Posted by: Patricia Salkin | March 15, 2016

Fed. Dist. Court of CT Finds Owner Failed to Establish that Similarly Situated Nightclubs Were Treated More Favorably by Town in Equal Protection Claim

Plaintiff Dennis Dean owned co-plaintiff Phoenix Management Group One, LLC, a company that did business in the name of “Dean’s Point After Super Sports Bar and Grille” (“the Point After”) in the Town of Hamden. The Point After opened in 2005 after receiving the proper permits and liquor license from the Town and, once the bar expanded, the Town’s fire marshal approved an occupancy level of 1,200 people. In 2009, however, defendant Holly Masi, the Town’s Zoning Enforcement Officer, issued a notice of violation based on excessive occupancy. According to Masi, the capacity of the Point After was only 179 people, based on the number of allotted parking spots under the site plan for the expanded site. In April 2011, defendant Masi, in her capacity as the Town’s zoning enforcement officer, issued to plaintiffs a cease-and-desist order, stating that plaintiff Phoenix Management Group was operating a nightclub in violation of Hamden zoning regulation § 160, which prohibited any activity “not expressly permitted by the regulations.” Plaintiffs appealed the cease- and-desist order to the defendant Zoning Board of Appeals (ZBA), which upheld the cease-and-desist order on the ground of events that exceeded parking-related occupancy limits of 179 persons. In August 2012, the Superior Court denied the Town’s application for a temporary injunction, concluding that the building’s occupancy limit should not be determined by the site plan’s available parking. The Superior Court also vacated the ZBA’s decision.

Plaintiffs first argued that under the Equal Protection Clause they were subject to “class-of-one” arbitrary discrimination, as well as to selective enforcement of the law. Plaintiffs contended that similar business establishments like Devin’s Lounge and 295 Treadwell, as well as other large entertainment sites like Quinnipiac University’s TD BankNorth Stadium, were treated more favorably by defendants. However, no there was information in the record such as the square footage, capacity, or entertainment schedule to provide any sort of basis for a reasonable jury to determine that the comparator entertainment venues were similarly situated to the plaintiffs. The fact that complaints were called in to the police regarding the Point After gave the Town and Wydra a rational basis to require the hiring of more officers to protect the safety of attendees and the neighborhood.

Next, plaintiffs claimed that defendants Masi and the Zoning Board of Appeals violated their right to procedural due process when they imposed the cease-and-desist order without appropriate notice to plaintiffs of the basis and grounds for the order. Here, notwithstanding the issuance of the cease-and-desist order, plaintiffs continued to engage in the very activities that were proscribed by the order. Thus, although a cease and desist order was issued, the plaintiffs continued to operate the establishment and were not subject to any deprivation of property. Moreover, the court noted that neither the general ability to do business free from regulation nor the ability to make a profit is a property right subject to protection from deprivation under the Due Process Clause. Accordingly, the court held that plaintiffs had not been deprived of a property right to give rise to a due process claim.

Dean v. Town of Hamden, 2016 WL 659660 (D. Conn. 2/18/2016)

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