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Brady v. Town of Colchester

decided: December 1, 1988.

WESLEY S. BRADY AND ROSARIA S. BRADY, PLAINTIFFS-APPELLANTS,
v.
TOWN OF COLCHESTER, A MUNICIPAL CORPORATION IN THE STATE OF CONNECTICUT, SUSAN MARVIN, IN HER CAPACITY AS EXECUTRIX OF THE ESTATE OF HELEN GAY, INDIVIDUALLY AND IN HER CAPACITY AS FIRST SELECTMAN OF THE TOWN OF COLCHESTER, THOMAS E. ADAMS, JAMES CAHILL, GRACE DOWNEY, JOSEPH KILRAIN, JAMES MILLER, JOSEPH OUS, ADAM PIEKARZ, DONNA SKAWINSKI AND DONALD STANDISH, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE COLCHESTER ZONING AND PLANNING COMMISSION, JOSEPH S. SUDIK, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS COLCHESTER BUILDING INSPECTOR, AND JOHN S. BARNECKI, INDIVIDUALLY, DEFENDANTS-APPELLEES



Appeal from a judgment of the United States District Court for the District of Connecticut, Blumenfeld, J., dismissing plaintiff's due process, equal protection and first amendment claims brought under 42 U.S.C. § 1983. Affirmed in part and reversed in part.

Author: Pierce

PIERCE, Circuit Judge:

This case involves a zoning dispute which arose out of plaintiffs-appellants' attempts to renovate and lease commercial property located in Colchester, Connecticut. While this Court has long recognized that purely local zoning disputes are generally matters which are best left to municipal and state agencies to resolve, from time to time we are presented with cases that warrant, and indeed require, the attention of the federal judiciary. We believe that the present matter properly falls into this latter category.

Wesley and Rosaria Brady appeal from so much of a judgment of the United States District Court for the District of Connecticut, Blumenfeld J., as dismissed their equal protection, due process, and first amendment claims*fn1 against the Town of Colchester, the First Selectman of the Town of Colchester, members of the Colchester Zoning and Planning Commission, the Colchester Building Inspector, and the former Building Official and Zoning Enforcement Officer of the Town of Colchester. The district court granted defendants' motion for summary judgment and dismissed the plaintiffs' § 1983 claims after concluding that the plaintiffs had not produced sufficient evidence to demonstrate that there were any genuine issues of material fact underlying their claims against the defendants. For the reasons stated hereinafter, we affirm the grant of summary judgment with respect to the Bradys' first amendment and procedural due process claims. However, because we believe that the plaintiffs did produce sufficient evidence to support their equal protection and substantive due process claims, we reverse the grant of summary judgment as to those claims and remand for further proceedings.

BACKGROUND

On July 13, 1983, plaintiffs-appellants Wesley and Rosaria Brady purchased a two-story, colonial building in the Town of Colchester, Connecticut, for the purpose of developing it as a commercial property. Shortly thereafter, the Bradys were approached by one of the burgesses of the Borough of Colchester about the possibility of leasing the first floor of their building.

The Borough of Colchester ("the Borough") is a separate political subdivision located entirely within the boundaries of the Town of Colchester. At the time the Borough sought to lease the first floor of the Bradys' building, the Borough was primarily controlled by Democrats, and the Town of Colchester was controlled by Republicans. Apparently these political differences generated a considerable amount of friction between the two governmental entities during the summer and fall of 1983.

The Bradys agreed to lease the subject premises to the Borough, and on July 27, 1983, the Borough voted to enter into a five-year fixed lease with Wesley Brady to rent the first floor as office space for $850.00 per month. According to newspaper accounts, which form part of the record on appeal, the Borough chose the Brady building for its offices because of the building's proximity to Town Hall and other town municipal offices.

Shortly after the Borough voted to enter into a lease for the Bradys' first floor premises, either in late July or early August of 1983, one of the burgesses informed Wesley Brady that he would have to make certain renovations to the property before the space would suit the Borough's needs. Specifically, the Borough informed Brady that handicapped restrooms would have to be installed on the first floor, a handicapped ramp leading into the building would have to be built, and the garage area would have to be converted into office space. Wesley Brady agreed to make the necessary renovations and applied to the Town of Colchester for a building permit. On August 2, 1983, defendant John S. Barnecki, who at that time was the Town of Colchester's Building Official and Zoning Enforcement Officer, issued a building permit to Brady authorizing the alterations to the subject property.

