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Fusco v. the

decided: March 26, 1987.

VINCENT W. FUSCO AND CAROL M. FUSCO, PLAINTIFFS-APPELLANTS,
v.
THE STATE OF CONNECTICUT, THE TOWN OF TRUMBULL, THE PLANNING AND ZONING COMMISSION OF THE TOWN OF TRUMBULL, THE ZONING BOARD OF APPEALS OF THE TOWN OF TRUMBULL, DONALD MURRAY, INDIVIDUALLY AND AS BUILDING OFFICIAL FOR THE TOWN OF TRUMBULL, FRANK FENNELL AND GLORIA FENNELL AND ALBERT A. D'AMATO, DEFENDANTS-APPELLEES



Appeal from a judgment of the United States District Court for the District of Connecticut, T.F. Gilroy Daly, Chief Judge, dismissing plaintiffs' complaint. Affirmed.

Author: Mahoney

Before: WINTER and MAHONEY, Circuit Judges, and ZAMPANO, District Judge.*fn*

MAHONEY, Circuit Judge :

This is an appeal from a judgment of the United States District Court for the District of Connecticut granting defendants' oral motion to dismiss the complaint in a lawsuit brought pursuant to 42 U.S.C. § 1983 (1982) in which plaintiffs sought declaratory and injunctive relief to redress alleged violations of their rights under the fourteenth amendment. We affirm.

BACKGROUND

Since the court below dismissed the complaint in the conclusion of a hearing on plaintiffs' motion for a preliminary injunction, at which no evidence was introduced, we accept the allegations of the complaint as true for purposes of this appeal, Square D. Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409, 106 S. Ct. 1922, 1924 & n.2, 90 L. Ed. 2d 413 (1986) (citing cases), and construe them favorably to plaintiffs, Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974).

The complaint alleges that at all relevant times, plaintiffs have been the owners and occupiers of a parcel of land improved with a home located at 470 Shelton Road in Trumbull, Connecticut. Frank and Gloria Fennell, immediately adjacent neighbors of the plaintiffs, applied to the Trumbull Planning and Zoning Commission ("PZC") for permission to divide their property into two building lots, one of which would be the site of the Fennells' existing home and the other of which, bordering on plaintiffs' property, would be available for sale.

The PZC published notices of its pending hearing on the Fennells' application in the Bridgeport Post on December 8 and 14, 1984. These notices were concededly in accordance with the requirements of Conn. Gen. Stat. § 8-3 (1987).*fn1 Plaintiffs did not attend the hearing before the PZC, since they never saw the notices in the Bridgeport Post ; they allege that had they known of the hearing, they would have appeared and opposed the Fennells' application.

The Fennells' property is Located in an "AA" residential zone; Trumbull zoning regulations require lots in such areas to have a minimum road frontage of 150 feet. As the Fennells' proposed lot division would have created a building lot which failed to conform to the minimum road frontage requirement, the PZC granted the application conditioned on the approval of a variance from the zoning regulations by the Trumbull Zoning Board of Appeals ("ZBA").

Pursuant to Conn. Gen. Stat. § 8-7 (1987),*fn2 the ZBA published notices of its hearing on the Fennells' application in the Bridgeport Post on January 26 and February 1, 1985. The hearing was held on February 6, 1985. The application required a specification of the "exceptional difficulty" or "unusual hardship" necessitating the request for a variance, but the Fennells specified none. See Appendix at 16. Nor was an inquiry as to hardship made at the hearing before the ZBA. See Addendum to Appellants' Brief at 36-38. As with the earlier hearing before the PZC, the plaintiffs failed to appear at the February 6 hearing, having missed the notices published in the Bridgeport Post.

The Fuscos allege that the Trumbull ZBA customarily requires the posting of property for which a zoning variance is sought. They claim that the Fennells failed to post their property with a notice announcing the hearing before the ZBA.

Thereafter, the Fennells contracted to convey the newly created building lot to defendant Albert A. D'Amato. D'Amato planned to build a house on the lot in such a location as would, according to plaintiffs, destroy their privacy and diminish the value of their property. D'Amato applied to the ZBA for a variance on the sideyard requirement of local regulations. Plaintiffs learned of D'Amato's pending application, since his property had been posted. They appeared before the ZBA and opposed D'Amato's application, which was denied. Nevertheless, according to plaintiffs, D'Amato has stated his intention to build a smaller home, which will require no sideyard variance, very close to plaintiffs' swimming pool.

The Fuscos commenced the instant suit under 42 U.S.C. § 1983 (1982). Asserting a deprivation of property without due process of law, they sought, inter alia, a declaration that Conn. Gen. Stat. §§ 8-3, -7 are unconstitutional as they do not require actual notice of hearings pending before zone commissions or zoning boards of appeal to parties who are statutorily aggrieved within the meaning of Conn. Gen. Stat. § 8-8(a) (1987),*fn3 and a preliminary injunction restraining defendants (save the State of Connecticut) from effectuating the subdivision and variance obtained by the Fennells and from issuing a building permit allowing construction of a house on the lot D'Amato agreed to purchase.

At the hearing on plaintiffs motion for injunctive relief pendente lite, defendants moved to dismiss the complaint. The district court heard from both sides, denied the injunction and granted ...


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