al Zullo had "been with [the ZBA] basically on everything we've ever done here." Ex. 60, Hr'g Tr. at 12. Accordingly, it was reasonably foreseeable to Soto and Maturo that Al Zullo would influence to the ZBA's decision and affect the extent to which that decision was truly independent.

In other words, the ZBA did not exercise independent judgment because of Al Zullo's influence, and it was reasonably foreseeable to Soto and Maturo that Al Zullo's participation in the ZBA hearing would influence the ZBA's decision. For that reason, the Court finds that the ZBA's decision to uphold Soto's cease-and-desist orders did not break the chain of causation between Maturo's and Soto's conduct and Plaintiffs' injury. In sum, Plaintiffs have established, by a preponderance of the evidence, the elements of a § 1983 substantive due process claim against Soto and Maturo.

E. Qualified Immunity

1. Legal Standard

That Plaintiffs have satisfied the elements of their § 1983 claim does not end the inquiry, because Soto and Maturo contend they are entitled to qualified immunity. The doctrine of qualified immunity shields governmental officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). "Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability while they perform their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

The United States Supreme Court has established a two-pronged test governing the qualified immunity defense. "First, a court must decide whether the facts that a plaintiff has ... shown ... make out a violation of a constitutional right." Id. at 232, 129 S.Ct. 808. As explained above, the Court has found that Soto and Maturo violated Plaintiffs' Fourteenth Amendment substantive due process rights, which satisfies the first prong of the test.

Under the second prong, "the court must decide whether the right at issue was 'clearly established' at the time of [the] defendant's alleged misconduct." Id. A government official's conduct "violates clearly established law when, at the time of the challenged conduct, 'the contours of a right are sufficiently clear' that every 'reasonable official would have understood that what he is doing violates that right.'" Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (alterations omitted)). "An official is therefore entitled to immunity if his action was 'objectively legally reasonable in light of the legal rules that were clearly established at the time it was taken.'" Taravella v. Town of Wolcott, 599 F.3d 129, 133 (2d Cir. 2010) (quoting X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 66 (2d Cir. 1999)).

In other words, this prong of the qualified immunity analysis turns on two related questions: first, whether the precise contours of the right at issue were clearly established; and second, whether it was objectively reasonable for the defendant to believe that his actions complied with that clearly established law. See Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015) ("Qualified immunity protects public officials from liability for civil damages when one of two conditions is satisfied: (a) the defendant's action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law." (citation and internal quotation marks omitted)); Brown, 211 F. Supp. 3d at 472 (same); LaFever v. Clarke, 525 F. Supp. 3d 305, 319 (N.D.N.Y. 2021) ("To help sharpen the analysis, courts often break the second prong down into a pair of separate considerations: (a) whether the defendant's action violated clearly established law and, even if it did, (b) whether it was objectively reasonable for the defendant to believe that his action was nevertheless lawful at the time.").

Relevant to the first question, law is "clearly established" when, at the time of the official's conduct, the "legal

principle [was] sufficiently clear in then-existing precedent." District of Columbia v. Wesby, 583 U.S. 48, 138 S. Ct. 577, 589, 199 L.Ed.2d 453 (2018). See also Edrei v. Maguire, 892 F.3d 525, 539 (2d Cir. 2018) ("And, because officers cannot have fair warning of rights that are not yet established, we look to precedent in existence at the time of the events."). In other words, the rule "must be settled law," meaning "it is dictated by 'controlling authority' or 'a robust consensus of cases of persuasive authority.'" Wesby, 138 S. Ct. at 589-90 (quoting al- Kidd, 563 U.S. at 741-42, 131 S.Ct. 2074). "The matter of whether a right was clearly established at the pertinent time is a question of law." Kerman v. City of New York, 374 F.3d 93, 108 (2d Cir. 2004). "This 'clearly established' standard also requires the settled law to be 'particularized' to the facts of the case," LaFever, 525 F. Supp. 3d at 319 (quoting White v. Pauly, 580 U.S. 73, 137 S. Ct. 548, 552, 196 L.Ed.2d 463 (2017)), which "requires a high degree of specificity," Wesby, 138 S. Ct. at 590 (citation and internal quotation marks omitted). There need not be "a case directly on point, but existing precedent must have placed the ... constitutional question beyond debate." al- Kidd, 563 U.S. at 741, 131 S.Ct. 2074; accord Brown, 211 F. Supp. 3d at 473.

Relevant to the second question, "even where the law is 'clearly established' and the scope of an official's permissible conduct is 'clearly defined,' the qualified immunity defense also protects an official if it was 'objectively reasonable' for him at the time of the challenged action to believe his acts were lawful." Higazy, 505 F.3d at 169-70 (quoting Creighton, 483 U.S. at 641, 107 S.Ct. 3034). See also Raspardo, 770 F.3d at 113 (addressing the second prong of the qualified immunity test "requires determining whether a reasonable official would understand that his conduct violated the constitutional right in question"). Thus, qualified immunity gives government officials "breathing room to make reasonable but mistaken judgments about open legal questions." al- Kidd, 563 U.S. at 743, 131 S.Ct. 2074. The question of whether an official's conduct was objectively reasonable "is a mixed question of law and fact." Kerman, 374 F.3d at 109.

The defendant bears the burden of establishing entitlement to qualified immunity. Garcia, 779 F.3d at 92.

2. Discussion

The Court concludes that Soto and Maturo are not entitled to qualified immunity. To begin, the Second Circuit had clearly established that an arbitrary zoning action violates the Due Process Clause as long ago as 1988 in Brady, 863 F.2d at 217. In that case, a municipal zoning official and a planning and zoning board conspired to effectively revoke a previously issued building permit and obstruct the issuance of a certificate of occupancy, and the Second Circuit reversed the district court's grant of summary judgment to the defendants on the plaintiffs' substantive due process claim. Id. at 207-08. Specifically, the Second Circuit held that there was a genuine dispute of material fact as to, first, whether the plaintiffs had a valid property interest in the building permit and certificate of occupancy, and second, whether the defendants acted arbitrarily by revoking the building permit and conditioning the plaintiffs' use on a certificate of occupancy, without authority to do so, due to political animus. Id. at 215. The court held that, in the event that the individual defendants were "found to have violated" the plaintiffs' due process rights, they were "not entitled to claim the defense of qualified immunity." Id. at 217.

The facts of Brady are remarkably similar to the facts of the present action. Like in Brady, Maturo and Soto infringed on Plaintiffs' property rights without a lawful

basis to do so because of political animus. The only distinction between the present action and Brady—and a meaningless distinction at that—is the type of property right at issue. The plaintiffs in Brady claimed to have a right to a building permit and the commercial use of their property, whereas Plaintiffs here have a right to their nonconforming use. This distinction does not destroy the clearly established nature of Plaintiffs' right to their use because, regardless of the type of use, Plaintiffs' use and the Brady plaintiffs' use were both vested, such that Soto and Maturo here and the Brady defendants there had no authority under the applicable zoning law to bar the respective uses. Brady surely placed the constitutional question—specifically, whether a zoning official can bar a use that is vested under state law, without authority to do so, due to political animus—beyond debate. See al- Kidd, 563 U.S. at 741, 131 S.Ct. 2074. Cf. Walz v. Town of Smithtown, 46 F.3d 162, 169 (2d Cir. 1995) (rejecting a zoning official's qualified immunity defense and holding that the official "could not have believed" that he had the authority to deny a permit to extort the plaintiff).

In addition, the Court finds that it was not objectively reasonable for Soto and Maturo to believe their actions were lawful. See Higazy, 505 F.3d at 169-70. A reasonable official in Maturo's position would have understood that infringing on an individual's vested property right to avoid an adverse impact on his candidacy for a political position deprived that individual of substantive due process.

Additionally, a reasonable official in Soto's position would have understood that he could not infringe on an individual's vested property right without even attempting to discern whether he had a lawful basis to do so. See TLC Dev., Inc., 855 F. Supp. at 559 (rejecting a qualified immunity defense because the defendants had no colorable basis for believing they had the authority to refuse to issue a permit). Instead, Soto did not understand how his actions squared with Biancur's lawfully-issued and binding 2014 decision, see 2/7/23 Tr. at 1124:9-13, and he did not review Section 31 to determine if Plaintiffs could apply for a special exception permit as ordered, 2/6/23 Tr. at 1026:4-11. To the extent Soto contends that he deferred those legal issues to counsel, the Court finds it objectively unreasonable for a zoning official to entirely substitute counsel's judgment for his own judgment on a key legal issue implicated by his actions.⁶³

63 Soto testified that he relied heavily on the advice of Joe and Al Zullo, but, in his posttrial brief, he did not expressly argue that it was objectively reasonable for him to have relied on the advice of counsel. See ECF No. 320 at 29. In anticipation that he would raise such an argument, Plaintiffs pointed the Court to In re County of Erie, 546 F.3d 222, 229 (2d Cir. 2008), in which the Second Circuit stated that "reliance upon advice of counsel ... cannot be used to support the defense of qualified immunity," given that qualified immunity is an objective test. It is not clear whether that case entirely forecloses a defense of qualified immunity due to reliance on counsel, given that the court was focused on the clearly established law piece of the qualified immunity inquiry, and not the objective reasonableness of the defendants' actions. See id. As Soto did not argue that he is entitled to qualified immunity because he relied on the advice of counsel, and because defense counsel made that suggestion for the first time in the post-briefing oral argument, however, the Court need not determine what weight to give Erie. In any event, the Court finds that Soto did not merely rely on the advice of Joe and Al Zullo; rather, he entirely deferred to their judgment on the legal issues implicated by shutting down the quarry.

In arguing that he is entitled to qualified immunity, Soto points to Hardesty, 824 F. App'x at 477, in which the Ninth Circuit held that municipal officials were entitled to qualified immunity for violating the

plaintiffs' substantive due process rights in shutting down a mining operation. Even setting aside its non-binding nature, that case is unpersuasive. There, the individual defendants received multiple complaints about an expansion of the operation and had a reasonable basis to believe that their actions in shutting it down did not violate the original vested right. Id. The record here, however, does not support Soto's assertions about the quantity or severity of complaints received by the zoning office, nor does it support his testimony about boulders rolling down the hill into the bordering roads. And, unlike in Hardesty, Soto has not identified a reasonable basis for him to have believed that these perceived safety concerns allowed him to lawfully deprive Plaintiffs of their vested, nonconforming use.

Because the unlawfulness of Maturo's and Soto's actions was clearly established at the time of their conduct, and because it was objectively unreasonable for them to believe that they had a lawful basis for their conduct, the Court concludes that Maturo and Soto are not entitled to qualified immunity.

IV. SECTION 1983 CLAIM AGAINST THE TOWN

A. Legal Standard

Plaintiffs' substantive due process claim against the Town also arises under § 1983, which has distinct requirements for a municipal defendant. Under Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), a municipality can be directly liable for violations of § 1983 committed by its employees in certain circumstances. See also Back, 365 F.3d at 128 (explaining that municipalities are considered "persons" within the meaning of § 1983). In each circumstance, a plaintiff "must demonstrate that through its deliberate conduct, the municipality was the moving force behind the injury alleged.". Agosto v. N.Y.C. Dep't of Educ., 982 F.3d 86, 98 (2d Cir. 2020) (cleaned up) (emphasis in original) (quoting Bd. of Cnty. Comm'rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997), and Roe v. City of Waterbury, 542 F.3d 31, 40 (2d Cir. 2008)). "That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights." Brown, 520 U.S. at 404, 117 S.Ct. 1382. "This requirement follows from the principle that, 'under § 1983, local governments are responsible only for their own illegal acts.'" Hu v. City of New York, 927 F.3d 81, 104 (2d Cir. 2019) (emphasis in original) (quoting Connick v. Thompson, 563 U.S. 51, 60, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011)).

The Second Circuit has distilled the requirements of a Monell claim into three elements, holding that a plaintiff must prove: "(1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right." Wray, 490 F.3d at 195. With respect to the first element, "[a]n official municipal policy can take a variety of forms." Hu, 927 F.3d at 104. Here, Plaintiffs primarily pursue a ratification theory of Monell liability. To prevail on this theory, a plaintiff must prove "that an officer with final policymaking authority ordered, ratified, or 'was aware of a subordinate's unconstitutional actions, and consciously chose to ignore them, effectively ratifying the actions.'" Id. at 105 (quoting Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 126 (2d Cir. 2004)). Specifically, "where a policymaking official exhibits deliberate indifference to constitutional deprivations caused by subordinates, such that the official's inaction constitutes a 'deliberate

choice,' that acquiescence may 'be properly thought of as a city 'policy or custom' that is actionable under § 1983.'" Amnesty Am., 361 F.3d at 126 (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). "A plaintiff need only identify one such decision to bring a Monell claim, for 'even a single action by a decisionmaker who possesses final authority to establish municipal policy with respect to the action ordered may deprive the plaintiff of his or her constitutional rights.'" Hu, 927 F.3d at 105 (quoting Montero v. City of Yonkers, N.Y., 890 F.3d 386, 403 (2d Cir. 2018)). See also Agosto, 982 F.3d at 98 ("The Supreme Court has said that a municipality may be liable for the acts of a single official—but only if that official is someone 'whose edicts or acts may fairly be said to represent official policy' for the entire municipality." (quoting Monell, 436 U.S. at 694, 98 S.Ct. 2018)).

B. Discussion

The Court concludes that the ZBA, the entity with final decision-making authority to uphold the cease-and-desist orders, ratified the unconstitutional conduct of Soto and Maturo by relying heavily on Al Zullo. The Court further concludes that the ZBA's ratification caused the deprivation of Plaintiffs' substantive due process rights in violation of the Fourteenth Amendment.

At the summary judgment stage, the Court (Dooley, J.) held that the ZBA had final policymaking authority with respect to upholding the cease-and-desist orders. One Barberry Real Est. Holding, LLC, 2021 WL 4430599, at *9 (citing Conn. Gen. Stat. §§ 8-6(a)(1) & (3)). Neither party disputes this conclusion, see Pls.' Br., ECF No. 321, at 47-48; Defs.' Br., ECF No. 320, at 25, so the Court need not revisit it.

The Court finds that the ZBA effectively ratified Soto and Maturo's unconstitutional shutdown of the quarry. First, as the Court has held above, Al Zullo had an obvious conflict of interest in advising the ZBA. The evidence demonstrated that he participated in advising Soto about the cease-and-desist orders, and he significantly downplayed his prior involvement to the ZBA. He also solicited an ethical opinion from another conflicted attorney which, unsurprisingly, concluded that he should not be recused. In the face of this evidence, the ZBA chose not to recuse Al Zullo and, instead, heavily relied upon him because of the legal intricacies the case presented.

This conflict of interest infected the ZBA's decision-making process. Though Al Zullo perceived his role in advising the ZBA as neutral and claimed to draft his legal staff report in the vein of a court's impartial instructions to a jury, he in fact unfairly bolstered Soto's arguments and urged the ZBA to disregard Biancur's 2014 decision due to an unsubstantiated insinuation that Biancur's criminal conduct, though admittedly unrelated to his 2014 decision, somehow affected the validity of that decision. Al Zullo claims to have done this because he believed the 2014 decision was not valid under Connecticut General Statute § 8-3(f)—an irrelevant statute. On the other hand, Plaintiffs presented the ZBA with three experts who all presented well-supported legal arguments that Biancur's 2014 decision was binding on the Town. The ZBA then ratified Soto's and Al Zullo's positions by disregarding Biancur's 2014 decision without so much as mentioning the wealth of legal authority supporting Plaintiffs' arguments on that point.

Plaintiffs also presented sound legal arguments that they could not seek a special exception permit under Section 31 of the Town's zoning regulations. Soto, through Conway, argued that Plaintiffs could ask the PZC to discretionarily modify the standards

set forth in Section 31, but Plaintiffs rebutted this argument with expert opinions that the PZC could not do so, and Soto did not rebut them on this point. After the public comment period closed, Al Zullo intervened to bolster Soto's position by arguing that Plaintiffs should have sought a special exception permit alongside a variance. This intervention defies Al Zullo's purportedly neutral role. The ZBA then effectively rubber-stamped Al Zullo's position by upholding Soto's cease-and-desist orders and ordering Plaintiffs to submit a special exception permit and a variance application, notwithstanding that Plaintiffs had no opportunity to comment on this issue.

Moreover, the ZBA was presented with evidence of Maturo's role in the shutdown of the quarry and chose to ignore that evidence. Indeed, Soto presented the ZBA with the Code Enforcement Committee meeting minutes from May 9, 2017. As explained above, those minutes show that Maturo was a key actor in the decision to shut down the quarry and that he was motivated by the political pressure imposed by the quarry opposition group. Patton highlighted that evidence to the ZBA and corroborated it with his account of Maturo's interference with the blasting permits ahead of the 2015 election. Notably, Al Zullo made no mention of Maturo's conduct when advising the ZBA, and, similarly, the ZBA made no mention of Maturo's conduct in its deliberation. From this, the Court finds that the ZBA was deliberately indifferent to, and effectively ratified, Maturo's unconstitutional conduct.

Finally, the last two elements of Plaintiffs' Monell claim—that the ZBA's ratification caused a violation of Plaintiffs' substantive due process rights—are satisfied here. Although Soto and Maturo's conduct was the first cause of the shutdown of the quarry, the shutdown would not have continued but for the ZBA's ratification of their conduct. In other words, the shutdown of the quarry would not have occurred, and would not have continued past the administrative appeal period, but for the combination of: (1) Soto's conduct in pushing for and ultimately effectuating the shutdown of the quarry; (2) Maturo's conduct in giving the final direction to proceed with the shutdown of the quarry; and (3) the ZBA's conduct in upholding the shutdown of the quarry. Thus, the ZBA's ratification of the Maturo's and Soto's conduct was one of three proximate causes of the sustained shutdown of the quarry. This satisfies Monell and, as explained above, does not inadvertently diminish Soto's and Maturo's personal involvement.⁶⁴ The shutdown of the quarry deprived Plaintiffs of their substantive due process rights in violation of the Fourteenth Amendment and caused Plaintiffs' ultimate injury. Accordingly, the Town is liable for the ZBA's final policymaking act of ratifying Maturo's and Soto's unconstitutional conduct.

64 As an alternative to their ratification theory of Monell liability, Plaintiffs contend that the ZBA itself intentionally violated their Fourteenth Amendment rights. Pls.' Br. at 47. The Court need not address this argument, in light of its conclusion that the ZBA did not exercise independent judgment but rather ratified Soto's and Maturo's unconstitutional conduct.

V. TAKING AND INVERSE CONDEMNATION

Plaintiffs also contend that the Town's conduct amounts to a regulatory taking without just compensation in violation of the Takings Clause of the Fifth Amendment, applicable to the states through the Fourteenth Amendment. Relatedly, Plaintiffs contend that they are entitled to just compensation for inverse condemnation under Article First, Section 11 of the Connecticut Constitution, which involves the

same analysis as a federal Takings Clause claim. See Bauer v. Waste Mgmt. of Conn., Inc., 234 Conn. 221, 249-50, 662 A.2d 1179 (1995).

When denying the Town's motion for summary judgment with respect to Plaintiffs' substantive due process claim, Takings Clause claim, and inverse condemnation claim, the Court (Dooley, J.) explained that Plaintiffs could not prevail on both a substantive due process claim and a Takings Clause claim. One Barberry Real Est. Holding, LLC, 2021 WL 4430599, at *16. The Court reasoned that, if the Town's conduct were found to be arbitrary and irrational in violation of substantive due process, that conduct could not support a cognizable Takings Clause claim because "[n]o amount of compensation can authorize" an arbitrary and impermissible government action. Id. at *16 n.25 (quoting Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 543, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005)).

Moreover, Plaintiffs represent that, if the Court were to find the Town liable for violating the substantive due process protections of the Fourteenth Amendment, they would not pursue their Takings Clause and inverse condemnation claims. Pls.' Br. at 62 n.9. For that reason, and in light of the mutual exclusivity of these claims, the Court finds Plaintiffs' Takings Clause and inverse condemnation claims moot and does not address them further.

VI. MUNICIPAL ESTOPPEL

Plaintiffs assert a Connecticut common law claim of municipal estoppel against the Town on the ground that Biancur's 2014 decision induced Plaintiffs to invest heavily in the quarry operation, such that that they incurred injury by the Town later shutting the quarry down. A municipal estoppel claim is, in essence, a promissory estoppel claim asserted against a municipality, Levine v. Town of Sterling, 300 Conn. 521, 534 n.11, 16 A.3d 664 (2011), though a municipal estoppel claim has additional, unique requirements. As the Connecticut Supreme Court has held:

[I]n order for a court to invoke municipal estoppel, the aggrieved party must establish that: (1) an authorized agent of the municipality had done or said something calculated or intended to induce the party to believe that certain facts existed and to act on that belief; (2) the party had exercised due diligence to ascertain the truth and not only lacked knowledge of the true state of things, but also had no convenient means of acquiring that knowledge; (3) the party had changed its position in reliance on those facts; and (4) the party would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents.