On September 19, 1983, the Borough of Colchester signed a five-year lease with Wesley Brady for the rental of the first floor of the building, and began occupying some of the space. One day later, on September 20, 1983, appellee Barnecki wrote to Wesley Brady, stating as follows:

Under Section 119.0 of the State of Connecticut Basic Building Code, a Certificate of Use and Occupancy is to be issued when the occupancy of a structure has been changed.

The occupancy of the building at 14 Norwich Avenue has been changed from residential use to business use. The building is to remain vacant and no occupancy is permitted until the Certificate of Occupancy has been issued by this office.

(Emphasis in original). On September 24, 1983, Barnecki sent Brady a cease and desist order in which he ordered Brady "not to continue with any improvements to the building and not to do any site work on the property" until Brady received permission from the Colchester Planning and Zoning Commission ("CPZC"). The letter further requested that Brady submit a Class B Site Plan to the CPZC pursuant to town zoning regulations. According to appellees, Wesley Brady had to submit site plans in order to obtain a zoning permit, which Brady needed because the property supposedly was zoned for residential use only. According to the appellees, it was only after Brady had obtained a zoning permit to use the allegedly "residential" property commercially, that he could then obtain the necessary building permits and certificates of occupancy which would entitle him to lease the first floor to the Borough. As we discuss below, Brady argues that the property was not residentially zoned and indeed that it was "used" as a commercial property for years prior to his purchase of it.

Although appellants now contest that there was ever a need to do so, between September 21 and November 2 of 1983, representatives of Wesley Brady appeared before the CPZC at least three times to discuss proposed site plans for the property. At no time, however, were they able to win approval of any single plan. It is undisputed that at one of these meetings, one of the members of the CPZC, defendant Donna Skawinski, stated that, "[I]f Mr. Brady wasn't renting to the Borough I would vote to accept the plans."

Apart from appellee Skawinski's statement, appellants also point to other evidence in support of their contention that during this time, the appellees tried to forestall the Borough's permanent occupation of the subject premises for purely political and improper reasons. For example, it is undisputed that Republican Town Chairman Alfred Goldstein had tried to persuade the Borough to rent one of his empty buildings in Colchester for less money, prior to the Borough's decision to rent from Wesley Brady, and that the Borough had rejected his overtures. Also, the record reveals that there was considerable negative press coverage in the local newspaper concerning the entire incident. The local news articles were directed towards both the Borough and Wesley Brady; they criticized first the Borough's decision to rent the subject premises and then Wesley Brady's purported inability to conform his property to local zoning regulations. It is undisputed that throughout this time period, appellee Helen Gay, a Republican and the Town's First Selectman, was also an owner and the Chairman of the Board of the local newspaper, and appellants contend that Gay was responsible for these negative articles.

On November 2, 1983, Wesley Brady instituted a mandamus proceeding in the Connecticut Superior Court against Barnecki and the individual members of the CPZC seeking an order directing the defendants to cause the issuance of the necessary certificates of occupancy for the subject building. On December 20, 1983, Brady obtained a stipulated judgment in his favor in which the defendants in the mandamus proceeding agreed to issue a temporary certificate of occupancy for the first floor of the building immediately, and permanent certificates of occupancy for both the first and second floors of the building as soon as certain conditions relating to further site renovation were met, provided that these renovations occurred no later than July 15, 1984. The parties also stipulated that the state trial court would retain continuing jurisdiction to "assure compliance with the terms of the stipulated judgment."

On December 14, 1983, at an emergency meeting of the CPZC, the Commission approved the site plan referred to in the stipulated judgment and voted to authorize issuance of a zoning permit for the proposed commercial use. Six months later, on July 13, 1984, a permanent certificate of occupancy was issued for the first floor of the building. No certificate of occupancy, temporary or permanent, was issued to appellants in connection with the second floor of the property. Although the Bradys unsuccessfully contested the CPZC's refusal to issue a certificate for the second floor in a subsequent state court proceeding, they do not contest herein that or any other unfavorable state court determination. Nor have further proceedings occurred in the state judicial system in connection with the dispute which ...


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