Posted by: Patricia Salkin | December 14, 2014

Fed. Dist. Court in CT Finds Regulation was not Unconstitutionally Vague as Applied to Property Owner’s Variance Application

Plaintiff Arrigoni Enterprises, LLC sought a variance from defendants the Town of Durham, Connecticut, the Durham Planing & Zoning Commission, and the Durham Zoning Board of Appeals to excavate, crush, and remove rock for the development of three commercial buildings. The Town denied its application on the basis of a local zoning regulation. Arrigoni’s post-trial motion seeking declaratory judgment that the zoning regulation be repealed for vagueness became the basis for this case. The key provision of the regulation at issue is which states, “No washing, crushing or other forms of processing earth products shall be conducted upon the premises unless located within a heavy industrial (HID) zone and then if must not be located within 100′ of any property or street line.”

The court first discussed that two independent grounds exist for finding a statute impermissibly vague. The first arises if the statute fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. The second arises when the statute authorizes or even encourages arbitrary and discriminatory enforcement. In its analysis of the regulation the court found that it was absolutely clear in its prohibition of crushing rocks and explicitly said that activity was not allowed. Accordingly, there was “no wiggle room here and a person of ordinary intelligence reading the regulation has adequate notice of this prohibition.” Furthermore, as a general rule, courts in the Second Circuit disfavor facial vagueness challenges that do not implicate the First Amendment. The Circuit imposes a strict standard stating that facial vagueness challenges may be presented only when no set of circumstances exists under which the law would be valid. Here, Arrigoni failed to argue or demonstrate that there was no set of circumstances under which the regulation may be valid. Accordingly, plaintiff’s motion for declaratory judgment was denied.

Arrigoni Enterprises, LLC v Town of Durham, 18 F. Supp. 3d 188 (D. Conn. 5/8/2014)

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