Cortese v. Plan. & Zoning Bd. of Apps. of Town of Greenwich, 274 Conn. 411, 418, 876 A.2d 540 (2005) (quoting Bauer, 234 Conn. at 247, 662 A.2d 1179). "In municipal zoning cases, however, estoppel may be invoked (1) only with great caution, (2) only when the resulting violation has been unjustifiably induced by an agent having authority in such matters, and (3) only when special circumstances make it highly inequitable or oppressive to enforce the regulations." Id. (quoting Bauer, 234 Conn. at 247, 662 A.2d 1179).

The Court declines to find that municipal estoppel entitles Plaintiffs to damages, as they contend. This claim arises from the same set of facts underlying Plaintiffs' substantive due process claim. Because the Court has already found in Plaintiffs' favor with respect to their substantive due process claim, and because the Court will not award duplicative damages, the Court need not reach their municipal estoppel claim. Moreover, the Court questions the legal basis for a damages award against the Town on Plaintiffs' municipal estoppel claim. In its posttrial brief, the Town reiterates its argument that money damages are not an appropriate remedy for a municipal estoppel claim. Defs.' Br. at 33 n.9. At the summary judgment stage, the Court (Dooley, J.) declined to grant summary judgment in the Town's favor with respect to Plaintiffs' municipal estoppel claim on this basis. One Barberry Real Est. Holding, LLC, 2021 WL 4430599, at *17. Because Connecticut courts have treated municipal estoppel claims like promissory estoppel claims, and because money damages are an appropriate remedy for promissory estoppel claims, the Court (Dooley, J.) was "not convinced that, if faced with this question, the Connecticut Supreme Court would deem a damages remedy inapplicable to a municipal estoppel claim." Id. Now, faced with the prospect of awarding damages, the Court declines to speculate as to whether the Connecticut Supreme Court would indeed deem a damages remedy applicable to Plaintiffs' municipal estoppel claim, in light of the "great caution" associated with this claim. See Cortese, 274 Conn. at 418, 876 A.2d 540.

VII. SLANDER OF TITLE

Plaintiffs also assert a Connecticut common law claim of slander of title against Milici related to the tax designation of the quarry property. Specifically, Plaintiffs contend that Milici falsely designated the property as farmland, even though he knew there was an industrial quarry operation on the property. Because of the farmland designation, if Plaintiffs had attempted to transfer the property within a statutory time period, they would have been assessed a penalty. The following additional factual findings pertain to this claim.

A. Additional Findings of Fact

1. Farmland Designation ⁶⁵ Application

65 Various witnesses, attorneys, and documents have called it a farmland classification, a farmland designation, and a farmland exception, without suggesting there is a distinction between them. The Court uses these terms interchangeably.

As noted above, in 2014, Milici designated the nine acres where the quarry was operating as industrial land rather than farmland, which resulted in a higher tax rate. Ex. 79 at 2; Ex. 80 at 1; 1/30/23 Tr. at 105:24-106:7.

Around the spring of 2016, after What TF conveyed the quarry to One Barberry, DiLungo visited Milici's office and applied to have a portion of the property classified as farmland. During this visit, DiLungo and Milici together completed an "Application to the Assessor for Classification of Land as Farm Land," see Ex. 39; 2/3/23 Tr. at 745:6-20, and the ultimate consequence of this application was that the thirty-acre quarry property was classified as farmland for tax purposes, see 2/3/23 Tr. at 793:8-10.

DiLungo testified that he followed Milici's guidance on how to complete the application form. 2/3/23 Tr. at 747:18-23. On the application form, some fields were completed in black ink while others were completed in blue ink, and the handwriting appears distinct corresponding with the different ink colors. See Ex. 39. DiLungo and Milici testified consistently that DiLungo wrote the portions of the form in black ink and Milici wrote the portions of the form in blue ink. 2/3/23 Tr. at 745:24-25, 746:18, 794:15-795:5. Specifically, DiLungo wrote the mailing address as "218 Foxon Rd., East Haven CT," as well as his own name, address, and contact information. Ex. 39. 218 Foxon Road was DiLungo's address. 2/3/23 Tr. at 752:17, 795:24-795:6.

He also wrote that the farming operation included corn and cows, and then he signed in the "Owner's Affidavit" field, attesting that the statements in the form were true and that he had reviewed certain provisions of the Connecticut General Statutes. Ex. 39.

Milici wrote "One Barberry Real Estate Holdings LLC" in the field for the owners' name; he wrote that 30.12 acres were subject to the application and further information about the nature of the farmland; and he signed in the "Assessor's Verification" field. Ex. 39. Plaintiffs contend that Milici wrote One Barberry's name in the owner field "below an apparently whited out entry." Pls.' Br. at 60; 2/1/23 Tr. at 496:9-497:1. The Court can make out other fields that appear to have been whited out and written over—for example, the blue ink in the "TOTAL ACREAGE" field and the "TILLABLE C" field. See Ex. 39. But the Court cannot discern any white-out marks in the field for the owner's name.⁶⁶ Milici testified that he "corrected" the form using whiteout "because the wrong title was put on there." 2/3/23 Tr. at 800:11-14; see also 2/3/23 Tr. at 746:5-6 (DiLungo testifying that no whiteout was applied in his presence). But Milici was not asked specifically which fields on the form he whited out, and it is not self-evident that, by "title," he was referring to the name of the property owners.

66 The Court observes that the original copy of Exhibit 39 submitted to the courtroom deputy appears to be a photocopy.

DiLungo completed his portions of the application form on May 10, 2016. Ex. 39; 2/3/23 Tr. at 746:24-747:1, 793:11-13. Milici testified that, pursuant to laws applicable to the tax assessor's office, the application form should have been submitted only between September 1 and November 1 of the year; as a result, Milici "held onto" the form until September of that year. 2/3/23 Tr. at 793:14-20. This testimony is consistent with Milici's signature in the "Assessor's Verification" field, which is dated September 1, 2016. Ex. 39. In signing the application form, Milici was required to certify that the owner listed was the actual owner of the property. 2/3/23 Tr. at 794:11-14.

Neither Patton nor anyone authorized to act on One Barberry's behalf authorized the filing of the farmland classification application. 2/1/23 Tr. at 463:12-15. DiLungo testified that he did not recall why he filled out the application form given that, as of May 10, 2016, What TF had already conveyed the thirty-acre quarry property to One Barberry. 2/3/23 Tr. at 747:9-14. He was not asked, however, what he was trying to achieve in submitting the farmland application.

As explained above, the quarry occupied approximately thirty acres out of a larger, 250-acre property owned by What TF. DiLungo understood that he was required to submit the farmland classification application to the tax assessor's office as a result of the conveyance of the quarry parcel to One Barberry. 2/3/23 Tr. at 757:22-25, 758:9-12; see also 2/3/23 Tr. at 795:13-15. Although DiLungo was not asked why he believed he was required to do this, the Court infers that DiLungo's motive in submitting the application was to preserve the farmland tax status for the portions of the larger property that What TF still owned after the severance of the quarry parcel. See 2/3/23 Tr. at 745:13-17 (DiLungo testifying that he had a discussion with Milici about classifying a portion of the property as farmland and the other portion as a quarry), 759:24-760:6 (DiLungo testifying that part of the quarry was classified as farmland and part was classified as a quarry, and that there were "two different tax

structures" associated with those classifications), 795:20-23 (Milici acknowledging that DiLungo owned other property in East Haven that would have been eligible for the farmland classification). That is the only logical motive the Court can discern for why DiLungo submitted the form at all, and it is consistent with the tax status of the larger property before the conveyance of the subject quarry to One Barberry.

The way the form was completed by DiLungo and Milici, however, resulted in the classification of the thirty-acre quarry property owned by One Barberry as farmland for tax purposes, which does not appear to have been DiLungo's intention. The parties dispute whether Milici maliciously caused this to happen, which the Court will discuss below.

2. Farmland Designation Certificate

The farmland designation certificate was stamped as received by the Town's land records on May 9, 2017.⁶⁷ Ex. 40; see 2/3/23 Tr. at 797:6-11. Consistent with the application form, the certificate lists One Barberry as the owner, with the owner's address as 218 Foxon Road. Ex. 40. The certificate lists the date of acquisition as March 14, 2016, and a conveyance penalty expiration date as March 14, 2026. Id. This meant that, if One Barberry sold the property prior to the conveyance penalty expiration date, it would have been subject to a penalty under Connecticut law. 2/3/23 Tr. at 799:8-12. See also Ex. 39 (DiLungo attesting that he had reviewed Connecticut General Statutes § 12-504a, which prescribes a monetary penalty if a property designated as farmland is sold within ten years of acquisition or designation).

67 Plaintiffs have not argued that the fact that the certificate was received on this date—the same date that Soto issued the third cease-and-desist order shutting down the quarry—has probative value for their substantive due process or slander of title claims.

On June 15, 2017, Alter sent a letter to Milici on behalf of One Barberry demanding that he remove the farmland designation from the quarry property. Ex. 66 at 3. He explained that the farmland classification application form "seems to have been substantially altered by unknown parties," and was not authorized by One Barberry. Id.

On December 6, 2017, Milici responded through Sgrignari, who was representing him in the present action. Ex. 67; see also ECF No. 9. Sgrignari wrote that Milici had "properly" recorded the farmland designation pursuant to the farmland classification application. Ex. 67. Sgrignari also wrote that, "since no current farming operations are actively being conducted at the premises, Mr. Milici has removed the farmland exemption as a regular matter of course as of October 1, 2017." Id. Consistent with this representation, Milici testified that, after receiving Alter's letter, he consulted with counsel and, at some point thereafter, he reviewed the property from the road "to see if it was actually still being farmed." 2/3/23 Tr. at 800:19-22, 802:11. Because he "didn't see any farming going on," Milici removed the farmland designation. 2/3/23 Tr. at 800:21-22.

On December 19, 2017, another attorney for One Barberry responded to Sgrignari, disputing the propriety of Milici recording the farmland designation and disputing that the designation had been removed as a regular matter of course. Ex. 68.

B. Legal Standard

To prevail on a slander of title claim under Connecticut common law, a plaintiff must prove (1) "the uttering or publication of a false statement derogatory to the plaintiff's title," (2) made with "malice," (3) "causing special damages as a result of diminished value of the plaintiff's

property in the eyes of third parties." Dowling v. Heirs of Bond, 345 Conn. 119, 164, 282 A.3d 1201 (2022) (quoting Fountain Pointe, LLC v. Calpitano, 144 Conn. App. 624, 652, 76 A.3d 636 (2013)); accord Chamerda v. Opie, 185 Conn. App. 627, 648-49, 197 A.3d 982 (2018).

The malice element "requires a showing that a statement was made with knowledge that it was false or with reckless disregard for its truth." Dowling, 345 Conn. at 165, 282 A.3d 1201 (quoting Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 637, 969 A.2d 736 (2009)). "A negligent misstatement of fact will not suffice; the evidence must demonstrate a purposeful avoidance of the truth." Id. (quoting Gambardella, 291 Conn. at 637, 969 A.2d 736). The Connecticut Supreme Court has explained that, although the reckless disregard standard is "not easily captured in a simple definition," reckless disregard may be found when the defendant made the false statement "with a high degree of awareness of probable falsity or entertained serious doubts as to the truth" of it. Gambardella, 291 Conn. at 639, 969 A.2d 736 (cleaned up) (quoting Woodcock v. J. Publ'g Co., 230 Conn. 525, 540, 646 A.2d 92 (1994)); accord Dowling, 345 Conn. at 165, 282 A.3d 1201. For example, "a refusal to retract a statement that has been demonstrated to be false and defamatory might be relevant in showing recklessness at the time the statement was published." Gambardella, 291 Conn. at 639, 969 A.2d 736 (cleaned up) (quoting Holbrook v. Casazza, 204 Conn. 336, 349, 528 A.2d 774 (1987)). Whether the defendant acted with actual malice is a question of fact. Id. at 638, 969 A.2d 736. The third element requires showing pecuniary damages. Chamerda, 185 Conn. App. at 648-49, 197 A.3d 982 (citing Elm St. Builders, Inc. v. Enters. Condo. Ass'n, 63 Conn. App. 657, 670, 778 A.2d 237 (2001)).

C. Discussion

The Court does not find Milici liable for slander of title. Assuming that recording the farmland designation was the publication of a false statement derogatory to Plaintiffs' title, they have not shown that, more likely than not, Milici recorded the farmland designation with malice.⁶⁸ Importantly, DiLungo participated in filling out the farmland classification application, and his prior and ongoing involvement in the property gave Milici a reasonable basis to believe he had authority to complete the farmland classification application. For example, DiLungo's limited liability company owned the quarry property before the 2016 conveyance; after that conveyance, DiLungo retained the rest of the 250acre property, a mortgage interest in the quarry property, and a small interest in FRR, which owned and leased property from One Barberry. In light of DiLungo's participation in filling out the application and his ongoing relationship with

68 With respect to the third element of Plaintiffs' slander of title claim, the Court (Dooley, J.) held that Plaintiffs identified pecuniary damages "in the form of attorney's fees incurred in sending Milici their demand letter and in ultimately bringing this litigation." One Barberry Real Est. Holding, LLC, 2021 WL 4430599, at *25. But see Lovetere v. Cole, No. LLICV040092547S, 2008 WL 4150178, at *7-8 (Conn. Super. Ct. Aug. 15, 2008) (rejecting a slander of title claim where the plaintiff failed to prove pecuniary damages "apart from their attorneys fees and litigation expenses"), aff'd, 118 Conn. App. 680, 984 A.2d 1171 (2009); Marks v. Matuelvich, No. CV020099337S, 2005 WL 531724, at *12 (Conn. Super. Ct. Jan. 31, 2005) (same); JP Morgan Chase Bank v. Frank, No. CV095010809, 2012 WL 5519638, at *6 (Conn. Super. Ct. Oct. 25, 2012) (same). Because the Court finds Plaintiffs have not satisfied the malice element, the Court does not address the damages element.

the quarry property, the Court cannot find that Milici had a high degree of awareness that DiLungo probably was not an owner of the quarry property with authority to complete the farmland classification application. See Gambardella, 291 Conn. at 639, 969 A.2d 736.

Plaintiffs contend that Milici displayed reckless disregard for the truth of the information he wrote on the farmland classification application by failing to verify that information. Specifically, they contend that, although Milici whited out and rewrote over certain fields, he made no effort to visit the land records office, located in the same municipal building as his office, to verify that DiLungo was the owner of the quarry property. Pls.' Br. at 60; 2/3/23 Tr. at 801:16-19. While this may have been negligent on Milici's part, it does not show that he had a reason to believe DiLungo did not have authorization to complete the farmland classification application form or that he was purposely avoiding ascertaining the truth on that issue. See Dowling, 345 Conn. at 165, 282 A.3d 1201. The fact that Milici helped DiLungo complete the form does not, in itself, suggest that Milici's failure to verify information DiLungo provided him amounted to reckless disregard for the truth of that information. And, as explained above, DiLungo's prior and ongoing involvement in the quarry property gave Milici a basis to believe that the information he supplied was correct and he had the authority to submit the farmland classification application.

In addition, the Court does not construe Milici's conduct after receiving Plaintiffs' demand letter to suggest that he acted with malice when recording the farmland designation certificate. Although Sgrignari's letter represented that Milici properly recorded the farmland designation certificate in reliance on DiLungo completing the application form, that representation was little more than a general denial of liability. In the same letter, Sgrignari explained that Milici removed the farmland designation because it was no longer warranted, which obviated the risk that Plaintiffs would wrongfully incur the statutory tax penalty. Thus, while Milici maintained the truth of his statement, he ultimately agreed to retract the statement in recognition that it was no longer true. While this may show Milici was negligent in originally recording the farmland designation certificate, the Court does not construe this as showing the degree of recklessness that Plaintiffs must show to prevail on their slander of title claim. See Gambardella, 291 Conn. at 639, 969 A.2d 736.

Because Plaintiffs have not shown, by a preponderance of the evidence, that Milici acted with malice, the Court does not find Milici liable for slander of title.

DAMAGES

VIII. COMPENSATORY DAMAGES

A. Legal Standard

Because Plaintiffs have prevailed on their § 1983 claims against the Soto, Maturo, and the Town, the Court must determine the compensatory damages to which they are owed. Henry v. Gross, 803 F.2d 757, 768 (2d Cir. 1986) ("Damages are properly awarded for civil rights violations when the plaintiff has suffered an actual loss as a result of a constitutional deprivation.").

The "basic purpose of a § 1983 damages award" is "to compensate persons for injuries caused by the deprivation of constitutional rights." Carey v. Piphus, 435 U.S. 247, 254, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). See also Kerman v. City of New York, 374 F.3d 93, 124 (2d Cir. 2004) (explaining that, "where the [trier of fact] has found a constitutional violation and ... the violation resulted in some

injury to the plaintiff, the plaintiff is entitled to an award of compensatory damages"). Because § 1983 is "a species of tort liability," the common law of torts is "the appropriate starting point" to determine a plaintiff's compensatory damages. Carey, 435 U.S. at 253, 258, 98 S.Ct. 1042 (citation and internal quotation marks omitted). See also Townes, 176 F.3d at 146 ("Civil actions brought under § 1983 are analogous to state common law tort actions, serving primarily the tort objective of compensation."). "Accordingly, when § 1983 plaintiffs seek damages for violations of constitutional rights, the level of damages is ordinarily determined according to principles derived from the common law of torts." Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 306, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986); accord Townes, 176 F.3d at 147-48.

Under the general principles of tort law, the "goal" of a damages award is "to compensate [the plaintiff] for the injuries caused by" the defendant's conduct, meaning that "the amount of damages awardable is decided by the amount of injury caused." Amato v. City of Saratoga Springs, N.Y., 170 F.3d 311, 318 (2d Cir. 1999). See also Stachura, 477 U.S. at 306-07, 106 S.Ct. 2537 (explaining that "damages in tort cases are designed to provide compensation for the injury caused to [the] plaintiff by" the defendant's conduct, which must be "grounded in determinations of [the] plaintiffs' actual losses" (citations and internal quotation marks omitted)). The plaintiff bears the burden to prove damages. Rinaldi v. Laird, No. 3:14-cv-91 (JAM), 2016 WL 4179837, at *7 (D. Conn. Aug. 5, 2016) (citing Stachura, 477 U.S. at 308, 106 S.Ct. 2537).

To calculate the plaintiff's losses, a court begins with the common law principle that "a tortfeasor should be required to put his victim in the same economic position that he would have occupied had he not been injured." McCrann v. U.S. Lines, Inc., 803 F.2d 771, 773 (2d Cir. 1986). Although a factfinder cannot "base its award on speculation or guesswork," a plaintiff "need not prove the amount of loss with mathematical precision." Vicente v. Andrzelewski, No. 3:20-cv-1079 (OAW), 2022 WL 1172325, at *3 (D. Conn. Apr. 20, 2022) (quoting Sir Speedy, Inc. v. L&P Graphics, Inc., 957 F.2d 1033, 1038 (2d Cir. 1992)). Rather, a plaintiff need only "present evidence that provides the finder of fact with a reasonable basis upon which to calculate the amount of damages." Id. (same).

B. Additional Factual Findings

The following factual findings are relevant to the Court's damages analysis. In July of 2019, TG Quarry, which was the entity composed of Temkin, Hughes, and DiLungo, sold its 22.5% ownership interest in FRR. 2/1/23 Tr. at 437:11-438:8. Because the quarry had been shut down for two years at that point, and because Plaintiffs' appeal was still pending before the Connecticut Superior Court, TG Quarry's members "wanted to get out," given that "they weren't getting any income." 2/2/23 Tr. at 656:11-14. Patton's wife, Diane Becker, bought TG Quarry's 22.5% ownership interest for $337,000. 2/1/23 Tr. at 437:11-22; 2/2/23 Tr. at 656:5.

Plaintiffs were legally entitled to operate the quarry around December of 2019, after the Connecticut Appellate Court denied Defendants' petition for certification to appeal the Superior Court's decision. Ex. 70. At that point, however, FRR had no employees, equipment, income, or customers because it had been shut down for approximately two-and-a-half years. 2/1/23 Tr. at 388:17-389:3. It also had approximately $6 million in debt and no ability to borrow additional money. 2/1/23 Tr. at 389:4-11. FRR's only asset was the quarry property,

which FRR owned through One Barberry. 2/1/23 Tr. at 390:14-18. But Patton testified that, because approximately $3.8 million were already mortgaged on the property and FRR did not have any cash flow, neither FRR nor One Barberry could borrow more money against the property. 2/1/23 Tr. at 390:14-23, 391:13-22.⁶⁹

69 At various points during the damages portion of the trial, Defendants objected to Patton's testimony regarding the value of the property and FRR's financial means on the ground that Patton was not qualified as an expert to testify on those matters. See, e.g., ECF No. 221; 2/1/23 Tr. at 393:2-6. The Court overruled most of Defendants' objections on the ground that the parties previously stipulated that Patton could testify at trial "as to his opinion as to the quarry property and its value," as well as the "bases for his opinion," in accordance with "applicable law regarding opinion testimony by a landowner as to value." ECF No. 82; see 2/1/23 Tr. at 393:7-394:15. See also Fed. R. Evid. 701 advisory committee's note to 2000 amendment (explaining that "most courts have permitted the owner or officer of a business to testify to the value or projected profits of the business, without the necessity of qualifying the witness as an accountant, appraiser, or similar expert," because of "the particularized knowledge that the witness has by virtue of his or her position in the business"); 2/1/23 Tr. at 443:11-444:5 (allowing Patton to testify as to the financials of FRR and One Barberry under Federal Rule of Evidence 701).

