Posted by: Patricia Salkin | December 9, 2014

Fed. Dist. Court in CT Dismisses Takings Claim as Unripe for Failure to Exhaust State Remedies

Marguerite Komondy, now deceased, commenced this action against the Town of Chester and its zoning officials to redress their alleged infringement of her federal and state constitutional rights with respect to residential property she owned in Chester, Connecticut. On March 5, 2005, Marguerite Komondy’s antique historical home was destroyed by fire, and because the structural damage from the fire was so extensive, the remainder of the dwelling was demolished in the interest of safety. Mrs. Komondy then sought permission from the Town of Chester, pursuant to Chester Zoning Regulation § 113B.5, to remain on her property in a temporary mobile home during the reconstruction of her permanent home. She received a permit to install a mobile home on the property and to live in that “temporary dwelling” for a maximum period of six months. Upon expiration of the six-month period, Mrs. Komondy applied for an extension of the permit, which was was denied. She then filed an appeal of the permit denial and an application for a variance from § 113B.5, but the Chester ZBA denied both applications. The Connecticut Superior Court, and subsequently in the Connecticut Appellate Court, both dismissed her complaints as well. On February 2, 2012, Mrs. Komondy received a letter from Chester’s legal counsel, informing her that the Town would “remove the trailer on her property … if it was not removed by her” and “the costs and expenses of that removal would be charged against her, resulting in a lien on the subject real property.” The Town agreed not to take any action to remove her mobile home during the pendency of this action.

Plaintiff Christopher Komondy (Marguerite’s husband) first asserted that Defendants’ conduct in failing to allow Marguerite Komondy to remain in a temporary dwelling on her property while her home was rebuilt constituted an unlawful taking under the Fifth Amendment and Fourteenth Amendments. In the case at bar, Plaintiff has failed to plead that he has unsuccessfully utilized Connecticut’s state procedure for procuring just compensation for the alleged taking of the property at 29 Liberty Street. This District therefore applied the binding ruling of Williamson to dismiss the “takings” claim as unripe because the second prong of ripeness had not been met, since the plaintiff’s claim was based on a regulatory taking and the plaintiff failed to utilize available state procedures to procure just compensation for that taking.

Komondy v Gioco, 2014 WL 6453892 (D. CT 11/18/2014)


Responses

  1. The second prong strikes again PETER


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