Reardon v. Keating

980 F.Supp.2d 302

Rosemarie REARDON, Scott Reardon, John Burton, Trustee and Scott Reardon IV, Trustee, Plaintiffs,

v.David KEATING, Zoning Enforcement Officer of the Town of Darien, in his Official Capacity; Jeremy Ginsberg, Director, Planning and Zoning Department, in his Official Capacity; The Town of Darien; James Eckert and Janeen Eckert, Defendants.

Civil Action No. 3:11–cv–01092–CSH.

United States District Court, D. Connecticut.

Oct. 29, 2013.

Alan H. Kaufman, Kaufman LLC, New York, NY, Allan B. Taylor, Erick M. Sandler, Day Pitney LLP, Hartford, CT, for Plaintiffs.

Edmund F. Schmidt, John J. Louizos, Patricia M. Gaug, Curtis, Brinckerhoff & Barrett, Stamford, CT, James R. Fogarty, Fogarty, Cohen, Selby & Nemiroff, Greenwich, CT, for Defendants.

RULING ON DEFENDANTS' MOTIONS TO DISMISS SECOND AMENDED COMPLAINT

HAIGHT, Senior District Judge:

This case is a Tale of Two Houses in the Town of Darien, Connecticut. The houses stand on neighboring lots on Long Neck Point Road in Darien, overlooking the waters of Long Island Sound. The owners of one house are aggrieved by renovations and enlargements made to the other house by its owners. That construction was approved by zoning officials of the Town. Plaintiffs, the aggrieved house owners, contend that the Town officials' procedures relevant to that approval deprived Plaintiffs of rights guaranteed by the United States Constitution, and also violated state and local statutes and ordinances. They bring this action for legal and equitable relief against two groups of Defendants: (1) the Town and certain Town officials (“the Town Defendants”); and (2) the owners of the other house.

This Court's subject matter jurisdiction depends entirely upon Plaintiffs' constitutional claims.¹ There is no diversity of citizenship between the parties, 28 U.S.C. § 1332(a), and no other basis for federal jurisdiction. Plaintiffs' claims under state and local law are asserted under principles of pendent jurisdiction.

Plaintiffs' Second Amended Complaint (“SAC”) is the operative pleading. Doc. 64. It contains five counts. The first three counts allege constitutional violations by the Town Defendants. The last two counts allege violations of state and local laws. Specifically, Count I alleges violation of Plaintiffs' constitutional guarantee of the right to petition; Count II alleges violation of Plaintiffs' constitutional guarantee of equal protection; and Count III alleges violations of Plaintiffs' guarantees of equal protection and substantive due process. Paragraph 200 of the SAC, with which Count III concludes, alleges: “By denying the plaintiffs of the security of the status quo while their appeals were (and are) pending, the Town and defendant Keating discriminated against the plaintiffs as a class of one.” Id., ¶ 200. It is apparent throughout the SAC that, to the extent Plaintiffs are asserting an equal protection claim, they are proceeding on the theory of a “class of one.”

The groups of Defendants, separately represented by different counsel, now move to dismiss Plaintiffs' Second Amended Complaint (“SAC”), which is the operative pleading. Doc. 65, 67, & 71. Plaintiffs resist the motions. The motions to dismiss have been extensively briefed. Counsel made oral arguments of high quality. This Ruling resolves the motions.

I. BACKGROUND

A. Preliminary Considerations

Defendants move to dismiss Plaintiffs' Second Amended Complaint pursuant to two provisions of Rule 12(b) of the Federal Rules of Civil Procedure: lack of subject matter jurisdiction, Rule 12(b)(1); and failure to state a claim upon which relief can be granted, Rule 12(b)(6).

The Defendants' motion papers and Plaintiffs' opposing papers include as exhibits a number of documents generated by proceedings before and appeals to the Town Defendants and to Connecticut state courts with respect to the underlying land use issues in the case at bar. I must consider the extent to which I may consider such material in the context of motions to dismiss. In Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1010–11 (2d Cir.1986), the Second Circuit said:

Under Rule 12(b), a “speaking” motion, i.e., a motion that includes evidentiary matters outside the pleadings, is properly converted to a Rule 56 [summary judgment] motion only when it is made under Rule 12(b)(6): failure to state a claim. However, when, as here, subject matter jurisdiction is challenged under Rule 12(b)(1), evidentiary matter may be presented by affidavit or otherwise.”