Accordingly, Patton reached an agreement with two individuals from New York, Todd Ruttura⁷⁰ and Jimmy Juliano. See 2/1/23 Tr. at 396:20-23; 2/9/23 Tr. at 1588:17-18, 1600:10-11. As explained below, Patton had been negotiating a business arrangement with them in 2017 before the shutdown of the quarry. 2/1/23 Tr. at 396:11-14; 2/9/23 Tr. at 1593:18-20. He reached out to them again in late 2019 or early 2020, and they informally agreed to "form a partnership to start the quarry up again." 2/1/23 Tr. at 396:20-23. In November of 2020, after a delay due to the COVID-19 pandemic, Patton, Becker, Ruttura, and Juliano formalized the creation of East Haven Trap Rock Quarry, LLC ("EHTRQ"). 2/1/23 Tr. at 401:4-8; Ex. 120 at 1 (EHTRQ's membership interest purchase and sale agreement); Ex. 121 at 1 (EHTRQ's operating agreement). Ruttura and Juliano participated in the transaction through their limited liability companies, North Country Stone, LLC, and Stone Equities, LLC, respectively. 2/9/23 Tr. at 1589:25; Ex. 120 at 1, 17.

70 Ruttura owns a heavy haul trucking company and works in his family's "foundation and excavation business" in New York City and Long Island. 2/9/23 Tr. at 1587:16-18. He has been familiar with "crushing material" in the manner of recycling concrete, rock, and brick, which is more common than mining raw material in his region, though he had some experience with quarrying in upstate New York. 2/9/23 Tr. at 1588:6-13. Ruttura has known Patton for twelve years, had some business transactions with him before the relevant events, and described him as a "dear friend." 2/9/23 Tr. at 1588:19, 1588:22-25, 1589:3-6. The Court somewhat discounts the weight given to his testimony in light of his personal and professional relationship with Patton. Moreover, as discussed below, Ruttura has some degree of incentive to testify in Patton's favor because the limited liability company he owns with Patton stands to benefit from a damages award in this action, although Ruttura testified credibly that his business endeavors would not be meaningfully affected if no damages were awarded in this action. See 2/9/23 Tr. at 1611:11-1612:18.

According to Patton, Ruttura and Juliano could bring cash, equipment, and the ability to get credit, which they needed to restart the quarry operation. 2/1/23 Tr. at 397:11-14. The EHTRQ operating agreement reflects that, as of the formation of EHTRQ, Ruttura and Juliano, through their companies, had contributed a total of approximately $2.38 million worth of cash and equipment. Ex. 121 at 2; see also 2/1/23 Tr. at 400:9-10 (Patton testifying that the total value of the cash and equipment

contributed by Ruttura and Juliano was approximately $2.5 million). EHTRQ also took out loans to finance the acquisition of additional crushing equipment. 2/1/23 Tr. at 400:14-16.

For their part, Patton and Becker contributed all of their membership in FRR to EHTRQ, meaning that EHTRQ now owns 100% of FRR and One Barberry. 2/1/23 Tr. at 400:19-22. As a result, each of the four investors—Patton, Becker, Ruttura, and Juliano—owns a 25% share of EHTRQ. Ex. 121 at 12; 2/1/23 Tr. at 398:10; 2/9/23 Tr. at 1589:9-10. This means that the prior members of FRR, Patton and Becker, together own 50% of EHTRQ.

As part of the agreement, EHTRQ agreed to pay the mortgages and other liabilities on the quarry property. 2/1/23 Tr. at 401:19-20, 402:6-10. After a ramp-up period, EHTRQ became fully operational in November of 2022. 2/1/23 Tr. at 404:6. The Court will address further terms of the EHTRQ transaction below as relevant.

Throughout trial, Defendants objected to any testimonial and documentary evidence regarding EHTRQ as irrelevant to Plaintiffs' damages. See, e.g., ECF No. 219 at 14, 30; ECF No. 220 at 34; 2/8/23 Tr. at 1444:22-1445:13; 2/9/23 Tr. at 1590:17-20. The Court overruled those objections. See ECF No. 290; 2/8/23 Tr. at 1446:14-1447:1. As explained more fully below, FRR partially mitigated its losses by the formation of EHTRQ, and the forecasted profits of that company are subtracted from the lost profits calculated by Plaintiffs' accounting expert, effectively reducing the damages award. See Ex. 91 at 17-18.

C. Which Plaintiffs Are Entitled to Compensatory Damages

To begin, the Court finds that, of all the Plaintiffs, only FRR is entitled to compensatory damages, and those damages take the form of lost profits. FRR had a leasehold interest in the property for the purpose of operating the quarry and, as part of that interest, agreed to pay One Barberry's mortgage. See 1/30/23 Tr. at 103:1-5, 103:11-17. Through that leasehold interest, FRR had the constitutionally protected right to operate the quarry as a nonconforming use. Defendants' conduct deprived FRR of its constitutionally protected right in violation of the Due Process Clause of the Fourteenth Amendment, and FRR suffered actual loss from that deprivation in the form of the profits it otherwise would have generated. See 2/10/23 Tr. at 1816:1-4 (Plaintiffs' expert account testifying that, although he could not allocate the damages among Plaintiffs, they were "incurred by the operation," which refers to FRR).

To the extent the right attached to One Barberry as the property owner, that distinction is immaterial because One Barberry, in turn, was solely owned by FRR and conveyed that right to FRR by way of their lease agreement. Plaintiffs' brief suggests that, in addition to FRR recovering lost profits, One Barberry should recover approximately $1 million, constituting the lost fair rental value of the lease between the shutdown and the date when the quarry became legally operable. See Pls.' Br. at 62 (requesting this figure as pertaining to both their substantive due process claim and their alternate Taking Clause claim). But see id. at 78-79 (characterizing this figure as One Barberry's recovery under the alternate Taking Clause claim). Absent a meaningful explanation from Plaintiffs as to why One Barberry should recover separately from FRR, the Court declines to award such damages.

Plaintiffs also have not shown that the constitutionally protected right attached to Patton. At no point was Patton the sole owner of FRR, and thus it cannot be said that FRR's right to operate the quarry simply passed through FRR to Patton because he owned a 25% stake. As

an LLC, FFR is its own legal person with its own property rights (and obligations) independent of its members. See Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (a plaintiff "must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of" another"). Without showing that Patton himself had a constitutionally protected right that was deprived by Defendants, Plaintiffs have not shown that Patton suffered a compensable injury.

Furthermore, absent arguments from either party as to apportionment, the Court declines to apportion Plaintiffs' damages among the three Defendants found liable, and will instead hold them all jointly and severally liable for the entire damages award. Gagnon v. Ball, 696 F.2d 17, 19 n.2 (2d Cir. 1982) (noting that, where defendants are all liable for causing the same injury, all defendants "are then jointly and severally liable for the single award of compensatory damages"; only if more than one type of injury was suffered and not all of the defendants caused each of the injuries should the trier of fact apportion the compensatory damages); O'Neill v. Krzeminski, 839 F.2d 9, 12 (2d Cir. 1988) (recognizing that, normally, a trier of fact "need not allocate compensatory damages among defendants" unless "the liability of a defendant is limited to acts that inflict only a portion of the damages"); DiSorbo v. Hoy, 343 F.3d 172, 182 (2d Cir. 2003) (holding a municipality and municipal officer jointly and severally liable for a compensatory damages award under § 1983). As neither Plaintiffs nor Defendants have argued that any particular Defendant is more or less liable than any other Defendant, the Court sees no need to apportion damages among them. Rather, they will all be jointly and severally liable for the damages award.

D. Overview of Expert Accounting Opinions

To explain how the Court will arrive at its damages award, the Court briefly summarizes the expert accounting opinions presented by the parties. Plaintiffs presented the expert opinion of Joseph DeCusati, a partner at the accounting firm Marcum LLP. 2/10/23 Tr. at 1650:8-9. He has been a Certified Public Accountant since 1997, and he has been accredited in Business Valuation by the American Institute of Certified Public Accountants since 2012. Ex. 91 at 53. Over the course of the present litigation, he prepared four reports regarding the valuation of FRR.⁷¹ The Court will primarily refer to his most recent report, dated December of 2022, and will specifically indicate when it refers to any of his earlier reports.

71 Specifically, DeCusati prepared the first report in October of 2018, Ex. 89; a supplemental report in February of 2020, Ex. 547, which Plaintiffs represented was prepared for use in the parties' settlement discussions, see ECF No. 159 at 2; a second supplemental report in June of 2022, Ex. 90; and a third supplemental report in December of 2022, Ex. 91. See also 2/10/23 Tr. at 1657:3-1659:9 (DeCusati outlining the four reports). DeCusati's hourly rate increased with each report, ultimately ranging from $450 to $670, and he was assisted by various junior accountants whose hourly rates ranged from $315 to $520. Ex. 89 at 21; Ex. 547 at 6; Ex. 90 at 5; Ex. 91 at 21. DeCusati's fee was not contingent on the results of his analysis or the outcome of the litigation. 2/10/23 Tr. at 1655:7-13.

Defendants presented the expert opinion of Gary Liddicoat, a partner at HKA Global, which is an international dispute resolution consultant company. 2/14/23 Tr. at 2114:16-18; Ex. 542 at 30. He is also a Certified Public Accountant with accreditation in Business Valuation from the American Institute of Certified Public Accountants. 2/14/23 Tr. at 2114:6-9; Ex. 542 at 30. Liddicoat prepared two reports, the first in July of 2020, Ex. 542 at 1, and a short

supplemental report in December of 2022, Ex. 543 at 1.⁷² He did not perform an independent valuation of FRR, but was instructed to "review and analyze [DeCusati's] opinions and provide criticisms and illustrate the impact, the economic impact of those criticisms." 2/14/23 Tr. at 2120:7-12. Except for certain reports specifically identified herein, the parties stipulated to the admissibility of all the expert reports relevant to damages. 1/30/23 Tr. at 75:10-12, 77:11-19.

72 Liddicoat's hourly rate to prepare the first report was $310, Ex. 542 at 4, and his hourly rate to prepare the supplemental report was $350, Ex. 543 at 4. His fee was not contingent on the results of his analysis or the outcome of the litigation. Ex. 542 at 4; Ex. 543 at 4.

DeCusati calculated Plaintiffs' damages under the "lost profits" method, Ex. 91 at 4; 2/10/23 Tr. at 1659:16-23, discounted to present value, and Liddicoat did not meaningfully contest that this was an appropriate method, see Ex. 542 at 7 (showing that Liddicoat applied the same method as DeCusati). Accordingly, the Court will employ the lost profits method for calculating FRR's damages. The purpose of this method is "to make the plaintiff whole," which is done by calculating the difference between "what would have happened" and "what did happen." 2/10/12 Tr. at 1659:16-23; Ex. 91 at 4.

The first value, what would have happened, is a "forecast of the profits the plaintiff would have experienced" but for the defendant's conduct. Ex. 91 at 5. To produce this forecast, DeCusati explained that he would first look at "all the sources of income that" the company will have, keeping in mind factors such as the base year used to assess revenue, the "structure of the company historically," the industry, and the economy generally. 2/10/23 Tr. at 1660:1-16. Then, he would assess the costs associated with generating that revenue and the company's operating expenses; those costs and expenses are subtracted from revenue to result in the "cash flow available to the owners." 2/10/23 Tr. at 1660:17-21. After calculating the cash flows for the entire projection time period, DeCusati would "discount that to present value" to determine the "present value of future returns." 2/10/23 Tr. at 1660:22-1661:3. See McCrann, 803 F.2d at 773 (approving of discounting damages award to present value). DeCusati and Liddicoat disagree about how to assess many of the variables relevant to FRR's forecasted profits.

The second value in the lost profit analysis, what actually happened, requires calculating "the profits the plaintiff experienced or now anticipates." Ex. 91 at 5. This value captures the value of the plaintiff's mitigating efforts. To quantify that value, DeCusati employed essentially the same methodology to forecast EHTRQ's anticipated cash flows. See 2/10/23 Tr. at 1735:25-1736:5. The present value of EHTRQ's future returns, when apportioned to the returns FRR can expect, represent the value of FRR's mitigation efforts.

DeCusati opined that FRR's damages amount to approximately $12.7 million, Ex. 91 at 18, and that, in the event the Court were to apply a shortened projection period urged by Defendants, FRR's damages would amount to approximately $9.7 million, id. at 21. He explained that, in forecasting what FRR "would have become" and how the EHTRQ-FRR transaction mitigated FRR's damages, he relied heavily on Patton and had at least twenty conversations with him. 2/10/23 Tr. at 1653:10-19, 1654:2-9. In particular, DeCusati had to forecast FRR's cash flows, which required substantial conversations with Patton, because FRR did not produce such forecasts in the normal course of business before it was shut down in 2017 by Defendants. 2/10/23 Tr. at 1653:20-24.

Patton generally, but not always, agreed with DeCusati's methods and conclusions. 2/10/23 Tr. at 1655:1-3; see 2/2/23 Tr. at 671:21-24 (Patton testifying that he strongly disagreed with DeCusati's discount rate).

Liddicoat's first report criticized DeCusati's earlier reports, which were based on largely the same approach as DeCusati's December 2022 report, on the ground that DeCusati should not have relied on certain assumptions, discussed below.⁷³ See Ex. 542 at 7 ("The acceptance of and reliance on certain assumptions, coupled with certain methodological and mechanical errors in the valuation analysis and computation of damages, results in an overstated damages conclusion."). He opined that FRR's damages amounted to approximately $3.9 million. Id. at 29. Liddicoat's supplemental report adjusted his opinion regarding FRR's value in light of the EHTRQ transaction, see Ex. 543 at 7-9, but he did not generate a new damages opinion.

73 Liddicoat also disagreed with various aspects of DeCusati's earlier reports that are no longer relevant to his December 2022 report.

E. Forecast of What Would Have Happened

To forecast what FRR's profits would have been but for Defendants' conduct, the Court will employ the discounted cash flow method, as employed by both DeCusati and Liddicoat. Ex. 91 at 12; Ex. 542 at 7. The purpose of the discounted cash flow method is to measure the cash flows a plaintiff would have experienced in the future, but for the defendant's conduct, and then convert the future value of that money to its present value. 2/10/23 Tr. at 1686:8-16. The discount rate accounts for the risks of the cash flows into the future. 2/10/23 Tr. at 1686:15-17.

1. FRR's Sources of Revenue

Plaintiffs generally claim that two sources of revenue should be taken into account for the purpose of calculating FRR's forecasted profits: mining revenue and reuse revenue. First, FRR generated mining revenue by excavating earth materials and selling them to customers for construction purposes. Prior to the shutdown, FRR had been generating mining revenue from selling earth materials in the local market, and Plaintiffs claim that FRR had been about to increase its mining revenue by increasing excavation and selling the additional earth materials in the New York market. All references to the New York market appear to reference the New York metropolitan area, specifically, New York City and Long Island.

Second, Plaintiffs urge the Court to forecast a "reuse" revenue source because, but for Defendants' conduct, FRR would have generated revenue from accepting materials excavated from other locations, sometimes referred to as "fill," "refill," or "beneficial reuse," from the local and New York markets. All of these terms essentially refer to "bringing in material to be left at the quarry," and the Court will use them interchangeably. See 2/1/23 Tr. at 416:1-3. Environmentally, the quarry benefits from accepting reuse materials—hence the term beneficial reuse—because the materials fill the holes left from the mining operations and "bring the site back up to the elevation" to eliminate "declivities and cliffs" on the property. 1/31/23 Tr. at 262:1-7; 2/1/23 Tr. at 415:18-25. Ruttura and Defendants' trial expert geologist described this as reclaiming the land. 2/9/23 Tr. at 1602:2; 2/13/23 Tr. at 2046:21. Financially, a quarry operator benefits from accepting reuse because it can charge a "tipping fee" to customers who dispose of their fill in the quarry. 2/1/23 Tr. at 415:21-24.

The tipping fees establish reuse as a source of revenue for the quarry operator.

Although FRR did not have a history of generating reuse revenue,⁷⁴ Plaintiffs claim that, immediately prior to the shutdown in 2017, FRR was preparing to begin accepting reuse from both the local market and from the New York market, in conjunction with preparing to sell additional earth materials in the New York market. 2/14/23 Tr. at 2235:25-2236:5. To promote the efficiency of both endeavors, FRR intended to arrange for each truck carrying earth materials from the quarry to customers in New York to return to the quarry with reuse from New York. 2/1/23 Tr. at 408:8-13 (Patton testifying that this intention made "economic sense" because customers would "drop material off, pick up material and bring it back to New York," such that the trucks would be "full both ways"); 2/9/23 Tr. at 1596:6-7 (Ruttura testifying that this would "cut [the] trucking costs in half"). Thus, FRR would financially benefit from each outbound truck carrying earth materials for sale and from each inbound truck carrying reuse. As a result, the mining revenue and reuse revenue generated from the New York market are related because entering the New York market for one purpose would be more efficient when paired with the other purpose.

74 Patton testified that the prior owner of the quarry—presumably referring to Spezzano, though it may have been DiLungo—had accepted reuse. 1/31/23 Tr. at 257:17-23.

Defendants, however, dispute that any mining revenue from the New York market and any reuse revenue from any market should be included in FRR's forecasted cash flows. They argue that there is no reliable way to test Plaintiffs' estimations of how much revenue FRR would have generated from those sources. After considering each source of revenue, and each market for that source, the Court finds that, but for Defendants' conduct shutting down the quarry, FRR would have generated the mining revenue forecasted by DeCusati, and it would have generated the reuse revenue from the New York market forecasted by DeCusati. The Court does not find, however, that FRR would have generated the significant reuse revenue from the local market forecasted by DeCusati, and the Court decreases that revenue to what it estimates with reasonable certainty.

a. Mining Revenue

First, for the reasons explained below, the Court adopts DeCusati's forecasted mining revenue from the local and New York markets at his estimated unit pricing.

i. Amount of Earth Materials Mined Annually

DeCusati explained that, based on historical data provided by Patton, FRR would have mined approximately 220,000 tons of earth materials per year for the local market for the entire projection period.⁷⁵ 2/10/23 Tr. at 1714:4-8; Ex. 91 at 37.

75 Defendants expressed some skepticism over this value. For example, Liddicoat testified that, based on bookkeeping data, FRR mined 224,640 tons of material in 2015, and approximately 180,000 tons of material in 2016. 2/14/23 Tr. at 2145:6-8; Ex. 542 at 13. He believed that there was not a year prior to 2015 when the tonnage mined reached the 2015 quantity, 2/14/23 Tr. at 2148:10-12, which suggests that he might have found the 2015 quantity of 224,640 tons to be an outlier. In addition, defense counsel cross-examined DeCusati on the reasonableness of his decision to forecast 220,000 tons of material mined annually in light of the historical data. 2/10/23 Tr. at 1748:15-20. Nevertheless, Liddicoat also forecasted that FRR would have mined 220,000 tons of earth materials per year for the local market, see Ex. 543 at 26, and Defendants did not propose some other annual tonnage for the Court to apply. Accordingly, the Court finds DeCusati's estimate reasonable, and will use his quantity of earth materials mined annually.

He kept this rate the same throughout the projection period, rather than forecasting an increased mining rate, based on Patton's representation that he would rather keep the quarry operation stable over time. 2/10/23 Tr. at 1715:4-18 (DeCusati explaining that Patton represented he did not want to "hit the market too heavily" and overtax the equipment); Ex. 91 at 13 n.38. See also 2/1/23 Tr. at 406:24-407:5 (Patton testifying that he would be "comfortable" selling between 250,000 and 300,000 tons of material per year, rather than selling as much as possible), 448:21-449:1 (Patton testifying that, although FRR "could have mined [the quarry] at a greater rate," he was more "comfortable" keeping the mining rate steady); 2/9/23 Tr. at 1623:14-15 (Ruttura testifying that Patton was "very happy with a certain number, a certain number that's over [EHTRQ's] fixed cost").

In addition, DeCusati forecasted that FRR would have mined additional earth materials to be sold in the New York market. Specifically, he forecasted that FRR would have mined an additional 30,000 tons of earth materials in the first year, due to DeCusati's expectation that there would be "a ramp-up period." 2/10/23 Tr. at 1712:24-25; Ex. 91 at 37. For the second year and beyond, DeCusati forecasted that FRR would have mined an additional 55,000 tons of earth materials per year to be sold in the New York market. 2/10/23 Tr. at 1713:1-3; Ex. 91 at 37. Accordingly, combining the local market and the New York market, FRR would have mined 275,000 tons of earth materials per year; this figure fits comfortably within Patton's preference. See 2/1/23 Tr. at 406:24-407:5. DeCusati could not test whether FRR would have been able to mine a total of 275,000 tons of earth materials annually, but reasonably relied on Patton's assurance that it would have been able to do so. 2/10/23 Tr. at 1714:10-17.

