Posted by: Patricia Salkin | April 9, 2014

Fed. District Court in CT Dismisses Section 1983 Claims Relatred to Variance Denial for Failure to Timely File

The plaintiff, Richard Perrie, claimed that the Middletown Zoning Board of Appeals “intentionally and maliciously discriminated against [him and] arbitrarily used its power to deprive [him] of the use of his property, and engaged in vexatious litigation.” The claims were brought under §1983 of the United States Constitution and Connecticut common law and statutory law. Perrie owned property on which he sought a variance to relocate a shed located on the property. In Perrie’s 2006 application he represented that the shed would merely be used for storage, and that it would not be equipped with “electricity, heating or plumbing . . . .” The board granted Perrie’s application for the variance, and although Perrie represented that he would not erect a structure equipped with electricity, the variance did not prohibit electricity. In 2007, Perrie wired the shed for electricity and the proper building department approved it. Then, in 2009 Perrie received a cease and desist order for unlawful use of a structure, where “[t]he enforcement officer stated that the ZBA approved a proposal for a storage shed without electricity at its meeting on August 3, 2006.” Perrie appealed the order, but the board held the case and desist order was proper because the variance for the shed was in fact issued for a shed without electricity and such installation constituted an unlawful use of the property.

Perrie appealed and the Connecticut Superior Court overturned the board’s ruling holding it was arbitrary and an abuse of discretion. Perrie then filed a complaint approximately one year after the court’s ordering overturning the board’s decision, and approximately four years after the board’s publication of its decision upholding the cease and desist order. The court found that all of Perrie’s causes of actions were time barred. The court found that the statute of limitations for each claim began to run in October of 2009 after the board published the cease and desist order because this was the last affirmative action by the board, and Perrie had “reason to know of his injury.” Thus, the court dismissed Perrie’s 1983, vexatious litigation, and abuse of process claims because he filed after the three-year statute of limitations expired.

Perrie v Middleton Zoning Board of Appeals, 2014 WL 1281447 (D. Conn. 3/27/2014)

The opinion can be accessed at: http://law.justia.com/cases/federal/district-courts/connecticut/ctdce/3:2013cv01667/102627/18


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