In a more recent Summary Order, the Second Circuit cited Kamen for the proposition that “[i]n resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court may refer to and rely on competent evidence outside the pleadings.” Giammatteo v. Newton, 452 Fed.Appx. 24, 27 (2d Cir.2011).

To the extent that the present motions fall under Rule 12(b)(1), these authorities enable me to consider the evidentiary matters submitted by the parties. The documents in question are relevant to the issues, and no issues of authenticity or admissibility arise with respect to them.

To the extent that the motions fall under Rule 12(b)(6), the SAC incorporates or refers to a number of documents. The Second Circuit has recognized that “when a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint, the court may nevertheless take the document into consideration in deciding the defendant's motion to dismiss, without converting the proceeding into one for summary judgment.” Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir.1995) (internal quotations and citation omitted). “Where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, thereby rendering the document integral to the complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.2010) (internal quotation marks and citation omitted). It is equally well settled that I may take judicial notice of published state and local laws and regulations, and court decisions, that are relevant to the issues presented by these motions.

Guided by these principles, I will consider the materials submitted by all parties in connection with and in support of their contentions on the issues that arise under both Rule 12(b)(1) and Rule 12(b)(6).

In Ruston v. Town Bd. for the Town of Skaneateles, 610 F.3d 55, 58–59 (2d Cir.2010), the Second Circuit resolved any pre-existing doubt and held that a land-use case such as a “class of one” equal protection claim was subject to the pleading standard set out in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “Under Iqbal, factual allegations must be sufficient to support legal conclusions.” Ruston, 610 F.3d at 59. Chief Judge Jacobs also stated in Ruston: “This account of the dispute is derived from the Rustons' January 12, 2009 amended complaint, the factual allegations of which are accepted as true to the extent they are non-conclusory for the purposes of a motion to dismiss.” Id. at 57 n. 1. That distinction resonates in the case at bar, because Plaintiffs' 215–paragraph SAC contains a generous measure of allegations that are solely, even unabashedly conclusory. Having submitted the SAC to the necessary rites of distillation, reduction and purification, I will set forth an account of the disputes involving the Reardons, the Town, and the Eckerts that is derived principally from the residue: well-pleaded allegations of fact, whose truth I accept on these motions to dismiss.

B. The Factual Allegations in the Second Amended Complaint

Unless otherwise noted, the account appearing in this sub-part is based upon those allegations in the SAC that are factual in nature. Conclusory or argumentative allegations are disregarded.

Plaintiff Rosemarie Reardon is a part owner of and resides in a single family residence at 169 Long Neck Point Road (“the Reardon Property”). Plaintiff Scott Reardon, Rosemarie's husband, also resides in the Reardon Property. He has no ownership interest in it. The Sunrise Trust, a South Dakota trust established for the benefit of the Reardons' children, is a part owner of the Reardon Property. Plaintiff John Burton is a trustee of the Sunrise Trust, as is Plaintiff Scott Reardon IV.

The house located on the Reardon Property was built in 1905. The Reardons have lived there since 1993. The house stands upon elevated ground, and its occupants, as well as members of the public passing along an adjacent roadway, have enjoyed an unfettered view of Long Island Sound, across an adjacent waterfront parcel to the east, at 165 Long Neck Road.

The Reardon Property includes a waterfront parcel of land (“the Waterfront Parcel”) that was acquired by the Reardons as part of their purchase of the residence. The Waterfront Parcel is accessed by a 6–foot wide easement traversing the southern boundary of the adjacent property at 165 Long Neck Point Road.

In 2007, that adjacent property at 165 Long Neck Point Road was acquired by Defendants James Eckert and Janeen Eckert, husband and wife, who now own the property jointly (hereinafter “the Eckert Property”).

From 1924, the Eckert Property included a late 19th century ox barn that had been converted into a more than 6,000 square foot family residence. This structure did not conform to the Town of Darien's zoning code, adopted in 1951, and was a nonconforming structure upon the code's enactment.

In or about August, 2009, James Eckert wrote to the Reardons. Eckert said that he and his wife did not want to renovate the “barn” house. They preferred building a new house that would be set directly in front of the Reardon residence and would block both the Reardons' and the public's view of Long Island Sound. Eckert...