The Court finds, by a preponderance of the evidence, that FRR would have begun selling earth materials in the New York market in 2017 but for Defendants' conduct in shutting down the quarry. Patton testified credibly that he wanted to maintain a steady operation by mining and selling between 250,000 and 300,000 tons of earth materials per year, and that the "final piece of the puzzle" for that plan was to sell earth materials in the New York market, which was economically efficient when paired with accepting reuse from that market. 2/1/23 Tr. at 406:16-407:3, 408:7-18. In anticipation of that plan, FRR sought and obtained approval from the New York State Department of Transportation ("NYSDOT") "as a source of product for jobs that are being done in New York State." 2/1/23 Tr. at 408:25-409:10; Ex. 87. To obtain this approval, sometime around 2014 or 2015 Patton hired a geologist named Kevin Patton,⁷⁶ (no relation to Plaintiff Patton), who was familiar with the process of quarries seeking this approval, to collect data and prepare the necessary report at an estimated cost of $60,000. 2/1/23 Tr. at 409:15-22, 410:313.

76 The Court will refer to Kevin Patton by his full name. Thus, all references to "Patton" throughout this Memorandum of Decision pertain to Plaintiff John Patton.

Defendants contend that the NYSDOT approval does not contain any contractual language or other evidence supporting DeCusati's assumption that FRR would have actually generated the degree of mining revenue in the New York market he forecasted. Defs.' Br. at 42. But Defendants overstate the Court's task in calculating damages. The Court need only find that, more likely than not, FRR would have generated this mining revenue in the New York market but for the shutdown of the quarry. The fact that FRR laid the groundwork to achieve the necessary approval before the shutdown, combined with

Patton's consistent and credible testimony and other evidence presented by Plaintiffs, persuade the Court to make such a finding. For example, Patton bought a particular type of rock crusher in anticipation of entering the New York market, 2/1/23 Tr. at 413:12-16, 414:6-7, and, as discussed further below, he had been negotiating with Ruttura and Juliano about shipping earth materials and reuse between New York and the quarry immediately prior to the shutdown.

Moreover, the Court need not calculate the tonnage FRR would have mined for sale in this market with mathematical exactitude. Vicente, 2022 WL 1172325, at *3. Rather, the Court finds, with reasonable certainty, that FRR would have worked up to a steady rate of approximately 55,000 tons of earth materials sold in the New York market annually which, combined with the 220,000 tons of earth materials sold in the local market, would have resulted in a total of 275,000 tons of earth materials mined annually—the middle of the range within which Patton was comfortable. The Court relies largely on Patton's representation on this issue because Patton, having proved by a preponderance of the evidence that he intended for FRR to enter the New York market, has no obvious incentive to insist to DeCusati and the Court that he would have mined steadily at this rate, rather than increase his mining rate over time. In other words, it would have been to Patton's benefit to testify that he planned to increase FRR's mining rate over time as a way of growing FRR's forecasted profits, but he testified credibly that he did not want to increase FRR's mining rate. Indeed, DeCusati testified that, in his experience, "it is typical for companies to become more efficient as time goes on in terms of cost structure and in terms of ability to generate," meaning that it would be typical for a company to forecast at least some increase in production. 2/10/23 Tr. at 1715:20-23. See also 2/9/23 Tr. at 1622:21-23, 1623:9-11 (Ruttura testifying that he wanted to "sell as much stone as possible"). Because Patton estimated that FRR's planned mining rate would remain steady, at no apparent financial or litigation benefit to him, the Court finds his representation as to the amount of material FRR intended to mine credible. Finally, the Court observes that, although Defendants argue that DeCusati's forecast is speculative with respect to the quantity of earth materials sold in the New York market, Liddicoat employs the same numbers in his forecast. See Ex. 543 at 26.

Accordingly, the Court accepts DeCusati's forecast of the amount of earth materials FRR would have mined and sold in the local and New York markets. The Court further observes that DeCusati forecasted a 20% drop in production and revenue in 2020 due to the COVID-19 pandemic. Ex. 91 at 6, 37. Neither party argues that the Court should disagree with DeCusati's opinion on this adjustment, so the Court will adopt it.⁷⁷

77 Although Patton told DeCusati that he expected the market to feel the effect of the pandemic in 2021 rather than 2020, DeCusati made this adjustment in 2020 as a way to affect FRR's forecasted profits more conservatively. 2/10/23 Tr. at 1713:17-1714:1; Ex. 91 at 6. Liddicoat, however, made no adjustment in 2020 or 2021 on account of the COVID-19 pandemic. See Ex. 543 at 26.

ii. Unit Price for Mined Earth Materials

The Court now turns to the unit price FRR would charge for the earth materials it mined. DeCusati and Liddicoat both employed a 3% growth rate to account for inflation, which the Court will adopt. Ex. 91 at 13; Ex. 543 at 26. They disagree, however, about the base unit price to use to calculate the revenue derived from the mined earth materials FRR would have sold. In 2015, FRR sold earth materials at an average price of $10.76 per ton; in 2016, FRR sold earth materials at an average price of $11.84 per ton. Ex. 542 at 13. Thus, the 2016 unit price represents a 10% increase from the 2015 unit price.

To calculate the base unit price for forecasting purposes, DeCusati began by increasing the 2016 unit price by the 3% annual growth rate to get a base unit price of $12.20 per ton for the year 2017. 2/10/23 Tr. at 1716:5-7. To cross-check this unit price, DeCusati asked Patton for a projected base unit price, which he estimated to be $12.00 per ton. 2/10/23 Tr. at 1716:8-9. Because Patton's estimate was lower than DeCusati's, DeCusati employed Patton's estimated unit price of $12.00 per ton in the first year, which, when grown by 3% annually, resulted in lower forecasted mining revenue than the base unit price DeCusati would have employed. 2/10/23 Tr. at 1716:8-11; Ex. 91 at 37.

Liddicoat, on the other hand, opined that the 10% increase in price per ton between 2015 and 2016 was not consistent with the 3% annual growth rate. 2/14/23 Tr. at 2146:4-6. Rather, Liddicoat opined that the proper base unit price for forecasting purposes was the weighted average of the 2015 and 2016 unit prices, which would be $11.24 per ton. Ex. 542 at 13.⁷⁸ He explained that this weighted average price would be "a more appropriate starting point for 2017 mined revenue because it reflects the actual historical operation in 2015 and 2016." Id.; see also 2/14/23 Tr. at 2146:7-11. Accordingly, Liddicoat's forecast employed a unit price of $11.24 per ton in the first year, which grew by 3% annually. Ex. 543 at 26.

78 Liddicoat testified that the title of Table 3 of his report, where he sets forth the relevant figures, erroneously refers to reuse revenue rather than mining revenue. Ex. 542 at 13; 2/14/23 Tr. at 2146:12-20.

The Court accepts DeCusati's base unit price of $12.00 per ton. In general, the Court agrees with DeCusati that FRR's 2016 operations would have been most similar to its future operational expectations. See Ex. 91 at 11; see also 2/14/23 Tr. at 2141:11-2142:6. Specifically, the Court reasonably finds that 2016 represented a significant change in FRR's operations given that it created One Barberry to buy the property that year, bought a significant amount of equipment in that year, and generally began investing more heavily in the property that year. Thus, it was reasonable for DeCusati to estimate the base unit price as a 3% increase from the 2016 unit price, without considering the 2015 unit price, as 2016 was more representative of the future of the quarry; it was, further, reasonable for him to curtail the forecasted base unit price in light of Patton's more conservative estimate.

Liddicoat averaged the 2015 and 2016 unit prices due to his observation that the 10% growth from 2015 to 2016 was anomalous compared to the overall 3% growth rate employed for the rest of the forecast. But he did not attempt to square that decision with the anomaly that results from forecasting the first-year unit price, $11.24 per ton, as lower than the 2016 unit price, $11.84 per ton. In other words, Liddicoat did not explain why, but for Defendants' conduct shutting down the quarry, FRR would have charged less for its products in 2017 than it charged in 2016. Moreover, as explained below, the Court finds that averaging values from FRR's historical operation is most appropriate when there is a reason to suspect the 2016 value is, for some reason, not representative of what FRR would have expected to experience in the future but for the shutdown of the quarry; here, Liddicoat has not described why the 2016 unit price would be

unrepresentatively high. The mere fact that the unit price grew from 2015 to 2016 at a greater rate than it was forecasted to grow from 2016 onward does not, by itself, cast doubt on the representative value of the 2016 unit price into the future. On the contrary, it stands to reason that FRR significantly increased its unit price in 2016 because that was the year it incurred substantial debts to buy the quarrying equipment and, through One Barberry, buy the property.

In sum, because the Court adopts both DeCusati's annual tonnage and unit pricing estimates, the Court adopts DeCusati's forecasted mining revenues from the local and New York markets entirely.

b. Reuse Revenue

The Court next considers DeCusati's forecasted reuse revenue, which Defendants argue should be disregarded entirely. Specifically, DeCusati forecasted that, in the first year, FRR would have accepted a total of 187,500 tons of reuse. Ex. 91 at 37. Every year thereafter, with the exception of 2020 on account of the COVID-19 pandemic, DeCusati forecasted that FRR would have accepted a total of 206,250 tons of reuse. Id. This forecasted annual quantity of reuse reflects 75% of the forecasted total annual quantity of mined earth materials, which was a percentage DeCusati applied in reasonable reliance on Patton's estimation. Ex. 91 at 6; see also 2/10/23 Tr. at 1673:16-1674:4; 2/9/23 Tr. at 1597:14-1598:1, 1602:6-12 (Ruttura explaining that, in his understanding, a quarry cannot accept a quantity of reuse that is equal to the quantity of material mined because the reuse cannot compact to the same density as the material that was mined from the quarry).

DeCusati's forecast breaks FRR's reuse revenue into three categories—clean fill, regulated fill, and New York market—each corresponding with its own tipping fee per ton, which is the price the quarry would charge the customer to deposit reuse. The first category, "Clean Fill," refers to uncontaminated fill FRR would have accepted from the Connecticut market; DeCusati forecasted that FRR would have accepted 131,250 tons of clean fill annually at a tipping fee of $3.00 per ton. Ex. 91 at 37; 2/10/23 Tr. at 1717:17-20; 2/14/23 Tr. at 2250:20-24. Patton testified that, although it would not have been typical for FRR to enter into contracts to accept this reuse in the Connecticut market, he expected a variable but frequent number of such jobs in the area. 2/14/23 Tr. at 2251:9-25. The second category, "Regulated Fill," refers to reuse that is contaminated with pollutants and regulated by DEEP, which DeCusati forecasted FRR would have accepted from Connecticut and Massachusetts in an annual quantity of 20,000 tons at a tipping fee of $18.00 per ton. Ex. 91 at 37; 2/10/23 Tr. at 1718:6-10; 2/14/23 Tr. at 2252:5-14. Patton testified that this category of reuse would have been accepted on "a per-project basis" because there are heightened considerations involved in accepting contaminated reuse. 2/14/23 Tr. at 2252:9-17, 2253:14-19. The third category refers to clean fill FRR would have accepted from the New York market at a tipping fee of $6.00 per ton.⁷⁹ Ex. 91 at 37; 2/10/23 Tr. at 1718:11-14; 2/14/23 Tr. at 2237:16-21. DeCusati forecasted that, after a one-year ramp-up period, FRR would have accepted 55,000 tons per year from the New York market. Ex. 91 at 37; 2/10/23 Tr. at 1713:1. i. Whether to Consider Reuse Revenue At All

79 The EHTRQ membership agreement set a fixed, preferential tipping fee of $3.00 per ton for Ruttura and Juliano to dispose of uncontaminated fill at the quarry for fifteen years. Ex. 121 at 10. Given the challenges of finding a place to dispose of excavated materials in New York, this fixed tipping fee was the primary reason Ruttura invested in EHTRQ. 2/9/23 Tr. at 11591:12, 592:10-18.

Defendants urge the Court to disregard all reuse revenue, without making any specific arguments as to the particular type of reuse, markets, or tipping fees. Liddicoat opined that any reuse revenue was "speculative" and resulted in "overstated damages" because reuse revenue was "not based on any contemporaneous documentary evidence, [and did not] have any historical basis in terms of the [FRR] operation." 2/14/23 Tr. at 2127:2-8; Ex. 542 at 7-8. He explained that DeCusati forecasted the reuse revenue in reliance on Patton's estimations of how much reuse FRR would have accepted and the tipping fees it would have charged, and, because those estimations were not generated pre-litigation, they were not reliable. See 2/14/23 Tr. at 2128:25-2129:6, 2129:15-24 (explaining that pre-litigation profit projections are more reliable because they would be "prepared with a mindset that did not reflect or contemplate litigation damages"); Ex. 542 at 9. Liddicoat further explained that the overstatement of damages was significant because, in DeCusati's forecast, reuse revenues comprise approximately 25% of FRR's total revenues. 2/14/23 Tr. at 2127:8-10; Ex. 542 at 9. Because Liddicoat did not find "strong factual support" for the "timing and magnitude of those reuse revenues," he did not consider any reuse revenue in his damages calculation. 2/14/23 Tr. at 2131:8-17; Ex. 543 at 26.

The Court is not convinced that it must exclude reuse revenue completely, merely because FRR did not have a history of generating that revenue or because Patton's estimates of reuse quantities and tipping fees were generated while the litigation was pending. Rather, as elaborated upon below, the evidence demonstrates that, but for Defendants' conduct in shutting down the quarry, FRR would have generated some amount of revenue from accepting reuse. The fact that some reuse had been accepted by the prior owner gives rise to an inference that accepting reuse would have been a viable revenue source for FRR as well. See supra note 74. Moreover, the Town knew that FRR intended to begin accepting reuse and generating that revenue because Patton's maps and plans for the progression of the quarry, presented to Joe Zullo at the meeting on March 21, 2017, showed how FRR intended to accept fill as it proceeded with quarrying the property. 1/30/23 Tr. at 161:24-162:2. Similarly, Patton and Ruttura testified about steps they had taken to begin accepting reuse at the quarry before the shutdown, discussed below.

In addition, DeCusati verified the viability of reuse as a source of revenue by reading reports from FRR's competitors and publicly traded companies, which convinced him that reuse is "a natural supplementary component of income for companies such as the quarry." 2/10/23 Tr. at 1674:17-1675:1. The Court further observes that Defendants' initial expert geologist Bradley Ross agreed with DeCusati that FRR would have been able to generate revenue from tipping fees.⁸⁰ Ex. 94 at

80 Ross was timely disclosed by Defendants as their damages expert, ECF No. 77, but Defendants did not proffer his report or testimony at trial. To the contrary, Defendants moved in limine to preclude his report and deposition testimony, and they objected to the admissibility of his report at trial, on three grounds. First, Defendants argued that Plaintiffs could not proffer Ross' expert report because they did not disclose him, but the Court rejected that argument, reasoning that Defendants could not be unfairly surprised by the opinion of their own expert. ECF No. 262. Second, Defendants argued that Ross' report was no longer relevant because he calculated Plaintiffs' damages prior to the Superior Court's decision that the quarry could legally operate, but the Court rejected that argument because Plaintiffs had shown that Ross' opinion was relevant to certain issues bearing on damages, notwithstanding the mootness of his overall damages calculation. Id. Indeed, the Court finds his opinion relevant here because, regardless of which damages calculation method Ross used, his opinion on the viability of reuse as a source of revenue was consistent with DeCusati's opinion on that issue. Finally, Defendants argued that Ross' report was an appraisal of the quarry for the restricted use of tax assessment and that, pursuant to the Uniform Standard of Professional Appraisal Practice, it was not admissible for the purpose of litigation. The Court rejected this argument as well, noting that, by initially disclosing Ross' appraisal as an expert report in this case, Defendants implicitly suggested that it had some relevance to this litigation, despite the ostensibly limited scope of its use. ECF No. 262; 2/1/23 Tr. at 432:21-433:8. As explained when ruling on the objection, the limited purpose of the expert report bears on its weight, not its admissibility. Accordingly, the Court affords limited weight to Ross' report and discusses it only to the extent it bears on the other experts' damages opinions.

46 (Ross including royalties on tipping fees in his damages calculation). Accordingly, the Court will not entirely exclude reuse from FRR's forecasted revenue.

The Court will not wholesale adopt DeCusati's forecasted reuse revenue, however, because not all of the types of reuse revenue are adequately supported by the record. Specifically, the Court finds that Plaintiffs have proven, by a preponderance of the evidence, that FRR would have accepted 55,000 tons per year of reuse from the New York market, but that Plaintiffs' claim that FRR would have accepted 131,250 tons of clean fill and 20,000 tons of regulated fill per year from other regional markets is too speculative to credit. Accordingly, the Court will discount the tonnage of clean and regulated fill from other regional markets to that which is supported by the record.

ii. New York Market

The Court first finds, by a preponderance of the evidence, that FRR would have accepted 55,000 tons of reuse from the New York market annually at a base tipping price of $6.00 per ton, but for Defendants' conduct (as DeCusati estimated). In early 2017, Patton had been negotiating with Ruttura and Juliano to accept reuse from New York, although those negotiations were ultimately abandoned due to the shutdown. 2/1/23 Tr. at 396:11-14; 2/9/23 Tr. at 1593:18-20, 1602:17-1603:1. Ruttura was highly motivated to negotiate with FRR, and to ultimately invest in EHTRQ, because it is significantly cheaper for him to dispose of uncontaminated reuse in Connecticut. See 2/9/23 Tr. at 1591:12 (Ruttura testifying that the EHTRQ provision for fixed tipping fees was "the only provision" of interest to him).⁸¹ Ruttura further explained that the quarry's location was attractive because he could ship the reuse across Long Island Sound to New Haven and truck the reuse less than ten miles from that port to the quarry. 2/9/23 Tr. at 1593:2-11. Indeed, Patton and Ruttura were negotiating with a property owner to lease a waterfront property in New Haven to use as a barge facility, but they had not entered into the lease before the quarry shut down. 2/9/23 Tr. at 1593:18-19, 1602:22-1603:1. In addition, Ruttura had worked with a manufacturer to engineer a tractor-trailer that would be able to transport

81 Ruttura testified that, when contaminated soil is excavated in New York, it is relatively easy to dispose of in New Jersey. 2/9/23 Tr. at 1591:24-25. Because New York has "the most stringent soil contamination rules in the world," however, and because of the difficulty in finding places to deposit large quantities of soil when it is excavated for a construction project, the costs to dispose of clean, uncontaminated soil in New York range from $75 to $100 per ton. 2/9/23 Tr. at 1591:15-23, 1596:15-18, 1600:25-1601:12. The tipping fees Patton proposed during his initial negotiations with Ruttura and Juliano were significantly less, ranging from $6 to $18 per ton, consistent with the local market. 2/9/23 Tr. at 1597:1-6; 2/14/23 Tr. at 2237:21.

earth materials and reuse efficiently while complying with Connecticut's laws on weight limits for trucks. 2/9/23 Tr. at 1594:25-1595:24; 2/1/23 Tr. at 411:18-20. Patton testified that he intended for FRR to begin accepting reuse in 2017, but he ultimately did not enter into any agreements to do so after receiving the first cease-and-desist order in February of 2017, out of concern for "what this Town [was] going to do." 2/1/23 Tr. at 414:21-415:9.

In addition, DeCusati's estimates related to the New York market were not based on Patton's word alone. For example, Patton provided DeCusati with the letter of approval he received from the NYSDOT, confirming that FRR would have been able to sell earth materials in the New York market. 2/10/23 Tr. at 1684:7-11. After receiving Patton's information regarding reuse in the New York market, DeCusati spoke with a man named Joe Liquori, who verified that the demand for depositing fill from New York was very high and identified tipping fees significantly greater than those proposed by Patton and ultimately used by DeCusati.⁸² Ex. 89 at 6, n.25; 2/10/23 Tr. at 1680:21-1681:5, 1717:9-16. Indeed, DeCusati's understanding of the strategic advantage to New York customers in buying earth materials from the quarry and sending back uncontaminated reuse for low tipping fees was consistent with Ruttura's lay testimony on those issues. See 2/10/23 Tr. at 1680:4-12. In light of this evidence, the Court finds that FRR intended to begin accepting reuse from New York in 2017. As Defendants have not made any particular arguments about the $6.00 tipping fee being inappropriate, the Court finds that, after a one-year ramp-up period, FRR would have accepted 55,000 tons of reuse material from New York per year at a base rate of $6.00 per ton, subject to the 3% growth rate.

