Posted by: Patricia Salkin | May 16, 2016

Fed. Dist. Court in CT Dismisses Equal Protection and Substantive Due Process Claims as Unripe

Plaintiffs purchased property and attempted to establish a nursery and farm operation thereon. At that time, the Clinton Zoning Regulations did not require a permit or certificate of compliance for a “nursery, truck garden or farm when no building or other structure is to be established in connection therewith.” In 1990, plaintiffs applied for and received Public Act 490 classification as farmland, which included their nursery operation. Over the next several years, plaintiffs used their property both as a nursery and a farm, began to process mulch and firewood for commercial sale, and kept livestock on the property. Effective January, 1, 2012, the Clinton Zoning Regulations were amended: (1) nurseries, truck gardens, farms, and greenhouses were required to be special exception uses in all resident zones; (2) the provision that no zoning permit was required for nurseries, truck gardens or farms was eliminated; and (3) the livestock regulation was revised to read: “All livestock shall be kept in a building, stable or enclosure, not less than the legal setback for the appropriate zone for any abutting residential or Village Zone property and one hundred feet away from any well or water body from which water is taken for human consumption.” Following this, Thomas Lane, the Zoning Enforcement Officer for the Town of Clinton, issued to plaintiffs Orders to Discontinue their farming operations. The Orders explicitly provide that they “may be appealed to the Zoning Board of Appeals of the Town of Clinton within fifteen days of its receipt.” However, rather than appeal, Plaintiffs brought this court action pursuant to 28 U.S.C. § 1983 for violations of their equal protection and substantive due process rights.

Here, Defendants presented evidence that plaintiffs appealed neither the April 16 nor the November 15, 2012 Orders to Discontinue to the Clinton Zoning Board of Appeals, even though the Orders clearly stated that plaintiffs had fifteen days to do so. Furthermore, defendants submitted evidence that plaintiffs failed to allege that they requested either variance relief or a determination that their use of the property constituted a valid nonconforming use. Lastly, because plaintiffs neither pleaded nor presented evidence that such an appeal or variance request would be futile or that the Clinton Zoning Board of Appeals was a remedial body, the court found that the plaintiffs had not met the first prong of Williamson, and their claims were therefore not yet ripe for adjudication and should be dismissed.

Cashman v Lane, 2016 WL 1305106 (D. Conn. 3/31/2016)

 


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