82 On cross-examination, Patton admitted that he gave Liquori's name to DeCusati and that Patton officiated Liquori's wedding, which suggests that they have a close friendship. 2/2/23 Tr. at 631:21-23, 632:2-9. On redirect, Patton testified that Liquori was a "good customer" at Becker's Willington quarry and that he gave Liquori's name to DeCusati because Liquori was very familiar with the reuse market. 2/2/23 Tr. at 666:14-21. For his part, DeCusati testified that Patton gave him a list of several names of people who could verify this information about reuse in the New York market, that DeCusati chose to call Liquori from among that list, and that he did not know at the time that Patton had officiated Liquori's wedding. 2/10/23 Tr. at 1810:14-1811:1. While the Court somewhat discounts DeCusati's reliance on Liquori, that does not meaningfully undermine the Court's conclusion regarding reuse revenue, given DeCusati's other verification of that revenue source, Ruttura's corroborating lay testimony, Ross' verification, and Defendants' failure to specifically attack the tipping fees DeCusati proposed.

iii. Other Regional Markets

As to clean fill and regulated fill from other regional markets, however, the Court cannot find that DeCusati's estimates of quantity of reuse are sufficiently supported; as Defendants do not specifically challenge the associated tipping fees, though, the Court finds those appropriately supported. To begin, Patton noted that the amount of clean fill FRR would have accepted was variable, depending on what construction projects were occurring at any given time. 2/14/23 Tr. at 2251:9-25. He described that there are "many smaller jobs" consisting of "20,000 tons, 10,000 tons, maybe 25,000 tons, and every once in a while there is a huge job," such as a recent project that needed to dispose of 300,000 tons of material. 2/14/23 Tr. at 2251:18-23. But Patton did not testify with any specificity as to how many small jobs FRR could expect in a given year, and the Court infers from his testimony that large jobs happened somewhat infrequently. Given that Plaintiffs offered no other testimony

justifying DeCusati's forecast that FRR would have accepted 131,250 tons of clean fill per year from regional markets for the life of the quarry, the Court will not use DeCusati's figure. Instead, the Court will conservatively estimate that FRR would have accepted 30,000 tons of clean fill per year from other regional markets at a tipping fee of $3.00 per ton, based on Patton's testimony about small jobs in the amounts of 10,000 to 20,000 tons. Although Patton testified that there were many jobs of these sizes, his lack of specificity as to how many such jobs FRR expected renders the Court unable to use any higher figure. The Court adopts the $3.00 tipping fee, subject to the 3% growth rate.

Regarding regulated fill from other regional markets, Patton testified that FRR would have accepted it on a "per-project basis," 2/14/23 Tr. at 2252:7-9, but he provided no estimate of how much of this type of fill FRR would have accepted in a given year. Indeed, he testified that this type of reuse is "a very small amount of the fill volume-wise" because FRR would have accepted it only as "part of an overall mix" given its contaminated nature. 2/14/23 Tr. at 2253:15-19. Without any other support for DeCusati's projection that FRR would have accepted 20,000 tons of regulated fill per year from regional markets, the Court cannot accept this figure. Instead, the Court will calculate the annual tonnage of regulated fill that FRR would have accepted from regional markets as a percentage of the amount of clean fill it would have accepted from these markets. As Patton and DeCusati believed the tonnage of regulated fill would constitute approximately 15% of the tonnage of clean fill, and as the Court has calculated that FRR would have accepted 30,000 tons of clean fill per year, the Court estimates that FRR would have accepted 4,500 tons of regulated fill per year from regional markets, at a tipping fee of $18.00 per ton, subject to the 3% growth rate.

In sum, the Court finds that FRR would have accepted: 55,000 tons of reuse from the New York market per year (after a one-year ramp-up period, during which it would have accepted 30,000 tons) at a tipping fee of $6.00 per ton; 30,000 tons of clean fill from regional markets per year at a tipping fee of $3.00 per ton; and 4,500 tons of regulated fill from regional markets per year at a base tipping fee of $18.00 per ton. While the reuse revenue calculated by DeCusati for the New York market and calculated by the Court for other regional markets is hypothetical, it is not wholly speculative or unfounded. Rather, the Court finds by a preponderance of the evidence that FRR would have generated reuse revenue from New York and, to a lesser degree, from other regional markets, and the Court has calculated that revenue to a reasonable certainty.⁸³

83 As noted above, DeCusati forecasted a 20% drop in production and revenue in 2020 due to the COVID-19 pandemic. Ex. 91 at 6, 37. Curiously, he forecasted this drop for New York fill and clean fill from regional markets, but not for regulated fill. See id. at 37. Absent explanation from DeCusati about why he did this, the Court forecasts a 20% drop in tonnage of reuse accepted in 2020 for all three categories of reuse.

2. Projection Period

Next, the parties significantly disagree about the applicable projection period, or, in other words, for how many years the Court should forecast FRR's revenue. The length of time FRR could have generated revenue from the quarry depends on the tonnage of saleable earth materials contained in the quarry. See 2/10/23 Tr. at 1716:18-25; 2/14/23 Tr. at 2169:11-23. Put simply, the question is when FRR would have run out of rock to quarry, given that the quantity of material in the quarry is finite and the quarrying operation would

extract that material over time. Thus, to determine how long to forecast FRR's revenue but for Defendants' conduct, the Court must find, to a reasonable certainty, what tonnage of saleable earth materials would have been contained in the quarry at the time of the shutdown in 2017.

The following additional findings about the quarry itself are relevant to this issue. Patton testified that the quarry has two categories of saleable earth materials: "basalt," which is a blue or gray rock formed by "lava flows,"⁸⁴ and various other materials that are not as "desirable" as basalt, such as sandstone and shale. 1/30/23 Tr. at 133:25-134:14, 135:25-136:1. The most prominent of the non-basalt materials in the quarry is sandstone, a red metamorphic rock. 1/30/23 Tr. at 134:11-15.

84 See also Ex. 541 at 15 n.1 (Defendants' trial expert geologist explaining that basalt is "formed from magma extruded onto the surface from within the earth," used as "construction aggregate because of its density and hardness," and commonly termed "traprock" in the quarry industry).

In addition, a utility company maintains an easement bisecting the property containing three parallel power lines supported by several stanchions, and the quarry operators must maintain a buffer of at least fifty feet around the easement. 1/30/23 Tr. at 188:25-189:5; 2/2/23 Tr. at 639:8-18; 2/13/23 Tr. at 1996:6-18. Patton testified that FRR intended to mine on one side of the easement, then fill that side back up with reuse to stabilize the stanchions and access road before mining on the other side of the easement. See 2/2/23 Tr. at 639:19-640:2; 2/14/23 Tr. at 2250:19-22, 2262:21-23; see also 2/9/23 Tr. at 1623:23-1624:12. There is also a gas line easement cutting across the southwest corner of the property. See 2/9/23 Tr. at 1624:20-25; 2/14/23 Tr. at 2242:19-21.

The Court finds, for the reasons set forth below, that as of the date of the shutdown, there were 5.83 million tons of recoverable earth materials contained in the quarry from which FRR would have derived revenue, composed of 3.5 million tons of basalt and 2.33 million tons of non-basalt materials. It further finds that FRR would have mined this quantity of earth materials through 2038, the twenty-second year of the forecast, so it limits FRR's projection period to that time.

a. Different Opinions on Tonnage of Saleable Earth Materials

The Court was presented with three opinions on the quantity of saleable earth materials contained in the quarry. First, DeCusati relied on an eight-page portion of a report prepared by an entity called Resources Technologies Corporation ("RTC") for an unknown client stating that, as of the date the report was prepared in 2014, there would be approximately 15 million tons of reserves on the quarry property if the power lines could be relocated, though there were approximately 8.5 million tons of reserves if the power lines could not be relocated. Ex. 86 at 3. DeCusati was provided this excerpt of the RTC report (presumably from Plaintiffs), and from it, he adjusted the quantity of reserves from 8.5 million tons to 8.17 million tons to account for earth materials that had already been excavated from the date of the report to the date of the shutdown. See Ex. 91 at 13; 2/10/23 Tr. at 1759:23-24. He then forecasted that it would have taken FRR thirty years to mine 8.17 million tons of saleable earth materials contained in the quarry at the time of the shutdown. Ex. 91 at 13, 37-38.

The RTC report was identified, but not admitted as a full exhibit at trial. 2/13/23 Tr. at 2062:16-2063:12. DeCusati did not know who wrote the RTC report, and he never spoke with anyone at RTC about it. 2/10/23 Tr. at 1759:25-1760:3. To the extent

the Court considers the RTC report under Federal Rule of Evidence 703, the Court finds that it has extremely limited probative value because DeCusati relied on only a portion of it without investigating it or verifying any of the information in it; because no one with personal knowledge about the purposes or methodology of the report authenticated it; and because of the flaws in its assessment identified by Defendants' trial expert geologist, explained below.

Second, the record contains Kevin Patton's 2015 report, which he prepared for FRR to seek NYSDOT approval. Ex. 541 at 198; 2/1/23 Tr. at 408:25-409:10. Kevin Patton took core samples of rock to a depth of approximately ninety feet at five locations around the quarry; based on this data and his survey of the topography of the area around the quarry, he opined that there were 6 million tons of basalt, 3.5 million tons of "[g]ood quality sandstone," and 5.5 million tons of shale and soil, for a total of 15 million tons of earth materials contained in the quarry. Ex. 541 at 247. Kevin Patton's report stated that more basalt "may be present below the elevations" where he gathered his data. Ex. 541 at 214.

Both DeCusati and Defendants' initial expert geologist Ross found Kevin Patton's estimates relevant. In acknowledging the limited credibility of the RTC report, DeCusati testified that he found Kevin Patton's estimates "useful in regard to supporting" the 8.17 million tonnage figure he used. 2/10/23 Tr. at 1759:10-16. In addition, when initially forecasting FRR's damages for Defendants, Ross appears to have relied on Kevin Patton's estimates. Having adjusted Kevin Patton's 6 million basalt tonnage figure to account for basalt that was excavated between the date of Kevin Patton's report and the date of the shutdown, Ross stated that there were approximately 5.6 million tons of basalt contained in the quarry on the date of the shutdown. See Ex. 94 at 26.

Kevin Patton's report was not admitted as a separate exhibit, but it was produced in full as an attachment to Defendants' trial expert geologist's report and discussed by him at length. To the extent the Court considers Kevin Patton's report under Federal Rule of Evidence 703, the Court finds it more credible and probative than the RTC report. Patton testified about the origins of Kevin Patton's report, and Defendants' trial expert geologist testified about his understanding of Kevin Patton's data and methodology, which allows the Court to reasonably interpret Kevin Patton's approach. As Defendants' trial expert geologist explained, however, this report has certain flaws as well, which will be discussed below.

Third, Defendants' trial expert geologist, Alan Stagg, opined that, as of his site inspection in the fall of 2022, there were approximately 3.3 million tons of recoverable basalt, and that this was the only earth material of value contained in the quarry. Ex. 541 at 25. Liddicoat adjusted this figure to account for materials that were excavated between the date of the shutdown and the date of Stagg's report, ultimately forecasting that it would have taken FRR thirteen years to mine approximately 3.5 million tons of basalt that were contained in the quarry on the date of the shutdown. Ex. 543 at 27.

The Court will discuss Stagg's expert opinion in detail. Stagg is an economic geologist with experience addressing the "issues that affect the economic feasibility of developing and [mining] mineral deposits." 2/13/23 Tr. at 1929:17-25. He is a registered member of the Society of Mining Metallurgy and Exploration, the geology professional society whose membership is based on certain experience and qualifications, 2/13/23 Tr. at 1931:15-19, and he is a mineral appraiser certified by the International

Institute of Mineral Appraisers, 2/13/23 Tr. at 1931:24-1932:1. He owns Stagg Resource Consultants, Inc., which is a consulting firm based out of West Virginia that provides a variety of services relating to mining, such as "field exploration," evaluation of mineral deposits, preparation of mine plans, environmental assessments, market and demand studies, and appraisals of mineral deposits and mining operations. 2/13/23 Tr. at 1932:24-1933:5, 1934:16-1985:16. Stagg has been an economic geologist for fifty-nine years, and he has been working for his consulting firm for forty-eight years.⁸⁵ 2/13/23 Tr. at 1933:12-17. His expertise in this field, coupled with the fact that he was the only geology expert who testified at trial, suggest that his opinion should be entitled to considerable weight on the issue of the amount of saleable material in the quarry.

85 Stagg's hourly rate to prepare his report was $525, and his consulting firm charged an additional hourly administrative and technical fee. Ex. 541 at 46; 2/13/23 Tr. at 1952:12. Stagg's fees were not contingent on the results of his analysis or the outcome of the litigation. Ex. 541 at 6.

Stagg reviewed the expert reports relevant to this case and a variety of other documents, inspected the site, and prepared a report of his findings. 2/13/23 Tr. at 1940:20-24, 1951:7-17, 1957:9-15. He was tasked with assessing the "resource and reserve potential" of the subject quarry. 2/13/23 Tr. at 1937:10-14. Relevant to this task, he explained the difference between a "mineral deposit," which is merely an identified but unanalyzed deposit of an earth material, and a "reserve," which is material that is "legally, economically, and physically recoverable." 2/13/23 Tr. at 1960:1-3, 10-12. See also Ex. 541 at 176-78 (Stagg's published article explaining the different definitions of "reserve" and common errors in the mineral appraising industry).

The economic recoverability of a mineral deposit turns on whether it is possible to mine the material at a profit. 2/13/23 Tr. at 1961:4-7. Stagg testified that the "primary target" or "objective" of Plaintiffs' quarry was basalt, and that was "what drives value," making it a reserve as that term is defined. 2/13/23 Tr. at 1938:14-17, 1962:12-14. See also 2/13/23 Tr. at 2032:12-19 (agreeing that "reserve body" is the most significant asset for a mining operation). He acknowledged that there were "secondary" products or "byproducts" that could have been excavated, such as sandstone, but FRR's decisions about the value and economics of their operation would have been driven by the reserve of basalt. 2/13/23 Tr. at 1938:18-1939:5, 1962:7-14. In other words, Stagg opined that non-basalt materials did not "contribute significantly to the value of the property" like basalt did. 2/13/23 Tr. at 1965:20-24. He also opined that recovering sandstone, in particular, would be "erratic" because it laid between an upper layer of basalt and a lower layer of basalt, so there would have been periods of time when FRR would have recovered only basalt. 2/13/23 Tr. at 1966:1-4. Because he considered sandstone and other non-basalt materials to be byproducts, rather than reserves, Stagg did not estimate the tonnage of those materials (an omission Plaintiffs contend renders his opinion flatly wrong). 2/13/23 Tr. at 1965:16-20.

Stagg also identified flaws in the physical and legal recoverability of some basalt contained in the quarry due to the utility company's easement for the power lines bisecting the property. 2/13/23 Tr. at 1990:21-1991:4. Specifically, he found that there was "good quality" basalt under the power line, "but for all practical purposes there is no reason to believe it will ever be

mined." 2/13/23 Tr. at 1967:5-9. The power lines themselves would not present a problem, as FRR could have mined under the lines; but, if FRR mined too close to the stanchions, they would collapse. 2/13/23 Tr. at 1997:1-7. Stagg also observed that, because the utility company owning the easement must continue to access the stanchions, a certain amount of basalt underneath and around the stanchions and access road could not be considered reserve because that basalt could not be feasibly recovered. 2/13/23 Tr. at 1966:9-14, 1967:20-1968:5, 2003:8-11, 2026:22-25. For that reason, Stagg excluded the tonnage of basalt under the stanchions of the power lines and access road from his calculation of the quarry's basalt reserve. 2/13/23 Tr. at 1967:11-12, 1968:22-24, 1970:20-22. See also 2/13/23 Tr. at 2041:23-2042:1 (Stagg testifying that he calculated the area underneath and around the stanchions based on engineering designs from Milone & MacBroom). Similarly, he observed that there would be limited ability to mine in the southwest corner of the property around the gas line easement. 2/13/23 Tr. at 1991:5-11, 2000:19-24.

In estimating the tonnage of basalt reserves, Stagg also accounted for twenty-five-feet "setbacks" along the three roads bordering the quarry property where FRR could not have mined. 2/13/23 Tr. at 1999:11-21. Although he did not see a berm on the property during his site inspection, Stagg accounted for berms running parallel to the roads and the gas line because constructing berms is generally a "good practice" for quarries, and because FRR could not have mined under the footprint of the berms. 2/13/23 Tr. at 2001:7-9, 2001:18-24, 2002:17-21, 2021:10-16.

Stagg did not drill into the property himself; rather, he relied on the data from four drill holes conducted by Kevin Patton and detailed in his report.⁸⁶ Ex. 541 at 16-17; 2/13/23 Tr. at 2026:11-13, 2034:12-19, 2039:10-12. Specifically, Kevin Patton extracted ninety-feet core samples, took pictures of them, and described and quantified the different types of earth materials contained in them. See generally Ex. 541 at 214-15, 220-39. After reviewing Kevin Patton's report, data, and sources, Stagg attached Kevin Patton's report to his own report, characterizing it as "fairly extensive" and "very thorough." 2/13/23 Tr. at 2033:11-18, 2034:4-11. He opined that, in his experience collecting drilling data, he found Kevin Patton's descriptions of the rock "adequate" and had "a lot of confidence" in Kevin Patton's data. 2/13/23 Tr. at 2034:25-2035:6. Stagg testified about how he calculated the volume of basalt in the minable areas of the property from a combination of Kevin Patton's drilling data and manual calculation, then converted that volume to tonnage.⁸⁷ See generally

86 Although Kevin Patton collected data from five drill holes, Stagg considered data from only four of them, noting that the fifth was past the northeast corner of the subject property and had "no basalt potential." 2/13/23 Tr. at 2035:13-18. Patton, however, testified that FRR had mineral rights to that 2.74-acre portion of property retained by What TF, and that EHTRQ has now begun to mine it. 2/14/23 Tr. at 2234:15-2235:3, 2235:11-14. To the extent Plaintiffs suggest that Stagg's credibility is meaningfully impaired by this disagreement, the Court disagrees. Plaintiffs have not shown that Stagg had reason to know that FRR had mineral rights to this area, nor have they shown that Stagg incorrectly interpreted Kevin Patton's drilling data. Moreover, Plaintiffs have not argued that the Court should take this area into account for damages calculation purposes, nor have they shown that the RTC report on which DeCusati relies properly took this area into account. Accordingly, the Court will not address this area further.

87 Specifically, Stagg divided the quarry into two areas that required different tonnage calculation methods. See 2/13/23 Tr. at 2045:6-16. In the first area, constituting approximately twenty-one acres where no quarrying had been conducted, Stagg began with Kevin Patton's drilling data and excluded the areas that Stagg opined could not be mined, leaving 14.29 acres available to be mined. Ex. 541 at 19, 21; 2/13/23 Tr. at 2043:19-22. He calculated the cubic yardage of basalt in that area, composed of the upper and lower beds of basalt separated by a layer of sandstone, and then converted that volume to tonnage. Ex. 541 at 21-22; 2/13/23 Tr. at 2036:16, 2037:5, 2043:4-6. For the second area of the property, constituting approximately eight acres where quarrying had been and was actively being conducted, Stagg estimated the volume "manually." Ex. 541 at 19; 2/13/23 Tr. at 2045:25. Specifically, he derived the "original acreage before there was any mining," assumed that the thickness and placement of the basalt in that area mirrored the thickness and placement of the basalt in first area as reported by Kevin Patton's drilling data, and thus calculated the volume of basalt in the second area. 2/13/23 Tr. at 2047:22-2048:7. He then converted the volume to tonnage and subtracted the tonnage that had been extracted in reliance on "historic production records," resulting in his estimate of the remaining tonnage in that area. 2/13/23 Tr. at 2048:6-11.

2/13/23 Tr. at 2036:16-2048:11; Ex. 541 at 19-22. In total, Stagg opined that 3,328,441 tons of basalt were legally and physically recoverable on the quarry property. Ex. 541 at 25. Technically, this tonnage could not be considered a reserve because he had not established that "all this tonnage is economic to recover," so he characterized this figure as the "reasonable estimate of the reserve potential." 2/13/23 Tr. at 2049:19-2050:3, 2050:6-7; Ex. 541 at 24.

In addition, Stagg commented on DeCusati's expert opinion, in which he assumed that FRR would have been able to mine 8.17 million tons of earth materials, and the RTC report from which DeCusati derived that figure. Specifically, Stagg criticized DeCusati for failing to identify the "lithology," which means "rock type," of that tonnage. Ex. 541 at 32; 2/13/23 Tr. at 2052:6. Stagg also criticized the RTC report because it did not identify any particular type of rock, rely on any data, or explain how the estimated tonnage was derived. 2/13/23 Tr. at 2058:23-24, 2059:14-15. In Stagg's view, the author of that report "looked at a topo[graphical] map [of] the area and sort of did an eyeball on what he thinks the tonnage is." 2/13/23 Tr. at 2059:2-4.

Although Stagg relied on the drilling data from Kevin Patton's report, he criticized Kevin Patton's estimate of the tonnage of earth materials contained in the quarry. Ex. 541 at 31. Specifically, Stagg opined that Kevin Patton's estimate was not "rigorously determined and supportable," given that he did not account for the power line stanchions or otherwise explain why he believed his estimated tonnage was legally, economically, and physically recoverable. Ex. 541 at 31-32; 2/13/23 Tr. at 2068:15-23. Relatedly, Stagg criticized Ross' report because his forecasted tonnage derived from Kevin Patton's estimate. Ex. 541 at 32; 2/13/23 Tr. at 2079:11-18; see Ex. 94 at 26.

b. The Court's Findings

The Court finds Stagg's opinion highly credible in almost all respects, and it is significantly more probative than the RTC report or Kevin Patton's report. While the Court did not receive testimony or evidence about the expertise or qualifications of Kevin Patton or the unknown author of the RTC report, Stagg testified about his extensive experience and specialized knowledge in this field. Importantly, Stagg's opinion is the only one that accounts for, and credibly quantifies, the physical limitations FRR would have faced in generating revenue from the quarry, such as the stanchions and access road for the power lines, the gas line, and the need for setbacks and berms. Plaintiffs have not shown that the RTC report on which DeCusati relies, or Kevin Patton's report from which DeCusati finds support, meaningfully take those limitations into account. Accordingly, the Court finds Stagg's opinion

the most credible and probative to estimate the tonnage of recoverable basalt contained in the quarry as of the date of his inspection in the fall of 2022. From this, the Court also finds credible Liddicoat's adjustment to Stagg's opinion to account for the tonnage of recoverable basalt that was contained in the quarry as of the date of the shutdown five years earlier. The Court thus finds that, as of the date of the shutdown, the quarry contained 3.5 million tons of recoverable basalt from which FRR could have derived revenue.

The Court also finds, however, that Stagg's opinion does not take into account all the earth materials from which FRR reasonably would have derived revenue. As Plaintiffs argue, basalt was only one material FRR excavated and would have continued to excavate from the quarry; FRR also derived a significant degree of revenue from excavating non-basalt materials, such as sandstone. Patton testified that, before the shutdown, FRR's sales constituted between 60% and 70% of basalt, and between 30% and 40% of non-basalt. 1/30/23 Tr. at 135:24-136:1; 2/14/23 Tr. at 2238:21-22. As noted below, the Court's review of FRR's product sales—supplied to the expert accountants, see Ex. 91 at 8—suggests that Patton somewhat undercounted the percentage of FRR's product sales that were composed of non-basalt materials. See infra note 89. Regardless of the specific percentage, it is clear that FRR derived a significant degree of revenue from excavating non-basalt materials, for which Stagg did not account.

Moreover, there is nothing in the geologic data suggesting that FRR could not have continued to derive revenue from excavating non-basalt materials but for Defendants' conduct. Indeed, Kevin Patton's drilling data and Stagg's opinion interpreting that data indicate that sandstone is present in the quarry in significant quantities, such as between the upper and lower beds of basalt, which supports Plaintiffs' claim that FRR could have continued to derive revenue from excavating sandstone. See Ex. 541 at 21 (Stagg quantifying the volume of sandstone between the basalt beds as approximately equal to the volume of the lower basalt bed), 220-39 (Kevin Patton describing the materials layered in the core samples, including sandstone). Indeed, FRR would have excavated that layer of sandstone by necessity in order to access the lower bed of basalt, and it stands to reason that FRR would have sought to generate revenue from that. See 2/14/23 Tr. at 2230:11-12. Stagg acknowledged that FRR sold materials other than basalt, yet he maintained that "the basalt was the driver in the sales at the quarry," and thus he did not include other materials in his tonnage calculations. 2/13/23 Tr. at 2105:13-15 (emphasis added). But neither Stagg nor Liddicoat explained why FRR's forecasted revenue should attach to only the driver of sales, rather than all the product sales that can be considered non-de minimis. The Court need not find what would have motivated FRR to maintain its quarry operation; rather, the Court must forecast, to a reasonable certainty, the revenue FRR would have generated but for Defendants' conduct in shutting the quarry down. While sandstone and other non-basalt materials may be less valuable and less profitable, that fact, standing alone, does not render those materials an insignificant or irrelevant source of revenue for FRR.⁸⁸ Accordingly, the Court will start with Stagg's estimate of the tonnage of basalt contained in the quarry, as adjusted by Liddicoat, and then use other evidence in the record to infer the total tonnage of basalt and non-basalt materials from which FRR would have derived revenue. Specifically, the Court finds credible Patton's testimony that FRR's sales were approximately 60% basalt and 40% non-basalt products. 1/30/23 Tr. at 135:24-136:1.⁸⁹ Based on this testimony, the Court infers that Liddicoat's estimate of 3.5 million tons of basalt would have accounted for 60% of the products FRR would have sold over the life of the quarry. This computes to a total of approximately 5.83 million tons of basalt and non-basalt products FRR would have sold over the life of the quarry. The Court thus finds that, as of the date of the shutdown, there were 5.83 million tons of recoverable earth materials contained in the quarry from which FRR would have derived revenue, composed of 3.5 million tons of basalt and 2.33 million tons of non-basalt materials.

88 The Court further observes that Liddicoat's revenue forecast does not entirely disregard the effect selling non-basalt products would have had on FRR's operation. Accepting Stagg's premise that basalt is more valuable than non-basalt materials, it stands to reason that FRR likely would have charged more money per ton for its basalt products than its non-basalt products. For that reason, a forecast assuming FRR would have generated appreciable revenue from only basalt would have a relatively short projection period, to account for the tonnage of only basalt, but it would reflect a relatively high base unit price, to account for the greater value of basalt. By contrast, a forecast assuming FRR would have generated appreciable revenue from basalt and non-basalt products would have a relatively long projection period, to account for the combined tonnage of basalt and non-basalt materials, but it would reflect a relatively low base unit price, because the high unit price of basalt would be weighted down by the low unit price of non-basalt products. See 2/10/23 Tr. at 1874:18-22. Liddicoat's forecast cut the projection period short, to account for the tonnage of only basalt. But his base unit price was the average unit price of the average unit prices FRR charged in 2015 and 2016; in turn, the average unit prices FRR charged in 2015 and 2016 reflected FRR's total earth products revenue in those years, not just its revenue from basalt products. See Ex. 542 at 13 (citing Ex. 91 at 8). In other words, Liddicoat inaccurately diminished FRR's forecasted revenue by using a unit price composed of both basalt and non-basalt pricing, while using only the tonnage for basalt, which resulted in a shorter projection period because of Stagg's lower estimate of the amount of basalt in the quarry.

89 Patton's testimony is not quite consistent with the product sales he supplied to the expert accountants, displayed in DeCusati's report. Ex. 91 at 8; see 2/1/23 Tr. at 448:4-15. Patton identified that the products titled 3/4 inch blue stone, 1 1/4 inch stone, 2 inch blue stone, and 3/8 inch blue stone were basalt, while the other products listed were non-basalt or a mixture of basalt and non-basalt materials. 2/1/23 Tr. at 449:9-20. For the years between 2013 and 2016, the Court has added together FRR's revenue for each of the basalt products and divided that number by FRR's total product revenue (excluding revenue from trucking sales, service sales, and other undefined sales) to obtain the percentage of total product revenue that constituted sales of basalt for each year. Those percentages are generally less than what Patton testified to: 61% in 2013; 50% in 2014; 41% in 2015; and 49% in 2016. Thus, on average, sales of basalt amounted to approximately 50% of FRR's total product sales. Nevertheless, the Court employs 60% here, which represents the median between the Court's calculation of FRR's basalt sales and Patton's later testimony that basalt sales amounted to 70% of FRR's total product sales. See 2/14/23 Tr. at 2238:21-22.

While the Court calculates this tonnage based on Stagg's estimate, Liddicoat's adjustment, and Patton's estimate of FRR's product sales, the Court finds reassurance in the reasonableness of its calculated tonnage by comparing it to the other tonnages presented. To succinctly summarize the opinions detailed above, the Court was presented with three tonnage estimates as of the date of the shutdown: DeCusati's estimate of 8.17 million tons, derived from the RTC report; Ross' estimate of 5.6 million tons, derived from Kevin Patton's report; and Liddicoat's estimate of 3.5 million tons, derived from Stagg's report. The average of these three figures is approximately 5.76 million tons. The Court calculated to a reasonable certainty, based on

the credible evidence presented, that FRR would have derived revenue from 5.83 million tons of earth materials over the life of the quarry; due to how close that figure is to the 5.76 million ton average, the Court finds that its calculation fits appropriately within the range of the three estimates presented.

The Court observes, however, that it will not further inflate its calculation to account for any depth of the quarry not considered by Stagg. Kevin Patton drilled and extracted core samples to a depth of ninety feet, which appears to have been all that was required for FRR to obtain the NYSDOT approval, see 2/1/23 Tr. at 454:24-455:3, but he noted that more earth materials "may be present below the elevations that were cored." Ex. 541 at 19, 214. Because Stagg relied on Kevin Patton's drilling data, Stagg's estimate of 3.3 million tons of basalt accounts for only the ninety-feet depth. Patton, however, testified that the quarry extends approximately 211 feet above sea level, meaning that Stagg's calculations do not account for the volume of the quarry up to approximately 121 feet above sea level, much of which is visible in photos taken from surface-level. 2/14/23 Tr. at 2228:6-11, 2228:18-2230:8; see also 2/1/23 Tr. at 454:24-455:3. Stagg expressed skepticism that FRR could have practically mined 200 feet into the quarry and still had enough space to maneuver the quarrying equipment, though he did not actually assess that. See 2/13/23 Tr. at 2028:13-2029:11.

In their brief, Plaintiffs appear to urge the Court to disregard Stagg's estimated tonnage entirely because it does not take into account the full depth of the quarry. The Court will not do so. Assuming Plaintiffs are correct that Stagg improperly disregarded a certain depth of the quarry, that alone does not significantly impair Stagg's credibility or the probative value of his report; it merely limits the scope of his opinion to the depth he considered. Moreover, Plaintiffs' contention that Stagg disregarded a certain depth of the quarry does not repair the many significant flaws in the RTC report on which DeCusati relied. As noted above, DeCusati relied on a portion of that report prepared by an unknown author for unknown purposes, and the relevant portion lacks any drilling data or explanation of the author's methodology in estimating the tonnage of earth materials contained in the quarry. Even if the credibility and probative value of Stagg's opinion were weakened because he disregarded a certain depth of the quarry, that would not be enough for the Court to find the significantly flawed RTC report more credible and probative than Stagg's opinion.

Finally, to the extent Plaintiffs ask the Court to increase its calculation of the tonnage of earth materials contained in the quarry to account for the lower 121 feet, the Court will not do that, either. The Court lacks sufficient information about the elevation and depth of the entire quarry to calculate or infer the tonnage of earth materials contained in the lower portion that Stagg did not consider. Indeed, Plaintiffs' brief and various photos presented to the Court suggest that the elevation of the quarry is not uniform across the entire property, which would further complicate any attempt to calculate the tonnage of materials contained in the lower portion.⁹⁰ See Pls.' Br. at 73; Ex. 541 at 68-70. In sum, the Court finds to a reasonable certainty that, as of the date of the shutdown, there were 5.83 million tons of recoverable earth materials contained in the quarry from which FRR would have derived revenue, including basalt and non-basalt materials. According to DeCusati's forecast, FRR would have mined more than this tonnage in year twenty-two, and, thus, the Court will end the projection period during year twenty-two, after FRR would have mined 5.83 million tons of earth materials. See Ex. 91 at 38; 2/10/23 Tr. at 1716:18-1717:1; 2/14/23 Tr. at 2169:11-23.

90 Even if the Court were to assume that the quarry was uniformly 211 feet deep, calculating the tonnage contained in the lower portion would overshoot the tonnage forecasted by DeCusati and increase Plaintiffs' damages calculation beyond what they seek. Specifically, accepting Patton's testimony regarding the depth of the quarry and assuming that depth is uniform across the property, Kevin Patton's ninety-feet-deep data would account for only 43% of the total 211-feet-deep quarry. This would mean that the 5.83 million tons calculated above would account for only 43% of the total tonnage of materials contained in the quarry to its full depth. Thus, FRR would have been forecasted to recover 14.6 million tons of basalt and non-basalt materials, even excluding the areas where FRR could not have mined underneath and around the power line stanchions, the gas line, the setbacks, and the berms. This estimate is significantly greater than the other estimates presented and the estimate on which DeCusati relied and, thus, the Court will not use it.

3. Cost of Sales Percentage

To calculate FRR's gross profits, the Court must discount its revenue by a cost of sales percentage, which represents the "costs of making the sale," 2/10/23 Tr. at 1707:16-19, or, in other words, the "expenses that are directly related to the generation of those revenues," 2/14/23 Tr. at 2140:13-14. See also 2/14/23 Tr. at 2140:16-17 (Liddicoat explaining that "gross profit margin is the revenue minus the cost of sales"). In DeCusati's analogy, the cost of sales for a pizza restaurant is the cost of the flour, tomatoes, and cheese, 2/10/23 Tr. at 1707:13-17; in Liddicoat's analogy, the cost of sales for a hamburger restaurant is the cost of the bun and the beef, 2/14/23 Tr. at 2140:15-16.

FRR's cost of sales was 24.7% of revenue in 2014, 22.6% of revenue in 2015, and 31% of revenue in 2016. Ex. 91 at 34. DeCusati forecasted that FRR's cost of sales going forward would amount to 26.2% of mined revenue, a figure he derived by averaging the cost of sales percentages from those three years. 2/10/23 Tr. at 1709:17-20; Ex. 91 at 14. By contrast, Liddicoat forecasted that FRR's cost of sales would amount to 31% of revenue, consistent with the cost of sales percentage in 2016. Ex. 542 at 11; see 2/14/23 Tr. at 2142:19-22.

Their disagreement stems from differing interpretations of the events in 2016. Liddicoat testified that, when FRR created One Barberry to buy the quarry property and bought the quarrying equipment in 2016, it was "changing the way it operated," such that the cost of sales in 2016 was likely more "representative of what [FRR] will do going forward." 2/14/23 Tr. at 2141:11-2142:6. For that reason, he applied the 31% cost of sales from 2016 to his forecast. Ex. 542 at 11, 13. DeCusati explained that his "first intuition" was also to forecast a cost of sales of 31% as it was closer in time to the shutdown, but his review of the actual costs FRR incurred that year gave him pause. 2/10/23 Tr. at 1709:21-1710:1. Specifically, one line of FRR's costs of sales was "equipment repairs and maintenance," and that line item grew from 0% in 2014, to 6.6% in 2015, to 11.5% in 2016. Ex. 91 at 34; 2/10/23 Tr. at 1708:22-1709:1. From his discussions with Patton, DeCusati confirmed that FRR's costs to repair and maintain equipment were unusually high in 2016 because, that year, FRR bought equipment needing "significant repairs and maintenance," such as engine replacements, which was a strategic choice FRR made because it had mechanics capable of performing that work. 2/10/23 Tr. at 1709:8-13. See also 2/10/23 Tr. at 1671:19-25 (DeCusati testifying that, according to Patton, he had developed

"a good staff of mechanics" and thus bought "equipment that maybe was subpar, knowing that he could" repair it). Accordingly, DeCusati explained, "the fact that [FRR] had such significant repairs and maintenance in 2016 was not an appropriate measure to project into the future." 2/10/23 Tr. at 1709:13-16. See also 2/10/23 Tr. at 1899:11-22 (DeCusati explaining that many of the costs in 2016 were "non-recurring"). For that reason, he averaged the cost of sales percentages between 2014 and 2016 to derive a cost of sales percentage of 26.2% of revenue, which he used in his forecast. 2/10/23 Tr. at 1709:17-20, 1718:24-1719:3.

The Court agrees with DeCusati that, specifically with respect to the cost of sales, the data from FRR's operation in 2016 is not representative of what FRR's cost of sales would have been in the future but for Defendants' conduct. As explained above, and as Liddicoat explained, FRR's operation in 2016 was generally more similar to how it would have operated going forward because of the events of that year, such as the creation of One Barberry to buy the property and the purchase of quarrying equipment. But it stands to reason that those events had additional costs associated with them, and the Court is persuaded by Patton and DeCusati that many of these costs, especially those associated with equipment repair, would not have recurred regularly. To be sure, the equipment repair costs likely would have always been greater from 2017 onward than they were while FRR was still leasing equipment in 2015 and 2014; but those costs likely would have been less from 2017 onward than they were in 2016, when FRR purposely bought multiple pieces of subpar equipment requiring significant initial repair. This logic is accounted for in DeCusati's cost of sales percentage, which averages the cost of sales percentages of all three years and ultimately falls between the 2015 and 2016 cost of sales percentages. Thus, the Court adopts DeCusati's cost of sales percentage of 26.2% of mined revenue.

The Court also notes that DeCusati applied the cost of sales percentage to only mined revenue, not reuse revenue, because of Patton's expectation that reuse revenue would have virtually no costs associated with it. Ex. 91 at 14; see 2/10/23 Tr. at 1719:1-10.⁹¹ Accepting Patton's testimony that the reuse customers would have borne the cost of transporting reuse to the quarry, see 2/1/23 Tr. at 417:25-418:8, his proposition that accepting reuse would not have had any costs stands to reason.

91 DeCusati testified that he did not accept Patton's assumption that reuse revenue would have no costs associated with it and instead applied the cost of sales to mined and reuse revenue. 2/10/23 Tr. at 1719:9-10. But this appears to have been incorrect because his report, and his calculations, reflect that he applied the cost of sales to only mined revenue. Ex. 91 at 14, 37.

Defendants attacked this proposition in various ways, but they ultimately did not quantify the costs FRR would have incurred to accept reuse or otherwise suggest a cost of sales percentage that should apply to reuse revenue. For example, Liddicoat opined that "the assertion that there would be no cost associated" with generating reuse revenue was not "supported by any other documents or data," although he did not "independently determine[]" whether there would have been costs associated with generating reuse revenue or what those costs would have been. 2/14/23 Tr. at 2144:4-13; see also Ex. 542 at 12-13. Stagg's report states that the quarry would need reuse, such as "commercial refill," to stabilize the property and there would be costs associated with accepting it, though he did not quantify those costs, either. Ex. 541 at 34. Ruttura testified on

cross-examination that there would be costs associated with accepting reuse, such as testing the pollution levels of the reuse for regulatory purposes and preparing and maintaining engineering plans, but Defendants did not ask him to quantify those costs. 2/9/23 Tr. at 1619:20-1620:4. None of this evidence suggests that the Court should subject the reuse revenue to the same 26.2% cost of sales percentage applicable to mining revenue—which accounts for many costs that, on their face, do not seem relevant to accepting reuse, such as blasting, equipment repairs, shipping costs, and fuel, see Ex. 91 at 34. The Court credits Patton's testimony that accepting reuse would incur little to no cost. Additionally, because the Court has significantly reduced the projected tonnage of regulated fill that would require environmental testing, any such costs would likewise be significantly reduced. Because Defendants have not shown what cost of sales percentage should apply to reuse revenue or demonstrated why the same cost of sales percentage should apply to mining and reuse revenue, the Court will accept DeCusati's forecast that does not subject reuse revenue to any cost of sales percentage.

4. Net Cash Flow

After applying the cost of sales percentage to mining revenue, the remaining mining revenue, plus the reuse revenue, constitutes FRR's gross income. From the gross income, DeCusati and Liddicoat subtracted various variable and fixed operating expenses, as well as depreciation, resulting in FRR's operation income. Ex. 91 at 37; Ex. 543 at 26; 2/10/23 Tr. at 1719:11-15. FRR's total operating expenses appear greater in DeCusati's forecast than in Liddicoat's forecast. As this issue was not discussed by either expert in detail, the Court adopts DeCusati's forecast of operating expenses.

From the operation income, DeCusati deducted FRR's "interest expense," which is the "actual interest expense that [FRR] would have paid on its [debt] obligations." 2/10/23 Tr. at 1720:21-23. He explained that, but for Defendants' conduct, FRR "would have had to pay its debt," and thus the interest it would have paid toward its significant debts should be deducted from its operation income, which effectively reduces FRR's forecasted profits and thus its damages. 2/10/23 Tr. at 1720:24-1721:7; see also 2/10/23 Tr. at 1901:2-4. Liddicoat, however, testified that the interest expense deduction is "conceptually inappropriate" because it does not align with the discount rate applied by both accounting experts. 2/14/23 Tr. at 2150:12-20, 2151:10-14. According to Liddicoat, that discount rate, discussed below, presupposes that the cash flow stream does not include interest expense. 2/14/23 Tr. at 2151:5-14. A discount rate that would be conceptually consistent with deducting interest expense would be much higher than the discount rate applied by both accounting experts here. 2/14/23 Tr. at 2151:15-19. Rather than apply a higher discount rate, Liddicoat simply declined to deduct FRR's interest expense, which ultimately increased FRR's forecasted profits and thus its damages. 2/14/23 Tr. at 2151:20-2152:2. The parties have not urged the Court to resolve this disagreement one way or another. But because DeCusati, as Plaintiffs' expert, deducted interest expense and thus decreased FRR's damages figure, the Court likewise deducts interest expense, without making any particular finding about the conceptual consistency of doing this.

From the remaining operation income, Liddicoat deducted taxes FRR would have paid but for Defendants' conduct shutting down the quarry, whereas DeCusati did not deduct those taxes. Compare Ex. 91 at 37 with Ex. 543 at 26. DeCusati testified that he did not reduce FRR's operation income for taxes it would have paid in recognition that "any award that would be

given to the plaintiffs in this case would be taxable," meaning deducting taxes in the forecast would effectively double-tax FRR. 2/10/23 Tr. at 1721:21-1722:14; see also Ex. 91 at 15. He further testified that this was the "traditional" approach to taxes in a damages calculation. 2/10/23 Tr. at 2/10/23 Tr. at 1722:6-7. Indeed, Plaintiffs cite Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 503, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968), for the proposition that a court should not diminish a damages award "by the amount of the taxes [the plaintiff] would have paid" but for the defendant's conduct because doing so would "apply a double deduction for taxation, leaving [the plaintiff] with less income than it would have had if [the defendant] had not injured it." See Pls.' Br. at 76. For his part, Liddicoat testified on cross-examination that he did not know whether any damages award by FRR would be subject to a state and federal tax. 2/14/23 Tr. at 2218:25-2219:1. Because Defendants' argument on this issue was conclusory and unsupported, see Defs.' Br. at 51, the Court will adopt DeCusati's approach and refrain from deducting taxes from FRR's forecasted operation income.

After applying certain additions and deductions not significantly discussed by the parties, see 2/10/23 Tr. at 1722:16-1723:3, the remaining value is FRR's forecasted net cash flow, see Ex. 91 at 37. As noted above, the Court will project FRR's net cash flow until FRR would have mined 5.83 million tons of earth materials, during year twenty-two.

5. Discount Rate and Present Value of Future Cash Flows

The next step is to discount the future value of FRR's forecasted cash flows to their present value, which is done by applying a discount rate. See 2/10/23 Tr. at 1687:3-6. In this context, "present value" refers to the date of the Maturo's and Soto's conduct, which was May 9, 2017. Ex. 91 at 39; 2/10/23 Tr. at 1728:23-24. The Court assumes, absent objection from Defendants, that this also adequately captures the value of FRR's forecasted net cash flows as of the date of the ZBA's conduct on September 21, 2017.

DeCusati and Liddicoat both applied a type of discount rate called the "weighted average cost of capital," which equaled 15.57%. Ex. 91 at 15, 36; Ex. 593 at 26; 2/10/23 Tr. at 1688:3; 2/14/23 Tr. at 2133:21-23. DeCusati explained in detail how he arrived at this discount rate. See 2/10/23 Tr. at 1689:21-1692:24. Because both accounting experts agree on the 15.57% discount rate, the Court will adopt it.⁹² In his report, DeCusati listed the forecasted net cash flows for each year and converted those cash flows to their present value in light of the discount rate. Ex. 91 at 39; 2/10/23 Tr. at 1728:13-24.

92 Patton disagreed with DeCusati's discount rate, believing that it was too high. 2/10/23 Tr. at 1688:18-20, 1691:23-25. Ross employed discount rates of 7% and 8%, Ex. 94 at 46-47; 2/10/23 Tr. at 1687:11-16, and DeCusati testified that, if he had employed those discount rates, his damages calculation would have surpassed $20 million, 2/10/23 Tr. at 1688:14-16.

Because the Court has cut the tonnage of reuse from which FRR would have derived revenue, as discussed above, the Court has altered DeCusati's net cash flows and conversion of those cash flows to their present value.⁹³ In addition, because the Court applies a shorter projection period than DeCusati, also discussed above,

93 At the Court's request, Plaintiffs submitted to the Court editable Microsoft Excel spreadsheets of Exhibits 10 through 16 of DeCusati's report, Ex. 91 at 37-45. The spreadsheets are programmed to implement the mathematical formulas DeCusati used and, thus, the Court is able to input its own values to alter the damages calculation. The Court's versions of Exhibits 10 through 16 of DeCusati's report, stating the Court's calculations, are attached to this Memorandum of Decision.

the Court adds together the present values of the forecasted net cash flows for all years up to and including 2037, which is the twenty-first year of the forecast. In the Court's calculation, then, the total present value of FRR's future cash flows as of May 10, 2017, is $12,343,266.

F. Findings of What Happened

Next, the Court quantifies FRR's mitigation of its damages, or, in other words, what actually happened and what can now be anticipated to happen. The present value of that mitigation will be subtracted from the present value of FRR's future cash flows to result in the present value of FRR's damages.⁹⁴

94 Typically, the plaintiff has the obligation to mitigate his damages, but the defendant bears the burden "to demonstrate that the plaintiff could, with reasonable effort, have so mitigated his damages." Marasa v. Atl. Sounding Co., 557 F. App'x 14, 19 (2d Cir. 2014) (summary order).

FRR's mitigation occurred in two phases. First, FRR somewhat mitigated its damages between the shutdown of the quarry on May 9, 2017, and the end of 2021, which was the year in which EHTRQ restarted the quarry operation. Second, FRR has further mitigated its damages due to EHTRQ's restart of the quarry operation, and FRR is forecasted to continue mitigating its damages through EHTRQ's operation for the life of the quarry.

1. Mitigation from Shutdown to Restart ⁹⁵

95 As discussed above, Defendants initially argued that Plaintiffs failed to mitigate their damages because they elected to close the quarry in response to the third cease-and-desist order, when Defendants believe enforcement of that order was stayed pending Plaintiffs' appeal to the ZBA. See supra note 60 (citing Defs.' Br. at 82-83). Because the Court considered this issue with respect to the causation aspect of Maturo's and Soto's liability under § 1983, as clarified by Defendants at oral argument, the Court will not address the issue further here.

The Court finds that FRR somewhat mitigated its damages between the shutdown in 2017 and the restart of operations by EHTRQ in 2021. See 2/10/23 Tr. at 1694:11-19. DeCusati examined FRR's tax returns and other financial documents to assess FRR's cash flows from 2017 to 2021, including some revenue it generated in 2017 and 2019. 2/10/23 Tr. at 1730:1-6; Ex. 91 at 40. Importantly, FRR sold approximately $1 million worth of equipment in 2017 and 2018, and DeCusati testified that he imported the proceeds from those sales into his calculations from FRR's tax returns.⁹⁶ 2/10/23 Tr. at 1731:9-22; Ex. 91 at 41. Defendants hinted that FRR's equipment sales may not have constituted adequate mitigation because FRR sold that equipment to Ace Equipment Sales ("Ace"), which is a company partially owned by Becker and in which Patton is "heavily involved." 1/30/23 Tr. at 36:3-7;⁹⁷

96 In reviewing one of DeCusati's earlier reports, Liddicoat opined that DeCusati's damages calculation did not include additional equipment sale proceeds in the amount of $879,537, which understated FRR's mitigation efforts and thus increased its damages. Ex. 542 at 16; 2/14/23 Tr. at 2156:13-24. DeCusati's latest report appears to adjust the proceeds from the equipment sales in response to Liddicoat's critique. Compare Ex. 89 at 41 (listing only $225,000 as the proceeds from the equipment sales) with Ex. 91 at 41 (listing $225,000 as the proceeds from equipment sales in 2017 and $879,537 as the proceeds from equipment sales in 2018).

97 Specifically, Ace was started in the 1970s by Becker and her father. 1/30/23 Tr. at 36:3-4. Patton became involved in the 1990s and is currently the vice-president, although he testified that he does not have an ownership interest and is not paid by that company. 1/30/23 Tr. at 29:15-17, 35:5-6; 2/1/23 Tr. at 482:4-7. The company primarily buys and sells crushing equipment, given Patton's familiarity with that type of equipment. 1/30/23 Tr. at 36:4-8.

2/2/23 Tr. at 661:10-18; 2/10/23 Tr. at 1882:13-22, 1883:2-16. But Defendants did not produce any evidence from which the Court could infer that the sales did not fairly mitigate FRR's losses with respect to that equipment.

The other notable aspect of DeCusati's calculation of FRR's cash flows during this period is that, for 2017 and 2018, DeCusati deducted $25,000 each year for capital expenditures. Ex. 91 at 40. Liddicoat explained that capital expenditures are "large capital asset purchases" that "are used to typically maintain an operation or to expand an operation." 2/14/23 Tr. at 2165:22-25. He could not understand what DeCusati's $25,000 capital expenditures in 2017 and 2018 reflected, given that they were incurred during the time period when the quarry was shut down. 2/14/23 Tr. at 2166:1-10; Ex. 542 at 22. Neither DeCusati nor Patton explained what, if any, capital expenditures FRR had in those years, and the record does not allow the Court to infer why FRR would have spent money on capital asset purchases in those years while it was winding down the quarry operation. Because FRR's capital expenditures in those years are not substantiated in the record, the Court agrees with Liddicoat that they should not have been included in FRR's cash flows during this period. The Court removes those figures from FRR's cash flows during this period.

After calculating FRR's net cash flows from 2017 to 2021, DeCusati discounted those cash flows to convert those cash flows to present value, i.e., the value of those cash flows as of the shutdown of the quarry. Ex. 91 at 41; 2/10/23 Tr. at 1732:2-6. After removing the capital expenditures from FRR's cash flows and discounting those cash flows, the Court finds that the present value of FRR's mitigation between 2017 and 2021 amounts to $239,891. The entire present value of those cash flows is attributable to FRR's mitigation of its damages, given that this mitigation predates the EHTRQ transaction. 2/10/23 Tr. at 1732:9-11.

2. Mitigation Since EHTRQ Formation

The Court finds that FRR further mitigated its damages to a certain degree by participating in the EHTRQ transaction because that transaction enabled the quarry to begin generating revenue. Patton credibly testified that, in late 2019 and early 2020, FRR did not have any of the essentials it would need to restart the quarry operations, such as employees or equipment, and it did not have the means to get those essentials on its own, such as by generating interim income or obtaining more credit. See 2/1/23 Tr. at 388:17-389:3, 390:14-23, 391:13-22. Furthermore, Patton credibly testified that he saw the EHTRQ transaction as "the best of many bad alternatives," in the sense that it would enable the quarry to start generating income again and avoid foreclosure, but it nevertheless required him to sacrifice his majority ownership of FRR and his managerial control over the quarry operation. 2/1/23 Tr. at 403:1-8, 404:19-405:10.

a. Defendants' Arguments

Defendants make several arguments regarding the EHTRQ transaction, all of which concern the propriety of the transaction and the manner in which it affected FRR's damages. The Court will address these preliminary arguments before calculating the mitigating effect of EHTRQ's forecasted operations.

First, Defendants doubt the credibility of Patton's testimony that the EHTRQ transaction was the best of the bad options available to him and FRR; rather, Defendants argue that the EHTRQ transaction was a "litigation contrivance" that ultimately put Patton and FRR in a better

financial position. Defs.' Br. at 60, 73. According to Defendants, the EHTRQ transaction effectively eliminated any damages FRR might have suffered because FRR transferred its liabilities to EHTRQ in exchange for the new members' significant capital investments. Id. at 59. Similarly, Defendants hint that the EHTRQ transaction was not an arms-length transaction by pointing to DeCusati's testimony that he did not ask Patton for information that would verify it was an arms-length transaction. See 2/10/23 Tr. at 1878:6-19. And they again hint that EHTRQ received preferential treatment from Ace when leasing most of its equipment. See 2/10/23 Tr. at 1882:23-1883:11.

But these arguments, in addition to being entirely devoid of support in the record, miscomprehend the nature of the EHTRQ transaction. EHTRQ did not give value to FRR by paying it to acquire its assets, the way the buyer of a house gives value to the seller by paying to acquire the seller's house. Rather, FRR and the two new members of EHTRQ pooled their resources —specifically, the new members contributed cash and new lines of credit, while FRR contributed its ownership of the property through One Barberry—for the purpose of funding the new entity's quarry operation. The fact that EHTRQ was funded by significant investments of cash does not suffice to show that FRR financially prospered as a result of the EHTRQ transaction; it simply highlights the differences between FRR as it existed in 2017 and EHTRQ as it exists today. FRR operated with relatively limited outside investment and instead financed the early years of its operation with credit. When it was able to operate the quarry again, FRR had to continue to pay the balance of its debts and finance the restart of its operation, without the aid of any new credit. In contrast, EHTRQ has assumed FRR's debt obligations, but was nevertheless able to restart the quarry operation because the new members invested cash and obtained credit. These differences show that the EHTRQ transaction somewhat mitigated, but did not entirely obviate, FRR's damages caused by Defendants' shutdown of the quarry.

Relatedly, Defendants take aim at Patton's contention that FRR truly could not have restarted the quarry operation. See Defs.' Br. At 69. But the Court credits Patton's testimony about the nature and extent of FRR's debt obligations and the significant capital required to kickstart a quarry operation, and Defendants have not weakened the credibility of Patton's testimony on those issues or presented other evidence suggesting that FRR actually was in a financial position to restart operations on its own. To the extent Defendants reiterate their argument that FRR was not actually required to stop operating in response to the third cease-and-desist order, and thus had no practical obstacle to restarting its operations later, the Court rejected that argument above. Accordingly, the Court will not disregard the impact FRR's dormancy between 2017 and 2021 had on its ability to practically resume operations.

Finally, Defendants argue that, in any event, the Court should not allow FRR to recover for damages suffered due to the delay in restarting EHTRQ because, had FRR properly mitigated its damages, there would not have been such a protracted delay. Patton testified that there was some delay in formalizing the EHTRQ transaction in 2020 due to the COVID-19 pandemic, 2/1/23 Tr. at 401:4-8, and then it took him longer than he expected to "get the equipment up and running," 2/1/23 Tr. at 403:21-22. Defendants have not, however, adequately demonstrated what they believe proper mitigation would have been. For example, they did not elicit testimony indicating how soon the EHTRQ transaction would have happened but for the COVID-19

pandemic, nor have they showed how long it reasonably should have taken EHTRQ to reach its ordinary operational capacity. Absent any sort of quantification from Defendants or Liddicoat, the Court will not discount FRR's damages due to these delays, given that Defendants bear the burden of demonstrating that Plaintiffs' mitigation was insufficient. See Marasa, 557 F. App'x at 19.

b. Present Value of EHTRQ's Forecasted Cash Flows

Because EHTRQ's profits from operating the quarry somewhat mitigate FRR's damages, the Court's task here is to forecast the profits EHTRQ is expected to generate over the life of the quarry and then discount those profits to their present value, which, again, refers to the value of those profits as of the date of the shutdown. 2/10/23 Tr. at 1695:3-9. DeCusati's methodology for forecasting EHTRQ's expected profits was the same as his methodology for forecasting what FRR's profits would have been. 2/10/23 Tr. at 1735:25-1736:5. Because Patton "aggressively" believed that, by 2024, EHTRQ would reach the level of production FRR would have maintained but for Defendants' conduct, DeCusati forecasted that EHTRQ would ramp up its mining operations through 2023 and then mine a total of 275,000 tons of earth materials per year from 2024 onward. 2/10/23 Tr. at 1733:2-8; Ex. 91 at 42.

DeCusati also anticipated a ramp-up period for EHTRQ to accept reuse through 2023 and then accept a total of 206,250 tons of reuse per year from 2024 onward, which represents 75% of the annual tons mined. Ex. 91 at 42. As with respect to FRR's forecasted reuse revenue, however, Plaintiffs have not adequately supported DeCusati's estimates that EHTRQ will accept approximately 131,240 tons of clean fill or 20,000 tons of regulated fill from regional markets annually. Accordingly, the Court will accept DeCusati's forecast of EHTRQ's reuse revenue from the New York market, but it will alter his forecast of revenue from clean and regulated fill from other regional markets to reflect the tonnages forecasted with respect to FRR. This is consistent with the fact that EHTRQ's forecast mirrors FRR's forecast in most material respects.

EHTRQ's anticipated unit prices for mined and reuse revenue maintained the same 3% growth rate reflected in DeCusati's forecast of the profits FRR would have generated. See 2/10/23 Tr. at 1733:16-20. The Court observes that this somewhat overstates EHTRQ's anticipated reuse revenue, in the following respect. Some of EHTRQ's reuse revenue will be generated from Ruttura and Juliano disposing of reuse in the quarry, and, under EHTRQ's operating agreement, they are entitled to a fixed, preferential tipping fee of $3 per ton for fifteen years. See supra note 79. This is half the normal tipping fee for the New York market in the first year of the forecast and will not grow by 3% like the normal tipping fee, meaning that EHTRQ will likely generate less reuse revenue from that market than forecasted. But the Court declines to speculate what portion of reuse revenue from the New York market will be generated from Ruttura and Juliano, absent a basis for a reasonable estimation. Rather, because DeCusati's forecasted tipping fees in the New York market increase EHTRQ's mitigating effect and thus decrease FRR's damages, the Court will adopt those tipping fees.

DeCusati forecasted that EHTRQ will experience a higher cost of sales percentage than FRR would have experienced because EHTRQ has a different approach to acquiring and maintaining quarrying equipment. As explained above, FRR bought subpar quarrying equipment because it employed skilled mechanics who were able to repair and maintain that equipment. By contrast, EHTRQ does not

employ skilled mechanics, rather it leases newer equipment and is expected to incur greater costs outsourcing mechanic labor when the equipment inevitably requires repair and maintenance. 2/10/23 Tr. at 1735:2-9. DeCusati discussed the effect of this additional cost with Patton and forecasted that EHTRQ's cost of sales would amount to 29.2% of its mining revenue. 2/10/23 Tr. at 1735:10-22; Ex. 91 at 17, 42. Defendants do not challenge the cost of sales percentage employed in DeCusati's forecast of EHTRQ's anticipated profits.

Turning to the projection period, DeCusati explained that, by 2024, EHTRQ will have "essentially mitigated" the revenue FRR lost. 2/10/23 Tr. at 1733:21-24. Indeed, in the Court's review, EHTRQ's anticipated revenues and net cash flows closely mirror those FRR would have experienced but for Defendants' conduct. As with the forecast of FRR's cash flows, the Court will end the projection period when EHTRQ is anticipated to mine the total 5.83 million tons of recoverable earth materials contained in the quarry since the shutdown, which is during 2043, the twenty-seventh year of the forecast.⁹⁸

98 The projection period is five years longer with respect to EHTRQ's forecast than FRR's forecast because EHTRQ's forecast represents the cash flows EHTRQ is expected to generate after the years of the shutdown and the ramp-up to full operational capacity, whereas FRR's forecast represents the uninterrupted cash flows FRR would have generated if Defendants had not shut down the quarry.

In his report, DeCusati listed EHTRQ's forecasted net cash flow for each year and converted those cash flows to their present value in light of the discount rate, using the same methodology he had used with respect to the present value of FRR's forecasted cash flows. Ex. 91 at 44; 2/10/23 Tr. at 1739:18-20. This calculation captures losses EHTRQ experienced in 2020 and 2021 due to expenses incurred in the ramp-up period. 2/10/23 Tr. at 1739:20-1740:1. Because the Court has cut the tonnage of reuse from which EHTRQ is forecasted to derive revenue, the Court has altered DeCusati's net cash flows and conversion of those cash flows to their present value. In addition, because the Court applies a shorter projection period than DeCusati, the Court adds together the present values of the forecasted net cash flows until EHTRQ is expected to mine the total tonnage of earth materials contained in the quarry, during 2043. In the Court's calculation, then, the present value of EHTRQ's future cash flows as of May 10, 2017, is a total of $5,275,085.

Because these are EHTRQ's cash flows, not just FRR's, they must be reduced to reflect the proportion of EHTRQ's cash flows that will benefit FRR. 2/10/23 Tr. at 1740:2-5. When analyzing a party's mitigation efforts, the value of those efforts must correspond with the benefit received by the party claiming the damages. 2/14/23 Tr. at 2175:9-17. EHTRQ is not a party to the present litigation; FRR effectively constitutes 50% of EHTRQ (through Patton's and his wife's shares), and thus receives only 50% of the benefits generated by EHTRQ's quarry operation.⁹⁹ Accordingly,

99 Aside from their more general arguments concerning the EHTRQ transaction, Defendants do not specifically attack DeCusati's use of only 50% of EHTRQ's forecasted cash flows as mitigation. Indeed, DeCusati himself recognized that, as 25% of EHTRQ belongs to Patton's wife and she is not a plaintiff in this action, using a 25% figure may be a more accurate estimation of the mitigation that should be subtracted from Plaintiffs' damages. 2/10/23 Tr. at 1697:19-1698:6. Nonetheless, he used the 50% figure to be more conservative, despite Patton's disagreement with this point, because he believed "the perception may be drawn that there is a beneficial interest drawn to the couple." Id. at 1697:19-24, 1698:13-17. Importantly, Liddicoat did not explain how he believed the EHTRQ transaction and its projected operations would affect FRR's mitigation of damages; he focused his discussion of EHTRQ on the accounting records of FRR and the economic benefit FRR allegedly received from the EHTRQ transaction, along with a temporary takings analysis of damages. See generally Ex. 543. For example, his supplemental report did not contain a forecast of EHTRQ's future cash flows, and he did not testify about the relevance of those cash flows or comment on DeCusati's forecasts. The Court observes that the degree to which EHTRQ's forecasted operations benefit FRR is a technical issue of accounting on which expert testimony was needed. Without commenting on DeCusati's belief in the perceived beneficial interest to Patton due to his wife's ownership percentage, the Court finds that FRR, the entity composed of Patton and Becker with a right to recover damages, constitutes 50% of EHTRQ; thus, it is reasonable to further find that FRR mitigates its damages by 50% of EHTRQ's cash flows, particularly because Defendants do not argue otherwise on this particular point.

the value of FRR's mitigation efforts equals 50% of the present value of EHTRQ's future cash flows. See 2/10/23 Tr. at 1697:19-1698:6, 1740:2-5. Thus, 50% of the present value of EHTRQ's future cash flows amounts to $2,637,543.

c. Special Distribution to EHTRQ

Plaintiffs urge the Court to add $1.25 million to the damages award due to a promise Patton made when forming EHTRQ about how he would distribute a damages award resulting from the present litigation. Specifically, Patton promised the other members of EHTRQ that, in the event he prevails in the present litigation,¹⁰⁰ he would contribute $2.5 million of any damages award to EHTRQ, specifically intended to pay down the mortgage on the property with What TF. 2/1/23 Tr. at 400:22-25; 2/9/23 Tr. at 1598:7-19, 1606:14-15. This appears to be a handshake agreement among the EHTRQ members. 2/9/23 Tr. at 1598:20-25. EHTRQ's operating agreement contains a provision for the "Special Distribution" that may result from the present litigation, which provides that the members will "confer to agree on a final order of priority and amounts for the distribution of any recovery." Ex. 121 at 4.

100 Patton also agreed to continue solely funding the present litigation. 2/9/23 Tr. at 1598:18-19.

DeCusati opined that the damages award should be increased by $1.25 million in recognition of this promise. Ex. 91 at 17.¹⁰¹ He explained that, while FRR will effectively benefit from half of the $2.5 million promised to EHTRQ, it would not benefit from the other half; thus, FRR will essentially lose $1.25 million, meaning it will not be made whole. 2/10/23 Tr. at 1696:14-22, 1891:7-13.

101 DeCusati testified that, after writing his most recent report and then speaking with Plaintiffs' counsel about the nature of Patton's promise to the other members of EHTRQ, he believed the damages award should be increased by $1.25 million, not the $2.5 million stated in the report. 2/10/23 Tr. at 1888:17, 1888:24-1889:5, 1891:20-21.

The Court declines to add this $1.25 million figure to the damages award. Plaintiffs have not provided any authority for the proposition that a plaintiff's post-injury promise about how he would spend a favorable damages award has any impact on the damages award itself. Importantly, none of the evidence presented to the Court suggests that the $2.5 million promise can be considered a financial harm FRR suffered due to the shutdown. For example, this figure does not represent a debt Patton owes to the other members of EHTRQ. To the contrary, Ruttura testified credibly that his business endeavors would not be meaningfully affected if no damages were awarded in this action, see 2/9/23 Tr. at 1611:11-1612:18, which suggests that the $2.5 million figure is not considered a debt Patton owes to the other members of EHTRQ. In addition, nothing

in the record suggests that this promise was necessary for Patton to induce Ruttura and Juliano to participate in the EHTRQ transaction. Indeed, Ruttura's incentive for participating in the EHTRQ transaction—the prospect of fixed, preferential tipping fees—has nothing to do with any damages that may be awarded to FRR or Patton. And, even if the $2.5 million figure were a debt or inducement, that would not necessarily make FRR's $1.25 million loss recoverable, as it clearly does not represent a lost profit. Rather, FRR will be made whole by the Court's calculation of its lost profits to a reasonable certainty; thereafter, Patton and FRR will have discretion to spend it.

G. Total Compensatory Damages Calculation

To determine FRR's total compensatory damages award, the Court calculates the difference between the present value of FRR's future cash flows and the present value of FRR's total mitigating efforts, both during the shutdown period and following the EHTRQ transaction. See 2/10/12 Tr. at 1659:16-23. FRR's total mitigating efforts—specifically, the $239,891 constituting FRR's mitigation between 2017 and 2021, plus the $2,637,543 constituting FRR's mitigation through EHTRQ's future quarry operation—amount to $2,877,434. The Court subtracts this amount from $12,343,266, which constitutes the present value of FRR's future cash flows as of May 10, 2017, but for Defendants' conduct. Thus, FRR's compensatory damages amount to $9,465,832.¹⁰²

102 DeCusati testified that the total lost profits damages calculation is discounted to the value of those profits as of 2017 and that, in his experience, courts typically apply an interest rate to adjust the damages to reflect their value as of the date of the judgment. 2/10/23 Tr. at 1741:5-1742:1. Prejudgment interest is "generally appropriate in § 1983 actions," and "usually a necessary component of any award intended to make a plaintiff whole," because it "compensates a plaintiff for delay in the receipt of relief." Rao v. N.Y.C. Health & Hosps. Corp., 882 F. Supp. 321, 326 (S.D.N.Y. 1995). That said, "the question of whether or not to award prejudgment interest is ordinarily left to the discretion of the district court." Gierlinger, 160 F.3d at 873; accord Sulkowska v. City of New York, 170 F. Supp. 2d 359, 370-71 (S.D.N.Y. 2001). In their posttrial brief. Plaintiffs did not argue that they are entitled to an award of prejudgment interest or propose an interest rate. Given that Plaintiffs' entitlement to prejudgment interest and the appropriate interest rate are not straightforward issues, the Court declines to award it at this time. See Gierlinger, 160 F.3d at 875 (noting that "an award of prejudgment interest is not appropriate with respect to an award of damages for future losses"); Fendi Adele S.R.L. v. Burlington Coat Factory Warehouse Corp., 689 F. Supp. 2d 585, 616 (S.D.N.Y. 2010), amended on reconsideration (Mar. 23, 2010) (noting that "courts in this Circuit use a wide variety of formulas to compute" prejudgment interest). If desired, Plaintiffs may file a motion to amend the judgment to account for prejudgment interest pursuant to Federal Rule of Civil Procedure 59(e).

IX. EMOTIONAL DISTRESS DAMAGES

In addition, Patton seeks emotional distress damages arising from Defendants' conduct. He testified that, following the shutdown of the quarry, he was angry, frustrated, and confused. 2/1/23 Tr. at 463:23-25. He became "conflict averse," which negatively impacted his other business endeavors, and he stopped volunteering in community activities. 2/1/23 Tr. at 463:25-464:19. Although courts generally can award emotional distress damages in cases arising under § 1983, Patrolmen's Benevolent Ass'n of City of New York v. City of New York, 310 F.3d 43, 55 (2d Cir. 2002), the Court cannot award Patton emotional distress damages here because only FRR, not Patton, has suffered a substantive

due process violation due to Defendants' conduct.

A plaintiff "must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of" another. Warth, 422 U.S. at 499, 95 S.Ct. 2197; accord Bartfield v. Murphy, 578 F. Supp. 2d 638, 645 (S.D.N.Y. 2008). Because of this rule, courts generally do not allow members of a corporate entity to pursue individual claims for harms suffered by the corporate entity. For example, one court in this Circuit held that an individual plaintiff lacked standing to sue municipal officials under § 1983 for action taken against properties owned by several limited liability companies which, in turn, were owned by the plaintiff. Ali v. N.Y.C. Dep't of Transp., No. 14-CV-312 (SLT) (CLP), 2014 WL 5822625, at *4 (E.D.N.Y. Nov. 7, 2014). Although the plaintiff contended that he originally owned the properties at issue and transferred his ownership interests to the limited liability companies in transactions that were not arms-length, the court rejected that argument and held that the plaintiff did not sufficiently allege he had personally suffered any cognizable injury as a result of the defendants' conduct. Id. (collecting cases).

In addition, several other Circuits have held that individual shareholders did not have standing to pursue claims that derived from harm suffered by a corporate entity, notwithstanding the shareholders' allegations of emotional distress. See Pagan v. Calderon, 448 F.3d 16, 29 (1st Cir. 2006) (holding that individual shareholders did not have standing to bring derivative claims, notwithstanding their claims for emotional distress damages); Guides, Ltd. v. Yarmouth Grp. Prop. Mgmt., Inc., 295 F.3d 1065, 1072-73 (10th Cir. 2002) (holding that an individual plaintiff suffered no violation "that was in any way different from the violations claimed by" the corporate plaintiff and thus had no standing to bring an individual claim, notwithstanding her allegations of emotional distress and her status as a guarantor of the corporate plaintiff's financial obligations); Bellows v. Amoco Oil Co., 118 F.3d 268, 277 n.27 (5th Cir. 1997) (holding that, even if the individual plaintiff suffered emotional distress, that distress resulted from the same conduct giving rise to the corporate plaintiff's claim, and thus he could not state an individual claim); see also Harpole Architects, P.C. v. Barlow, 668 F. Supp. 2d 68, 77 (D.D.C. 2009) (holding that the individual plaintiff did not have standing to assert claims arising from emotional distress that were derivative of the corporate plaintiff's claims).

Although those cases focus on the jurisdictional question of Article III standing, the reasoning is germane to the question of whether Patton can recover emotional distress damages. As explained above, the Court finds that FRR held the constitutionally protected property right that was violated by Defendants' conduct and that Patton himself has not suffered a constitutional violation. Moreover, he cannot recover emotional distress damages deriving from FRR's injury because FRR is a distinct legal entity from Patton, notwithstanding Patton's ownership percentage and the fact that he was the guarantor on FRR's debt. Accordingly, the Court lacks a legal basis on which to award Patton emotional distress damages.

X. PUNITIVE DAMAGES

"Punitive damages are awarded under 42 U.S.C. § 1983 to deter or punish violations of constitutional rights." Gagne v. Town of Enfield, 734 F.2d 902, 904 (2d Cir. 1984) (citing Carey, 435 U.S. at 257 n.11, 98 S.Ct. 1042). Although municipalities are immune from punitive damages under § 1983, City of Newport v. Fact

Concerts, Inc., 453 U.S. 247, 271, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981), "that immunity does not extend to a municipal official sued in his individual capacity," New Windsor Volunteer Ambulance Corps, Inc. v. Meyers, 442 F.3d 101, 122 (2d Cir. 2006) (citing Smith v. Wade, 461 U.S. 30, 55-56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983)). See also S. Lyme Prop. Owners Ass'n v. Town of Old Lyme, 539 F. Supp. 2d 524, 544 (D. Conn. 2008); Pica v. Sarno, 907 F. Supp. 795, 805 (D.N.J. 1995); Jannuzzi v. Borough of Edwardsville, No. CIV. A. 3:09-CV-970, 2009 WL 3818427, at *9 (M.D. Pa. Nov. 13, 2009). Accordingly, Plaintiffs cannot recover punitive damages against the Town, but they seek punitive damages against Maturo and Soto.

"To be entitled to an award of punitive damages, a claimant must show a 'positive element of conscious wrongdoing.'" New Windsor Volunteer Ambulance Corps, Inc., 442 F.3d at 121 (quoting Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 538, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999)); accord Frank Sloup & Crabs Unlimited, LLC v. Loeffler, 745 F. Supp. 2d 115, 147 (E.D.N.Y. 2010). Specifically, punitive damages "may be awarded in a § 1983 action 'when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.'" New Windsor Volunteer Ambulance Corps, Inc., 442 F.3d at 121 (quoting Wade, 461 U.S. at 56, 103 S.Ct. 1625); accord Goff v. Chivers, No. 3:15-CV-722 (SALM), 2017 WL 2174404, at *16 (D. Conn. May 17, 2017). "Whether punitive damages are to be awarded and in what amount is for the trier of fact." Gagne, 734 F.2d at 904 (citing Stolberg v. Members of Bd. of Trs. for State Colls. of Conn., 474 F.2d 485, 489 (2d Cir. 1973)).

The Court declines to award punitive damages here. While the Court finds Maturo's and Soto's conduct conscience-shocking for substantive due process purposes, and objectively unreasonable for qualified immunity purposes, that does not necessitate a finding that their conduct was so reprehensible as to justify an award of punitive damages. "The fact that conduct is sufficiently reprehensible so as to trigger tort liability and damages 'does not establish the high degree of culpability that warrants a substantial punitive damages award.'" DiSorbo, 343 F.3d at 186 (quoting BMW of N. Am. v. Gore, 517 U.S. 559, 580, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996)). In other words, "[i]t should be presumed a plaintiff has been made whole for his injuries by compensatory damages, so punitive damages should only be awarded if the defendant's culpability, after having paid compensatory damages, is so reprehensible as to warrant the imposition of further sanctions to achieve punishment or deterrence." State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408, 419, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003) (citing Gore, 517 U.S. at 575, 116 S.Ct. 1589). Notably, the record here does not indicate that Maturo or Soto acted with intentional malice toward Patton or Plaintiffs; rather, Maturo acted in selfish pursuit of his own political interests, and Soto acted with callous disregard of FRR's constitutionally protected right because of his strong disagreement with his predecessor's actions. Maturo's and Soto's actions were constitutionally unacceptable; but, in the Court's view, they do not evince the sort of malicious or callous indifference that would justify a punitive damages award. See DiSorbo, 343 F.3d at 186 ("Reprehensibility in this context entails more than merely asking whether the conduct was unacceptable." (citing Lee v. Edwards, 101 F.3d 805, 809 (2d Cir. 1996))). Moreover, Maturo's and Soto's conduct imposed purely economic harms and did not present a threat of violence. See Campbell, 538 U.S. at 426, 123 S.Ct. 1513 (noting that the

plaintiff's harm "arose from a transaction in the economic realm, not from some physical assault or trauma," which weighed against a significant punitive damages award).

A punitive damages award is "discretionary" and "never awarded as of right, no matter how egregious the defendant's conduct.'" Rinaldi, 2016 WL 4179837, at *8 (quoting Wade, 461 U.S. at 52, 103 S.Ct. 1625). Here, the Court declines to award Plaintiffs punitive damages.

XI. ATTORNEYS' FEES

Under 42 U.S.C. § 1988(b), "a prevailing plaintiff is entitled to an award of attorneys' fees unless 'special circumstances would render such an award unjust.'" Henry, 803 F.2d at 769 (quoting Newman v. Piggie Park Enters., 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) (per curiam)); accord Goff, 2017 WL 2174404, at *17. The district court also has discretion to include expert fees as part of the attorneys' fee award. 42 U.S.C. § 1988(c). "Fee awards take on particular importance in actions brought pursuant to the civil rights laws, which rely in large part on private actions to ensure compliance with their provisions." McCann v. Coughlin, 698 F.2d 112, 128 (2d Cir. 1983). The district court must "determine what fee is 'reasonable,'" and the "most useful starting point" for that determination "is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). "The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed." Id.

Because FRR is a prevailing party here, it is entitled to an award of reasonable attorneys' fees. See Ruggiero v. Krzeminski, 928 F.2d 558, 564 (2d Cir. 1991) ("A party who achieves only partial success in his or her suit may be considered to be a 'prevailing party' where he or she 'succeeds on any significant issue in litigation which achieves some of the benefit... sought in bringing suit." (quoting Hensley, 461 U.S. at 433, 103 S.Ct. 1933 (cleaned up))). Accordingly, by October 17, 2023, FRR shall file a motion for attorneys' fees and costs sought in connection with the litigation of FRR's substantive due process claim, including the number of hours claimed; an itemized statement of the work performed and costs incurred; an itemized statement of whether the hours were incurred by an attorney, a paralegal, or other employee; and the corresponding hourly rates. See Fed. R. Civ. P. 54(d); Goff, 2017 WL 2174404, at *17. FRR shall support the motion with a brief arguing why the number of hours claimed, the work performed, and the hourly rates are reasonable. Defendants may respond to that brief, and FRR may reply in support of it, according to the deadlines set forth in Local Rule 7.

CONCLUSION

For the foregoing reasons, the Court finds that Plaintiffs have proven by a preponderance of the evidence that the Town, Maturo, and Soto deprived them of substantive due process protections in violation of the Fourteenth Amendment. The Clerk is directed to enter judgment in favor of Plaintiffs for their substantive due process claim in the amount of $9,465,832, payable to FRR. As a result, Plaintiffs' Takings Clause, inverse condemnation, and municipal estoppel claims are deemed moot. FRR shall file a motion for attorneys' fees and costs, as outlined above, by October 17, 2023.

The Court also finds that Plaintiffs have not proven by a preponderance of the evidence that Milici slandered their title. SO ORDERED at Hartford, Connecticut, this 3rd day of October, 2023.

Attachments

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EXHIBIT 11 (Court's Version) Farm River Rock, LLC DISCOUNTED NET CASH FLOW — BUT FOR DEFENDANT'S ACTIONS Mid-Year Forecast Discount Present Net Cash Flows Factor¹ Value May 10, 2017 to December 31, 2017 $ 1,107,666 1.10 $ 1,004,123 2018 $ 1,734,455 1.27 $ 1,360,457 2019 $ 1,856,476 1.47 $ 1,259,953 2020 $ 1,376,970 1.70 $ 808,599 2021 $ 1,906,089 1.97 $ 968,491 2022 $ 1,986,711 2.27 $ 873,435 2023 $ 2,068,327 2.63 $ 786,789 2024 $ 2,147,214 3.04 $ 706,738 2025 $ 2,213,144 3.51 $ 630,284 2026 $ 2,280,139 4.06 $ 561,864 2027 $ 2,349,143 4.69 $ 500,867 2028 $ 2,420,217 5.42 $ 446,490 2029 $ 2,493,424 6.26 $ 398,012 2030 $ 2,568,826 7.24 $ 354,796 2031 $ 2,646,491 8.37 $ 316,270 2032 $ 2,726,486 9.67 $ 281,925 2033 $ 2,808,880 11.18 $ 251,309 2034 $ 2,893,747 12.92 $ 224,016 2035 $ 2,981,159 14.93 $ 199,686 2036 $ 3,071,194 17.25 $ 177,997 2037 $ 3,163,930 19.94 $ 158,663 2038 $ 1,670,954 23.05 $ 72,503 Present Value as of May 10, 2017 $ 12,343,266

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EXHIBIT 13 (Court's Version) FARM RIVER ROCK QUARRY, LLC DISCOUNTED NET CASH FLOW — ACTUAL 2017-2021 Mid-Year Forecast Discount Present Net Cash Flows Factor¹ Value May 10, 2017 to December 31, 2017 $ 163,251 1.10 $ 147,991 2018 $ 386,525 1.27 $ 303,179 2019 $ (12,311) 1.47 $ (8,355) 2020 $ (199,144) 1.70 $ (116,943) 2021 $ (169,217) 1.97 $ (85,980) Present Value as of May 10, 2017 $ 239,891

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EXHIBIT 15 (Court's Version) EAST HAVEN TRAP ROCK QUARRY, LLC DISCOUNTED NET CASH FLOW — ACTUAL 2017-2021 AND FORECAST RECOVERY Mid-Year Forecast Discount Present Net Cash Flows Factor¹ Value May 10, 2017 to December 31, 2017 $ - 1.10 $ - 2018 $ - 1.27 $ - 2019 $ - 1.47 $ - 2020 $ (1,117,055) 1.70 $ (655,969) 2021 $ (1,494,980) 1.97 $ (759,605) 2022 $ 703,707 2.27 $ 309,377 2023 $ 1,564,693 2.63 $ 595,207 2024 $ 1,994,812 3.04 $ 656,576 2025 $ 2,120,747 3.51 $ 603,970 2026 $ 2,249,400 4.06 $ 554,289 2027 $ 2,355,050 4.69 $ 502,127 2028 $ 2,438,856 5.42 $ 449,928 2029 $ 2,512,695 6.26 $ 401,088 2030 $ 2,588,675 7.24 $ 357,538 2031 $ 2,666,936 8.37 $ 318,713 2032 $ 2,747,544 9.67 $ 284,103 2033 $ 2,830,570 11.18 $ 253,249 2034 $ 2,916,087 12.92 $ 225,745 2035 $ 3,004,170 14.93 $ 201,227 2036 $ 3,094,895 17.25 $ 179,371 2037 $ 3,188,342 19.94 $ 159,887 2038 $ 3,284,592 23.05 $ 142,519 2039 $ 3,383,730 26.64 $ 127,037 2040 $ 3,485,842 30.78 $ 113,237 2041 $ 3,591,017 35.58 $ 100,935 2042 $ 3,699,347 41.12 $ 89,969 2043 $ 3,068,296 47.52 $ 64,566 Present Value as of May 10, 2017 $ 5,275,085 Ownership % 50.0% ___________ Present Value of Ownership % $ 2,637,543

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